Australian Securities and Investments Commission Act 2001

Section 5(1) defines key terms including ASIC, Corporations Act, corporations legislation, this Act, this jurisdiction, financial product (with the meaning given by section 12BAA in Division 2 of Part 2, and otherwise the meaning given by Division 3 of Part 7.1 of the Corporations Act), financial service (with the meaning given by section 12BAB in Division 2 of Part 2, and otherwise the same meaning as in the Corporations Act), books, proceeding, court, person, eligible person, officer, staff member, senior staff member, Chairperson, Deputy Chairperson, member, excluded provisions, contravention, benefit derived and detriment avoided, penalty applicable, virtual enquiry technology, examination, hearing, witness, record, written record, statement, give, information, produce, fail, power, prescribed, regulations, report, superannuation benefits, CSC, eligible employee, old ASIC Act, Disciplinary Board, Takeovers Panel, Takeovers Panel proceedings, President, FRC, AASB, AUASB, Office of the AASB, Office of the AUASB, Parliamentary Committee, Financial Services and Credit Panel, accounting member, business member, Panel Chairperson, Panel of the Disciplinary Board, professional accounting body, international accounting standards, international auditing standards, international sustainability standards, international business regulator, foreign business law, foreign country, affairs, arrangement, dealing in a financial product, security, Schedule 2 to the Corporations Act, property, trust property, tribunal, engage in conduct, conduct, misleading, consumer, consumer contract, small business contract, standard form contract, transparent, unfair, upfront price, rely on, supply, acquire, acquisition of services, re-supply of services, supply of services, services, price, trade or commerce, business, financial corporation, trading corporation, authority of the Commonwealth, authority, non-commercial, Australian Consumer Law, National Credit Code, Insurance Contracts Act insurance contract, long-term lease, motor vehicle and add-on insurance product.

Section 12BAA defines a financial product for Division 2 of Part 2 as a facility through which a person makes a financial investment (section 12BAA(4)), manages financial risk (section 12BAA(5)) or makes non-cash payments (section 12BAA(6)), with specific inclusions under section 12BAA(7) such as securities, interests in managed investment schemes, derivatives, contracts of insurance (other than certain health insurance), life policies, superannuation interests, RSAs, deposit-taking facilities, debentures, foreign exchange contracts, credit facilities, Australian carbon credit units and eligible international emissions units, and exclusions under section 12BAA(8) such as excluded securities, certain health insurance, State insurance, approved RTGS systems, designated payment systems, financial markets, clearing and settlement facilities, certain non-derivative arrangements, interests in non-managed investment schemes, State banking deposit-taking facilities, equipment or infrastructure, funeral benefits and prescribed items. Section 12BAB defines when a person provides a financial service for Division 2 of Part 2, including providing financial product advice (section 12BAB(5)), dealing in a financial product (section 12BAB(7)), making a market (section 12BAB(11)), operating a registered scheme, providing custodial or depository services (section 12BAB(12)), providing superannuation trustee services, providing claims handling and settling services, operating a financial market (section 12BAB(15)) or clearing and settlement facility (section 12BAB(17)), operating the business and conduct of a CCIV, providing crowd-funding services and providing traditional trustee company services.

Section 12BF(3) defines a consumer contract as a contract where at least one party is an individual whose acquisition is wholly or predominantly for personal, domestic or household use or consumption. Section 12BF(4) defines a small business contract where the upfront price does not exceed $5,000,000 and at least one party employs fewer than 100 persons or has turnover of less than $10,000,000 in the prior income year, with rules for counting employees and calculating turnover under section 12BF(6)-(8) and exclusion of interest from upfront price in credit contracts under section 12BF(5). Section 12BG(1) defines a term as unfair if it causes a significant imbalance in the parties' rights and obligations arising under the contract, is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term, and would cause detriment to a party if it were to be applied or relied on. Section 12BG(3) defines transparent as expressed in reasonably plain language, legible, presented clearly and readily available to any party affected by the term. Section 12BH(1) provides non-exhaustive examples of potentially unfair terms, including terms that permit one party but not another to avoid or limit performance, terminate, penalise breach, vary terms, price or services, renew or not renew, unilaterally interpret the contract, limit vicarious liability, assign without consent, limit the right to sue or evidence, impose an evidential burden, or are of a prescribed kind. Section 12BI(1) excludes terms to the extent they define the main subject matter, set the upfront price, are required or expressly permitted by law, are included or taken to be included by operation of law regulating the contract, or (for Insurance Contracts Act insurance contracts) are transparent, disclosed at or before the contract is made and set an excess or deductible.

Section 12BK(1) presumes a contract is a standard form contract if a party alleges it is, unless the other party proves otherwise. Section 12CA prohibits conduct in trade or commerce in relation to financial services that is unconscionable within the meaning of the unwritten law of the States and Territories. Section 12CB prohibits conduct in trade or commerce in connection with the supply or possible supply, or acquisition or possible acquisition, of financial services that is, in all the circumstances, unconscionable. Section 12CC sets out non-exhaustive matters a court may consider, including relative bargaining strength, unnecessary conditions, understanding of documents, undue influence or unfair tactics, availability of alternatives, consistency with similar transactions, industry codes, non-disclosure of intended conduct or risks, willingness to negotiate, contract terms and performance, unilateral variation rights and good faith. Section 12DA prohibits engaging in conduct in relation to financial services that is misleading or deceptive or likely to mislead or deceive, with exclusions for specified Corporations Act conduct under section 12DA(1A) and continuous disclosure conduct under section 12DA(3)-(4). Section 12DB prohibits false or misleading representations in connection with the supply or possible supply or promotion of financial services regarding standard, quality, value, grade, agreement to acquire, testimonials, sponsorship, approval, affiliation, performance, uses, benefits, price, need, conditions, warranties, guarantees, rights or remedies.

Section 12DO defines an add-on insurance product as a financial product offered or sold to a consumer in connection with acquiring a principal product or service, where the provider of the principal (or a person under arrangement) offers or sells it, it manages financial risk within section 12BAA(5), and it is or provides benefit under a contract of insurance. Section 12DP provides for a 4-day deferral period if prescribed information is given in the determined form and manner. Section 12DQ prohibits sale of an add-on insurance product during the pre-deferral period or (if a deferral period exists) before it ends. Section 12DMC prohibits providing or receiving a commission in connection with an add-on risk product supplied to a consumer acquiring a motor vehicle or connected credit or warranty, where the commission exceeds a cap in an ASIC determination. Section 12GP(3) defines concurrent wrongdoer for apportionable claims. Section 12GNA provides that professional standards laws limit liability for section 12DA contraventions.

The Act affects ASIC as the body established under section 8 and consisting of 3 to 8 members appointed under section 9. It affects persons providing or acquiring financial products or financial services in trade or commerce, including providers of principal products or services offering add-on insurance products, consumers acquiring for personal, domestic or household use or consumption, small businesses with upfront price not exceeding $5,000,000 and fewer than 100 employees or turnover under $10,000,000, bodies corporate, trustee companies, financial services licensees, market operators, clearing and settlement facility operators, auditors, directors, secretaries and senior managers required to disclose information under sections 43 and 44, persons appearing for examination under section 19 or at hearings under section 58, and persons making claims or representations promoting supply of financial services. It affects concurrent wrongdoers in apportionable claims under Subdivision GA and persons receiving infringement notices or substantiation notices. It affects information providers under section 12DN and publishers of advertisements under section 12DMB. It affects responsible entities of registered schemes, notified foreign passport funds, CCIV corporate directors, registered liquidators, Australian auditors, and persons in possession of relevant books. The Minister, the Court, the Director of Public Prosecutions and prescribed agencies receiving investigation reports under section 18 are affected. Lawyers attending examinations or hearings, and persons summoned or appearing at hearings under sections 23, 58 and 59 are affected.

ASIC has duties under section 1(2) and section 12A to monitor and promote market integrity and consumer protection in the Australian financial system and payments system, to support APRA under section 12AA, and to exercise powers only for specified purposes such as under section 40 for investigations or ensuring compliance. Under section 12, the Minister may give directions on policies or priorities by legislative instrument, which ASIC must comply with. Persons have duties not to engage in unfair contract terms conduct under section 12BF, unconscionable conduct under sections 12CA and 12CB, misleading or deceptive conduct under section 12DA, false representations under sections 12DB, 12DC, 12DD, 12DE, 12DF, 12DG, 12DH, 12DI, 12DJ, 12DK, 12DL, 12DM and 12DMB, or prohibited add-on insurance sales, offers or invitations under sections 12DQ, 12DR, 12DS and 12DZA. Persons have duties to comply with requirements to disclose information under sections 41-44, to appear for examination under section 19, to produce books under sections 30-33, to attend hearings under section 58, to comply with substantiation notices under section 12GYB within 21 days, and to pay amounts under infringement notices within the payment period under section 12GXC. Bodies corporate and related bodies must not indemnify officers against pecuniary penalty or relinquishment orders or related defence costs under section 12GBD.

Rights include the right of a consumer or small business to have an unfair term declared void under section 12BF(1) with the contract continuing under section 12BF(2), the right to return and refund for add-on insurance products under section 12DT, the right not to be liable for unsolicited financial services under section 12DMA or unauthorised advertisements under section 12DMB(4), the right to recover damages for loss or damage from contraventions of Subdivisions BA, C, D or DA under section 12GF within 6 years, the right to recover commissions exceeding caps under section 12DMC, the right to appear and make submissions at hearings under section 57, the right to have a lawyer present at private disclosures or hearings under sections 48 and 59, the right to prescribed allowances and expenses under section 89, the right to apply for extension of time for substantiation notices under section 12GYA or infringement notices under section 12GXD, the right to make representations seeking withdrawal of an infringement notice under section 12GXF, and the right to apply for joinder of concurrent wrongdoers under section 12GV. ASIC has rights to intervene in proceedings under section 12GO, to accept undertakings under section 93AA, to cause prosecutions or recovery proceedings under sections 49 and 50, to prepare and publish audit deficiency reports under sections 50C and 50D, to give infringement notices under section 12GX and substantiation notices under section 12GY, to apply for declarations, pecuniary penalty orders, relinquishment orders, injunctions, non-punitive orders, punitive orders, redress orders and other orders under sections 12GBA, 12GBB, 12GBCC, 12GD, 12GLA, 12GLB, 12GNB, 12GNC, 12GND, 12GNE and 12GNF, and to require assistance in prosecutions under section 49(3). Examinees and disclosers have the right to have a lawyer present (sections 23(1), 48(1)), to request and receive a copy of any written record (section 24(2)), and to make submissions before certain information is disclosed (section 39C(4)-(5)).

Contraventions of provisions in Subdivisions C, D (other than section 12DA or 12DE, subsection 12DG(1) or sections 12DI or 12DM), DA and GC are subject to infringement notices under Subdivision GB, with a single notice relating to a single contravention unless section 12GX(4) applies for continuing failures, and amounts payable of 60 penalty units for a body corporate or 12 for others for most provisions, 30 or 6 for section 12GYB, and 50 or 10 for section 12GYC under section 12GXB(2). Payment within the period discharges liability, prevents prosecution or pecuniary penalty proceedings, and is not an admission under section 12GXG. ASIC may extend the period under section 12GXD, make instalment arrangements under section 12GXE, or withdraw the notice under section 12GXF after considering representations. Offences under section 12GB for contraventions of specified provisions carry strict liability on elements such as connection or acceptance under sections 12DC(2C), 12DD(3), 12DE(3), 12DF(2), 12DG(2A), 12DH(2), 12DI(2) and (4), 12DJ(2), 12DK(3A), 12DL(4A), 12DM(1B) and 12DMC. Pecuniary penalty orders may be made under section 12GBB up to the greater of 5,000 penalty units or three times the benefit derived and detriment avoided for individuals, or 50,000 penalty units, three times the benefit derived and detriment avoided or 10 per cent of annual turnover for bodies corporate, within 6 years, with the court considering nature and extent of contravention, loss or damage, circumstances, prior conduct and impact on beneficiaries for superannuation trustees. Relinquishment orders for benefit derived and detriment avoided may be made under section 12GBCC. Continuing contraventions accrue daily under section 12GBCM.

In Part 3, failure to comply with requirements to disclose information under sections 41-44, to appear or answer under section 19, to produce books under sections 30-33, or to comply with hearing summons under section 58 is an offence under section 63, with many strict liability elements. Non-compliance with orders to pay investigation expenses under section 91 is a strict liability offence carrying 120 penalty units. Breach of private hearing directions under section 56 is a strict liability offence. Breach of undertakings under section 93AA may lead to court orders for compliance, payment of financial benefit to the Commonwealth, compensation or other orders. Section 93H provides that where no penalty is specified the offence is one of strict liability and 20 penalty units applies. Contravention of a freezing order under section 12GN is a strict liability offence carrying 200 penalty units (section 12GN(5)-(5A)). Non-compliance with examination or book production requirements under sections 19, 21(3), 30-34, 37(9), 38 or 39 carries up to 2 years imprisonment (section 63(1)). Giving false or misleading information carries up to 5 years imprisonment under section 64(1), with a defence of reasonable belief under subsection (3). Obstruction or hindrance carries up to 2 years imprisonment under sections 65 and 66(1), and contravening a publication direction carries 120 penalty units under section 66(2). Concealing or destroying books carries up to 5 years imprisonment under section 67(1), with a defence under subsection (2). Unpaid fines and penalties are enforceable as judgment debts (sections 12GBCB, 12GBCD, 91(4)).

The Act interacts with the Corporations Act 2001, defined in section 5(1), with numerous references and exclusions such as section 12DA(1A) and (2) excluding conduct contravening Corporations Act sections 670A, 728, 738Y, 953A or 1022A even if a defence applies, section 12DA(3)-(4) excluding continuous disclosure conduct under Corporations Act sections 674A(2) or 675A(2), section 12DB(2) excluding specified Corporations Act conduct, section 12BL excluding constitutions and contracts under Corporations Act sections 793B and 822B, section 12BLC excluding contracts with legal effect under those sections, section 12DU excluding conduct covered by personal advice under Corporations Act Division 2 of Part 7.7A, section 12DV excluding conduct covered by product intervention orders under Corporations Act Part 7.9A, and section 12DT referring to Corporations Act section 1019B cooling-off periods. Section 12CC defines applicable industry code and industry code by reference to Competition and Consumer Act 2010 section 51ACA(1). Section 12DMC(9) provides that the section does not affect National Credit Code section 145 caps on consumer credit insurance commissions unless the insurance is a covered add-on risk product in the motor vehicle context. Section 12BI excludes terms required or permitted by Commonwealth, State or Territory law and, for Insurance Contracts Act insurance contracts, transparent excess or deductible terms. Sections 12BLA and 12BLB exclude certain life policies under the Life Insurance Act 1995. Section 12BL(1A) excludes medical indemnity insurance contracts under the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003. Section 12BL(4) excludes contracts under the Payment Systems and Netting Act 1998 section 9. Section 12BAA(8) excludes facilities that are approved RTGS systems or designated payment systems under the Payment Systems and Netting Act 1998 and Payment Systems (Regulation) Act 1998. Section 12DN excludes publication by information providers in the ordinary course of business from sections 12DA, 12DB, 12DC and 12DF, with exceptions for advertisements and connected supply. Section 39D applies Divisions 1, 2, 4C and 5 of Part IAA of the Crimes Act 1914 to specified offences. Section 88 applies Part III of the Crimes Act 1914 and specified provisions of the Evidence Act 1995 to examinations and hearings. Section 12GNA provides that professional standards laws limit liability for section 12DA contraventions. Section 12GN has effect subject to the Bankruptcy Act 1966 (section 12GN(7)). Section 12ED(2A) provides that State or Territory law applies to limit liability for post-commencement breaches of implied warranties. Jurisdiction is conferred on the Federal Court under section 12GJ(1), with State and Territory courts invested with federal jurisdiction under subsection (4), and transfers possible under sections 12GK and 12GL. Prosecutions for offences against Division 2 or Part 3 must be brought in the Court under section 12HC(1), with consent of the Minister or authorised person required for proceedings not instituted by ASIC under subsection (3). The Minister may intervene in proceedings seeking declarations on the operation of provisions under section 12HD(2). Section 109X of the Corporations Act applies for service on natural persons under section 86.

The provided source text does not detail any recent changes to the Act.

The provided source text does not name any cases or detail any court challenges or controversies.

Section 12BK(1) creates a presumption that a contract is a standard form contract if alleged, unless the other party proves otherwise, with the court required to consider bargaining power imbalance, number of similar contracts, preparation before discussion, requirement to accept or reject terms other than those under section 12BI(1), opportunity to negotiate, whether terms account for specific characteristics or the transaction, and prescribed matters under section 12BK(2), and minor or insubstantial negotiation, selection from a range of options or negotiation of other contracts does not prevent standard form status under section 12BK(3). Sections 12BLA and 12BLB exclude replacement life insurance contracts or renewed guaranteed renewable or non-cancellable life policies meeting detailed replacement, linking or unlinking rules that replace pre-5 April 2021 policies or prior exempt contracts, and renewed policies made before 5 April 2021. Section 12BL(1A) excludes specified medical indemnity insurance contracts. Section 12BL(2)-(3) excludes small business contracts covered by prescribed equivalent protection laws. Section 12BLC excludes contracts with legal effect under Corporations Act sections 793B or 822B or made under operating rules of licensed markets or CS facilities. Section 12BI(1) excludes terms defining main subject matter, setting upfront price (disclosed consideration excluding contingent amounts, including total principal in credit contracts under section 12BI(2)), required or permitted by law, or (for Insurance Contracts Act insurance contracts) transparent excess or deductible terms disclosed at or before making, with main subject matter regarded only to the extent it describes what is insured under section 12BI(4). Section 12BF(2) provides that the contract continues to bind the parties if it is capable of operating without the unfair term. Section 12BM provides that conduct does not contravene the Subdivision merely because of section 12BF(1). Section 12CA(2) provides that section 12CA does not apply to conduct prohibited by section 12CB. Section 12CB(2) provides that section 12CB does not apply to conduct consisting only of instituting legal proceedings or referring disputes to arbitration. Section 12CB(3) requires the court not to consider unforeseeable circumstances at the time of the alleged contravention but permits consideration of pre-commencement conduct or circumstances. Section 12DA(1A), (2), (3) and (4) exclude specified Corporations Act conduct even if not an offence or liability due to a defence. Section 12DB(1A) and (1B) provide that testimonial representations are taken to be misleading unless evidence to the contrary is adduced, without reversing the onus or deeming non-misleading. Section 12DC(2D) provides that other Subdivision D provisions are not impliedly excluded for land-interest products. Section 12DE(2A) provides exceptions for third-party causes beyond control with due diligence or agreed replacement. Section 12DG(3) provides a defence to prosecution for non-offer if alternative or equivalent supply is offered within reasonable time, quantity and price and accepted. Section 12DI(3) prohibits acceptance where reasonable grounds exist for believing supply impossible within specified or reasonable time. Section 12DM(1A) and (1AB) provide exceptions if reasonable cause to believe a right to payment existed. Section 12DMB(3) excludes audited high-circulation publications, related bodies corporate, governments or prescribed persons, with evidential burden on the defendant. Section 12DMC(9) preserves National Credit Code section 145 caps unless the insurance is a covered add-on risk product in the motor vehicle context. Section 12DQ(3) provides that the prohibition on sale does not apply if sold after the deferral period ends. Section 12DR(2) and (4) provide exceptions for contact initiated by the customer after the deferral period or relating only to the purpose of that contact. Section 12DU excepts sales, offers, requests or invitations by a person providing personal advice under Corporations Act Division 2 of Part 7.7A recommending the principal product or service. Section 12DV excepts conduct covered by a Corporations Act Part 7.9A product intervention order specifying a non-sale period. Section 12DW excepts comprehensive motor vehicle insurance for owners or long-term lessees. Section 12DZ(3) provides that exemptions do not apply where a product intervention order prohibits sale. Section 12DZA makes contravention of exemption conditions an offence. Section 12GBCN provides that state of mind need not be proved except for specified recklessness in sections 12DQ(4), 12DR(3) and 12DS(2). Section 12GBCP places evidential burden on exceptions. Section 12GP(5) provides that it does not matter that a concurrent wrongdoer is insolvent, being wound up, has ceased to exist or has died. Section 12GR(3) requires the court to exclude any proportion for which the plaintiff is contributorily negligent and permits regard to the comparative responsibility of any concurrent wrongdoer who is not a party. Section 12GT prevents a defendant held liable as a concurrent wrongdoer from being required to contribute to or indemnify another concurrent wrongdoer. Section 12GU(2) prevents recovery of more than the damage or loss actually sustained in subsequent actions. Section 12GV(2) prevents joinder of a person who was a party to previously concluded proceedings. Section 12GW preserves vicarious liability, several liability of partners and other Acts imposing several liability. Section 12GX(5) requires an infringement notice to relate to the alleged contravention of the offence provision if it would constitute both a civil penalty provision and an offence. Section 12GXA lists provisions subject to infringement notices. Section 12GXG(2) provides that discharge and prevention of proceedings do not apply if the notice has been withdrawn. Section 12GXH provides that the Subdivision does not require a notice to be given, does not affect liability if not complied with or if no notice is given or withdrawn, does not prevent multiple notices, and does not limit court discretion on penalty. Section 12GY(6) excludes prescribed information providers publishing on behalf of another without a commercial relationship beyond publishing. Section 12GYC(2) excludes information the person could not have known was false or misleading or documents accompanied by a statement that the information is false or misleading. Section 12HA(1) provides that powers in Subdivision H are in addition to Part 3 powers and may be used only when investigating a contravention or suspected contravention of a provision of Division 2 of Part 2. Section 12HA(2) limits use to investigation contexts. Section 39H (new section 3ZQU(7)) provides that the section does not limit other Commonwealth laws requiring or authorising use or making available of documents or things. Section 39H (new section 3ZQU(9)) provides that the subsection does not itself empower arrangements with State or Territory Ministers. Section 3ZQUA provides that other Commonwealth laws do not require or permit making seized things available to non-Commonwealth, State or Territory persons, without affecting court or tribunal orders or the Freedom of Information Act 1982. Section 47(1) requires disclosures under Division 4 to take place in private, with ASIC able to direct who may be present. Section 49(4) provides that the requirement to give assistance in prosecutions does not apply to the person who may have committed the offence or that person's lawyer. Section 50 requires written consent for proceedings in the name of a person other than a company. Section 91 requires orders to pay investigation expenses to be in writing and specify payment timing and method. Section 92 provides that a person is not liable to a proceeding or subject to liability merely for complying or proposing to comply with a requirement made or purporting to be made under Part 3. Section 93 provides that, except as expressly provided, nothing in Part 3 limits the generality of anything else in Part 3, and functions and powers are additional to and do not derogate from other functions or powers under Commonwealth, State or Territory law. Section 93G provides that the penalty is that specified for the creating provision or provisions containing it, and consequences such as pecuniary penalty orders, infringement notices, administrative actions or compensation orders are not punishments on conviction. Defences under section 12GI(1) require the defendant to bear the legal burden under Criminal Code section 13.4, and notice identifying another person must be served at least 7 days before hearing under section 12GI(3). Another person excludes the defendant's employees, agents, directors or CCIV corporate director under section 12GI(2). Self-incrimination is not a reasonable excuse under section 68(1), though use immunity applies if claimed before making a statement under subsection (2). Legal professional privilege may be claimed by lawyers under section 69(1), but refusal requires prompt written notice identifying the client and particulars under subsection (3). Strict liability applies to many offences, including failure to comply with examination requirements under sections 21(1A), 22(3), 24(3), 29(2A) and 56(4), and to certain publication directions under section 66(2B). Information from examinations is admissible against the examinee with limitations under section 76(1), and signed records are prima facie evidence under subsection (3). Copies of books are admissible if proved true under section 80(1), and certified investigation reports are prima facie evidence in non-criminal proceedings under section 81. Failure to object to tender of examination statements within 14 days bars objection at hearing under section 79(7). Infringement notices must be paid within 28 days under section 12GXC, and payment discharges liability without admission under section 12GXG. Substantiation notices require compliance within 21 days or extended period under section 12GYA, with individual refusal possible only on self-incrimination grounds under section 12GYB. Add-on insurance deferral periods require information to be given in the form and manner determined by ASIC under section 12DP(4), and absence of such information means no deferral period under subsection (2). Commission caps under section 12DMC(3) are determined by legislative instrument, with value ascertained per the determination or as the sum of money and market value under subsections (5) and (6). Where multiple commissions are provided, they are treated as a single commission under subsection (8). Unfair term declarations under section 12GND bind parties and third-party beneficiaries, with redress orders available under sections 12GNE and 12GNF within 6 years. Applications under section 12GM(2) or section 12GNB(1) may be made without any other proceeding having been instituted (sections 12GM(4), 12GNB(4)) but must be brought within 6 years after the cause of action accrued or the declaration was made (sections 12GM(5), 12GNB(5), 12GNE(3), 12GNF(3)). ASIC may apply under section 12GM(3) only on behalf of identified persons who have given prior written consent. Ex parte orders under section 12GN must not exceed 30 days (section 12GN(4)). A defendant must notify the plaintiff in writing as soon as practicable of any person the defendant has reasonable grounds to believe may be a concurrent wrongdoer, or risk a costs order (section 12GS). Proportionate liability does not apply to excluded concurrent wrongdoers (section 12GQ). Certain terms are unaffected by the unfair terms regime, including those defining the main subject matter or setting the upfront price (section 12BI(1)). Information providers have a limited defence under section 12DN, but it does not apply to advertisements or publications promoting the provider's own services or financial products including land interests. Books produced or seized may be retained only as long as necessary for the specified purposes (section 37(5)).

Entities providing financial products or services must ensure that terms in standard form consumer contracts or small business contracts that are financial products or contracts for financial services are not unfair by assessing significant imbalance, legitimate interests and detriment under section 12BG(1), considering transparency under section 12BG(2) and (3), and avoiding the examples in section 12BH(1) such as one-sided termination, variation, penalty or assignment rights. They must not propose or rely on unfair terms under section 12BF(2A)-(2C). They must avoid unconscionable conduct by considering the matters in section 12CC including bargaining strength, undue influence, disclosure and good faith. They must not engage in misleading or deceptive conduct under section 12DA or false representations under sections 12DB-12DI, ensuring reasonable grounds for representations about future matters under section 12BB and stating cash prices under section 12DD. For add-on insurance products they must provide prescribed information in the determined form and manner to trigger the 4-day deferral period under section 12DP, refrain from selling during the pre-deferral period or before the deferral period ends under section 12DQ, refrain from non-written offers, requests or invitations during the pre-deferral period or first 6 weeks of deferral under section 12DR, and refrain from offers after the customer indicates they do not want them under section 12DS. They must respect the customer's right of return and refund under section 12DT. They must not provide or receive commissions exceeding ASIC-determined caps for add-on risk products in motor vehicle contexts under section 12DMC. They must not assert rights to payment for unsolicited services or unauthorised advertisements without prescribed warnings or reasonable cause under sections 12DM and 12DMB. They must comply with ASIC requirements to disclose information under sections 41-44, produce books under sections 30-33, appear for examination under section 19, attend hearings under section 58, and respond to substantiation notices within 21 days under section 12GYB. They must not breach enforceable undertakings under section 93AA. ASIC must exercise powers only for the purposes in section 40, give persons opportunity to appear at hearings under section 57, direct private or public hearings appropriately under sections 52-54, and consider submissions before preparing audit deficiency reports under section 50C(3). ASIC must give infringement notices within 12 months under section 12GX(2), identify them uniquely, state required details under section 12GXB(1), and decide extension, instalment or withdrawal applications within 14 days under sections 12GXD, 12GXE and 12GXF. Persons receiving infringement notices must pay within 28 days or apply for extension or instalments, and may make representations for withdrawal. In investigations, disclosures must be in private under section 47, with lawyers able to attend under section 48. For search warrants, things seized may be used or shared only for the purposes in section 39H (new section 3ZQU(1), (2), (4), (5) and (6)). Entities must not indemnify against pecuniary penalty or relinquishment orders under section 12GBD. Courts apportion liability justly under section 12GR, excluding contributory negligence, and defendants must give notice of possible concurrent wrongdoers under section 12GS to avoid costs orders. Persons must respond to notices under sections 19, 30-34, 41-44 and 58 within the time specified (or any extension granted), providing all reasonable assistance and producing books or information in their possession. When served with an infringement notice, payment within the 28-day period (or any extension or instalment arrangement) discharges liability without admission (section 12GXG). When served with a substantiation notice, the recipient must provide information or documents capable of substantiating the claim or representation within 21 days (or any extension) (section 12GYB). Bodies corporate and individuals must ensure that contracts that are financial products or for the supply of financial services do not contain unfair terms and must not propose, apply or rely on such terms (section 12BF(2A)-(2C)). Suppliers must observe the add-on insurance deferral period and must not sell, offer or request add-on insurance during that period (sections 12DQ-12DS). When making claims or representations promoting financial services, persons must be able to substantiate them if required (section 12GY). Persons subject to investigation or examination should ensure legal representation is arranged where desired and must not obstruct the process (sections 23(2), 48(2)). ASIC must be given prior written consent before it applies on behalf of affected persons under section 12GM(3). Records of examination statements and books should be retained in a form that permits compliance with production requirements. Persons providing financial services must ensure contracts for financial products or services do not contain unfair terms under section 12BF by reviewing standard form contracts for significant imbalance and legitimate interest necessity under section 12BG. Providers of add-on insurance products must provide determined information to trigger deferral periods under section 12DP(1) and (4), refrain from selling or offering during pre-deferral or deferral periods under sections 12DQ to 12DS, and allow customer opt-out under section 12DS. Persons providing or receiving commissions for add-on risk products in connection with motor vehicles must ensure values do not exceed caps determined under section 12DMC(3), with apportionment for multiple products under subsection (7). Persons subject to ASIC notices must produce books at reasonable places and times under section 87, answer questions at examinations under section 21(3), and disclose required information under sections 41 to 44. Lawyers must give notice of privilege claims under section 69(3). Persons relying on defences under section 12GI must serve identifying notices at least 7 days before hearing and adduce evidence of reasonable grounds or due diligence. Information providers must ensure publications are not advertisements or connected with their own or related supply of financial services or products under section 12DN(2) to (4). ASIC must cooperate with APRA under section 12AA and consider competition effects under section 1(2A). Persons must not obstruct hearings or investigations and must comply with publication directions under sections 55 and 66. For enforcement, persons may apply for relief from civil penalties under section 12GI(5) or seek declarations on provision operation under section 12HD(1). ASIC must disclose documents tending to establish a case under section 12HB(1) on request and payment of fee.