Document ID: chunk:federal_register_of_legislation:C2020A00135:clause:5_992a:p1
Version: federal_register_of_legislation:C2020A00135
Segment Type: clause
Provision Reference: sch 5 cl 992A (pt 1/2)
Character Range: 75921–78538

992A  Prohibition on hawking of financial products

General prohibition
 (1) A person must not offer a financial product for issue or sale to another person (the consumer), or request or invite the consumer to ask or apply for a financial product or to purchase a financial product, if:
 (a) the consumer is a retail client; and
 (b) the offer, request or invitation is made in the course of, or because of, an unsolicited contact with the consumer.
Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

Exceptions
 (2) Subsection (1) does not apply to:
 (a) an offer, request or invitation made in the course of the giving of advice to the consumer by a person who is required under Division 2 of Part 7.7A to act in the best interests of the consumer in relation to the advice; or
 (c) an offer, request or invitation of a kind prescribed by the regulations.
Note 1: A defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

Meaning of unsolicited contact
 (4) Contact by a person with the consumer, in connection with a financial product, is unsolicited contact with the consumer in connection with the product if:
 (a) the contact is wholly or partly in one or more of the following forms:
 (i) a telephone call;
 (ii) a face‑to‑face meeting;
 (iii) any other real‑time interaction in the nature of a discussion or conversation; and
 (b) either:
 (i) the consumer did not consent to the contact; or
 (ii) if the consumer consented to the contact—the requirements of subsection (5) are not met.
 (5) For the purposes of subparagraph (4)(b)(ii), the requirements are:
 (a) in the case of an offer of that financial product for issue or sale to the consumer, either:
 (i) the consent was a consent to the person contacting the consumer for the purpose of making the offer; or
 (ii) offering to the consumer that financial product for issue or sale was reasonably within the scope of the consumer's consent; and
 (b) in the case of a request or invitation to the consumer to ask or apply for a financial product or to purchase a financial product, either:
 (i) the consent was a consent to the person requesting or inviting the consumer to ask or apply for, or to purchase, that financial product; or
 (ii) requesting or inviting the consumer to ask or apply for, or to purchase, that financial product was reasonably within the scope of the consumer's consent; and
 (c) the consumer gave the consent before the start of the contact; and
 (d) giving the consent was a positive and voluntary act of the consumer;