Treasury Laws Amendment (2023 Law Improvement Package No. 1) Act 2023 (76 of 2023)

Schedule 2   ALRC Financial Services Interim Report: single glossary of defined terms

Part 1   Amendments

Division 9   Terms relating to financial services and markets

Corporations Act 2001

289   Sections 761A and 761B

Repeal the sections, substitute:

761A Meaning of some terms relating to financial services and markets

In this Act:

AFCA (short for the Australian Financial Complaints Authority) means the operator of the AFCA scheme.

AFCA regulated superannuation scheme means:

(a) the scheme provided for by the Australian Defence Force Cover Act 2015; and

(b) if, under the AFCA scheme, an exempt public sector superannuation scheme may elect to join the AFCA scheme, and such a superannuation scheme so elects - that superannuation scheme.

AFCA scheme means the external dispute resolution scheme for which an authorisation under Part 7.10A is in force.

AFCA staff member means:

(a) a director, officer or employee of AFCA; or

(b) a person engaged as a consultant to, or to perform services for, AFCA for the purposes of the AFCA scheme.

annuity policy means a life policy in relation to an annuity that is declared to be a superannuation policy under regulations made for the purposes of paragraph (b) of the definition of superannuation policy in the Schedule to the Life Insurance Act 1995.

authorised clearing and settlement facility means:

(a) a licensed CS facility; or

(b) a clearing and settlement facility that satisfies the following requirements:

(i) the operator of the facility is authorised to operate the facility in the foreign country in which the operator's principal place of business is located;

(ii) any requirements specified in regulations made for the purposes of this subparagraph.

binder means an authorisation given to a person by a financial services licensee who is an insurer to do either or both of the following:

(a) enter into contracts that are risk insurance products on behalf of the insurer as insurer;

(b) provide a claims handling and settling service, on behalf of the insurer as insurer, in relation to risk insurance products;

but does not include an authorisation of a kind referred to in paragraph (a) that is limited to effecting contracts of insurance by way of interim cover unless there is also in existence an authority given by the insurer to the person to enter into, on behalf of the insurer and otherwise than by way of interim cover, contracts of insurance.

CGS depository interest means a depository interest (within the meaning of the Commonwealth Inscribed Stock Act 1911) that can be transferred through a licensed CS facility.

death benefit decision-maker means any of the following persons:

(a) the trustee of:

(i) a regulated superannuation fund; or

(ii) an AFCA regulated superannuation scheme; or

(iii) an approved deposit fund;

(b) an insurer in relation to a superannuation complaint;

(c) an RSA provider.

derivative retail client money : money paid as mentioned in subsection 981A(1) is derivative retail client money if:

(a) either:

(i) the financial service referred to in subparagraph 981A(1)(a)(i) is or relates to a dealing in a derivative; or

(ii) the financial product referred to in subparagraph 981A(1)(a)(ii) is a derivative; and

(b) the financial service or product would be provided to the client as a retail client if:

(i) the service or product were provided to the client when the money is paid; and

(ii) section 761GA (about sophisticated investors) did not apply.

derivative trade data means:

(a) information about derivative transactions, or about positions relating to derivative transactions; or

(b) information (including statistical data) that is created or derived from information referred to in paragraph (a).

financial services law means:

(a) a provision of this Chapter or of Chapter 5C, 5D, 6, 6A, 6B, 6C, 6D, 8A or 8B; or

(b) a provision of Chapter 9 as it applies in relation to a provision referred to in paragraph (a); or

(c) a provision of the Passport Rules for this jurisdiction; or

(d) a provision of Division 2 of Part 2 of the ASIC Act; or

(e) any other Commonwealth, State or Territory legislation that covers conduct relating to the provision of financial services (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of financial services; or

(f) in relation to a financial services licensee that is a licensed trustee company (in addition to paragraphs (a) to (e)) - any rule of common law or equity that covers conduct relating to the provision of financial services that are traditional trustee company services (whether or not it also covers other conduct), but only in so far as it covers conduct relating to the provision of such services.

foreign exchange contract means a contract:

(a) to buy or sell currency (whether Australian or not); or

(b) to exchange one currency (whether Australian or not) for another (whether Australian or not).

funeral benefit :

(a) means a benefit that consists of the provision of funeral, burial or cremation services, with or without the supply of goods connected with such services; but

(b) does not include a scheme or arrangement for the provision of benefits consisting of the payment of money, on the death of a person, for the purpose of meeting the whole or a part of the expenses of and incidental to the funeral, burial or cremation of the person.

insurer , in relation to a superannuation complaint, means the life company (within the meaning of the Life Insurance Act 1995) that is a party to the policy to which the complaint relates.

licensed derivative trade repository means a derivative trade repository the operation of which is authorised by an Australian derivative trade repository licence.

life policy fund means a regulated superannuation fund, or an AFCA regulated superannuation scheme, for the purpose of which the trustee maintains, in relation to at least some of the members of the fund:

(a) individual life policies covering each of those members; or

(b) a single life policy covering all of those members.

relevant personal circumstances , in relation to advice provided or to be provided to a person in relation to a matter, are such of the person's objectives, financial situation and needs as would reasonably be considered to be relevant to the advice.

sale , in relation to an annuity policy, includes any activity undertaken, or representation made:

(a) at the time of, or preliminary to, the entry into the policy, so that the policy as so entered into extends to a particular person; and

(b) at the time of, or preliminary to, the variation of the policy, so that the policy as so varied affects a particular person.

title document for a financial product means a certificate or other document evidencing ownership of the financial product.

761B Meaning of arrangement

(1) For the purposes of this Chapter, arrangement means a contract, agreement, understanding, scheme or other arrangement (as existing from time to time):

(a) whether formal or informal, or partly formal and partly informal; and

(b) whether written or oral, or partly written and partly oral; and

(c) whether or not enforceable, or intended to be enforceable, by legal proceedings and whether or not based on legal or equitable rights.

(2) For the purposes of this Part, if:

(a) an arrangement (as defined in subsection (1)), when considered by itself, does not constitute a derivative, or some other kind of financial product; and

(b) that arrangement, and one or more other arrangements, if they had instead been a single arrangement, would have constituted a derivative or other financial product; and

(c) it is reasonable to assume that the parties to the arrangements regard them as constituting a single scheme;

the arrangements are to be treated as if they together constituted a single arrangement.