Financial Services Reform Amendment Act 2003 (Cth)

Financial Services Reform Amendment Act 2003 No. 141, 2003 An Act to amend the law relating to financial services and markets, and for other purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendment of the Corporations Act 2001 relating to unsolicited offers to purchase financial products off‑market Schedule 2—Other amendments of the Corporations Act 2001 Schedule 3—Amendment of other Acts Australian Securities and Investments Commission Act 2001 Income Tax Assessment Act 1997 Retirement Savings Accounts Act 1997 Schedule 4—Transitional provisions Corporations Act 2001 Financial Services Reform Amendment Act 2003 No. 141, 2003 An Act to amend the law relating to financial services and markets, and for other purposes [Assented to 17 December 2003] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Financial Services Reform Amendment Act 2003. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent 17 December 2003 2. Schedule 1 The 28th day after this Act receives the Royal Assent 14 January 2004 3. Schedule 2, items 1 to 46C The day after this Act receives the Royal Assent 18 December 2003 3A. Schedule 2, items 46D, 46E and 46F 1 July 2004 1 July 2004 3B. Schedule 2, items 47 to 72 The day after this Act receives the Royal Assent 18 December 2003 3C. Schedule 2, item 72A 1 July 2004 1 July 2004 3D. Schedule 2, items 73 to 87 The day after this Act receives the Royal Assent 18 December 2003 4. Schedule 2, item 88 1 July 2004 1 July 2004 4A. Schedule 2, item 88A 1 July 2004 1 July 2004 5. Schedule 2, items 89 to 113 The day after this Act receives the Royal Assent 18 December 2003 5A. Schedule 3, items 1A to 1E The day after this Act receives the Royal Assent 18 December 2003 6. Schedule 3, item 1 The later of: 18 December 2003 (a) the commencement of item 25 of Schedule 2 to this Act; and (b) immediately after the commencement of item 29 of Schedule 1 to the Taxation Laws Amendment Act (No. 5) 2003 7. Schedule 3, item 2 The day after this Act receives the Royal Assent 18 December 2003 8. Schedule 4 The day after this Act receives the Royal Assent 18 December 2003 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Corporations Act 2001 relating to unsolicited offers to purchase financial products off‑market 1 Section 760B (table item 9, column 3) Omit "and sale", substitute ", sale and purchase". 2 Part 7.9 of Chapter 7 (heading) Repeal the heading, substitute: Part 7.9—Financial product disclosure and other provisions relating to issue, sale and purchase of financial products 3 Subsection 1010A(1) Omit "Division 6", substitute "Divisions 5A and 6". 4 Subsection 1010A(1) Omit "that Division", substitute "those Divisions". 5 Subsection 1010A(2) Omit "Division 6", substitute "Divisions 5A and 6". 6 Subsection 1010B(1) Omit "Nothing in this Part", substitute "Apart from Division 5A, nothing in this Part". 7 After Division 5 of Part 7.9 Insert: Division 5A—Unsolicited offers to purchase financial products off‑market 1019C Definitions In this Division: date of offer has the meaning given by subsection 1019I(1). offeree, in relation to an offer to which this Division applies, has the meaning given by subsection 1019D(1). offeror, in relation to an offer to which this Division applies, has the meaning given by subsection 1019D(1). offer to which this Division applies means an offer to which this Division applies because of section 1019D. 1019D Offers to which this Division applies (1) This Division applies to an offer in relation to which the following paragraphs are satisfied: (a) the offer is an unsolicited offer to purchase a financial product made by a person (the offeror) to another person (the offeree); (b) the offer is made otherwise than on a licensed market; (c) one or more of the following apply: (i) the offer is made in the course of a business of purchasing financial products; (ii) the offeror was not in a personal or business relationship with the offeree before the making of the offer; (iii) the offer is made in circumstances specified in regulations made for the purposes of this subparagraph; (d) the offer is not: (i) made to the issuer of the financial products; or (ii) to buy back shares under a buy‑back authorised by section 257A; or (iii) made under a compromise or arrangement approved at a meeting held as a result of an order under subsection 411(1) or (1A); or (iv) to acquire securities under an off‑market bid; or (v) to compulsorily acquire or buy out securities under Chapter 6A; or (vi) to acquire shares from a dissenting shareholder under section 414; or (vii) made in relation to particular financial products that are specified in regulations made for the purposes of this subparagraph; or (viii) made in circumstances that are specified in regulations made for the purposes of this subparagraph; (e) the offer is made or received in this jurisdiction. (2) The regulations may clarify: (a) when an offer is, or is not, made in the course of a business of purchasing financial products; or (b) when an offeror was, or was not, in a previous personal or business relationship with an offeree. Regulations made for the purposes of this subsection have effect despite anything else in this section. 1019E How offers are to be made (1) An offer to which this Division applies must not be made otherwise than by sending an offer document in printed or electronic form to the offeree in accordance with the following requirements: (a) the document must be sent to an address of the offeree (which may be an electronic address); (b) either the envelope or the container in which it is sent, or the message that accompanies it, must be addressed to the offeree. (2) The offer document must be sent to the offeree as soon as practicable after the date of offer. 1019F Prohibition on inviting offers to sell A person must not invite another person to make an offer to sell a financial product in circumstances in which, if the invitation were instead an offer to purchase the financial product, that offer would be an offer to which this Division applies. 1019G Duration and withdrawal of offers (1) An offer to which this Division applies cannot remain open more than 12 months after the date of offer. (2) The offer may be withdrawn by the offeror at any time, but not within 1 month of the date of offer. (3) The offer may only be withdrawn by the offeror by sending a withdrawal document in printed or electronic form to the offeree in accordance with paragraphs 1019E(1)(a) and (b). The withdrawal document must identify the offeror and be dated. (4) A purported withdrawal of the offer contrary to subsection (2) or (3) is ineffective. 1019H Terms of offer cannot be varied (1) The terms of an offer to which this Division applies, as set out in the offer document, cannot be varied. (2) A purported variation of the terms of the offer is ineffective. (3) This section does not: (a) affect the offeror's obligation under section 1019J to update the market value of the financial product to which the offer relates; or (b) prevent the offeror from withdrawing the offer in accordance with section 1019G or paragraph 1019J(2)(a) and making another offer on different terms; or (c) prevent the offeree from making a counter‑offer on different terms. 1019I Contents of offer document (1) The offer document by which an offer to which this Division applies is made must identify the offeror and be dated (this date is the date of offer). (2) The offer document must also contain the following: (a) the price at which the offeror wishes to purchase the financial products; (b) if the financial product is able to be traded on a licensed market and there is a market value for the product as traded on that market—the market value of the product as at the date of offer; (c) if paragraph (b) does not apply—a fair estimate of the value of the product as at the date of offer, and an explanation of the basis on which that estimate was made; (d) the period during which the offer remains open (which must be consistent with subsection 1019G(1)); (e) a statement to the effect that the offer may be withdrawn by sending a withdrawal document to the offeree, but generally not within 1 month of the date of offer; (f) any other information specified in regulations made for the purposes of this paragraph. (3) The regulations may clarify: (a) the manner in which a fair estimate of the value of a financial product (see paragraph (2)(c)) is to be worked out; and (b) the level of detail required in the explanation of the basis on which the estimate was made. Regulations made for the purposes of this subsection have effect despite anything else in this section. (4) The offer document must be worded and presented in a clear, concise and effective manner. 1019J Obligation to update market value (1) This section applies if: (a) the offer document by which an offer to which this Division applies is made states the market value of the financial product to which the offer relates as at the date of the offer; and (b) while the offer remains open, there is an increase or decrease in the market value of the product when compared to: (i) unless subparagraph (ii) applies—the market value (the currently stated value) stated as mentioned in paragraph (a); or (ii) if this section has previously applied in relation to the offer and one or more supplementary offer documents have been sent to the offeree—the market value (the currently stated value) stated as mentioned in paragraph (3)(c) in the supplementary offer document most recently sent to the offeree; and (c) the increase or decrease, expressed as a percentage of the currently stated value, exceeds the percentage specified in the regulations for the purposes of this paragraph. (2) The offeror must, within 10 business days of this section applying because of a particular increase or decrease in value: (a) withdraw the offer by sending a withdrawal document, in printed or electronic form, to the offeree in accordance with paragraphs 1019E(1)(a) and (b): (i) that identifies the offeror and that is dated; and (ii) that contains a statement to the effect that the offer is withdrawn because of a change in the market value of the product, and that withdrawal for this reason is permitted even within 1 month of the date of offer; or (b) send a supplementary offer document (see subsection (3)) in printed or electronic form to the offeree in accordance with paragraphs 1019E(1)(a) and (b). Nothing in section 1019G affects the effectiveness of a withdrawal of the offer under paragraph (a) of this subsection. (3) A supplementary offer document must: (a) identify the offer to which it relates; and (b) be dated; and (c) state the market value of the financial product to which the offer relates as at that date; and (d) state the price that was stated in the offer document as required by paragraph 1019I(2)(a), and contain a statement to the effect that this is still the price at which the offeror wishes to purchase the product and that the terms of the offer remain unchanged; and (e) contain a statement to the effect that the document has been prepared because the market value of the product has changed. (4) A supplementary offer document must be worded and presented in a clear, concise and effective manner. (5) In this section, a reference to stating a market value of a financial product includes a reference to purporting to state the market value of the product. 1019K Rights if requirements of Division not complied with First situation covered by this section—offers to which this Division applies (1) This section applies if, in relation to an offer to which this Division applies, the offeree (the seller) accepts the offer and enters into a contract for the sale of the financial product to the offeror (the buyer), and one or more of the following paragraphs applies: (a) section 1019E was not complied with in relation to the offer; (b) the offer was accepted after the period referred to in subsection 1019G(1); (c) the offeror gave the offeree an offer document and either: (i) the offer document did not comply with section 1019I; or (ii) there was a misleading or deceptive statement in the offer document; (d) in a situation to which section 1019J applies, either: (i) subsection 1019J(2) was not complied with; or (ii) subsection 1019J(2) was complied with, but the offeree did not receive the withdrawal document, or the supplementary offer document, as the case requires, until after the offeree had accepted the offer; (e) in a situation to which section 1019J applies, the offeror gave the offeree a supplementary offer document and either: (i) the supplementary offer document did not comply with subsection 1019J(3); or (ii) there was a misleading or deceptive statement in the supplementary offer document. Second situation covered by this section—invitations prohibited by section 1019F (2) This section applies if, in response to an invitation prohibited by section 1019F, a person (the seller) makes an offer to sell a financial product to the person who made the invitation (the buyer), and that person accepts the offer and enters into a contract for the purchase of that financial product from the seller. Seller's right to refuse to transfer, or to seek the return of, the financial product (3) The seller has: (a) the right to refuse to transfer the financial product to the buyer; or (b) if the seller has already transferred the financial product to the buyer—the right to have the financial product returned to the seller, if the buyer still holds the product. The seller's right under paragraph (a) or (b) is conditional on the seller repaying any money that has been paid to the seller for the purchase of the financial product. How the seller's right is to be exercised (4) The seller's right under subsection (3) must be exercised by notifying the buyer in one of the following ways: (a) in writing; (b) electronically; (c) in any other way specified in regulations made for the purposes of this paragraph. Also, if the regulations require the seller to comply with other requirements in order to exercise that right, those other requirements must be complied with. (5) The seller's right under subsection (3) can only be exercised during the period of 30 days starting on the day the contract was entered into. Effect of exercise of seller's right (6) On the exercise of the seller's right under subsection (3), the contract referred to in subsection (1) or (2) is, by force of this section, terminated from that time without penalty to the seller. Regulations may provide for certain matters (7) The regulations may provide for consequences and obligations (in addition to those provided for by subsection (6)) to apply if the seller's right under subsection (3) is exercised. (8) The regulations may provide that, in specified circumstances, the amount to be repaid as mentioned in subsection (3) is to be increased or reduced in accordance with the regulations. 8 Paragraph 1020E(7)(a) After "paragraph (b)", insert "or (c)". 9 At the end of subsection 1020E(7) Add: ; or (c) if subparagraph (1)(a)(i) applies and the disclosure document or statement is an offer document of a kind referred to in section 1019E or a supplementary offer document of a kind referred to in section 1019J—the offeror referred to in subsection 1019D(1). 10 At the end of Subdivision A of Division 7 of Part 7.9 Add: 1021P Offences relating to offers to which Division 5A applies Failure to comply with requirements of section 1019E relating to how offers are made (1) A person commits an offence if: (a) the person makes an offer; and (b) the offer is an offer to which Division 5A applies (see section 1019D); and (c) in making the offer, the person fails to comply with a requirement of section 1019E. Contravening section 1019F by inviting offers to sell (2) A person commits an offence if: (a) the person invites another person to make an offer to sell a financial product; and (b) in making the invitation, the person contravenes section 1019F. Failure to comply with requirements of section 1019G relating to duration and withdrawal of offers (3) A person commits an offence if: (a) the person makes an offer; and (b) the offer is an offer to which Division 5A applies (see section 1019D); and (c) either: (i) the offer remains open for longer than is permitted by subsection 1019G(1); or (ii) in purporting to withdraw the offer, the person fails to comply with a requirement of subsection 1019G(2) or (3). Failure to comply with requirements of section 1019I relating to price or value (4) A person commits an offence if: (a) the person makes an offer; and (b) the offer is an offer to which Division 5A applies (see section 1019D); and (c) the person gives the offeree an offer document; and (d) either: (i) the offer document does not comply with paragraph 1019I(2)(a), (b) or (c); or (ii) material of a kind referred to in paragraph 1019I(2)(a), (b) or (c) that is included in the offer document is misleading or deceptive. Failure to comply with other requirements of section 1019I (5) A person commits an offence if: (a) the person makes an offer; and (b) the offer is an offer to which Division 5A applies (see section 1019D); and (c) the person gives the offeree an offer document; and (d) either: (i) the offer document does not comply with subsection 1019I(1), or paragraph 1019I(2)(d), (e) or (f); or (ii) material of a kind referred to in subsection 1019I(1), or paragraph 1019I(2)(d), (e) or (f), that is included in the offer document is misleading or deceptive. Failure to comply with requirements of section 1019J (6) A person commits an offence if: (a) the person makes an offer; and (b) the offer is an offer to which Division 5A applies (see section 1019D); and (c) section 1019J applies because of an increase or decrease in the market value of the financial product to which the offer relates; and (d) one of the following subparagraphs applies: (i) the person fails to comply with subsection 1019J(2) in relation to that increase or decrease; or (ii) the person gives the offeree a supplementary offer document in relation to that increase or decrease, but that document does not comply with subsection 1019J(3); or (iii) the person gives the offeree a supplementary offer document in relation to that increase or decrease, but material of a kind referred to in subsection 1019J(3) that is included in that document is misleading or deceptive. 11 Subsection 1022A(1) (at the end of the definition of defective) Add: ; or (e) if it is an offer document of a kind referred to in section 1019E—there is an omission from the document of material required by section 1019I; or (f) if it is a supplementary offer document of a kind referred to in section 1019J—there is an omission from the document of material required by subsection 1019J(3). 12 Subsection 1022A(1) (at the end of the definition of disclosure document or statement) Add: ; or (d) an offer document of a kind referred to in section 1019E; or (e) a supplementary offer document of a kind referred to in section 1019J. 13 After paragraph 1022B(1)(a) Insert: (aa) a person makes an offer to which Division 5A applies (see section 1019D) to another person (the client) otherwise than by sending the client an offer document in accordance with section 1019E; or (ab) a person makes an invitation prohibited by section 1019F to another person (the client); or (ac) a person: (i) is required by subsection 1019J(2), in relation to an offer made to another person (the client), to send the client a withdrawal document or a supplementary offer document; and (ii) does not send (in accordance with paragraphs 1019E(1)(a) and (b)) the client anything purporting to be either of those things by the time they are required to do so; or 14 Subparagraph 1022B(1)(c)(i) After "statement" (first occurring), insert "(other than an offer document of a kind referred to in section 1019E or a supplementary offer document of a kind referred to in section 1019J)". 15 After subparagraph 1022B(1)(c)(i) Insert: (ia) makes an offer to which Division 5A applies (see section 1019D) by sending another person (the client) an offer document in accordance with section 1019E, but that offer document is defective; or (ib) in a situation to which section 1019J applies, sends a person (the client) a supplementary offer document in accordance with that section but that supplementary offer document is defective; or 16 After paragraph 1022B(2)(a) Insert: (aa) if paragraph (1)(aa) applies—because the client was not sent an offer document in accordance with section 1019E; or (ab) if paragraph (1)(ab) applies—because the client received an invitation prohibited by section 1019F rather than being sent an offer document in accordance with section 1019E; or (ac) if paragraph (1)(ac) applies—because the client was not sent a withdrawal document or a supplementary offer document as required by subsection 1019J(2); or 17 Paragraph 1022B(2)(c) After "given", insert "or sent". 18 Subsection 1022B(2) After "paragraph (a),", insert "(aa), (ab), (ac),". 19 Paragraph 1022B(3)(a) After "paragraph (1)(a)", insert ", (aa), (ab), (ac)". 20 Paragraph 1022B(3)(b) After "paragraph (1)(c)", insert "(other than subparagraph (1)(c)(ia) or (ib))". 21 After paragraph 1022B(3)(b) Insert: (ba) if subparagraph (1)(c)(ia) or (ib) applies—the person who made the offer; or 22 Paragraph 1022B(5)(a) After "paragraph (1)(c)", insert "(other than subparagraph (1)(c)(ia) or (ib))". 23 After paragraph 1438(2)(e) Insert: (ea) Division 5A (unsolicited offers to purchase financial products off‑market); 24 Schedule 3 (after table item 309A) Insert: 309AA Subsection 1021P(1) 100 penalty units or imprisonment for 2 years, or both. 309AB Subsection 1021P(2) 100 penalty units or imprisonment for 2 years, or both. 309AC Subsection 1021P(3) 50 penalty units. 309AD Subsection 1021P(4) 100 penalty units or imprisonment for 2 years, or both. 309AE Subsection 1021P(5) 50 penalty units. 309AF Subsection 1021P(6) 50 penalty units. Schedule 2—Other amendments of the Corporations Act 2001 1A Section 9 Insert: body regulated by APRA has the meaning given by subsection 3(2) of the Australian Prudential Regulation Authority Act 1998. 1 Section 9 (definition of declared professional body) Repeal the definition. 2 Section 9 (both definitions of dispose) Repeal the definitions, substitute: dispose has a meaning affected by the following paragraphs: (a) when used in relation to financial products in a provision outside Chapter 7, otherwise than in a situation to which paragraph (b) applies, dispose has the same meaning as it has in Chapter 7; (b) for the purposes of Chapter 6, a person who has a relevant interest in securities disposes of the securities if, and only if, they cease to have a relevant interest in the securities. 3 Section 9 (definition of licence) Repeal the definition. 4 Section 9 (definition of licensee) Repeal the definition. 4A Section 9 (paragraph (b) of the definition of professional investor) Repeal the paragraph, substitute: (b) the person is a body regulated by APRA, other than a trustee of any of the following (within the meaning of the Superannuation Industry (Supervision) Act 1993): (i) a superannuation fund; (ii) an approved deposit fund; (iii) a pooled superannuation trust; (iv) a public sector superannuation scheme; 5 Section 9 (definition of responsible officer) Omit "a licence", substitute "an Australian financial services licence". 6 Section 761A (subparagraph (c)(ii) of the definition of basic deposit product) Omit "2 years", substitute "5 years". 7 Section 761A (paragraph (d) of the definition of basic deposit product) Before "funds", insert "unless subparagraph (c)(ii) applies and the period referred to in that subparagraph expires on or before the end of the period of 2 years starting on the day on which funds were first deposited in the facility—". 7A Section 761A (definition of body regulated by APRA) Repeal the definition. 8 Section 761A (definition of declared professional body) Repeal the definition. 9 Section 761A Insert: employer‑sponsor has the same meaning as in the Superannuation Industry (Supervision) Act 1993. 9A Section 761A (definition of execution‑related telephone advice) Repeal the definition. 9B Section 761A Insert: further market‑related advice means advice to which subsection 946B(1) applies. 10 Section 761A Insert: self‑managed superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993. 11 Section 761A Insert: superannuation entity has the same meaning as in the Superannuation Industry (Supervision) Act 1993. 12 After paragraph 761E(3A)(a) Insert: (aa) an employer of the client making a further contribution, for the benefit of the client, to a superannuation fund of which the client is already a member; 12A After subsection 764A(1) Insert: (1A) If a single contract of insurance provides 2 or more kinds of cover, paragraph (1)(d) applies separately in relation to that contract, in relation to each of those kinds of cover, as if the contract only provided that kind of cover. Note: Because of this subsection (including as it is affected by subsection (1B)), a single contract of insurance may constitute 2 or more separate general insurance products. (1B) If a contract of insurance provides a kind of cover in relation to 2 or more kinds of asset, subsection (1A) applies to the contract, in relation to each of those kinds of asset, as if the cover provided by the contract in relation to that kind of asset constituted a separate kind of cover. 12B Subsection 764A(2) After "paragraphs (1)(d), (e) and (f)", insert "and subsections (1A) and (1B)". 13 Subsection 766B(1) Omit all the words from and including "However". 13A After subsection 766B(1) Insert: (1A) However, subject to subsection (1B), the provision or giving of an exempt document or statement does not constitute the provision of financial product advice. (1B) Subsection (1A) does not apply for the purpose of determining whether a recommendation or statement of opinion made by an outside expert, or a report of such a recommendation or statement of opinion, that is included in an exempt document or statement is financial product advice provided by the outside expert. 13B Subsection 766B(9) Insert: outside expert, in relation to an exempt document or statement, means an expert who is not: (a) the person by whom, or on whose behalf, the exempt document or statement was prepared; or (b) an employee or director of that person. 14 Subsection 766C(7) Omit "not to be", substitute "to be, or not to be,". 15 At the end of subsection 766C(7) Add "Regulations made for the purposes of this subsection have effect despite anything else in this section.". 16 At the end of paragraph 766E(3)(c) Add "by the trustees of that fund or trust". 17 After paragraph 766E(3)(c) Insert: (ca) the operation of a statutory fund by a life company (within the meaning of the Life Insurance Act 1995); 18 Subsection 854B(2) Repeal the subsection. 25 Paragraph 911A(2)(h) Repeal the paragraph, substitute: (h) all of the following apply: (i) the person is regulated by an overseas regulatory authority; (ii) the provision of the service by the person is covered by an exemption specified by ASIC in writing under this subparagraph and published in the Gazette; and (iii) the service is provided only to wholesale clients; 26 Paragraph 911A(2)(j) Omit "(within the meaning of the Superannuation Industry (Supervision) Act 1993)". 27 Section 911A(5) After "or an exemption", insert "under subparagraph (2)(h)(ii) or". 28 Paragraph 911A(5)(b) After "an exemption", insert "under subparagraph (2)(h)(ii) or". 29 Paragraph 911C(d) Omit "or" (last occurring). 30 Paragraph 911C(e) Repeal the paragraph. 31 Paragraph 911C(f) Repeal the paragraph. 32 At the end of subsection 912C(1A) Add: ; and (d) may require a statement containing information to be provided on a periodic basis, or each time a particular event or circumstance occurs, without ASIC having to give a further written notice. 33 Subsection 912C(2) Omit "such a statement", substitute "a statement, or each statement in a class of statements, under subsection (1)". 34 After section 912C Insert: 912CA Regulations may require information to be provided The regulations may require a financial services licensee, or each financial services licensee in a class of financial services licensees, to provide ASIC with specified information about: (a) the financial services provided by the licensee or its representatives; or (b) the financial services business carried on by the licensee. 35 Subsection 912D(1) Repeal the subsection (including the note), substitute: (1) If: (a) a financial services licensee breaches, or is likely to breach: (i) any of the obligations under section 912A or 912B, other than the obligation under paragraph 912A(1)(c); or (ii) the obligation under paragraph 912A(1)(c), so