CHAPTER 7
-
FINANCIAL SERVICES AND MARKETS
Note: This Chapter applies to a CCIV in a modified form: see Division
4
of Part
8B.7
.
History
Ch 7 amended by No 8 of 2022, s 3, Sch 2[165] (effective 1 July 2022).
Ch 7 inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
As Act No 122 of 2001 repealed Ch 7 and 8 the history notes for Ch 7 use
"
inserted
"
and references to the former provisions have been removed.
PART 7.7
-
FINANCIAL SERVICES DISCLOSURE
Division 1
-
Preliminary
CCH Note:
Division 1 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 940A
940A
HOW PART APPLIES IF A FINANCIAL SERVICES LICENSEE IS ACTING AS AUTHORISED REPRESENTATIVE
CCH Note:
Section 940A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
If a financial services licensee is, in providing a financial service, acting as the authorised representative of another financial services licensee (see section
916E
), this Part applies to the first-mentioned licensee, in relation to the service, in the capacity of authorised representative (rather than the capacity of licensee).
History
S 940A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 940B
WHAT IF THERE IS NO REASONABLE OPPORTUNITY TO GIVE A DOCUMENT, INFORMATION OR STATEMENT REQUIRED BY THIS PART?
CCH Note:
Section 940B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
940B(1)
If:
(a)
apart from this section, a person (the
providing entity
) would be required by a provision of this Part to give another person (the
client
) a particular document (for example, a Financial Services Guide or a Statement of Advice), or particular information or a particular statement; and
(b)
the providing entity has not had a reasonable opportunity to give (in accordance with section
940C
) the client the document, information or statement by the time they are required by this Part to give it to the client;
the fact that the providing entity has not given the document, information or statement to the client as required by the provision is not a contravention of the provision.
Note: In a prosecution for an offence, a defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3) of the
Criminal Code
).
940B(2)
For the purposes of subsection (1), the providing entity is not taken not to have had a reasonable opportunity to provide the document, information or statement if:
(a)
section
940C
(or regulations made for the purposes of that section) permit the document, information or statement to be sent to an address (including an electronic address) or fax number nominated by the client; and
(b)
the client has not given the providing entity an address (including an electronic address) or fax number to which the document, information or statement can be sent; but
(c)
the providing entity has had a reasonable opportunity to make, but has not made, reasonable enquiries of the client to obtain such an address or fax number.
History
S 940B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 940C
HOW DOCUMENTS, INFORMATION AND STATEMENTS ARE TO BE GIVEN
CCH Note:
Section 940C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
940C(1)
For the purposes of this Part (unless a contrary intention appears), a Financial Services Guide, a Supplementary Financial Services Guide, a Statement of Advice or a Cash Settlement Fact Sheet is given by a person (the
providing entity
) to another person (the
client
) if (and only if):
(a)
it is:
(i)
given to the client, or to the client
'
s agent, personally; or
(ii)
sent to the client, or the client
'
s agent, at an address (including an electronic address) or fax number nominated by the client or the client
'
s agent; or
(iii)
otherwise made available to the client, or the client
'
s agent, as agreed between the client, or the client
'
s agent, and the providing entity; and
(b)
it is in printed or electronic form.
History
S 940C(1) amended by No 135 of 2020, s 3, Sch 7
[
16] (effective 1 January 2021).
S 940C(1) amended by No 141 of 2003, s 3, Sch 2
[
43].
S 940C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
940C(2)
For the purposes of this Part (unless a contrary intention appears), information that subsection
941C(7)
or
946B(6)
requires to be given by a person (the
providing entity
) to another person (the
client
) is given by the providing entity to the client if (and only if):
(a)
it is given to the client, or the client
'
s agent, orally; or
(b)
it is in printed or electronic form and is:
(i)
given to the client, or the client
'
s agent, personally; or
(ii)
sent to the client, or the client
'
s agent, at an address (including an electronic address) or fax number nominated by the client or the client
'
s agent; or
(iii)
otherwise made available to the client, or the client
'
s agent, as agreed between the client or the client
'
s agent and the providing entity; or
(c)
it is given by some other method permitted by regulations made for the purposes of this paragraph.
History
S 940C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
940C(3)
For the purposes of this Part (unless a contrary intention appears), information that subsection
941C(5)
, paragraph
946AA(5)(b)
or subsection
946B(3)
or
(8)
requires to be given by a person (the
providing entity
) to another person (the
client
) is given by the providing entity to the client if (and only if) it is given to the client, or the client
'
s agent, in accordance with the applicable requirements of regulations made for the purposes of this subsection.
History
S 940C(3) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
107].
S 940C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
940C(4)
For the purposes of this Part (unless a contrary intention appears), a statement that subsection
941D(2)
or
946C(2)
requires to be given by a person (the
providing entity
) to another person (the
client
) is given by the providing entity to the client if (and only if) it is given orally to the client or the client
'
s agent.
History
S 940C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
940C(5)
For the purposes of this section, a document, information or statement to which this section applies is sent to a person at an address if, and only if:
(a)
the document, information or statement is sent to the address; and
(b)
either:
(i)
the envelope or other container in which it is sent; or
(ii)
the message that accompanies it;
is addressed to the person.
History
S 940C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
940C(6)
A document, information or statement to which this section applies may be given or sent to a person
'
s agent only if the agent is not acting as the person
'
s agent in one of the following capacities:
(a)
a financial services licensee;
(b)
an authorised representative of a financial services licensee;
(c)
(Repealed)
(d)
a person who is not required to hold an Australian financial services licence because the person is covered by:
(i)
paragraph
911A(2)(j)
; or
(ii)
an exemption in regulations made for the purposes of paragraph
911A(2)(k)
; or
(iii)
an exemption specified by ASIC for the purposes of paragraph
911A(2)(l)
;
(e)
a person who is required to hold an Australian financial services licence but who does not hold such a licence;
(f)
an employee, director or other representative of a person referred to in paragraph (a), (b), (c), (d) or (e).
History
S 940C(6) amended by No 141 of 2003, s 3, Sch 2
[
44].
S 940C(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
940C(7)
The regulations may specify requirements as to:
(a)
the manner in which a document, information or statement may be given to a person; and
(b)
the presentation, structure and format for a document, information or statement that is to be given in electronic form.
The giving of the document, information or statement is not effective unless those requirements are satisfied.
History
S 940C(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 940D
940D
GENERAL APPROACH TO OFFENCE PROVISIONS
CCH Note:
Section 940D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
Subdivision
A
of Division
7
contains provisions creating offences by reference to various rules contained in Divisions of this Part. However, it does not create all the offences relating to those rules, as some offences are created by subsection
1311(1)
. Where offences are created by subsection
1311(1)
in relation to a rule, this is indicated by a note at the end of the provision containing the rule.
History
S 940D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 2
-
Person provided with financial service as retail client to be given a Financial Services Guide
CCH Note:
Division 2 is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
Subdivision A
-
Requirement for a Financial Services Guide to be given
CCH Note:
Subdivision A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 941A
OBLIGATION ON FINANCIAL SERVICES LICENSEE TO GIVE A FINANCIAL SERVICES GUIDE IF FINANCIAL SERVICE PROVIDED TO PERSON AS A RETAIL CLIENT
CCH Note:
Section 941A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
941A(1)
A financial services licensee (the
providing entity
) must give a person a Financial Services Guide in accordance with this Division if the providing entity provides a financial service to the person (the
client
) as a retail client.
941A(2)
This section has effect subject to section
941C
.
941A(3)
A person contravenes this subsection if the person contravenes subsection (1).
Note: This subsection is a civil penalty provision (see section1317E
).
History
S 941A(3) inserted by No 17 of 2019, s 3, Sch 1
[
83] (effective 13 March 2019).
History
S 941A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 941B
OBLIGATION ON AUTHORISED REPRESENTATIVE TO GIVE A FINANCIAL SERVICES GUIDE IF FINANCIAL SERVICE PROVIDED TO PERSON AS A RETAIL CLIENT
CCH Note:
Section 941B is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Financial Services Guides) Instrument 2022/910.
941B(1)
An authorised representative (the
providing entity
) of a financial services licensee (the
authorising licensee
), or of 2 or more financial services licensees (the
authorising licensees
), must give a person a Financial Services Guide in accordance with this Division if the providing entity, as a representative of the authorising licensee, or one or more of the authorising licensees, provides a financial service to the person (the
client
) as a retail client.
Note: If the providing entity is the authorised representative of 2 or more financial services licensees, each of those licensees is, for the purposes of this Division, an authorising licensee in relation to the financial service provided to the client, even though the providing entity may not have been acting as representative of each of those licensees in providing the service to the client.
941B(2)
A Financial Services Guide must not be given to the person by the providing entity unless the authorising licensee, or each of the authorising licensees, has authorised its distribution by the providing entity.
941B(3)
This section has effect subject to
section 941C
.
941B(4)
A person contravenes this subsection if the person contravenes subsection (1) or (2).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 941B(4) inserted by No 17 of 2019, s 3, Sch 1
[
84] (effective 13 March 2019).
History
S 941B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 941C
SITUATIONS IN WHICH A FINANCIAL SERVICES GUIDE IS NOT REQUIRED
CCH Note:
Section 941C is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
Client has already received the information
941C(1)
The providing entity does not have to give the client a Financial Services Guide (the
new FSG
) if the client has already received a Financial Services Guide that contains all of the information that the new FSG is required to contain.
History
S 941C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Providing entity is product issuer dealing in own products
941C(2)
The providing entity does not have to give the client a Financial Services Guide if:
(a)
the providing entity is an issuer of financial products; and
(b)
the financial service is a dealing in financial products, other than derivatives able to be traded on a licensed market, issued by the providing entity, and does not also relate to financial products issued by someone else.
Note: The issuer will however have to comply with the Product Disclosure Statement requirements (see Division
2
of
Part 7.9
).
History
S 941C(2) amended by No 76 of 2023, s 3, Sch 2
[
465] (effective 20 October 2023).
S 941C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Dealing in financial products in ordinary course of operation of superannuation entity
941C(2A)
The providing entity does not have to give the client a Financial Services Guide if:
(a)
the providing entity is the trustee of a superannuation entity; and
(b)
the client is a member (within the meaning of the
Superannuation Industry (Supervision) Act 1993
) of the superannuation entity; and
(c)
the financial service is a dealing by the trustee in financial products in the ordinary course of operation of the superannuation entity.
History
S 941C(2A) inserted by No 76 of 2023, s 3, Sch 5[19] (effective 21 September 2023).
Dealing in financial products in ordinary course of operation of registered scheme
941C(2B)
The providing entity does not have to give the client a Financial Services Guide if:
(a)
the providing entity is the responsible entity of a registered scheme; and
(b)
the client is a member the scheme; and
(c)
the financial service is a dealing by the responsible entity in financial products in the ordinary course of operation of the scheme.
History
S 941C(2B) inserted by No 76 of 2023, s 3, Sch 5[19] (effective 21 September 2023).
Dealing in financial products in ordinary course of operating the business and conducting the affairs of a CCIV
941C(2C)
The providing entity does not have to give the client a Financial Services Guide if:
(a)
the providing entity is the corporate director of a CCIV; and
(b)
the client is a member of the CCIV; and
(c)
the financial service is a dealing by the corporate director in financial products in the ordinary course of operating the business and conducting the affairs of the CCIV.
History
S 941C(2C) inserted by No 76 of 2023, s 3, Sch 5[19] (effective 21 September 2023).
Providing entity is merely operating a registered scheme.
941C(3)
The providing entity does not have to give the client a Financial Services Guide if:
(a)
the providing entity is the responsible entity of a registered scheme; and
(b)
the financial service consists only of the operation of that scheme by the providing entity.
History
S 941C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Providing entity is merely operating a notified foreign passport fund
941C(3A)
The providing entity does not have to give the client a Financial Services Guide if:
(a)
the providing entity is the operator of a notified foreign passport fund; and
(b)
the financial service consists only of the operation of that fund by the operator.
History
941C(3A) inserted by No 61 of 2018, s 3, Sch 2[234] (effective 18 September 2018).
Providing entity is merely providing a superannuation trustee service
941C(3B)
The providing entity does not have to give the client a Financial Services Guide if:
(a)
the providing entity is the trustee of a registrable superannuation entity; and
(b)
the financial service consists only of a superannuation trustee service.
History
S 941C(3B) inserted by No 135 of 2020, s 3, Sch 9
[
55] (effective 1 January 2021).
Financial product advice given to the public
941C(4)
The providing entity does not have to give the client a Financial Services Guide if the financial service is general advice provided to the public, or a section of the public, in the manner prescribed by regulations made for the purposes of this subsection.
History
S 941C(4) amended by No 101 of 2007, s 3, Sch 1, Pt 3
[
219].
S 941C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
941C(4A)
(Repealed by No 101 of 2007, s 3, Sch 1, Pt 3
[
220].)
941C(5)
However, if subsection (4) applies and the client is not given a Financial Services Guide before the advice is provided, the client must instead, before the advice is provided, be given the information that would be required to be in the Financial Services Guide by paragraphs
942B(2)
(a), (e) and (f), or paragraphs
942C(2)(a)
, (c), (f) and (g), as the case requires.
History
S 941C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Certain basic deposit and other products
941C(6)
The providing entity does not have to give the client a Financial Services Guide if the financial service is a dealing in, is the provision of financial product advice about, or in any other way relates to, any of the following:
(a)
a basic deposit product;
(b)
a facility for making non-cash payments that is related to a basic deposit product;
(c)
a financial product of a kind prescribed by regulations made for the purposes of this paragraph.
History
S 941C(6) amended by No 76 of 2023, s 3, Sch 2
[
466]
-
[
468] (effective 20 October 2023).
S 941C(6) amended by No 141 of 2003, s 3, Sch 2
[
45].
S 941C(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
941C(7)
However, if subsection
(6)
applies and the client is not given a Financial Services Guide before the service is provided, the client must instead, before the service is provided, be given the information that would be required to be in the Financial Services Guide by paragraphs
942B(2)(a)
,
(fa)
and
(h)
, or paragraphs
942C(2)(a)
,
(ga)
and
(i)
, as the case requires.
History
S 941C(7) amended by No 19 of 2021, s 3, Sch 2
[
3] (effective 1 July 2021).
S 941C(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Claims handling and settling service
941C(7A)
The providing entity does not have to give the client a Financial Services Guide if:
(a)
the financial service consists only of a claims handling and settling service; and
(b)
the claims handling and settling service does not consist only of representing the client as a person insured under an insurance product in pursuing a claim under that product.
History
S 941C(7A) inserted by No 135 of 2020, s 3, Sch 7
[
17] (effective 1 January 2021).
Regulations may specify other exemptions
941C(8)
A Financial Services Guide does not have to be given to the client in circumstances specified in regulations made for the purposes of this subsection.
History
S 941C(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 941D
TIMING OF GIVING FINANCIAL SERVICES GUIDE
CCH Note:
Section 941D is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
General rule
941D(1)
Subject to this section, the Financial Services Guide must be given to the client as soon as practicable after it becomes apparent to the providing entity that the financial service will be, or is likely to be, provided to the client, and must in any event be given to the client before the financial service is provided.
Time critical cases
941D(2)
If:
(a)
the client expressly instructs that they require the financial service to be provided immediately, or by a specified time; and
(b)
it is not reasonably practicable to give the Financial Services Guide to the client before the service is provided as so instructed;
the providing entity must instead give the client a statement that complies with subsection (3) before the service is provided.
941D(3)
The statement must contain:
(a)
the information that would be required to be in the Financial Services Guide by paragraphs
942B(2)(e)
,
(f)
,
(fa)
and
(i)
, or paragraphs
942C(2)(f)
,
(g)
,
(ga)
and
(j)
, as the case requires; and
(b)
such other information as would be required to be in the Financial Services Guide as is particularly relevant to the financial service to be provided.
History
S 941D(3) amended by No 19 of 2021, s 3, Sch 2
[
4] (effective 1 July 2021).
941D(4)
The client must then be given the Financial Services Guide within 5 days after being given the statement, or sooner if practicable.
History
S 941D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 941E
INFORMATION MUST BE UP TO DATE
CCH Note:
Section 941E is modified by the ASIC Corporations (Financial Services Guide Given in a Time Critical Situation) Instrument 2022/498; the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603; and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
941E(1)
The information in the Financial Services Guide must be up to date as at the time when it is given to the client.
941E(2)
However, if the Financial Services Guide is given to the client under subsection
941D(4)
, the information in the Financial Services Guide may be up to date as at the time the statement referred to in that subsection is given to the client.
Note: A Supplementary Financial Services Guide containing updated information may be given with a Financial Services Guide that has become out of date. The updated information is taken to be included in the Financial Services Guide (see section
943D
).
History
S 941E substituted by No 69 of 2023, s 3, Sch 3[25] (effective 15 September 2023).
SECTION 941F
941F
OBLIGATION TO GIVE UPDATED FINANCIAL SERVICES GUIDE
CCH Note:
Section 941F is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
If:
(a)
the Financial Services Guide is given to the client before the financial service is provided; and
(b)
the following conditions are satisfied:
(i)
there is a change in circumstances before the service is provided, and the Financial Services Guide does not contain the information it would be required to contain if it were given to a person immediately after that change;
(ii)
the fact that the Financial Services Guide does not contain the up to date information is materially adverse from the point of view of a reasonable person deciding, as a retail client, whether to proceed to be provided with the financial service;
the providing entity must, before the service is provided, give the client:
(c)
another Financial Services Guide that contains the up to date information before the service is provided; or
(d)
a Supplementary Financial Services Guide (see Subdivision
C
) that updates the information in the Financial Services Guide.
History
S 941F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision B
-
Content and authorisation of Financial Services Guide
CCH Note:
Subdivision B is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 942A
TITLE OF FINANCIAL SERVICES GUIDE
CCH Note:
Section 942A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
942A(1)
The title
"
Financial Services Guide
"
must be used on the cover of, or at or near the front of, a Financial Services Guide.
942A(2)
In any other part of a Financial Services Guide,
"
Financial Services Guide
"
may be abbreviated to
"
FSG
"
.
History
S 942A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 942B
FINANCIAL SERVICES GUIDE GIVEN BY FINANCIAL SERVICES LICENSEE
-
MAIN REQUIREMENTS
CCH Note:
Section 942B is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
942B(1)
This section applies if the providing entity is a financial services licensee.
History
S 942B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942B(2)
Subject to subsection (3) and to the regulations (see subsection (4)), the Financial Services Guide must include the following statements and information:
(a)
a statement setting out the name and contact details of the providing entity; and
(b)
a statement setting out any special instructions about how the client may provide instructions to the providing entity; and
(c)
information about the kinds of financial services (the
authorised services
) that the providing entity is authorised by its licence to provide, and the kinds of financial products to which those services relate; and
(d)
information about who the providing entity acts for when providing the authorised services; and
(e)
information about the remuneration (including commission) or other benefits that any of the following is to receive in respect of, or that is attributable to, the provision of any of the authorised services:
(i)
the providing entity;
(ii)
a related body corporate of the providing entity;
(iii)
a director or employee of the providing entity or a related body corporate;
(iv)
an associate of any of the above;
(v)
any other person in relation to whom the regulations require the information to be provided;
(f)
information about any associations or relationships between the providing entity, or any related body corporate, and the issuers of any financial products, being associations or relationships that might reasonably be expected to be capable of influencing the providing entity in providing any of the authorised services; and
(fa)
if the authorised services provided by the providing entity include the provision of personal advice to retail clients, and the providing entity would contravene subsection
923A(1)
by assuming or using a restricted word or expression (within the meaning of subsection
923A(5)
) in relation to such provision of personal advice
-
a statement that:
(i)
sets out that the providing entity is not independent, impartial or unbiased (which are restricted words or expressions within the meaning of subsection
923A(5)
) in relation to the provision of personal advice, and explains the reasons why; and
(ii)
if any other word or expression has been specified as a restricted word or expression in regulations made for the purposes of subparagraph
923A(5)(a)(ii)
-
sets out that the providing entity is not able to assume or use the restricted word or expression in relation to the provision of personal advice, and explains the reasons why; and
(iii)
meets the requirements (if any) determined in an instrument under subsection
(7A)
; and
(g)
if the providing entity provides further market-related advice (see subsection
946B(1)
) or advice to which subsection
946B(7)
applies
-
a statement in relation to which the following requirements are satisfied:
(i)
the statement must indicate that the client may request a record of that advice, if they have not already been provided with a record of that advice;
(ii)
the statement must set out particulars of how the client may request such a record;
(iii)
any limitations in those particulars on the time within which the client may request such a record must be consistent with any applicable requirements in regulations made for the purposes of this subparagraph or, if there are no such applicable requirements, must be such as to allow the client a reasonable opportunity to request a record of the advice; and
(h)
information about the dispute resolution system that covers complaints by persons to whom the providing entity provides financial services, and about how that system may be accessed; and
(i)
if the providing entity acts under a binder in providing any of the authorised services
-
a statement that:
(i)
identifies the services provided under the binder; and
(ii)
states that they are provided under a binder; and
(iii)
explains the significance of the services being provided under a binder; and
(j)
if the providing entity is a participant in a licensed market or a licensed CS facility
-
a statement that the providing entity is a participant in that market or facility; and
(k)
any other statements or information required by the regulations.
Note: A Supplementary Financial Services Guide containing additional information may be given with a Financial Services Guide that does not contain all the required information. The additional information is taken to be included in the Financial Services Guide (see
section 943D
).
History
S 942B(2) amended by No 19 of 2021, s 3, Sch 2
[
5] (effective 1 July 2021).
S 942B(2) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
108] and
[
109].
S 942B(2) amended by No 141 of 2003, s 3, Sch 2
[
45A] and
[
45B].
S 942B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942B(3)
Subject to subsection (4), the level of information about a matter that is required is such as a person would reasonably require for the purpose of making a decision whether to acquire financial services from the providing entity as a retail client.
History
S 942B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942B(4)
The regulations may provide all or any of the following:
(a)
that a provision of subsection (2) does not apply in a particular situation;
(b)
that particular information is not required by a provision of subsection (2), either in a particular situationor generally;
(c)
a more detailed statement of the information that is required by a provision of subsection (2), either in a particular situation or generally;
(d)
that certain supplementary information must be given or made available to the client in some other way.
History
S 942B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942B(5)
The Financial Services Guide must be dated. The date must be the date on which the Financial Services Guide was prepared or its preparation was completed.
History
S 942B(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942B(6)
The Financial Services Guide may also contain other information.
History
S 942B(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942B(6A)
The information included in the Financial Services Guide must be worded and presented in a clear, concise and effective manner.
History
S 942B(6A) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942B(7)
The regulations may require the providing entity, in circumstances specified in the regulations, to provide the client, on request, with more detailed information about remuneration (including commission) or other benefits of a kind referred to in paragraph (2)(e).
History
S 942B(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942B(7A)
ASIC may, by legislative instrument, determine requirements for a statement for the purposes of subparagraph
(2)(fa)(iii)
.
History
S 942B(7A) inserted by No 19 of 2021, s 3, Sch 2
[
6] (effective 1 July 2021).
942B(7B)
Without limiting subsection
(7A)
, the instrument may include the following:
(a)
requirements that a specified form, or specified form of words, be used for the statement;
(b)
requirements for the statement to include specified information;
(c)
requirements about the presentation, structure and format of the statement, including the location of the statement within the Financial Services Guide.
History
S 942B(7B) inserted by No 19 of 2021, s 3, Sch 2
[
6] (effective 1 July 2021).
942B(8)
If:
(a)
the Financial Services Guide includes a statement to the effect that a client may request a record of further market-related advice or advice to which subsection
946B(7)
applies; and
(b)
the client is provided with advice to which that statement applies; and
(c)
the client has not already been provided with a record of that advice;
the providing entity must comply with a request made in accordance with that statement for a record of that advice.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 942B(8) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
110] and
[
111].
S 942B(8) amended by No 141 of 2003, s 3, Sch 2
[
45C].
S 942B(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 942C
FINANCIAL SERVICES GUIDE GIVEN BY AUTHORISED REPRESENTATIVE
-
MAIN REQUIREMENTS
CCH Note:
Section 942C is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
942C(1)
This section applies if the providing entity is an authorised representative.
History
S 942C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942C(2)
Subject to subsection (3) and to the regulations (see subsection (4)), the Financial Services Guide must include the following statements and information:
(a)
a statement setting out the name and contact details of the providing entity; and
(b)
a statement setting out any special instructions about how the client may provide instructions to the providing entity; and
(c)
a statement:
(i)
setting out the name and contact details of the authorising licensee, or of each of the authorising licensees; and
(ii)
stating that the providing entity is the authorised representative of that licensee or those licensees; and
(d)
information, in relation to the authorising licensee or each of the authorising licensees, about the kinds of financial services (the
authorised services
) that the providing entity provides as representative of the authorising licensee, and the kinds of financial products to which those services relate; and
(e)
information about who the authorising licensee, or each of the authorising licensees, acts for when financial services are provided on their behalf by the providing entity; and
(f)
information about the remuneration (including commission) or other benefits that any of the following is to receive in respect of, or that is attributable to, the provision of any of the authorised services:
(i)
the providing entity;
(ii)
an employer of the providing entity;
(iii)
the authorising licensee, or any of the authorising licensees;
(iv)
an employee or director of the authorising licensee, or of any of the authorising licensees;
(v)
an associate of any of the above;
(vi)
any other person in relation to whom the regulations require the information to be provided; and
(g)
information about any associations or relationships between:
(i)
the providing entity, or any employer of the providing entity, and the issuers of any financial products; or
(ii)
the authorising licensee, or any of the authorising licensees, or any related body corporate of the authorising licensee or any of the authorising licensees, and the issuers of any financial products;
being associations or relationships that might reasonably be expected to be capable of influencing the providing entity in providing any of the authorised services; and
(ga)
if the authorised services provided by the providing entity include the provision of personal advice to retail clients, and the providing entity would contravene subsection
923A(1)
by assuming or using a restricted word or expression (within the meaning of subsection
923A(5)
) in relation to such provision of personal advice
-
a statement that:
(i)
sets out that the providing entity is not independent, impartial or unbiased (which are restricted words or expressions within the meaning of subsection
923A(5)
) in relation to the provision of personal advice, and explains the reasons why; and
(ii)
if any other word or expression has been specified as a restricted word or expression in regulations made for the purposes of subparagraph
923A(5)(a)(ii)
-
sets out that the providing entity is not able to assume or use the restricted word or expression in relation to the provision of personal advice, and explains the reasons why; and
(iii)
meets the requirements (if any) determined in an instrument under subsection
(7A)
; and
(h)
if the providing entity, when acting as representative of the authorising licensee or any of the authorising licensees, provides further market-related advice (see subsection
946B(1)
) or advice to which subsection
946B(7)
applies
-
a statement in relation to which the following requirements are satisfied:
(i)
the statement must indicate that the client may request a record of that advice, if they have not already been provided with a record of that advice;
(ii)
the statement must set out particulars of how the client may request such a record;
(iii)
any limitations in those particulars on the time within which the client may request such a record must be consistent with any applicable requirements in regulations made for the purposes of this subparagraph or, if there are no such applicable requirements, must be such as to allow the client a reasonable opportunity to request a record of the advice; and
(i)
information about the dispute resolution system that covers complaints by persons to whom the providing entity provides financial services when acting as representative of the authorising licensee or any of the authorising licensees, and about how that system may be accessed; and
(j)
if the providing entity acts under a binder in providing any of the authorised services
-
a statement that:
(i)
identifies the services provided under the binder; and
(ii)
states that they are provided under a binder; and
(iii)
explains the significance of the services being provided under a binder; and
(k)
if the providing entity, or the authorising licensee or any of the authorising licensees, is a participant in a licensed market or a licensed CS facility
-
a statement that the providing entity or authorising licensee is a participant in that market or facility; and
(l)
a statement to the effect that the distribution of the Financial Services Guide by the providing entity has been authorised by the authorising licensee, or by each of the authorising licensees; and
(m)
any other statements or information required by the regulations.
Note: A Supplementary Financial Services Guide containing additional information may be given with a Financial Services Guide that does not contain all the required information. The additional information is taken to be included in the Financial Services Guide (see
section 943D
).
History
S 942C(2) amended by No 19 of 2021, s 3, Sch 2
[
7] (effective 1 July 2021).
S 942C(2) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
112] and
[
113].
S 942C(2) amended by No 141 of 2003, s 3, Sch 2
[
45D] and
[
45E].
S 942C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942C(3)
Subject to subsection (4), the level of detail of information about a matter that is required is such as a person would reasonably require for the purpose of making a decision whether to acquire financial services from the providing entity as a retail client.
History
S 942C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942C(4)
The regulations may provide all or any of the following:
(a)
that a provision of subsection (2) does not apply in a particular situation;
(b)
that particular information is not required by a provision of subsection (2), either in a particular situation or generally;
(c)
a more detailed statement of the information that is required by a provision of subsection (2), either in a particular situation or generally;
(d)
that certain supplementary information must be given or made available to the client in some other way.
History
S 942C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942C(5)
The Financial Services Guide must be dated. The date must be the date on which the Financial Services Guide was prepared or its preparation was completed.
History
S 942C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942C(6)
The Financial Services Guide may also contain other information.
History
S 942C(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942C(6A)
The information included in the Financial Services Guide must be worded and presented in a clear, concise and effective manner.
History
S 942C(6A) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942C(7)
The regulations may require the providing entity, in circumstances specified in the regulations, to provide the client, on request, with more detailed information about remuneration (including commission) or other benefits of a kind referred to in paragraph (2)(f).
History
S 942C(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
942C(7A)
ASIC may, by legislative instrument, determine requirements for a statement for the purposes of subparagraph
(2)(ga)(iii)
.
History
S 942C(7A) inserted by No 19 of 2021, s 3, Sch 2
[
8] (effective 1 July 2021).
942C(7B)
Without limiting subsection
(7A)
, the instrument may include the following:
(a)
requirements that a specified form, or specified form of words, be used for the statement;
(b)
requirements for the statement to include specified information;
(c)
requirements about the presentation, structure and format of the statement, including the location of the statement within the Financial Services Guide.
History
S 942C(7B) inserted by No 19 of 2021, s 3, Sch 2
[
8] (effective 1 July 2021).
942C(8)
If:
(a)
the Financial Services Guide includes a statement to the effect that a client may request a record of further market-related advice or advice to which subsection
946B(7)
applies; and
(b)
the client is provided with advice to which that statement applies; and
(c)
the client has not already been provided with a record of that advice;
the providing entity must comply with a request made in accordance with that statement for a record of that advice.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 942C(8) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
114] and
[
115].
S 942C(8) amended by No 141 of 2003, s 3, Sch 2
[
45F].
S 942C(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 942D
FINANCIAL SERVICES GUIDE MAY CONSIST OF 2 OR MORE SEPARATE DOCUMENTS GIVEN AT SAME TIME
CCH Note:
Section 942D is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
942D(1)
Subject to this section, a Financial Services Guide may be made up of 2 or more separate documents that are given at the same time.
942D(2)
Each of the documents must have on the cover of the document, or at or near the front of the document, a statement:
(a)
to the effect that the document is part of a Financial Services Guide; and
(b)
that (subject to subsection (3)) identifies the other documents that make up the Financial Services Guide.
942D(3)
If there are or may be different versions of a document referred to in paragraph (2)(b), the statement required by subsection (2) does not have to identify any particular one of those versions and may instead identify the document generically.
Note: For example, if a Financial Services Guide is made up of a core document that is not updated very frequently, and a separate document providing information about remuneration that is updated more frequently:
(a) the statement in the core document need only refer to the fact that it, and a separate document about remuneration, make up the Financial Services Guide; and
(b) the statement in the document about remuneration need only refer to the fact that it, and a separate document about all other required matters, make up the Financial Services Guide.
942D(4)
The requirement of section
942A
(title of Financial Services Guide) is taken to be satisfied if the title
"
Financial Services Guide
"
is used on the cover of, or at or near the front of, at least one of the documents that make up the Financial Services Guide.
942D(5)
The requirement of subsection
942B(5)
or
942C(5)
(dating of Financial Services Guide) must be separatelycomplied with in relation to each of the documents. If, for any purpose, a single date needs to be determined as the date of the Financial Services Guide as a whole, that date is the most recent of the dates of those documents.
942D(6)
Section
942E
applies to an alteration to one of the documents as though the reference in that section to the date specified in the Financial Services Guide were a reference to the date specified in the document.
942D(7)
The regulations may impose additional requirements to be complied with if a Financial Services Guide is made up of 2 or more documents.
History
S 942D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 942DA
COMBINING A FINANCIAL SERVICES GUIDE AND A PRODUCT DISCLOSURE STATEMENT IN A SINGLE DOCUMENT
CCH Note:
Section 942DA is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
942DA(1)
A Financial Services Guide and a Product Disclosure Statement may be combined in a single document (a
combined FSG and PDS
) in circumstances specified in regulations made for the purposes of this section.
942DA(2)
Those regulations may also provide that this Chapter applies in relation to a combined FSG and PDS as if specified provisions were omitted, modified or varied as specified in the regulations.
942DA(3)
A Financial Services Guide and a Product Disclosure Statement must not be combined in a single document except as permitted under subsection (1).
History
S 942DA inserted by No 141 of 2003, s 3, Sch 2
[
46].
SECTION 942E
942E
ALTERING A FINANCIAL SERVICES GUIDE AFTER ITS PREPARATION AND BEFORE GIVING IT TO A PERSON
CCH Note:
Section 942E is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
A financial services licensee, or an authorised representative of a financial services licensee, must not, in purported compliance with a provision of this Part, give a person a Financial Services Guide (the
FSG
) that has been altered (otherwise than pursuant to paragraph (b)) after the date specified in the FSG as required by subsection
942B(5)
or
942C(5)
unless:
(a)
the alteration was made by, or with the authority of:
(i)
if section
942B
applies to the FSG
-
the financial services licensee to which the FSG relates; or
(ii)
if section
942C
applies to the FSG
-
the financial services licensee, or each of the financial services licensees, who authorised the distribution of the FSG; and
(b)
if the alteration is a material alteration
-
the date of the FSG has been changed to the date on which the alteration was made.
Note: Failure to comply with this section is an offence (see subsection
1311(1)
).
History
S 942E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision C
-
Supplementary Financial Services Guides
CCH Note:
Subdivision C is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 943A
WHAT A SUPPLEMENTARY FINANCIAL SERVICES GUIDE IS
CCH Note:
Section 943A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
943A(1)
A
Supplementary Financial Services Guide
is a document by which a person who has prepared a Financial Services Guide (the
FSG
) can:
(a)
correct a misleading or deceptive statement in the FSG; or
(b)
correct an omission from the FSG of information it is required to contain; or
(c)
update the information contained in the FSG.
943A(2)
A Supplementary Financial Services Guide must not be given to a person by an authorised representative of a financial services licensee unless the licensee has authorised its distribution by the authorised representative.
History
S 943A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 943B
TITLE OF SUPPLEMENTARY FINANCIAL SERVICES GUIDE
CCH Note:
Section 943B is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
943B(1)
The title
"
Supplementary Financial Services Guide
"
must be used on the cover of, or at or near the front of, a Supplementary Financial Services Guide.
943B(2)
In any other part of a Supplementary Financial Services Guide,
"
Supplementary Financial Services Guide
"
may be abbreviated to
"
SFSG
"
.
History
S 943B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 943C
FORM OF SUPPLEMENTARY FINANCIAL SERVICES GUIDE
CCH Note:
Section 943C is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
943C(1)
At the beginning of a Supplementary Financial Services Guide there must be:
(a)
a statement that it is a Supplementary Financial Services Guide; and
(b)
an identification of the Financial Services Guide that it supplements; and
(c)
a statement that it is to be read together with that Financial Services Guide and any other specified Supplementary Financial Services Guides.
943C(2)
The Supplementary Financial Services Guide must be dated. The date must be the date on which the Supplementary Financial Services Guide was prepared or its preparation was completed.
943C(3)
If the Supplementary Financial Services Guide will or may be distributed by an authorised representative of a financial services licensee, it must contain a statement to the effect that its distribution by the authorised representative has been authorised by the licensee.
History
S 943C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 943D
943D
EFFECT OF GIVING A PERSON A SUPPLEMENTARY FINANCIAL SERVICES GUIDE
CCH Note:
Section 943D is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
If:
(a)
a person is given a Financial Services Guide (the
FSG
); and
(b)
at the same time, or later, they are given a Supplementary Financial Services Guide (the
SFSG
) that supplements the FSG;
the FSG is taken, from when the SFSG is given to the person, to include the information and statements contained in the SFSG.
History
S 943D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 943E
943E
SITUATION IN WHICH ONLY A SUPPLEMENTARY FINANCIAL SERVICES GUIDE NEED BE GIVEN
CCH Note:
Section 943E is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
If:
(a)
apart from this section, a person (the
providing entity
) would be required to give another person (the
client
) a Financial Services Guide (the
new FSG
); and
(b)
the client has, because of some previous conduct, already been given a Financial Services Guide (the
earlier FSG
) containing some, but not all, of the information that the new FSG is required to contain;
the provider may, instead of giving the client the new FSG, give the client a Supplementary Financial Services Guide that contains the additional information.
History
S 943E inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 943F
943F
ALTERING A SUPPLEMENTARY FINANCIAL SERVICES GUIDE AFTER ITS PREPARATION AND BEFORE GIVING IT TO A PERSON
CCH Note:
Section 943F is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
A financial services licensee, or an authorised representative of a financial services licensee, must not, in purported compliance with a provision of this Part, give a person a Supplementary Financial Services Guide (the
SFSG
) that has been altered (otherwise than pursuant to paragraph (b)) after the date specified in the SFSG as required by subsection
943C(2)
unless:
(a)
the alteration was made by, or with the authority of:
(i)
if section
942B
applies to the Financial Services Guide that the SFSG supplements
-
the financial services licensee to which the Guide relates; or
(ii)
if section
942C
applies to the Financial Services Guide that the SFSG supplements
-
the financial services licensee, or each of the financial services licensees, who authorised the distribution of the SFSG; and
(b)
if the alteration is a material alteration
-
the date of the SFSG has been changed to the date on which the alteration was made.
Note: Failure to comply with this section is an offence (see subsection
1311(1)
).
History
S 943F inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 3
-
Additional requirements for personal advice provided to a retail client
CCH Note:
Division 3 is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
Subdivision A
-
When this Division applies
CCH Note:
Subdivision A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 944A
944A
SITUATION IN WHICH DIVISION APPLIES
CCH Note:
Section 944A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
This Division applies in relation to the provision of personal advice (the
advice
) in the following circumstances:
(a)
the advice is provided:
(i)
by a financial services licensee (the
providing entity
); or
(ii)
by a person (the
providing entity
) in their capacity as authorised representative of a financial services licensee (the
authorising licensee
), or of 2 or more financial services licensees (the
authorising licensees
); and
(b)
the advice is provided to a person (the
client
) as a retail client.
History
S 944A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision B
-
Requirements relating to basis of advice
History
Subdiv B repealed by No 68 of 2012, s 3, Sch 1[6] (effective 1 July 2012).
SECTION 945A
945A
REQUIREMENT TO HAVE A REASONABLE BASIS FOR THE ADVICE
(Repealed by No 68 of 2012, s 3, Sch 1[6] (effective 1 July 2012).)
SECTION 945B
945B
OBLIGATION TO WARN CLIENT IF ADVICE BASED ON INCOMPLETE OR INACCURATE INFORMATION
(Repealed by No 68 of 2012, s 3, Sch 1[6] (effective 1 July 2012).)
Subdivision C
-
Requirement for a Statement of Advice to be given
CCH Note:
Subdivision C is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 946A
OBLIGATION TO GIVE CLIENT A STATEMENT OF ADVICE
CCH Note:
Section 946A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
946A(1)
The providing entity must give the client a Statement of Advice in accordance with this Subdivision and Subdivision
D
.
History
S 946A(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
946A(2)
The Statement of Advice may be:
(a)
the means by which the advice is provided; or
(b)
a separate record of the advice.
History
S 946A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
946A(3)
This section has effect subject to sections
946AA
and
946B
.
History
S 946A(3) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
116].
S 946A(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
946A(4)
A person contravenes this subsection if the person contravenes subsection (1).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 946A(4) inserted by No 17 of 2019, s 3, Sch 1
[
85] (effective 13 March 2019).
SECTION 946AA
SMALL INVESTMENTS
-
STATEMENT OF ADVICE NOT REQUIRED
CCH Note:
Section 946AA is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
Small investments generally
946AA(1)
The providing entity does not have to give the client a Statement of Advice for particular advice (the
small investment advice
) if:
(a)
both of the following apply:
(i)
an amount (the
threshold amount
) has been prescribed by regulations made for the purposes of this paragraph;
(ii)
the total value of all financial investments in relation to which the advice is provided, as worked out under subsection (2), does not exceed the threshold amount; and
(b)
the advice does not relate to any of the following:
(i)
a derivative;
(ii)
a general insurance product;
(iii)
a life risk insurance product (except to the extent that advice about a superannuation product relates to a life risk insurance product); and
(c)
the advice does not relate to any superannuation product or RSA, unless the client already has an interest in the product.
History
S 946AA(1) amended by No 76 of 2023, s 3, Sch 2
[
469] (effective 20 October 2023).
S 946AA(1) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
117].
946AA(1A)
(Repealed by No 70 of 2015, s 3, Sch 1[35].)
Total value of investments
946AA(2)
For the purposes of paragraph
(1)(a)
, the total value of investments in relation to which the small investment advice is provided is:
(a)
if the advice solely relates to the acquisition of all (or part) of one or more financial products, or of an increased interest in one or more financial products
-
the sum of the values (the
total acquisition value
) of each acquisition; or
(b)
if the advice solely relates to the disposal of all (or part) of one or more financial products, or of a part of an interest in one or more financial products
-
the sum of the values (the
total disposal value
) of each disposal; or
(c)
if the advicerelates to both an acquisition, and a disposal, mentioned in paragraphs (a) and (b):
(i)
the total acquisition value; or
(ii)
if the total disposal value exceeds the total acquisition value
-
the total disposal value.
History
S 946AA(2) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
117].
Method for working out threshold amount
946AA(3)
Regulations made for the purposes of paragraph
(1)(a)
may prescribe how the threshold amount is to be worked out in relation to particular kinds of financial products.
History
S 946AA(3) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
117].
Record of advice
946AA(4)
The providing entity must keep a record of the small investment advice and, in doing so, must comply with any applicable requirements of regulations made for the purposes of this subsection.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
[
CCH Note:
For modified s 946AA(4), see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.1]
History
S 946AA(4) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
117].
946AA(5)
The providing entity must, at the applicable time, give the client:
(a)
a copy of the record of the small investment advice; and
(b)
the information that would, if a Statement of Advice were to be given, be required to be in the Statement by paragraphs
947B(2)(d)
and
(e)
, or
947C(2)(e)
and
(f)
, as the case requires.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
[
CCH Note:
For modified s 946AA(5), see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.2]
History
S 946AA(5) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
117].
[
CCH Note:
For s 946AA(5A), see Corporations Regulations Schedule 10A, Part 5
-
Modifications relating to First Home Saver Accounts, item 5.3]
946AA(6)
For the purposes of subsection
(5)
, the
applicable time
for something to be given relating to the small investment advice is the time:
(a)
when, or as soon as practicable after, the advice is provided; and
(b)
in any event
-
before the providing entity provides the client with any further financial service arising out of, or connected with, the advice.
History
S 946AA(6) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
117].
SECTION 946B
OTHER SITUATIONS IN WHICH A STATEMENT OF ADVICE IS NOT REQUIRED
CCH Note:
Section 946B is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
Further market-related advice
946B(1)
The providing entity does not have to give the client a Statement of Advice for particular advice (the
further market-related advice
) if:
(a)
the providing entity is a participant in a licensed market, or is an authorised representative of a participant in a licensed market; and
(b)
the providing entity has previously given the client a Statement of Advice that set out the client's relevant personal circumstances in relation to the advice (the
previous advice
) set out in that Statement; and
(c)
the further market-related advice recommends that the client:
(i)
acquire or dispose of, or not acquire or dispose of; or
(ii)
accept or refuse an offer or invitation which, if accepted, would result in the client acquiring or disposing of, or offering to acquire or dispose of;
securities, managed investment products, foreign passport fund products or derivatives that are able to be traded on a licensed market; and
(d)
the following conditions are satisfied:
(ia)
the providing entity has, either immediately before the further market-related advice is given, or within the preceding 12 months, checked with the client whether the client's objectives, financial situation and needs have changed since the last time the providing entity checked with the client about those matters; and
(i)
the client's relevant personal circumstances in relation to the further market-related advice (determined having regard to the client's objectives, financial situation and needs as currently known to the providing entity) are notsignificantly different from the client's relevant personal circumstances in relation to the previous advice; and
(ii)
so far as the basis on which advice is given relates to other matters
-
the basis on which the further market-related advice is given is not significantly different from the basis on which the previous advice was given; and
(e)
the providing entity has a reasonable belief that:
(i)
the client requires the further market-related advice to be provided promptly; or
(ii)
it is in the client's interests that the further market-related advice be provided promptly; and
(f)
either:
(i)
the further market-related advice does not contain any other kind of financial product advice; or
(ii)
the only other kind of financial product advice contained in the further market-related advice is cash management facility advice; and
(g)
the further market-related advice is given:
(i)
by telephone; or
(ii)
by fax; or
(iii)
by email; or
(iv)
by another kind of electronic communication specified in regulations made for the purposes of this subparagraph.
Note: Paragraphs
947B(2)(b)
and
947C(2)(b)
require a Statement of Advice to include information about the basis on which the advice is or was given, which may include the client's relevant personal circumstances, in which case paragraph (b) of this subsection would be satisfied.
History
S 946B(1) amended by No 49 of 2019, s 3, Sch 4[36] (effective 6 April 2019).
S 946B(1) amended by No 61 of 2018, s 3, Sch 2[235] (effective 18 September 2018).
S 946B(1) substituted by No 141 of 2003, s 3, Sch 2
[
46A].
946B(2)
For the purposes of subsection
(1)
:
able to be traded on a licensed market
means:
(a)
in relation to securities, managed investment products or foreign passport fund products
-
either:
(i)
the securities or products are admitted to quotation on a licensed market and their admission to quotation is not suspended; or
(ii)
the securities or products are not admitted to quotation on a licensed market, but are further securities or products of a kind that are already admitted to quotation on the market and whose admission to quotation is not suspended; and
(b)
in relation to derivatives:
(i)
the standard terms of the arrangement that constitutes the derivative are set out in the operating rules of a licensed market; and
(ii)
under the operating rules of that market, the derivatives are able to be dealt with on the market.
History
Definition ofable to be traded on a licensed market
amended by No 61 of 2018, s 3, Sch 2[236] (effective 18 September 2018).
cash management facility
means:
(a)
an interest in a registered scheme or a notified foreign passport fund of a kind commonly known as a cash common fund or a cash management trust; or
(b)
a basic deposit product; or
(c)
a bank accepted bill.
History
Definition of
cash management facility
amended by No 61 of 2018, s 3, Sch 2[237] (effective 18 September 2018).
cash management facility advice
means advice about the use (but not the establishment) of a cash management facility in connection with an acquisition or disposal of securities, managed investment products, foreign passport fund products or derivatives to which the further market-related advice relates.
History
Definition of
cash management facility advice
amended by No 61 of 2018, s 3, Sch 2[238] (effective 18 September 2018).
History
S 946B(2) substituted by No 141 of 2003, s 3, Sch 2
[
46A].
946B(3)
However, in the same communication as is used to provide the further market-related advice to the client, the client must be given the information that would, if a Statement of Advice were to be given, be required to be in the Statement by paragraphs
947B(2)(d)
and (e), or
947C(2)(e)
and (f), as the case requires.
History
S 946B(3) amended by No 141 of 2003, s 3, Sch 2
[
46B].
S 946B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
946B(3A)
The providing entity must keep a record of the further market-related advice and, in doing so, must comply with any applicable requirements of regulations made for the purposes of this subsection.
Note 1: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
Note 2: For the client's right to a record of the advice, see subsections
942B(8)
and
942C(8)
.
History
S 946B(3A) amended by No 141 of 2003, s 3, Sch 2
[
46C].
S 946B(3A) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
The next subsection is s 946B(5).]
Certain basic deposit and other products
946B(5)
The providing entity does not have to give the client a Statement of Advice if the advice relates to any or all of the following:
(a)
a basic deposit product;
(b)
a facility for making non-cash payments that is related to a basic deposit product;
(c)
a financial product of a kind prescribed by regulations made for the purposes of this paragraph.
History
S 946B(5) amended by No 76 of 2023, s 3, Sch 2
[
470] (effective 20 October 2023).
S 946B(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
946B(6)
However, if subsection
(5)
applies and the client is not given a Statement of Advice, the client must instead, when, or as soon as practicable after, the advice is provided, be given the information that would be required to be in the Statement of Advice by paragraphs
947B(2)(d)
and (e), or
947C(2)(e)
and (f), as the case requires.
History
S 946B(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Where advice does not recommend the purchase or sale of products
946B(7)
The providing entity does not have to give the client a Statement of Advice for particular advice if:
(a)
the advice does not recommend or state an opinion in respect of:
(i)
the acquisition or disposal of any specific financial product, or the products of a specific issuer; nor
(ii)
a modification to an investment strategy or a contribution level in relation to a financial product held by the client; and
(b)
the following persons do not directly receive any remuneration (other than remuneration that is currently being received for an earlier acquisition of a product) or other benefit for, or in relation to, the advice:
(i)
the providing entity;
(ii)
an employer of the providing entity;
(iii)
the authorising licensee, or any of the authorising licensees;
(iv)
an employee or director of the authorising licensee, or of any of the authorising licensees;
(v)
an associate of any of the above;
(vi)
any other person prescribed by regulations made for the purposes of this paragraph.
History
S 946B(7) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
118].
946B(8)
However, in the same communication as is used to provide to the client the advice referred to in subsection
(7)
, the client must be given the information that would, if a Statement of Advice were to be given, be required to be in the Statement by paragraphs
947B(2)(d)
and
(e)
, or
947C(2)(e)
and
(f)
, as the case requires.
History
S 946B(8) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
118].
946B(9)
The providing entity must keep a record of the advice and, in doing so, must comply with any applicable requirements of regulations made for the purposes of this subsection.
Note 1: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
Note 2: For the client
'
s right to a record of the advice, see subsections
942B(8)
and
942C(8)
.
History
S 946B(9) inserted by No 101 of 2007, s 3, Sch 1, Pt 1
[
118].
SECTION 946C
TIMING OF GIVING STATEMENT OF ADVICE
CCH Note:
Section 946C is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
General rule
946C(1)
Subject to this section, if the Statement of Advice is not the means by which the advice is provided, the Statement of Advice must be given to the client when, or as soon as practicable after, the advice is provided and, in any event, before the providing entity provides the client with any further financial service that arises out of or is connected with that advice.
Statement of certain information if Statement of Advice not given when advice provided
946C(2)
If the Statement of Advice is not given to the client when the advice is provided, the providing entity must, when the advice is provided, give the client a statement that contains the information that would be required to be in a Statement of Advice by paragraphs
947B(2)(d)
and
(e)
, or
947C(2)(e)
and
(f)
, as the case requires, and by
section 947D
, if applicable.
Time critical cases
946C(3)
If:
(a)
the client expressly instructs that they require a further financial service that arises out of, or is connected with, the advice to be provided immediately, or by a specified time; and
(b)
it is not reasonably practicable to give the Statement of Advice to the client before that further service is provided as so instructed;
the providing entity must give the client the Statement of Advice:
(c)
unless paragraph
(d)
applies
-
within 5 business days after providing that further service, or sooner if practicable; or
(d)
if that further service is the provision to the person of a financial product and
section 1019B
(cooling-off period) will apply to the acquisition of the product by the person
-
before the start of the period applicable under subsection
1019B(3)
, or sooner if practicable.
[
CCH Note:
For modified s 946C(3)(c), see Corporations Regulations reg
7.7.10AH
-
Business days.]
History
S 946C(3) amended by No 8 of 2022, s 3, Sch 8[12] (effective 23 February 2022).
History
S 946C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision D
-
Content of Statement of Advice
CCH Note:
Subdivision D is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 947A
TITLE OF STATEMENT OF ADVICE
CCH Note:
Section 947A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
947A(1)
The title
"
Statement of Advice
"
must be used on the cover of, or at or near the front of, a Statement of Advice.
947A(2)
In any other part of a Statement of Advice,
"
Statement of Advice
"
may be abbreviated to
"
SoA
"
.
History
S 947A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 947B
STATEMENT OF ADVICE GIVEN BY FINANCIAL SERVICES LICENSEE
-
MAIN REQUIREMENTS
CCH Note:
Section 947B is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
947B(1)
This section applies if the providing entity is a financial services licensee.
History
S 947B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947B(2)
Subject to subsection (3) and to the regulations (see subsection (4)), the Statement of Advice must include the following statements and information:
(a)
a statement setting out the advice; and
(b)
information about the basis on which the advice is or was given; and
(c)
a statement setting out the name and contact details of the providing entity; and
(d)
information about any remuneration (including commission) or other benefits that any of the following is to receive that might reasonably be expected to be or have been capable of influencing the providing entity in providing the advice:
(i)
the providing entity;
(ii)
a related body corporate of the providing entity;
(iii)
a directoror employee of the providing entity or a related body corporate;
(iv)
an associate of any of the above;
(v)
any other person in relation to whom the regulations require the information to be provided; and
(e)
information about:
(i)
any other interests, whether pecuniary or not and whether direct or indirect, of the providing entity or of any associate of the providing entity; and
(ii)
any associations or relationships between the providing entity or any associate of the providing entity and the issuers of any financial products;
that might reasonably be expected to be or have been capable of influencing the providing entity in providing the advice; and
(f)
if section
961H
requires a warning to be given to the client in relation to the advice
-
a statement setting out, or recording, the warning required by that section; and
(g)
any other statements or information required by the regulations; and
(h)
unless in accordance with the regulations, for information to be disclosed in accordance with paragraph (d) and subparagraph (e)(i), any amounts are to be stated in dollars.
History
S 947B(2) amended by No 68 of 2012, s 3, Sch 1[7] (effective 1 July 2012).
S 947B(2) amended by No 141 of 2003, s 3, Sch 2
[
46D].
S 947B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947B(3)
Subject to subsection (4), the level of detail about a matter that is required is such as a person would reasonably require for the purpose of deciding whether to act on the advice as a retail client.
History
S 947B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947B(4)
The regulations may provide all or any of the following:
(a)
that a provision of subsection (2) does not apply in a particular situation;
(b)
that particular information is not required by a provision of subsection (2), either in a particular situation or generally;
(c)
a more detailed statement of the information that is required by a provision of subsection (2), either in a particular situation or generally.
History
S 947B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947B(5)
The Statement of Advice:
(a)
must also include any information required by
section 947D
, if applicable; and
(b)
may also include other information.
History
S 947B(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947B(6)
The statements and information included in the Statement of Advice must be worded and presented in a clear, concise and effective manner.
History
S 947B(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 947C
STATEMENT OF ADVICE GIVEN BY AUTHORISED REPRESENTATIVE
-
MAIN REQUIREMENTS
CCH Note:
Section 947C is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
947C(1)
This section applies if the providing entity is an authorised representative.
History
S 947C(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947C(2)
Subject to subsection (3) and to the regulations (see subsection (4)), the Statement of Advice must include the following statements and information:
(a)
a statement setting out the advice; and
(b)
information about the basis on which the advice is or was given; and
(c)
a statement setting out the name and contact details of the providing entity; and
(d)
a statement
(i)
setting out the name and contact details of the authorising licensee, or of each of the authorising licensees; and
(ii)
stating that the providing entity is the authorised representative of that licensee or those licensees; and
(e)
information about the remuneration (including commission) or other benefits that any of the following is to receive that might reasonably be expected to be or have been capable of influencing the providing entity in providing the advice:
(i)
the providing entity;
(ii)
an employer of the providing entity;
(iii)
the authorising licensee, or any of the authorising licensees;
(iv)
an employee or director of the authorising licensee, or of any of the authorising licensees;
(v)
an associate of any of the above;
(vi)
any other person in relation to whom the regulations require the information to be provided; and
(f)
information about:
(i)
any other interests, whether pecuniary or not and whether direct or indirect, of the providing entity, any employer of the providing entity, the authorising licensee or any of the authorising licensees, or of any associate of any of those persons; and
(ii)
any associations or relationships between the providing entity, any employer of the providing entity, the authorising licensee or any of the authorising licensees, or any associate of any of those persons, and the issuers of any financial products;
that might reasonably be expected to be or have been capable of influencing the providing entity in providing the advice; and
(g)
if section
961H
requires a warning to be given to the client in relation to the advice
-
a statement setting out, or recording, the warning required by that section; and
(h)
any other statements or information required by the regulations; and
(i)
unless in accordance with the regulations, for information to be disclosed in accordance with paragraph (e) and subparagraph (f)(i), any amounts are to be stated in dollars.
History
S 947C(2) amended by No 68 of 2012, s 3, Sch 1[8] (effective 1 July 2012).
S 947C(2) amended by No 141 of 2003, s 3, Sch 2
[
46E].
S 947C(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947C(3)
Subject to subsection (4), the level of detail about a matter that is required is such as a person would reasonably require for the purpose of deciding whether to act on the advice as a retail client.
History
S 947C(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947C(4)
The regulations may provide all or any of the following:
(a)
that a provision of subsection (2) does not apply in a particular situation;
(b)
that particular information is not required by a provision of subsection (2), either in a particular situation or generally;
(c)
a more detailed statement of the information that is required by a provision of subsection (2), either in a particular situation or generally.
History
S 947C(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947C(5)
The Statement of Advice:
(a)
must also include any information required by
section 947D
, if applicable; and
(b)
may also include other information.
History
S 947C(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947C(6)
The statements and information included in the Statement of Advice must be worded and presented in a clear, concise and effective manner.
History
S 947C(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 947D
ADDITIONAL REQUIREMENTS WHEN ADVICE RECOMMENDS REPLACEMENT OF ONE PRODUCT WITH ANOTHER
CCH Note:
Section 947D is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
947D(1)
This section applies (subject to subsection
(4)
) if the advice is or includes a recommendation that:
(a)
the client dispose of, or reduce the client
'
s interest in, all or part of a particular financial product and instead acquire all or part of, or increase the client
'
s interest in, another financial product; or
(b)
the client dispose of, or reduce the client
'
s interest in, a MySuper product offered by a regulated superannuation fund, or by an AFCA regulated superannuation scheme, and instead acquire an interest, or increase the client
'
s interest, in another MySuper product or a choice product offered by the fund.
History
S 947D(1) amended by No 76 of 2023, s 3, Sch 2
[
471] (effective 20 October 2023).
S 947D(1) substituted by No 61 of 2013, s 3, Sch 1, Pt 1[7] (effective 27 June 2013).
S 947D(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947D(2)
The following additional information must be included in the Statement of Advice:
(a)
information about the following, to the extent that the information is known to, or could reasonably be found out by, the providing entity:
(i)
any charges the client will or may incur in respect of the disposal or reduction;
(ii)
any charges the client will or may incur in respect of the acquisition or increase;
(iii)
any pecuniary or other benefits that the client will or may lose (temporarily or otherwise) as a result of taking the recommended action;
(b)
information about any other significant consequences for the client of taking the recommended action that the providing entity knows, or ought reasonably to know, are likely;
(c)
any other information required by regulations made for the purposes of this paragraph;
(d)
unless in accordance with the regulations, for information to be disclosed in accordance with paragraph (a), any amounts are to be stated in dollars.
History
S 947D(2) amended by No 141 of 2003, s 3, Sch 2
[
46F].
S 947D(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947D(3)
If:
(a)
the providing entity knows that, or is reckless as to whether:
(i)
the client will or may incur charges as mentioned in subparagraph
(2)(a)(i)
or
(ii)
; or
(ii)
the client will or may lose benefits as mentioned in subparagraph
(2)(a)(iii)
; or
(iii)
there will or may be consequences for the client as mentioned in paragraph
(2)(b)
; but
(b)
the providing entity does not know, and cannot reasonably find out, what those charges, losses or consequences are or will be;
the Statement of Advice must include a statement to the effect that there will or may be such charges, losses or consequences but the providing entity does not know what they are.
History
S 947D(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947D(4)
The regulations may provide either or both of the following:
(a)
that this section does not apply in relation to a financial product or a class of financial products;
(b)
that this section does not require the provision of information of a particular kind, whether generally or in relation to a particular situation, financial product or class of financial products.
History
S 947D(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
947D(5)
(Repealed by No 76 of 2023, s 3, Sch 2[472] (effective 20 October 2023).)
SECTION 947E
947E
STATEMENT OF ADVICE NOT TO BE COMBINED WITH FINANCIAL SERVICES GUIDE OR PRODUCT DISCLOSURE STATEMENT
CCH Note:
Section 947E is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
A Statement of Advice must not be combined in a single document with a Financial Services Guide or a Product Disclosure Statement.
History
S 947E inserted by No 141 of 2003, s 3, Sch 2
[
47].
Subdivision E
-
Other matters
CCH Note:
Subdivision E is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 948A
948A
QUALIFIED PRIVILEGE IF PROVIDING ENTITY COMPLIES WITH THIS DIVISION
CCH Note:
Section 948A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
The providing entity has qualified privilege in respect of a statement made to the client, whether orally or in writing, in the course of, or in connection with, providing the advice if the providing entity has complied with all material requirements of this Division in relation to the advice.
History
S 948A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Division 3A
-
Cash Settlement Fact Sheet
CCH Note:
Division 3A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
History
Div 3A inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
Subdivision A
-
When this Division applies
CCH Note:
Subdivision A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
History
Subdiv A inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
SECTION 948B
948B
SITUATION IN WHICH THIS DIVISION APPLIES
CCH Note:
Section 948B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
This Division applies in relation to the provision of a claims handling and settling service in the following circumstances:
(a)
the service is offering to settle all or part of a claim under a general insurance product using a cash payment;
(b)
the service is provided:
(i)
by a financial services licensee (the
providing entity
); or
(ii)
by a person (the
providing entity
) in their capacity as authorised representative of a financial services licensee (the
authorising licensee
), or of 2 or more financial services licensees (the
authorising licensees
); or
(iii)
by another person on behalf of a financial services licensee (the
providing entity
), or on behalf of 2 or more financial services licensees (each of which is a
providing entity
);
(c)
the service is provided to a person (the
client
) as a retail client who is insured under the insurance product;
(d)
cash payment is not the only option legally available to the client to settle the claim, or the part of the claim.
History
S 948B inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
Subdivision B
-
Requirement for a Cash Settlement Fact Sheet to be given
CCH Note:
Subdivision B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
History
Subdiv B inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
SECTION 948C
OBLIGATION TO GIVE CLIENT A CASH SETTLEMENT FACT SHEET
CCH Note:
Section 948C is modified by the ASIC Corporations (Cash Settlement Fact Sheet) Instrument 2022/59 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
948C(1)
The providing entity must give the client a Cash Settlement Fact Sheet in accordance with this Division.
948C(2)
A person contravenes this subsection if the person contravenes subsection (1).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 948C inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
SECTION 948D
948D
TIMING FOR GIVING A CASH SETTLEMENT FACT SHEET
CCH Note:
Section 948D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
The Cash Settlement Fact Sheet must be given to the client when the offer to settle all or part of the claim using a cash payment is made.
History
S 948D inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
Subdivision C
-
Contents of a Cash Settlement Fact Sheet
CCH Note:
Subdivision C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
History
Subdiv C inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
SECTION 948E
TITLE OF CASH SETTLEMENT FACT SHEET
CCH Note:
Section 948E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
948E(1)
The title
"
Cash Settlement Fact Sheet
"
must be used on the cover of, or at or near the front of, a Cash Settlement Fact Sheet.
948E(2)
In any other part of the Cash Settlement Fact Sheet,
"
Cash Settlement Fact Sheet
"
may be abbreviated to
"
CSFS
"
.
History
S 948E inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
SECTION 948F
CONTENT OF CASH SETTLEMENT FACT SHEET
CCH Note:
Section 948F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
948F(1)
A Cash Settlement Fact Sheet must contain:
(a)
a statement outlining the options for settlement legally available to the client under the insurance product; and
(b)
a statement setting out the sum insured under the insurance product; and
(c)
a statement setting out:
(i)
the total amount of the cash settlement being offered; and
(ii)
the amount of each component of the total amount of cash settlement being offered (such as components representing the sum insured, additional payments relating to emergencies and ex gratia payments); and
(d)
a statement that the client should consider obtaining independent legal or financial advice before settling; and
(e)
if, despite accepting the offer, the client would be entitled under the insurance product to have the payout reviewed
-
an outline of the rights of review; and
(f)
any other information prescribed by the regulations.
948F(2)
The Cash Settlement Fact Sheet must be given in writing.
948F(3)
The Cash Settlement Fact Sheet must be dated. The date must be the date on which the Cash Settlement Fact Sheet was prepared or its preparation completed.
948F(4)
The Cash Settlement Fact Sheet may also contain other information.
948F(5)
The information included in the Cash Settlement Fact Sheet must be worded and presented in a clear, concise and effective manner.
History
S 948F inserted by No 135 of 2020, s 3, Sch 7
[
18] (effective 1 January 2021).
Division 4
-
Other disclosure requirements
CCH Note:
Division 4 is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 949A
GENERAL ADVICE PROVIDED TO RETAIL CLIENT
-
OBLIGATION TO WARN CLIENT THAT ADVICE DOES NOT TAKE ACCOUNT OF CLIENT
'
S OBJECTIVES, FINANCIAL SITUATION OR NEEDS
CCH Note:
Section 949A is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
949A(1)
This section applies in relation to the provision of general advice if:
(a)
the advice is provided:
(i)
by a financial services licensee (the
providing entity
); or
(ii)
by an authorised representative (the
providing entity
) of a financial services licensee, or of 2 or more financial services licensees; and
(b)
the advice is provided to a person (the
client
) as a retail client; and
(c)
the advice is not provided in circumstances specified in regulations made for the purposes of this paragraph.
History
S 949A(1) amended by No 141 of 2003, s 3, Sch 2
[
47A].
S 949A(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
949A(2)
The providing entity must, in accordance with subsection (3), warn the client that:
(a)
the advice has been prepared without taking account of the client
'
s objectives, financial situation or needs; and
(b)
because of that, the client should, before acting on the advice, consider the appropriateness of the advice, having regard to the client
'
s objectives, financial situation and needs; and
(c)
if the advice relates to the acquisition, or possible acquisition, of a particular financial product
-
the client should:
(i)
if the product is not a CGS depository interest
-
obtain a Product Disclosure Statement (see Division
2
of Part
7.9
) relating to the product and consider the Statement before making any decision about whether to acquire the product; or
(ii)
if the product is a CGS depository interest
-
obtain each information statement (see Division
5C
of Part
7.9
) for the class of CGS depository interests that includes the product and consider the statement before making any decision about whether to acquire the product.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
[
CCH Note:
For modified s 949A(2)(c), see Corporations Regulations Schedule 10BA
-
Modifications of the Act relating to short-form product disclosure statements, Part 1, item 1.1]
History
S 949A(2) amended by No 155 of 2012, s 3, Sch 1
[
12] (effective 18 November 2012).
S 949A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
949A(3)
The warning must be given to the client at the same time as the advice is provided and by the same means as the advice is provided.
History
S 949A(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
949A(4)
In any proceedings against an authorised representative of a financial services licensee for an offence based on subsection (1), it is a defence if:
(a)
the licensee had provided the authorised representative with information or instructions about the requirements to be complied with in relation to the giving of personal advice; and
(b)
the representative
'
s failure to comply with subsection (1) occurred because the representative was acting in reliance on that information or those instructions; and
(c)
the representative
'
s reliance on that information or those instructions was reasonable.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3) of the
Criminal Code
.
History
S 949A(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
949A(5)
A financial services licensee must take reasonable steps to ensure that an authorised representative of the licensee complies with subsection (2).
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 949A(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 949B
REGULATIONS MAY IMPOSE DISCLOSURE REQUIREMENTS IN CERTAIN SITUATIONS
CCH Note:
Section 949B is modified by the ASIC Corporations (Superannuation Calculators and Retirement Estimates) Instrument 2022/603 and the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
949B(1)
The regulations may impose disclosure requirements, or additional disclosure requirements, to be complied with in any of the following situations:
(a)
a financial service related to a risk insurance product or an investment life insurance product is provided to a person as a retail client by a financial services licensee, or an authorised representative of a financial services licensee, acting under a binder;
(b)
a financial services licensee, or an authorised representative of a financial services licensee, arranges for a person
'
s instructions to be carried out through a financial market or a clearing and settlement facility (whether inside or outside Australia) that is not a licensed market or a licensed CS facility;
[
CCH Note:
There is no paragraph 949B(1)(c).]
(d)
a financial service is provided by a person who does not need an Australian financial services licence because the person is covered by an exemption under paragraph
911A(2)(k)
or (l);
(e)
a financial service is provided to a person as a wholesale client.
949B(2)
A person to whom regulations made for the purposes of subsection (1) apply must comply with any applicable requirements in those regulations.
Note: Failure to comply with this subsection is an offence (see
subsection 1311(1)
).
949B(3)
In any proceedings against an authorised representative of a financial services licensee for an offence based on subsection (2), it is a defence if:
(a)
the licensee had provided the authorised representative with information or instructions about the requirements to be complied with in relation to the matter dealt with in the requirement in the regulations; and
(b)
the representative
'
s failure to comply with the requirement in the regulations occurred because the representative was acting in reliance on that information or those instructions; and
(c)
the representative
'
s reliance on that information or those instructions was reasonable.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3) of the
Criminal Code
.
949B(4)
A financial services licensee must take reasonable steps to ensure that an authorised representative of the licensee complies with subsection (2).
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
History
S 949B inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
[
CCH Note:
The next Division is Div 6.]
Division 6
-
Miscellaneous
CCH Note:
Division 6 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
SECTION 951A
951A
PART CANNOT BE CONTRACTED OUT OF
CCH Note:
Section 951A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
A condition of a contract for the acquisition of a financial product, or for the provision of a financial service, is void if it provides that a party to the contract is:
(a)
required or bound to waive compliance with any requirement of this Part; or
(b)
taken to have notice of any contract, document or matter not specifically referred to in a Financial Services Guide, Statement of Advice, Cash Settlement Fact Sheet or other document given to the party.
History
S 951A amended by No 135 of 2020, s 3, Sch 7
[
19] (effective 1 January 2021).
S 951A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 951B
EXEMPTIONS AND MODIFICATIONS BY ASIC
CCH Note:
Section 951B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
951B(1)
ASIC may:
(a)
exempt a person or a class of persons from all or specified provisions of this Part; or
(b)
exempt a financial product or class of financial products from all or specified provisions of this Part; or
(c)
declare that this Part applies in relation to a person or a financial product, or a class of persons or financial products, as if specified provisions of this Part were omitted, modified or varied as specified in the declaration.
View history note
History
S 951B(1) amended by No 141 of 2003, s 3, Sch 2
[
48].
S 951B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
951B(2)
(Repealed by No 141 of 2003, s 3, Sch 2
[
49].)
951B(3)
An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The Court may order the person to comply with the condition in a specified way. Only ASIC may apply to the Court for the order.
History
S 951B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
951B(4)
An exemption or declaration must be in writing and ASIC must publish notice of it in the
Gazette
.
History
S 951B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
951B(5)
If conduct (including an omission) of a person would not have constituted an offence if a particular declaration under paragraph (1)(c) had not been made, that conduct does not constitute an offence unless, before the conduct occurred (in addition to complying with the gazettal requirement of subsection (4)):
(a)
the text of the declaration was made available by ASIC on the internet; or
(b)
ASIC gave written notice setting out the text of the declaration to the person.
In a prosecution for an offence to which this subsection applies, the prosecution must prove that paragraph (a) or (b) was complied with before the conduct occurred.
History
S 951B(5) amended by No 5 of 2011, s 3, Sch 1
[
42].
S 951B(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
951B(6)
For the purpose of this section, the
provisions of this Part
include:
(a)
definitions in this Act, or in the regulations, as they apply to references in this Part; and
(b)
any provisions of Part
10.2
(transitional provisions) that relate to provisions of this Part.
Note: Because of section
761H
, a reference to this Part or Part
10.2
also includes a reference to regulations or other instruments made for the purposes of this Part or Part
10.2
(as the case requires).
History
S 951B(6) (Note) inserted by No 141 of 2003, s 3, Sch 2
[
50].
S 951B(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 951C
EXEMPTIONS AND MODIFICATIONS BY REGULATIONS
CCH Note:
Section 951C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716.
951C(1)
The regulations may:
(a)
exempt a person or class of persons from all or specified provisions of this Part; or
(b)
exempt a financial product or a class of financial products from all or specified provisions of this Part; or
(c)
provide that this Part applies as if specified provisions were omitted, modified or varied as specified in the regulations.
951C(2)
For the purpose of this section, the
provisions of this Part
include:
(a)
definitions in this Act, or in the regulations, as they apply to references in this Part; and
(b)
any provisions of Part
10.2
(transitional provisions) that relate to provisions of this Part.
History
S 951C inserted by No 141 of 2003, s 3, Sch 2
[
51].
Division 7
-
Enforcement
CCH Note:
Division 7 is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Subdivision A
-Offences
CCH Note:
Subdivision A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 952A
952A
OVERVIEW
CCH Note:
Section 952A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
This Subdivision contains provisions creating offences by references to various rules contained in preceding Divisions of this Part. However, it does not create all the offences relating to those rules, as some offences are created by subsection
1311(1)
. Where offences are created by subsection
1311(1)
in relation to a rule, this is indicated by a note at the end of the provision containing the rule.
History
S 952A inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952B
MEANING OF DEFECTIVE AND DISCLOSURE DOCUMENT OR STATEMENT
CCH Note:
Section 952B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
952B(1)
In this Subdivision:
defective
, in relation to a disclosure document or statement, means:
(a)
if the disclosure document or statement is a Financial Services Guide, a Supplementary Financial Services Guide, or is information or a statement required by subsection
941C(5)
,
941C(7)
or
941D(2)
:
(i)
there is a misleading or deceptive statement in the disclosure document or statement; or
(ii)
if it is a Financial Services Guide
-
there is an omission from the Financial Services Guide of material required by section
942B
or
942C
; or
(iii)
if it is a Supplementary Financial Services Guide that is given for the purposes of paragraph
941F(d)
-
there is an omission from the Supplementary Financial Services Guide of material required by that paragraph; or
(iv)
if it is information or a statement required by subsection
941C(5)
,
941C(7)
or
941D(2)
-
there is an omission from the document or statement of material required by that subsection;
being a statement, or an omission, that is or would be materially adverse from the point of view of a reasonable person considering whether to proceed to be provided with the financial service concerned; or
(b)
if the disclosure document or statement is a Statement of Advice, a Cash Settlement Fact Sheet, or information, a statement or a copy of a record required by subsection
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
:
(i)
there is a misleading or deceptive statement in the disclosure document or statement; or
(ii)
if it is a Statement of Advice
-
there is an omission from the Statement of advice
[
sic
] of material required by section
947B
,
947C
or
947D
; or
(iia)
if it is a Cash Settlement Fact Sheet
-
there is an omission from the Cash Settlement Fact Sheet of material required by section
948F
; or
(iii)
if it is information, a statement or a copy of a record required by subsection
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
-
there is an omission from the information, statement or copy of material required by that subsection or section;
being a statement, or an omission, that is or would be materially adverse from the point of view of a reasonable person considering whether to act in reliance on the advice concerned.
Note: In determining whether a Financial Services Guide is defective, the effect of section
943D
must be taken into account (section
943D
takes information and statements in a Supplementary Financial Services Guide to be included in the Financial Services Guide it supplements).
History
Definition of
defective
amended by No 135 of 2020, s 3, Sch 7
[
20] and
[
21] (effective 1 January 2021).
Definition of
defective
amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
119
-
120] (effective 28 June 2007).
Definition of
defective
amended by No 141 of 2003, s 3, Sch 2
[
52] (effective 18 December 2003).
disclosure document or statement
means:
(a)
a Financial Services Guide; or
(b)
a Supplementary Financial Services Guide; or
(c)
a Statement of Advice; or
(ca)
a Cash Settlement Fact Sheet; or
(d)
information, a statement or a copy of a record required by subsection
941C(5)
or
(7)
,
941D(2)
,
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
.
History
Definition of
disclosure document or statement
amended by No 135 of 2020, s 3, Sch 7
[
22] (effective 1 January 2021).
Definition of
disclosure document or statement
amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
121] (effective 28 June 2007).
Definition of
disclosure document or statement
amended by No 141 of 2003, s 3, Sch 2
[
53] (effective 18 December 2003).
952B(1A)
For the avoidance of doubt, if section
941E
(information must be up to date) is not complied with in relation to a Financial Services Guide, then, for the purposes of the definition of
defective
in subsection
(1)
:
(a)
if the circumstance constituting the non-compliance is that particular information included in the Financial Services Guide is not as up to date as section
941E
requires it to be
-
the information so included constitutes a misleading statement in the Financial Services Guide; and
(b)
if the circumstance constituting the non-compliance is a failure to include particular information that was not previously required to be included in the Financial Services Guide
-
the failure to include the information constitutes an omission from the Statement of material required by section
942B
or
942C
.
Note 1: The effect of section
943D
(information in a Supplementary Financial Services Guide is taken to be contained in the Financial Services Guide it supplements) must be taken into account in determining whether section
941E
is complied with in relation to a Financial Services Guide.
Note 2: Whether the inclusion of out of date information, or the failure to include information, results in the Financial Services Guide being
defective
as defined in subsection
(1)
depends on whether the materiality test set out in that definition is satisfied.
History
S 952B(1A) inserted by No 141 of 2003, s 3, Sch 2
[
53A].
952B(2)
In this Subdivision, a reference (including in the definitions in subsection
(1)
) to a document or statement of a kind referred to in a paragraph of the definition of
disclosure document or statement
in subsection
(1)
includes a reference to something purporting to be a document or statement of that kind.
History
S 952B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952C
OFFENCE OF FAILING TO GIVE A DISCLOSURE DOCUMENT OR STATEMENT
CCH Note:
Section 952C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Strict liability offence
952C(1)
A person (the
providing entity
) commits an offence if:
(a)
the providing entity is required by a provision of this Part to give another person a disclosure document or statement (the
required disclosure document or statement
); and
(b)
the providing entity does not give (within the meaning of section
940C
) the other person anything purporting to be the required disclosure document or statement by the time they are required to do so.
History
S 952C(1) amended by No 76 of 2023, s 3, Sch 5[21] (effective 21 September 2023).
S 952C(1) amended by No 61 of 2018, s 3, Sch 2[239] (effective 18 September 2018).
952C(2)
An offence based on subsection
(1)
is an offence of strict liability.
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
Ordinary offence
952C(3)
A person (the
providing entity
) commits an offence if:
(a)
the providing entity is required by a provision of this Part to give another person a disclosure document or statement (the
required disclosure document or statement
); and
(b)
the providing entity does not give (within the meaning of section
940C
) the other person anything purporting to be the required disclosure document or statement by the time they are required to do so.
History
S 952C(3) amended by No 76 of 2023, s 3, Sch 5[22] (effective 21 September 2023).
S 952C(3) amended by No 61 of 2018, s 3, Sch 2[240] (effective 18 September 2018).
Defence for authorised representative
952C(4)
In any proceedings against an authorised representative of a financial services licensee for an offence based on subsection
(1)
or
(3)
, it is a defence if:
(a)
the licensee had provided the representative with information or instructions about the giving of disclosure documents or statements; and
(b)
the representative's failure to give the required disclosure document or statement occurred because the representative was acting in reliance on that information or those instructions; and
(c)
the representative's reliance on that information or those instructions was reasonable.
Note: A defendant bears an evidential burden in relation to the matters in subsection
(4)
. See subsection 13.3(3) of the
Criminal Code
.
History
S 952C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952D
OFFENCE OF GIVING A DISCLOSURE DOCUMENT OR STATEMENT KNOWING IT TO BE DEFECTIVE
CCH Note:
Section952D is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
952D(1)
A person (the
providing entity
), being a financial services licensee, commits an offence if:
(a)
the providing entity:
(i)
gives (see subsection
(3)
) another person a disclosure document or statement in circumstances in which the document or statement is required by a provision of this Part to be given to the other person; or
(ii)
is a financial services licensee and gives (see subsection
(3)
), or makes available to, another person a disclosure document or statement, being a Financial Services Guide or a Supplementary Financial Services Guide, reckless as to whether the other person will or may rely on the information in it; and
(b)
the providing entity knows that the disclosure document or statement is defective.
History
S 952D(1) amended by No 76 of 2023, s 3, Sch 5[23] (effective 21 September 2023).
S 952D(1) amended by No 61 of 2018, s 3, Sch 2[241] (effective 18 September 2018).
952D(2)
An authorised representative of a financial services licensee commits an offence if:
(a)
the representative:
(i)
gives (see subsection
(3)
) a person a disclosure document or statement in circumstances in which the document or statement is required by a provision of this Part to be given to the person; or
(ii)
gives (see subsection
(3)
), or makes available to, a person a disclosure document or statement, being a Financial Services Guide or a Supplementary Financial Services Guide, reckless as to whether the person will or may rely on the information in it; and
(b)
the representative knows that the disclosure document or statement is defective.
History
S 952D(2) amended by No 76 of 2023, s 3, Sch 5[24] (effective 21 September 2023).
S 952D(2) amended by No 61 of 2018, s 3, Sch 2[242] (effective 18 September 2018).
952D(3)
In this section,
give
means give by any means (including orally), and is not limited to the meaning it has because of section
940C
.
History
S 952D inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952E
GIVING A DEFECTIVE DISCLOSURE DOCUMENT OR STATEMENT (WHETHER OR NOT KNOWN TO BE DEFECTIVE)
CCH Note:
Section 952E is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Financial services licensee gives a defective disclosure document or statement
952E(1)
A person (the
providing entity
), being a financial services licensee, contravenes this subsection if:
(a)
the providing entity:
(i)
gives (see subsection
(5)
) another person a disclosure document or statement in circumstances in which the document or statement is required by a provision of this Part to be given to the other person; or
(ii)
is a financial services licensee and gives (see subsection
(5)
), or makes available to, another person a disclosure document or statement, being a Financial Services Guide or a Supplementary Financial Services Guide, reckless as to whether the other person will or may rely on the information in it; and
(b)
the disclosure document or statement is defective.
History
S 952E(1) amended by No 76 of 2023, s 3, Sch 5[25] (effective 21 September 2023).
Authorised representative gives a defective disclosure statement or document
952E(2)
An authorised representative of a financial services licensee contravenes this subsection if:
(a)
the representative gives (see subsection
(5)
) a person a disclosure document or statement that is one of the following, in circumstances in which the document or statement is required by a provision of this Part to be given to the person:
(i)
a Statement of Advice;
(ii)
a Cash Settlement Fact Sheet;
(iii)
information, a statement or a copy of a record required by subsection
941C(5)
or
(7)
,
941D(2)
,
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
; and
(b)
the disclosure document or statement is defective.
History
S 952E(2) amended by No 76 of 2023, s 3, Sch 5[26] (effective 21 September 2023).
S 952E(2) amended by No 135 of 2020, s 3, Sch 7
[
23] (effective 1 January 2021).
Exceptions
952E(3)
A person does not contravene subsection
(1)
or
(2)
if the person took reasonable steps to ensure that the disclosure document or statement would not be defective.
Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in subsection
(3)
. See subsection
13.3(3)
of the
Criminal Code
.
952E(4)
A person does not contravene subsection
(2)
if the disclosure document or statement:
(a)
was provided to the person by a financial services licensee for whom they were, at that time, an authorised representative; or
(b)
was defective because of information, or an omission from information, provided to them by a financial services licensee for whom they were, at that time, an authorised representative.
Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matters in subsection
(4)
. See subsection
13.3(3)
of the
Criminal Code
.
Meaning of
give
952E(5)
In this section,
give
means give by any means (including orally), and is not limited to the meaning it has because of section
940C
.
Fault-based offence
952E(6)
A person commits an offence if the person contravenes subsection
(1)
or
(2)
.
952E(7)
For the purposes of an offence based on subsection
(1)
, strict liability applies to the physical element of the offence specified in paragraph
(1)(b)
.
952E(8)
For the purposes of an offence based on subsection
(2)
, strict liability applies to the physical element of the offence specified in paragraph
(2)(b)
.
Civil liability
952E(9)
A person contravenes this subsection if the person contravenes subsection
(1)
or
(2)
.
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 952E substituted by No 17 of 2019, s 3, Sch 1
[
86] (effective 13 March 2019).
SECTION 952F
OFFENCES OF FINANCIAL SERVICES LICENSEE KNOWINGLY PROVIDING DEFECTIVE DISCLOSURE MATERIAL TO AN AUTHORISED REPRESENTATIVE
CCH Note:
Section 952F is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
952F(1)
For the purposes of this section, a financial services licensee
provides disclosure material
to an authorised representative of the licensee if:
(a)
the licensee authorises the distribution by the representative of a disclosure document or statement, being a Financial Services Guide or a Supplementary Financial Services Guide; or
(b)
the licensee provides the representative with a disclosure document or statement, being:
(i)
a Statement of Advice; or
(ii)
a Cash Settlement Fact Sheet; or
(iii)
information, a statement or a copy of a record required by subsection
941C(5)
or
(7)
,
941D(2)
,
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
; or
(c)
the licensee provides the representative with information:
(i)
for the purpose of it being included by the representative in a disclosure document or statement, being a Statement of Advice, a Cash Settlement Fact Sheet, or information, a statement or a copy of a record required by subsection
941C(5)
or
(7)
,
941D(2)
,
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
; or
(ii)
knowing that it is likely that it will be so included in such a document.
History
S 952F(1) amended by No 135 of 2020, s 3, Sch 7
[
24] and
[
25] (effective 1 January 2021).
S 952F(1) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
123].
S 952F(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952F(2)
A financial services licensee commits an offence if:
(a)
the licensee provides disclosure material (being a disclosure document or statement) to an authorised representative of the licensee as mentioned in paragraph (1)(a) or (b); and
(b)
the licensee knows that the disclosure document or statement is defective.
History
S 952F(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952F(3)
A financial services licensee commits an offence if:
(a)
the licensee provides disclosure material (being information) to an authorised representative of the licensee as mentioned in paragraph (1)(c); and
(b)
the licensee knows that, if the information is included by the representative as mentioned in that paragraph, the disclosure document or statement concerned will be defective.
History
S 952F(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952F(4)
A financial services licensee commits an offence if:
(a)
the licensee provides disclosure material (being information) to an authorised representative of the licensee as mentioned in paragraph (1)(c); and
(b)
the information relates to a matter or matters, but the licensee knows that it is only some of the information relating to the matter or matters that the disclosure document or statement concerned is required to contain; and
(c)
the licensee is reckless as to whether the representative will or may prepare the disclosure document or statement on the basis that the information is all the information relating to the matter or matters that the disclosure document or statement is required to contain.
History
S 952F(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952G
OFFENCES OF FINANCIAL SERVICES LICENSEE PROVIDING DISCLOSURE MATERIAL TO AN AUTHORISED REPRESENTATIVE (WHETHER OR NOT KNOWN TO BE DEFECTIVE)
CCH Note:
Section 952G is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
952G(1)
For the purposes of this section, a financial services licensee
provides disclosure material
to an authorised representative of the licensee if:
(a)
the licensee authorises the distribution by the representative of a disclosure document or statement, being a Financial Services Guide or a Supplementary Financial Services Guide; or
(b)
the licensee provides the representative with a disclosure document or statement, being:
(i)
a Statement of Advice; or
(ii)
a Cash Settlement Fact Sheet; or
(iii)
information, a statement or a copy of a record required by subsection
941C(5)
or
(7)
,
941D(2)
,
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
; or
(c)
the licensee provides the representative with information:
(i)
for the purpose of it being included by the representative in a disclosure document or statement, being a Statement of Advice, a Cash Settlement Fact Sheet, or information, a statement or a copy of a record required by subsection
941C(5)
or
(7)
,
941D(2)
,
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
; or
(ii)
knowing that it is likely that it will be so included in such a document.
History
S 952G(1) amended by No 135 of 2020, s 3, Sch 7
[
26] and
[
27] (effective 1 January 2021).
S 952G(1) amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
123].
S 952G(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(2)
A financial services licensee commits an offence if:
(a)
the licensee provides disclosure material (being a disclosure document or statement) to an authorised representative of the licensee as mentioned in paragraph (1)(a) or (b); and
(b)
the disclosure document or statement is defective in a respect that does not relate to material required to be in the document or statement only because the representative is also the authorised representative of another financial services licensee.
History
S 952G(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(3)
For the purposes of an offence based on subsection (2), strict liability applies to the physical element of the offence specified in paragraph (2)(b).
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 952G(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(4)
A financial services licensee commits an offence if:
(a)
the licensee provides disclosure material (being information) to an authorised representative of the licensee as mentioned in paragraph (1)(c); and
(b)
the authorised representative includes the information in the disclosure document or statement concerned; and
(c)
the disclosure document or statement is defective because it includes that information (whether or not it is also defective for other reasons).
History
S 952G(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(5)
For the purposes of an offence based on subsection (4), strict liability applies to the physical element of the offence specified in paragraph (4)(c).
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 952G(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(6)
A financial services licensee commits an offence if:
(a)
the licensee provides disclosure material (being information) to an authorised representative of the licensee as mentioned in paragraph (1)(c); and
(b)
the information relates to a matter or matters, but it is only some of the information relating to the matter or matters that the disclosure document or statement concerned is required to contain; and
(c)
the representative prepares the disclosure document or statement on the basis that the information is all the information relating to the matter or matters that the disclosure document or statement is required to contain; and
(d)
the disclosure document or statement is defective because it includes only that information about the matter or matters (whether or not it is also defective for other reasons).
History
S 952G(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(7)
For the purposes of an offence based on subsection (6), strict liability applies to the physical elements of the offence specified in paragraphs (6)(b) and (d).
Note: For
strict liability
, see section 6.1 of the
Criminal Code
.
History
S 952G(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(8)
In any proceedings against a person for an offence based on subsection (2), it is a defence if the person took reasonable steps to ensure that the disclosure document or statement would not be defective.
Note: A defendant bears an evidential burden in relation to the matters in subsection (8). See subsection 13.3(3) of the
Criminal Code
.
History
S 952G(8) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(9)
In any proceedings against a person for an offence based on subsection (4), it is a defence if the person took reasonable steps to ensure that the information they provided would not be such as to make the disclosure document or statement defective.
Note: A defendant bears an evidential burden in relation to the matters in subsection (9). See subsection 13.3(3) of the
Criminal Code
.
History
S 952G(9) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952G(10)
In any proceedings against a person for an offence based on subsection (6), it is a defence if the person took reasonable steps to ensure that the information they provided about the matter or matters would be all the information about the matter or matters that the disclosure document or statement would be required to contain.
Note: A defendant bears an evidential burden in relation to the matters in subsection (10). See subsection 13.3(3) of the
Criminal Code
.
History
S 952G(10) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952H
FINANCIAL SERVICES LICENSEE FAILING TO ENSURE AUTHORISED REPRESENTATIVE GIVES DISCLOSURE DOCUMENTS OR STATEMENTS AS REQUIRED
CCH Note:
Section 952H is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
Obligation
952H(1)
A financial services licensee contravenes this subsection if the licensee does not take reasonable steps to ensure that an authorised representative of the licensee:
(a)
complies with their obligations under this Part to give disclosure documents or statements as and when required; and
(b)
without limiting paragraph (a), does not, in purported compliance with obligations under this Part, give disclosure documents or statements that are defective.
Fault-based offence
952H(2)
A person commits an offence if the person contravenes subsection (1).
Civil liability
952H(3)
A person contravenes this subsection if the person contravenes subsection (1).
Note: This subsection is a civil penalty provision (see section
1317E
).
History
S 952H substituted by No 17 of 2019, s 3, Sch 1[87] (effective 13 March 2019).
SECTION 952I
OFFENCES IF A FINANCIAL SERVICES GUIDE (OR SUPPLEMENTARY FSG) DOES NOT COMPLY WITH CERTAIN REQUIREMENTS
CCH Note:
Section 952I is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
952I(1)
A financial services licensee commits an offence if:
(a)
the licensee:
(i)
gives (see subsection
(6)
) a person a Financial Services Guide in circumstances in which it is required by a provision of this Part to be given to the person; or
(ii)
gives (see subsection
(6)
), or makes available to, a person a Financial Services Guide, reckless as to whether the person will or may rely on the information in it; and
(b)
the Financial Services Guide does not comply with section
942A
, subsection
942B(5)
or
942DA(3)
or paragraph
942E
(b).
History
S 952I(1) amended by No 76 of 2023, s 3, Sch 5[27] (effective 21 September 2023).
S 952I(1) amended by No 61 of 2018, s 3, Sch 2[245] (effective 18 September 2018).
S 952I(1) amended by No 141 of 2003, s 3, Sch 2
[
54].
S 952I(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952I(2)
A financial services licensee commits an offence if:
(a)
the financial services licensee authorises the distribution of a Financial Services Guide by an authorised representative of the licensee; and
(b)
the Financial Services Guide does not comply with section
942A
, subsection
942B(5)
or
942DA(3)
or paragraph
942E(b)
.
History
S 952I(2) amended by No 141 of 2003, s 3, Sch 2
[
55].
S 952I(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952I(3)
A financial services licensee commits an offence if:
(a)
the licensee:
(i)
gives (see subsection
(6)
) a person a Supplementary Financial Services Guide in circumstances in which it is required by a provision of this Part to be given to the person; or
(ii)
gives (see subsection
(6)
), or makes available to, a person a Supplementary Financial Services Guide, reckless as to whether the person will or may rely on the information in it; and
(b)
the Supplementary Financial Services Guide does not comply with section
943B
or
943C
.
History
S 952I(3) amended by No 76 of 2023, s 3, Sch 5[28] (effective 21 September 2023).
S 952I(3) amended by No 61 of 2018, s 3, Sch 2[246] (effective 18 September 2018).
S 952I(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952I(4)
A financial services licensee commits an offence if:
(a)
the financial services licensee authorises the distribution of a Supplementary Financial Services Guide by an authorised representative of the licensee; and
(b)
the Supplementary Financial Services Guide does not comply with section
943B
or
943C
.
History
S 952I(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952I(5)
For the purposes of an offence based on subsection
(1)
,
(2)
,
(3)
or
(4)
, strict liability applies to paragraph (b) of that subsection.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 952I(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952I(6)
In this section,
give
means give by any means (including orally), and is not limited to the meaning it has because of section
940C
.
History
S 952I(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952J
OFFENCE IF A STATEMENT OF ADVICE DOES NOT COMPLY WITH CERTAIN REQUIREMENTS
CCH Note:
Section 952J is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
952J(1)
A financial services licensee, or an authorised representative of a financial services licensee, commits an offence if:
(a)
the licensee or representative gives (see subsection
(3)
) a person a Statement of Advice in circumstances in which it is required by a provision of this Part to be given to the person; and
(b)
the Statement of Advice does not comply with section
947A
or
947E
.
History
S 952J(1) amended by No 76 of 2023, s 3, Sch 5[29] (effective 21 September 2023).
S 952J(1) amended by No 61 of 2018, s 3, Sch 2[247] (effective 18 September 2018).
S 952J(1) amended by No 141 of 2003, s 3, Sch 2
[
56].
S 952J(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952J(2)
For the purposes of an offence based on subsection
(1)
, strict liability applies to paragraph (b) of that subsection.
Note: For
strict liability
, see section
6.1
of the
Criminal Code
.
History
S 952J(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
952J(3)
In this section,
give
means give by any means (including orally), and is not limited to the meaning it has because of section
940C
.
History
S 952J(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952JA
OFFENCE IF A CASH SETTLEMENT FACT SHEET DOES NOT COMPLY WITH CERTAIN REQUIREMENTS
CCH Note:
Section 952JA is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
952JA(1)
A financial services licensee, or an authorised representative of a financial services licensee, commits an offence if:
(a)
the licensee or representative gives (see subsection
(3)
) a person a Cash Settlement Fact Sheet in circumstances in which it is required by a provision of this Part to be given to the person; and
(b)
the Cash Settlement Fact Sheet does not comply with section
948E
.
Note: Failure to comply with this subsection is an offence (see subsection
1311(1)
).
952JA(2)
For the purposes of an offence based on subsection
(1)
, strict liability applies to paragraph
(b)
of that subsection.
952JA(3)
In this section,
give
means give by any means (including orally), and is not limited to the meaning it has because of section
940C
.
History
S 952JA inserted by No 135 of 2020, s 3, Sch 7
[
28] (effective 1 January 2021).
SECTION 952K
952K
OFFENCE IF AUTHORISED REPRESENTATIVE GIVES OUT UNAUTHORISED FINANCIAL SERVICES GUIDE (OR SUPPLEMENTARY FSG)
CCH Note:
Section 952K is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
An authorised representative of a financial services licensee commits an offence if:
(a)
the representative:
(i)
gives a person a Financial Services Guide, or a Supplementary Financial Services Guide, in circumstances in which it is required by a provision of this Part to be given to the person; or
(ii)
gives, or makes available to, a person a Financial Services Guide, or a Supplementary Financial Services Guide, reckless as to whether the person will or may rely on the information in it; and
(b)
the licensee has not authorised the distribution by the representative of the Financial Services Guide or the Supplementary Financial Services Guide.
History
S 952K amended by No 76 of 2023, s 3, Sch 5[30] (effective 21 September 2023).
S 952K amended by No 61 of 2018, s 3, Sch 2[248] (effective 18 September 2018).
S 952K inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952L
OFFENCES IF FINANCIAL SERVICES LICENSEE OR AUTHORISED REPRESENTATIVE BECOMES AWARE THAT A FINANCIAL SERVICES GUIDE (OR SUPPLEMENTARY FSG) IS DEFECTIVE
CCH Note:
Section 952L is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
952L(1)
A financial services licensee commits an offence if:
(a)
the licensee has authorised an authorised representative of the licensee to distribute a Financial Services Guide or a Supplementary Financial Services Guide; and
(b)
the licensee becomes aware that the Financial Services Guide, or the Supplementary Financial Services Guide, is defective; and
(c)
the licensee does not, as soon as practicable, give the representative a direction that satisfies one or more of the following subparagraphs:
(i)
a direction not to distribute the Financial Services Guide or the Supplementary Financial Services Guide;
(ii)
a direction not to distribute the Financial Services Guide unless it is accompanied by a Supplementary Financial Services Guide that corrects the deficiency;
(iii)
a direction not to distribute the Financial Services Guide or the Supplementary Financial Services Guide without first altering it in a way that is specified in the direction, being a way that corrects the deficiency and that complies with
section 942E
or
943F
.
952L(2)
An authorised representative commits an offence if:
(a)
the representative is given a direction under subsection (1); and
(b)
the representative does not comply with the direction.
952L(3)
An authorised representative of a financial services licensee commits an offence if:
(a)
the licensee has authorised the representative to distribute a Financial Services Guide or a Supplementary Financial Services Guide; and
(b)
the representative becomes aware that the Financial Services Guide, or the Supplementary Financial Services Guide, is defective; and
(c)
the representative does not, as soon as practicable, notify the licensee of the particulars of the deficiency.
952L(4)
In this section, a reference to
distributing
a Financial Services Guide or a Supplementary Financial Services Guide includes (but is not limited to) giving or reading the document or statement to another person in purported compliance with a requirement of this Part.
History
S 952L inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 952M
952M
OFFENCE OF UNAUTHORISED ALTERATION OF FINANCIAL SERVICES GUIDE OR SUPPLEMENTARY FINANCIAL SERVICES GUIDE
CCH Note:
Section 952M is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
A person commits an offence if:
(a)
the person engages in conduct that results in an alteration of a Financial Services Guide or a Supplementary Financial Services Guide that:
(i)
has been prepared by or on behalf of a particular financial services licensee; or
(ii)
the distribution of which by the person has been authorised by a particular financial services licensee; and
(b)
the alteration results in the Financial Services Guide or Supplementary Financial Services Guide becoming defective, or more defective than it previously was; and
(c)
the alteration is not made with the authority of the licensee; and
(d)
the person, in purported compliance with a provision of this Part, gives the altered Financial Services Guide or Supplementary Financial Services Guide to another person.
History
S 952M inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
Subdivision B
-
Civil liability
CCH Note:
Subdivision B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
SECTION 953A
MEANING OF DEFECTIVE AND DISCLOSURE DOCUMENT OR STATEMENT
CCH Note:
Section 953A is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
953A(1)
In this Subdivision:
defective
, in relation to a disclosure document or statement, means:
(a)
if the disclosure document or statement is a Financial Services Guide, a Supplementary Financial Services Guide, or is information or a statement required by subsection
941C(5)
,
941C(7)
or
941D(2)
:
(i)
there is a misleading or deceptive statement in the disclosure document or statement; or
(ii)
if it is a Financial Services Guide
-
there is an omission from the Financial Services Guide of material required by section
942B
or
942C
; or
(iii)
if it is a Supplementary Financial Services Guide that is given for the purposes of paragraph
941F(d)
-
there is an omission from the Supplementary Financial Services Guide of material required by that paragraph; or
(iv)
if it is information or a statement required by subsection
941C(5)
,
941C(7)
or
941D(2)
-
there is an omission from the document or statement of material required by that subsection; or
(b)
if the disclosure document or statement is a Statement of Advice, a Cash Settlement Fact Sheet, or information, a statement or a copy of a record required by subsection
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
:
(i)
there is a misleading or deceptive statement in the disclosure document or statement; or
(ii)
if it is a Statement of Advice
-
there is an omission from the Statement of Advice of material required by
section 947B
,
947C
or
947D
; or
(iia)
if it is a Cash Settlement Fact Sheet
-
there is an omission from the Cash Settlement Fact Sheet of material required by section
948F
; or
(iii)
if it is information, a statement or a copy of a record required by subsection
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
-
there is an omission from the information, statement or copy of material required by that subsection or section.
Note: In determining whether a Financial Services Guide is defective, the effect of section
943D
must be taken into account (section
943D
takes information and statements in a Supplementary Financial Services Guide to be included in the Financial Services Guide it supplements).
History
Definition of
defective
amended by No 135 of 2020, s 3, Sch 7
[
29] and
[
30] (effective 1 January 2021).
Definition of
defective
amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
124] and
[
125].
Definition of
defective
amended by No 141 of 2003, s 3, Sch 2
[
57].
disclosure document or statement
means:
(a)
a Financial Services Guide; or
(b)
a Supplementary Financial Services Guide; or
(c)
a Statement of Advice; or
(ca)
a Cash Settlement Fact Sheet; or
(d)
information, a statement or a copy of a record required by subsection
941C(5)
or
(7)
,
941D(2)
,
946AA(5)
,
946B(3)
,
(6)
or
(8)
or
946C(2)
.
History
Definition of
disclosure document or statement
amended by No 135 of 2020, s 3, Sch 7
[
31] (effective 1 January 2021).
Definition of
disclosure document or statement
amended by No 101 of 2007, s 3, Sch 1, Pt 1
[
126].
Definition of
disclosure document or statement
amended by No 141 of 2003, s 3, Sch 2
[
58].
History
S 953A(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
953A(1A)
For the avoidance of doubt, if section
941E
(information must be up to date) is not complied with in relation to a Financial Services Guide, then, for the purposes of the definition of
defective
in subsection
(1)
:
(a)
if the circumstance constituting the non-compliance is that particular information included in the Financial Services Guide is not as up to date as section
941E
requires it to be
-
the information so included constitutes a misleading statement in the Financial Services Guide; and
(b)
if the circumstance constituting the non-compliance is a failure to include particular information that was not previously required to be included in the Financial Services Guide
-
the failure to include the information constitutes an omission from the Statement of material required by section
942B
or
942C
.
Note: The effect of section
943D
(information in a Supplementary Financial Services Guide is taken to be contained in the Financial Services Guide it supplements) must be taken into account in determining whether section
941E
is complied with in relation to a Financial Services Guide.
History
S 953A(1A) inserted by No 141 of 2003, s 3, Sch 2
[
58A].
953A(2)
In this Subdivision, a reference (including in the definitions in subsection
(1)
) to a document or statement of a kind referred to in a paragraph of the definition of
disclosure document or statement
in subsection
(1)
includes a reference to something purporting to be a document or statement of that kind.
History
S 953A(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].
SECTION 953B
CIVIL ACTION FOR LOSS OR DAMAGE
CCH Note:
Section 953B is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
953B(1)
This section applies in the following situations:
(a)
a person:
(i)
is required by a provision of this Part to give another person (the
client
) a disclosure document or statement (the
required disclosure document or statement
); and
(ii)
does not give (within the meaning of
section 940C
) the client anything purporting to be the required disclosure document or statement by the time they are required to do so; or
(b)
a person:
(i)
gives another person (the
client
) a disclosure document or statement that is defective in circumstances in which a disclosure document or statement is required by a provision of this Part to be given to the client; or
(ii)
is a financial services licensee and gives, or makes available to, another person (the
client
) a disclosure document or statement, being a Financial Services Guide or a Supplementary Financial Services Guide, that is defective, reckless as to whether the client will or may rely on the information in it; or
(c)
a person contravenes section
949A
or
949B
.
In paragraph (b),
give
means give by any means (including orally), and is not limited to the meaning it has because of
section 940C
.
History
S 953B(1) amended by No 68 of 2012, s 3, Sch 1[9] (effective 1 July 2012).
S 953B(1) amended by No 141 of 2003, s 3, Sch 2
[
59] (effective 18 December 2003).
S 953B(1) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
953B(2)
In a situation to which this section applies, if a person suffers loss or damage:
(a)
if paragraph (1)(a) applies
-
because the client was not given the disclosure document or statement that they should have been given; or
(b)
if paragraph (1)(b) applies
-
because the disclosure document or statement the client was given was defective; or
(c)
if paragraph (1)(c) applies
-
because of the contravention referred to in that paragraph;
the person may, subject to subsection (6), recover the amount of the loss or damage by action against the, or a, liable person (see subsections (3) and (4)), whether or not that person (or anyone else) has been convicted of an offence in respect of the matter referred to in paragraph (a), (b) or (c).
History
S 953B(2) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
953B(3)
For the purposes of subsection (2), the, or a,
liable person
is:
(a)
if the person first-referred to in paragraph (1)(a), (b) or (c) is a financial services licensee
-
subject to subsection (4), that person; or
(b)
if the person first-referred to in paragraph (1)(a), (b) or (c) is an authorised representative of only one financial services licensee
-
that financial services licensee; or
(c)
if the person first-referred to in paragraph (1)(a), (b) or (c) is an authorised representative of more than one financial services licensee:
(i)
if, under the rules in
section 917C
, one of those licensees is responsible for the person
'
s conduct
-
that licensee; or
(ii)
if, under the rules in
section 917C
, 2 or more of those licensees are jointly and severally responsible for the person
'
s conduct
-
each of those licensees.
History
S 953B(3) amended by No 141 of 2003, s 3, Sch 2
[
60] (effective 18 December 2003).
S 953B(3) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
953B(3A)
For the purposes of paragraph (3)(c):
(a)
section 917C
is taken to apply, despite
section 917F
; and
(b)
section 917D
is taken not to apply.
History
S 953B(3A) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
953B(4)
If:
(a)
paragraph (1)(b) applies; and
(b)
an alteration was made to the disclosure document or statement before it was given to the client; and
(c)
the alteration made the disclosure document or statement defective, or more defective than it would otherwise have been; and
(d)
the alteration was not made by, or with the authority of, the person who would, but for this subsection, be the liable person because of paragraph (3)(a);
then, so far as a person has suffered loss or damage because the disclosure document or statement was defective because of the alteration, the liable person is the person who made the alteration, rather than the person referred to in paragraph (d).
History
S 953B(4) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
953B(5)
An action under subsection (2) may be begun at any time within 6 years after the day on which the cause of action arose.
History
S 953B(5) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
953B(6)
A person is not liable under subsection (2) in a situation described in paragraph (1)(b) if the person took reasonable steps to ensure that the disclosure document or statement would not be defective.
History
S 953B(6) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
953B(7)
This section does not affect any liability that a person has under any other law.
History
S 953B(7) inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1] (effective 11 March 2002).
SECTION 953C
ADDITIONAL POWERS OF COURT TO MAKE ORDERS
CCH Note:
Section 953C is modified by the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; and the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669.
953C(1)
The court dealing with an action under
subsection 953B(2)
may, in addition to awarding loss or damage under that subsection and if it thinks it necessary in order to do justice between the parties:
(a)
make an order declaring void a contract entered into by the client referred to in that subsection for or relating to a financial product or a financial service; and
(b)
if it makes an order under paragraph (a)
-
make such other order or orders as it thinks are necessary or desirable because of that order.
953C(2)
Without limiting paragraph (1)(b), an order under that paragraph may include an orderfor the return of money paid by a person, and/or an order for payment of an amount of interest specified in, or calculated in accordance with, the order.
History
S 953C inserted by No 122 of 2001, s 3, Sch 1, Pt 1
[
1].