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This is a Bill, not an Act. For current law, see the Acts databases.
2016
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Corporations Amendment (Professional
Standards of Financial Advisers) Bill
2016
No. , 2016
(Treasury)
A Bill for an Act to amend the law relating to
financial services, and for related purposes
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendments
3
Corporations Act 2001
3
Tax Agent Services Act 2009
51
Part 2--Application of amendments
54
Corporations Act 2001
54
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
1
A Bill for an Act to amend the law relating to
1
financial services, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Corporations Amendment (Professional Standards
5
of Financial Advisers) Act 2016.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
3
Schedule 1--Amendments
1
Part 1--Amendments
2
Corporations Act 2001
3
1 Section 910A
4
Insert:
5
basic banking product has the meaning given by section 961F.
6
body corporate licensee means a body corporate that:
7
(a) is a financial services licensee; and
8
(b) is authorised to provide personal advice to retail clients in
9
relation to relevant financial products.
10
class of product advice means financial product advice about a
11
class of products, but does not include a recommendation about a
12
specific product in the class.
13
Code of Ethics means the Code of Ethics, as in force from time to
14
time, made by the standards body under paragraph 921U(2)(b).
15
compliance scheme has the meaning given by section 921G.
16
consumer credit insurance has the meaning given by section 11 of
17
the Insurance Contracts Act 1984.
18
control, in relation to a body corporate licensee, means:
19
(a) having the capacity to cast, or control the casting of, more
20
than one half of the maximum number of votes that might be
21
cast at a general meeting of the licensee; or
22
(b) directly or indirectly holding more than one half of the issued
23
share capital of the licensee (not including any part of the
24
issued share capital that carries no right to participate beyond
25
a specified amount in a distribution of either profits or
26
capital); or
27
(c) the capacity to control the composition of the licensee's
28
board or governing body; or
29
Schedule 1 Amendments
Part 1 Amendments
4
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
(d) the capacity to determine the outcome of decisions about the
1
licensee's financial and operating policies, taking into
2
account:
3
(i) the practical influence the person can exert (rather than
4
the rights it can enforce); and
5
(ii) any practice or pattern of behaviour affecting the
6
licensee's financial or operating policies (whether or not
7
it involves a breach of an agreement or a breach of
8
trust).
9
covers, in relation to a compliance scheme, has the meaning given
10
by section 921J.
11
CPD year (short for continuing professional development year): a
12
financial services licensee's CPD year is the 12-month period
13
beginning on the day of the year included in the most recent notice
14
given by the licensee under section 922HA.
15
education and training standards has the meaning given by
16
section 921B.
17
foreign qualification means a bachelor or higher degree, or
18
equivalent qualification, awarded by a tertiary education institution
19
outside Australia.
20
limited-service time-sharing adviser: a person is a limited-service
21
time-sharing adviser if:
22
(a) the person is a relevant provider; and
23
(b) the only relevant financial product that the person provides
24
advice in relation to is a time-sharing scheme; and
25
(c) the person has not met any one or more of the education and
26
training standards in subsections 921B(2) to (4).
27
monitoring body for a compliance scheme means the person that
28
monitors and enforces compliance with the Code of Ethics under
29
the scheme.
30
notice provision means section 922D, 922H, 922HA, 922HB,
31
922HD, 922J or 922K.
32
professional association means a body or association that
33
represents a section of the financial services industry.
34
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
5
provisional relevant provider means a relevant provider who is
1
undertaking work and training in accordance with
2
subsection 921B(4).
3
Note:
For rules relating to provisional relevant providers, see Subdivision C
4
of Division 8A and section 923C.
5
recent advising history has the meaning given by section 922G.
6
Register of Relevant Providers means the Register of Relevant
7
Providers maintained under section 922Q.
8
relevant financial products means financial products other than:
9
(a) basic banking products; or
10
(b) general insurance products; or
11
(c) consumer credit insurance; or
12
(d) a combination of any of those products.
13
relevant provider: a person is a relevant provider if the person:
14
(a) is an individual; and
15
(b) is:
16
(i) a financial services licensee; or
17
(ii) an authorised representative of a financial services
18
licensee; or
19
(iii) an employee or director of a financial services licensee;
20
or
21
(iv) an employee or director of a related body corporate of a
22
financial services licensee; and
23
(c) is authorised to provide personal advice to retail clients, as
24
the licensee or on behalf of the licensee, in relation to
25
relevant financial products.
26
Note:
For rules about when relevant providers can use the expressions
27
"financial adviser" and "financial planner", see section 923C.
28
standards body means the body corporate in relation to which a
29
declaration under section 921X is in force.
30
supervisor of a provisional relevant provider has the meaning
31
given by subsection 921F(2).
32
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Part 1 Amendments
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Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
2 Paragraph 912A(1)(f)
1
After "adequately trained", insert "(including by complying with
2
section 921D)".
3
3 Subsection 913B(1) (note)
4
Omit "Note", substitute "Note 1".
5
4 At the end of subsection 913B(1)
6
Add:
7
Note 2:
There are limitations on ASIC granting an individual an Australian
8
financial services licence that covers the provision of certain personal
9
advice if the individual does not meet the education and training
10
standards in subsections 921B(2) to (4) (see section 921C).
11
5 At the end of subsection 916A(1)
12
Add:
13
Note:
There are limitations on a financial services licensee authorising an
14
individual to provide certain personal advice if the individual does not
15
meet the education and training standards in subsections 921B(2) to
16
(4) (see section 921C).
17
6 At the end of subsection 916A(3)
18
Add:
19
; or (c) in contravention of subsection 921C(2).
20
7 Subsection 916B(2)
21
After "contrary to this section", insert "or subsection 921C(3)".
22
8 Subsection 916B(2A)
23
After "contrary to this section", insert "or subsection 921C(3)".
24
9 At the end of subsection 916B(3)
25
Add:
26
Note:
There are limitations on sub-authorising an individual to provide
27
certain personal advice if the individual does not meet the education
28
and training standards in subsections 921B(2) to (4) (see
29
section 921C).
30
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
7
10 After paragraph 920A(1)(da)
1
Insert:
2
(db) the person has not complied with any one or more of his or
3
her obligations under section 921F (requirements relating to
4
provisional relevant providers); or
5
(dc) both of the following apply:
6
(i) a supervisor referred to in section 921F has not
7
complied with any one or more of his or her obligations
8
under that section in relation to a provisional relevant
9
provider;
10
(ii) both the supervisor and the provisional relevant
11
provider are authorised to provide personal advice to
12
retail clients, on behalf of the person, in relation to
13
relevant financial products; or
14
(dd) both of the following apply:
15
(i) a provisional relevant provider has not complied with
16
his or her obligations under subsection 921F(7);
17
(ii) the provisional relevant provider is authorised to
18
provide personal advice to retail clients, on behalf of the
19
person, in relation to relevant financial products; or
20
(de) ASIC has reason to believe that the person was authorised, in
21
contravention of subsection 921C(2), (3) or (4), to provide
22
personal advice to retail clients in relation to relevant
23
financial products; or
24
11 Paragraph 920A(1)(e)
25
After "financial services law", insert "(other than section 921E (relevant
26
providers to comply with the Code of Ethics))".
27
12 After Division 8 of Part 7.6
28
Insert:
29
Schedule 1 Amendments
Part 1 Amendments
8
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
Division 8A--Professional standards for relevant providers
1
Subdivision A--Education and training standards
2
921B Meaning of education and training standards
3
(1) This section sets out the education and training standards for a
4
person who is, or is to be, a relevant provider.
5
Conditions for relevant providers
6
(2) The first standard is that:
7
(a) the person has completed a bachelor or higher degree, or
8
equivalent qualification, approved by the standards body
9
under section 921U; or
10
(b) both of the following conditions are satisfied:
11
(i) the person has completed a foreign qualification;
12
(ii) the standards body has approved the foreign
13
qualification under section 921V.
14
(3) The second standard is that the person has passed an exam
15
approved by the standards body.
16
(4) The third standard is that the person has undertaken at least 1 year
17
of work and training that meets the requirements set by the
18
standards body.
19
Note:
A relevant provider who is undertaking work and training in
20
accordance with this subsection is a provisional relevant provider (see
21
the definition of provisional relevant provider in section 910A). For
22
rules relating to provisional relevant providers, see Subdivision C.
23
Continuing standard for relevant providers
24
(5) The fourth standard is that the person meets the requirements for
25
continuing professional development set by the standards body.
26
Note:
A provisional relevant provider is not required to meet this standard
27
(see section 921D).
28
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
9
921C Limitation on authorisation to provide personal advice unless
1
conditions met
2
Financial services licensees
3
(1) ASIC must not grant an applicant an Australian financial services
4
licence that covers the provision of personal advice to retail clients
5
in relation to relevant financial products if:
6
(a) the applicant is an individual; and
7
(b) the applicant has not met any one or more of the education
8
and training standards in subsections 921B(2) to (4).
9
Note:
Subsections 921B(2) to (4) set out the conditions for education and
10
training for relevant providers.
11
Authorised representatives
12
(2) A financial services licensee must not, under section 916A, give a
13
person a written notice authorising the person to provide personal
14
advice to retail clients, on behalf of the licensee, in relation to
15
relevant financial products if:
16
(a) the person is an individual; and
17
(b) either or both of the following subparagraphs apply:
18
(i) the person has not met either or both of the education
19
and training standards in subsections 921B(2) and (3);
20
(ii) the person has not met the education and training
21
standard in subsection 921B(4), and is not undertaking
22
work and training in accordance with that subsection.
23
Sub-authorisations
24
(3) An authorised representative of a financial services licensee must
25
not, under subsection 916B(3), give an individual a written notice
26
authorising that individual to provide personal advice to retail
27
clients, on behalf of the licensee, in relation to relevant financial
28
products if either or both of the following paragraphs apply:
29
(a) the individual has not met either or both of the education and
30
training standards in subsections 921B(2) and (3);
31
(b) the individual has not met the education and training standard
32
in subsection 921B(4), and is not undertaking work and
33
training in accordance with that subsection.
34
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Part 1 Amendments
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Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
Employees and directors
1
(4) A financial services licensee must not authorise an employee or
2
director of the licensee, or of a related body corporate of the
3
licensee, to provide personal advice to retail clients, on behalf of
4
the licensee, in relation to relevant financial products if either or
5
both of the following paragraphs apply:
6
(a) the employee or director has not met either or both of the
7
education and training standards in subsections 921B(2) and
8
(3);
9
(b) the employee or director has not met the education and
10
training standard in subsection 921B(4), and is not
11
undertaking work and training in accordance with that
12
subsection.
13
Exemption in relation to time-sharing schemes
14
(5) This section does not apply in relation to a person who is to
15
provide personal advice to retail clients in relation to relevant
16
financial products if the only relevant financial product in relation
17
to which the person is to provide personal advice to retail clients is
18
a time-sharing scheme.
19
921D Relevant providers to meet continuing professional
20
development standard
21
(1) A relevant provider must comply with subsection 921B(5):
22
(a) if the relevant provider is a financial services licensee--
23
during the licensee's CPD year; or
24
(b) if the relevant provider is authorised to provide personal
25
advice to retail clients, on behalf of a financial services
26
licensee, in relation to relevant financial products--during
27
the licensee's CPD year.
28
Note 1:
Subsection 921B(5) requires a relevant provider to meet the
29
continuing professional development standard.
30
Note 2:
Section 922HB requires a notice to be given at the end of a financial
31
services licensee's CPD year if a relevant provider has not complied
32
with this section during that year.
33
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
11
Exemptions
1
(2) Subsection (1) does not apply in relation to a person if:
2
(a) the person is a provisional relevant provider; or
3
(b) the only relevant financial product in relation to which the
4
person provides personal advice to retail clients is a
5
time-sharing scheme.
6
Subdivision B--Ethical standards
7
921E Relevant providers to comply with the Code of Ethics
8
A relevant provider must comply with the Code of Ethics.
9
Note:
A failure to comply with the Code of Ethics must be notified under
10
section 922HD.
11
Subdivision C--Provisional relevant providers
12
921F Requirements relating to provisional relevant providers
13
(1) This section sets out the requirements in relation to a person who is
14
a provisional relevant provider.
15
Meaning of supervisor
16
(2) A supervisor of a provisional relevant provider is an individual
17
who:
18
(a) has supervisory responsibility for the provisional relevant
19
provider; and
20
(b) is a relevant provider; and
21
(c) is not a provisional relevant provider; and
22
(d) is not a limited-service time-sharing adviser.
23
Role of supervisors
24
(3) A supervisor of a provisional relevant provider must ensure that
25
appropriate supervision is provided to the provisional relevant
26
provider.
27
Schedule 1 Amendments
Part 1 Amendments
12
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
(4) A supervisor of a provisional relevant provider must approve, in
1
writing, any Statement of Advice provided by the provisional
2
relevant provider to a retail client.
3
Personal advice provided by provisional relevant providers
4
(5) For the purposes of this Act, personal advice provided (whether
5
orally or in writing) by a provisional relevant provider at a
6
particular time to a retail client in relation to a relevant financial
7
product is taken to have been provided to the client by each person
8
who is, at that time, a supervisor of the provisional relevant
9
provider (instead of by the provisional relevant provider).
10
Retail clients to be informed of certain matters
11
(6) A supervisor of a provisional relevant provider must ensure that a
12
retail client is informed:
13
(a) of the name of each supervisor of the provisional relevant
14
provider (even if the retail client has been informed of the
15
name of each previous supervisor); and
16
(b) that the provisional relevant provider is undertaking work
17
and training in accordance with subsection 921B(4); and
18
(c) that each supervisor is responsible for any personal advice
19
provided by the provisional relevant provider to the client in
20
relation to a relevant financial product.
21
Provisional relevant providers not to obstruct or hinder
22
supervision
23
(7) A provisional relevant provider must not obstruct or hinder a
24
supervisor of the provisional relevant provider in ensuring that
25
appropriate supervision is provided to the provisional relevant
26
provider.
27
Note:
Under section 921U, the standards body may provide further for the
28
purposes of this section.
29
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
13
Division 8B--Compliance schemes
1
Subdivision A--Compliance schemes to cover relevant
2
providers
3
921G Meaning of compliance scheme
4
(1) A compliance scheme is a scheme:
5
(a) that meets the requirements of this section; and
6
(b) under which compliance with the Code of Ethics by relevant
7
providers covered by the scheme is monitored and enforced.
8
Monitoring body of compliance scheme
9
(2) A monitoring body for a compliance scheme must monitor and
10
enforce compliance with the Code of Ethics by any relevant
11
provider covered by the scheme.
12
(3) A monitoring body for a compliance scheme must not be:
13
(a) a financial services licensee; or
14
(b) an associate of a financial services licensee.
15
(4) A compliance scheme must name the monitoring body for the
16
scheme.
17
Disputes and complaints
18
(5) A compliance scheme must set out how a dispute is to be resolved
19
between the monitoring body for the scheme and a relevant
20
provider covered by the scheme.
21
(6) A compliance scheme must set out how a person may make a
22
complaint to the monitoring body for the scheme in relation to a
23
failure to comply with, or possible failure to comply with, the Code
24
of Ethics by a relevant provider covered by the scheme.
25
Name of compliance scheme
26
(7) A compliance scheme must have a name.
27
Schedule 1 Amendments
Part 1 Amendments
14
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
921H Financial services licensees to ensure compliance scheme
1
covers relevant providers
2
(1) A financial services licensee must ensure that a compliance scheme
3
covers:
4
(a) if the licensee is a relevant provider--the licensee; and
5
(b) in any case--any relevant provider authorised to provide
6
personal advice to retail clients, on behalf of the licensee, in
7
relation to relevant financial products.
8
Note:
For when a compliance scheme covers a relevant provider, see
9
section 921J.
10
(2) A compliance scheme must cover a relevant provider within 30
11
business days of the following:
12
(a) the day the person becomes a relevant provider;
13
(b) if the relevant provider was previously covered by only one
14
compliance scheme that has ceased to cover the relevant
15
provider--the day that scheme ceased to cover the relevant
16
provider.
17
921J When a compliance scheme covers a relevant provider
18
(1) A compliance scheme covers a relevant provider if:
19
(a) an approval is in force under section 921K in relation to the
20
compliance scheme; and
21
(b) the condition in subsection (2) of this section is met for the
22
relevant provider; and
23
(c) if the monitoring body for the compliance scheme is a
24
professional association--the relevant provider is a member
25
of the professional association.
26
Notifying ASIC of the compliance scheme that covers a relevant
27
provider
28
(2) The condition in this subsection is met for a relevant provider in
29
relation to a compliance scheme if:
30
(a) both of the following apply:
31
(i) the notice lodged under section 922D in relation to the
32
relevant provider stated that the compliance scheme is
33
to cover the relevant provider;
34
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
15
(ii) no notice has been lodged under section 922H stating
1
that another compliance scheme is to cover the relevant
2
provider; or
3
(b) the most recent notice lodged under section 922H, in relation
4
to particulars entered on the Register of Relevant Providers
5
about the compliance scheme that is to cover the relevant
6
provider, stated that the compliance scheme is to cover the
7
relevant provider.
8
Note:
A notice must be lodged under section 922H when there is a change in
9
a matter for a relevant provider.
10
Subdivision B--Approval of compliance schemes
11
921K Approval of compliance schemes
12
(1) A monitoring body for a compliance scheme may apply to ASIC
13
for approval of the compliance scheme.
14
Note:
A monitoring body for a compliance scheme may propose to modify
15
the scheme (see section 921R).
16
(2) The application must set out details of the scheme, including:
17
(a) the name of the monitoring body for the scheme; and
18
(b) arrangements for monitoring compliance with the Code of
19
Ethics by relevant providers covered by the scheme; and
20
(c) sanctions for failures to comply with the Code of Ethics by
21
relevant providers covered by the scheme; and
22
(d) arrangements for resolving disputes between the monitoring
23
body and relevant providers covered by the scheme; and
24
(e) arrangements for making complaints to the monitoring body
25
in relation to failures to comply with, or possible failures to
26
comply with, the Code of Ethics by relevant providers
27
covered by the scheme.
28
(3) The application must include evidence that the monitoring body
29
has sufficient resources and expertise to appropriately monitor and
30
enforce compliance with the Code of Ethics under the scheme.
31
Approval of compliance scheme
32
(4) ASIC may approve the scheme if it is satisfied that:
33
Schedule 1 Amendments
Part 1 Amendments
16
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
(a) compliance with the Code of Ethics will be appropriately
1
monitored and enforced under the scheme; and
2
(b) the monitoring body has sufficient resources and expertise to
3
appropriately monitor and enforce compliance with the Code
4
of Ethics under the scheme.
5
(5) ASIC may approve the scheme subject to any one or more
6
conditions ASIC considers appropriate.
7
(6) ASIC must, within a reasonable period, decide the application and
8
notify the monitoring body of:
9
(a) the decision; and
10
(b) any condition mentioned in subsection (5).
11
Revocation of approval, imposition of additional conditions etc.
12
(7) ASIC may, in accordance with subsection (8), take an action
13
specified under subsection (9) if ASIC is satisfied:
14
(a) that compliance with the Code of Ethics is not being
15
appropriately monitored or enforced under the scheme; or
16
(b) that the monitoring body has not complied with:
17
(i) section 921N (obligation to notify licensee of failure to
18
comply with Code of Ethics); or
19
(ii) a request under section 921Q (obligation to provide
20
ASIC with information); or
21
(iii) section 921T (obligation to notify ASIC of changes to
22
monitoring body); or
23
(iv) section 922HD (obligation to notify ASIC in relation to
24
failures to comply with the Code of Ethics); or
25
(c) that the monitoring body does not have sufficient resources
26
or expertise to appropriately monitor or enforce compliance
27
with the Code of Ethics under the scheme.
28
(8) ASIC must not take an action specified under subsection (9)
29
unless:
30
(a) ASIC gives a written notice to the monitoring body:
31
(i) providing reasons why ASIC is considering taking the
32
action; and
33
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
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17
(ii) stating that the monitoring body has 90 business days to
1
make submissions to ASIC, in accordance with the
2
notice, about the possible action; and
3
(b) ASIC has considered any submissions made by the
4
monitoring body in accordance with the notice.
5
(9) The following actions are specified:
6
(a) revoking the approval of the scheme;
7
(b) varying a condition imposed in relation to the approval of the
8
scheme;
9
(c) imposing an additional condition in relation to the approval
10
of the scheme.
11
Revocation of conditions etc.
12
(10) ASIC may revoke or vary a condition imposed in relation to the
13
approval of the scheme if ASIC is satisfied that compliance with
14
the Code of Ethics will continue to be appropriately monitored and
15
enforced under the scheme if ASIC revokes or varies the condition.
16
(11) ASIC must, within a reasonable period, notify the monitoring body
17
if ASIC revokes or varies a condition under subsection (10).
18
Subdivision C--Investigations by monitoring body
19
921L Investigations by monitoring body
20
Investigation into failure, or possible failure, to comply with Code
21
of Ethics
22
(1) The monitoring body for a compliance scheme must determine, in
23
writing, whether a relevant provider covered by the scheme has
24
failed to comply with the Code of Ethics if the monitoring body
25
becomes aware of the failure, or possible failure, by the relevant
26
provider to comply with the Code of Ethics.
27
Notifying relevant provider of investigation
28
(2) Within a reasonable period of becoming so aware, the monitoring
29
body must notify the relevant provider that the monitoring body:
30
(a) has become so aware; and
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(b) is to make a determination under subsection (1).
1
Note:
A monitoring body that fails to comply with this subsection may
2
commit an offence (see subsection 921M(1)).
3
Request for information
4
(3) After becoming so aware, the monitoring body may request, in
5
writing, any one or more of the following persons to provide
6
information, documents or any other reasonable assistance to the
7
monitoring body, within a reasonable specified period:
8
(a) if the relevant provider is a financial services licensee--the
9
licensee;
10
(b) if the relevant provider is not a financial services licensee:
11
(i) the relevant provider; or
12
(ii) the financial services licensee on whose behalf the
13
relevant provider is authorised to provide personal
14
advice to retail clients in relation to relevant financial
15
products; or
16
(iii) if the relevant provider is a relevant provider as a result
17
of section 916B--the authorised representative who
18
authorised the relevant provider under that section.
19
Note:
A person who fails to comply with a request under this subsection
20
may commit an offence (see subsection 921M(2)).
21
Restriction on relevant provider leaving compliance scheme
22
(4) The relevant provider must not cause a notice to be lodged under
23
section 922H stating that another compliance scheme is to cover
24
the relevant provider before the monitoring body has made a
25
determination under subsection (1).
26
Note:
A relevant provider who fails to comply with this subsection may
27
commit an offence (see subsection 921M(3)).
28
Completion of investigation
29
(5) The monitoring body must make the determination:
30
(a) if the relevant provider notifies the monitoring body that the
31
relevant provider intends to cause a notice to be lodged under
32
section 922H stating that another compliance scheme is to
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cover the relevant provider--within 160 days of receiving the
1
notice; or
2
(b) otherwise--within a reasonable period of becoming aware of
3
the failure, or possible failure, by the relevant provider to
4
comply with the Code of Ethics.
5
Note:
A monitoring body that fails to comply with this subsection may
6
commit an offence (see subsection 921M(1)).
7
Determination by monitoring body not a legislative instrument
8
(6) The determination is not a legislative instrument.
9
Offence
10
(7) A person commits an offence if:
11
(a) the person is a monitoring body for a compliance scheme;
12
and
13
(b) information is disclosed to the person in accordance with
14
subsection 70-40(3AA) of the Tax Agent Services Act 2009;
15
and
16
(c) the person uses or discloses the information for a purpose
17
other than monitoring or enforcing compliance with the Code
18
of Ethics under the scheme.
19
Penalty: 10 penalty units.
20
921M Offences relating to investigations by monitoring body
21
Failure by monitoring body to notify relevant provider of
22
investigation or complete investigation
23
(1) A person commits an offence if:
24
(a) the person is a monitoring body for a compliance scheme;
25
and
26
(b) the person fails to comply with subsection 921L(2) or (5).
27
Penalty: 10 penalty units.
28
Failure to comply with request for information
29
(2) A person commits an offence if:
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(a) a request is made of the person under subsection 921L(3);
1
and
2
(b) the person fails to comply with the request within the period
3
specified.
4
Penalty: 10 penalty units.
5
Leaving compliance scheme before investigation completed
6
(3) A person commits an offence if:
7
(a) the person is a relevant provider; and
8
(b) the person is covered by a compliance scheme; and
9
(c) the monitoring body for the scheme notifies the person that
10
the monitoring body has become aware of a failure, or
11
possible failure, by the person to comply with the Code of
12
Ethics; and
13
(d) the person contravenes subsection 921L(4).
14
Penalty: 10 penalty units.
15
921N Obligation to notify licensee of failure to comply with Code of
16
Ethics
17
(1) A monitoring body for a compliance scheme that covers a relevant
18
provider must notify a financial services licensee if:
19
(a) either:
20
(i) the monitoring body determines under
21
subsection 921L(1) that the relevant provider has failed
22
to comply with the Code of Ethics; or
23
(ii) the monitoring body imposes a sanction on the relevant
24
provider in relation to a failure to comply with the Code
25
of Ethics; and
26
(b) the relevant provider is authorised by the licensee to provide
27
personal advice to retail clients in relation to relevant
28
financial products.
29
(2) The monitoring body must notify the licensee within 30 days after
30
making the determination or imposing the sanction.
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Note 1:
The approval for a compliance scheme may be revoked if the
1
monitoring body for the scheme does not comply with this section
2
(see subsection 921K(7)).
3
Note 2:
ASIC must be notified if a monitoring body becomes aware of a
4
failure, or possible failure, to comply with the Code of Ethics by a
5
relevant provider, or if a sanction is imposed on a relevant provider
6
under a compliance scheme (see section 922HD).
7
Subdivision D--Other provisions
8
921P Obligation to ensure that compliance scheme is publicly
9
available
10
(1) A monitoring body for a compliance scheme must ensure that the
11
scheme is publicly available while any approval given under
12
section 921K is in force in relation to the scheme.
13
Offence
14
(2) A person commits an offence if:
15
(a) the person is a monitoring body for a compliance scheme;
16
and
17
(b) an approval given under section 921K is in force in relation
18
to the scheme; and
19
(c) the scheme is not publicly available.
20
Penalty: 10 penalty units.
21
921Q Obligation to provide ASIC with information
22
(1) ASIC may request, in writing, a monitoring body for a compliance
23
scheme to give ASIC any specified information or documents
24
about the compliance scheme within a reasonable specified period.
25
(2) The monitoring body must comply with the request within the
26
period specified.
27
Note:
The approval for a compliance scheme may be revoked if the
28
monitoring body for the scheme does not comply with this section
29
(see subsection 921K(7)).
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921R Modification of compliance scheme
1
(1) While an approval given under section 921K is in force in relation
2
to a compliance scheme, the monitoring body for the scheme may,
3
by written notice given to ASIC, propose to modify the scheme.
4
(2) The notice must:
5
(a) set out the text of the proposed modification; and
6
(b) contain an explanation of the purpose of the proposed
7
modification.
8
Disallowance of modification
9
(3) Within the 28-day period beginning on the day ASIC receives the
10
notice, ASIC may, by written notice given to the monitoring body,
11
disallow all or a specified part of the proposed modification if
12
ASIC is satisfied on reasonable grounds that:
13
(a) compliance with the Code of Ethics will not be appropriately
14
monitored or enforced under the scheme as modified; or
15
(b) if the proposed modification is a new monitoring body for the
16
scheme--the new monitoring body does not have sufficient
17
resources or expertise to appropriately monitor or enforce
18
compliance with the Code of Ethics under the scheme.
19
Effect of disallowance
20
(4) If ASIC disallows the proposed modification within the 28-day
21
period, the proposed modification does not take effect.
22
(5) If ASIC disallows a specified part of the proposed modification
23
within the 28-day period:
24
(a) the specified part does not take effect; and
25
(b) the proposed modification without the specified part takes
26
effect at the end of the period.
27
No disallowance
28
(6) Otherwise, the proposed modification takes effect at the end of the
29
28-day period.
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921S Obligation to review compliance scheme
1
(1) A monitoring body for a compliance scheme must cause another
2
person to complete a review of the scheme before the end of:
3
(a) the 5-year period beginning on the day ASIC approves the
4
scheme under section 921K; and
5
(b) each subsequent 5-year period.
6
(2) The other person mentioned in subsection (1) must not be:
7
(a) an associate of the monitoring body; or
8
(b) a person covered by the scheme; or
9
(c) if a relevant provider covered by the scheme is authorised to
10
provide personal advice to retail clients, on behalf of a
11
financial services licensee, in relation to relevant financial
12
products--the licensee; or
13
(d) if a relevant provider covered by the scheme is a member of a
14
professional association--the professional association.
15
(3) As soon as reasonably practical after the review has been
16
completed, the monitoring body must:
17
(a) make the review publicly available; and
18
(b) give a copy of the review to ASIC.
19
921T Obligation to notify ASIC of changes to monitoring body
20
A monitoring body for a compliance scheme must notify ASIC if
21
the monitoring body significantly reduces the resources or
22
expertise that it uses to monitor or enforce compliance with the
23
Code of Ethics under the scheme.
24
Note:
The approval for a compliance scheme may be revoked if the
25
monitoring body for the scheme does not comply with this section
26
(see subsection 921K(7)).
27
Division 8C--The standards body
28
Subdivision A--Functions of the standards body
29
921U Functions of the standards body
30
(1) The functions of the standards body are:
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(a) to make the legislative instruments mentioned in
1
subsections (2), (3) and (5); and
2
(b) to review those instruments regularly; and
3
(c) if an application is made under subsection 921V(1) for
4
approval of a foreign qualification--to approve, or refuse to
5
approve, the foreign qualification; and
6
(d) if an exam approved for the purposes of subsection 921B(3)
7
is to be administered by the standards body--to administer
8
the exam; and
9
(e) any other function prescribed by this Act.
10
Legislative instruments
11
(2) The standards body must, by legislative instrument:
12
(a) do any or all of the following in one or more determinations:
13
(i) approve bachelor or higher degrees, or equivalent
14
qualifications, for the purposes of
15
paragraph 921B(2)(a);
16
(ii) approve an exam for the purposes of
17
subsection 921B(3);
18
(iii) set requirements for work and training for the purposes
19
of subsection 921B(4);
20
(iv) set requirements for continuing professional
21
development for the purposes of subsection 921B(5) in
22
relation to the CPD year of a financial services licensee,
23
the period mentioned in subsection 1546E(5), or any
24
other period determined by the standards body;
25
(v) specify a word or expression to refer to a provisional
26
relevant provider; and
27
(b) make a Code of Ethics for the purposes of section 921E.
28
(3) The standards body may, by legislative instrument, in one or more
29
determinations, modify the operation of a provision in this Part in
30
relation to a period determined by the standards body under
31
subparagraph (2)(a)(iv).
32
(4) A determination made under subsection (3) has effect according to
33
its terms, despite any other provision of this Act.
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(5) The standards body may, by legislative instrument, do either or
1
both of the following in one or more determinations:
2
(a) provide further in relation to the requirements set out in
3
section 921F (requirements relating to provisional relevant
4
providers);
5
(b) set other requirements in relation to a person who is a
6
provisional relevant provider.
7
Consultation
8
(6) Before making a legislative instrument under subsection (2), (3) or
9
(5), or when reviewing a legislative instrument under
10
paragraph (1)(b), the standards body must consult:
11
(a) financial services licensees; and
12
(b) relevant providers; and
13
(c) associations representing consumers of financial services;
14
and
15
(d) professional associations; and
16
(e) ASIC and the Department; and
17
(f) any other person or body that the standards body considers it
18
appropriate to consult.
19
(7) Without limiting subsection (6), the standards body is taken to
20
have consulted the persons and bodies mentioned in that subsection
21
if, on its website, the standards body:
22
(a) before making a legislative instrument under subsection (2),
23
(3) or (5):
24
(i) makes the proposed legislative instrument, or a
25
description of the content of the proposed legislative
26
instrument, available; and
27
(ii) invites those persons and bodies to comment on the
28
proposed legislative instrument; or
29
(b) when reviewing a legislative instrument under
30
paragraph (1)(b)--invites those persons and bodies to
31
comment on the legislative instrument.
32
(8) A failure to comply with subsection (6) does not affect the validity
33
or enforceability of a legislative instrument made under
34
subsection (2), (3) or (5).
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Fees
1
(9) The standards body may charge fees for things done in performing
2
its functions.
3
Note:
For the treatment of legislative instruments made under this section
4
when the declaration of a body corporate to be the standards body is
5
revoked, see section 921Y.
6
921V Approval of foreign qualifications
7
Application for approval
8
(1) A person who has completed a foreign qualification may apply to
9
the standards body for approval of the foreign qualification.
10
(2) An application under subsection (1) must be in a form approved, in
11
writing, by the standards body.
12
Approval or refusal to approve
13
(3) The standards body must either:
14
(a) approve the foreign qualification in accordance with
15
subsection (4); or
16
(b) refuse to approve the foreign qualification.
17
(4) The standards body may approve the foreign qualification only if:
18
(a) the standards body is satisfied that the foreign qualification
19
gives the person qualifications equivalent to a degree or
20
qualification approved by the standards body for the purposes
21
of paragraph 921B(2)(a); or
22
(b) both of the following apply:
23
(i) the standards body specifies one or more courses to be
24
completed by the person under subsection (5) of this
25
section;
26
(ii) the person completes each of those courses.
27
(5) The standards body may specify one or more courses for the
28
purposes of paragraph (4)(b) only if the standards body is satisfied
29
that (together with the person's foreign qualification) the course or
30
courses will give the person qualifications equivalent to a degree or
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qualification approved by the standards body for the purposes of
1
paragraph 921B(2)(a).
2
When approval takes effect
3
(6) An approval under paragraph (3)(a) comes into force:
4
(a) if the standards body specifies one or more courses to be
5
completed by the person under subsection (5)--when the
6
person has completed all of those courses; or
7
(b) otherwise--when it is given.
8
Review of decision
9
(7) A person may apply to the Tribunal for review of:
10
(a) a decision by the standards body under paragraph (3)(b) to
11
refuse to approve the person's foreign qualification; or
12
(b) a decision by the standards body under subsection (5) to
13
specify one or more courses to be completed by the person.
14
Notice of reviewable decision and review rights
15
(8) Section 1317D applies in relation to a decision mentioned in
16
paragraph (7)(a) or (b) of this section as if:
17
(a) the standards body were a decision maker for the purposes of
18
section 1317D; and
19
(b) the decision were a decision to which section 1317B applied.
20
921W Commencement of Code of Ethics and amendments of Code
21
of Ethics
22
(1) The Code of Ethics must not commence earlier than 30 days after
23
the Code is registered under the Legislation Act 2003.
24
(2) An amendment of the Code of Ethics must not commence earlier
25
than 30 days after the amendment is registered under the
26
Legislation Act 2003.
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Subdivision B--Declaration of the standards body
1
921X Minister to declare a body corporate to be the standards body
2
(1) The Minister may (subject to subsection (2)), by notifiable
3
instrument, declare a body corporate to be the standards body.
4
(2) The Minister may make a declaration under subsection (1) only if
5
the following requirements are met:
6
(a) the body is a company limited by guarantee;
7
(b) the Minister is satisfied that the body is likely to comply with
8
its obligations under this Act and other laws of the
9
Commonwealth;
10
(c) the body's constitution provides the following:
11
(i) the functions of the body mentioned in section 921U;
12
(ii) the body must not be operated for profit;
13
(iii) the body must have 9 directors;
14
(iv) at least 3 directors (excluding the chair of the board of
15
directors) must have experience in carrying on a
16
financial services business or providing a financial
17
service;
18
(v) at least 3 directors (excluding the chair of the board of
19
directors) must have experience in representing
20
consumers of financial services;
21
(vi) at least one director (excluding the chair of the board of
22
directors) must have experience in the field of ethics;
23
(vii) at least one director (excluding the chair of the board of
24
directors) must have experience in designing, or the
25
requirements of, educational courses or qualifications;
26
(viii) a director must not hold a managerial or executive office
27
in a professional association or association representing
28
consumers of financial services;
29
(ix) a director must not represent any professional
30
association, or association representing consumers of
31
financial services, to which the director belongs;
32
(x) the Minister must appoint each director;
33
(xi) a director may resign his or her appointment by giving
34
the Minister, and the body, a written resignation;
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(xii) the resignation takes effect on the day it has been
1
received by both the Minister and the body or, if a later
2
day is specified in the resignation, on that later day.
3
(3) The declaration must specify the time at which it takes effect.
4
(4) The Minister must table the declaration in each House of the
5
Parliament as soon as practicable.
6
921Y Minister may revoke declaration under section 921X
7
(1) The Minister may, at any time, by notifiable instrument, revoke a
8
declaration under section 921X.
9
(2) The revocation must specify:
10
(a) the time at which it takes effect; and
11
(b) which legislative instruments made by the standards body
12
under subsection 921U(2), (3) or (5) continue in force, and
13
which are taken to be revoked at that time; and
14
(c) which approvals (if any) given by the standards body under
15
paragraph 921V(3)(a) continue in force (or are to come into
16
and continue in force), and which are taken to be revoked at
17
that time.
18
(3) A revocation under subsection (1) that specifies that a legislative
19
instrument, or an approval, is taken to be revoked at a particular
20
time has effect according to its terms.
21
Tabling of revocation
22
(4) The Minister must table the revocation in each House of the
23
Parliament as soon as practicable.
24
Performance by Minister of certain functions of standards body
25
when no declaration is in force
26
(5) If no declaration under section 921X is in force at a particular time,
27
the Minister may make a legislative instrument or decision as if the
28
Minister were performing the functions of the standards body
29
under paragraph 921U(1)(a) or (c).
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Instruments and decisions made by Minister etc.
1
(6) If a declaration under section 921X comes into force after the
2
Minister has made a legislative instrument or decision for the
3
purposes of subsection (5) of this section, the standards body may
4
vary or revoke the legislative instrument or decision.
5
Relationship with Acts Interpretation Act 1901
6
(7) This section does not limit the operation of subsection 33(3) of the
7
Acts Interpretation Act 1901.
8
Subdivision C--Other provisions relating to the standards body
9
921Z Modification of the standards body's constitution
10
(1) As soon as practicable after a significant modification of the
11
standards body's constitution takes effect, the standards body must
12
notify the Minister in writing of the modification.
13
(2) The notice must:
14
(a) set out the text of the modification; and
15
(b) specify the date on which the modification takes effect; and
16
(c) contain an explanation of the purpose of the modification.
17
(3) If no notice is lodged with the Minister within 21 days after the
18
modification takes effect, the modification ceases to have effect.
19
(4) A notice made under this section is not a legislative instrument.
20
921ZA Disallowance of modifications of the standards body's
21
constitution
22
(1) Within 28 days after receiving a notice under section 921Z, the
23
Minister may disallow all or a specified part of the modification of
24
the standards body's constitution.
25
(2) As soon as practicable after all or part of a modification is
26
disallowed, the Minister must give notice of the disallowance to
27
the standards body. The modification ceases to have effect, to the
28
extent of the disallowance, when the standards body receives the
29
notice.
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921ZB Minister may direct the standards body to do certain things
1
(1) The Minister may give a written direction to the standards body if
2
the Minister considers that the standards body is not complying
3
with its obligations under this Act or under any arrangement it has
4
with the Commonwealth.
5
(2) The standards body must comply with the direction.
6
(3) The Minister may, at any time, vary or revoke a direction.
7
(4) Despite paragraph (b) in the definition of director in section 9, the
8
Minister is not a director of the standards body.
9
921ZC Annual report
10
As soon as practicable after the end of a financial year, the
11
standards body must:
12
(a) publish on its website the annual report for the financial year
13
prepared under Chapter 2M; and
14
(b) give a copy of the report to the Minister.
15
13 Before section 922A
16
Insert:
17
Subdivision A--Registers generally
18
14 At the end of subsection 922A(2)
19
Add:
20
Note:
The Register of Relevant Providers is maintained under Subdivision C
21
of this Division.
22
15 Section 922B
23
Repeal the section, substitute:
24
922B Fees for searching registers
25
The regulations may prescribe the fees that a person must pay to
26
ASIC to do the things mentioned in section 1274A in relation to a
27
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register mentioned in section 922A or the Register of Relevant
1
Providers.
2
Note:
Section 1274A provides that ASIC may permit a person to search
3
certain registers kept by ASIC for prescribed information.
4
16 At the end of Division 9 of Part 7.6
5
Add:
6
Subdivision B--Notice requirements relating to the Register of
7
Relevant Providers
8
922D Obligation to notify ASIC about a person who becomes a
9
relevant provider
10
Notice to include details about relevant provider
11
(1) A notice must be lodged under this section, in accordance with
12
section 922L, if a person becomes a relevant provider.
13
Note:
A financial services licensee required to lodge a notice under this
14
section may obtain information from a relevant provider under
15
section 922N.
16
Content of notice
17
(2) The notice must include:
18
(a) for a relevant provider who is a financial services licensee--
19
the information in section 922E; or
20
(b) for a relevant provider who is not a financial services
21
licensee--the information in section 922F.
22
922E Information about a relevant provider who is a financial
23
services licensee
24
(1) For the purposes of paragraph 922D(2)(a), the notice must include
25
the following:
26
(a) the relevant provider's name;
27
(b) the address of the relevant provider's principal place of
28
business;
29
(c) the licence number given to the relevant provider under
30
subsection 913C(1);
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(d) the year in which the relevant provider first provided
1
personal advice to retail clients in relation to relevant
2
financial products in accordance with the law (including the
3
law of a State or Territory);
4
(e) if applicable, the ABN of the relevant provider;
5
(f) information about both of the following:
6
(i) the relevant financial products in relation to which the
7
relevant provider is authorised to provide personal
8
advice to retail clients;
9
(ii) whether the relevant provider is authorised to provide
10
class of product advice in relation to some or all of
11
those products;
12
(g) the recent advising history of the relevant provider for the 5
13
years ending immediately before the time the notice is
14
lodged;
15
(h) information about both of the following:
16
(i) the educational qualifications of, and any training
17
courses completed by, the relevant provider, to the
18
extent that the qualifications and training courses are
19
relevant to the provision of financial services;
20
(ii) the relevant provider's membership (if any) of a
21
professional association if an approval is in force under
22
section 921K in relation to a compliance scheme
23
monitored and enforced by the association;
24
(i) the name of the compliance scheme that is to cover the
25
relevant provider.
26
Note:
For the meaning of recent advising history, see section 922G.
27
Educational qualifications and memberships
28
(2) For the purposes of subparagraph (1)(h)(i), if a relevant provider
29
has more than 5 educational qualifications or has completed more
30
than 5 training courses, the notice must include the 5 qualifications
31
or training courses that the person lodging the notice believes, on
32
reasonable grounds, are most relevant to the provision of financial
33
services.
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922F Information about a relevant provider who is not a financial
1
services licensee
2
(1) For the purposes of paragraph 922D(2)(b), the notice must include
3
the following:
4
(a) the relevant provider's name;
5
(b) the address of the relevant provider's principal place of
6
business;
7
(c) the relevant provider's date and place of birth;
8
(d) the name of the financial services licensee on whose behalf
9
the relevant provider is authorised to provide personal advice
10
to retail clients in relation to relevant financial products;
11
(e) the licence number given to that licensee under
12
subsection 913C(1);
13
(f) if the relevant provider is a provisional relevant provider--
14
the fact that the relevant provider is a provisional relevant
15
provider;
16
(g) if the relevant provider is a provisional relevant provider--
17
the day the relevant provider began undertaking work and
18
training in accordance with subsection 921B(4);
19
(h) except in relation to provisional relevant providers--the year
20
in which the relevant provider first provided personal advice
21
to retail clients in relation to relevant financial products in
22
accordance with the law (including the law of a State or
23
Territory);
24
(i) if the relevant provider is a relevant provider as a result of
25
section 916B--each of the following:
26
(i) the name of the authorised representative who
27
authorised the relevant provider under that section;
28
(ii) the number allocated to the authorised representative by
29
ASIC;
30
(j) if applicable, the ABN of any of the following:
31
(i) the relevant provider;
32
(ii) the licensee referred to in paragraph (d);
33
(iii) the authorised representative referred to in paragraph (i);
34
(k) details of both of the following:
35
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(i) the relevant financial products in relation to which the
1
relevant provider is authorised to provide personal
2
advice to retail clients;
3
(ii) whether the relevant provider is authorised to provide
4
class of product advice in relation to some or all of
5
those products;
6
(l) the recent advising history of the relevant provider for the 5
7
years ending immediately before the time the notice is
8
lodged;
9
(m) information about both of the following:
10
(i) the educational qualifications of, and any training
11
courses completed by, the relevant provider, to the
12
extent that the qualifications and training courses are
13
relevant to the provision of financial services;
14
(ii) the relevant provider's membership (if any) of a
15
professional association if an approval is in force under
16
section 921K in relation to a compliance scheme
17
monitored and enforced by the association;
18
(n) the name of the compliance scheme that is to cover the
19
relevant provider.
20
Note:
For the meaning of recent advising history, see section 922G.
21
Educational qualifications and memberships
22
(2) For the purposes of subparagraph (1)(m)(i), if a relevant provider
23
has more than 5 educational qualifications or has completed more
24
than 5 training courses, the notice must include the 5 qualifications
25
or training courses that the person lodging the notice believes, on
26
reasonable grounds, are most relevant to the provision of financial
27
services.
28
Information already registered
29
(3) The notice does not need to include the information referred to in
30
paragraph (1)(h), (l) or (m) if:
31
(a) the person required under subsection 922L(4) to cause the
32
notice to be lodged believes on reasonable grounds that the
33
information has previously been lodged; or
34
(b) the information is already entered on the Register of Relevant
35
Providers.
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Provisional relevant providers
1
(4) The notice does not need to include the information referred to in
2
paragraph (1)(k) in relation to a provisional relevant provider if
3
that information is not known at the time the notice relating to the
4
provisional relevant provider is lodged by the licensee.
5
Note:
A notice must be lodged under section 922H once this information is
6
known.
7
922G Meaning of recent advising history
8
The recent advising history of a relevant provider is the following
9
information:
10
(a) for a relevant provider who is or was a financial services
11
licensee authorised to provide personal advice to retail clients
12
in relation to relevant financial products--each period during
13
which the relevant provider was such a licensee;
14
(b) for a relevant provider who is or was authorised to provide
15
personal advice to retail clients, on behalf of one or more
16
financial services licensees, in relation to relevant financial
17
products--the following information:
18
(i) the name of each licensee;
19
(ii) if the relevant provider is or was a relevant provider as a
20
result of section 916B--the name of each authorised
21
representative who authorised the relevant provider
22
under that section;
23
(iii) each period during which the relevant provider was
24
authorised by each licensee or each authorised
25
representative to provide such advice.
26
Note:
If a relevant provider is covered by paragraphs (a) and (b) of this
27
section, the relevant provider's recent advising history includes all the
28
information required under those paragraphs.
29
922H Ongoing obligation to notify ASIC when there is a change in a
30
matter for a relevant provider
31
(1) A notice must be lodged under this section, in accordance with
32
section 922L, if:
33
(a) there is a change in a matter, particulars of which are entered
34
for a relevant provider in the Register of Relevant Providers
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(other than a change that is a direct consequence of an act by
1
ASIC); or
2
(b) both of the following apply:
3
(i) a notice is lodged under section 922D in relation to a
4
relevant provider by a financial services licensee
5
without including the information referred to in
6
paragraph 922F(1)(k);
7
(ii) the information becomes known to the licensee after the
8
notice is lodged.
9
Note:
For paragraph (1)(a) of this section, an example of a change in a
10
matter would be a person ceasing to be a relevant provider. Another
11
example would be a change in the compliance scheme that covers a
12
relevant provider.
13
(2) The notice must include the following information:
14
(a) the new particulars or information to be entered in the
15
Register;
16
(b) the relevant provider's name;
17
(c) if applicable, the number given to the relevant provider under
18
section 922R.
19
922HA Obligation to notify ASIC of financial services licensee's
20
CPD year
21
(1) A notice must be lodged under this subsection, in accordance with
22
section 922L, if ASIC grants an applicant an Australian financial
23
services licence that covers the provision of personal advice to
24
retail clients in relation to relevant financial products.
25
(2) A notice lodged under subsection (1) must include the day on
26
which the licensee's CPD year is to begin.
27
(3) A notice must be lodged under this subsection, in accordance with
28
section 922L, if a financial services licensee:
29
(a) has previously lodged a notice under subsection (1) or this
30
subsection specifying a particular day of the year; and
31
(b) decides that the licensee's CPD year is to begin on another
32
day of the year; and
33
(c) has not lodged a notice under subsection (1) or this
34
subsection in the 12-month period preceding that decision.
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(4) A notice lodged under subsection (3) must include the day on
1
which the licensee's CPD year is to begin.
2
922HB Obligation to notify ASIC of non-compliance with continuing
3
professional development standard
4
(1) A notice must be lodged under this section, in accordance with
5
section 922L, in relation to a person if, at the end of a financial
6
services licensee's CPD year:
7
(a) the person:
8
(i) is the licensee; or
9
(ii) is authorised to provide personal advice to retail clients,
10
on behalf of the licensee, in relation to relevant financial
11
products; and
12
(b) the person is a relevant provider; and
13
(c) the relevant provider has not complied with section 921D
14
during the licensee's CPD year.
15
Note 1:
A financial services licensee may obtain information from a relevant
16
provider under section 922N for the purposes of determining whether
17
to lodge a notice under this section.
18
Note 2:
Subsection 921D(1) requires certain relevant providers to meet the
19
continuing professional development standard in subsection 921B(5).
20
(2) The notice must state that the relevant provider has not complied
21
with section 921D during the licensee's CPD year.
22
922HC Requirement to retain information
23
(1) A financial services licensee must retain evidence of the continuing
24
professional development undertaken during the licensee's CPD
25
year by:
26
(a) if the licensee is a relevant provider--the licensee; and
27
(b) if a relevant provider is authorised to provide personal advice
28
to retail clients, on behalf of the licensee, in relation to
29
relevant financial products--the relevant provider.
30
(2) The evidence must be retained for 12 months after the end of the
31
CPD year.
32
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Offence
1
(3) A person commits an offence if:
2
(a) the person is required to retain evidence under this section;
3
and
4
(b) the person fails to retain the evidence in accordance with this
5
section.
6
Penalty: 50 penalty units.
7
922HD Obligation to notify ASIC in relation to failures to comply
8
with the Code of Ethics
9
(1) A notice must be lodged under this subsection, in accordance with
10
section 922L, if:
11
(a) a monitoring body for a compliance scheme determines
12
under subsection 921L(1) that a relevant provider covered by
13
the scheme has failed to comply with the Code of Ethics; or
14
(b) a sanction is imposed on a relevant provider covered by a
15
compliance scheme in relation to a failure to comply with the
16
Code of Ethics by the relevant provider.
17
(2) The notice must include the following information:
18
(a) if the relevant provider is a financial services licensee--the
19
name of the licensee;
20
(b) if the relevant provider is not a financial services licensee:
21
(i) the name of the relevant provider; and
22
(ii) the name of the financial services licensee on whose
23
behalf the relevant provider is authorised to provide
24
personal advice to retail clients in relation to relevant
25
financial products;
26
(c) if paragraph (1)(a) applies--details of the failure to comply;
27
(d) if paragraph (1)(b) applies--details of the sanction imposed.
28
(3) If, in relation to the same failure to comply, the events mentioned
29
in paragraphs (1)(a) and (b) occur within 30 business days of one
30
another:
31
(a) a single notice may be lodged under subsection (1) within 30
32
business days of the later of those events; and
33
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(b) only one notice is taken to be required to be caused to be
1
lodged for the purposes of subsection 922M(1).
2
922J Obligation to notify ASIC about a person who starts to have
3
control of a body corporate licensee
4
(1) A notice must be lodged under this section, in accordance with
5
section 922L, if a person starts to have control of a body corporate
6
licensee.
7
Note:
Subsection 922P(3) provides that a notice is not required to be lodged
8
when a person starts and then ceases to have control of a body
9
corporate licensee within 30 business days.
10
(2) The notice must include the following information:
11
(a) the name of the licensee;
12
(b) the licence number given to the licensee under
13
subsection 913C(1);
14
(c) the name of the person who starts to have control of the
15
licensee;
16
(d) the day the person starts to have control of the licensee.
17
922K Obligation to notify ASIC about a person who ceases to have
18
control of a body corporate licensee
19
(1) A notice must be lodged under this section, in accordance with
20
section 922L, if a person ceases to have control of a body corporate
21
licensee.
22
Note:
Subsection 922P(3) provides that a notice is not required to be lodged
23
when a person starts and then ceases to have control of a body
24
corporate licensee within 30 business days.
25
(2) The notice must include the following information:
26
(a) the name of the licensee;
27
(b) the licence number given to the licensee under
28
subsection 913C(1);
29
(c) the name of the person who ceases to have control of the
30
licensee;
31
(d) the day the person ceases to have control of the licensee.
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922L Requirement for notice to be lodged
1
Notice in prescribed form
2
(1) A notice under a notice provision must be in the prescribed form.
3
Note 1:
Under section 350, a document that this Act requires to be lodged with
4
ASIC in a prescribed form must:
5
(a) if a form for the document is prescribed in the regulations--be in
6
that prescribed form; and
7
(b) if a form for the document is not prescribed in the regulations but
8
ASIC has approved a form for the document--be in that
9
approved form.
10
Note 2:
The prescribed form may deal with information that is required under
11
more than one section of this Act.
12
When notice must be lodged
13
(2) A notice under a notice provision must be lodged within 30
14
business days of the following day:
15
(a) if the notice is lodged under subsection 922HA(1)--the day
16
ASIC grants the Australian financial services licence
17
mentioned in that subsection;
18
(b) if the notice is lodged under subsection 922HA(3)--the day
19
the financial services licensee mentioned in that subsection
20
decides that the licensee's CPD year is to begin on another
21
day of the year;
22
(c) if the notice is lodged under subsection 922HB(1)--the last
23
day of the CPD year of the financial services licensee
24
mentioned in that subsection;
25
(d) if the notice is lodged under subsection 922HD(1)--(subject
26
to subsection 922HD(3)) the day the monitoring body
27
mentioned in subsection 922HD(1) determines under
28
subsection 921L(1) that a relevant provider has failed to
29
comply with the Code of Ethics or a sanction is imposed;
30
(e) if the notice is lodged under any other notice provision--the
31
day of the event mentioned in subsection (1) of the notice
32
provision.
33
(3) The information contained in the notice must be accurate as at the
34
day mentioned in paragraph (2)(a), (b), (c), (d) or (e).
35
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Who must cause notice to be lodged
1
(4) The following person must cause a notice under section 922D,
2
922H or 922HB to be lodged in relation to a relevant provider:
3
(a) if the relevant provider is a financial services licensee--the
4
licensee;
5
(b) otherwise--the financial services licensee on whose behalf
6
the relevant provider is authorised to provide personal advice
7
to retail clients in relation to relevant financial products.
8
(5) A notice under subsection 922HA(1) or (3) must be lodged by the
9
financial services licensee mentioned in that section.
10
(6) A notice under section 922HD must be lodged by the monitoring
11
body mentioned in subsection 922HD(1).
12
(7) A notice under section 922J or 922K relating to a person who starts
13
or ceases to have control of a body corporate licensee must be
14
lodged by the licensee.
15
922M Offence for failing to comply with obligation to notify ASIC
16
(1) A person commits an offence if:
17
(a) the person is required to cause a notice to be lodged under a
18
notice provision; and
19
(b) the person fails to cause the notice to be lodged in accordance
20
with that provision.
21
Note:
A notice must be lodged in accordance with section 922L in order to
22
be lodged in accordance with a notice provision (see subsection (1) of
23
the notice provision).
24
Penalty: 50 penalty units.
25
(2) However, subsection (1) does not apply if:
26
(a) the person fails to cause the notice to be lodged in accordance
27
with section 922D; and
28
(b) the only reason the person fails to cause the notice to be
29
lodged in accordance with that section is because the
30
information referred to in paragraph 922F(1)(h), (l) or (m) is
31
not included in the notice; and
32
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(c) subsection 922F(3) provides that the notice does not need to
1
include that information.
2
Note:
A defendant bears an evidential burden in relation to the matter in
3
subsection (2) (see subsection 13.3(3) of the Criminal Code).
4
(3) Subsection 4K(2) of the Crimes Act 1914 does not apply to
5
subsection (1) of this section.
6
Note:
A person may commit an offence if the person knowingly gives false
7
or misleading information (see section 1308 of this Act and
8
section 137.1 of the Criminal Code).
9
922N Obligation for relevant providers to provide information to
10
financial services licensees
11
Information about relevant provider
12
(1) A person must provide information to a financial services licensee
13
in accordance with this section if:
14
(a) the person is a relevant provider; and
15
(b) the person has been authorised to provide personal advice to
16
retail clients, on behalf of the licensee, in relation to relevant
17
financial products; and
18
(c) the licensee has asked the person to provide the information
19
so that the licensee can:
20
(i) comply with its obligation to lodge a notice relating to
21
the person in accordance with section 922D; or
22
(ii) comply with its obligation to lodge, under section 922H,
23
a notice relating to the person for the purposes of
24
section 921H; or
25
(iii) determine whether the licensee has an obligation to
26
lodge a notice under section 922HB.
27
Note:
A person may commit an offence if the person knowingly gives false
28
or misleading information (see section 1308 of this Act and
29
section 137.1 of the Criminal Code).
30
When information must be given
31
(2) The information must be given to the licensee within a period that
32
allows the licensee to comply with the obligation referred to in
33
paragraph (1)(c).
34
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922P Change in matter within 30 business days
1
(1) Notices must be given under sections 922D, 922H and 922HD in
2
relation to a person who was a relevant provider even if the person
3
ceases to be a relevant provider before a notice has been lodged
4
under section 922D.
5
(2) A notice is not required to be given under section 922HB in
6
relation to a person if:
7
(a) the person was a relevant provider at the end of a financial
8
services licensee's CPD year; and
9
(b) the person was authorised at that time to provide personal
10
advice to retail clients, on behalf of the licensee, in relation to
11
relevant financial products; and
12
(c) the person ceases to be a relevant provider within 30 business
13
days of becoming a relevant provider.
14
(3) A notice is not required to be given under sections 922J and 922K
15
in relation to a person who starts or ceases to have control of a
16
body corporate licensee if the person ceases to have control of the
17
licensee within 30 business days of starting to have control of the
18
licensee.
19
Subdivision C--Register of Relevant Providers
20
922Q Register of Relevant Providers
21
Register to include details of relevant providers
22
(1) ASIC must enter details on a Register of Relevant Providers in
23
respect of each person who is or was a relevant provider.
24
Contents of Register
25
(2) The details that must be entered on the Register include the
26
following:
27
(a) the relevant provider's name;
28
(b) the relevant provider's principal place of business;
29
(c) the name of each financial services licensee on whose behalf
30
the relevant provider is or was authorised to provide personal
31
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advice to retail clients in relation to relevant financial
1
products;
2
(d) if applicable, each person who has control of the licensee;
3
(e) the relevant provider's date and place of birth;
4
(f) the licence number given under subsection 913C(1) to the
5
relevant provider and each licensee referred to in
6
paragraph (c);
7
(g) if applicable, the number given under section 922R;
8
(h) if the relevant provider is a relevant provider as a result of
9
section 916B:
10
(i) the name of the authorised representative who
11
authorised the relevant provider under that section; and
12
(ii) the number allocated to the authorised representative by
13
ASIC;
14
(i) the recent advising history of the relevant provider;
15
(j) if the relevant provider is a provisional relevant provider:
16
(i) the fact that the relevant provider is a provisional
17
relevant provider; and
18
(ii) the day the relevant provider began undertaking work
19
and training in accordance with subsection 921B(4); and
20
(iii) a statement that the relevant provider is required to be
21
supervised in accordance with Subdivision C of
22
Division 8A;
23
(k) except in relation to provisional relevant providers--the year
24
in which the relevant provider first provided personal advice
25
to retail clients in relation to relevant financial products in
26
accordance with the law (including the law of a State or
27
Territory);
28
(l) whether the person is currently, or has ceased to be, a
29
relevant provider;
30
(m) if a financial services licensee has lodged a notice under
31
section 922HB in relation to the relevant provider--that the
32
relevant provider did not comply with section 921D during
33
the licensee's CPD year;
34
(n) if the relevant provider has been disqualified from managing
35
corporations--information contained on the register
36
established under section 1274AA;
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(o) if the relevant provider has been banned or disqualified under
1
section 80 or 86 of the National Consumer Credit Protection
2
Act 2009--information about that banning or
3
disqualification;
4
(p) if the relevant provider has been banned, disqualified or
5
suspended under Division 8 of Part 7.6, or under
6
section 130F of the Superannuation Industry (Supervision)
7
Act 1993--information about that banning, disqualification
8
or suspension;
9
(q) if the relevant provider has given an undertaking under either
10
or both section 93AA of the ASIC Act and section 322 of the
11
National Consumer Credit Protection Act 2009--information
12
about that undertaking;
13
(r) if a monitoring body for a compliance scheme determines
14
under subsection 921L(1) that the relevant provider who is
15
covered by the scheme has failed to comply with the Code of
16
Ethics:
17
(i) details of the failure to comply; and
18
(ii) details of any sanction imposed on the relevant provider
19
in relation to the failure to comply;
20
(s) if applicable, information about both of the following:
21
(i) the relevant financial products in relation to which the
22
relevant provider is authorised to provide personal
23
advice to retail clients;
24
(ii) whether the relevant provider is authorised to provide
25
class of product advice in relation to some or all of
26
those products;
27
(t) if applicable, the ABN of any of the following:
28
(i) the relevant provider;
29
(ii) each licensee referred to in paragraph (c);
30
(iii) if applicable, the authorised representative referred to in
31
paragraph (h);
32
(u) information about both of the following:
33
(i) the educational qualifications of, and any training
34
courses completed by, the relevant provider (but not
35
courses completed for the purposes of
36
subsection 921B(5)), to the extent that the qualifications
37
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Advisers) Bill 2016
47
and training courses are relevant to the provision of
1
financial services;
2
(ii) the relevant provider's membership (if any) of a
3
professional association if an approval is in force under
4
section 921K in relation to a compliance scheme
5
monitored and enforced by the association;
6
(v) the name of the compliance scheme that is to cover the
7
relevant provider;
8
(w) any other information that ASIC believes should be included
9
in the Register that relates to the provision of financial
10
services by the relevant provider.
11
Note 1:
Not all of the Register's contents are publicly available. However,
12
section 1274A provides that ASIC may permit a person to search
13
certain registers kept by ASIC for prescribed information.
14
Note 2:
Information in paragraph (2)(s) may not be known in relation to a
15
provisional relevant provider (see subsection 922F(4)).
16
922R Relevant provider number
17
ASIC may give a unique number (or any unique combination of
18
numbers, characters, symbols and letters) to a person who is a
19
relevant provider.
20
922S Correcting the Register
21
ASIC may correct any error in, or omission from, the Register of
22
Relevant Providers.
23
Note:
Australian Privacy Principle 13 applies to ASIC and requires it to take
24
reasonable steps to correct personal information that is wrong or
25
misleading so that the information is accurate, up to date, complete,
26
relevant and not misleading (see Schedule 1 to the Privacy Act 1988).
27
17 At the end of Division 10 of Part 7.6
28
Add:
29
923C Restriction on use of terms "financial adviser" and "financial
30
planner"
31
(1) A person contravenes this subsection if:
32
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Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
(a) the person carries on a financial services business or provides
1
a financial service (whether or not on behalf of another
2
person); and
3
(b) the person assumes or uses, in this jurisdiction, a restricted
4
word or expression in relation to the service; and
5
(c) any of the following apply:
6
(i) the person is not a relevant provider;
7
(ii) the person is a provisional relevant provider;
8
(iii) the person is a limited-service time-sharing adviser.
9
Note 1:
For the meanings of restricted word or expression and assume or use,
10
see subsections (8) and (9) of this section.
11
Note 2:
A contravention of this subsection is an offence (see
12
subsection 1311(1)).
13
(2) A person (the first person) contravenes this subsection if:
14
(a) the first person carries on a financial services business or
15
provides a financial service; and
16
(b) another person provides a financial service on behalf of the
17
person; and
18
(c) the first person assumes or uses, in this jurisdiction, a
19
restricted word or expression in relation to the service; and
20
(d) any of the following apply:
21
(i) the first person is not a relevant provider;
22
(ii) the first person is a provisional relevant provider;
23
(iii) the first person is a limited-service time-sharing adviser.
24
Note 1:
For the meanings of restricted word or expression and assume or use,
25
see subsections (8) and (9) of this section.
26
Note 2:
A contravention of this subsection is an offence (see
27
subsection 1311(1)).
28
Advice to wholesale clients
29
(3) It is not a contravention of subsection (1) for a person to assume or
30
use a restricted word or expression if:
31
(a) the person provides advice to wholesale clients; and
32
(b) the person assumes or uses the restricted word or expression
33
only in relation to that advice.
34
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Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
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49
Note:
A defendant bears an evidential burden in relation to the matters in
1
subsection (3). See subsection 13.3(3) of the Criminal Code.
2
(4) It is not a contravention of subsection (2) for a person to assume or
3
use a restricted word or expression if:
4
(a) another person (the adviser) provides a financial service on
5
behalf of the person; and
6
(b) the adviser provides advice to wholesale clients; and
7
(c) the person assumes or uses the restricted word or expression
8
only in relation to that advice.
9
Note:
A defendant bears an evidential burden in relation to the matters in
10
subsection (4). See subsection 13.3(3) of the Criminal Code.
11
Advice as employee or director
12
(5) It is not a contravention of subsection (1) for a person to assume or
13
use a restricted word or expression if:
14
(a) the person is an employee or director of a body; and
15
(b) the person provides advice to the body; and
16
(c) the person assumes or uses the restricted word or expression
17
only in relation to that advice.
18
Note:
A defendant bears an evidential burden in relation to the matters in
19
subsection (5). See subsection 13.3(3) of the Criminal Code.
20
(6) It is not a contravention of subsection (2) for a person to assume or
21
use a restricted word or expression if:
22
(a) another person (the adviser) is an employee or director of a
23
body; and
24
(b) the adviser provides advice to the body; and
25
(c) the person assumes or uses the restricted word or expression
26
only in relation to that advice.
27
Note:
A defendant bears an evidential burden in relation to the matters in
28
subsection (6). See subsection 13.3(3) of the Criminal Code.
29
Continuing contravention
30
(7) If a person assumes or uses a word or expression in circumstances
31
that give rise to the person committing an offence under
32
subsection (1) or (2), the person commits the offence in respect of:
33
(a) the first day on which the offence is committed; and
34
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Corporations Amendment (Professional Standards of Financial
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No. , 2016
(b) each subsequent day (if any) on which the circumstances that
1
gave rise to the person committing the offence continue
2
(including the day of conviction for any such offence or any
3
later day).
4
References to restricted word or expression
5
(8) In this section:
6
(a) a reference to a restricted word or expression is a reference
7
to:
8
(i) the expression financial adviser or financial planner;
9
or
10
(ii) any other word or expression specified in the
11
regulations as a restricted word or expression for the
12
purposes of this section; or
13
(iii) any other word or expression (whether or not in
14
English) that is of like import to a word or expression
15
covered by any of the previous subparagraphs; and
16
(b) a reference to a restricted word or expression being assumed
17
or used includes a reference to the restricted word or
18
expression being assumed or used:
19
(i) as part of another word or expression; or
20
(ii) in combination with other words, letters or other
21
symbols.
22
(9) However, a reference in this section to a restricted word or
23
expression does not include a reference to a word or expression
24
mentioned in paragraph (8)(a) if:
25
(a) the word or expression mentioned in that paragraph is
26
assumed or used in relation to a provisional relevant
27
provider; and
28
(b) the word or expression is assumed or used as part of a word
29
or expression specified by the standards body for the
30
purposes of subparagraph 921U(2)(a)(v).
31
Contravention does not affect compensation arrangements
32
(10) To avoid doubt, this section does not affect the obligation of a
33
financial services licensee to have arrangements in place under
34
section 912B.
35
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
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51
Note:
Section 912B requires financial services licensees to have in place
1
compensation arrangements if the licensee provides financial services
2
to retail clients.
3
18 Paragraph 926A(6)(b)
4
After "Part 10.2", insert "or 10.23A".
5
19 Subsection 1274A(2)
6
After "prescribed register", insert "other than the Register of Relevant
7
Providers".
8
20 Schedule 3 (after table item 269A)
9
Insert:
10
11
269AAA
Subsection 923C(1)
10 penalty units for each day, or part
of a day, in respect of which the
offence is committed.
269AAB
Subsection 923C(2)
10 penalty units for each day, or part
of a day, in respect of which the
offence is committed.
Tax Agent Services Act 2009
12
21 Subparagraph 60-125(8)(c)(iv)
13
Omit "and".
14
22 At the end of paragraph 60-125(8)(c)
15
Add:
16
(v) if the decision or finding concerns a person
*
covered by
17
a
*
compliance scheme who provides a tax (financial)
18
advice service--the
*
monitoring body for the scheme;
19
and
20
23 At the end of paragraph 60-125(8)(d)
21
Add:
22
; and (iv) if subparagraph (c)(v) applies--the monitoring body for
23
the relevant compliance scheme.
24
Schedule 1 Amendments
Part 1 Amendments
52
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
24 Before section 70-35
1
Insert:
2
70-34 Power to request information from monitoring bodies
3
(1) This section applies if a person:
4
(a) provides a
*
tax (financial) advice service; and
5
(b) is
*
covered by a
*
compliance scheme.
6
(2) For the purposes of performing its functions, or exercising its
7
powers, the Board may, by notice, request the
*
monitoring body for
8
the
*
compliance scheme to give the Board:
9
(a) information relating to compliance by the person with the
10
*
Code of Ethics under the scheme; or
11
(b) any other information relating to the scheme; or
12
(c) information relating to compliance by the person with the
13
*
Code of Professional Conduct.
14
Note 1:
Failure to give the information is an offence: see section 8C of the
15
Taxation Administration Act 1953.
16
Note 2:
This subsection constitutes an authorisation for the purposes of other
17
laws, such as paragraph 6.2(b) of Australian Privacy Principle 6.
18
(3) The Board's request must:
19
(a) be in writing; and
20
(b) specify the period within which the
*
monitoring body must
21
comply with the request.
22
The period specified under paragraph (b) must be at least 14 days
23
after the date of the request.
24
25 After subsection 70-40(3A)
25
Insert:
26
Disclosures to monitoring bodies for compliance schemes
27
(3AA) Subsection 70-35(1) does not apply if the record or disclosure is to
28
a
*
monitoring body for a
*
compliance scheme for the purpose of
29
the monitoring body monitoring or enforcing compliance with the
30
*
Code of Ethics under the scheme.
31
Amendments Schedule 1
Amendments Part 1
No. , 2016
Corporations Amendment (Professional Standards of Financial
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53
Note:
A defendant bears an evidential burden in relation to the matters in
1
subsection (3AA): see subsection 13.3(3) of the Criminal Code.
2
26 Subsection 90-1(1)
3
Insert:
4
Code of Ethics has the same meaning as in Part 7.6 of the
5
Corporations Act 2001.
6
compliance scheme has the same meaning as in Part 7.6 of the
7
Corporations Act 2001.
8
covers, in relation to a compliance scheme, has the same meaning
9
as in Part 7.6 of the Corporations Act 2001.
10
Note:
See also section 18A of the Acts Interpretation Act 1901 (parts of
11
speech and grammatical forms).
12
monitoring body for a compliance scheme has the same meaning
13
as in Part 7.6 of the Corporations Act 2001.
14
Schedule 1 Amendments
Part 2 Application of amendments
54
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
Part 2--Application of amendments
1
Corporations Act 2001
2
27 After Part 10.23 of Chapter 10
3
Insert:
4
Part 10.23A--Transitional provisions relating to
5
the Corporations Amendment (Professional
6
Standards of Financial Advisers) Act 2016
7
Division 1--Definitions
8
1546A Definitions
9
In this Part:
10
amending Act means the Corporations Amendment (Professional
11
Standards of Financial Advisers) Act 2016.
12
commencement means the start of the day Part 1 of Schedule 1 to
13
the amending Act commences.
14
education and training standards has the meaning given by
15
section 921B.
16
existing provider means:
17
(a) a person who:
18
(i) is a relevant provider at any time between 1 January
19
2016 and 1 January 2019 (except a person who has
20
ceased to be a relevant provider under
21
subsection 1546B(4) or (5)); and
22
(ii) is not banned, disqualified or suspended under
23
Division 8 of Part 7.6 on 1 January 2019; or
24
(b) a person who:
25
(i) at any time between 1 January 2016 and 1 January
26
2019, provides personal advice in a foreign country to
27
Amendments Schedule 1
Application of amendments Part 2
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
55
retail clients in relation to relevant financial products;
1
and
2
(ii) is not prohibited under the law of the foreign country
3
from providing such advice on 1 January 2019.
4
foreign country includes a region, where:
5
(a) the region is a colony, territory or protectorate of a foreign
6
country; or
7
(b) the region is part of a foreign country; or
8
(c) the region is under the protection of a foreign country; or
9
(d) a foreign country exercises jurisdiction or control over the
10
region; or
11
(e) a foreign country is responsible for the region's international
12
relations.
13
relevant financial products has the meaning given by
14
section 910A.
15
relevant provider has the meaning given by section 910A.
16
Division 2--Application and transitional provisions
17
1546B Existing providers to meet certain education and training
18
standards
19
Completion of qualifications
20
(1) An existing provider must have done either of the following by
21
1 January 2024:
22
(a) met the education and training standard in
23
subsection 921B(2);
24
(b) completed one or more courses determined by the standards
25
body to give the provider qualifications equivalent to that
26
standard.
27
Note:
The standard in subsection 921B(2) is that a person has completed a
28
bachelor or higher degree, or equivalent qualification, approved by the
29
standards body, or a foreign qualification approved by the standards
30
body.
31
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Part 2 Application of amendments
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Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
(2) To avoid doubt, an existing provider may meet the education and
1
training standard in subsection 921B(2), or complete one or more
2
courses in accordance with paragraph (1)(b) of this section, before
3
this section commences.
4
Exam
5
(3) An existing provider must have met the education and training
6
standard in subsection 921B(3) before 1 January 2021.
7
Note 1:
The standard in subsection 921B(3) is that a person has passed an
8
exam approved by the standards body.
9
Note 2:
ASIC must be notified when existing providers have passed the exam
10
(see section 1546Y).
11
Note 3:
An existing provider is not required to meet the standard in
12
subsection 921B(4), which is that a person has undertaken at least a
13
year of work and training that meets the requirements set by the
14
standards body.
15
Failing to meet the education and training standards
16
(4) If, at the start of 1 January 2024, a person who is an existing
17
provider, and a relevant provider at that time, fails to comply with
18
subsection (1), the person is taken for the purposes of this Act,
19
after that time, to have ceased to be a relevant provider.
20
(5) If, at the start of 1 January 2021, a person who is an existing
21
provider, and a relevant provider at that time, fails to comply with
22
subsection (3), the person is taken for the purposes of this Act,
23
after that time, to have ceased to be a relevant provider.
24
(6) Subsections (4) and (5) do not prevent the person again becoming a
25
relevant provider.
26
Standards body may determine courses
27
(7) The standards body may, by legislative instrument, determine
28
courses for the purposes of paragraph (1)(b).
29
Amendments Schedule 1
Application of amendments Part 2
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
57
1546C Application of limitation on authorisation to provide personal
1
advice and offence
2
Limitation on authorisation to provide personal advice
3
(1) Section 921C, as inserted by the amending Act, applies in relation
4
to:
5
(a) any Australian financial services licence granted on or after
6
1 January 2019 to a person who is not a relevant provider
7
before that day; and
8
(b) any authorisation given on or after that day to a person who
9
is not a relevant provider before that day.
10
Note:
Section 921C provides that a person cannot be granted a licence, or be
11
authorised, to provide certain financial advice unless the person meets
12
certain conditions.
13
(2) Section 921C, as inserted by the amending Act, applies, on and
14
after 1 January 2024, in relation to a person who ceases to be a
15
relevant provider under subsection 1546B(4).
16
(3) Section 921C, as inserted by the amending Act, applies, on and
17
after 1 January 2021, in relation to a person who ceases to be a
18
relevant provider under subsection 1546B(5).
19
(4) Section 921C, as inserted by the amending Act, does not apply in
20
relation to a person who is an existing provider while the person
21
continues to be a relevant provider.
22
Restriction on use of terms "financial adviser" and "financial
23
planner"
24
(5) The following provisions, as inserted by the amending Act, apply
25
on and after 1 January 2019:
26
(a) section 923C;
27
(b) items 269AAA and 269AAB of the table in Schedule 3.
28
Note:
Those provisions relate to offences for using the terms "financial
29
adviser" and "financial planner".
30
Schedule 1 Amendments
Part 2 Application of amendments
58
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
1546D Application of requirements relating to provisional relevant
1
providers
2
Section 921F, as inserted by the amending Act, applies in relation
3
to any authorisation given on or after 1 January 2019 to a person
4
who is not a relevant provider before that day.
5
Note:
Section 921F sets out the requirements in relation to a person who is a
6
provisional relevant provider.
7
1546E Application of continuing professional development standard
8
for relevant providers
9
(1) Sections 921D and 922HA, as inserted by the amending Act, apply
10
on and after 1 January 2019.
11
Note:
Section 921D provides that certain relevant providers must meet the
12
continuing professional development standard. Section 922HA
13
requires ASIC to be notified of the day on which a financial services
14
licensee's CPD year is to begin.
15
(2) Sections 922HB and 922HC, as inserted by the amending Act,
16
apply in relation to any CPD year of a financial services licensee
17
that begins on or after 1 January 2019.
18
Note:
Section 922HB requires ASIC to be notified if relevant providers do
19
not comply with the continuing professional development standard.
20
Section 922HC requires a financial services licensee to retain evidence
21
of the continuing professional development of relevant providers.
22
(3) Section 922N, as inserted by the amending Act, applies in relation
23
to a request made of a person on or after 1 January 2019 for the
24
purposes of subparagraph 922N(1)(c)(iii).
25
Note:
Among other things, section 922N allows a financial services licensee
26
to ask a person to provide information relating to whether the licensee
27
must lodge a notice under section 922HB.
28
(4) Subsection (5) applies if:
29
(a) the first CPD year of a financial services licensee commences
30
after 1 January 2019; and
31
(b) before the start of the licensee's first CPD year:
32
(i) the licensee is a relevant provider; or
33
Amendments Schedule 1
Application of amendments Part 2
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
59
(ii) a relevant provider is authorised to provide personal
1
advice to retail clients, on behalf of the licensee, in
2
relation to relevant financial products.
3
(5) Sections 922HB, 922HC and 922Q, as inserted by the amending
4
Act, apply as if a reference in those sections to a financial services
5
licensee's CPD year included a reference to the period:
6
(a) beginning on the later of 1 January 2019 and:
7
(i) if subparagraph (4)(b)(i) applies--the day the licensee is
8
granted an Australian financial services licence that
9
covers the provision of personal advice to retail clients
10
in relation to relevant financial products; and
11
(ii) if subparagraph (4)(b)(ii) applies--the first day the
12
relevant provider is authorised to provide personal
13
advice to retail clients, on behalf of the licensee, in
14
relation to relevant financial products; and
15
(b) ending on the day before the licensee's first CPD year.
16
Note 1:
Among other things, section 922Q requires failures of relevant
17
providers to comply with the continuing education standard to be
18
entered on the Register.
19
Note 2:
The standards body may, under subparagraph 921U(2)(a)(iv), set
20
requirements for continuing professional development in relation to a
21
period mentioned in subsection (5) of this section, and, in one or more
22
determinations made under subsection 921U(3), modify the operation
23
of a provision in Part 7.6 in relation to such a period.
24
1546F Application of Code of Ethics to relevant providers
25
Sections 921E and 922HD, as inserted by the amending Act, apply
26
on and after 1 January 2020.
27
Note:
Section 921E requires a relevant provider to comply with the Code of
28
Ethics. Section 922HD requires ASIC to be notified of failures to
29
comply with the Code of Ethics.
30
1546G Application of obligations in relation to compliance schemes
31
(1) Section 921H, as inserted by the amending Act, applies on and
32
after 15 November 2019:
33
(a) in relation to a person who becomes a financial services
34
licensee on or after that day; and
35
Schedule 1 Amendments
Part 2 Application of amendments
60
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
No. , 2016
(b) for a person who becomes a financial services licensee before
1
that day:
2
(i) in relation to a person who becomes a relevant provider
3
on or after that day; and
4
(ii) in relation to a person who becomes a relevant provider
5
before that day as if subsection 921H(2) required the
6
scheme to cover the relevant provider by 1 January
7
2020.
8
Note:
Section 921H requires a financial services licensee to ensure that a
9
compliance scheme covers each of its relevant providers.
10
(2) Section 921J, as inserted by the amending Act, applies on and after
11
15 November 2019.
12
Note:
Section 921J sets out when a compliance scheme covers a relevant
13
provider.
14
(3) Sections 921K, 921Q, 921R and 921T, as inserted by the amending
15
Act, apply on and after the day this section commences.
16
Note:
Section 921K provides that a monitoring body for a compliance
17
scheme may apply to ASIC for approval of the scheme. Section 921Q
18
provides that ASIC may request information about a compliance
19
scheme from the monitoring body for the scheme. Section 921R
20
provides that a monitoring body may propose to modify a scheme in
21
certain circumstances. Section 921T requires a monitoring body to
22
notify ASIC of certain reductions in the body's resources or expertise.
23
(4) Sections 921L, 921M, 921N, 921P and 921S, as inserted by the
24
amending Act, apply on and after 1 January 2020.
25
Note:
Sections 921L to 921N include provisions about investigations by
26
monitoring bodies. Section 921P provides for compliance schemes to
27
be made publicly available. Section 921S provides for the review of
28
compliance schemes.
29
(5) Paragraphs 922E(1)(i) and 922F(1)(n), as inserted by the amending
30
Act, apply on and after 15 November 2019 in relation to notices
31
lodged under section 922D on or after that day.
32
Note:
Paragraphs 922E(1)(i) and 922F(1)(n) require notices lodged under
33
section 922D in relation to a relevant provider to include the name of
34
the compliance scheme that is to cover the relevant provider.
35
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Application of amendments Part 2
No. , 2016
Corporations Amendment (Professional Standards of Financial
Advisers) Bill 2016
61
1546H Application of obligation for standards body to publish
1
annual report
2
(1) Section 921ZC, as inserted by the amending Act, applies on and
3
after 1 July 2017.
4
(2) If the declaration of a body corporate to be the standards body
5
under section 921X takes effect at a time during a financial year,
6
the first annual report published by the standards body must cover
7
the period beginning at that time and ending at the end of the next
8
financial year as if that period were a financial year.
9
1546J Application of obligation to notify ASIC about a person who
10
becomes a relevant provider
11
Sections 922D, 922E and 922F, as inserted by the amending Act,
12
apply (subject to subsection 1546G(5) and sections 1546K to
13
1546N) in relation to a person who becomes a relevant provider if:
14
(a) the person becomes a relevant provider after commencement;
15
or
16
(b) both of the following apply:
17
(i) the person becomes a relevant provider before
18
commencement;
19
(ii) immediately before commencement, a notice has not
20
been lodged in accordance with section 922D, as
21
notionally inserted into this Act by Schedule 8D to the
22
Corporations Regulations 2001.
23
Note:
Section 922D requires ASIC to be notified if a person becomes a
24
relevant provider.
25
1546K Application of requirements relating to information about
26
relevant provider's principal place of business
27
Paragraphs 922E(1)(b) and 922F(1)(b), as inserted by the
28
amending Act, apply on and after 15 November 2019 in relation to
29
notices lodged under section 922D on or after that day.
30
Note:
Paragraphs 922E(1)(b) and 922F(1)(b) require notices lodged under
31
section 922D in relation to a relevant provider to include the address
32
of the relevant provider's principal place of business.
33
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1546L Application of requirements relating to information about
1
membership of professional associations where relevant
2
provider is licensee
3
Section 922E, as inserted by the amending Act, applies until the
4
start of 15 November 2019 as if paragraph 922E(1)(h) were
5
replaced with the following:
6
(h) information about both of the following:
7
(i) the educational qualifications of, and any training
8
courses completed by, the relevant provider;
9
(ii) the relevant provider's membership (if any) of
10
professional bodies;
11
to the extent that the qualifications, training courses or
12
memberships are relevant to the provision of financial
13
services (and if the relevant provider has more than 5
14
memberships, the 5 memberships that the person lodging the
15
notice believes, on reasonable grounds, are most relevant to
16
the provision of financial services);
17
1546M Application of requirements relating to information about
18
membership of professional associations where relevant
19
provider is not licensee
20
Section 922F, as inserted by the amending Act, applies until the
21
start of 15 November 2019 as if paragraph 922F(1)(m) were
22
replaced with the following:
23
(m) information about both of the following:
24
(i) the educational qualifications of, and any training
25
courses completed by, the relevant provider;
26
(ii) the relevant provider's membership (if any) of
27
professional bodies;
28
to the extent that the qualifications, training courses or
29
memberships are relevant to the provision of financial
30
services (and if the relevant provider has more than 5
31
memberships, the 5 memberships that the person lodging the
32
notice believes, on reasonable grounds, are most relevant to
33
the provision of financial services);
34
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1546N Application of requirements relating to information about
1
provisional relevant provider's work and training
2
Paragraphs 922F(1)(f) and (g), as inserted by the amending Act,
3
apply in relation to notices lodged under section 922D on or after
4
1 January 2019.
5
Note:
Paragraphs 922F(1)(f) and (g) require notices lodged under
6
section 922D to include information in relation to provisional relevant
7
providers and their work and training.
8
1546P Application of ongoing obligation to notify ASIC when there
9
is a change in a matter for a relevant provider
10
Paragraph 922H(1)(a), as inserted by the amending Act, applies in
11
relation to a change in a matter if:
12
(a) the change occurs after commencement; or
13
(b) both of the following apply:
14
(i) the change occurs before commencement;
15
(ii) immediately before commencement, a notice has not
16
been lodged in accordance with section 922H, as
17
notionally inserted into this Act by Schedule 8D to the
18
Corporations Regulations 2001.
19
1546Q Application of obligation to notify ASIC about a person who
20
starts to have control of a body corporate licensee
21
Section 922J, as inserted by the amending Act, applies in relation
22
to a person who starts to have control of a body corporate licensee
23
if:
24
(a) the person starts to have control of the licensee after
25
commencement; or
26
(b) both of the following apply:
27
(i) the person starts to have control of the licensee before
28
commencement;
29
(ii) immediately before commencement, a notice has not
30
been lodged in accordance with section 922J, as
31
notionally inserted into this Act by Schedule 8D to the
32
Corporations Regulations 2001.
33
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Part 2 Application of amendments
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1546R Application of obligation to notify ASIC about a person who
1
ceases to have control of a body corporate licensee
2
Section 922K, as inserted by the amending Act, applies in relation
3
to a person who ceases to have control of a body corporate licensee
4
if:
5
(a) the person ceases to have control of the licensee after
6
commencement; or
7
(b) both of the following apply:
8
(i) the person ceases to have control of the licensee before
9
commencement;
10
(ii) immediately before commencement, a notice has not
11
been lodged in accordance with section 922K, as
12
notionally inserted into this Act by Schedule 8D to the
13
Corporations Regulations 2001.
14
1546S Application of obligation for relevant providers to provide
15
information to financial services licensees
16
Section 922N, as inserted by the amending Act, applies in relation
17
to a request made of a person if:
18
(a) both of the following apply:
19
(i) the request is made of the person for the purposes of
20
subparagraph 922N(1)(c)(i) or (ii);
21
(ii) the request is made after commencement (whether the
22
person becomes a relevant provider before or after
23
commencement); or
24
(b) both of the following apply:
25
(i) the request (as mentioned in paragraph 922N(1)(c), as
26
notionally inserted into this Act by Schedule 8D to the
27
Corporations Regulations 2001) is made before
28
commencement;
29
(ii) immediately before commencement, the person has not
30
provided the information requested.
31
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Application of amendments Part 2
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1546T Application of requirements relating to Register of Relevant
1
Providers
2
(1) Paragraphs 922Q(2)(b), (r), and (v), as inserted by the amending
3
Act, apply on and after 1 January 2020.
4
(2) Subparagraph 922Q(2)(j)(ii) and paragraph 922Q(2)(m), as
5
inserted by the amending Act, apply on and after 1 January 2019.
6
(3) Section 922Q, as inserted by the amending Act, applies until the
7
start of 1 January 2020 as if subparagraph 922Q(2)(u)(ii) were
8
replaced with the following:
9
(ii) the relevant provider's membership (if any) of
10
professional associations, to the extent that the
11
memberships are relevant to the provision of financial
12
services;
13
(4) Otherwise, sections 922Q and 922S, as inserted by the amending
14
Act, apply on and after commencement.
15
1546U Relevant provider numbers given before commencement
16
For the purposes of this Act, a number given by ASIC to a person
17
in accordance with regulation 7.6.06A of the Corporations
18
Regulations 2001 is taken to have been given in accordance with
19
section 922R of this Act, as inserted by the amending Act.
20
1546V Continuation of Register of Relevant Providers
21
The repeal of regulation 7.6.06B of the Corporations
22
Regulations 2001 by the Corporations Amendment (Professional
23
Standards of Financial Advisers) Regulation 2016 does not affect
24
the continuity of the register of relevant providers established
25
under that regulation.
26
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Part 2 Application of amendments
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Advisers) Bill 2016
No. , 2016
Division 3--Transitional notices
1
1546W Obligation to notify ASIC of certain information
2
(1) A notice must be lodged under this section, in the prescribed form,
3
if, before 15 November 2019, a notice was lodged in relation to a
4
relevant provider under:
5
(a) section 922D, as inserted by the amending Act; or
6
(b) section 922D, as notionally inserted into this Act by
7
Schedule 8D to the Corporations Regulations 2001.
8
(2) The notice must include:
9
(a) the address of the relevant provider's principal place of
10
business; and
11
(b) the name of the compliance scheme that is to cover the
12
relevant provider.
13
(3) The notice must be lodged before 1 January 2020 by:
14
(a) if the relevant provider is a financial services licensee--the
15
licensee; or
16
(b) otherwise--the financial services licensee on whose behalf
17
the relevant provider is authorised to provide personal advice
18
to retail clients in relation to relevant financial products.
19
(4) Subsection 921J(2) applies, subject to this section, as if the
20
reference in that subsection to section 922D included a reference to
21
this section.
22
1546X Obligation to notify ASIC of CDP year
23
(1) A notice must be lodged under this section, in the prescribed form,
24
if, before 1 January 2019, ASIC granted an applicant an Australian
25
financial services licence that covers the provision of personal
26
advice to retail clients in relation to relevant financial products.
27
(2) The notice must include the day of the year on which the relevant
28
financial services licensee's CPD year begins.
29
(3) The notice must be lodged by the licensee before 1 January 2019.
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(4) Subsection 922HA(3) applies as if a reference in that subsection to
1
subsection 922HA(1) or (3) included a reference to this section.
2
1546Y Obligation to notify ASIC when exams passed
3
(1) A notice must be lodged under this section, in the prescribed form,
4
if an existing provider passes an exam for the purposes of
5
complying with subsection 1546B(3).
6
(2) The notice must state that the existing provider has passed the
7
exam.
8
(3) The notice must be lodged by a financial services licensee within
9
30 business days of the financial services licensee becoming aware
10
that the existing provider has passed the exam.
11
1546Z Obligation to notify ASIC of certain information after
12
banning order
13
(1) A notice must be lodged under this section, in the prescribed form,
14
if:
15
(a) a person was banned, disqualified or suspended under
16
Division 8 of Part 7.6 on 1 January 2019; and
17
(b) the person becomes a provisional relevant provider after that
18
day.
19
(2) The notice must include the day the person begins undertaking
20
work and training in accordance with subsection 921B(4).
21
(3) The notice must be lodged within 30 business days of the day
22
mentioned in subsection (2) by the financial services licensee on
23
whose behalf the person is authorised to provide personal advice to
24
retail clients in relation to relevant financial products.
25
1546ZA Offence for failing to lodge transitional notices
26
Section 922M applies as if a reference in that section to a notice
27
provision included a reference to a notice given under this
28
Division.
29
Note:
Section 922M provides that a person commits an offence if a person
30
does not lodge certain notices.
31
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Part 2 Application of amendments
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Division 4--Review
1
1546ZB Review
2
The Minister must cause a review of Divisions 8A, 8B and 8C of
3
Part 7.6, as inserted by the amending Act, to be commenced before
4
31 December 2026.
5