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Other as amended, taking into account amendments up to ASIC Corporations (Amendment) Instrument 2021/292
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Registered 21 May 2021
Start Date 28 Apr 2021
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ASIC Corporations (Disclosure in Dollars) Instrument 2016/767

 

About this compilation

 

Compilation No. 1

 

This is a compilation of ASIC Corporations (Disclosure in Dollars) Instrument 2016/767 as in force on 28 April 2021. It includes any commenced amendment affecting the legislative instrument to that date.

 

This compilation was prepared by the Australian Securities and Investments Commission.

 

The notes at the end of this compilation (the endnotes) include information

about amending instruments and the amendment history of each amended provision.

 

 



Part 1—Preliminary

1        Name of legislative instrument

This is the ASIC Corporations (Disclosure in Dollars) Instrument 2016/767.

3        Authority

This instrument is made under subsections 951B(1) and 1020F(1) of the Corporations Act 2001.

4        Definitions

In this instrument:

Act means the Corporations Act 2001.

active general member means a person who is a general member of a litigation funding scheme and who:

(a)     is party to any of the following agreements in relation to the scheme:

(i)      a funding agreement with the funder;

(ii)     a retainer or costs agreement; or

(b)     has notified the funder, lawyer or legal practice that the person agrees to, or wishes to, participate in the scheme. 

adverse costs insurance premiums means, in relation to a litigation funding scheme, the premiums payable under an insurance policy which operates to indemnify a person against the risk of an adverse costs order being made against them in the legal proceedings.

claim proceeds means, in relation to a litigation funding scheme, the amount for which the claims being or to be pursued in the legal proceedings will or may be settled (including by way of any agreement, compromise, discontinuance, withdrawal, dismissal or waiver of all or part of the claims), or for which judgment is or may be given.

funder has the meaning given by subregulation 7.1.04N(3) of the Regulations.

funding agreement has the same meaning as in subregulation 7.1.04N(3) of the Regulations.

funding budget means, in relation to a litigation funding scheme, the dollar amount up to which the funder has agreed to provide funds, indemnities, or both, to enable the general members of the litigation funding scheme to seek remedies to which the general members may be legally entitled.

funding required means, in relation to a litigation funding scheme, the total amount of funds, or indemnities, or both, that will or may be provided by the funder to enable the general members of the litigation funding scheme to seek remedies to which the general members may be legally entitled.

general member has the meaning given by subregulation 7.1.04N(4) of the Regulations.

legal costs means, in relation to a litigation funding scheme, the total amount of fees, disbursements or both that will or may be charged by a lawyer or legal practice providing services for the purposes of the litigation funding scheme.

legal costs budget means, in relation to a litigation funding scheme, the dollar amount up to which the funder has agreed to provide funds, indemnities, or both, in relation to legal costs.

legal proceedings means, in relation to a litigation funding scheme, legal proceedings in relation to the litigation funding scheme that are referred to in subparagraph 7.1.04N(3)(d)(iii) of the Regulations.

litigation funding scheme has the meaning given by subregulation 7.1.04N(3) of the Regulations.

providing entity has the meaning given in section 944A of the Act.

registered litigation funding scheme means a litigation funding scheme that is a registered scheme.

Regulations means the Corporations Regulations 2001.

responsible person has the meaning given in subsection 1013A(3) of the Act.

retainer or costs agreement means, in relation to a litigation funding scheme, a retainer or costs agreement with the lawyer or legal practice providing services for the purposes of the litigation funding scheme.

warrant has the meaning given by subregulation 1.0.02(1) of the Corporations Regulations 2001.


Part 2—Exemptions

5        Costs of the financial product

Product Disclosure Statements: General insurance and life risk insurance

(1)     A responsible person for a Product Disclosure Statement for a general insurance product or life risk insurance product does not have to comply with paragraph 1013D(1)(m) of the Act in relation to information to be disclosed in accordance with paragraph 1013D(1)(d) of the Act in the Statement other than information about any excess or deductible (however described) that applies in relation to a claim under such a financial product.

Product Disclosure Statements: Derivatives, foreign exchange and warrants 

(2)     A responsible person for a Product Disclosure Statement for a derivative, foreign exchange contract or warrant does not have to comply with paragraph 1013D(1)(m) of the Act in relation to information to be disclosed in accordance with paragraph 1013D(1)(d) of the Act in the Statement.

Circumstances where the exemptions apply

(3)     The exemption in subsection (1) or (2) applies where the Product Disclosure Statement for the financial product specifies any significant factors that will affect the cost of acquiring the product and includes an explanation of the impact of each of those factors on the cost of acquiring the product.

6        Non-monetary benefits or interests

Statements of Advice

(1)     A providing entity does not have to comply with paragraphs 947B(2)(h), 947C(2)(i) and 947D(2)(d) of the Act in relation to information about
non-monetary benefits or interests to be disclosed in accordance with paragraph 947B(2)(d), subparagraph 947B(2)(e)(i), paragraph 947C(2)(e), subparagraph 947C(2)(f)(i) and paragraph 947D(2)(a) of the Act in a Statement of Advice.

(2)     The exemptions in subsection (1) apply where the Statement of Advice includes the following information about the non-monetary benefit or interest:

(a)     the nature and extent of the non-monetary benefit or interest;

(b)     for non-monetary benefits or interests which may be provided or that may arise in the future—the circumstances in which the
non-monetary benefit or interest may be provided or may arise
;

(c)     the estimated value of the non-monetary benefit or interest (expressed as an amount in dollars or a range of amounts in dollars) where a retail client would reasonably require such an estimated value for the purposes of deciding whether to act on the advice provided.

Product Disclosure Statements

(3)     A responsible person for a Product Disclosure Statement does not have to comply with paragraph 1013D(1)(m) of the Act in relation to information concerning non-monetary benefits to be disclosed in accordance with paragraph 1013D(1)(b) of the Act in the Statement.

(4)     The exemption in subsection (3) applies where the Statement includes the following information:

(a)     the nature and extent of the non-monetary benefit;

(b)     for non-monetary benefits which may be provided or that may arise in the future—the circumstances in which the non-monetary benefit may be provided or may arise;

(c)     the estimated value of the non-monetary benefit (expressed as an amount in dollars or a range of amounts in dollars) in cases where a retail client would reasonably require such an estimated value for the purposes of deciding whether to acquire the financial product.

7        Foreign currency amounts

Statements of Advice

(1)     A providing entity does not have to comply with paragraphs 947B(2)(h), 947C(2)(i) and 947D(2)(d) of the Act to the extent that those provisions require an amount that is denominated in a foreign currency to be stated as an amount in Australian currency in a Statement of Advice.

Product Disclosure Statements and periodic statements

(2)     A responsible person does not have the comply with paragraph 1013D(1)(m) and subsection 1017D(5A) of the Act to the extent that those provisions require an amount that is denominated in a foreign currency to be stated as an amount in Australian currency in a Product Disclosure Statement or a periodic statement.

 

8        Litigation funding schemes

Product Disclosure Statements

(1)     A responsible person for a Product Disclosure Statement for an interest in a registered litigation funding scheme does not have to comply with paragraph 1013D(1)(m) of the Act in relation to information to be disclosed in accordance with paragraphs 1013D(1)(b), (d) and (e) in relation to any of the following:

(a)     funding budget;

(b)     legal costs budget;

(c)     adverse costs insurance premiums;

(d)     funding required;

(e)     legal costs;

(f)     claim proceeds.

Conditions  

(2)     The responsible person must:

(a)     disclose, in writing or electronically, to any person who is an active general member of the scheme:

(i)      in the case of information that is not included in the Product Disclosure Statement in reliance on the exemption in paragraphs (1)(a) to (c)—that information; and

(ii)     in the case of information that is not included in the Product Disclosure Statement in reliance on the exemption in paragraphs (1)(d) to (f)—an estimate (expressed as an amount in dollars or a range of amounts in dollars) of that information;

before, or as soon as practicable after, that person becomes an active general member; and

(b)     notify, in writing or electronically, each active general member of the scheme of any material change to the information referred to in subparagraphs (a)(i) and (ii) that, but for the exemption in subsection (1), would have been required to be specified in a Product Disclosure Statement prepared on the day before the change:

(i)      in the case of a change that is an increase in adverse costs insurance premiums that would be required to be disclosed in accordance with paragraphs 1013D(1)(d) or (e) of the Act if the exemption in subsection (1) did not apply—30 days before the change takes effect; and

(ii)     in the case of any other change—before the change or as soon as practicable after, but not more than 3 months after, the change occurs.

Note 1: ASIC has provided other relief in relation to litigation funding schemes under ASIC Corporations (Litigation Funding Schemes) Instrument 2020/787.

Note 2: This section will be repealed by Schedule 2 of the ASIC Corporations (Amendment and Repeal) Instrument 2021/292 on the day that is 12 months after the date that instrument was registered on the Federal Register of Legislation.


Endnotes

Endnote 1—Instrument history

Instrument number

Date of FRL registration

Date of commencement

Application, saving or transitional provisions

2016/767

18/8/2016 (see F2016L01299)

19/8/2016

 

2021/292

27/4/2021 (see F2021L00489)

Sch 1: 28/4/2021

Sch 2: 27/4/2022

-

Endnote 2—Amendment history

ad. = added or inserted     am. = amended     LA = Legislation Act 2003    rep. = repealed     rs. = repealed and substituted

Provision affected 

How affected

Section 2

rep. s48D LA

Section 4

am. 2021/292

Section 8

Rs. 2021/292