Corporations Act 2001

CHAPTER 10 - TRANSITIONAL PROVISIONS  

PART 10.2 - TRANSITIONAL PROVISIONS RELATING TO THE FINANCIAL SERVICES REFORM ACT 2001  

Division 1 - Transitional provisions relating to the phasing-in of the new financial services regime  

Subdivision E - Product disclosure requirements  

SECTION 1438   NEW PRODUCT DISCLOSURE PROVISIONS DO NOT APPLY TO EXISTING PRODUCTS DURING TRANSITION PERIOD  

1438(1)   [ Application]  

This section applies to all financial products issued by a person, other than financial products in a class of products that are first issued by the person after the FSR commencement.

1438(2)   [ " new product disclosure provisions " ]  

For the purposes of this section, the new product disclosure provisions in relation to a financial product to which this section applies are the provisions of Part 7.9 of the amended Corporations Act that, apart from this section, would apply in relation to the financial product (whether those provisions apply to the issuer of the product or to another person or persons), other than the following provisions:

(a) section 1017C (information for existing holders of superannuation products and RSA products);

(b) section 1017DA (trustees of superannuation entities - regulations may specify additional obligations to provide information), and regulations made for the purposes of that section;

(c) section 1017E (dealing with money received for financial product before the product is issued);

(d) section 1017F (confirming transactions);

(e) sections 1019A and 1019B (cooling-off period for return of financial product);

(ea) Division 5A (unsolicited offers to purchase financial products off-market);

(f) sections 1020B and 1020C (short selling of securities, managed investment products and certain other financial products);

(g) section 1020D (Part cannot be contracted out of).

1438(3)   [ FSR transition period and opt-in notice]  

Subject to subsection (4), the new product disclosure provisions do not apply in relation to a financial product to which this section applies during the period (the transition period ) starting on the FSR commencement and ending on whichever of the following first occurs:

(a) the end of the period of 2 years starting on the FSR commencement;

(b) the date specified in a notice lodged with ASIC by the issuer of the product that relates to the product, or a class of financial products that includes the product, and that satisfies the following requirements:

(i) the notice must indicate that the issuer of the product wants the new product disclosure provisions to apply in relation to the product from a date specified in the notice;

(ii) the date specified in the notice is the FSR commencement or a later date;

(iii) the date specified in the notice is at least 28 days after the notice is lodged with ASIC.

Note 1: A notice under paragraph (b) may be lodged during the period between the commencement of this section and the FSR commencement, or it may be lodged after the FSR commencement.

Note 2: Subject to Division 2 , the provisions covered by paragraphs (2)(a) to (f) apply from the FSR commencement in relation to all financial products to which they purport to apply.

1438(4)   [ No transition period]  

If the date specified in a notice lodged with ASIC in accordance with paragraph (3)(b) is the FSR commencement, there is no transition period in relation to the financial product or products to which the notice relates.

1438(5)   [ Variation or revocation of opt-in notice]  

A notice (the first notice ) lodged with ASIC in accordance with paragraph (3)(b):

(a) may, by a further notice lodged with ASIC, be varied to specify a different date (the new date ), but only if:

(i) that further notice is lodged with ASIC at least 28 days before the date specified in the first notice; and

(ii) the new date is at least 28 days after that further notice is lodged with ASIC; and

(b) may, by a further notice lodged with ASIC, be revoked, but only if that further notice is lodged with ASIC at least 28 days before the date specified in the first notice.

A date that was specified in a notice before its variation or revocation in accordance with this subsection is to be disregarded for the purposes of the other provisions of this section.

1438(6)   [ Compliance with requirements determined by ASIC]  

If the issuer of a financial product lodges a notice with ASIC in accordance with paragraph (3)(b) that covers the product, the issuer must comply with any applicable requirements determined, by legislative instrument, by ASIC for the purposes of this subsection in relation to the following matters:

(a) informing people about the notice and its significance; and

(b) informing people about any subsequent variation or revocation of the notice.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

1438(7)   [ Determination by ASIC]  

A determination by ASIC for the purposes of subsection (6):

(a) (Repealed by No 154 of 2007)

(b) may cover all financial products or one or more classes of financial products; and

(c) may make different provision in relation to different classes of financial products.

1438(8)   [ ASIC ' s obligation to make information available]  

Subject to the regulations, ASIC must take reasonable steps to ensure that, during the period of 2 years starting on the FSR commencement, information is available:

(a) on the internet; and

(b) at offices of ASIC;

about notices that have been lodged in accordance with paragraph (3)(b). The information must be updated to take account of variations and revocations of such notices.