7.6.02AG

Modification of section 911A of the Act

Current

For paragraph 926B(1)(c) of the Act, Part 7.6 of the Act applies as if section 911A of the Act were modified by inserting after subsection 911A(2) the following subsections:

“(2A) Also, a person (person 1) is exempt from the requirement to hold an Australian financial services licence for a financial service they provide to a person (person 2) in the following circumstances:

(a)

person 1 is not in this jurisdiction;

(b)

person 2 is an Australian citizen or is resident in Australia;

(c)

the service is provided from outside this jurisdiction;

(d)

person 1 does not engage in conduct that is:

(i)

intended to induce people in this jurisdiction to use the service; or

(ii)

likely to have that effect.

(2B)

Also, a person (person 1) is exempt from the requirement to hold an Australian financial services licence for a financial service they provide to a person (person 2) in the following circumstances:

(a)

person 1 is not in this jurisdiction;

(b)

person 1 believes on reasonable grounds that person 2 is not in this jurisdiction;

(c)

person 1 is a participant in a financial market in this jurisdiction that is licensed under subsection 795B(2) of the Act;

(d)

the service relates to a financial product traded on the licensed market.

(2C)

(a)

person 1 is not in this jurisdiction;

(b)

person 2 is:

(i)

the holder of an Australian financial services licence; or

(ii)

exempt from the requirement to hold an Australian financial services licence under paragraph 911A(2)(h);

(c)

person 2 is not, in relation to the service:

(i)

acting as a trustee; or

(ii)

acting as a responsible entity of a registered scheme; or

(iia)

acting as a corporate director of a CCIV; or

(iii)

otherwise acting on someone else’s behalf.

(2D)

(a)

person 1 is not in this jurisdiction;

(aa)

person 1 is not a notified foreign passport fund or the operator of a notified foreign passport fund;

(b)

person 2 is in this jurisdiction;

(c)

the service relates to a financial product:

(i)

issued by person 1 following an application by, or inquiry from, person 2; or

(ii)

issued by person 1 and acquired by person 2 when person 2 was not in this jurisdiction; or

(iii)

that supplements a financial product mentioned in subparagraphs (i) or (ii); or

(iv)

that is of the same kind as, and is issued in substitution for, a financial product mentioned in subparagraphs (i) or (ii);

(d)

person 1 does not actively solicit persons in this jurisdiction in relation to the financial products mentioned in subparagraphs (c)(i) to (iv);

(e)

paragraph (d) does not preclude person 1 from contacting person 2 in relation to the financial products mentioned in subparagraphs (c)(i) to (iv) after they have been acquired by person 2.

Note 1:

For subparagraph (c)(iii), an example of this kind of financial product includes a non‑cash payment facility (such as a cheque facility) that is added to an existing transaction or investment account.

Note 2:

For subparagraph (c)(iv), examples of this kind of financial product include:

(a)

a transaction or investment account that is replaced by another transaction or investment account; or

(b)

the renewal of an insurance policy.

(2E)

(a)

person 1 is not in this jurisdiction;

(b)

person 2 is a professional investor;

(c)

the service consists of any or all of the following:

(i)

dealing in derivatives, foreign exchange contracts, carbon units, Australian carbon credit units or eligible international emissions units;

(ii)

providing advice on derivatives, foreign exchange contracts, carbon units, Australian carbon credit units or eligible international emissions units;

(iii)

making a market in derivatives, foreign exchange contracts, carbon units, Australian carbon credit units or eligible international emissions units.

(2F)

Also, a person is exempt from the requirement to hold an Australian financial services licence for a financial service that the person provides by bidding at an auction conducted in accordance with a legislative instrument made for subsection 113(1) of the Clean Energy Act 2011, if the bidding is:

(a)

on the person’s own behalf; or

(b)

for a related body corporate of the person; or

(c)

for an associated entity of the person.”

This Act’s bill:Explanatory statement

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