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ASIC Class Order [CO 02/0246]

Authoritative Version
CO 02/246 Orders/ASIC Class Orders as amended, taking into account amendments up to ASIC Corporations (Repeal) Instrument 2015/363
Administered by: Treasury
Registered 04 Sep 2015
Start Date 02 Sep 2015
Date of repeal 07 Mar 2017
Repealed by ASIC Corporations (Repeal) Instrument 2017/185

ASIC Class Order [CO 02/246]

Offers of securities on the internet

This instrument has effect under 1020F(1)(a) and 992B(1)(a) of the Corporations Act 2001.

This compilation was prepared on 2 September 2015 taking into account amendments up to ASIC Corporations (Repeal) Instrument 2015/363 that commenced on 2 September 2015. See the table at the end of this class order.

Prepared by the Australian Securities and Investments Commission.

Australian Securities and Investments Commission
Corporations Act 2001 — Paragraphs 1020F(1)(a) and 992B(1)(a) — Exemption

Under paragraphs 1020F (1)(a) and 992B(1)(a) of the Corporations Act 2001 (the “Act”), the Australian Securities and Investments Commission hereby exempts the following persons from Divisions 2 and 4 of Part 7.9 and subsection 992A(3) of the Act, in the following cases and on the following conditions.

Persons

This exemption applies to persons (the “relevant persons”) who issue or cause to be issued or who are involved in the issue of notices mentioned in this instrument.

Case

This exemption applies to the publication, distribution or making available (“issuing”) on or through the Internet, of the following classes of notices:

(a)        notices offering a financial product for issue or sale or inviting offers to apply for a financial product (“offer notices”); and

(b)       notices which refer to, call attention to, are hypertext links to, or otherwise enable persons to read offer notices,

in such a way that the notices are available to, or received by, persons in this jurisdiction. This includes making notices available for electronic retrieval and distributing them by electronic mail and similar services, whether individual or broadcast.

 

Note: In this instrument, “this jurisdiction” means Australia and in relation to superannuation and RSA products and financial services relating to those products, includes each of the external Territories: Act, ss 5 and 9 (definition of 'this jurisdiction') and Corporations Regulation 1.0.22.

Conditions

This exemption is subject to the following conditions:

(a)        the relevant persons take a variety of precautions reasonably designed to exclude applications being accepted from persons in this jurisdiction and to check that the precautions are effective by monitoring the number of applications made (if any) by persons in this jurisdiction.  Examples of precautions are not sending notices to, or not accepting applications from, persons whose telephone numbers, postal or electronic addresses or other particulars indicate that they are applying from this jurisdiction.  This condition is not satisfied by merely asking applicants whether they are applying from this jurisdiction;

(b)       the relevant persons must not issue notices in ways or locations which are calculated to draw them to the attention of persons in this jurisdiction. This includes, for instance, electronic mail to addresses which indicate that they will be read in this jurisdiction, posting to newsgroups in the aus.* hierarchy and web sites maintained in this jurisdiction, or with Australian content;

(c)        notices do not contain material which is specifically relevant to persons in this jurisdiction, such as details of Australian tax treatments or rates, or information presented in Australian dollars;

(d)       the offer or invitation to which a notice relates must not be made in this jurisdiction by any other means, unless ASIC Corporations (Foreign Securities—Incidental Advertising) Instrument 2015/360 applies to the making of the offer; and

(e)        an offer notice must contain a statement to the effect that the offer or invitation to which it relates is not available to persons in this jurisdiction.  This may be explicit, or it may be conveyed by a statement that the offer or invitation is available only to persons in certain other countries, naming them. The statement must be prominently displayed with the offer notice.

The objective of these conditions is to ensure that notices to which this exemption applies are only issued in this jurisdiction incidentally to their issue in other jurisdictions in which those offers or invitations can lawfully be made, and that they are neither intended nor calculated to result in applications or investments being made by persons receiving the offers or invitations in this jurisdiction. The conditions are to be construed in the light of that objective. The exemption may be modified or withdrawn if notices are published in ways which defeat this objective.

Persons who take advantage of the exemption assume an obligation to perform these conditions and can only rely on the exemption while the conditions are satisfied.

Commencement

This exemption takes effect on the commencement of Schedule 1 to the Financial Services Reform Act 2001.

Notes to ASIC Class Order [CO 02/246]

Note 1

ASIC Class Order [CO 02/246] (in force under s1020F(1)(a) and 992B(1)(a) of the Corporations Act 2001) as shown in this compilation comprises that Class Order amended as indicated in the tables below.

Table of Instruments

Instrument number

Date of making or FRLI registration

Date of commencement

Application, saving or transitional provisions

[CO 02/246]

2/3/2002 (see F2007B00253)

11/3/2002

 

2015/363

1/9/2015 (see F2015L01384)

2/9/2015

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Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Para (d).......................

am. 2015/363