Corporations Amendment Regulations 2003 (No. 4)
(126 of 2003)
19 June 2003
Corporations Act 2001.
1 Name of Regulations
These Regulations are theCorporations Amendment Regulations 2003 (No. 4).
2 Commencement
These Regulations commence on gazettal.
3 Amendment of Corporations Regulations 2001
Schedule 1 amends theCorporations Regulations 2001.
Schedule 1 Amendments
[1] Paragraphs 7.1.04 (1) (a) and (2) (a)
omit
spot
[2] Subregulation 7.1.04 (3)
omit
[3] Paragraph 7.1.33B (1) (c)
omit
given
insert
provided
[4] After regulation 7.1.34
insert
7.1.35 Conduct that does not constitute dealing in a financial product
(1) For subsection 766C (7) of the Act, conduct is not taken to be dealing in a financial product if:
(a) the conduct is of a kind:
(i) mentioned in paragraph 766C (1) (a), (d) or (e) of the Act; or
(ii) mentioned in paragraph 766C (1) (b) of the Act, where it is the issue of a beneficial interest in a financial product, that arises from conduct that would constitute providing a custodial or depository service but for the operation of regulation 7.1.40; and
(b) the conduct is carried out by a person ( person 1 ) in relation to a product that person 1 holds on trust for, or on behalf of, another person ( person 2 ) and the holding of that financial product would not constitute the provision of a custodial or depository service because of paragraphs 7.1.40 (a) to (d).
(2) Subregulation (1) does not apply to conduct carried out by person 1 in relation to a financial product that is held under a custodial arrangement as defined in section 1012IA of the Act unless:
(a) person 2 is an associate of person 1; or
(b) the financial product is held in the manner mentioned in paragraph 7.1.40 (d).
[5] Part 7.1, after Division 4
insert
Division 5 Custodial or depository services
7.1.40 Conduct that does not constitute the provision of a custodial or depository service
For paragraph 766E (3) (e) of the Act, conduct that is mentioned in subsection 766E (1) of the Act does not constitute providing a custodial or depository service if:
(a) the financial product held by the provider is a basic deposit product (within the definition in section 761A of the Act) or is an account mentioned in subsection 981B (1) of the Act; or
(b) the client is an associate of the provider (within the meaning of Division 2 of Part 1.2 of the Act); or
(c) the provider and its associates have no more than 20 clients in aggregate for all custodial or depository services that they provide; or
(d) the financial product is held as part of the arrangements for securing obligations under:
(i) a credit facility; or
(ii) a debenture that is held as trustee under a trust deed:
(A) entered into under section 283AA of the Act or former section 260FA of the Corporations Law of a State or Territory; or
(B) mentioned in former section 1052 of the Corporations Law of a State or Territory; or
(e) the provider is a participant in a licensed market and the financial product held is a derivative acquired on the licensed market by the provider on behalf of a client; or
(f) the provider is a participant in a licensed clearing and settlement facility and the financial product held is a derivative registered on the licensed clearing and settlement facility by the provider on behalf of the client; or
(g) the financial product is held under an order of the Court.
[6] After subparagraph 7.6.01 (1) (f)
insert
(fa) a financial service is provided in the following circumstances:
(i) a person ( person 1 ) is a person that is not in the jurisdiction;
(ii) person 1 enters into an arrangement with the holder of an Australian financial services licence under which a financial product, or a beneficial interest in a financial product, is to be held on trust for, or on behalf of, another person ( person 2 );
(iii) person 1 believes on reasonable grounds that person 2 is not in the jurisdiction;
[7] Paragraph 7.6.01 (1) (r)
omit
option.
insert
option;
[8] After paragraph 7.6.01 (1) (r)
insert
(s) the provision of financial product advice if the advice:
(i) is provided to a financial services licensee; and
(ii) is only general advice in relation to a financial product or a class of financial products; and
(iii) is advice that the financial services licensee is authorised to provide; and
(iv) is provided by:
(A) the product issuer; or
(B) a related body corporate of the product issuer.
[9] After subregulation 7.8.15 (1)
insert
(1A) If an applicant for a financial services licence:
(a) specifies, in the application for the licence, the name of a person or firm that is to be, or has been, appointed to audit the applicant's financial statements; and
(b) the auditor or auditors specified are appointed before the end of 1 month after the licence takes effect;
the applicant is taken to have lodged a notice under subsection 990B (6) of the Act.
[10] After regulation 10.2.48
insert
10.2.48A? Obligation to give a Financial Services Guide for a custodial and depository service
(1) For section 1444 of the Act, sections 941A and 941B of the Act are taken not to require a person to give a Financial Services Guide to a client, in accordance with Division 2 of Part 7.7 of the Act, in relation to a financial service (the new financial service ), if:
(a) the new financial service constitutes:
(i) the provision of a custodial or depository service under section 766E of the Act; or
(ii) dealing in a financial product that is held on trust for or on behalf of the client as a necessary part of the custodial or depository service; or
(iii) issuing, to the client, a financial product that is a beneficial interest in a financial product held on trust for or on behalf of the client as a necessary part of the custodial or depository service; and
(b) the person entered into the arrangement under which the custodial or depository service is provided, before the FSR commencement; and
(c) the arrangement continued unaltered after the person became subject to Part 7.7 of the Act.
(2) For paragraph (1) (c), an arrangement is taken to continue unaltered if:
(a) the person holds, under the arrangement, financial products that are different financial products from those held under the arrangement before the person became subject to Part 7.7 of the Act; and
(b) none of the different financial products is held on instruction from the client.
(3) Subparagraph (1) (a) (ii) does not apply to dealing in a financial product if the dealing consists of the issue of a financial product to a person other than the client to whom the custodial or depository service is provided.