Commonwealth: Australian Securities and Investments Commission Act 2001 (Cth)

Australian Securities and Investments Commission Act 2001 No. 51, 2001 Compilation No. 104 Compilation date: 21 February 2025 Includes amendments: Act No. 15, 2025 This compilation is in 2 volumes Volume 1: sections 1–93H Volume 2: sections 94–346 Endnotes Each volume has its own contents About this compilation This compilation This is a compilation of the Australian Securities and Investments Commission Act 2001 that shows the text of the law as amended and in force on 21 February 2025 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary Division 1—Objects 1 Objects Division 2—Citation 1A Short title Division 3—Commencement and application 2 Commencement 4 Application of this Act 4A Application of the Criminal Code Division 4—Interpretation 5 Interpretation 6 Giving information Part 2—Australian Securities and Investments Commission and consumer protection in relation to financial services Division 1—Australian Securities and Investments Commission 8 ASIC is a body corporate 8A ASIC's liabilities are Commonwealth liabilities 9 Membership 9A Application of the finance law 10 Chairperson and Deputy Chairpersons 10A Chairperson not subject to direction by ASIC on certain matters 11 Corporations legislation functions and powers and other functions and powers 12 Directions by Minister 12A Other functions and powers 12AA Cooperation with APRA Division 2—Unconscionable conduct and consumer protection in relation to financial services Subdivision A—Application 12AC Division extends to some conduct outside Australia 12AD Application of Division to Commonwealth and Commonwealth authorities 12AE Saving of other laws and remedies Subdivision B—Interpretation 12BA Interpretation 12BAA Definition of financial product 12BAB Meaning of financial service 12BB Misleading representations with respect to future matters 12BC Consumers 12BD Acquisition, supply and re‑supply 12BE Application of Division in relation to leases and licences of land and buildings 12BEA Asserting a right to payment Subdivision BA—Unfair contract terms 12BF Unfair terms of consumer contracts and small business contracts 12BG Meaning of unfair 12BH Examples of unfair terms 12BI Terms that define main subject matter of consumer contracts or small business contracts etc. are unaffected 12BK Standard form contracts 12BL Contracts to which this Subdivision does not apply 12BLA Replacement life insurance contracts to which this Subdivision does not apply 12BLB Renewed life insurance contracts to which this Subdivision does not apply 12BLC This Subdivision does not apply to certain contracts connected with financial markets 12BM Contraventions of this Subdivision etc. Subdivision C—Unconscionable conduct 12CA Unconscionable conduct within the meaning of the unwritten law of the States and Territories 12CB Unconscionable conduct in connection with financial services 12CC Matters the court may have regard to for the purposes of section 12CB Subdivision D—Consumer protection 12DA Misleading or deceptive conduct 12DB False or misleading representations 12DC False or misleading representations in relation to financial products that involve interests in land 12DD Cash price to be stated in certain circumstances 12DE Offering rebates, gifts, prizes etc. 12DF Certain misleading conduct in relation to financial services 12DG Bait advertising 12DH Referral selling 12DI Accepting payment without intending or being able to supply as ordered 12DJ Harassment and coercion 12DK Pyramid selling of financial products 12DL Unsolicited credit cards and debit cards 12DM Assertion of right to payment for unsolicited financial services etc. 12DMA Liability of recipient for unsolicited financial services etc. 12DMB Assertion of right to payment for unauthorised advertisements 12DMC Caps on commissions for add‑on risk products supplied in connection with motor vehicles 12DN Application of provisions of this Division to information providers Subdivision DA—Deferred sales for add‑on insurance products 12DO Meaning of add‑on insurance product 12DP Meaning of add‑on insurance deferral period and add‑on insurance pre‑deferral period 12DQ Prohibition on selling add‑on insurance products before end of add‑on insurance deferral period etc. 12DR Prohibition on offering add‑on insurance product during add‑on insurance deferral period 12DS Prohibition on offering add‑on insurance product—customer opt‑out 12DT Right of return and refund for add‑on insurance product sold in contravention of section 12DQ 12DU Exception for financial advisers 12DV Exception for product covered by product intervention order 12DW Exception for comprehensive motor vehicle insurance 12DX Exemption by regulations 12DY Exemption by ASIC 12DZ Effect of exemption 12DZA Contravention of conditions on exemption Subdivision E—Conditions and warranties in consumer transactions 12EA Conflict of laws 12EB Application of provisions not to be excluded or modified 12EC Limitation of liability for breach of certain conditions or warranties 12ED Warranties in relation to the supply of financial services Subdivision G—Enforcement and remedies 12GA Interpretation 12GB Offences against Subdivision D or DA 12GBA Declaration of contravention of civil penalty provision 12GBB Pecuniary penalty orders 12GBC Maximum pecuniary penalty 12GBCA Pecuniary penalty applicable 12GBCB Civil enforcement of pecuniary penalty order 12GBCC Relinquishing the benefit derived from engaging in conduct resulting in a pecuniary penalty order 12GBCD Civil enforcement of relinquishment order 12GBCE Meaning of benefit derived and detriment avoided because of a contravention of a civil penalty provision 12GBCF Civil evidence and procedure rules for declarations of contravention, pecuniary penalty orders and relinquishment orders 12GBCG Civil proceedings after criminal proceedings 12GBCH Criminal proceedings during civil proceedings 12GBCJ Criminal proceedings after civil proceedings 12GBCK Evidence given in civil proceedings not admissible in criminal proceedings 12GBCL Attempt and involvement in contravention treated in same way as actual contravention 12GBCM Continuing contraventions of civil penalty provisions 12GBCN State of mind 12GBCP Exceptions etc. to civil penalty provisions—burden of proof 12GBD Indemnification of officers 12GC Enforcement and recovery of certain fines 12GCA Preference must be given to compensate persons who suffer damage as a result of contravention 12GD Injunctions 12GF Actions for damages 12GFA Recovering commissions that exceed a cap under section 12DMC 12GG Finding in proceedings to be evidence 12GH Conduct by directors, employees or agents 12GI Defences 12GJ Jurisdiction of courts 12GK Transfer of matters 12GL Transfer of certain proceedings to Federal Circuit and Family Court of Australia (Division 1) 12GLA Non‑punitive orders 12GLB Punitive orders requiring adverse publicity 12GLC ASIC may issue a public warning notice 12GLD Order disqualifying a person from managing corporations 12GM Other orders 12GN Power of Court to prohibit payment or transfer of money or other property 12GNA Limit on liability for misleading or deceptive conduct 12GNB Orders to redress loss or damage suffered by non‑parties etc. 12GNC Kinds of orders that may be made to redress loss or damage suffered by non‑parties etc. 12GND Declarations 12GNE Orders made in favour of party to contract containing unfair term 12GNF Orders made on application of ASIC to prevent and remedy unfair contract terms 12GNG Interaction with other provisions 12GO Intervention by ASIC Subdivision GA—Proportionate liability for misleading and deceptive conduct 12GP Application of Subdivision 12GQ Certain concurrent wrongdoers not to have benefit of apportionment 12GR Proportionate liability for apportionable claims 12GS Defendant to notify plaintiff of concurrent wrongdoer of whom defendant is aware 12GT Contribution not recoverable from defendant 12GU Subsequent actions 12GV Joining non‑party concurrent wrongdoer in the action 12GW Application of Subdivision Subdivision GB—Infringement notices 12GX When an infringement notice may be given 12GXA Provisions subject to an infringement notice 12GXB Matters to be included in an infringement notice 12GXC Payment period 12GXD Extension of time to pay amount 12GXE Payment by instalments 12GXF Withdrawal of an infringement notice 12GXG Effect of payment of amount 12GXH Effect of this Subdivision Subdivision GC—Substantiation notices 12GY ASIC may require claims to be substantiated etc. 12GYA Extending periods for complying with substantiation notices 12GYB Compliance with substantiation notices 12GYC False or misleading information etc. Subdivision H—Miscellaneous 12HA Relationship of this Subdivision to Part 3 12HB Disclosure of documents by ASIC 12HC Prosecutions for offences against this Division etc. 12HD Jurisdiction of Court to make declarations and orders Part 3—Investigations and information‑gathering Division 1—Investigations 13 General powers of investigation 14 Minister may direct investigations 15 Investigation after report of receiver or liquidator 16 Interim report on investigation 17 Final report on investigation 18 Distribution of report Division 2—Examination of persons 19 Notice requiring appearance for examination 20 Proceedings at examination 21 Requirements made of examinee 22 Examination to take place in private 22A Proceedings at examination 23 Examinee's lawyer may attend 24 Record of examination 25 Giving to other persons copies of record 26 Copies given subject to conditions 27 Record to accompany report Division 3—Inspection of books and audit information‑gathering powers 28 When certain powers may be exercised 29 ASIC may inspect books without charge 30 Notice to produce books about affairs of body corporate or registered scheme 30A Notice to auditors concerning information and books 30B Notice to registered liquidators concerning information and books 31 Notice to produce books about financial products 32A Notice to produce books about financial services 33 Notice to produce documents in person's possession 34 ASIC may authorise persons to require production of books, giving of information etc. 37 Powers where books produced or seized 38 Powers where books not produced 39 Power to require person to identify property of body corporate 39A ASIC may give copy of book relating to registered scheme to another person 39B ASIC to notify foreign regulator's access to information or books 39C ASIC may give information and books in relation to Chapter 5 bodies corporate Division 3A—Extra application of Crimes Act search warrant provisions Subdivision A—Basic extra application 39D Extra application of Crimes Act search warrant provisions 39E Interpretation of modifications Subdivision B—Modifications 39F Major modifications—evidential material 39G Major modifications—who may apply for a warrant etc. 39H Major modifications—purposes for which things may be used and shared 39I Minor modifications Division 4—Requirements to disclose information 40 When certain powers may be exercised 41 Acquisitions and disposals of financial products 42 Acquisitions and disposals of trust property by trustee companies 43 Exercise of certain powers of ASIC in relation to financial products 44 Exercise of certain powers of ASIC in relation to trust property acquired or disposed of by trustee company 47 Disclosures to take place in private 48 Lawyer of person making disclosure may attend Division 5—Proceedings after an investigation 49 ASIC may cause prosecution to be begun 50 ASIC may cause civil proceeding to be begun Division 5A—Audit deficiency notifications and reports 50A Application 50B Notice of audit deficiency 50C Audit deficiency report 50D Publication of report 50E Consultation before publication Division 6—Hearings 51 Power to hold hearings 52 General discretion to hold hearing in public or private 53 Request by person appearing at hearing that it take place in public 54 Certain hearings to take place in private 55 ASIC may restrict publication of certain material 56 Who may be present when hearing takes place in private 57 Involvement of person entitled to appear at hearing 58 Power to summon witnesses and take evidence 59 Proceedings at hearings 59A Proceedings at hearings 60 ASIC to take account of evidence and submissions 61 Reference to Court of question of law arising at hearing 62 Protection of members etc. Division 7—Offences 63 Non‑compliance with requirements made under this Part 64 False information 65 Obstructing person acting under this Part 66 Contempt of ASIC 67 Concealing books relevant to investigation 68 Self‑incrimination 69 Legal professional privilege 70 Powers of Court where non‑compliance with Part Division 8—ASIC's powers where non‑compliance with Part 71 Orders by ASIC 72 Orders in relation to securities of a body corporate 73 Orders in relation to financial products and trust property generally 75 Orders under this Division Division 9—Evidentiary use of certain material 76 Statements made at an examination: proceedings against examinee 77 Statements made at an examination: other proceedings 78 Weight of evidence admitted under section 77 79 Objection to admission of statements made at examination 80 Copies of, or extracts from, certain books 81 Report under Division 1 82 Exceptions to admissibility of report 83 Material otherwise admissible Division 10—Miscellaneous 84 Requirement made of a body corporate 85 Evidence of authority 86 Giving documents to natural persons 87 Place and time for production of books 88 Application of Crimes Act and Evidence Act 89 Allowances and expenses 90 Expenses of investigation under Division 1 91 Recovery of expenses of investigation 92 Compliance with Part 93 Effect of Part 93AA Enforcement of undertakings given to ASIC Part 3A—Enforceable undertakings 93A Undertakings—registered schemes 93B Undertakings—notified foreign passport funds 93BA Undertakings by corporate director of a CCIV Part 3B—Criminal penalties 93C Penalty for committing an offence 93D Penalty applicable to an offence committed by an individual 93E Penalty applicable to an offence committed by a body corporate 93F Meaning of benefit derived and detriment avoided because of an offence 93G Where is the penalty for an offence specified? 93H If no penalty is specified An Act to provide for the Australian Securities and Investments Commission and certain other bodies, and for other purposes Part 1—Preliminary Division 1—Objects 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. Division 2—Citation 1A Short title This Act may be cited as the Australian Securities and Investments Commission Act 2001. Division 3—Commencement and application 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. Division 4—Interpretation 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. Part 2—Australian Securities and Investments Commission and consumer protection in relation to financial services Division 1—Australian Securities and Investments Commission 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. Division 2—Unconscionable conduct and consumer protection in relation to financial services Subdivision A—Application 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. Subdivision B—Interpretation 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 financ