Corporations Act 2001
Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .
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Hide history noteCCH note - modifying legislative instruments: The application of Pt 7.6 is affected by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Custody Standards for Providers of Custodial and Depository Services) Instrument 2024/17 (other than Divs 4 and 8); the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669 (as amended by ASIC Corporations (Amendment) Instrument 2024/554) (other than Divs 4 and 8); the ASIC Corporations (Record-Keeping Requirements for Australian Financial Services Licensees when Giving Personal Advice) Instrument 2024/508 (other than Divs 4 and 8); and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2024/620 (other than Divs 4 and 8).
The application of Pt 7.6 is also affected by Class Order 14/1262: Relief for 31 Day Notice Term Deposits (other than Divs 4 and 8).
For other legislative instruments or class orders before 1 January 2022 that affect the application of Pt 7.6, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.
CCH Note - modifying legislative instruments: The application of Division 8B is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.
For legislative instruments or class orders before 1 January 2022 that affect the application of Division 8B, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.
CCH Note - modifying legislative instruments: The application of Subdivision A is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.
For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision A, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.
CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.
Subject to subsections (2) and (3) , a Financial Services and Credit Panel may make an instrument of a kind specified in subsection 921L(1) in relation to a relevant provider if: (a) the relevant provider becomes an insolvent under administration; or (b) the relevant provider is convicted of fraud; or (c) the panel reasonably believes, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914 , that the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products; or (d) the panel reasonably believes that the relevant provider has contravened a financial services law (including a restricted civil penalty provision); or (e) the relevant provider has been involved in the contravention of a financial services law (including a restricted civil penalty provision) by another person; or (f) the relevant provider has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA relating to a complaint that relates to:
(i) a financial services business; or
(g) subsection 920A(1C) (when a person has been an officer of a corporation unable to pay its debts) applies to the relevant provider in relation to 2 or more corporations.
(ii) credit activities (within the meaning of the National Consumer Credit Protection Act 2009 ); or
Note 1: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
Note 2: Subsection 921E(3) (relevant providers to comply with the Code of Ethics) is a financial services law.
Note 3: To work out whether a relevant provider has been linked as described in paragraph (f) , see section 910C .
Proposed action notice given in relation to relevant circumstances
921K(2)
A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances (the relevant circumstances ) mentioned in that subsection unless: (a) the panel gave the relevant provider a proposed action notice in relation to a proposal to make the instrument because of the relevant circumstances and either:
(i) no submission or request for a hearing was made within the response period for the notice; or
(b) all of the following apply:
(ii) a submission or request for a hearing was made within the response period for the notice and the panel has taken into account the submission or held the hearing (as the case may be); or
(i) the panel gave the relevant provider a proposed action notice in relation to a proposal to make a different instrument in relation to the relevant circumstances or to give the relevant provider an infringement notice in relation to the relevant circumstances;
(ii) a submission or request for a hearing was made within the response period for the notice;
(iii) the panel has taken into account the submission or held the hearing (as the case may be).
Infringement notices, warnings and reprimands
921K(3)
A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances mentioned in that subsection if the panel, or another Financial Services and Credit Panel, has given the relevant provider an infringement notice, or a warning or reprimand, in relation to those circumstances.
When a person contravenes a financial services law
921K(4)
To avoid doubt, a person contravenes a financial services law if a person fails to comply with a duty imposed under that law, even if the provision imposing the duty is not an offence provision or a civil penalty provision.
Instruments not legislative
921K(5)
An instrument made under subsection (1) is not a legislative instrument.
Interaction with ASIC Act
921K(6)
Subsection (2) does not limit section 158 of the ASIC Act (panels to take account of evidence and submissions).
CCH Note - modifying legislative instruments: Section 921K is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.
For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.
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