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This instrument provides exemptions and modifications in relation to the hawking and product disclosure requirements in the Corporations Act 2001 in relation to issuing basic deposit products, linked non-cash payment facilities and debit cards due to adverse implications on consumers without debit cards – including vulnerable and elderly consumers – due to COVID-19.
Administered by: Treasury
Registered 24 Apr 2020
Tabling HistoryDate
Tabled HR12-May-2020
Tabled Senate12-May-2020
To be ceased 30 Sep 2020
Ceased by Self Ceasing
Table of contents.

Commonwealth Coat of Arms and ASIC logo

ASIC Corporations (COVID-19 – Distribution of Debit Cards) Instrument 2020/401

I, Anthony Graham, delegate of the Australian Securities and Investments Commission, make the following legislative instrument.

 

Date    24 April 2020

 

 

Anthony Graham

 



Part 1—Preliminary

1        Name of legislative instrument

This is the ASIC Corporations (COVID-19 – Distribution of Debit Cards) Instrument 2020/401.

2        Commencement

This instrument commences on the day after it is registered on the Federal Register of Legislation.

Note:    The register may be accessed at www.legislation.gov.au.

3        Cessation

This instrument ceases to apply on 30 September 2020.

4        Authority

This instrument is made under subsection 992B(1) and paragraph 1020F(1)(c) of the Corporations Act 2001.

5        Definitions

In this instrument:

Act means the Corporations Act 2001

ADI (short for authorised deposit-taking institution) has the meaning given in section 5 of the Banking Act 1959.

debit card has the meaning given in subsection 12DL(5) of the ASIC Act.

eligible account holder means, in relation to an ADI, a person who holds a basic deposit product issued by the ADI, but who does not have a debit card issued by the ADI.

eligible product means:

(a)     a basic deposit product; or

(b)     a facility for making non-cash payments that is related to a basic deposit product.

issue situation has the same meaning as in section 1012B of the Act.

recommendation situation has the same meaning as in 1012A of the Act.

regulated person has the same meaning as in section 1011B of the Act.

Regulations mean the Corporations Regulations 2001.


Part 2—Exemption

6        Exemption—offering debit cards to existing account holders

(1)     An ADI does not have to comply with subsection 992A(1) of the Act in relation to an offer to issue an eligible product that occurs in the course of an unsolicited meeting with an eligible account holder.

(2)     The exemption in subsection (1) is only available where both of the following are satisfied:

(a)     the unsolicited meeting occurs at a place where the ADI carries on business;

(b)     the offer to issue the eligible product includes an offer to issue a debit card that is able to be used in relation to the eligible product.


Part 3—Declarations

7        Declarations—offering debit cards to existing account holders

Hawking

(1)     Part 7.8 of the Act applies in relation to an ADI as if subsection 992A(3) were modified or varied by:

(a)     in paragraph 992A(3)(a), omitting all the words after “prescribed by the regulations” and substituting “; and”; and

(b)     in paragraph 992A(3)(b), before “given”, inserting “if the person is not listed on the “No Contact/No Call” register in relation to the person making the contact—”; and

(c)     omitting paragraph 992A(3)(c).

(2)     The declaration in subsection (1) applies in relation to an offer by an ADI to issue an eligible product where the offer:

(a)     is made in the course of an unsolicited telephone call to an eligible account holder; and

(b)     includes an offer to issue a debit card that is able to be used in relation to the eligible product.

Note:    Also see regulation 7.8.21A of the Regulations in relation to the operation of subsection 992A(3) of the Act.

Product disclosure

(3)     Part 7.9 of the Act applies in relation to a regulated person as if regulation 7.9.07FA of the Regulations were modified or varied by, in notional paragraph 1012D(7A) of the Act, omitting paragraphs 1012D(7A)(d) and (e) and substituting:

“(d)   the regulated person has informed the client of how further information about the amounts mentioned in paragraph (c) can be obtained, or provided the client with that information; and

(e)     the regulated person has provided the client with the information described in paragraphs (b) to (d) no later than:

(i)      if the client is given a debit card (within the meaning of subsection 12DL(5) of the ASIC Act) that is able to be used in relation to the eligible product—the time the client is given the debit card; and

(b)     otherwise—the time the eligible product is issued to the client.”.

(4)     The declaration in subsection (3) applies in relation to a recommendation situation and an issue situation in relation to an eligible product where:

(a)     the regulated person is an ADI that is the issuer of the eligible product; and

(b)     the client in relation to the recommendation situation or issue situation is an eligible account holder; and

(c)     in the case of a recommendation situation—the recommendation includes a recommendation that the eligible account holder acquire a debit card that is able to be used in relation to the eligible product; and

(d)     in the case of an issue situation that is an offer to issue the eligible product—the offer includes an offer to issue a debit card that is able to be used in relation to the eligible product; and

(e)     in the case of an issue situation that is the issue of the eligible product—the ADI also issues to the eligible account holder a debit card that is able to be used in relation to the eligible product.

(5)     Part 7.9 of the Act applies in relation to a regulated person as if the provisions of the Part were modified or varied as follows:

(a)     in subsection 1012A(4), omit “and 1014E”, substitute “, 1012GB and 1014E”;

(b)     in subsection 1012B(5), omit “and 1014E”, substitute “, 1012GB and 1014E”;

(c)     before section 1012H, insert the following:

1012GB Product Disclosure Statement may sometimes be provided later in relation to offers and issues of debit cards

(1)     This section applies in relation to a recommendation situation and an issue situation in relation to an eligible product where:

(a)     the regulated person is an ADI that is the issuer of the eligible product; and

(b)     the client in relation to the recommendation situation or issue situation is an eligible account holder; and

(c)     in the case of a recommendation situation—the recommendation includes a recommendation that the eligible account holder acquire a debit card that is able to be used in relation to the eligible product; and

(d)     in the case of an issue situation that is an offer to issue the eligible product—the offer includes an offer to issue a debit card that is able to be used in relation to the eligible product; and

(e)     in the case of an issue situation that is the issue of the eligible product—the ADI also issues to the eligible account holder a debit card that is able to be used in relation to the eligible product; and

(f)      the regulated person is required to give the client a Product Disclosure Statement for the eligible product.

Note:    The regulated person will not have to give the client a Product Disclosure Statement if subsection 1012D(7A) (as notionally inserted by regulation 7.9.07FA of the Corporations Regulations 2001) applies.

(2)     The regulated person need not give the client a Product Disclosure Statement for the eligible product at or before the time when it would otherwise be required to be given.

The regulated person must comply with subsection (3) instead.

 (3)    If the regulated person issues the eligible product to the client, the regulated person must give the client a Product Disclosure Statement not later than:

(a)     if the client is given a debit card that is able to be used in relation to the eligible product—the time the client is given the debit card; and

(b)     otherwise—the time the eligible product is issued to the client.”.

Note:    A Product Disclosure Statement could be provided for a facility for making non-cash payments that is related to either a new basic deposit product or an existing basic deposit product.

(4)     In this section:

ADI (short for authorised deposit-taking institution) has the meaning given in section 5 of the Banking Act 1959.

debit card has the meaning given in subsection 12DL(5) of the ASIC Act.

eligible account holder means, in relation to an ADI, a person who holds a basic deposit product issued by the ADI, but who does not have a debit card issued by the ADI.

eligible product means:

(a)     a basic deposit product; or

(b)     a facility for making non-cash payments that is related to a basic deposit product.”.