Section 765A — Corporations Act 2001: Specific things that are not financial products

(1) Despite anything in Subdivision B or Subdivision C, the following are not financial products: (a) an excluded security; (b) an undertaking by a body corporate to pay money to a related body corporate; (c) health insurance provided as part of a health insurance business (as defined in Division 121 of the Private Health Insurance Act 2007); (ca) insurance provided as part of a health-related business (as defined by section 131-15 of that Act) that is conducted through a health benefits fund (as defined by section 131-10 of that Act); (d) insurance provided by the Commonwealth; (e) State insurance or Northern Territory insurance, including insurance entered into by: (i) a State or the Northern Territory; and (ii) some other insurer; as joint insurers; (f) insurance entered into by the Export Finance and Insurance Corporation, other than a short-term insurance contract within the meaning of the Export Finance and Insurance Corporation Act 1991; (g) reinsurance; (h) any of the following: (i) a credit facility within the meaning of the regulations (other than a margin lending facility); (ii) a facility for making non-cash payments, if payments made using the facility will all be debited to a credit facility covered by subparagraph (i); (i) a facility: (i) that is an approved RTGS system within the meaning of the Payment Systems and Netting Act 1998; or (ii) for the transmission and reconciliation of non-cash payments, and the establishment of final positions, for settlement through an approved RTGS system within the meaning of the Payment Systems and Netting Act 1998; (j) a facility that is: (i) a designated payment system or special designated payment system (or both) for the purposes of the Payment Systems (Regulation) Act 1998; and (ii) declared by regulations made for the purposes of this paragraph not to be a financial product; (k) a facility for the exchange and settlement of non-cash payments between providers of non-cash payment facilities; (l) a facility that is: (i) a financial market; or (ii) a clearing and settlement facility; or (iii) a payment system operated as part of a clearing and settlement facility; or (iv) a derivative trade repository; (m) a contract to exchange one currency (whether Australian or not) for another that is to be settled immediately; (n) so much of an arrangement as is not a derivative because of paragraph 761D(3)(a); (p) an arrangement that is not a derivative because of subsection 761D(4); (q) an interest in a superannuation fund of a kind prescribed by regulations made for the purposes of this paragraph; (r) any of the following: (i) an interest in something that is not a managed investment scheme because of paragraph (c), (e), (f), (k), (l) or (m) of the definition of managed investment scheme in section 9; (ii) a legal or equitable right or interest in an interest covered by subparagraph (i); (iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii); (s) any of the following in relation to a managed investment scheme (whether or not operated in this jurisdiction) in relation to which none of paragraphs 601ED(1)(a), (b) and (c) are satisfied and that is not a registered scheme or a notified foreign passport fund: (i) an interest in the scheme; (ii) a legal or equitable right or interest in an interest covered by subparagraph (i); (iii) an option to acquire, by way of issue, an interest or right covered by subparagraph (i) or (ii); (t) a deposit-taking facility that is, or is used for, State banking; (u) a benefit provided by an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009 for a member of the association or a dependant of a member; (v) either of the following: (i) a contract of insurance; or (ii) a life policy or a sinking fund policy, that is not a contract of insurance; issued by an employer to an employee of the employer; (w) a funeral benefit; (x) physical equipment or physical infrastructure by which something else that is a financial product is provided; (y) a facility, interest or other thing declared by regulations made for the purposes of this subsection not to be a financial product; (z) a facility, interest or other thing declared by ASIC under subsection (2) not to be a financial product. ASIC declarations (2) ASIC may declare that a specified facility, interest or other thing is not a financial product. The declaration must be in writing and ASIC must publish notice of it in the Gazette. Regulations (3) Despite anything in Subdivision B or C, the regulations may declare that a specified facility, interest or other thing is not a financial product for the purposes of specified provisions of this Chapter. (4) A declaration under subsection (2) that is inconsistent with regulations made for the purposes of subsection (3) has no effect to the extent of the inconsistency, but a declaration is taken to be consistent with the regulations to the extent that the declaration is capable of operating concurrently with the regulations.