Corporations Act 2001
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Hide history noteIn this Division, unless the contrary intention appears:
amended Corporations Act
means this Act as in force after the FSR commencement.
associated provisions
, in relation to provisions (the
core provisions
) of a particular Act as in force at a particular time, include (but are not limited to):
(a) any regulations or other instruments that are or were in force for the purposes of any of the core provisions at that time; and
(b) any interpretation provisions that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and
(c) any provisions relating to liability (civil or criminal) that apply or applied in relation to any of the core provisions at that time (whether or not they also apply or applied for other purposes); and
(d) any provisions that limit or limited, or that otherwise affect or affected, the operation of any of the core provisions at that time (whether or not they also limit or limited, or affect or affected, the operation of other provisions).
class
, in relation to financial products, has a meaning affected by regulations made for the purposes of subsection (2).
FSR commencement
means the commencement of item 1 of Schedule 1 to the
Financial Services Reform Act 2001
.
old Corporations Act
means this Act as in force immediately before the FSR commencement.
regulated activities
, in relation to a regulated principal, has the meaning given by section 1430.
regulated principal
has the meaning given by section 1430.
relevant old legislation,
in relation to a regulated principal, has the meaning given by section 1430.
transition period
:
(a)
in relation to a market to which section 1414, 1418, 1420, 1421 or 1422 applies
-
has the meaning given by subsection (2) of that section; and
(b) in relation to a market to which section 1417 applies and the additional products referred to in that section - has the meaning given by subsection 1417(2); and
(c) in relation to a clearing and settlement facility to which section 1426 or 1429 applies - has the meaning given by subsection (2) of that section; and
(d) in relation to a clearing and settlement facility to which section 1428 applies and the additional products referred to in that section - has the meaning given by subsection 1428(2); and
(e) in relation to a regulated principal - has the meaning given by subsection 1431(1); and
(f) in relation to a financial product to which section 1438 applies - has the meaning given by subsection (3) of that section. 1410(1A) [ Other definitions]
Other expressions used in this Part that are defined in Division 2 of Part 7.1 have the same meanings as they are given by that Division. This has effect subject to:
(a) any contrary intention in a provision of this Part; or
(b) regulations made for the purposes of this paragraph. 1410(2) [ Regulations identifying ``class'' of financial products]
The regulations may include provisions identifying, or providing for the identification of, what constitutes a class of financial products for the purposes of a provision or provisions of this Division.
1410(3) [ Preserved provisions]If a provision of this Division (the transitional provision ) provides for a provision of this or another Act (the preserved provision ), as in force immediately before the FSR commencement, to continue to apply to or in relation to a person, thing or matter:
(a) the preserved provision so continues to apply only to the extent (if any) to which it is expressed in terms that cover the person, thing or matter; and
(b) the transitional provision is not taken to extend the scope of the preserved provision (otherwise than by giving it a continued operation).
Subject to section 1412, in this Subdivision, a reference to a market being operated immediately before the FSR commencement is a reference to a market that had not permanently ceased to operate before the FSR commencement, even if trading on the market was not actually occurring immediately before the FSR commencement (for example, because of a routine temporary closure of the market).
This section applies in relation to the following proposed markets, other than any such market that starts to operate before the FSR commencement:
(a) a market proposed to be operated by Bendigo Stock Exchange Ltd, or by ASX Futures Exchange Pty Limited, that is identified in writing by the Minister as being a proposed market to which this section applies;
(b) any other proposed market identified in, or in accordance with, regulations made for the purposes of this paragraph.
For this purpose, a proposed market is a market that a person has, before the FSR commencement, indicated an intention that they propose to operate.
1412(2) [ Application of Subdivision]This Subdivision applies in relation to a proposed market to which this section applies subject to the following paragraphs:
(a) subject to paragraphs (b), (c) and (d), this Subdivision applies in relation to the proposed market as if the market, as proposed to be operated, were in fact being operated immediately before the FSR commencement;
(b) if, taking account of the effect of paragraph (a), section 1413 applies in relation to the proposed market, that section applies in relation to the proposed market:
(i) as if the Minister's obligation to grant a licence, and impose conditions, under subsection 1413(2) in relation to the market does not arise unless and until the market operator lodges with ASIC a notice in relation to the market under subsection (3) of this section, and does not arise at all if no such notice is given to ASIC by the end of 6 months after the FSR commencement; and
(ii) as if subsection 1413(3) provided for a licence so granted under subsection 1413(2) in relation to the market, and the conditions subject to which it is granted, to be taken to have had effect from the day (the start day ) specified in the subsection (3) notice as the day on which the market started to operate; and
(iii) as if subsection 1413(6) were omitted; and
(iv) as if the references in subsection 1413(8) to the FSR commencement were instead references to the start day;
(c) if:
(i) taking account of the effect of paragraph (a), section 1418, 1420, 1421 or 1422 applies to the proposed market; and
that section ceases to apply in relation to the proposed market at the end of that period;
(ii) the market operator does not lodge with ASIC a notice in relation to the market under subsection (3) of this section by the end of 6 months after the FSR commencement;
(d) if a provision of this Subdivision provides for a provision of the old Corporations Act to continue to apply in relation to the proposed market, then (without limiting the generality of subsection 1410(3)), while the proposed market remains non-operational, the provision of the old Corporations Act only applies in relation to the proposed market to the extent (if any) to which it would, disregarding the effect of paragraph (a), apply in relation to the proposed market. 1412(3) [ Notice of commencement during first six months]
If a proposed market to which this section applies starts to operate on a day during the period of 6 months starting on the FSR commencement, the operator must, as soon as practicable, and in any event within 7 days, lodge with ASIC written notice of the fact that the market started to operate on that day.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
1412(4) [ ASIC must give Minister notice]ASIC must, within a reasonable time, give the Minister a notice it receives under subsection (3).
This section applies to each market being operated immediately before the FSR commencement in relation to which any of the following paragraphs applies:
(a) the market was a stock market operated by the Australian Stock Exchange Limited;
(b) the market was a stock market operated by a body corporate covered by an approval in force under subsection 769(2) of the old Corporations Act;
(c) the market was a futures market operated by a body corporate covered by an approval in force under subsection 1126(2) of the old Corporations Act. 1413(2) [ Obligation to grant licence]
Subject to subsections (3) and (4), the Minister must, in relation to each market to which this section applies, grant the operator of the market a licence, and impose conditions on that licence, in accordance with the following requirements:
(a) the licence must be described as an Australian market licence;
(b) the licence must be granted subject to the following conditions:
(i) a condition specifying the market as the market that the licence authorises the licensee to operate;
(ii) a condition specifying, as the classes of financial products that can be dealt with on the market, the classes that are appropriate for the market under subsection (5);
1413(3) [ Time for grant]
(iii) if the Minister considers that the licensee should have clearing and settlement arrangements for transactions effected through the market - a condition specifying the type of clearing and settlement arrangements that are adequate.
Subject to subsection (6), a licence that subsection (2) requires to be granted must be granted on, or as soon as practicable after, the FSR commencement. If it is granted after the FSR commencement, it, and the conditions subject to which it is granted, are taken to have had effect from that commencement.
1413(4) [ More than one licence in same document; more than one market covered]Sections 795D (more than one licence in the same document) and 795E (more than one market covered by the same licence) of the amended Corporations Act apply in relation to the granting of licences, and licences granted, under this section as if the licences were, or were being, granted under section 795B of that Act. If, pursuant to section 795E, a single licence is granted under this section in respect of several separate markets, paragraph (2)(b) of this section must be complied with separately in the licence document in relation to each of those markets.
1413(5) [ ``appropriate'' classes of financial products]For the purposes of subparagraph (2)(b)(ii), the classes of financial products that are appropriate for a market to which this section applies are as follows:
(a) for a market described in paragraph (1)(a) or (b) - securities, within the meaning of section 92 of the old Corporations Act as applying for the purposes of Part 7.2 of the old Corporations Act, and agreements of a kind to which section 92A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect);
(b) for a market described in paragraph (1)(c) - futures contracts, within the meaning of section 72 of the old Corporations Act, and agreements of a kind to which section 72A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect). 1413(6) [ Grant of licence prior to FSR commencement]
Despite anything in subsection (3), the Minister may, under this section, grant a licence, and impose conditions on the licence, at any time during the period starting on the commencement of this section and ending on the FSR commencement on the basis that matters known to the Minister in relation to the market concerned will continue to be the case up to the FSR commencement. If the Minister does so:
(a) the licence and conditions come into effect on the FSR commencement, and not before; and
(b) the Minister may vary or revoke the licence, or any of the conditions, before the FSR commencement if the Minister considers it appropriate to do so having regard to the provisions of this section concerning the granting of licences and the imposition of conditions; and
(c) the licence and conditions do not come into effect on the FSR commencement if, immediately before the FSR commencement, the market is not a market to which this section applies. 1413(7) [ Notice to operator of market]
If the Minister grants a licence under this section, the Minister must give the operator of the market written notice of:
(a) the grant of the licence, and the conditions imposed on the licence; and
(b) any subsequent revocation or variation under subsection (6) of the licence or conditions. 1413(8) [ Notice must contain statement]
A notice advising of the grant of a licence under this section must contain a statement to the effect that the licence and conditions will not take effect until the FSR commencement, or will be taken to have had effect from the FSR commencement, as the case requires.
Subject to subsections (2) to (4):
(a) a licence granted under section 1413 that authorises the operation of a market is, for the purposes of the amended Corporations Act (other than this section), taken to have been granted (and to have been properly granted) under section 795B of the amended Corporations Act; and
(b) conditions imposed under section 1413 on the licence are, for the purposes of the amended Corporations Act (other than this section), taken to have been imposed (and to have been properly imposed) under section 796A of the amended Corporations Act.
Note 1: Section 795C of the amended Corporations Act (publication of notice of licence grant) applies to the grant of the licence.
Note 2: The conditions may be varied or revoked, and additional conditions may be imposed, under section 796A of the amended Corporations Act.
Subject to subsection (4), the relevant new legislation (see subsection (6)) does not apply in relation to the market 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) conditions on the licence are varied or revoked, or additional conditions are imposed on the licence, pursuant to an application by the licensee under subsection 796A(2)of the amended Corporations Act;
(c) the licensee has lodged with ASIC notice in writing that it wants to take advantage of the compensation arrangements under Division 3 of Part 7.5 of the amended Corporations Act:
(i) from a specified date, being a date that is after the notice is given to ASIC and that is after compensation arrangements for the market have been approved under Division 3 of Part 7.5 of the amended Corporations Act (see also subsection (4)); or
and that date arrives or period ends.
(ii) from the end of a specified period, being a period that is described as starting when compensation arrangements for the market are approved under Division 3 of Part 7.5 of the amended Corporations Act (see also subsection (4)) and that ends after the notice is given to ASIC;
A notice (the original notice ) given for the purposes of paragraph (2)(c) may, before the date, or the end of the period, specified in the original notice as mentioned in that paragraph:
(a) be varied to specify another date or period, being a date or period that would satisfy the requirements of subparagraph (2)(c)(i) or (ii) if the reference in that subparagraph to when the notice (being the original notice) is given to ASIC were instead a reference to when the notice of variation is given to ASIC under this subsection; or
(b) be revoked.
The variation or revocation must be made by notice in writing lodged with ASIC.
If the relevant new legislation in relation to a market includes Part 7.5 of the amended Corporations Act, then, despite subsection (2), Division 3 of that Part applies to the market during the transition period to the extent necessary for the operator to apply to have compensation arrangements for the market approved before the end of the transition period, and for that application to be determined. However, any approval of the arrangements under that Division does not take effect until immediately after the end of the transition period.
The annual report of the licensee (see section 792F of the amended Corporations Act) for a financial year in which part of the transition period occurs, other than a financial yearin which the transition period ends, must include information about:
(a) the steps taken in the year; and
(b) the steps proposed to be taken in the next year;
to ensure that the relevant new legislation will be complied with by the time the transition period ends.
In this section:
relevant new legislation
, in relation to a market, means:
(a) section 793A of the amended Corporations Act; and
(b) unless the market is a market to which Division 4 of Part 7.5 of the amended Corporations Act applies - Part 7.5 of the amended Corporations Act.
If, during the transition period in relation to a market the operation of which is authorised by a licence granted under section 1413, Part 7.5 of the amended Corporations Act does not apply in relation to the market (except as provided in subsection 1414(4)) because of subsection 1414(2), Part 7.9, or Part 8.6, as the case requires, of the old Corporations Act, and any associated provisions, continue to apply in relation to the market during the transition period.
1415(2) Preservation of certain ongoing requirements.During the transition period in relation to a market:
(a) the operation of which is authorised by a licence granted under section 1413; and
(b) that, immediately before the FSR commencement, was a securities exchange to which section 769A of the old Corporations Act applied;
the following provisions continue to apply in relation to the market:
(c) paragraphs 769A(1)(c) and (e) of the old Corporations Act, and any associated provisions;
(d) section 769B of the old Corporations Act (but only as applying in relation to paragraphs 769A(1)(c) and (e) of the old Corporations Act), and any associated provisions.
The regulations may do all or any of the following in relation to a market the operation of which is authorised by a licence granted under section 1413:
(a) provide that some or all of the provisions (the relevant old legislation ) that would otherwise continue to apply in relation to the market because of section 1415 do not apply in relation to the market;
(b) provide that some or all of the relevant old legislation applies in relation to the market with specified modifications during some or all of the transition period for the market;
(c) provide that some or all of the relevant new legislation (within the meaning of section 1414) in relation to the market applies in relation to the market during some or all of the transition period for the market;
(d) provide that specified provisions of the amended Corporations Act (including relevant new legislation), and any associated provisions, apply in relation to the market during some or all of the transition period for the market with specified modifications.
Regulations made for the purposes of subsection (1) have effect despite anything in sections 1414 and 1415.
Subsection (1) gives a full power to disapply, apply and modify provisions as mentioned in that subsection, including for reasons that do not have an express or implied connection with the transition to the relevant new legislation.
Note: So (for example), a change to the day-to-day operation of the relevant old legislation as continuing to apply may be achieved by a modification under paragraph (1)(b) (whether that change is to an existing rule, or is the addition of a new rule).
This section applies to a financial market in relation to which the following paragraphs are satisfied:
(a) a licence is granted under section 1413 to the operator of the market; and
(b) the conditions on the licence specify, as the classes of financial products that can be dealt with on the market, the classes of financial products specified in whichever of paragraphs 1413(5) (a) and (b) is applicable; and
(c) immediately before the commencement, other financial products (the additional products ) were also dealt with on the market, and the fact that the market dealt with those products did not constitute a contravention of a provision of the old Corporations Act. 1417(2) [ No application]
Subject to subsection (3), section 791A of the amended Corporations Act does not apply in relation to the market in so far as all or any of the additional products are dealt with on the market 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 licensee applies, under subsection 796A(2) of the amended Corporations Act, to have the conditions on the licence varied or revoked, or to have additional conditions imposed on the licence.
The regulations may, in relation to a market to which this section applies and the additional products, provide that specified provisions (including section 791A ) of the amended Corporations Act, and any associated provisions, apply in relation to a market to which this section applies and the additional products during some or all of the transition period for the market and the products with specified modifications.
This sectionapplies to the following markets:
(a) stock markets being operated immediately before the FSR commencement that were, at that time, covered by a declaration (the declaration of exemption ) in force immediately before the FSR commencement under subsection 771(1) of the old Corporations Act;
(b) futures markets being operated immediately before the FSR commencement that were, at that time, covered by a declaration (the declaration of exemption ) in force immediately before the FSR commencement under subsection 1127(1) of the old Corporations Act.
However it does not apply to any market to which section 1419 applies.
1418(2) [ No application]Subject to subsection (5), section 791A of the amended Corporations Act does not apply in relation to a stock market or futures market 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 operator of the market is granted a licence under section 795B of the amended Corporations Act covering the operation of the market;
(c) the Minister makes an exemption under section 791C of the amended Corporations Act covering the market;
(d) the declaration of exemption is revoked. 1418(3) [ Continued application of old legislation]
Subject to subsections (4) and (5), Part 7.2 (in the case of a stock market), or Part 8.2 (in the case of a futures market), and any associated provisions, (the relevant old legislation ) of the old Corporations Act continue to apply in relation to a stock market or futures market to which this section applies during the transition period for the market.
1418(4) [ Variation of exemption]The declaration of exemption (including any conditions specified in the declaration) for a stock market or futures market to which this section applies cannot be varied during the transition period for the market so as to cover the market providing services that were not covered by the declaration as in force immediately before the FSR commencement. However, it may be varied in other ways, or revoked, by the Minister in writing.
1418(5) [ Regulations]The regulations may do all or any of the following:
(a) provide that some or all of the relevant old legislation does not apply in relation to a stock market or futures market to which this section applies during some or all of the transition period for the market;
(b) provide that some or all of the relevant old legislation applies in relation to a stock market or futures market to which this section applies with specified modifications during some or all of the transition period for the market;
(c) provide that specified provisions of the amended Corporations Act (including section 791A), and any associated provisions, apply in relation to a stock market or futures market to which this section applies during some or all of the transition period for the market with specified modifications.
This section applies to the following markets:
(a) stock markets being operated immediately before the FSR commencement:
(i) that were, at that time, covered by a declaration (the declaration of exemption ) in force immediately before the FSR commencement under subsection 771(1) of the old Corporations Act; but
(ii) that did not have a single person who could be identified as the operator of the market;
(b) futures markets being operated immediately before the FSR commencement:
(i) that were, at that time, covered by a declaration (the declaration of exemption ) in force immediately before the FSR commencement under subsection 1127(1) of the old Corporations Act; but
1419(2) [ ``exempted participant'']
(ii) that did not have a single person who could be identified as the operator of the market.
In this section:
exempted participant
, in relation to a market to which this section applies, means a person:
(a) who is covered by the declaration of exemption (otherwise than in their capacity as a representative of another person who is covered by the declaration); and
(b) whose activities connected with the market after the FSR commencement are activities that, but for this section, would be required by section 911A of the amended Corporations Act to be covered by an Australian financial services licence. 1419(3) [ Continued application of old legislation]
Subject to subsections (4) and (5), Part 7.2 (in the case of a stock market), or Part 8.2 (in the case of a futures market), and any associated provisions, (the relevant old legislation ) of the old Corporations Act continue to apply in relation to an exempted participant and a stock market or futures market to which this section applies during any period during which section 1431 provides that the relevant new legislation (within the meaning of subsection 1431(1)) does not apply in relation to the exempted participant's activities connected with the market.
1419(4) [ Variation of exemption]The declaration of exemption (including any conditions specified in the declaration) for a stock market or futures market to which this section applies cannot:
(a) be varied during the transition period for an exempted participant and the market so as to cover the market providing services that were not covered by the declaration as in force immediately before the FSR commencement; or
(b) be varied after the FSR commencement so as to cover a person or persons it did not cover immediately before the commencement.
However, it may be varied in other ways, or revoked, by the Minister in writing.
1419(5) [ Regulations]The regulations may do either or both of the following:
(a) provide that some or all of the relevant old legislation does not apply in relation to an exempted participant and a market to which this section applies during some or all of the transition period for the exempted participant and the market;
(b) provide that some or all of the relevant old legislation applies in relation to an exempted participant and a market to which this section applies with specified modifications during some or all of the transition period for the exempted participant and the market.
This section applies to each stock market being operated immediately before the FSR commencement by a body corporate covered by an approval (the instrument of approval ) in force immediately before the FSR commencement under subsection 770(2) of the old Corporations Act, other than a stock market to which section 1413 applies.
1420(2) [ No application]Subject to subsections (3) and (5), section 791A of the amended Corporations Act does not apply in relation to a stock market 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 operator of the market is granted a licence under section 795B of the amended Corporations Act covering the operation of the market;
(c) the Minister makes an exemption under section 791C of the amended Corporations Act covering the market;
(d) the instrument of approval is revoked. 1420(3) [ Continued application of old legislation]
Subject to subsections (4) and (5), Parts 7.2 and 7.9, and any associated provisions, (the relevant old legislation ) of the old Corporations Act continue to apply in relation to a stock market to which this section applies during the transition period for the market.
1420(4) [ Variation of instrument of approval]The instrument of approval (including any conditions specified in the instrument) for a stock market to which this section applies cannot be varied during the transition period for the market so as to cover the market providing services that were not covered by the instrument as in force immediately before the FSR commencement. However it may be varied in other ways, or revoked, by the Minister in writing.
1420(5) [ Regulations]The regulations may do all or any of the following:
(a) provide that some or all of the relevant old legislation does not apply in relation to a stock market to which this section applies during some or all of the transition period for the market;
(b) provide that some or all of the relevant old legislation applies in relation to a stock market to which this section applies with specified modifications during some or all of the transition period for the market;
(c) provide that specified provisions of the amended Corporations Act (including section 791A), and any associated provisions, apply in relation to a stock market to which this section applies during some or all of the transition period for the market with specified modifications.
This section applies to each stock market being operated before the FSR commencement by a body corporate covered by an approval (the instrument of approval ) in force immediately before the FSR commencement under subsection 770A(2) of the old Corporations Act.
1421(2) [ No application]Subject to subsection (5), section 791A of the amended Corporations Act does not apply in relation to a stock market 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 operator of the market is granted a licence under section 795B of the amended Corporations Act covering the operation of the market;
(c) the Minister makes an exemption under section 791C of the amended Corporations Act covering the market;
(d) the instrument of approval is revoked. 1421(3) [ Continued application of old legislation]
Subject to subsections (4) and (5), Part 7.2, and any associated provisions, (the relevant old legislation ) of the old Corporations Act continue to apply in relation to a stock market to which this section applies during the transition period for the market.
1421(4) [ Variation of instrument of approval]The instrument of approval (including any conditions specified in the instrument) for a stock market to which this section applies cannot be varied during the transition period for the market so as to cover the market providing services that were not covered by the instrument as in force immediately before the FSR commencement. However it may be varied in other ways, or revoked, by the Minister in writing.
1421(5) [ Regulations]The regulations may do all or any of the following:
(a) provide that some or all of the relevant old legislation does not apply in relation to a stock market to which this section applies during some or all of the transition period for the market;
(b) provide that some or all of the relevant old legislation applies in relation to a stock market to which this section applies during some or all of the transition period for the market with specified modifications;
(c) provide that specified provisions (including section 791A) of the amended Corporations Act, and any associated provisions, apply in relation to a stock market to which this section applies during some or all of the transition period for the market with specified modifications.
This section applies to each market in relation to which the following paragraphs are satisfied:
(a) the market is a financial market within the meaning of the amended Corporations Act;
(b) the market was being operated immediately before the FSR commencement;
(c) the market is not a market to which section 1413, 1418, 1419, 1420 or 1421 applies;
(d) the market was not an unauthorised stock market or an unauthorised futures market (as defined in section 9 of the old Corporations Act) immediately before the FSR commencement. 1422(2) [ No application]
Subject to subsection (3), section 791A of the amended Corporations Act does not apply in relation to a market 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 operator of the market is granted a licence under section 795B of the amended Corporations Act covering the operation of the market;
(c) the Minister makes an exemption under section 791C of the amended Corporations Act covering the market;
(d) the market starts to provide services in respect of a class or classes of financial products in respect of which it did not provide services immediately before the commencement. 1422(3) [ Regulations]
The regulations may, in relation to a market to which this section applies, provide that specified provisions (including section 791A) of the amended Corporations Act, and any associated provisions, apply in relation to the market during some or all of the transition period for the market with specified modifications.
Subject to section 1424, in this Subdivision, a reference to a clearing and settlement facility being operated immediately before the FSR commencement is a reference to a clearing and settlement facility that had not permanently ceased to operate before the FSR commencement, even if the clearing and settlement of transactions by means of the facility was not actually occurring immediately before the FSR commencement (for example, because of a routine temporary closure of the facility).
This section applies in relation to any proposed clearing and settlement facilities identified in, or in accordance with, regulations made for the purposes of this subsection. For this purpose, a proposed clearing and settlement facility is a clearing and settlement facility that a person has, before the FSR commencement, indicated an intention that they propose to operate.
1424(2) [ Application of Subdivision]This Subdivision applies in relation to a proposed clearing and settlement facility to which this section applies subject to the following paragraphs:
(a) subject to paragraphs (b), (c) and (d), this Subdivision applies in relation to the proposed facility as if the facility, as proposed to be operated, were in fact being operated immediately before the FSR commencement;
(b) if, taking account of the effect of paragraph (a), section 1425 applies in relation to the proposed facility, that section applies in relation to the proposed facility:
(i) as if the Minister's obligation to grant a licence, and impose conditions, under subsection 1425(2) in relation to the proposed facility does not arise unless and until the facility operator lodges with ASIC a notice in relation to the facility under subsection (3) of this section, and does not arise at all if no such notice is given to ASIC by the end of 6 months after the FSR commencement; and
(ii) as if subsection 1425(3) provided for a licence so granted under subsection 1425(2) in relation to the facility, and the conditions subject to which it is granted, to be taken to have had effect from the day (the start day ) specified in the subsection (3) notice as the day on which the facility started to operate; and
(iii) as if subsection 1425(6) were omitted; and
(iv) as if the references in subsection 1425(8) to the FSR commencement were instead references to the start day;
(c) if:
(i) taking account of the effect of paragraph (a), section 1429 applies to the proposed facility; and
that section ceases to apply in relation to the proposed facility at the end of that period;
(ii) the facility operator does not lodge with ASIC a notice in relation to the facility under subsection (3) of this section by the end of 6 months after the FSR commencement;
(d) if a provision of this Subdivision provides for a provision of the old Corporations Act to continue to apply in relation to the proposed facility, then (without limiting the generality of subsection 1410(3)), while the proposed facility remains non-operational, the provision of the old Corporations Act only applies in relation to the proposed facility to the extent (if any) to which it would, disregarding the effect of paragraph (a), apply in relation to the proposed facility. 1424(3) [ Notice of commencement during first six months]
If a proposed clearing and settlement facility to which this section applies starts to operate on a day during the period of 6 months starting on the FSR commencement, the operator must, as soon as practicable, and in any event within 7 days, lodge with ASIC written notice of the fact that the facility started to operate on that day.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).
1424(4) [ ASIC must give Minister notice]ASIC must, within a reasonable time, give the Minister a notice it receives under subsection (3).
This section applies in relation to a clearing and settlement facility if:
(a) the facility was being operated immediately before the FSR commencement by a body corporate in relation to which an approval under section 1131 of the old Corporations Act was in force at that time; but
(b) the services provided by the facility as so operated were not such that section 1128 of the old Corporations Act required the operator to be so approved. 1424A(2) [ ``unregulated services''; ``regulated services'']
(a) a reference to the unregulated services is a reference to the services referred to in paragraph (1)(b); and
(b) a reference to regulated services is a reference to services that, if they had been provided by the facility immediately before the commencement, would have been services to which section 1128 of the old Corporations Act applied. 1424A(3) [ No operation before FSR commencement]
For the purposes of section 1425 (as it operates of its own force, rather than because of section 1424), the facility is not to be regarded as a facility that was being operated immediately before the FSR commencement.
1424A(4) [ Proposal to provide regulated services]If the operator has, before the FSR commencement, indicated an intention that they propose to extend the services provided by the facility so that they also cover regulated services:
(a) regulations made for the purposes of subsection1424(1) may identify the facility as a proposed clearing and settlement facility, but only in relation to those regulated services; and
(b) if they do so, section 1424, and section 1425 as it applies because of section 1424, apply in relation to the facility and those regulated services as if the facility did not already provide the unregulated services.
This section applies to each clearing and settlement facility being operated immediately before the FSR commencement in relation to which either of the following paragraphs applies:
(a) the facility was being operated by the body corporate that was, for the purposes of the old Corporations Act, the securities clearing house;
(b) the facility was being operated by a body corporate in relation to which an approval (the section 1131 approval ) under section 1131 of the old Corporations Act was in force at that time. 1425(2) [ Obligation to grant licence]
Subject to subsections (3) and (4), the Minister must, in relation to each clearing and settlement facility to which this section applies, grant the operator of the facility a licence, and impose conditions on that licence, in accordance with the following requirements:
(a) the licence must be described as an Australian CS facility licence;
(b) the licence must be granted subject to the following conditions:
(i) a condition specifying the facility as the facility that the licence authorises the licensee to operate;
(ii) a condition specifying, as the classes of financial products in respect of which the facility can provide services, the classes that are appropriate for the facility under subsection (5);
1425(3) [ Time for grant]
(iii) in the case of a facility to which paragraph (1)(b) applies - a condition to the effect that the licence only covers the facility providing services for the market or markets that were covered by the section 1131 approval.
Subject to subsection (6), a licence that subsection (2) requires to be granted must be granted on, or as soon as practicable after, the FSR commencement. If it is granted after the FSR commencement, it, and the conditions subject to which it is granted, are taken to have had effect from that commencement.
1425(4) [ More than one licence in same document; more than one facility covered]Sections 824D (more than one licence in the same document) and 824E (more than one CS facility covered by the same licence) of the amended Corporations Act apply in relation to the granting of licences, and licences granted, under this section as if the licences were, or were being, granted under section 824B of that Act. If, pursuant to section 824E, a single licence is granted under this section in respect of several separate facilities, paragraph (2)(b) of this section must be complied with separately in the licence document in relation to each of those facilities.
1425(5) [ ``appropriate'' classes of financial products]For the purposes of subparagraph (2)(b)(ii), the classes of financial products that are appropriate for a facility to which this section applies are as follows:
(a) for a facility described in paragraph (1)(a) - securities, within the meaning of section 92 of the old Corporations Act as applying for the purposes of Part 7.2 of the old Corporations Act, and agreements of a kind to which section 92A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect);
(b) for a facility described in paragraph (1)(b)- futures contracts, within the meaning of section 72 of the old Corporations Act, and agreements of a kind to which section 72A of the old Corporations Act applied immediately before the FSR commencement (or would have applied after the FSR commencement if that section, and any associated provisions, had continued to have effect). 1425(6) [ Grant of licence prior to FSR commencement]
Despite anything in subsection (3), the Minister may, under this section, grant a licence, and impose conditions on the licence, at any time during the period starting on the commencement of this section and ending on the FSR commencement on the basis that matters known to the Minister in relation to the clearing and settlement facility concerned will continue to be the case up to the FSR commencement. If the Minister does so:
(a) the licence and conditions come into effect on the FSR commencement, and not before; and
(b) the Minister may vary or revoke the licence, or any of the conditions, before the FSR commencement if the Minister considers it appropriate to do so having regard to the provisions of this section concerning the granting of licences and the imposition of conditions; and
(c) the licence and conditions do not come into effect on the FSR commencement if, immediately before the FSR commencement, the facility is not a clearing and settlement facility to which this section applies. 1425(7) [ Notice to operator of market]
If the Minister grants a licence under this section, the Minister must give the operator of the clearing and settlement facility written notice of:
(a) the grant of the licence, and the conditions imposed on the licence; and
(b) any subsequent revocation or variation under subsection (6) of the licence or conditions. 1425(8) [ Notice must contain statement]
A notice advising of the grant of a licence under this section must contain a statement to the effect that the licence and conditions will not take effect until the FSR commencement, or will be taken to have had effect from the FSR commencement, as the case requires.
Subject to subsections (2) to (4):
(a) a licence granted under section 1425 that authorises the operation of a facility is, for the purposes of the amended Corporations Act (other than this section), taken to have been granted (and to have been properly granted) under section 824B of the amended Corporations Act; and
(b) conditions imposed under section 1425 on the licence are, for the purposes of the amended Corporations Act (other than this section), taken to have been imposed (and to have been properly imposed) under section 825A of the amended Corporations Act.
Note 1: Section 824C of the amended Corporations Act (publication of notice of licence grant) applies to the grant of the licence.
Note 2: The conditions may be varied or revoked, and additional conditions may be imposed, under section 825A of the amended Corporations Act.
Section 822A of the amended Corporations Act does not apply in relation to the facility 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) conditions on the licence are varied or revoked, or additional conditions are imposed on the licence, pursuant to an application by the licensee under subsection 825A(2) of the amended Corporations Act.
The annual report of the licensee (see section 821E of the amended Corporations Act) for a financial year in which part of the transition period occurs, other than a financial year in which the transition period ends, must include information about:
(a) the steps taken in the year; and
(b) the steps proposed to be taken in the next year;
to ensure that section 822A of the amended Corporations Act will be complied with by the time the transition period ends.
The regulations may do either or both of the following in relation to a clearing and settlement facility the operation of which is authorised by a licence granted under section 1425:
(a) provide that section 822A of the amended Corporations Act, and any associated provisions, apply in relation to the facility during some or all the transition period for the facility;
(b) provide that specified provisions of the amended Corporations Act (including section 822A), and any associated provisions, apply in relation to the facility during some or all of the transition period for the facility with specified modifications. 1427(2) [ Paramountcy]
Regulations made for the purposes of subsection (1) have effect despite anything in section 1426.
This section applies to a clearing and settlement facility in relation to which the following paragraphs are satisfied:
(a) a licence is granted under section 1425 to the operator of the facility; and
(b) the conditions on the licence specify, as the classes of financial products in respect of which the facility can provide services, the classes of financial products specified in whichever of paragraphs 1425(5) (a) and (b) is applicable; and
(c) the facility also, immediately before the commencement, provided services in respect of one or more other classes of financial products (the additional products ) and the fact that it did so did not constitute a contravention of a provision of the old Corporations Act.
Subject to subsection (3), section 820A of the amended Corporations Act does not apply in relation to the facility in so far as it provides services in respect of all or any of the additional products 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) conditions on the licence are varied or revoked, or additional conditions are imposed on the licence, pursuant to an application by the licensee under subsection 825A(2) of the amended Corporations Act.
The regulations may provide that specified provisions of the amended Corporations Act (including section 820A ), and any associated provisions, apply in relation to a clearing and settlement facility to which this section applies, and its provision of services in respect of all or any of the additional products, during some or all of the transition period for the facility and the products with specified modifications.
This section applies to each clearing and settlement facility being operated immediately before the FSR commencement in relation to which both of the following paragraphs are satisfied:
(a) the clearing and settlement facility is not a facility to which section 1425 applies;
(b) section 1128 of the old Corporations Act did not, immediately before the FSR commencement, require the operator of the facility to be a person approved under section 1131. 1429(2) [ No application]
Subject to subsection (3), section 820A of the amended Corporations Act does not apply in relation to the facility 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 operator of the facility is granted a licence under section 824B of the amended Corporations Act covering the facility;
(c) the Minister makes an exemption under section 820C of the amended Corporations Act covering the facility;
(d) the facility starts to provide services in respect of a class or classes of financial products in respect of which it did not provide services immediately before the FSR commencement. 1429(3) [ Regulations]
The regulations may provide that specified provisions of the amended Corporations Act (including section 820A), and any associated provisions, apply in relation to a clearing and settlement facility to which this section applies during some or all of the transition period for the facility with specified modifications.
For the purposes of this Subdivision, a person is a regulated principal if, immediately before the FSR commencement, the person is a person described in column 2 of one of the items in the following table. The regulated activities of that person are as specified in column 3 of that item, and the relevant old legislation are as specified in column 4 of that item.
| Regulated principals and regulated activities | |||
| Item | These persons are regulated principals | These are the regulated principal's regulated activities | This is the relevant old legislation (if any) |
| 1 | A holder of a dealers licence within the meaning of the old Corporations Act. | The activities that the licence (as in force immediately before the FSR commencement) authorised the person to carry on. | Parts 7.3, 7.4 (other than Division 2), 7.5, 7.6 and 7.7 of the old Corporations Act, and any associated provisions. |
| 2 | A holder of an investment advisers licence within the meaning of the old Corporations Act. | The activities that the licence (as in force immediately before the FSR commencement) authorised the person to carry on. | Parts 7.3, 7.4 (other than Division 2) and 7.7 of the old Corporations Act, and any associated provisions. |
| 3 | A holder of a futures brokers licence within the meaning of the old Corporations Act. | The activities that the licence (as in force immediately before the FSR commencement) authorised the person to carry on. | Parts 8.3, 8.4 (other than section 1210) and 8.5 of the old Corporations Act, and any associated provisions. |
| 4 | A holder of a futures advisers licence within the meaning of the old Corporations Act. | The activities that the licence (as in force immediately before the FSR commencement) authorised the person to carry on. | Parts 8.3 and 8.4 (other than section 1210) of the old Corporations Act, and any associated provisions. |
| 5 | A registered insurance broker within the meaning of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement. | The person's business as an insurance broker within the meaning of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement. | All the provisions of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement, and any associated provisions. |
| 6 | A body regulated by APRA carrying on activities that, if carried on after the FSR commencement, would (apart from this Subdivision) be required by the amended Corporations Act to be covered by an Australian financial services licence. | The class of activities carried on by the person immediately before the FSR commencement that, if carried on after the FSR commencement, would (apart from this Subdivision) be required by the amended Corporations Act to be covered by an Australian financial services licence. | For a body regulated by APRA that was an insurer within the meaning of the
Insurance (Agents and Brokers) Act 1984
as in force immediately before the FSR commencement
-
all the provisions of that Act as then in force, and any associated provisions.
In any other case - subject to any regulations made for the purposes of this item, there is no relevant old legislation. |
| 7 | A person who is a registered foreign insurance agent of an unauthorised foreign insurer within the meaning of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement. | The person's business as a foreign insurance agent. | All the provisions of the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement, and any associated provisions. |
| 8 | A holder of a general authority under regulation 38A of the Banking (Foreign Exchange) Regulations as in force immediately before the FSR commencement. | The activities the authority authorises its holder to carry on. | Regulations 38A and 39 of the Banking (Foreign Exchange) Regulations as in force immediately before the FSR commencement. |
| 9 | A person included in a class of persons specified in regulations made for the purposes of this item. | For a person in a class so specified, the activities identified in, or in accordance with, the regulations as being the regulated activities of a person in that class. | The provisions (if any) identified in, or in accordance with, the regulations as being the relevant old legislation for a person in that class, and any associated provisions. |
| 10 | A person who carries on any other activities (that is, activities that are not regulated activities for the purposes of any of items 1 to 9) that, if carried on after the FSR commencement, would (apart from this Subdivision) be required by the amended Corporations Act to be covered by an Australian financial services licence, except to the extent that subsection (2) excludes this item from applying. | The class of activities so carried on by the person immediately before the FSR commencement that, if carried on after the FSR commencement, would (apart from this Subdivision) be required by the amended Corporations Act to be covered by an Australian financial services licence. | There is no relevant old legislation. |
Item 10 of the table in subsection (1) does not apply to a person and activities they carry on to the extent that the person's carrying on of any of those activities is in contravention of any of the provisions of the relevant old legislation for any of the other categories of regulated principals.
1430(3) [ Regulated principal of two or more different kinds]If a person is a regulated principal of 2 or more different kinds, this Subdivision applies separately in relation to the person in their capacity as a regulated principal of each of those kinds.
Note: This may result (depending on what action the regulated principal takes) in a regulated principal having to comply with the relevant new legislation (within the meaning of subsection 1431(1)) in respect of their activities as a regulated principal of one kind, but, at the same time, having to comply with the relevant old legislation in respect of their activities as a regulated principal of another kind.
Subject to subsections (2) and (3), Parts 7.6 (other than Subdivisions A and B of Division 4 , and Division 5 ), 7.7 and 7.8 (other than section 992A ) of the amended Corporations Act (the relevant new legislation ) do not apply to a regulated principal and their regulated activities during the period (the transition period ) starting on the FSR commencement and ending when the first of the following events occurs:
(a) the period of 2 years starting on the FSR commencement ends;
(b) the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers their regulated activities;
(c) the regulated principal starts to be covered by an exemption under subsection 911A(2) of the amended Corporations Act (or would start to be so covered if that subsection applied) in respect of their regulated activities;
(d) the regulated principal ceases (for whatever reason) to have the status that made them a regulated principal.
For the purposes of paragraph (d), having a status includes holding a licence, registration, approval or other similar thing, or carrying on particular activities.
Note 1: Because of section 1441 , a regulated principal whose transition period has not ended (and so who is not required to comply with the relevant new legislation) may nonetheless be required to comply with obligations under Part 7.9 of the amended Corporations Act.
Note 2: For the treatment of representatives, see section 1436 .
Division 5 of Part 7.6 of the amended Corporations Act has effect in relation to a regulated principal during the transition period subject to the following paragraphs:
(a) the regulated principal may give and revoke authorisations under section 916A or consents under subsection 916B(3) as if the regulated principal were a financial services licensee, however, for the purposes of the provisions of the amended Corporations Act outside that Division, such an authorisation or consent is taken not to have effect unless and until the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers the activities to which the authorisation or consent relates (whether or not it also covers other activities);
(b) a person authorised by a section 916A authorisation so made by the regulated principal may give and revoke authorisations under subsection 916B(3) as if they were an authorised representative and the regulated principal were the authorising financial services licensee, however, for the purposes of the provisions of the amended Corporations Act outside that Division, such an authorisation is taken not to have effect unless and until the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers the activities to which the authorisation relates (whether or not it also covers other activities);
(c) the regulated principal may give and revoke consents under section 916C as if they were a financial service licensee, however, any such consent does not take effect unless and until the regulated principal is granted a licence under section 913B of the amended Corporations Act;
(d) section 916F applies in relation to an authorisation so made by the regulated principal during the transition period as if the period of 15 business days referred to in subsections 916F(1) and (1A) did not start unless and until the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers the activities to which the authorisation relates (whether or not it also covers other activities), and section 916F does not apply at all in relation to revocations so made during the transition period.
If, before paragraph (1)(a) or (d) occurs:
(a) the regulated principal is granted a licence under section 913B of the amended Corporations Act that covers some only (the relevant part ) of their regulated activities; or
(b) the regulated principal starts to be covered by an exemption under subsection 911A(2) of the amended Corporations Act in respect of some only (the relevant part ) of their regulated activities;
the relevant new legislation starts applying, from that time, to the relevant part of the regulated principal's regulated activities, and subsection (1) continues to apply to the person as if the regulated principal's regulated activities did not include the relevant part.
Subsection (3) has effect subject to subsection 1430(3) .
Subject to subsection (2), during the transition period for a regulated principal, the relevant old legislation (if any) continues to apply, despite its repeal:
(a) to, and in relation to, the regulated principal and their regulated activities; and
(b) to any other person to whom it is expressed to apply, but only in relation to matters related to the regulated principal and their regulated activities.
Note: So, for example, people may continue to be appointed as agents or representatives of the regulated principal (or to have those appointments varied or revoked) during the transition period under provisions of the relevant old legislation that deal with such matters.
1432(2) [ Effect of relevant new legislation starting to apply]If, because of subsection 1431(2), the relevant new legislation (within the meaning of subsection 1431(1)) starts to apply to part of a person's regulated activities from a particular time, the relevant old legislation (if any) stops applying, from that time, in relation to that part of those activities.
This section applies to the following regulated principals:
(a) a regulated principal of a kind referred to in any of items 1 to 5 of the table in subsection 1430(1), but not including anyone who is:
(i) an exempted participant for the purposes of section 1419; or
(ii) in a class of persons specified in, or identified in accordance with, regulations made for the purposes of subsection (3);
(b) a regulated principal of a kind referred to in item 9 of that table who:
(i) is in a class of persons specified in regulations made for the purposes of this subparagraph; and
1433(2) [ Applicable provisions]
(ii) is not in a class of persons specified in, or identified in accordance with, regulations made for the purposes of subsection (3).
(a) a regulated principal to whom this section applies, before the end of their transition period, applies (in accordance with section 913A of the amended Corporations Act) for a licence covering some or all of their regulated activities (but no other activities); and
(b) their application includes a statement (in accordance with the requirements of the application form) to the effect that they will, if granted the licence, comply with their obligations as a financial services licensee;
the following provisions apply:
(c) section 913B of the amended Corporations Act applies to their application as if paragraphs 913B(1)(b), (c), (ca) and (d), and subsections 913B(2) to (5), were omitted; and
(d) the licence condition required by subsection 914A(6) of the amended Corporations Act in relation to a licence granted pursuant to their application must specify, as the financial services that the licensee is authorised to provide, financial services that equate (as closely as possible) to the regulated activities in respect of which the application was made.
Note 1: Paragraph (c) does not limit the matters that can be taken into account under section 915C (suspension or cancellation after offering a hearing) in relation to a licence that has been granted under section 913B as it applies because of this section.
Note 2: The condition referred to in paragraph (d), as with any other conditions imposed on the licence under section 914A of the amended Corporations Act, is subject to variation or revocation in accordance with that section.
1433(3) [ Regulations]The regulations may identify classes of persons, or provide for the identification of classes of persons, who are not to be covered by this section.
For the purposes of this section, a person is an insurance multi-agent at a particular time if, at that time:
(a) the person is an insurance intermediary (but not an insurance broker), within the meaning of the Insurance (Agents and Brokers) Act 1984 as then in force; and
(b) the person has agreements with 2 or more different insurers under section 10 of that Act. 1434(2) [ Provisions applying to licence application]
(a) a person who, immediatelybefore the FSR commencement, is an insurance multi-agent applies in accordance with section 913A of the amended Corporations Act for a licence, during the period of 2 years starting on the FSR commencement; and
(b) the application is lodged at a time:
(i) when the person is still carrying on activities as agent for one or more of the insurers with whom, immediately before the FSR commencement, they had agreements as mentioned in paragraph (1)(b); or
(ii) that is not more than 6 months after the person ceased to so carry on activities as agent for any of those insurers; and
(c) their application includes a statement (in accordance with the requirements of the application form) to the effect that they want this section to apply to their application;
the following provisions apply:
(d) section 913B of the amended Corporations Act applies to their application as if the reference in paragraph 913B(1)(b) to section 912A did not include the obligations under paragraphs 912A(e) and (f);
(e) the licence condition required by subsection 914A(6) of the amended Corporations Act in relation to a licence granted pursuant to their application must specify, as the financial services that the licensee is authorised to provide:
(i) providing financial product advice in relation to risk insurance products and investment life insurance products; and
1434(3) [ Effect of grant]
(ii) dealing in risk insurance products and investment life insurance products.
If the application is granted, then:
(a) while the licence remains in force:
(i) paragraphs 912A(e) and (f) of the amended Corporations Act do not apply to the licensee and the financial services covered by the licence; and
(ii) sections 942B and 942C apply in relation to any Financial Services Guide provided by the licensee or an authorised representative of the licensee as if they included a requirement to include in the Guide a statement that the licensee is not bound by the obligations in paragraphs 912A(e) and (f) and that sets out what those obligations are; and
(b) the licence conditions cannot be varied so that the licence covers the licensee providing financial services other than those referred to in paragraph (2)(e); and
(c) the licence ceases to be in force (unless earlier revoked) at the end of the period of 2 years starting on the FSR commencement.
(a) if a person applies, during the period of 2 years starting on the FSR commencement, under section 913A of the amended Corporations Act for the grant of a licence covering the provision of particular financial services (the relevant financial services ); and
(b) ASIC is aware that:
(i) the applicant; or
is currently (as at the time the application is being considered by ASIC) providing services that are the same as, or similar to, all or any of the relevant financial services. 1435(2) [ Matters to which ASIC may have regard to]
(ii) if the applicant is a body corporate - a related body corporate of the applicant;
In considering the matters it is required by section 913B of the amended Corporations Act to consider in deciding whether to grant the licence, ASIC may (but is not required to) have regard to the conduct and experience (including conduct and experience before the FSR commencement) of the applicant, or the related body corporate, in providing services that are the same as, or similar to, all or any of the relevant financial services (so far as ASIC is aware of such conduct and experience).
1435(3) [ ASIC discretion]Subsection (2) is not intended to limit, by implication, the matters that ASIC can take into account under section 913B of the amended Corporations Act when considering whether to grant a licence under that section (whether pursuant to an application to which this section applies or otherwise).
This section applies to a person who is a representative of a regulated principal. For this purpose, a representative includes, but is not limited to:
(a) an agent (however described) of the regulated principal; and
(b) an employee or director of the regulated principal; and
(c) any other person who, in accordance with the regulated principal's relevant old legislation as it continues to have effect in relation to the regulated principal, is authorised to carry on activities for or on behalf of the regulated principal. 1436(1A) [ Representative is financial services licensee]
However, if a person who, under subsection (1), would be the representative of another person is a financial services licensee in their own right, the licensee, when engaged in activities covered by their licence, is taken not to be acting as representative of that other person.
1436(2) [ Applicable provisions]The following provisions apply in relation to a person who is a representative of a regulated principal:
(a) during any period when, because of section 1431, the relevant new legislation (within the meaning of subsection 1431(1)) does not apply to the regulated principal and particular regulated activities, the relevant new legislation also does not apply to the representative when they are acting as a representative of the regulated principal in relation to any of those activities;
(b) during any period when, because of section 1432, relevant old legislation continues to apply to the regulated principal and particular regulated activities, that legislation also continues to apply to the representative when they are acting as a representative of the regulated principal in relation to any of those activities.
Note 1: If a person is a representative of 2 persons, this may result in the person having to comply with the relevant new legislation in respect of what they do as a representative of one of those persons but, at the same time, having to comply with relevant old legislation in respect of what they do as a representative of the other of those persons.
Note 2: If a person is a representative of another person who carries on 2 different sets of activities, being sets of activities in relation to which there are separate applications of this Subdivision because of subsection 1430(3), this may result in the person having to comply with the relevant new legislation in respect of what they do in relation to one of those sets of activities but, at the same time, having to comply with relevant old legislation in respect of what they do in relation to the other set of activities.
Note 3: Because of section 1441, a representative who is not required to comply with the relevant new legislation may nonetheless be required to comply with obligations under Part 7.9 of the amended Corporations Act.
This section has effect despite anything else in this Subdivision, including sections 1436 and 1437 .
1436A(2) [ Application]This section applies if, immediately before the FSR commencement, a person is an insurance intermediary (but not an insurance broker) within the meaning of the Insurance (Agents and Brokers) Act 1984 as then in force because of an agreement they have with an insurer under section 10 of that Act. For the purposes of this section:
(a) the person is the insurance agent ; and
(b) the agreement is the authorising agreement ; and
(c) the matters dealt with in the provisions included in the agreement in compliance with section 10 of that Act, and any other matters included in the agreement that are related to those matters, are the relevant matters ; and
(d) the insurer is the principal .
If, immediately before the FSR commencement, the person has more than one such agreement, this section applies separately in relation to each of those agreements.
1436A(3) [ ``transition period'']For the purposes of this section, the transition period is the period starting on the FSR commencement and ending when the first of the following events occurs:
(a) the period of 2 years starting on the FSR commencement ends;
(b) the authorising agreement ceases to be in force;
(c) the insurance agent has lodged with ASIC notice in writing that the agent no longer wants to be covered by the Insurance (Agents and Brokers) Act 1984 :
(i) from a specified date, being a date that is after the notice is given to ASIC; or
(ii) from the end of a specified period, being a period that ends after the notice is given to ASIC;
and that date arrives or period ends;
(d) the insurance agent is granted a licence under section 913B (including as it has effect because of section 1434) of the amended Corporations Act that covers the insurance agent engaging in (as licensee) the range of activities that they previously engaged in as agent under the authorising agreement. 1436A(4) [ Variation or revocation of original notice]
A notice (the original notice ) given for the purposes of paragraph (3)(c) may before the date, or the end of the period, specified in the original notice as mentioned in that paragraph:
(a) be varied to specify another date or period, being a date or period that would satisfy the requirements of subparagraph (3)(c)(i) or (ii) if the reference in that subparagraph to when the notice (being the original notice) is given to ASIC were instead a reference to when the notice of variation is given to ASIC under this subsection; or
(b) be revoked.
The variation or revocation must be made by notice in writing lodged with ASIC.
1436A(5) [ Continued application of old legislation]Subject to subsection (7), during the transition period, the Insurance (Agents and Brokers) Act 1984 as in force immediately before the FSR commencement, and any associated provisions, (the relevant old legislation ) continue to apply (despite the repeal of that Act) to, and in relation to, the insurance agent, the principal and the relevant matters.
1436A(6) [ Relevant new legislationnot applying]Subject to subsection (7), during the transition period, the relevant new legislation (within the meaning of section 1431) does not apply to, or in relation to, the insurance agent, the principal and the relevant matters.
1436A(7) [ Regulations]Regulations made for the purposes of this subsection may do either or both of the following:
(a) provide that specified provisions of the relevant old legislation apply (with or without specified modifications), or do not apply, to the insurance agent, the principal and some or all of the relevant matters;
(b) provide that specified provisions of the relevant new legislation apply (with or without specified modifications), or do not apply, to the insurance agent, the principal and some or all of the relevant matters.
The regulations may provide as mentioned in paragraph (a) or (b) even after the end of the transition period.
1436A(8) [ Right to remuneration continuing](a) before the end of the transition period, or such longer period during which regulations made for the purposes of subsection (7) provide for the application of some or all of the relevant old legislation, the insurance agent engages in conduct that, under the authorising agreement as then in force, creates a right to brokerage, commission or other remuneration (which may be a present right, or a future right that is dependent on matters specified in the authorising agreement); and
(b) that right is still in existence immediately before the end of that period;
the right is not taken to be brought to an end merely because of the repeal of the relevant old legislation or the enactment of the relevant new legislation, or because under this section the relevant old legislation ceases to apply and the relevant new legislation starts to apply.
1436A(9) [ Limitation]Subsection (8) is not intended to affect, in any way, the determination of the question whether any other right (whether or not it is under an agreement under section 10 of the Insurance (Agents and Brokers) Act 1984 ) is in any way affected by the provisions of the Financial Services Reform Act 2001 or the Financial Services Reform (Consequential Provisions) Act 2001 (including the amendments made by those Acts).
This section applies to the following provisions:
(a) the provisions of this Subdivision (other than section 1436A ) and any associated provisions;
(b) the provisions of legislation that continues to apply because of subsection 1432(1) or 1436(3).
[ CCH Note: The reference to subsection 1436(3) is a legislative drafting error. It is the view of the CCH editors that it should refer to subsection 1436(2).]
(a) exempt a person or a class of persons from some or all of the provisions to which this section applies; or
(b) declare that some or all of the provisions to which this section applies apply in relation to a person or a class of persons as if the provisions were modified or varied as specified in the declaration.
A declaration under paragraph (2)(b) may provide for the continued application (with or without modifications, and to the exclusion of provisions of the amended Corporations Act) of provisions referred to in paragraph (1)(b), even after the end of the period of 2 years starting on the FSR commencement.
An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.
An exemption or declaration must be in writing and ASIC must publish notice of it in the Gazette .
If conduct (including an omission) of a person would not constitute an offence if a particular declaration under paragraph (2)(b) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (5)):
(a) the text of the declaration was made available by ASIC on the internet; or
(b) ASIC gave written notice setting out the text of the declaration to the person.
In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.
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.
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).
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.
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.
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.
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) ).
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.
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.
(a) conduct in relation to a financial product that would (apart from this section) constitute an offence against, or based on, any of the new product disclosure provisions occurred at a time:
(i) during the period of 2 years starting on the FSR commencement; and
(ii) after the date specified in a notice lodged in relation to the product in accordance with paragraph 1438(3)(b); and
(b) the new product disclosure provisions started to apply in relation to the product from the date specified in the notice;
the conduct constitutes an offence against that provision only if (in addition to the other elements of the offence), either:
(c) the person knew that, or was reckless as to whether, the product issuer had lodged a notice under that paragraph that specified that date; or
(d) the person did not know that, and was not reckless as to whether, the product issuer had lodged a notice under that paragraph that specified that date, but the conduct would have contravened the provisions referred to in section 1440 that would have applied to and in relation to the product if those provisions had still applied when the conduct occurred. 1439(2) [ ``conduct'']
In this section:
conduct
means an act, an omission to perform an act or a state of affairs.
During the transition period (if any) for a financial product, the following provisions continue to apply, despite their repeal or amendment, to and in relation to the financial product:
(a) if the product is a managed investment product - all the provisions of Chapter 6D of the old Corporations Act, other than section 722 of that Act, and any associated provisions;
(b) if the product is a derivative - section 1210 of the old Corporations Act, and any associated provisions;
(c) if the product is a superannuation product - the following provisions, and any associated provisions:
(i) section 153, and all the provisions of Divisions 3 and 4 of Part 19, of the Superannuation Industry (Supervision) Act 1993 as in force immediately before the FSR commencement;
(ii) the section 153A of that Act that was provided for in Modification Declaration no. 15 as in force immediately before the FSR commencement, being a declaration of modification made under section 332 of that Act;
(d) if the product is an RSA product - section 51, and all the provisions of Divisions 4 and 5 of Part 5, of the Retirement Savings Accounts Act 1997 as in force immediately before the FSR commencement, and any associated provisions;
(e) if the product is an insurance product - sections 71A and 73 of the Insurance Contracts Act 1984 as in force immediately before the FSR commencement, and any associated provisions.
From the time from which the new product disclosure provisions start to apply in relation to a particular financial product, the following persons must comply with those provisions in relation to that product, as if they were regulated persons as defined in section 1011B of the amended Corporations Act, even though they are not yet subject, or fully subject, to Parts 7.6, 7.7 and 7.8 of that Act:
(a) a regulated principal;
(b) a representative (as defined in section 1436) of a regulated principal; or
(c) an insurance agent (as defined in section 1436A).
This section applies to the following provisions:
(a) the provisions of this Subdivision and any associated provisions;
(b) the provisions that continue to apply because of section 1440.
(a) exempt a person or a class of persons, or a financial product or class of financial products, from some or all of the provisions to which this section applies; or
(b) declare that some or all of the provisions to which this section applies apply in relation to a person or a class of persons, or a financial product or class of financial products, as if the provisions were modified or varied as specified in the declaration.
A declaration under paragraph (2)(b) may provide for the continued application (with or without modifications, and to the exclusion of provisions of the amended Corporations Act) of provisions referred to in paragraph (1)(b), even after the end of the period of 2 years starting on the FSR commencement.
An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.
An exemption or declaration must be in writing and ASIC must publish notice of it in the Gazette .
If conduct (including an omission) of a person would not constitute an offence if a particular declaration under paragraph (2)(b) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (5)):
(a) the text of the declaration was made available by ASIC on the internet; or
(b) ASIC gave written notice setting out the text of the declaration to the person.
In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.
For the purposes of this section, the transition period is the period starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the day fixed by Proclamation for the purposes of this paragraph;
(b) the end of the period of 6 months starting on the FSR commencement.
[ CCH Note: 11 March 2002 is the date fixed for the purpose of s 1442A(1)(a) pursuant to Proclamation dated 8 October 2001 in Commonwealth of Australia Government Gazette GN 42, 24 October 2001.]
Regulations made for the purposes of this section may provide for specified provisions of legislationthat is repealed by the Financial Services Reform Act 2001 or the Financial Services Reform (Consequential Provisions) Act 2001 , being provisions that deal with the same or a similar matter as that dealt with in section 992A of the amended Corporations Act, to continue to apply (whether with or without specified modifications) during the transition period.
1442A(3) [ No application]During the transition period, section 992A of the amended Corporations Act does not apply to any person, except to the extent (if any) provided for in regulations made for the purposes of this section.
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.
1442B(2) [ " transition period " ]For the purposes of this section, the transition period , in relation to a financial product to which this section applies, is the period starting on the FSR commencement and ending on whichever of the following first occurs:
(a) the day fixed by Proclamation for the purposes of this paragraph;
(b) the end of the period of 6 months starting on the FSR commencement;
(c) the new product disclosure provisions (within the meaning of section 1438 ) start to apply in relation to the product.
[ CCH Note: 11 March 2002 is the date fixed for the purpose of s 1442B(2)(a) pursuant to Proclamation dated 8 October 2001 in Commonwealth of Australia Government Gazette GN 42, 24 October 2001.]
Subject to subsection (5), the following provisions (the preserved provisions ), to the extent they are relevant to a financial product to which this section applies, continue to apply, despite their repeal, in relation to the financial product during the transition period:
(a) Division 6 of Part 19 of the Superannuation Industry (Supervision) Act 1993 , and any associated provisions;
(b) Division 7 of Part 5 of the Retirement Savings Accounts Act 1997 , and any associated provisions;
(c) sections 64 and 64A of the Insurance Contracts Act 1984 , and any associated provisions;
(d) any other provisions specified in regulations made for the purposes of this paragraph, and any associated provisions in relation to provisions so specified. 1442B(4) [ " deferred provisions " ]
Subject to subsection (5), during the transition period, the following provisions (the deferred provisions ) of the amended Corporations Act do not apply in relation to a financial product to which this section applies:
(a) section 1017F;
(b) sections 1019A and 1019B;
(c) any other provisions of Part 7.9 of the amended Corporations Act that are not part of the new product disclosure provisions (within the meaning of section 1438 ) and that are specified in regulations made for the purposes of this paragraph. 1442B(5) [ Regulations]
Regulations made for the purposes of this subsection may do either or both of the following:
(a) provide that specified provisions of the preserved provisions apply (with or without specified modifications), or do not apply, in relation to a financial product to which this section applies;
(b) provide that specified provisions of the deferred provisions apply (with or without specified modifications), or do not apply, in relation to a financial product to which this section applies.
The regulations may provide as mentioned in paragraph (a) or (b) even after the end of the transition period.
In this Division:
amended Corporations Act
has the same meaning as in Division 1.
class
, in relation to financial products, has a meaning affected by regulations made for the purposes of subsection (2).
FSR commencement
has the same meaning as in Division 1.
law of the Commonwealth
includes a reference to an instrument made under such a law.
new legislation
means relevant legislation as in force after the FSR commencement.
old legislation
means relevant legislation as in force immediately before the FSR commencement.
relevant amendments
means the amendments made by:
(a) the Financial Services Reform Act 2001 ; and
(b) the Financial Services Reform (Consequential Provisions) Act 2001 .
relevant legislation
means the following legislation:
(a) this Act;
(b) the Acts that are amended by the relevant amendments;
(c) regulations or other instruments made under Acts covered by paragraph (a) or (b);
(d) any other law of the Commonwealth, or instrument made under a law of the Commonwealth, identified in regulations made for the purposes of this paragraph. 1443(2) [ Regulations identifying ``class'' of financial products]
The regulations may include provisions identifying, or providing for the identification of, what constitutes a class of financial products for the purposes of a provision or provisions of this Division.
The regulations may deal with matters of a transitional, saving or application nature relating to the relevant amendments and the transition from the application of the old legislation to the application of the new legislation. Regulations made for this purpose may make such provision as is necessary to take account of the fact that, because of Division 1 , different provisions of the amended Corporations Act start applying (and different provisions of the old legislation stop applying) in relation to different people, things and matters at different times.
Regulations made for the purposes of this section are of no effect to the extent that they are inconsistent with:
(a) a provision of Division 1 ; or
(b) a regulation or determination made under a provision of Division 1 , other than any such regulation or determination (the other instrument ) that is expressed to have effect subject to anything in regulations made for the purposes of this section (in which case, the other instrument is of no effect, to the extent of the inconsistency).
Without limiting subsection (1), the regulations may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a) by applying (with or without modifications) to the matter:
(i) provisions of a law of the Commonwealth; or
(ii) provisions of a repealed or amended law of the Commonwealth, in the form that those provisions took before the repeal or amendment; or
(iii) a combination of provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for dealing with the matter;
(c) by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of a law of the Commonwealth.
Without limiting subsections (1) and (3), the regulations may provide for the continued effect after the FSR commencement, for the purposes of the new legislation, of a thing done or instrument made, or a class of things done or instruments made, before the FSR commencement, under or for the purposes of the old legislation. In the case of an instrument, or class of instruments, the regulations may (either when providing for the continued effect of the instrument or instruments or at a later time) provide for the instrument or instruments, as continuing to have effect, to have effect subject to modifications.
Without limiting subsection (4), regulations made for the purposes of that subsection may permit all or any of the following matters to be determined in writing by a specified person, or by a person included in a specified class of persons:
(a) the identification of a thing done or instrument made, or a class of things done or instruments made, that is to continue to have effect;
(b) the purpose for which a thing done or instrument made, or a class of things done or instruments made, is to continue to have effect;
(c) any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
Despite subsections 12(2) and (3) of the Legislative Instruments Act 2003 , regulations made for the purposes of this section:
(a) may be expressed to take effect from a date before the regulations are registered under that Act; and
(b) may provide for a determination of a kind referred to in subsection (5) to take effect from a date before the determination is made (including a date before the regulations are registered under that Act).
If a relevant amendment does not commence on the FSR commencement, this section applies in relation to that amendment as if references in the other provisions of this section, and in the definitions in section 1443 , to " the FSR commencement " were instead references to the commencement of the relevant amendment.
In this section:
matters of a transitional, saving or application nature
includes, but is not limited to, matters related to any of the following:
(a) how a matter that arose or existed under the old legislation is to be dealt with under the new legislation;
(b) the significance for the purposes of the new legislation of a matter that arose or existed under the old legislation;
(c) how a process started but not completed under the old legislation is to be dealt with;
(d) the preservation of concessions or exemptions (however described) that existed under the old legislation;
(e) interpreting references to matters in terms of the new legislation so as to include references to matters in terms of the old legislation (including that legislation as it continues to have effect because of provisions of Division 1 ), and vice versa;
(f) any other matters that are prescribed by regulations made for the purposes of this paragraph.
ASIC may, by legislative instrument, make a determination dealing with matters of a transitional, saving or application nature relating to the relevant amendments and the transition from the application of the old legislation to the application of the new legislation. Determinations for this purpose may make such provision as is necessary to take account of the fact that, because of Division 1 , different provisions of the amended Corporations Act start applying (and different provisions of the old legislation stop applying) in relation to different people, things and matters at different times.
A determination overrides any inconsistent regulations made for the purposes of section 1444 , other than any such regulations that are expressed to have effect despite anything in a determination under this section (in which case, the determination is of no effect, to the extent of the inconsistency).
A determination is of no effect to the extent that it is inconsistent with:
(a) a provision of Division 1 ; or
(b) a regulation or determination made under a provision of Division 1 , other than any such regulation or determination (the other instrument ) that is expressed to have effect subject to anything in a determination under this section (in which case, the other instrument is of no effect, to the extent of the inconsistency).
Without limiting subsection (1), a determination may provide for a matter to be dealt with, wholly or partly, in any of the following ways:
(a) by applying (with or without modifications) to the matter:
(i) provisions of a law of the Commonwealth; or
(ii) provisions of a repealed or amended law of the Commonwealth, in the form that those provisions took before the repeal or amendment; or
(iii) a combination of provisions referred to in subparagraphs (i) and (ii);
(b) by otherwise specifying rules for dealing with the matter;
(c) by specifying a particular consequence of the matter, or of an outcome of the matter, for the purposes of a law of the Commonwealth.
Without limiting subsections (1) and (4), a determination may provide for the continued effect after the FSR commencement, for the purposes of the new legislation, of a thing done or instrument made, or a class of things done or instruments made, before the FSR commencement, under or for the purposes of the old legislation. In the case of an instrument, or class of instruments, a determination may (either when providing for the continued effect of the instrument or instruments or at a later time) provide for the instrument or instruments, as continuing to have effect, to have effect subject to modifications.
Without limiting subsection (5), a determination for the purposes of that subsection may permit all or any of the following matters to be determined in writing by a specified person, or by a person included in a specified class of persons:
(a) the identification of a thing done or instrument made, or a class of things done or instruments made, that is to continue to have effect;
(b) the purpose for which a thing done or instrument made, or a class of things done or instruments made, is to continue to have effect;
(c) any modifications subject to which an instrument made, or a class of instruments made, is to continue to have effect.
If a relevant amendment does not commence on the FSR commencement, this section applies in relation to that amendment as if references in the other provisions of this section, and in the definitions in section 1443 , to " the FSR commencement " were instead references to the commencement of the relevant amendment.
In this section:
matters of a transitional, saving or application nature
includes, but is not limited to, matters related to any of the following:
(a) how a matter that arose or existed under the old legislation is to be dealt with under the new legislation;
(b) the significance for the purposes of the new legislation of a matter that arose or existed under the old legislation;
(c) how a process started but not completed under the old legislation is to be dealt with;
(d) the preservation of concessions or exemptions (however described) that existed under the old legislation;
(e) interpreting references to matters in terms of the new legislation so as to include references to matters in terms of the old legislation (including that legislation as it continues to have effect because of provisions of Division 1 ), and vice versa;
(f) any other matters that are prescribed by regulations made for the purposes of this paragraph.