Corporations Legislation Amendment (Financial Services Modernisation) Act 2009 (108 of 2009)

Schedule 5   Application and transitional provisions

Corporations Act 2001

1   At the end of Chapter 10

Add:

Part 10.12 - Transitional provisions relating to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009

Division 1 - Transitional provisions relating to Schedule 1 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009

1487 Definitions

(1) In this Division:

amended Corporations Act means this Act as in force after commencement.

amending Schedule means Schedule 1 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009.

commencement means the day on which the amending Schedule commences.

margin lending financial service has the meaning given by subsection 1488(2).

(2) Terms that are used in this Division and that are defined in Division 2 of Part 7.1 have the same meanings as they are given by that Division.

1488 Application of amendments - general

(1) The amendments made by the amending Schedule apply in relation to a margin lending financial service that is provided on or after the day that is 12 months after commencement.

(2) A margin lending financial service is:

(a) a dealing in a margin lending facility that was issued after commencement; or

(b) the provision of financial product advice in relation to a margin lending facility that was issued after commencement.

1489 Applications of amendments - application for and grant of licences etc. authorising margin lending financial services

(1) Despite section 1488, during the period that:

(a) starts at the start of the day that is one month after commencement; and

(b) ends at the end of the day before the day that is 12 months after commencement;

subsections (2) and (3) apply.

(2) A person may:

(a) apply under section 913A of the amended Corporations Act for an Australian financial services licence that authorises the person to provide a margin lending financial service; and

(b) apply under section 914A of the amended Corporations Act for a variation of a condition of an Australian financial services licence to authorise the person to provide a margin lending financial service.

(3) ASIC may:

(a) grant an Australian financial services licence to a person under section 913B of the amended Corporations Act that authorises the person to provide a margin lending financial service, and otherwise deal with that licence (for example, by suspending or cancelling it) under Chapter 7; and

(b) impose or vary conditions on an Australian financial services licence under section 914A of the amended Corporations Act to authorise a person to provide a margin lending financial service, and otherwise deal with those conditions (for example, by revoking or varying them) under Chapter 7;

but the Australian financial services licence, condition, or variation of a condition, does not take effect until the day that is 12 months after commencement.

1490 Application of amendments - between 6 and 12 months after commencement

(1) Despite section 1488, the amendments made by the amending Schedule apply in relation to a margin lending financial service that is provided during the period that:

(a) starts at the start of the day that is 6 months after commencement; and

(b) ends at the end of the day before the day that is 12 months after commencement;

but only if, at the time the margin lending financial service is provided, subsection (2) or (3) applies to:

(c) the person who provides the margin lending financial service; and

(d) if the margin lending financial service is provided on behalf of another person - the person on whose behalf the margin lending financial service is provided.

(2) This subsection applies to a person if the person is an Australian financial services licensee and either:

(a) has not applied for a condition of the licence to be varied to authorise the person to provide the margin lending financial service; or

(b) has applied for a condition of the licence to be varied to authorise the person to provide the margin lending financial service, but has been notified by ASIC that the application has been refused.

(3) This subsection applies to a person if the person is not an Australian financial services licensee and either:

(a) has not applied for an Australian financial services licence that authorises the person to provide the margin lending financial service; or

(b) has applied for an Australian financial services licence that authorises the person to provide the margin lending financial service, but has been notified by ASIC that the application has been refused.

1491 Acquisition of property

(1) Despite section 1350, a provision of this Division does not apply, and is taken never to have applied, to the extent that the operation of the provision would result in an acquisition of property from a person otherwise than on just terms.

(2) In subsection (1), acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.

1492 Regulations

(1) The regulations may make provisions of a transitional, application or saving nature relating to this Division and the amendments and repeals made by the amending Schedule.

(2) Without limiting subsection (1), regulations made for the purpose of that subsection may modify provisions of this Act.

Division 2 - Transitional provisions relating to Schedule 2 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009

1493 Definitions

In this Division:

amending Schedule means Schedule 2 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009.

commencement means the commencement of the amending Schedule.

modify includes make additions, omissions and substitutions.

1494 Transitional provisions relating to limit on control of trustee companies

(1) This section applies in relation to a person and a trustee company if, immediately before the commencement of Part 5D.5, the percentage (the pre-commencement percentage ) of the person’s voting power in the trustee company exceeded 15%.

(2) Subject to subsection (3), Part 5D.5 applies in relation to the person and the trustee company as if paragraph 601VAA(a) specified the pre-commencement percentage (rather than 15%).

(3) If, after the commencement of Part 5D.5, the percentage of the person’s voting power in the trustee company is reduced, the following provisions have effect from the time of the reduction:

(a) if the reduced percentage exceeds 15% - Part 5D.5 applies in relation to the person and the trustee company as if paragraph 601VAA(a) specified the reduced percentage (rather than 15%);

(b) if the reduced percentage is 15% or less - this section ceases to apply, and never again applies, in relation to the person and the trustee company.

1495 Transitional provisions relating to the amendments of Chapter 7

(1) This section applies to each company:

(a) that is a trustee company immediately after the commencement of the first regulations made for the purpose of paragraph 601RAB(1)(b); and

(b) that, at that time, holds an Australian financial services licence.

(2) During the period of 6 months starting on the commencement of those regulations:

(a) the company’s Australian financial services licence is taken to cover the provision by the company of traditional trustee company services; and

(b) section 601TAB does not apply in relation to the company; and

(c) Part 7.7 does not apply in relation to traditional trustee company services provided by the company.

Note: If the company wants to continue to provide traditional trustee company services after the end of the 6 month period, it will (before the end of that period) need to apply to ASIC to have the conditions of its licence varied to cover those services.

(3) To avoid doubt, subsection (2) does not limit ASIC’s powers under Part 7.6 (whether during or after the period of 6 months) in relation to the company’s Australian financial services licence.

Note: For example, ASIC may (under Subdivision B of Division 4 of Part 7.6) impose or vary licence conditions, or may (under Subdivision C of Division 4 of Part 7.6) vary, cancel or suspend the licence.

1496 General power for regulations to deal with transitional matters

(1) The regulations may make provisions of a transitional, application or saving nature in relation to any of the following:

(a) the transition from the regime provided for by laws of the States and Territories (as in force before commencement) relating to trustee companies to the regime provided for by this Act as amended by the amending Schedule;

(b) the amendments and repeals made to this Act by the amending Schedule.

(2) Without limiting subsection (1), regulations made for the purpose of that subsection may modify provisions of this Act.

Division 3 - Transitional provisions relating to Schedule 3 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009

1497 Definitions

In this Division:

amending Schedule means Schedule 3 to the Corporations Legislation Amendment (Financial Services Modernisation) Act 2009.

1498 Application of amendments

(1) The amendment made by item 1 of the amending Schedule applies to promissory notes made after the commencement of that item.

(2) The amendment made by item 2 of the amending Schedule applies to trustees appointed on or after the commencement of that item.