Corporations Act 2001
Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .
CCH Note: Division 8B is modified by the ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449; 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; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).
CCH Note: Subdivision A is modified by the ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449; 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; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).
CCH Note: Section 921K is modified by the ASIC Corporations (Financial Requirements for Corporate Directors of Retail Corporate Collective Investment Vehicles) Instrument 2022/449; 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; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).
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).
Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited
CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.
The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.