ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716
(a) in subsection 912D(4), omitting “For(a) in subsection 912D(4), omitting “For the purposes” and substituting “Subject to subsection (4A), for the purposes”; and
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This is the ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716.
3 Repeal
This instrument is repealed on 5 October 2024.
4 Authority
This instrument is made under subsection 926A(2) of the Corporations Act 2001 and subsection 109(3) of the National Consumer Credit Protection Act 2009.
5 Definitions
In this instrument:
Australian credit licence has the same meaning as in section 5 of the Credit Act.
Corporations Act means the Corporations Act 2001.
Credit Act means the National Consumer Credit Protection Act 2009.
credit licensee means a person who holds an Australian credit licence.
financial services licensee has the same meaning as in section 761A of the Corporations Act.
Part 2—Declaration
6 Reportable Situations
Part 7.6 of the Corporations Act (other than Divisions 4 and 8) applies in relation to financial service licensees as if section 912D were modified or varied by omitting paragraph 912D(4)(b) and substituting:
“(b) the breach is constituted by the contravention of a civil penalty provision under any law, other than:
(i) a civil penalty provision prescribed by the regulations for the purposes of this paragraph; or
(ii) subsection 912A(5A) to the extent that the contravention results from a contravention of subparagraph 912A(1)(g)(ia) as notionally inserted by ASIC Corporations, Credit and Superannuation (Internal Dispute Resolution) Instrument 2020/98; or”.
(2) The provisions to which Part 2-6 of the Credit Act applies apply in relation to credit licensees as if subsection 50A were modified or varied by omitting paragraph 50A(4)(b) and substituting:
“(b) the breach is constituted by the contravention of a civil penalty provision under any law, other than:
(i) a civil penalty provision prescribed by the regulations for the purposes of this paragraph; or
(ii) subsection 47(4) to the extent the contravention results from a contravention of subparagraph 47(1)(h)(ii) as notionally substituted by ASIC Corporations, Credit and Superannuation (Internal Dispute Resolution) Instrument 2020/98.”.
7 Insignificant contraventions of core obligations
(1)
Part 7.6 of the Corporations Act (other than Divisions 4 and 8) applies in relation to financial service licensees as if section 912D were modified or varied by:
(a)
Section (a) in subsection 912D(4), omitting “For - ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716 - (a) in subsection 912D(4), omitting “For the purposes” and substituting “Subject to subsection (4A), for the purposes”; and | Zoe
in subsection 912D(4), omitting “For the purposes” and substituting “Subject to subsection (4A), for the purposes”; and
(b)
after subsection 912D(4), inserting:
“(4A) A breach constituted by a contravention of subsection 1041H(1) of this Act or subsection 12DA(1) or 12DB(1) of the ASIC Act is not taken to be
significant
if
:
(a) but for this subsection, the underlying circumstances in relation to the breach:
(i) would only give rise, and would only be likely to give rise, to a single reportable situation as a result of the following:
(A) paragraph (4)(b) in so far as it relates to a contravention of subsection 12DB(1) of the ASIC Act;
(B) paragraph (4)(c); and
(ii) would not give rise, and would be unlikely to give rise, to a reportable situation other than as specified in subparagraph (i); and
(b) either:
(i) only one person (client) is, or is likely to be impacted by the contravention
; or
(ii) if the contravention relates to a financial product that is, or that is proposed to be, held by more than one person (each a client) jointly, those clients are the only persons who are, or are likely to be, impacted by the contravention; and
(c) the contravention has not resulted in, and is unlikely to result in, any financial loss or damage to any person (for the purposes of this paragraph, financial loss or damage is to be taken into account regardless of whether it is, or will or may be, remediated).
Note: (4B)
For the purposes of subsection (4A):
Note: (a)
the circumstances in which there is a
single reportable situation
as a result of particular conduct include circumstances in which the conduct constitutes a single contravention of two or more of the following and does not otherwise give rise to a reportable situation:
Note: (i)
subsection 1041H(1) of this Act;
Note: (ii)
subsection 12DA(1) of the ASIC Act;
Note: (iii)
subsection 12DB(1) of the ASIC Act; and
Note: (b)
a person is
impacted
by a contravention of:
Note: (i)
subsection 1041H(1) of this Act or subsection 12DA(1) of the ASIC Act if they are misled or deceived as a result of the contravention; and
Note: (ii)
subsection 12DB(1) of the ASIC Act if they are the recipient of the false or misleading representation to which the contravention relates.
”.
(2) The provisions in relation to which
Part 2-6 of the Credit Act applies apply in relation to credit licensees as if subsection 50A were modified or varied by:
(a)
in subsection 50A(4), omitting “For the purposes” and substituting “Subject to subsection (4A), for the purposes”; and
(b)
after subsection 50A(4), inserting:
“(4A)
A breach constituted by a contravention of subsection 12DA(1) or 12DB(1) of the ASIC Act is not taken to be
significant
if
:
(a) but for this subsection, the underlying circumstances in relation to the breach:
(i) would only give rise, and would only be likely to give rise, to a single reportable situation as a result of the following:
(A) paragraph (4)(b) in so far as it relates to a contravention of subsection 12DB(1) of the ASIC Act;
(B) paragraph (4)(d); and
(ii) would not give rise, and would be unlikely to give rise, to a reportable situation other than as specified in subparagraph (i); and
(b) either:
(i) only one person (affected consumer) is, or is likely to be, impacted by the contravention; or
(ii) if the contravention relates to any of the following that is, or that is proposed to be, entered into jointly by more than one credit activity client (each an affected consumer) of the licensee, those affected consumers are the only persons who are, or are likely to be, impacted by the contravention:
(A) a credit contract or proposed credit contract;
(B) a consumer lease or proposed consumer lease;
(C) a mortgage or proposed mortgage;
(D) a guarantee or proposed guarantee; and
(c) the contravention has not resulted in, and is unlikely to result in, any financial loss or damage to any consumer (for the purposes of this paragraph, financial loss or damage is to be taken into account regardless of whether it is, or will or may be, remediated).
Note: (4B)
For the purposes of subsection (4A):
Note: (a)
the circumstances in which there is a
single reportable situation
as a result of particular conduct include circumstances in which the conduct constitutes a single contravention of both of the following and does not otherwise give rise to a reportable situation:
Note: (i)
subsection 12DA(1) of the ASIC Act;
Note: (ii)
subsection 12DB(1) of the ASIC Act; and
Note: (b)
a person is
impacted
by a contravention of:
Note: (i)
subsection 12DA(1) of the ASIC Act if they are misled or deceived as a result of the contravention; and
Note: (ii)
subsection 12DB(1) of the ASIC Act if they are the recipient of the false or misleading representation to which the contravention relates.
”.
8 Reporting period for additional reportable situations
(1) Part 7.6 of the Corporations Act (other than Divisions 4 and 8) applies in relation to financial service licensees as if section 912DAA were modified or varied by omitting subsection 912DAA(3) (other than the heading) and substituting:
“(3) The report must be lodged with ASIC:
(a) within 30 days after the financial services licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe the reportable situation has arisen; or
(b) if:
(i) there is a reportable situation (previous reportable situation) with underlying circumstances that are the same as, or substantially similar to, the underlying circumstances of the reportable situation (current reportable situation); and
(ii) the financial services licensee has lodged a report under this section in relation to the previous reportable situation with ASIC;
within 90 days after the financial services licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe the current reportable situation has arisen.”.
(2) The provisions in relation to which
Part 2-6 of the Credit Act applies apply in relation to credit licensees as if subsection 50B were modified or varied by omitting subsection 50B(4) (other than the heading) and substituting:
“(4) The report must be lodged with ASIC:
(a) within 30 days after the licensee first knows that, or is
reckless with respect to whether, there are reasonable grounds to believe that the reportable situation has arisen; or
(b) if:
(i) there is a reportable situation (previous reportable situation) with underlying circumstances that are the same as, or substantially similar to, the underlying circumstances relating to the reportable situation (current reportable situation); and
(ii) the licensee has lodged a report under this section in relation to the previous reportable situation with ASIC;
within 90 days after the licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe the current reportable situation has arisen.”.
Endnotes
Endnote 1—About the endnotes
Note: The endnotes provide information about this compilation and the compiled law.
Note: The following endnotes are included in every compilation:
Note: Endnote 1—About the endnotes
Note: Endnote 2—Abbreviation key
Note: Endnote 3—Legislation history
Note: Endnote 4—Amendment history
Note: Abbreviation key—Endnote 2
Note: The abbreviation key sets out abbreviations that may be used in the endnotes.
Note: Legislation history and amendment history—Endnotes 3 and 4
Note: Amending laws are annotated in the legislation history and amendment history.
Note: The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
Note: The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Note: Misdescribed amendments
Note: A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the Legislation Act 2003.
Note: If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
Endnote 2—Abbreviation key
ad = added or inserted
orig = original
am = amended
par = paragraph(s)/subparagraph(s)
amdt = amendment
/sub‑subparagraph(s)
c = clause(s)
pres = present
C[x] = Compilation No. x
prev = previous
Ch = Chapter(s)
(prev…) = previously
def = definition(s)
Pt = Part(s)
Dict = Dictionary
r = regulation(s)/rule(s)
disallowed = disallowed by Parliament
reloc = relocated
Div = Division(s)
renum = renumbered
exp = expires/expired or ceases/ceased to have
rep = repealed
Effect
rs = repealed and substituted
F = Federal Register of Legislation
s = section(s)/subsection(s)
gaz = gazette
Sch = Schedule(s)
LA = Legislation Act 2003
Sdiv = Subdivision(s)
LIA = Legislative Instruments Act 2003
SLI = Select Legislative Instrument
(md not incorp) = misdescribed amendment
SR = Statutory Rules
cannot be given effect
Sub‑Ch = Sub‑Chapter(s)
mod = modified/modification
SubPt = Subpart(s)
No. = Number(s)
underlining = whole or part not
o = order(s)
commenced or to be commenced
Ord = Ordinance
Endnote 3—Legislation history
Name
Registration
Commencement
Application, saving and transitional provisions
ASIC Corporations and Credit (Breach Reporting—Reportable Situations) Instrument 2021/716
17/8/2021 (see F2021L01128)
5/10/2021
-
ASIC Corporations and Credit (Amendment) Instrument 2023/589
19/10/2023 (see F2023L01401)
20/10/2023
-
ASIC Corporations (Amendment) Instrument 2024/554
5/7/2024 (see F2024L00864)
10/7/2024
-
Endnote 4—Amendment history
Provision affected
How affected
Section 2
rep. s48D LA (s48D of the LA repeals a provision that provides solely for commencement)