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Tuesday, 2 April 2019
Page: 14505


Mr ROBERT (FaddenAssistant Treasurer) (18:03): I present a supplementary explanatory memorandum to the bill. I ask leave of the House to move government amendments (1) to (9), as circulated, together.

Leave granted.

Mr ROBERT: I move government amendments (1) to (9), as circulated, together:

(1)      Schedule 1, item 5, page 5(afterline6), after the definition of excludeddealingin subsection 994A(1), insert:

financial product has the meaning given by subsection 994AA(1).

(2)      Schedule 1, item 5, page 5, at the end of the definition of regulatedsalein subsection 994A(1), add:

   ; or (c)   made in circumstances prescribed by regulations made for the purposes of this paragraph.

(3)      Schedule 1, item 5, page 6(afterline32), after section 994A, insert:

994AA Extended operation of this Part in relation to ASIC Act financial products

   (1)   In this Part, financialproduct means each of the following:

   (a)   a financial product (within the meaning of this Chapter) (see section 761A);

   (b)   a financial product (within the meaning of Division 2 of Part 2 of the ASIC Act), other than a financial product covered by paragraph (a).

Note:   Whether a target market determination is required to be made in relation to financial products covered by this extended definition is determined under section 994B, including any regulations made for the purposes of paragraph 994B(3)(f).

   (2)   In determining the meaning of a term used in a provision of this Part (other than this section), treat a reference in this Act to a financial product as being a reference to a financial product within the meaning of subsection (1) of this section.

(4)      Schedule 1, item 5, page 7 (after line 10), after paragraph 994B(1)(b), insert:

   (ba)   the product is covered by paragraph 994AA(1)(b) (about the extended operation of this Part) and:

   (i)   the person issues the product to another person as a retail client; or

   (ii)   the person sells the product under a regulated sale; or

(5)      Schedule 1, item 5, page 7, line 15, omit "or (b)", substitute ",(b)or(ba)".

(6)      Schedule 1, item 5, page 25 (line 7), after "section", insert "994B,".

(7)      Schedule 1, item 5, page 26 (after line 5), at the end of Division 6, add:

994P Orders to redress loss or damage suffered by non-party consumers etc.

Orders

   (1)   If:

   (a)   a person engaged in conduct (the contraveningconduct) in contravention of section 994B, 994C or 994D or subsection 994E(1) or (3); and

   (b)   the contravening conduct caused, or is likely to cause, a class of persons to suffer loss or damage; and

   (c)   the class includes persons (non-party consumers) who have not been a party to proceedings under this Act in relation to the contravening conduct;

   the Court may, on the application of ASIC, make such order or orders (other than an award of damages) as the Court thinks appropriate against a person referred to in subsection (2) of this section.

Note:   The orders that the Court may make include all or any of the orders set out in section 994Q.

   (2)   An order under subsection (1) may be made against the person who engaged in the contravening conduct, or a person involved in that conduct.

   (3)   The Court must not make an order under subsection (1) unless the Court considers that the order will:

   (a)   redress, in whole or in part, the loss or damage suffered by the non-party consumers in relation to the contravening conduct; or

   (b)   prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-party consumers in relation to the contravening conduct.

Application for orders

   (4)   An application may be made under subsection (1) even if a proceeding in relation to the contravening conduct has not been instituted.

   (5)   An application under subsection (1) may be made at any time within 6 years after the day on which the cause of action that relates to the contravening conduct accrues.

Determining whether to make an order

   (6)   In determining whether to make an order under subsection (1) against a person referred to in subsection (2), the Court may have regard to the conduct of the person, and of the non-party consumers in relation to the contravening conduct, since the contravention occurred.

   (7)   In determining whether to make an order under subsection (1), the Court need not make a finding about either of the following matters:

   (a)   which persons are non-party consumers in relation to the contravening conduct;

   (b)   the nature of the loss or damage suffered, or likely to be suffered, by such persons.

When a non-party consumer is bound by an order etc.

   (8)   If:

   (a)   an order is made under subsection (1) against a person; and

   (b)   the loss or damage suffered, or likely to be suffered, by a non-party consumer in relation to the contravening conduct to which the order relates has been redressed, prevented or reduced in accordance with the order; and

   (c)   the non-party consumer has accepted the redress, prevention or reduction;

then:

   (d)   the non-party consumer is bound by the order; and

   (e)   any other order made under subsection (1) that relates to that loss or damage has no effect in relation to the non-party consumer; and

   (f)   despite any other provision of this Act or any other law of the Commonwealth, or a State or Territory, no claim, action or demand may be made or taken against the person by the non-party consumer in relation to that loss or damage.

994Q Kinds of orders that may be made to redress loss or damage suffered by non-party consumers etc.

      Without limiting subsection 994P(1), the orders that the Court may make under that subsection against a person (the respondent) include all or any of the following:

   (a)   an order declaring the whole or any part of a contract made between the respondent and a non-party consumer referred to in that subsection, or a collateral arrangement relating to such a contract:

   (i)   to be void; and

   (ii)   if the Court thinks fit—to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);

   (b)   an order:

   (i)   varying such a contract or arrangement in such manner as is specified in the order; and

   (ii)   if the Court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);

   (c)   an order refusing to enforce any or all of the provisions of such a contract or arrangement;

   (d)   an order directing the respondent to refund money or return property to a non-party consumer referred to in that subsection;

   (e)   an order directing the respondent, at the respondent's own expense, to repair, or provide parts for, goods that have been supplied under the contract or arrangement to a non-party consumer referred to in that subsection;

   (f)   an order directing the respondent, at the respondent's own expense, to supply specified services to a non-party consumer referred to in that subsection;

   (g)   an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that:

   (i)   varies, or has the effect of varying, the first-mentioned instrument; or

   (ii)   terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first-mentioned instrument.

(8)      Schedule 2, item 7, page 30 (before line 21), before the definition of financialproduct in section 1023B, insert:

ASIC Act financial product means a financial product within the meaning of Division 2 of Part 2 of the ASIC Act.

(9)      Schedule 2, item 7, page 30 (lines 21 to 25), omit the definition of financialproduct in section 1023B, substitute:

financial product includes an ASIC Act financial product but does not include:

   (a)   a financial product issued, or offered for regulated sale, by an exempt body or an exempt public authority; or

   (b)   a financial product specified in regulations made for the purposes of this paragraph.