C2004A00819 — Australian Securities and Investments Commission Act 2001

1 Objects (1) The objects of this Act are: (a) to provide for the Australian Securities and Investments Commission ( ASIC ) which will administer such laws of the Commonwealth, a State or a Territory as confer functions and powers under those laws on ASIC; and (b) to provide for ASIC’s functions, powers and business; and (d) to establish a Takeovers Panel, a Companies Auditors Disciplinary Board, a Financial Reporting Council, an Australian Accounting Standards Board, an Auditing and Assurance Standards Board and a Parliamentary Joint Committee on Corporations and Financial Services. (2) In performing its functions and exercising its powers, ASIC must strive to: (a) maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and (b) promote the confident and informed participation of investors and consumers in the financial system; and (d) administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and (e) receive, process and store, efficiently and quickly, the information given to ASIC under the laws that confer functions and powers on it; and (f) ensure that information is available as soon as practicable for access by the public; and (g) take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it. (2A) Without limiting subsection (2), ASIC must consider the effects that the performance of its functions and the exercise of its powers will have on competition in the financial system. (3) This Act has effect, and is to be interpreted, accordingly. 1A Short title This Act may be cited as the Australian Securities and Investments Commission Act 2001 . 2 Commencement This Act commences at the same time as the Corporations Act 2001 . 4 Application of this Act (1) This Act applies: (a) in this jurisdiction; and (b) in a State that is not a referring State (but only to the extent to which the application would be within the legislative powers of the Parliament (including powers it has under paragraphs 51(xxxvii) and (xxxix) of the Constitution)); and (c) in such external Territories (if any) as are prescribed. (2) Without limiting paragraph (1)(c), if an external Territory is prescribed, regulations prescribing the external Territory may provide: (a) that only some of the provisions of this Act apply in the external Territory; and (b) that provisions that apply in the external Territory only apply in specified circumstances. (3) If an external Territory is prescribed for the purposes of paragraph (1)(c), in a provision of this Act that applies (either generally or in particular circumstances) in the external Territory, a reference to a term covered by subsection (4) includes a reference to that external Territory (including its coastal sea). (4) For the purposes of subsection (3), the following terms are covered: (a) “Australia”; (b) “Commonwealth”; (c) “Territory”; (d) “this jurisdiction”; (e) a term the definition of which includes a term mentioned in paragraphs (a) to (d). 4A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 5 Interpretation (1) In this Act, unless the contrary intention appears: AASB means the Australian Accounting Standards Board. absent from office , in relation to a holder of an office, means: (a) absent from duty or from Australia; or (b) unable, for any reason, to perform the functions of the office. accounting member of the Disciplinary Board has the meaning given by subsection 203(1A). affairs , in relation to a body corporate, has the same meaning as in section 232 of the Corporations Act. arrangement has the meaning given by subsection 761B(1) of the Corporations Act. ASIC means the Australian Securities and Investments Commission. ASIC delegate means a person to whom, or a body to which, a function or power is delegated under section 102. assist , in relation to an ASIC delegate, means: (a) to perform functions: (i) as a member, officer or employee of the ASIC delegate; and (ii) in connection with the ASIC delegate’s performance or exercise of a function or power delegated under section 102; or (b) to perform services for the ASIC delegate in connection with the ASIC delegate’s performance or exercise of a function or power delegated under section 102. AUASB means the Auditing and Assurance Standards Board. audit deficiency report has the meaning given by subsection 50C(1). Australia means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory. Note 1: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this subsection. Note 2: The meaning of Australia is affected by subsection 4(3) (when used in a provision applying in an external Territory). Australian auditor means: (a) an individual auditor; or (b) an audit firm; or (c) an audit company; that is conducting, or that has conducted, audits undertaken for the purposes of the Australian Charities and Not ‑ for ‑ profits Commission Act 2012 or the Corporations Act and includes a registered company auditor who is participating in, or has participated in, audits of that kind. benefit derived and detriment avoided : (a) because of an offence—has the meaning given by section 93F; and (b) because of the contravention of a civil penalty provision—has the meaning given by section 12GBCE. books includes: (a) a register; and (b) financial reports or financial records, however compiled, recorded or stored; and (c) a document; and (ca) sustainability reports or sustainability records, however compiled, recorded or stored; and (d) banker’s books; and (e) any other record of information. business member of the Disciplinary Board has the meaning given by subsection 203(1A). Chairperson means: (a) except in Part 11 or in relation to the Disciplinary Board—the Chairperson of ASIC; and (b) in Part 11 or in relation to the Disciplinary Board—the Chairperson of the Disciplinary Board. Commonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes each Territory. Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this subsection. contravention : (a) in relation to an offence against a law—includes: (i) an offence against section 6 of the Crimes Act 1914 ; and (ii) an ancillary offence (within the meaning of the Criminal Code ); relating to the offence against the law; and (b) in relation to a civil penalty provision—has a meaning affected by section 12GBCL. Corporations Act means the Corporations Act 2001 and regulations and rules made under that Act. corporations legislation means: (a) this Act; and (b) the Corporations Act. court , except in section 248, includes a tribunal having power to require the production of documents or the answering of questions. CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011 . dealing in a financial product has the meaning given by section 766C of the Corporations Act and deal in a financial product has a corresponding meaning. Deputy Chairperson means: (a) in relation to the Disciplinary Board—the Deputy Chairperson of the Disciplinary Board; and (b) in any other case—a Deputy Chairperson of ASIC. Disciplinary Board means the Companies Auditors Disciplinary Board. eligible employee has the same meaning as in the Superannuation Act 1976 . eligible person , in relation to a person, means a person who: (a) if the first ‑ mentioned person is a body corporate (other than a CCIV)—is or has been an officer of the body within the meaning of the corporations legislation (other than the excluded provisions); or (aa) if the first ‑ mentioned person is a CCIV—is or has been: (i) an officer of the CCIV; or (ii) an officer of an officer of the CCIV; or (b) in any case: (i) is or has been an employee, agent, banker, solicitor or auditor of; or (ii) is acting, or has acted, in any other capacity on behalf of; the first ‑ mentioned person. Note: For paragraph (aa), officer is defined in this subsection. engage in conduct : (a) in Division 2 of Part 2—has the meaning given by subsection 12BA(2); and (b) in the other provisions of this Act—means do an act or omit to do an act. examination means an examination of a person pursuant to a requirement made under section 19. excluded provisions means section 12A and Division 2 of Part 2. expenses , in relation to an investigation under Division 1 of Part 3, includes costs and expenses incurred in relation to a proceeding begun under section 50 as a result of the investigation. external Territory : (a) means a Territory referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory; but (b) does not include a Territory covered by the definition of Territory in this subsection. Note: The Australian Capital Territory, the Jervis Bay Territory, the Northern Territory, Norfolk Island and the Territories of Christmas Island and of Cocos (Keeling) Islands are covered by the definition of Territory in this subsection. fail means refuse or fail. financial product : (a) in Division 2 of Part 2—has the meaning given by section 12BAA; and (b) in the other provisions of this Act—has the meaning given by Division 3 of Part 7.1 of the Corporations Act. financial service : (a) in Division 2 of Part 2—has the meaning given by section 12BAB; and (b) in the other provisions of this Act—has the same meaning as it has in the Corporations Act. Note: Some provisions of of the Corporations Act have a modified meaning when applying to CCIVs (see Part 8B.7 of that Act). Financial Services and Credit Panel means a panel convened under subsection 139(1). foreign business law means: (a) a law of a foreign country that regulates, or relates to the regulation of, business or persons engaged in business; or (b) a law, or rules or regulations (however described), that an international business regulator administers or enforces. foreign country includes: (a) a part of a foreign country; and (b) when used in a provision of this Act that does not apply (either generally or in particular circumstances) to a particular external Territory—that external Territory (but only to the extent that the provision does not apply in that external Territory). FRC means the Financial Reporting Council. give has: (a) in relation to a document—a meaning affected by section 86; and (b) in relation to information—a meaning affected by section 6. hearing , in this section and Part 3, means a hearing before ASIC and, in sections 52, 54, 55 and 56, includes a part of such a hearing. House means a House of the Parliament. information has a meaning affected by section 6. international accounting standards means accounting standards made by: (a) the International Accounting Standards Board; or (b) another body specified by the regulations. international auditing standards means auditing standards made by: (a) the International Auditing and Assurance Standards Board; or (b) another body specified by the regulations. international business regulator means a body that satisfies the following conditions: (a) the body has functions relating to the regulation, in 2 or more countries, of business, or persons engaged in business; (b) those functions are conferred on the body by: (i) a law or laws in force in those countries; or (ii) a treaty, or other international agreement, to which those countries are parties; or (iii) without limiting subparagraphs (i) and (ii)—a parliament or other body established by or under a treaty, or other international agreement, to which those countries are parties. international sustainability standards means sustainability standards made by: (a) the International Sustainability Standards Board; or (b) another body specified by the regulations. Note: Sustainability standards include standards relating to climate. investigate , in relation to ASIC, means investigate in the course of performing or exercising any of ASIC’s functions and powers. meeting means: (a) in Part 4—a meeting of ASIC; (c) in Part 11—a meeting of the Disciplinary Board. member means: (a) except in Division 2 of Part 4, in Part 10, 11, 12 or 14, or in relation to a Division, the Takeovers Panel, a Financial Services and Credit Panel, the Disciplinary Board, the FRC, the AASB or the Parliamentary Committee—a member of ASIC; and (aa) in relation to a Financial Services and Credit Panel—a member of the panel appointed under subsection 140(1); and (c) in Part 10 or in relation to the Takeovers Panel—a member of the Takeovers Panel; and (d) in Part 11 or in relation to the Disciplinary Board—the Chairperson or any other member of the Disciplinary Board; and (e) in relation to the FRC—a member of the FRC; and (ea) in relation to the AASB—a member of the AASB; and (eb) in relation to the AUASB—a member of the AUASB; and (f) in Part 14 or in relation to the Parliamentary Committee—a member of the Parliamentary Committee. Office of the AASB means the Office of the Australian Accounting Standards Board. Office of the AUASB means the Office of the Auditing and Assurance Standards Board. officer means: (a) an officer within the meaning of the Corporations Act; or (b) a provisional liquidator. old ASIC Act means the Australian Securities and Investments Commission Act 1989 as in force from time to time before the commencement of this Act. Panel Chairperson has the meaning given by subsection 210A(3A) (about constituting a Panel of the Disciplinary Board). Panel of the Disciplinary Board means a Panel constituted by the Chairperson of the Disciplinary Board under section 210A to hear a particular matter. Parliamentary Committee means the Parliamentary Joint Committee on Corporations and Financial Services. penalty applicable : (a) to an offence committed by an individual: (i) in Division 2 of Part 2—has the meaning given by section 12GBCA; and (ii) in the other provisions of this Act——has the meaning given by section 93D; and (b) to an offence committed by a body corporate: (i) in Division 2 of Part 2—has the meaning given by section 12GBCA; and (ii) in the other provisions of this Act——has the meaning given by section 93E. person has the same meaning as in Chapter 7 of the of the Corporations Act. Note: See sections 761F (which deals with partnerships) and 761FA (which deals with multiple trustees) of the Corporations Act. power includes an authority. prescribed means prescribed by this Act or the regulations. President means the President of the Takeovers Panel. proceeding means: (a) a proceeding in a court; or (b) a proceeding or hearing before, or an examination by or before, a tribunal; whether the proceeding, hearing or examination is of a civil, administrative, criminal, disciplinary or other nature. produce , except in Part 3, includes permit access to. professional accounting body means a body prescribed by the regulations for the purposes of this definition. property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action and money. record , in relation to an examination, means the whole or a part of a record made under section 24 of statements made at the examination. regulations means regulations made under this Act. report includes an interim report. Schedule 2 to the Corporations Act means Schedule 2 to the Corporations Act 2001 and rules made under that Schedule. security has the meaning given by subsection 92(5) of the Corporations Act. senior staff member means a staff member identified as a senior staff member in a determination made under section 122A. staff member means: (a) a person employed under section 120; or (b) a person engaged under subsection 121(1); or (c) any of the officers, employees and persons who under section 122 are to assist ASIC. statement , in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination. superannuation benefits includes: (a) benefits in the nature of superannuation benefits; and (b) benefits similar to benefits provided under the Superannuation Act 1976 ; and (c) benefits similar to the benefits provided under the Superannuation Act 1990 . Takeovers Panel means the Takeovers Panel continued in existence by section 261. Takeovers Panel proceedings means proceedings before the Takeovers Panel on: (a) an application made to the Takeovers Panel under the Corporations Act; or (b) a reference of a decision to the Takeovers Panel for review under the Corporations Act. Territory : (a) means the following: (i) the Australian Capital Territory; (ii) the Jervis Bay Territory; (iii) the Northern Territory; (iv) Norfolk Island; (v) the Territory of Christmas Island; (vi) the Territory of Cocos (Keeling) Islands; and (b) when used in a geographical sense—includes the Territory’s coastal sea (if any). Note 1: The term external Territory is defined in this subsection to be any Territory, other than a Territory covered by this definition, that is referred to in section 122 of the Constitution, where an Act makes provision for the government of the Territory as a Territory. Note 2: The meaning of Territory is affected by subsection 4(3) (when used in a provision applying in an external Territory). this Act includes the regulations. this jurisdiction means: (a) each referring State (including, when used in a geographical sense, its coastal sea); and (b) each Territory. Note 1: Territory , when used in a geographical sense, includes the Territory’s coastal sea, but the term does not include an external Territory. See the definitions of Territory and external Territory in this subsection. Note 2: The meaning of this jurisdiction is affected by subsection 4(3) (when used in a provision applying in an external Territory). tribunal means: (a) a tribunal in Australia; or (b) any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence. trust property , in relation to a trustee company, means property that is or was held by the trustee company as trustee. virtual enquiry technology means any technology that allows a person to appear at all or part of a hearing, examination or other enquiry without being physically present at the hearing, examination or other enquiry. witness : (a) in relation to a hearing before ASIC, means a person appearing at the hearing to give evidence; or (b) in relation to Takeovers Panel proceedings, means a person appearing in the proceedings to give evidence. written record , in relation to an examination, means: (a) a record of the examination: (i) that is made in writing; or (ii) as reduced to writing; or (b) a part of such a record. (2) Subject to this Act, Part 1.2 (Interpretation) of the Corporations Act applies for the purposes of this Act as if the provisions of this Act were provisions of that Act. Note: Part 1.2 of the Corporations Act includes the Dictionary in section 9 of that Act, so the definitions in that section apply for the purposes of this Act unless this Act otherwise provides. 6 Giving information A reference in this Act to giving information includes a reference to: (a) explaining or stating a matter; or (b) identifying a person, matter or thing; or (c) disclosing information; or (d) answering a question. 8 ASIC is a body corporate (1) ASIC: (a) is a body corporate, with perpetual succession; and (b) has a common seal; and (c) may, subject to subsection (5), acquire, hold and dispose of real and personal property; and (ca) may enter into contracts; and (d) may sue and be sued in its corporate name. Note: ASIC was established by section 7 of the Australian Securities and Investments Commission Act 1989 and is continued in existence by section 261 of this Act. (1A) However, ASIC is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013 ): (a) to be a non ‑ corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and (b) to be a part of the Commonwealth; and (c) not to be a body corporate. (2) ASIC may enter into contracts in its own right. (3) Any real or personal property held by ASIC is held for and on behalf of the Commonwealth. (4) Any money received by ASIC is received for and on behalf of the Commonwealth. (5) ASIC cannot hold real or personal property or money on trust. Note: Any real or personal property or money that ASIC would otherwise hold on trust is held by the Commonwealth on trust. (6) Despite any rule of equity, ASIC may, for and on behalf of the Commonwealth, perform all the duties and exercise all the powers of the Commonwealth as trustee in relation to any real or personal property or money held on trust by the Commonwealth. (7) To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (3). 8A ASIC’s liabilities are Commonwealth liabilities (1) Any financial liabilities of ASIC are taken to be liabilities of the Commonwealth. (2) For the purposes of this section: financial liability means a liability to pay a person an amount where the amount, or the method for working out the amount, has been determined. 9 Membership (1) ASIC is to consist of not fewer than 3 nor more than 8 members. (2) The Governor ‑ General appoints the members on the nomination of the Minister. (3) At least 3 of the members must be appointed as full ‑ time members and each of the remaining members (if any) may be appointed as a full ‑ time member or as a part ‑ time member. (4) The Minister is to nominate a person as a member only if the Minister is satisfied that the person is qualified for appointment by virtue of his or her knowledge of, or experience in, one or more of the following fields, namely: (a) business; (b) administration of companies; (c) financial markets; (d) financial products and financial services; (e) law; (f) economics; (g) accounting. (5) The performance of ASIC’s functions or the exercise of ASIC’s powers is not affected by reason only that the number of members, or the number of full ‑ time members, is less than 3 unless a continuous period of 3 months has elapsed since the number of members, or the number of full ‑ time members, as the case may be, fell below 3. (6) For the purposes of subsection (5), an acting member is taken to be a member. 9A Application of the finance law For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013 ): (a) ASIC is a listed entity; and (b) the Chairperson is the accountable authority of ASIC; and (c) the following persons are officials of ASIC: (i) the Chairperson; (ii) the other members of ASIC; (iii) staff members; and (d) the purposes of ASIC include the functions of ASIC referred to in sections 11 and 12A. 10 Chairperson and Deputy Chairpersons (1) The Governor ‑ General is to appoint as Chairperson of ASIC a person who is, or is to be, a full ‑ time member. (2) The Governor ‑ General may appoint as a Deputy Chairperson of ASIC a person who is, or is to be, a full ‑ time member. Note: For the manner in which the Chairperson and a Deputy Chairperson may be referred to, see section 18B of the Acts Interpretation Act 1901 . (3) Not more than 2 persons may hold office as Deputy Chairperson at any one time. 10A Chairperson not subject to direction by ASIC on certain matters The Chairperson of ASIC is not subject to direction by ASIC in relation to the Chairperson’s performance of functions, or exercise of powers, under: (a) the Public Governance, Performance and Accountability Act 2013 ; or (b) Part 6 or 7 of this Act. 11 Corporations legislation functions and powers and other functions and powers (1) ASIC has such functions and powers as are conferred on it by or under the corporations legislation (other than the excluded provisions). (2) ASIC also has the following functions: (a) to provide such staff and support facilities to the Takeovers Panel, the Disciplinary Board and the Review Board as are necessary or desirable for the performance and exercise by the Takeovers Panel, the Disciplinary Board and the Review Board of their respective functions and powers; (aa) to provide such staff and support facilities to Financial Services and Credit Panels as are necessary or desirable for the performance and exercise by the panels of their functions and powers; (b) to advise the Minister about any changes to the corporations legislation (other than the excluded provisions) that, in ASIC’s opinion, are needed to overcome, or would assist in overcoming, any problems that ASIC has encountered in the course of performing or exercising any of its functions and powers. (3) ASIC may, on its own initiative or when requested by the Minister, advise the Minister, and make to the Minister such recommendations as it thinks fit, about any matter connected with: (a) a proposal to make corporations legislation, or to make amendments of the corporations legislation (other than the excluded provisions); or (b) the operation or administration of the corporations legislation (other than the excluded provisions); or (c) law reform in relation to the corporations legislation (other than the excluded provisions); or (d) companies or a segment of the financial products and financial services industry; or (e) a proposal for improving the efficiency of the financial markets. (4) ASIC has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions. (6) Subject to this Act, ASIC has the general administration of this Act. (8) ASIC may, with the consent of the Minister, enter into an agreement or arrangement with a State or Territory for the performance of functions or the exercise of powers by ASIC as an agent of the State or Territory. (9) ASIC has such functions and powers as are referred to in such an agreement or arrangement. However, ASIC is not under a duty to perform such functions or exercise such powers. (9A) ASIC may have functions or powers conferred on it by or under a law of a State or Territory if: (a) that law provides for, or relates to, the repeal, amendment or termination (however described) of the operation of, any of the replaced legislation within the meaning of item 22 of Schedule 8 to the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999 ; and (b) the conferral of the powers or functions is in accordance with: (i) provisions of an agreement entered into by the Commonwealth and the State or Territory, being provisions approved by the Minister for the purposes of this subsection; or (ii) an approval given by the Minister for the purposes of this subsection. ASIC has the functions and powers so conferred by that law. However, ASIC is not under a duty to perform such functions or exercise such powers. (10) ASIC may, with the written consent of the Minister, enter into an agreement or arrangement with a regulatory body of a foreign country under which ASIC undertakes to assist that regulatory body to ascertain whether Australian auditors comply with audit requirements that are: (a) imposed by or under laws of that foreign country; or (b) adopted as professional standards in that foreign country. (11) The Minister may, in writing, vary or revoke the Minister’s consent mentioned in subsection (10). (12) If ASIC enters into an agreement or arrangement with a regulatory body under subsection (10), it must, as soon as practicable after entering into that agreement or arrangement, by notice published in the Gazette : (a) set out the identifying particulars of the regulatory body; and (b) give brief particulars of the agreement or arrangement entered into; and (c) identify the audit requirements to which the agreement or arrangement relates. (13) A notice published under subsection (12) is not a legislative instrument. (14) ASIC has the following functions: (a) to assist a regulatory body with which it has entered into an agreement or arrangement under subsection (10) to examine the policies and working practices of an Australian auditor, so as to help the regulatory body to ascertain compliance with audit requirements to which the agreement or arrangement relates; (b) to disclose to a regulatory body with which it has entered into an agreement or arrangement under subsection (10) the information that ASIC has obtained in assisting in such an examination. (15) In performing the function referred to in paragraph (14)(a), ASIC may examine policies and working practices of an auditor in general or in their application to particular audits or in both of those respects. (16) ASIC is not under a duty to perform a function referred to in subsection (14) or to exercise a power in relation to such a function. (16A) ASIC has the functions and powers of a home regulator or a host regulator for a passport fund under the Memorandum of Cooperation. However, ASIC is not under a duty to perform such functions or exercise such powers. (17) ASIC is not subject to any directions of the Minister in relation to: (a) entering into an agreement or arrangement under subsection (8) or (10); or (b) performing functions or exercising powers referred to in subsection (9); or (c) performing functions conferred under subsection (9A), (14) or (16A) or exercising any related powers. 12 Directions by Minister (1) The Minister may, by legislative instrument, give ASIC a direction about policies it should pursue, or priorities it should follow, in performing or exercising any of its functions or powers under the corporations legislation (other than the excluded provisions). (2) The Minister must not give a direction under subsection (1) unless he or she has: (a) notified ASIC in writing that he or she is considering giving the direction; and (b) given the Chairperson an adequate opportunity to discuss with the Minister the need for the proposed direction. (3) The Minister must not give a direction under subsection (1) about a particular case. (4) ASIC must comply with a direction under subsection (1). 12A Other functions and powers (1) ASIC has the functions and powers that are conferred on it by or under Division 2 of Part 2 of this Act and by or under the following: (a) the ASIC Supervisory Cost Recovery Levy Act 2017 ; (b) the ASIC Supervisory Cost Recovery Levy (Collection) Act 2017 ; (ba) the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 ; (c) the Insurance Contracts Act 1984 ; (e) the Life Insurance Act 1995 ; (f) the Retirement Savings Accounts Act 1997 ; (g) the Superannuation Industry (Supervision) Act 1993 ; (i) the National Consumer Credit Protection Act 2009 ; (j) the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 ; (k) the Business Names Registration Act 2011 ; (l) the Business Names Registration (Transitional and Consequential Provisions) Act 2011 ; (m) the Financial Accountability Regime Act 2023 ; (n) the Financial Accountability Regime (Consequential Amendments) Act 2023 ; (o) the SPF provisions (within the meaning of the Competition and Consumer Act 2010 ). (2) ASIC has the function of monitoring and promoting market integrity and consumer protection in relation to the Australian financial system. (3) ASIC has the function of monitoring and promoting market integrity and consumer protection in relation to the payments system by: (a) promoting the adoption of approved industry standards and codes of practice; and (b) promoting the protection of consumer interests; and (c) promoting community awareness of payments system issues; and (d) promoting sound customer ‑ banker relationships, including through: (i) monitoring the operation of industry standards and codes of practice; and (ii) monitoring compliance with such standards and codes. (4) Subsections (2) and (3) confer functions and powers to the extent to which they are not in excess of the legislative power of the Commonwealth. (5) ASIC may: (a) advise the Minister about any changes to a law listed in subsection (1) that ASIC thinks are needed to help overcome any problems that ASIC has encountered in the course of performing its functions or exercising any of its powers under that law; and (b) advise the Minister and make such recommendations as it thinks fit about any matter relating to its functions in subsections (2) and (3). (6) ASIC has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions. 12AA Cooperation with APRA (1) The object of this section is to require ASIC to support APRA in performing and exercising APRA’s functions and powers effectively. (2) In performing and exercising its functions and powers, ASIC must, so far as is practicable, work in cooperation with APRA. (3) The performance or exercise of a function or power by ASIC is not invalid merely because of a failure by ASIC to comply with subsection (2). (4) The performance or exercise of a function or power by ASIC does not give rise to an action or other proceeding for damages merely because of a failure by ASIC to comply with subsection (2). (5) If a law (other than this section) requires ASIC to cooperate with APRA: (a) this section does not affect the operation of that law; and (b) that law does not affect the operation of this section. 12AC Division extends to some conduct outside Australia This Division extends to the engaging in conduct outside Australia by: (a) bodies corporate incorporated or carrying on business within Australia; or (b) Australian citizens; or (c) persons ordinarily resident within Australia. 12AD Application of Division to Commonwealth and Commonwealth authorities (1) Subject to this section, this Division binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth. (3) Nothing in this Division makes the Crown in right of the Commonwealth liable to a pecuniary penalty or to be prosecuted for an offence. (4) The protection in subsection (3) does not apply to an authority of the Commonwealth. (5) For the purposes of this section, the following transactions do not amount to carrying on a business: (a) a transaction involving only persons who are all acting for the Crown in right of the Commonwealth (and none of whom is an authority of the Commonwealth); (b) a transaction involving only persons who are all acting for the same authority of the Commonwealth; (c) a transaction involving only the Crown in right of the Commonwealth and one or more non ‑ commercial authorities of the Commonwealth; (d) a transaction involving only non ‑ commercial authorities of the Commonwealth. (6) Subsection (5) does not limit the things that do not amount to carrying on a business for the purposes of this section. (7) For the purposes of this section, an authority of the Commonwealth is non ‑ commercial if: (a) it is constituted by only one person; and (b) it is neither a trading corporation nor a financial corporation. 12AE Saving of other laws and remedies (1) Except as provided by subsection (2), Subdivision BA (sections 12BF to 12BM), Subdivision C (sections 12CA to 12CC), Subdivision D (sections 12DA to 12DN), Subdivision DA (sections 12DO to 12DZA) and Subdivision E (sections 12EA to 12ED) are not intended to exclude or limit the concurrent operation of any law of a State or Territory. (2) If: (a) an act or omission of a person is both an offence against section 12GB and an offence under the law of a State or Territory; and (b) the person is convicted of either of those offences; the person is not liable to be convicted of the other of those offences. (3) Except as expressly provided by Subdivision BA (sections 12BF to 12BM), Subdivision C (sections 12CA to 12CC), Subdivision D (sections 12DA to 12DN), Subdivision DA (sections 12DO to 12DZA) or Subdivision E (sections 12EA to 12ED), nothing in those Subdivisions is taken to limit, restrict or otherwise affect any right or remedy a person would have had if that Subdivision had not been enacted. (4) This Division does not affect the operation of: (a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Division; or (b) the law relating to breaches of confidence; but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Division. 12BA Interpretation (1) In this Division, unless the contrary intention appears: acquire , in relation to services, includes accept. acquisition of services has the meaning given by section 12BD. add ‑ on insurance deferral period has the meaning given by section 12DP. add ‑ on insurance pre ‑ deferral period has the meaning given by section 12DP. add ‑ on insurance product , in relation to a product or service, has the meaning given by section 12DO. add ‑ on risk product has the meaning given by subsection 12DMC(2). assert a right to payment has the meaning given by section 12BEA. Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 as applied under Subdivision A of Division 2 of Part XI of that Act. authority , in relation to a State or Territory (including an external Territory), means: (a) a body corporate established for a purpose of the State or the Territory by or under a law of the State or Territory; or (b) an incorporated company in which the State or the Territory, or a body corporate referred to in paragraph (a), has a controlling interest. authority of the Commonwealth means: (a) a body corporate established for a purpose of the Commonwealth by or under a law of the Commonwealth or a law of a Territory; or (b) an incorporated company in which the Commonwealth, or a body corporate referred to in paragraph (a), has a controlling interest. business includes a business not carried on for profit. civil penalty provision has the meaning given by subsection 12GBA(6). commission includes: (a) any financial or other benefit in the nature of a commission; and (b) in relation to an add ‑ on risk product provided to a person in connection with the person providing a warranty to another person—the amount (if any) by which the consideration for the warranty exceeds so much of the consideration for the add ‑ on risk product as relates to the warranty. It may take any form of monetary consideration, or any form of non ‑ monetary consideration to which a monetary value can be assigned. conduct has the meaning given by subsection (2). consumer has the meaning given by section 12BC. consumer contract has the meaning given by subsection 12BF(3). contract has the meaning given by section 12BE. covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land) and proposed covenant has a corresponding meaning. enforcement proceeding means a proceeding instituted under Subdivision G of Division 2 of Part 2 (other than sections 12GNB, 12GNE and 12GNF). engage in conduct has the meaning given by subsection (2). financial corporation : (a) means a financial corporation within the meaning of paragraph 51(xx) of the Constitution; and (b) includes a body corporate that carries on as its sole or principal business the business of: (i) banking (other than State banking not extending beyond the limits of the State concerned); or (ii) insurance (other than State insurance not extending beyond the limits of the State concerned). financial product has the meaning given by section 12BAA. financial service has the meaning given by section 12BAB. individual fine formula means the formula set out in subsection 93D(3). infringement notice means an infringement notice issued under section 12GX. Insurance Contracts Act insurance contract means a contract of insurance to which the Insurance Contracts Act 1984 applies. long ‑ term lease , of a motor vehicle, means a contract for the hire of the motor vehicle for a fixed period of more than 4 months, or for an indefinite period . misleading includes the meaning given by section 12BB. money has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 . motor vehicle means: (a) any motor ‑ powered vehicle of a kind intended for use as land transport (other than rail transport), whether or not it is for use on a road; or (b) any other vehicle of a kind intended to be towed by such a motor ‑ powered vehicle; but does not include a vehicle (other than a vehicle for use on a road) that is of a kind intended primarily for use by persons with restricted mobility. National Credit Code has the same meaning as in the National Consumer Credit Protection Act 2009 . non ‑ party means: (a) in relation to conduct—a person who is not, or has not been, a party to an enforcement proceeding in relation to the conduct; or (b) in relation to a term of a contract—a person who is not, or has not been, a party to an enforcement proceeding in relation to the term. payment period for an infringement notice, has the meaning given by section 12GXC. pecuniary penalty order has the meaning given by subsection 12GBB(4). price includes a charge of any description. provision , in relation to an understanding, means any matter forming part of the understanding. registrable superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993 . relinquishment order has the meaning given by subsection 12GBCC(1). rely on , in relation to a term of a consumer contract or small business contract, includes the following: (a) attempt to enforce the term; (b) attempt to exercise a right conferred, or purportedly conferred, by the term; (c) assert the existence of a right conferred, or purportedly conferred, by the term. re ‑ supply of services has the meaning given by section 12BD. send includes deliver, and sent and sender have corresponding meanings. services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce but does not include: (a) the supply of goods within the meaning of the Competition and Consumer Act 2010 ; or (b) the performance of work under a contract of service. small business contract has the meaning given by subsection 12BF(4). standard form contract has a meaning affected by section 12BK. subject to an infringement notice under Subdivision GB of Division 2 of Part 2, has the meaning given by section 12GXA. substantiation notice means a notice under section 12GY. substantiation notice compliance period for a substantiation notice has the meaning given by subsection 12GYB(2). superannuation trustee service has the same meaning as in the Corporations Act . supply : (a) includes provide, grant or confer when used as a verb in relation to services; and (b) has a corresponding meaning when used as a noun; and supplied and supplier have corresponding meanings. supply of services has the meaning given by section 12BD. the Court or the Federal Court means the Federal Court of Australia. trade or commerce means trade or commerce within Australia or between Australia and places outside Australia. trading corporation means a trading corporation within the meaning of paragraph 51(xx) of the Constitution. transparent , in relation to a term of a consumer contract or small business contract, has the meaning given by subsection 12BG(3). unfair , in relation to a term of a consumer contract or small business contract, has the meaning given by subsection 12BG(1). unsolicited financial services means financial services supplied to a person without any request made by the person or on the person’s behalf. upfront price has the meaning given by subsection 12BI(2). (2) In this Division: (a) a reference to engaging in conduct is a reference to doing or refusing to do any act, including: (i) making, or giving effect to a provision of, a contract or arrangement; or (ii) arriving at, or giving effect to a provision of, an understanding; or (iii) requiring the giving of, or giving, a covenant; and (b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to doing or refusing to do any act, including: (i) making, or giving effect to a provision of, a contract or arrangement; or (ii) arriving at, or giving effect to a provision of, an understanding; or (iii) requiring the giving of, or giving, a covenant; and (c) a reference to refusing to do an act includes a reference to: (i) refraining (otherwise than inadvertently) from doing that act; or (ii) making it known that that act will not be done; and (d) a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be. 12BAA Definition of financial product General definition of financial product (1) Subject to subsection (8), for the purposes of this Division, a financial product is a facility through which, or through the acquisition of which, a person does one or more of the following: (a) makes a financial investment (see subsection (4)); (b) manages financial risk (see subsection (5)); (c) makes non ‑ cash payments (see subsection (6)). (2) Subject to subsection (8), for the purposes of this Division, a particular facility that is of a kind through which people commonly make financial investments, manage financial risks or make non ‑ cash payments is a financial product even if that facility is acquired by a particular person for some other purpose. (3) A facility does not cease to be a financial product merely because: (a) the facility has been acquired by a person other than the person to whom it was originally issued; and (b) that person, in acquiring the product, was not making a financial investment or managing a financial risk. Meaning of makes a financial investment (4) For the purposes of this section, a person (the investor ) makes a financial investment if: (a) the investor gives money or money’s worth (the contribution ) to another person and any of the following apply: (i) the other person uses the contribution to generate a financial return, or other benefit, for the investor; (ii) the investor intends that the other person will use the contribution to generate a financial return, or other benefit, for the investor (even if no return or benefit is in fact generated); (iii) the other person intends that the contribution will be used to generate a financial return, or other benefit, for the investor; and (b) the investor has no day ‑ to ‑ day control over the use of the contribution to generate the return or benefit. Note 1: Examples of actions that constitute making a financial investment under this subsection are: (a) a person paying money to a company for the issue to the person of shares in the company (the company uses the money to generate dividends for the person and the person, as a shareholder, does not have control over the day ‑ to ‑ day affairs of the company); or (b) a person contributing money to acquire interests in a registered scheme from the responsible entity of the scheme (the scheme uses the money to generate financial or other benefits for the person and the person, as a member of the scheme, does not have day ‑ to ‑ day control over the operation of the scheme). Note 2: Examples of actions that do not constitute making a financial investment under this subsection are: (a) a person purchasing real property or bullion (while the property or bullion may generate a return for the person, it is not a return generated by the use of the purchase money by another person); or (b) a person giving money to a financial services licensee who is to use it to purchase shares for the person (while the purchase of the shares will be a financial investment made by the person, the mere act of giving the money to the licensee will not of itself constitute making a financial investment). Meaning of manages a financial risk (5) For the purposes of this section, a person manages financial risk if they: (a) manage the financial consequences to them of particular circumstances happening; or (b) avoid or limit the financial consequences of fluctuations in, or in the value of, receipts or costs (including prices and interest rates). Note 1: Examples of actions that constitute managing a financial risk are: (a) taking out insurance; or (b) hedging a liability by acquiring a futures contract or entering into a currency swap. Note 2: An example of an action that does not constitute managing a financial risk is employing a security firm (while that is a way of managing the risk that thefts will happen, it is not a way of managing the financial consequences if thefts do occur). Meaning of makes non ‑ cash payments (6) For the purposes of this section, a person makes non ‑ cash payments if they make payments, or cause payments to be made, otherwise than by the physical delivery of Australian currency in the form of notes and/or coins. Note: Examples of actions that constitute making non ‑ cash payments are: (a) making payments by means of a facility for direct debit of a deposit account; or (b) making payments by means of a facility for the use of cheques; or (c) making payments by means of a purchased payment facility within the meaning of the Payment Systems (Regulation) Act 1998 , such as a smart card; or (d) making payments by means of traveller’s cheques in Australian currency. Specific things that are financial products (subject to subsection (8)) (7) Subject to subsection (8), the following are financial products for the purposes of this Division: (a) a security; (b) any of the following in relation to a managed investment scheme: (i) an interest in the scheme; (ii) a legal or equitable right or interest in an interest covered by subparagraph (i); (iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii); (c) a derivative; (d) a contract of insurance (see subsection (9)) other than: (i) health insurance provided as part of a health insurance business (as defined by Division 121 of the Private Health Insurance Act 2007 ); or (ii) insurance provided as part of a health ‑ related business (as defined by section 131 ‑ 15 of that Act) that is conducted through a health benefits fund (as defined by section 131 ‑ 10 of that Act); (e) a life policy, or a sinking fund policy, within the meaning of the Life Insurance Act 1995 , that is not a contract of insurance (see subsection (9)); (f) a beneficial interest in a superannuation fund (as defined by section 10 of the Superannuation Industry (Supervision) Act 1993 ); (g) an RSA (retirement savings account) within the meaning of the Retirement Savings Accounts Act 1997 ; (h) any deposit ‑ taking facility made available by an ADI (within the meaning of the Banking Act 1959 ) in the course of its banking business (within the meaning of that Act), other than an RSA (RSAs are covered by paragraph (g)); (i) a debenture, stock or bond issued or proposed to be issued by a government; (j) a foreign exchange contract; (k) a credit facility (within the meaning of the regulations); (l) an Australian carbon credit unit; (la) an eligible international emissions unit; (m) anything declared by the regulations to be a financial product for the purposes of this subsection. Note 1: Even though something is expressly excluded from one of these paragraphs, it may still be a financial product (subject to subsection (8)) either because: (a) it is covered by another of these paragraphs; or (b) it is covered by the general definition in subsection (1). Note 2: A notified foreign passport fund is a managed investment scheme for the purposes of this Act and the Corporations Act, see subsection 5(2) of this Act and section 1213E of the Corporations Act. Specific things that are not financial products (8) Despite anything else in this section, the following are not financial products for the purposes of this Division: (a) an excluded security; (b) health insurance provided as part of a health insurance business (as defined in Division 121 of the Private Health Insurance Act 2007 ); (ba) insurance provided as part of a health ‑ related business (as defined by section 131 ‑ 15 of that Act) that is conducted through a health benefits fund (as defined by section 131 ‑ 10 of that Act); (c) State insurance or Northern Territory insurance, including insurance entered into by: (i) a State or the Northern Territory; and (ii) some other insurer; as joint insurers; (d) a facility: (i) that is an approved RTGS system for the purposes of the Payment Systems and Netting Act 1998 ; or (ii) for the transmission and reconciliation of non ‑ cash payments (see subsection (6)), and the establishment of final positions, for settlement through an approved RTGS system within the meaning of the Payment Systems and Netting Act 1998 ; (e) a facility that is: (i) a designated payment system or special designated payment system (or both) for the purposes of the Payment Systems (Regulation) Act 1998 ; and (ii) declared by regulations made for the purposes of this paragraph not to be a financial product; (f) a facility for the exchange and settlement of non ‑ cash payments (see subsection (6)) between providers of non ‑ cash payment facilities; (g) a facility that is: (i) a financial market; or (ii) a clearing and settlement facility; or (iii) a payment system operated as part of a clearing and settlement facility; or (iv) a derivative trade repository; (h) so much of an arrangement as is not a derivative because of paragraph 761D(3)(a) of the Corporations Act; (i) an arrangement that is not a derivative because of paragraph 761D(3)(b) of the Corporations Act; (j) an arrangement that is not a derivative because of subsection 761D(4) of the Corporations Act; (k) any of the following: (i) an interest in something that is not a managed investment scheme because of paragraph (c), (e), (f), (k), (l) or (m) of the definition of managed investment scheme in section 9 of the Corporations Act; (ii) a legal or equitable right or interest in an interest covered by subparagraph (i); (iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i); (m) a deposit ‑ taking facility that is used for State banking; (n) equipment or infrastructure by which something else that is a financial product is provided; (o) a funeral benefit; (p) a facility, interest or other thing declared by regulations made for the purposes of this subsection not to be a financial product. (9) For the purpose of paragraphs (7)(d) and (e), contract of insurance includes: (a) a contract that would ordinarily be regarded as a contract of insurance even if some of its provisions are not by way of insurance; and (b) a contract that includes provisions of insurance in so far as those provisions are concerned, even if the contract would not ordinarily be regarded as a contract of insurance. (10) To avoid doubt, a funeral expenses facility is not a funeral benefit for the purposes of this Act. 12BAB Meaning of financial service When does a person provide a financial service ? (1) For the purposes of this Division, subject to paragraph (2)(b), a person provides a financial service if they: (a) provide financial product advice (see subsection (5)); or (b) deal in a financial product (see subsection (7)); or (c) make a market for a financial product (see subsection (11)); or (d) operate a registered scheme; or (e) provide a custodial or depository service (see subsection (12)); or (ea) provide a superannuation trustee service; or (eb) provide a claims handling and settling service; or (f) operate a financial market (see subsection (15)) or clearing and settlement facility (see subsection (17)); or (g) provide a service (not being the operation of a derivative trade repository) that is otherwise supplied in relation to a financial product (other than an Australian carbon credit unit or an eligible international emissions unit); or (ga) operate the business and conduct the affairs of a CCIV, and the person is the corporate director of the CCIV; or (h) engage in conduct of a kind prescribed in regulations made for the purposes of this paragraph. Note: Paragraph (ga) means persons other than the corporate director will not be treated as providing that financial service if they operate the business and conduct the affairs of the CCIV while: (a) acting as an agent of the CCIV, or as an agent or employee of the corporate director; or (b) taking steps to wind up a sub ‑ fund of the CCIV. (1AA) Without limiting subsection (1), for the purposes of this Division, a financial product is a financial service . (1A) Subject to paragraph (2)(b), the provision by a trustee company of a traditional trustee company service constitutes the provision, by the company, of a financial service for the purposes of this Division. Note: Trustee companies may also provide other kinds of financial service mentioned in subsection (1). (1B) The regulations may, in relation to a traditional trustee company service of a particular class, prescribe the person or persons to whom a service of that class is taken to be provided or supplied for the purposes of this Division. This subsection does not limit (and is not limited by) subsection (2). Meaning of provides a crowd ‑ funding service (1C) Subject to paragraph (2)(b), the provision by a person of a crowd ‑ funding service constitutes the provision, by the person, of a financial service for the purposes of this Division. (1D) For the purposes of this Division, the persons to whom, and time when, a crowd ‑ funding service is provided are as specified in subsections 766F(3) and (4) of the Corporations Act 2001 . (2) The regulations may set out: (a) the circumstances in which persons facilitating the provision of a financial service (for example, by publishing information) are taken also to provide that service; or (b) the circumstances in which persons are taken to provide, or are taken not to provide, a financial service. (4) For the purposes of this section, a person is not operating a registered scheme merely because: (a) they are acting as an agent or employee of another person; or (b) they are taking steps to wind up the scheme. Meaning of financial product advice (5) For the purposes of this section, financial product advice means a recommendation or a statement of opinion, or a report of either of those things, that: (a) is intended to influence a person or persons in making a decision in relation to a particular financial product or class of financial products, or an interest in a particular financial product or class of financial products; or (b) could reasonably be regarded as being intended to have such an influence; but does not include anything