Corporations Act 2001

CHAPTER 7 - FINANCIAL SERVICES AND MARKETS  

Note: This Chapter applies to a CCIV in a modified form: see Division 4 of Part 8B.7 .

PART 7.6 - LICENSING OF PROVIDERS OF FINANCIAL SERVICES  

Division 1 - Preliminary  

SECTION 910A  

910A   MEANING OF SOME TERMS RELATING TO LICENSING OF PROVIDERS OF FINANCIAL SERVICES  

In this Act:

body corporate licensee
means a body corporate that:

(a) is a financial services licensee; and

(b) is authorised to provide personal advice to retail clients in relation to relevant financial products.

class of product advice
means financial product advice about a class of products, but does not include a recommendation about a specific product in the class.

CPD year
(short for continuing professional development year): a financial services licensee ' s CPD year is the 12-month period beginning on the day of the year included in the most recent notice given by the licensee under section 922HA .

foreign qualification
means a bachelor or higher degree, or equivalent qualification, awarded by a tertiary education institution outside Australia.

limited-service time-sharing adviser
: a person is a limited-service time-sharing adviser if:

(a) the person is a relevant provider; and

(b) the only relevant financial product that the person provides advice in relation to is a time-sharing scheme; and

(c) the person has not met any one or more of the education and training standards in subsections 921B(2) to (4) .

qualified tax relevant provider
: a person is a qualified tax relevant provider if:

(a) the person is a relevant provider; and

(b) if a determination is in force under subsection 921BB(1) - the person meets each requirement set out in the determination that is of a kind mentioned in any of paragraphs (a) to (d) of that subsection.

relevant financial products
means financial products other than:

(a) basic banking products; or

(b) general insurance products; or

(c) consumer credit insurance; or

(d) a combination of any of those products.

relevant provider
: a person is a relevant provider if the person:

(a) is an individual; and

(b) is:

(i) a financial services licensee; or

(ii) an authorised representative of a financial services licensee; or

(iii) an employee or director of a financial services licensee; or

(iv) an employee or director of a related body corporate of a financial services licensee; and

(c) is authorised to provide personal advice to retail clients, as the licensee or on behalf of the licensee, in relation to relevant financial products.

SECTION 910B   MEANING OF CONTROL  

910B(1)    

In this Part, control , of a body corporate, is:

(a)    having the capacity to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the body corporate; or

(b)    directly or indirectly holding more than one half of the issued share capital of the body corporate (not including any part of the issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital, and not including MCIs); or

(c)    having the capacity to control the composition of the body corporate ' s board or governing body; or

(d)    having the capacity to determine the outcome of decisions about the body corporate ' s financial and operating policies, taking into account:

(i) the practical influence that can be exerted (rather than the rights that can be enforced); and

(ii) any practice or pattern of behaviour affecting the body corporate ' s financial or operating policies (whether or not it involves a breach of an agreement or a breach of trust).

910B(2)    

In this Part, control , of an entity other than a body corporate, is:

(a)    having the capacity to control the composition of the entity ' s board or governing body (if any); or

(b)    having the capacity to determine the outcome of decisions about the entity ' s financial and operating policies, taking into account:

(i) the practical influence that can be exerted (rather than the rights that can be enforced); and

(ii) any practice or pattern of behaviour affecting the entity ' s financial or operating policies (whether or not it involves a breach of an agreement or a breach of trust).

SECTION 910C   MEANING OF LINKED TO A REFUSAL OR FAILURE TO GIVE EFFECT TO A DETERMINATION MADE BY AFCA  

910C(1)    
An entity is linked to a refusal or failure to give effect to a determination made by AFCA if:

(a) a complaint is made under the AFCA scheme; and

(b) AFCA makes a determination relating to the complaint; and

(c) AFCA becomes aware that a party to the complaint (the primary entity ) may have refused or failed to give effect to the determination; and

(d) AFCA gives particulars of the refusal or failure in accordance with subsection 1052E(1) ; and

(e) the first-mentioned entity is the primary entity or is covered by subsection (2) of this section.

910C(2)    
This subsection covers an entity if, at any time during the period starting when AFCA makes the determination and ending when AFCA so gives the particulars, the entity is:

(a) an officer of the primary entity; or

(b) if the primary entity is an individual - substantially or significantly involved in the management of:

(i) a financial services business carried on by the primary entity; or

(ii) credit activities (within the meaning of the National Consumer Credit Protection Act 2009 ) engaged in by the primary entity; or

(c) if the primary entity is the multiple trustees of a trust - one of the trustees of the trust.

SECTION 910D  

910D   INSURANCE FULFILMENT PROVIDERS TAKEN TO BE ACTING ON BEHALF OF FINANCIAL SERVICES LICENSEES  

A person who:

(aa)    carries on a business of providing goods or services to persons insured under insurance products in satisfaction of the liability of the insurers under those products; and

(a)    

in carrying on that business, provides goods or services to a person insured under an insurance product in satisfaction of the liability of the insurer under the product; and

(b)    has been engaged by a financial services licensee, or by another person on behalf of a financial services licensee, to provide those goods or services; and

(c)    does not (apart from this section) provide those goods or services as a representative of the financial services licensee;

is taken to be acting on behalf of the financial services licensee in providing the goods or services.

Division 2 - Requirement to be licensed or authorised  

SECTION 911A   NEED FOR AN AUSTRALIAN FINANCIAL SERVICES LICENCE  

911A(1)    
Subject to this section, a person who carries on a financial services business in this jurisdiction must hold an Australian financial services licence covering the provision of the financial services.

Note 1: Also, a person must not provide a financial service contrary to a banning order or disqualification order under Division 8 .

Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

911A(2)    
However, a person is exempt from the requirement to hold an Australian financial services licence for a financial service they provide in any of the following circumstances:

(a)    the person provides the service as representative of a second person who carries on a financial services business and who:

(i) holds an Australian financial services licence that covers the provision of the service; or

(ii) is exempt under this subsection from the requirement to hold an Australian financial services licence that covers the provision of the service;

Note: However, representatives must still comply with section 911B even if they are exempted from this section by this paragraph.

(b)    the service is the issue, variation or disposal of a financial product by the person (the product provider ) pursuant to an arrangement (an intermediary authorisation ) between the product provider and a financial services licensee under which:

(i) the financial services licensee, or their authorised representatives, may make offers to people to arrange for the issue, variation or disposal of financial products by the product provider; and

(ii) the product provider is to issue, vary or dispose of financial products in accordance with such offers, if they are accepted;

provided that the offer pursuant to which the issue, variation or disposal is made was covered by the financial services licensee ' s Australian financial services licence;

(ba)    the service is the entry into of an intermediary authorisation referred to in paragraph (b);

(c)    all of the following apply:

(i) the service is the variation or disposal of a financial product by the person;

(ii) the same person issued the original product;

(iii) the person provides the service at the direct request of the person to whom it is provided (rather than through an intermediary);

(d)    the service is, or is provided incidentally to, the operation of a licensed market, or a licensed CS facility, operated by the person;

(ea)    the service is the provision of general advice and all of the following apply:

(i) the advice is provided in a newspaper or periodical of which the person is the proprietor or publisher;

(ii) the newspaper or periodical is generally available to the public otherwise than only on subscription;

(iii) the sole or principal purpose of the newspaper or periodical is not the provision of financial product advice;

(eb)    the service is the provision of general advice and all of the following apply:

(i) the advice is provided in the course of, or by means of, transmissions that the person makes by means of an information service (see subsection (6) ), or that are made by means of an information service that the person owns, operates or makes available;

(ii) the transmissions are generally available to the public;

(iii) the sole or principal purpose of the transmissions is not the provision of financial product advice;

(ec)    the service is the provision of general advice and all of the following apply:

(i) the advice is provided in sound recordings, video recordings, or data recordings;

(ii) the person makes the recordings available to the public by supplying copies of them to the public and/or by causing the recordings (if they are sound recordings) to be heard by the public, causing the recordings (if they are video recordings) to be seen and heard by the public, or the contents of the recordings (if they are data recordings) to be displayed or reproduced for the public;

(iii) the sole or principal purpose of the recordings is not the provision of financial product advice;

(ed) - (eg) (Repealed)

(eh)    the service is the acquisition of a financial product as an investment of the assets of a notified foreign passport fund by:

(i) the operator of the fund; or

(ii) another person acting on the direction of the operator of the fund, or the direction of an agent of the operator of the fund;

(ei)    the service is the disposal of a financial product that was acquired as an investment of the assets of a notified foreign passport fund by:

(i) the operator of the fund; or

(ii) another person acting on the direction of the operator of the fund, or the direction of an agent of the operator of the fund;

(ej)    the service is the issuing, acquisition or disposal of a derivative or foreign exchange contract by:

(i) the operator of a notified foreign passport fund; or

(ii) another person acting on the direction of the operator of a notified foreign passport fund, or the direction of an agent of the operator of a notified foreign passport fund;

for the purposes of managing the financial consequences to the fund of particular circumstances happening, or avoiding or limiting the financial consequences of fluctuations in, or in the value of, receipts or costs (including prices or interest rates);

(ek)    

the service is a claims handling and settling service in relation to an insurance product, and the person providing the service is not one of the following:

(i) the insurer under the insurance product;

(ii) a person who has authority from the insurer to reject all or part of a claim under the insurance product and who carries on a business of providing goods or services to persons insured under insurance products in satisfaction of the liability of the insurers under those products;

(iii) an insurance claims manager;

(iv) an insurance broker (within the meaning of the Insurance Contracts Act 1984 ) who provides the claims handling and settling service in relation to the insurance product on behalf of the insurer;

(v) a person who has provided, or has entered into an arrangement to provide, financial product advice to a person insured under the insurance product (including a person insured as a third party beneficiary under the contract of insurance that constitutes the insurance product, within the meaning of the Insurance Contracts Act 1984 ) and who also provides the claims handling and settling service on behalf of the insurer under the insurance product;

(vi) if the insurance product is prescribed by the regulations for the purposes of this subparagraph - a claimant intermediary representing a person insured under the product in pursuing a claim under the product;

(el)    

the service is a claims handling and settling service in relation to an insurance product and all of the following apply:

(i) the claims handling and settling service is provided under an arrangement between the issuer of the insurance product and a financial services licensee;

(ii) the issuer of the insurance product is prescribed by the regulations, or of a class prescribed by the regulations;

(iii) under the arrangement, the financial services licensee, or their authorised representatives, may provide the claims handling and settling service in relation to the insurance product;

(iv) the provision of the claims handling and settling service is covered by the financial services licensee ' s Australian financial services licence;

(v) the claims handling and settling service is provided to the insured as a retail client;

(em)    

the service is the provision of a claims handling and settling service in relation to an insurance product provided to a wholesale client under an arrangement between the issuer of the insurance product and a financial services licensee;

(en)    

the service is a claims handling and settling service of one of the following kinds:

(i) advice given by a lawyer, in a professional capacity as a lawyer, about matters of law, legal interpretation or the application of the law to any facts;

(ii) except as prescribed by the regulations - other advice given by a lawyer in the ordinary course of activities as a lawyer, that is reasonably regarded as a necessary part of those activities;

(iii) action taken by a lawyer, in a professional capacity as a lawyer, to determine whether an insurer is liable to another person under an insurance product, or to quantify the extent of the insurer ' s liability;

(iv) negotiation by a lawyer, in a professional capacity as a lawyer, of the settlement of a claim under an insurance product;

(v) other conduct by a lawyer, in a professional capacity as a lawyer and on behalf of another person, that could reasonably be regarded as a necessary part of acting on instruction and for which the lawyer has not received and is not entitled to receive a benefit other than the payment of professional charges, the reimbursement for expenses incurred on behalf of the other person, or the payment on account of expenses to be incurred on behalf of the other person;

(f)    

the person provides the service while performing functions, or exercising powers, in any of the following capacities or circumstances:

(i) as an official receiver or trustee within the meaning of the Bankruptcy Act 1966 ;

(ii) as a receiver, receiver and manager, or liquidator (whether appointed by a court or otherwise);

(iii) as a person appointed by a court to carry on a financial services business;

(iv) as the Public Trustee acting under a law, prescribed by regulations made for the purposes of this paragraph, of a State or Territory;

(v) as an administrator of a body corporate;

(vi) as an administrator of a deed of company arrangement executed by a body corporate;

(via) as a restructuring practitioner for a body corporate;

(vib) as a restructuring practitioner for a restructuring plan made by a body corporate;

(vii) as a trustee or person administering a compromise or arrangement between a body corporate and another person or persons;

(viii) as a personal representative of a deceased person other than a deceased financial services licensee;

(ix) subject to subsection (3) , as a personal representative of a deceased financial services licensee;

(x) in the administration of a bankrupt estate or in the winding up of a body corporate or partnership;

(g)    all of the following apply:

(i) the person is a body regulated by APRA;

(ii) the service is one in relation to which APRA has regulatory or supervisory responsibilities;

(iii) the service is provided only to wholesale clients;

(ga)    

the service is a superannuation trustee service that is provided only to wholesale clients;

(h)    

all of the following apply:

(i) the person is regulated by an overseas regulatory authority;

(ii) the provision of theservice by the person is covered by an exemption specified by ASIC in writing under this subparagraph and published in the Gazette ; and

(iii) the service is provided only to wholesale clients;

(i)    the person provides the service only to related bodies corporate of the person;

(j)    

the person provides the service in the person ' s capacity as trustee of a self managed superannuation fund;

(k)    the provision of the service is covered by an exemption prescribed in regulations made for the purposes of this paragraph;

(l)    the provision of the service is covered by an exemption specified by ASIC in writing and published in the Gazette .

Note 1: A defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .

Note 2: A person is also exempt from the requirement to hold an Australian financial services licence in relation to certain services connected with offers that are eligible to be made under Division 1A of Part 7.12 (Employee share schemes): see subsection 1100ZC(7) .

911A(3)    
Subparagraph (2)(f)(ix) only applies until whichever of these happens first:

(a)    the end of 6 months after the death of the licensee;

(b)    the removal or discharge of the personal representative;

(c)    the final distribution of the licensee ' s estate.

911A(4)    

A person is not exempt under any paragraph of subsection (2) for a financial service they provide if the service is:

(a)    the operation of a registered scheme; or

(b)    a traditional trustee company service.

911A(4A)    

A person is not exempt under any paragraph of subsection (2) for a superannuation trustee service unless the exemption expressly covers a superannuation trustee service.

911A(5)    

The exemption under paragraph (2)(ea) , (eb) or (ec) , or an exemption under subparagraph (2)(h)(ii) or under paragraph (2)(k) or (l) , may apply unconditionally or subject to conditions:

(a)    in the case of the exemption under paragraph (2)(ea) , (eb) or (ec) , or an exemption under paragraph (2)(k) - specified in regulations made for the purposes of this paragraph; or

(b)    

in the case of an exemption under subparagraph (2)(h)(ii) or under paragraph (2)(l) - specified by ASIC in writing published in the Gazette .

911A(5A)    

Despite paragraph (2)(b) , the regulations may provide that the exemption under that paragraph does not apply in relation to:

(a)    a particular financial product or a particular kind of financial product; or

(b)    a particular financial product or a particular kind of financial product that is issued, varied or disposed of by a particular person, or a particular kind of person.

911A(5B)    

A person contravenes this subsection if the person contravenes subsection (1) .

Note: This subsection is a civil penalty provision (see section 1317E ).

911A(6)    
In this section:

information service
means:

(a) a broadcasting service; or

(b) an interactive or broadcast videotext or teletext service or a similar service; or

(c) an online database service or a similar service; or

(d) any other service identified in regulations made for the purposes of this paragraph.

SECTION 911B   PROVIDING FINANCIAL SERVICES ON BEHALF OF A PERSON WHO CARRIES ON A FINANCIAL SERVICES BUSINESS  

911B(1)    
A person (the provider ) must only provide a financial service in this jurisdiction on behalf of another person (the principal ) who carries on a financial services business if one or more of the following paragraphs apply:

(a)    these conditions are satisfied:

(i) the principal holds an Australian financial services licence covering the provision of the service; and

(ii) the provider is an employee or director of the principal or of a related body corporate of the principal; and

(iii) the provider is not an employee or director, or authorised representative, of any other person who carries on a financial services business and who is not a related body corporate of the principal; and

(iv) the provider is not an employee or director, or authorised representative, of a related body corporate of a person of the kind mentioned in subparagraph (iii);

(b)    these conditions are satisfied:

(i) the principal holds an Australian financial services licence covering the provision of the service; and

(ii) the provider is an authorised representative of the principal; and

(iii) the authorisation covers the provision of the service by the provider; and

(iv) in the case of a provider who is an employee or director of any other person (the second principal ) who carries on a financial services business, or of a related body corporate of such a second principal - if the provider provides any financial services in this jurisdiction on behalf of the second principal, the provider does so as an authorised representative of the second principal;

(c)    

these conditions are satisfied:

(i) the principal holds an Australian financial services licence covering the provision of the service; and

(ii) the provider is an employee of an authorised representative of the principal; and

(iii) the authorisation covers the provision of the service by the authorised representative; and

(iv) the service is the provision of a basic deposit product or of a facility for making non-cash payments that is related to a basic deposit product, or is the provision of a financial product of a kind prescribed by regulations made for the purposes of this subparagraph;

(d)    the provider holds their own Australian financial services licence covering the provision of the service;

Note: However, in general a financial services licensee cannot be the authorised representative of another financial services licensee: see sections 916D and 916E .

(e)    

if the principal (rather than the provider) provided the service, the principal would not need an Australian financial services licence because the provision of the service would be exempt under:

(i) subsection 911A(2) ; or

(ii) regulations made for the purposes of subsection 926B(1) ;

(f)    

these conditions are satisfied:

(i) the service is a claims handling and settling service in relation to an insurance product; and

(ii) the principal holds an Australian financial services licence covering the provision of the service; and

(iii) either the provider is not a person described in subparagraphs 911A(2)(ek)(i) to (vi) (insurers etc.) or, if the provider is a person described in one of those subparagraphs, the claims handling and settling service is of a kind described in paragraph 911A(2)(en) (legal services);

(g)    

these conditions are satisfied:

(i) the service is a claims handling and settling service in relation to an insurance product; and

(ii) the principal is an authorised representative of a financial services licensee; and

(iii) the financial services licensee holds an Australian financial services licence covering the provision of the service; and

(iv) the authorisation by the financial services licensee covers the provision of the service by the authorised representative; and

(v) the authorised representative has entered into an arrangement with the provider for the provider to provide the service on behalf of the authorised representative and the financial services licensee; and

(vi) either the provider is not a person described in subparagraphs 911A(2)(ek)(i) to (vi) (insurers etc.) or, if the provider is a person described in one of those subparagraphs, the claims handling and settling service is of a kind described in paragraph 911A(2)(en) (legal services).

Note 1: Also, a person must not provide a financial service on behalf of another person contrary to a banning order or disqualification order under Division 8 .

Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

911B(2)    
Paragraphs (1)(a) , (b) and (c) do not apply if the provider is a financial services licensee, unless the principal is an insurer and the provider is acting under a binder given by the principal.

911B(3)    
If, as mentioned in paragraph (1)(d), the provider holds their own Australian financial services licence covering the provision of the service, then, for the purposes of the other provisions of this Chapter, the service is taken to be provided by the provider (and not by the principal) unless regulations made for the purposes of this subsection provide otherwise.

911B(4)    

A person contravenes this subsection if the person contravenes subsection (1) .

Note: This subsection is a civil penalty provision (see section 1317E ).

SECTION 911C  

911C   PROHIBITION ON HOLDING OUT  

A person must not hold out:

(a)    that the person has an Australian financial services licence; or

(b)    that a financial service provided by the person or by someone else is exempt from the requirement to hold an Australian financial services licence; or

(c)    that, in providing a financial service, the person acts on behalf of another person; or

(d)    

that conduct, or proposed conduct, of the person is within authority (within the meaning of Division 6 ) in relation to a particular financial services licensee;

(e) - (f) (Repealed)

if that is not the case.

Note: Failure to comply with this section is an offence (see subsection 1311(1) ).

SECTION 911D   WHEN A FINANCIAL SERVICES BUSINESS IS TAKEN TO BE CARRIED ON IN THIS JURISDICTION  

911D(1)    

A financial services business is taken to be carried on in this jurisdiction by a person if, in the course of the person carrying on the business, the person engages in conduct that is:

(a)    intended to induce people in this jurisdiction to use the financial services the person provides; or

(b)    is likely to have that effect;

whether or not the conduct is intended, or likely, to have that effect in other places as well.

911D(2)    

This section does not limit the circumstances in which a financial services business is carried on in this jurisdiction.

Division 3 - Obligations of financial services licensees  

Subdivision A - General obligations  

SECTION 912A   GENERAL OBLIGATIONS  

General obligations

912A(1)    
A financial services licensee must:

(a)    do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly; and

(aa)    

have in place adequate arrangements for the management of conflicts of interest that may arise wholly, or partially, in relation to activities undertaken by the licensee or a representative of the licensee in the provision of financial services as part of the financial services business of the licensee or the representative; and

(b)    comply with the conditions on the licence; and

(c)    comply with the financial services laws; and

(ca)    

take reasonable steps to ensure that its representatives comply with the financial services laws, except to the extent that:

(i) those representatives are persons who carry on a business of providing goods or services to persons insured under insurance products in satisfaction of the liability of the insurers under those products; and

(ii) the financial services laws relate to the provision of claims handling and settling services by those representatives; and

(cb)    

comply with the law of each host economy for an Australian passport fund, if the licensee is:

(i) the operator of the fund; or

(ii) a person (other than a regulator) who has functions or duties in relation to the fund under the Passport Rules for this jurisdiction; and

(cc)    

comply with the Reference Checking and Information Sharing Protocol; and

(d)    

subject to subsection (4) - have available adequate resources (including financial, technological and human resources) to provide the financial services covered by the licence and to carry out supervisory arrangements; and

(e)    maintain the competence to provide those financial services; and

(f)    

ensure that its representatives are adequately trained (including by complying with the CPD provisions), and are competent, to provide those financial services; and

(g)    

if those financial services are provided to persons as retail clients:

(i) have a dispute resolution system complying with subsection (2) ; and

(ii) give ASIC the information specified in any instrument under subsection (2A) ; and

(h)    

subject to subsection (5) - have adequate risk management systems; and

(j)    comply with any other obligations that are prescribed by regulations made for the purposes of this paragraph.

Dispute resolution system

912A(2)    
To comply with this subsection, a dispute resolution system must consist of:

(a)    an internal dispute resolution procedure that:

(i) complies with standards, and requirements, made or approved by ASIC in accordance with regulations made for the purposes of this subparagraph; and

(ii) covers complaints against the licensee made by retail clients in connection with the provision of all financial services covered by the licence; and

(b) (Repealed)

(c)    

membership of the AFCA scheme.

912A(2A)    

ASIC may, by legislative instrument, specify information that financial services licensees must give ASIC relating to their internal dispute resolution procedures and the operation of their internal dispute resolution procedures.

912A(2B)    

An instrument under subsection (2A) must not specify any information that is personal information within the meaning of the Privacy Act 1988 .

912A(3)    

Regulations made for the purposes of subparagraph (2)(a)(i) may also deal with the variation or revocation of:

(a)    standards or requirements made by ASIC; or

(b)    approvals given by ASIC.

Reference Checking and Information Sharing Protocol

912A(3A)    

ASIC may, by legislative instrument, determine a protocol for sharing and requesting information about an individual in respect of whom there are reasonable grounds to suspect that:

(a)    if the individual becomes a representative of a financial services licensee ( recruiting financial services licensee ), the individual will provide personal advice to retail clients about relevant financial products; or

(b)    if the individual becomes a representative of a credit licensee ( recruiting credit licensee ), the individual will:

(i) provide credit assistance in relation to credit contracts secured by mortgages over residential property; and

(ii) be a mortgage broker or a director, employee or agent of a mortgage broker; or

(c)    a mortgage intermediary ( prospective mortgage intermediary ) is acting, or will act, as an intermediary in relation to a credit licensee where the individual is, or is a former, current or prospective representative of, that credit licensee, and in that capacity the individual:

(i) provides, provided or will provide credit assistance in relation to credit contracts secured by mortgages over residential property; and

(ii) is, was or will be a mortgage broker or a director, employee or agent of a mortgage broker.

912A(3AA)    

The Reference Checking and Information Sharing Protocol may provide for any or all of the following to share information about the individual with the recruiting financial services licensee, the recruiting credit licensee or the prospective mortgage intermediary:

(a)    if the individual is a financial services licensee - the individual;

(b)    if the individual is a former or current representative of a financial services licensee - that licensee.

912A(3AB)    

The Reference Checking and Information Sharing Protocol may provide, in a case covered by paragraph (3A)(a) , for the recruiting financial services licensee to request information about the individual from any or all of the following:

(a)    if the individual is a financial services licensee or credit licensee - the individual;

(b)    if the individual is a former or current representative of a financial services licensee - that financial services licensee;

(c)    if the individual is a former or current representative of a credit licensee - that credit licensee;

(d)    if a mortgage intermediary has previously acted or is acting as an intermediary in relation to a credit licensee where the individual is, or is a former or current representative of, that credit licensee - that mortgage intermediary.

912A(3AC)    

The Reference Checking and Information Sharing Protocol may also provide for keeping and retaining records of information shared, and the circumstances under which that information is shared.

912A(3B)    

The Reference Checking and Information Sharing Protocol must not:

(a)    require or permit personal information (within the meaning of the Privacy Act 1988 ) to be shared, other than with the consent of the individual to whom the information relates; or

(b)    require information to be shared in relation to conduct that occurred more than 5 years before the information is shared.

Application of Reference Checking and Information Sharing Protocol

912A(3C)    
(Repealed by No 69 of 2023, s 3, Sch 4[81] (effective 15 September 2023).)

912A(3D)    
(Repealed by No 69 of 2023, s 3, Sch 4[81] (effective 15 September 2023).)

912A(3E)    

Expressions used in paragraphs (3A)(b) and (c) and (3AB)(c) and (d) that are also used in the National Consumer Credit Protection Act 2009 (other than Reference Checking and Information Sharing Protocol) have the same meaning in that subsection as they have in that Act.

Qualified privilege

912A(3F)    

A person has qualified privilege in relation to information shared in accordance with the Reference Checking and Information Sharing Protocol.

912A(3G)    

A person who has qualified privilege under subsection (3F) in respect of conduct is also not liable for any action based on breach of confidence in relation to that conduct.

Adequate resources to provide financial services - APRA regulated bodies

912A(4)    

Paragraph (1)(d) :

(a)    does not apply to a body regulated by APRA, unless the body is an RSE licensee; and

(b)    does not apply to an RSE licensee, unless the RSE licensee is also the responsible entity of a registered scheme.

Adequate risk management systems - APRA regulated bodies

912A(5)    

Paragraph (1)(h) :

(a)    does not apply to a body regulated by APRA, unless the body is an RSE licensee that is also the responsible entity of a registered scheme; and

(b)    does not apply to an RSE licensee that is also the responsible entity of a registered scheme, to the extent that the risk relates solely to the operation of a regulated superannuation fund by the RSE licensee.

Civil penalty provision

912A(5A)    

A person contravenes this subsection if the person contravenes paragraph (1)(a) , (aa) , (ca) , (cc) , (d) , (e) , (f) , (g) , (h) or (j) .

Note: This subsection is a civil penalty provision (see section 1317E ).

912A(6)    
(Repealed by No 76 of 2023, s 3, Sch 2[440] (effective 20 October 2023).)

SECTION 912B   ARRANGEMENTS FOR COMPENSATION IF FINANCIAL SERVICES PROVIDED TO PERSONS AS RETAIL CLIENTS  

912B(1)    
If a financial services licensee provides a financial service to persons as retail clients, the licensee must have arrangements for compensating those persons for loss or damage suffered because of breaches of the relevant obligations under this Chapter by the licensee or its representatives. The arrangements must meet the requirements of subsection (2) .

912B(2)    
The arrangements must:

(a)    if the regulations specify requirements that are applicable to all arrangements, or to arrangements of that kind - satisfy those requirements; or

(b)    be approved in writing by ASIC.

912B(3)    
Before approving arrangements under paragraph (2)(b) , ASIC must have regard to:

(a)    the financial services covered by the licence; and

(b)    whether the arrangements will continue to cover persons after the licensee ceases carrying on the business of providing financial services, and the length of time for which that cover will continue; and

(c)    any other matters that are prescribed by regulations made for the purposes of this paragraph.

912B(4)    
Regulations made for the purposes of paragraph (3)(c) may, in particular, prescribe additional details in relation to the matters to which ASIC must have regard under paragraphs (3)(a) and (b) .

Subdivision B - Providing information and assistance to ASIC  

SECTION 912C   DIRECTION TO PROVIDE A STATEMENT  

912C(1)    
ASIC may, by giving written notice to a financial services licensee, direct the licensee to give to ASIC a written statement containing the specified information about:

(a)    the financial services provided by the licensee or its representatives; or

(b)    the financial services business carried on by the licensee; or

(c)    

for the purposes of considering whether the requirement in section 913BA (fit and proper person test) is satisfied in relation to the licensee and the licence - any matters mentioned in section 913BB in relation to a person mentioned in a paragraph of subsection 913BA(1) .

912C(1A)    
Notices under subsection (1):

(a)    may be sent out at any time; and

(b)    may be sent to one or more particular licensees, or to each licensee in one or more classes of licensee, or to all licensees; and

(c)    may all require the same information, or may contain differences as to the information they require; and

(d)    

may require a statement containing information to be provided on a periodic basis, or each time a particular event or circumstance occurs, without ASIC having to give a further written notice; and

(e)    

may require a statement containing information to be given in a specified manner (including in electronic form).

912C(2)    

ASIC may also, by giving written notice to the licensee, direct the licensee to obtain an audit report, prepared by a suitably qualified person specified in the notice, on a statement, or each statement in a class of statements, under subsection (1) before the statement is given to ASIC.

912C(3)    
The licensee must comply with a direction given under this section:

(a)    within the time specified in the direction if that is a reasonable time; or

(b)    in any other case - within a reasonable time.

ASIC may extend the time within which the licensee must comply with the direction by giving written notice to the licensee.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

SECTION 912CA  

912CA   REGULATIONS MAY REQUIRE INFORMATION TO BE PROVIDED  

The regulations may require a financial services licensee, or each financial services licensee in a class of financial services licensees, to provide ASIC with specified information about:

(a)    the financial services provided by the licensee or its representatives; or

(b)    the financial services business carried on by the licensee.

SECTION 912D   MEANING OF REPORTABLE SITUATION  

912D(1)    

There is a reportable situation in relation to a financial services licensee if one of the following paragraphs is satisfied:

(a)    

the financial services licensee or a representative of the financial services licensee has breached a core obligation and the breach is significant;

(b)    

the financial services licensee or a representative of the financial services licensee is no longer able to comply with a core obligation and the breach, if it occurs, will be significant;

(c)    the financial services licensee or a representative of the financial services licensee conducts an investigation into whether there is a reportable situation of the kind mentioned in paragraph (a) or (b) and the investigation continues for more than 30 days;

(d)    an investigation described in paragraph (c) discloses that there is no reportable situation of the kind mentioned in paragraph (a) or (b) .

912D(2)    
There is also a reportable situation in relation to a financial services licensee if:

(a)    in the course of providing a financial service, the financial services licensee or a representative of the financial services licensee has engaged in conduct constituting gross negligence; or

(b)    the financial services licensee or a representative of the financial services licensee has committed serious fraud; or

(c)    any other circumstances prescribed by the regulations for the purposes of this paragraph exist.

912D(3)    

Each of the following is a core obligation :

(a)    an obligation under section 912A or 912B , other than the obligation under paragraph 912A(1)(c) ;

(b)    

the obligation under paragraph 912A(1)(c) , so far as it relates to provisions of this Act or the ASIC Act referred to in paragraphs (a) , (b) , (c) and (d) of the definition of financial services law in section 761A ;

(c)    

in relation to financial services, other than traditional trustee company services provided by a licensed trustee company - the obligation under paragraph 912A(1)(c) , so far as it relates to Commonwealth legislation that is covered by paragraph (e) of that definition and that is specified in regulations made for the purposes of this paragraph;

(d)    

in relation to traditional trustee company services provided by a licensed trustee company - the obligation under paragraph 912A(1)(c) , so far as it relates to Commonwealth, State or Territory legislation, or a rule of common law or equity, that is covered by paragraph (e) or (f) of that definition;

(e)    

an obligation of a representative of the licensee under the financial services law, so far as it relates to provisions of this Act or the ASIC Act referred to in paragraphs (a) , (b) , (c) and (d) of the definition of financial services law in section 761A .

912D(4)    
For the purposes of this section, a breach of a core obligation is taken to be significant if:

(a)    the breach is constituted by the commission of an offence under any law and the commission of the offence is punishable on conviction by a penalty that may include imprisonment for a maximum period of:

(i) if the offence involves dishonesty - 3 months or more; or

(ii) in any other case - 12 months or more; or

(b)    the breach is constituted by the contravention of a civil penalty provision under any law, other than a civil penalty provision prescribed by the regulations for the purposes of this paragraph; or

(c)    the breach is constituted by a contravention of subsection 1041H(1) of this Act or subsection 12DA(1) of the ASIC Act (misleading or deceptive conduct in relation to a financial product or a financial service); or

(d)    the breach results, or is likely to result, in material loss or damage to:

(i) in the case of a managed investment scheme - a member or members of the scheme; or

(ii) in the case of a superannuation entity - a member or members of the entity; or

(iii) in all cases - a person or persons to whom the financial services licensee or a representative of the financial services licensee provides a financial product or a financial service as a wholesale or retail client; or

(e)    any other circumstances prescribed by the regulations for the purposes of this paragraph exist.

912D(5)    
Otherwise, for the purposes of this section, a breach of a core obligation is significant having regard to the following:

(a)    the number or frequency of similar breaches;

(b)    the impact of the breach on the financial services licensee ' s ability to provide financial services covered by the licence;

(c)    the extent to which the breach indicates that the financial services licensee ' s arrangements to ensure compliance with those obligations are inadequate;

(d)    any other matters prescribed by regulations made for the purposes of this paragraph.

912D(6)    

Regulations for the purposes of paragraph (4)(b) may prescribe a civil penalty provision to the extent that it relates to the following:

(a)    contraventions of specified provisions;

(b)    specified matters.

SECTION 912DAA   OBLIGATION TO LODGE A REPORT - REPORTABLE SITUATIONS IN RELATION TO THE FINANCIAL SERVICES LICENSEE  

Reporting a reportable situation to ASIC

912DAA(1)    
If there are reasonable grounds to believe that a reportable situation has arisen in relation to a financial services licensee:

(a)    the financial services licensee must lodge a report in relation to the reportable situation with ASIC; and

(b)    the report must be lodged in accordance with this section.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

Report must be in the prescribed form

912DAA(2)    
The report must be lodged with ASIC in writing in the prescribed form.

Period within which report must be lodged

912DAA(3)    
The report must be lodged with ASIC within 30 days after the financial services licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe the reportable situation has arisen.

Strict liability applies in relation to paragraphs (1)(a) and (b)

912DAA(4)    
Strict liability applies in relation to paragraphs (1)(a) and (b) .

If report is received by APRA

912DAA(5)    
A report that a financial services licensee is required to lodge under this section in relation to a reportable situation is taken to have been lodged with ASIC if:

(a)    the licensee is a body regulated by APRA; and

(b)    the licensee has given a report to APRA that contains all of the information that is required in a report under this section in relation to the reportable situation.

912DAA(6)    
Subsection (1) does not apply to a financial services licensee in relation to a reportable situation if:

(a)    the licensee is a body regulated by APRA; and

(b)    the auditor or actuary of the licensee gives APRA a written report about a matter to which the reportable situation relates; and

(c)    the report is given before, or within 10 business days after, the licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe that the reportable situation has arisen.

Civil penalty provision

912DAA(7)    
A person contravenes this subsection if the person contravenes subsection (1) .

Note: This subsection is a civil penalty provision (see section 1317E ).

Meaning of knowledge and recklessness

912DAA(8)    

For the purposes of this section:

knowledge
has the meaning given by section 5.3 of the Criminal Code .

recklessness
has the meaning given by section 5.4 of the Criminal Code .

SECTION 912DAB   OBLIGATION TO LODGE A REPORT - REPORTABLE SITUATIONS IN RELATION TO OTHER FINANCIAL SERVICES LICENSEES  

Reporting a reportable situation to ASIC

912DAB(1)    
A financial services licensee (the reporting licensee ) must lodge a report with ASIC in accordance with this section if there are reasonable grounds to believe that:

(a)    a reportable situation has arisen in relation to another financial services licensee of the kind mentioned in:

(i) paragraph 912D(1)(a) or (b) (significant breach or likely breach of a core obligation); or

(ii) subsection 912D(2) (gross negligence or serious fraud); and

(b)    one of the following is an individual who has engaged in conduct that forms part of the reportable situation:

(i) the other financial services licensee;

(ii) an employee of the other financial services licensee or of a related body corporate of the other financial services licensee, acting within the scope of the employee ' s employment;

(iii) a director of the other financial services licensee or of a related body corporate of the other financial services licensee, acting within the scope of the director ' s duties as director;

(iv) another representative of the other financial services licensee acting within the scope of the representative ' s authority given by the licensee; and

(c)    the individual provides personal advice to retail clients in relation to relevant financial products.

Report must be in the prescribed form

912DAB(2)    
The report must be lodged with ASIC in writing in the prescribed form.

Period within which report must be lodged

912DAB(3)    
The report must be lodged with ASIC within 30 days after the reporting licensee first knows of, or is reckless with respect to, the circumstances mentioned in paragraphs (1)(a) , (b) and (c) .

If the reportable situation already reported to ASIC

912DAB(4)    
Subsection (1) does not apply in relation to a reportable situation if there are reasonable grounds to believe that ASIC is aware of:

(a)    the existence of the reportable situation; and

(b)    all of the information that is required in a report under this section in relation to the reportable situation.

A copy of the report must be given to the other financial services licensee

912DAB(5)    
The reporting licensee must give a copy of any report that the reporting licensee is required to lodge with ASIC under subsection (1) to the other financial services licensee within 30 days after the reporting licensee first knows of, or is reckless with respect to, the circumstances mentioned in paragraphs (1)(a) , (b) and (c) .

912DAB(6)    
A financial services licensee has qualified privilege in relation to a copy of a report given under subsection (5) .

912DAB(7)    
A financial services licensee who has qualified privilege under subsection (6) in respect of conduct is also not liable for any action based on breach of confidence in relation to that conduct.

Civil penalty provision

912DAB(8)    
A person contravenes this subsection if the person contravenes subsection (1) or (5) .

Note: This subsection is a civil penalty provision (see section 1317E ).

Meaning of knowledge and recklessness

912DAB(9)    

For the purposes of this section:

knowledge
has the meaning given by section 5.3 of the Criminal Code .

recklessness
has the meaning given by section 5.4 of the Criminal Code .

SECTION 912DAC   OBLIGATION TO GIVE NOTICE - PARTICIPANTS IN LICENSED MARKET OR LICENSED CS FACILITY  

912DAC(1)    
If a financial services licensee becomes a participant in a licensed market or a licensed CS facility, or ceases to be such a participant:

(a)    the financial services licensee must lodge written notice of that fact with ASIC; and

(b)    the notice must be lodged in accordance with this section.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

912DAC(2)    
The notice must say when the event happened and identify the market or facility.

912DAC(3)    
The notice must be given as soon as practicable after the event happened.

912DAC(4)    
A person contravenes this subsection if the person contravenes subsection (1) .

Note: This subsection is a civil penalty provision (see section 1317E ).

SECTION 912DAD   ASIC MUST PUBLISH DETAILS OF CERTAIN REPORTS  

912DAD(1)    
ASIC must, for each financial year, publish information about:

(a)    reports lodged with ASIC during the financial year under section 912DAA in relation to reportable situations of the kind mentioned in paragraphs 912D(1)(a) and (b) (breaches and likely breaches of core obligations); and

(b)    reports lodged with APRA during the financial year, as described in subsections 912DAA(5) and (6) , in relation to reportable situations of the kind mentioned in paragraphs 912D(1)(a) and (b) (breaches and likely breaches of core obligations); and

(c)    the entities in relation to which those reports are lodged with ASIC or APRA.

912DAD(2)    
The information must:

(a)    be published within 4 months after the end of the financial year; and

(b)    be published on ASIC ' s website; and

(c)    include the information (if any) prescribed by the regulations, which may include personal information (within the meaning of the Privacy Act 1988 ) in relation to a financial services licensee who is an individual; and

(d)    if the regulations prescribe how the information is to be organised - be organised in accordance with the regulations.

912DAD(3)    
The regulations may prescribe circumstances in which information need not be included in the information published by ASIC under this section.

912DAD(4)    
ASIC may correct any error in, or omission from, information published under this section.

SECTION 912DA   OBLIGATION TO NOTIFY ASIC OF CHANGE IN CONTROL  

912DA(1)    
If an entity starts to control, or stops controlling, a financial services licensee, the licensee must lodge a notification with ASIC:

(a)    in the prescribed form; and

(b)    before the end of 30 business days after the day the entity starts to control, or stops controlling, the financial services licensee.

Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .

912DA(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 .

SECTION 912DB   OBLIGATION TO NOTIFY ASIC IF LICENSEE DOES NOT PROVIDE FINANCIAL SERVICE  

912DB(1)    
If a financial services licensee does not provide a financial service covered by the licence before the end of 6 months after the licence is granted, the licensee must lodge a notification with ASIC:

(a)    in the prescribed form; and

(b)    before the end of 15 business days after the end of the 6 months.

Note: Failure to comply with this subsection is an offence: see subsection 1311(1) .

912DB(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 .

SECTION 912E   SURVEILLANCE CHECKS BY ASIC  

912E(1)    
A financial services licensee and its representatives must give such assistance to ASIC, or a person authorised by ASIC, as ASIC or the authorised person reasonably requests in relation to whether the licensee and its representatives are complying with the financial services laws, and in relation to the performance of ASIC's other functions.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

912E(2)    
Such assistance may include showing ASIC the licensee ' s books or giving ASIC other information.

Subdivision C - Notifying and remediating clients affected by reportable situations  

SECTION 912EA   REPORTING TO CLIENTS AFFECTED BY A REPORTABLE SITUATION  

Notifying an affected client of a reportable situation

912EA(1)    
A financial services licensee must take reasonable steps to notify a person (the affected client ) of a reportable situation in accordance with this section if:

(a)    the licensee, or a representative of the licensee, provides or has provided personal advice to the affected client as a retail client in relation to a relevant financial product; and

(b)    there are reasonable grounds to believe that the reportable situation has arisen in relation to the licensee as mentioned in:

(i) paragraph 912D(1)(a) (significant breach of a core obligation); or

(ii) subsection 912D(2) (gross negligence or serious fraud); and

(c)    there are reasonable grounds to suspect that:

(i) the affected client has suffered or will suffer loss or damage as a result of the reportable situation; and

(ii) the affected client has a legally enforceable right to recover the loss or damage from the licensee.

Form and period for giving notice

912EA(2)    
A notice under this section must:

(a)    be given in writing within 30 days after the financial services licensee first knows of, or is reckless with respect to, the circumstances mentioned in paragraphs (1)(a) , (b) and (c) ; and

(b)    if ASIC has approved the form in which the notice must be given:

(i) be in the approved form; and

(ii) include the information, statements, explanations or other matters required by the form; and

(iii) be accompanied by any other material required by the form.

Qualified privilege

912EA(3)    
A financial services licensee has qualified privilege in relation to a notice given under this section.

912EA(4)    
A financial services licensee who has qualified privilege under subsection (3) in respect of conduct is also not liable for any action based on breach of confidence in relation to that conduct.

Civil penalty provision

912EA(5)    
A person contravenes this subsection if the person contravenes subsection (1) .

Note: This subsection is a civil penalty provision (see section 1317E ).

Meaning of knowledge and recklessness

912EA(6)    

For the purposes of this section:

knowledge
has the meaning given by section 5.3 of the Criminal Code .

recklessness
has the meaning given by section 5.4 of the Criminal Code .

SECTION 912EB   OBLIGATION TO INVESTIGATE REPORTABLE SITUATIONS THAT MAY AFFECT CLIENTS  

Obligation to investigate

912EB(1)    
A financial services licensee must conduct an investigation into a reportable situation in accordance with this section if:

(a)    the licensee, or a representative of the licensee, provides or has provided personal advice to a person as a retail client (the affected client ) in relation to a relevant financial product; and

(b)    there are reasonable grounds to believe that the reportable situation has arisen in relation to the licensee as mentioned in:

(i) paragraph 912D(1)(a) (significant breach of a core obligation); or

(ii) subsection 912D(2) (gross negligence or serious fraud); and

(c)    there are reasonable grounds to suspect that:

(i) the affected client has suffered or will suffer loss or damage as a result of the reportable situation; and

(ii) the affected client has a legally enforceable right to recover the loss or damage from the licensee.

Period within which investigation must be commenced

912EB(2)    
The investigation must be commenced within 30 days after the financial services licensee first knows of, or is reckless with respect to, the circumstances mentioned in paragraphs (1)(a) , (b) and (c) .

Matters to be considered in the investigation

912EB(3)    
In conducting the investigation, the financial services licensee must:

(a)    identify the conduct that gave rise to the reportable situation; and

(b)    quantify the loss or damage that there are reasonable grounds to believe:

(i) the affected client has suffered or will suffer as a result of the reportable situation; and

(ii) the affected client has a legally enforceable right to recover from the licensee; and

(c)    do anything else prescribed by the regulations for the purposes of this paragraph.

Completing the investigation

912EB(4)    
The investigation must be completed as soon as is reasonably practicable after it is commenced.

Notifying affected client

912EB(5)    
The financial services licensee must take reasonable steps to give the affected client a notice of the outcome of the investigation:

(a)    in writing within 10 days after the completion of the investigation; and

(b)    if ASIC has approved the form in which the notice must be given:

(i) in the approved form; and

(ii) that includes the information, statements, explanations or other matters required by the form; and

(iii) that is accompanied by any other material required by the form.

912EB(6)    
A financial services licensee has qualified privilege in relation to a notice given under subsection (5) .

912EB(7)    
A financial services licensee who has qualified privilege under subsection (6) in respect of conduct is also not liable for any action based on breach of confidence in relation to that conduct.

Compensating the affected client for loss or damage

912EB(8)    
If, after the investigation is completed, there are reasonable grounds to believe that:

(a)    the affected client has suffered or will suffer loss or damage as a result of the reportable situation; and

(b)    the affected client has a legally enforceable right to recover the loss or damage from the financial services licensee;

the licensee must take reasonable steps to pay the affected client an amount equal to the loss or damage within 30 days after the investigation is completed.

Civil penalty provision

912EB(9)    
A person contravenes this subsection if the person contravenes subsection (1) , (5) or (8) .

Note: This subsection is a civil penalty provision (see section 1317E ).

Nothing affects right of affected client to pursue legally enforceable rights

912EB(10)    
Nothing in this section affects any legally enforceable right of the affected client to recover loss or damage that the affected client suffers, or will suffer, as a result of a reportable situation.

912EB(11)    
However, a court may take into account the amount paid by the financial services licensee under this section when quantifying the amount of compensation (if any) to be paid by the licensee in relation to that loss or damage.

Meaning of knowledge and recklessness

912EB(12)    

For the purposes of this section:

knowledge
has the meaning given by section 5.3 of the Criminal Code .

recklessness
has the meaning given by section 5.4 of the Criminal Code .

SECTION 912EC   OBLIGATION TO KEEP RECORDS OF COMPLIANCE  

912EC(1)    
A financial services licensee must keep records sufficient to enable the licensee ' s compliance with this Subdivision to be readily ascertained.

Note 1: For preservation of records, see section 1101C .

Note 2: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

912EC(2)    
The regulations may specify records that the financial services licensee must keep as part of the obligation in subsection (1) .

Subdivision D - Miscellaneous  

SECTION 912F   OBLIGATION TO CITE LICENCE NUMBER IN DOCUMENTS  

912F(1)    

Whenever a financial services licensee identifies itself in a document of a kind specified in regulations made for the purposes of this subsection, the document must include the licensee's licence number (see section 913C ).

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

912F(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 .

Division 4 - Australian financial services licences  

Subdivision A - How to get a licence  

SECTION 913A  

913A   APPLYING FOR A LICENCE  

A person may apply for an Australian financial services licence by lodging an application with ASIC in a prescribed form that:

(a)    includes the information required by regulations made for the purposes of this paragraph; and

(b)    is accompanied by the documents (if any) required by regulations made for the purposes of this paragraph.

Note: For fees in respect of lodging applications, see Part 9.10 .

SECTION 913B   WHEN A LICENCE MAY BE GRANTED  

913B(1)    
ASIC must grant an applicant an Australian financial services licence if (and must not grant such a licence unless):

(a)    the application was made in accordance with section 913A ; and

(b)    

ASIC has no reason to believe that the applicant is likely to contravene the obligations that will apply under section 912A if the licence is granted; and

(c)    

the requirement in section 913BA (fit and proper person test) is satisfied in relation to the applicant and the licence applied for; and

(ca) (Repealed)

(d)    the applicant meets any other requirements prescribed by regulations made for the purposes of this paragraph.

Note 1: ASIC must not grant an Australian financial services licence to a person contrary to a banning order or disqualification order (see Division 8 ).

Note 2: There are limitations on ASIC granting an individual an Australian financial services licence that covers the provision of certain personal advice if the individual does not meet certain requirements (see section 921C ).

913B(2)    

However, ASIC must refuse to grant the Australian financial services licence if ASIC is satisfied that:

(a)    the application for the licence, or any information, audit report or statement lodged with ASIC in accordance with subsection (3) , was false in a material particular or materially misleading; or

(b)    there was an omission of a material matter from the application or the information, audit report or statement.

ASIC may request information etc. from applicant

913B(3)    

ASIC may give a written notice to the applicant requesting the applicant to lodge with ASIC in a prescribed form, within the time specified in the notice, any of the following:

(a)    information specified in the notice in relation to any matters that ASIC may or must have regard to in deciding whether to grant the licence;

(b)    an audit report, prepared by a suitably qualified person specified in the notice, in relation to matters that ASIC may or must have regard to in deciding whether to grant the licence;

(c)    if ASIC proposes to grant the applicant a licence - a statement that either:

(i) informs ASIC of any material changes in any information provided to ASIC in, or in connection with, the application; or

(ii) confirms that there have been no such changes.

913B(4)    

To avoid doubt:

(a)    

a notice under subsection (3), and the information, audit report or statement requested in the notice, may relate to any person mentioned in section 913BA in relation to the applicant and the licence applied for; and

(b)    subsection (4B) applies in relation to such a request even if the applicant is unable to comply with the request.

913B(4A)    

ASIC may, by written notice to the applicant within the time specified in the notice:

(a)    withdraw a request under subsection (3) ; or

(b)    extend the time specified in the notice.

913B(4B)    

If the applicant does not lodge with ASIC in a prescribed form the information, audit report or statement requested in a notice under subsection (3) within the specified time, the applicant is taken to have withdrawn the application.

913B(4C)    

To avoid doubt, subsection (5) does not apply to an application that is taken to have been withdrawn under subsection (4B) .

913B(4D)    

The regulations may make provision in relation to audit reports that applicants may be requested to lodge under paragraph (3)(b) .

Applicant must be given hearing before refusal of licence

913B(5)    

ASIC may only refuse to grant a licence after giving the applicant an opportunity:

(a)    to appear, or be represented, at a hearing before ASIC that takes place in private; and

(b)    to make submissions to ASIC in relation to the matter.

SECTION 913BA   FIT AND PROPER PERSON TEST  

913BA(1)    
For the purposes of paragraph 913B(1)(c) , subsection 914B(2) and paragraph 915C(1)(b) , the requirement in this section is satisfied in relation to a person (the first person ) and a licence, or a proposed licence, if ASIC is satisfied that there is no reason to believe any of the following:

(a) that the first person is not a fit and proper person to provide the financial services covered by the licence;

(b) if the first person is a body corporate - that an officer of the first person is not a fit and proper person to perform one or more functions as an officer of an entity that provides the financial services covered by the licence;

(c) if the first person is a partnership or the multiple trustees of a trust:

(i) that any of the partners or trustees are not fit and proper persons to provide the financial services covered by the licence; or

(ii) that any of the senior managers of the partnership or the trust are not fit and proper persons to perform one or more functions as an officer of an entity that provides the financial services covered by the licence;

(d) that any person who controls the first person is not a fit and proper person to control an entity that provides the financial services covered by the licence;

(e) if a controller mentioned in paragraph (d) is a body corporate - that an officer of the controller is not a fit and proper person to perform one or more functions as an officer of an entity that controls an entity that provides the financial services covered by the licence;

(f) if a controller mentioned in paragraph (d) is a partnership or the multiple trustees of a trust:

(i) that any of the partners or trustees are not fit and proper persons to control an entity that provides the financial services covered by the licence; or

(ii) that any of the senior managers of the partnership or the trust are not fit and proper persons to perform one or more functions as an officer of an entity that controls an entity that provides the financial services covered by the licence.

913BA(2)    
In considering whether a person is fit and proper for a purpose mentioned in a paragraph of subsection (1), ASIC must have regard to the matters in section 913BB .

SECTION 913BB   FIT AND PROPER PERSON TEST - MATTERS TO WHICH ASIC MUST HAVE REGARD  

913BB(1)    
ASIC must have regard to the matters set out in subsection (2) (subject to Part VIIC of the Crimes Act 1914 ) for the purposes of applying any of the following provisions to a person:

(a) a paragraph of subsection 913BA(1) ;

(b) paragraph 920A(1)(d) .

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

913BB(2)    
The matters are as follows:

(a) whether any of the following of the person has ever been suspended or cancelled:

(i) an Australian financial services licence;

(ii) an Australian credit licence, or a registration under the Transitional Act, within the meaning of the National Consumer Credit Protection Act 2009 ;

(b) whether any of the following has ever been made against the person:

(i) a banning order, or a disqualification order under Subdivision B of Division 8 of this Part;

(ii) a banning order, or a disqualification order, under Part 2-4 of the National Consumer Credit Protection Act 2009 ;

(c) if the person is an individual - whether the person has ever been disqualified under this Act, or any other law of the Commonwealth or of a State or Territory, from managing corporations;

(d) whether the person has ever been banned from engaging in a credit activity (within the meaning of the National Consumer Credit Protection Act 2009 ) under a law of a State or Territory;

(e) whether the person has ever been linked to a refusal or failure to give effect to a determination made by AFCA;

(f) whether the person has ever:

(i) been a Chapter 5 body corporate or an insolvent under administration; or

(ii) if the person is a partnership - had a creditor ' s petition or a debtor ' s petition presented against it under Division 2 or 3 of Part IV of the Bankruptcy Act 1966 ;

(g) if the person is the multiple trustees of a trust - whether a trustee of the trust has ever been a Chapter 5 body corporate or an insolvent under administration;

(h) whether, in the last 10 years, the person has been convicted of an offence;

(i) any relevant information given to ASIC by a State or Territory, or an authority of a State or Territory, in relation to the person;

(j) any other matter prescribed by the regulations;

(k) any other matter ASIC considers relevant.

SECTION 913C   LICENCE NUMBERS  

913C(1)   [ Unique licence number]  

ASIC must give each Australian financial services licence a unique licence number when it is granted, and must notify the licensee of that number.

913C(2)   [ Australian credit licence number holders]  

If:

(a) a person is granted an Australian financial services licence; and

(b) the person holds an Australian credit licence (within the meaning of the National Consumer Credit Protection Act 2009 );

the licence number that ASIC gives to the Australian financial services licence held by that person must be the same number as the person ' s Australian credit licence number (within the meaning of that Act).

Subdivision B - The conditions on the licence  

SECTION 914A   THE CONDITIONS ON THE LICENCE  

914A(1)    

Subject to this section and section 914B , ASIC may, at any time, by giving written notice to a financial services licensee:

(a)    impose conditions, or additional conditions, on the licence; and

(b)    vary or revoke conditions imposed on the licence.

Note: Subsection 923B(3) restricts the circumstances in which ASIC can impose a condition authorising a person to assume or use a restricted word or expression under that section.

914A(2)    
ASIC may do so:

(a)    on its own initiative; or

(b)    

if the licensee lodges with ASIC in a prescribed form an application for ASIC to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph.

Note: For fees in respect of lodging applications, see Part 9.10 .

914A(3)    

ASIC may only impose conditions or additional conditions, or vary the conditions, on the licence after giving the licensee an opportunity:

(a)    to appear, or be represented, at a hearing before ASIC that takes place in private; and

(b)    to make submissions to ASIC in relation to the matter.

This subsection does not apply to ASIC imposing conditions when a licence is granted, or imposing or varying conditions in accordance with an application under paragraph (2)(b) .

914A(4)    
If the licensee, or a related body corporate, is a body (the APRA body ) regulated by APRA, other than an ADI (within the meaning of the Banking Act 1959 ), then the following provisions apply:

(aa)    

ASIC cannot impose, vary or revoke a condition on the licence if the licensee is authorised to provide a superannuation trustee service and doing so would, in ASIC ' s opinion, have the result of preventing the licensee from providing that service, unless:

(i) APRA has agreed in writing with the proposed action; or

(ii) the licensee applied under paragraph 914A(2)(b) for ASIC to take the proposed action; or

(iii) the licensee ' s RSE licence is not in effect, and is not treated by section 29GB of the Superannuation Industry (Supervision) Act 1993 as if it were in effect;

(a)    

if paragraph (aa) does not apply, ASIC cannot:

(i) impose, vary or revoke a condition on the licence that, in ASIC's opinion, has or would have the result of preventing the APRA body from being able to carry on all or any of its usual activities (being activities in relation to which APRA has regulatory or supervisory responsibilities); or

(ii) vary a condition so that it would, in ASIC's opinion, become a condition that would have a result as described in subparagraph (i);

unless ASIC has first consulted APRA about the proposed action;

(b)    

if ASIC imposes, varies or revokes a condition on the licence and paragraphs (aa) and (a) do not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

914A(5)    
If the licensee, or a related body corporate, is an ADI (within the meaning of the Banking Act 1959 ), then the following provisions apply:

(a)    subject to paragraphs (b) and (c) , the powers that ASIC would otherwise have under this section:

(i) to impose, vary or revoke a condition on the licence that, in ASIC's opinion, has or would have the result of preventing the ADI from being able to carry on all or any of its banking business (within the meaning of the Banking Act 1959 ); or

(ii) to vary a condition so that it would, in ASIC's opinion, become a condition that would have a result as described in subparagraph (i);

are instead powers of the Minister;

(b)    the following provisions apply in relation to a power to which paragraph (a) applies:

(i) the procedures for the exercise of the power are the same as would apply if ASIC could exercise the power, except that the Minister must not exercise the power unless he or she has first considered advice from ASIC on the proposed action, being advice given after ASIC has consulted APRA about the proposed action;

(ii) ASIC (rather than the Minister) must still conduct any hearing required under paragraph (3)(a) and receive any submissions under paragraph (3)(b) ;

(c)    if ASIC imposes, varies or revokes a condition on the licence and paragraph (a) does not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

914A(5A)    

A failure to comply with a requirement of this section to consult or inform APRA about, or to consider advice from ASIC about, or to get the agreement of APRA about, an imposition, variation or revocation of a condition does not invalidate the action taken.

914A(6)    
ASIC must ensure that the licence is subject to a condition that specifies the particular financial services or class of financial services that the licensee is authorised to provide.

914A(7)    
The financial services or class of financial services may be specified by reference to particular financial products, or classes of financial products.

914A(8)    
The licence is subject to such other conditions as are prescribed by regulations made for the purposes of this subsection. However, ASIC cannot vary or revoke those conditions.

SECTION 914B   ASIC MAY REQUEST INFORMATION ETC. IN RELATION TO AN APPLICATION FOR CONDITIONS TO BE VARIED  

914B(1)    
This section applies if a financial services licensee applies under paragraph 914A(2)(b) for ASIC to:

(a)    impose conditions, or additional conditions, on the licence; or

(b)    vary or revoke conditions imposed on the licence.

However, this section does not apply in relation to a power to which paragraph 914A(5)(a) applies.

914B(2)    
Without limiting ASIC ' s power to refuse to grant the application, ASIC may refuse to grant the application if the requirement in section 913BA (fit and proper person test) is not satisfied in relation to the applicant and the licence as proposed to be varied.

ASIC may request information etc. from applicant

914B(3)    

ASIC may give a written notice to the applicant requesting the applicant to lodge with ASIC in a prescribed form, within the time specified in the notice, any of the following:

(a)    information specified in the notice in relation to any matters that ASIC must have regard to for the purposes of deciding whether the requirement in section 913BA is satisfied as mentioned in subsection (2) of this section;

(b)    an audit report, prepared by a suitably qualified person specified in the notice, in relation to matters that ASIC must have regard to for the purposes of deciding whether the requirement in section 913BA is satisfied as mentioned in subsection (2) of this section;

(c)    if ASIC proposes to grant the application - a statement that either:

(i) informs ASIC of any material changes in any information provided to ASIC in, or in connection with, the application; or

(ii) confirms that there have been no such changes.

914B(4)    
To avoid doubt:

(a)    a notice under subsection (3) , and the information, audit report or statement requested in the notice, may relate to any person mentioned in section 913BA in relation to the applicant and the licence as proposed to be varied; and

(b)    subsection (6) applies in relation to such a request even if the applicant is unable to comply with the request.

914B(5)    
ASIC may, by written notice to the applicant within the time specified in the notice:

(a)    withdraw the request; or

(b)    extend the time specified in the notice.

914B(6)    

If the applicant does not lodge with ASIC in a prescribed form the information, audit report or statement requested by ASIC in a notice under subsection (3) within the specified time, the applicant is taken to have withdrawn the application.

914B(7)    
To avoid doubt, subsection (9) does not apply to an application that is taken to have been withdrawn under subsection (6) .

914B(8)    
The regulations may make provision in relation to audit reports that applicants may be requested to lodge under paragraph (3)(b) .

Applicant must be given hearing before refusal of application

914B(9)    
ASIC may only refuse to grant the application after giving the applicant an opportunity:

(a)    to appear, or be represented, at a hearing before ASIC that takes place in private; and

(b)    to make submissions to ASIC in relation to the matter.

Subdivision C - When a licence can be varied, suspended or cancelled  

SECTION 915A   VARYING LICENCES  

915A(1)    

ASIC may vary an Australian financial services licence to take account of a change in the licensee ' s name if the licensee lodges with ASIC in a prescribed form an application for the variation, accompanied by the documents, if any, required by regulations made for the purposes of this subsection.

Note 1: The conditions on the licence can be varied under section 914A .

Note 2: For fees in respect of lodging applications, see Part 9.10 .

915A(2)    
ASIC must give written notice of the variation to the licensee.

SECTION 915B   IMMEDIATE SUSPENSION OR CANCELLATION  

Licence held by an individual

915B(1)    

ASIC may suspend or cancel an Australian financial services licence held by an individual, by giving written notice to the person, if the person:

(a)    ceases to carry on the financial services business; or

(b)    becomes an insolvent under administration; or

(c)    is convicted of serious fraud; or

(d)    becomes incapable of managing their affairs because of mental or physical incapacity; or

(e)    

lodges with ASIC in a prescribed form an application for ASIC to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph; or

(f)    

is liable to pay levy imposed by the ASIC Supervisory Cost Recovery Levy Act 2017 and has not paid in full at least 12 months after the due date for payment:

(i) the amount of levy; and

(ii) the amount of any late payment penalty payable in relation to the levy; and

(iii) the amount of any shortfall penalty payable in relation to the levy; or

(g)    

is liable to pay an instalment of levy (within the meaning of the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 ) and has not paid in full at least 12 months after the due date for payment:

(i) the amount of the instalment of levy; and

(ii) the amount of any late payment penalty in relation to the instalment of levy; and

(iii) the amount of any shortfall penalty payable in relation to the instalment of levy.

Note: For fees in respect of lodging applications, see Part 9.10 .

915B(1A)    

ASIC may also cancel an Australian financial services licence held by an individual, by giving written notice to the individual, if the individual does not provide a financial service covered by the licence before the end of 6 months after the licence is granted.

915B(1B)    

ASIC must cancel an Australian financial services licence held by an individual, by giving written notice to the individual, if:

(a)    the individual is required to pay an amount to another person in accordance with a relevant AFCA determination; and

(b)    the CSLR operator has paid, under section 1063 , an amount of compensation to the other person for the relevant AFCA determination.

Licence held by a partnership

915B(2)    
ASIC may suspend or cancel an Australian financial services licence held by a partnership, by giving written notice to the partnership, if:

(a)    the partnership ceases to carry on the financial services business; or

(b)    a creditor ' s petition or a debtor ' s petition is presented under Division 2 or 3 of Part IV of the Bankruptcy Act 1966 against the partnership; or

(ba)    

an officer of the partnership becomes an insolvent under administration; or

(c)    one or more of the partners is convicted of serious fraud; or

(d)    

the partnership lodges with ASIC in a prescribed form an application for ASIC to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph; or

(e)    

in the case of a partnership that is a leviable entity (within the meaning of the ASIC Supervisory Cost Recovery Levy Act 2017 ) - the following have not been paid in full at least 12 months after the due date for payment:

(i) an amount of levy (if any) payable in respect of the licensee;

(ii) an amount of late payment penalty payable (if any) in relation to the levy;

(iii) an amount of shortfall penalty payable (if any) in relation to the levy; or

(f)    

in the case of a partnership that is liable to pay an instalment of levy (within the meaning of the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 ) - the following have not been paid in full at least 12 months after the due date for payment:

(i) the amount of the instalment of levy;

(ii) the amount of any late payment penalty in relation to the instalment of levy;

(iii) the amount of any shortfall penalty payable in relation to the instalment of levy.

Note: For fees in respect of lodging applications, see Part 9.10 .

915B(2A)    

ASIC may also cancel an Australian financial services licence held by a partnership, by giving written notice to the partnership, if the partnership does not provide a financial service covered by the licence before the end of 6 months after the licence is granted.

915B(2B)    

ASIC must cancel an Australian financial services licence held by a partnership, by giving written notice to the partnership, if:

(a)    one or more of the partners is required to pay an amount to a person in accordance with a relevant AFCA determination; and

(b)    the CSLR operator has paid, under section 1063 , an amount of compensation to the person for the relevant AFCA determination.

Licence held by a body corporate

915B(3)    

ASIC may suspend or cancel an Australian financial services licence held by a body corporate, by giving written notice to the body, if:

(a)    

the body ceases to carry on the financial services business; or

(b)    

the body becomes a Chapter 5 body corporate; or

(ba)    

an officer of the body becomes an insolvent under administration; or

(c)    

the body is a responsible entity of a registered scheme whose members have suffered, or are likely to suffer, loss or damage because the body has breached this Act; or

(caa)    

the body is an operator of a notified foreign passport fund whose members have suffered, or are likely to suffer, loss or damage because the body has breached this Act; or

(ca)    

the body is a trustee company whose clients have suffered, or are likely to suffer, loss or damage because the company has breached:

(i) this Act; or

(ii) a financial services law referred to in paragraph (f) of the definition of financial services law in section 761A ; or

(d)    

the body lodges with ASIC in a prescribed form an application for ASIC to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph; or

(e)    

the body is liable to pay levy imposed by the ASIC Supervisory Cost Recovery Levy Act 2017 and has not paid in full at least 12 months after the due date for payment:

(i) the amount of levy; and

(ii) the amount of any late payment penalty payable in relation to the levy; and

(iii) the amount of any shortfall penalty payable in relation to the levy; or

(f)    

the body is liable to pay an instalment of levy (within the meaning of the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 ) and has not paid in full atleast 12 months after the due date for payment:

(i) the amount of the instalment of levy; and

(ii) the amount of any late payment penalty in relation to the instalment of levy; and

(iii) the amount of any shortfall penalty payable in relation to the instalment of levy.

Note: For fees in respect of lodging applications, see Part 9.10 .

915B(3A)    

ASIC may also cancel an Australian financial services licence held by a body corporate, by giving written notice to the body, if the body does not provide a financial service covered by the licence before the end of 6 months after the licence is granted.

915B(3B)    

ASIC must cancel an Australian financial services licence held by a body corporate, by giving written notice to the body, if:

(a)    the body is required to pay an amount to a person in accordance with a relevant AFCA determination; and

(b)    the CSLR operator has paid, under section 1063 , an amount of compensation to the person for the relevant AFCA determination.

915B(4)    
ASIC may suspend or cancel an Australian financial services licence held by the trustees of a trust, by giving written notice to the trustees, if:

(a)    the trustees of the trust cease to carry on the financial services business;or

(b)    

a trustee who is an individual:

(i) becomes an insolvent under administration; or

(ii) is convicted of serious fraud; or

(iii) becomes incapable of managing their affairs because of physical or mental incapacity; or

(c)    a trustee that is a body corporate becomes a Chapter 5 body corporate; or

(ca)    

an officer of a trustee becomes an insolvent under administration; or

(d)    

the trustees lodge with ASIC in a prescribed form an application for ASIC to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph; or

(e)    

in the case of a licensee that is a single legal entity under section 761FA and also a leviable entity (within the meaning of the ASIC Supervisory Cost Recovery Levy Act 2017 ) - the following have not been paid in full at least 12 months after the due date for payment:

(i) an amount of levy (if any) payable in respect of the licensee;

(ii) an amount of late payment penalty payable (if any) in relation to the levy;

(iii) an amount of shortfall penalty payable (if any) in relation to the levy; or

(f)    

in the case of a licensee that is a single legal entity under section 761FA of this Act and also liable to pay an instalment of levy (within the meaning of the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023 ) - the following have not been paid in full at least 12 months after the due date for payment:

(i) the amount of the instalment of levy;

(ii) the amount of any late payment penalty in relation to the instalment of levy;

(iii) the amount of any shortfall penalty payable in relation to the instalment of levy.

Note: For fees in respect of lodging applications, see Part 9.10 .

915B(4A)    

ASIC may also cancel an Australian financial services licence held by the trustees of a trust, by giving written notice to the trustees, if the trustees of the trust do not provide a financial service covered by the licence before the end of 6 months after the licence is granted.

915B(4B)    

ASIC must cancel an Australian financial services licence held by the trustees of a trust, by giving written notice to the trustees, if:

(a)    the trustees of the trust are required to pay an amount to a person in accordance with a relevant AFCA determination; and

(b)    the CSLR operator has paid, under section 1063 , an amount of compensation to the person for the relevant AFCA determination.

SECTION 915C   SUSPENSION OR CANCELLATION AFTER OFFERING A HEARING  

915C(1)    
ASIC may suspend or cancel an Australian financial services licence (subject to complying with subsection (4) ) in any of the following cases:

(a)    the licensee has not complied with their obligations under section 912A ;

(aa)    

ASIC has reason to believe that the licensee is likely to contravene their obligations under section 912A ;

(b)    

the requirement in section 913BA (fit and proper person test) is not satisfied in relation to the licensee and the licence;

(c)    a banning order or disqualification order under Division 8 is made against the licensee;

(d)    a banning order or disqualification order under Division 8 is made against a representative of the licensee and ASIC considers that the representative ' s involvement in the provision of the licensee ' s financial services will significantly impair the licensee ' s ability to meet its obligations under this Chapter;

(e)    

the licensee is the operator of an Australian passport fund, or a person (other than a regulator) who has functions or duties in relation to an Australian passport fund under the Passport Rules for this jurisdiction, and each of the following is satisfied:

(i) a host regulator for the fund has notified ASIC in writing that it is of the opinion that the person or the fund has not complied, is not complying or is not likely to comply with the law of that host economy to the extent that the law is administered by the host regulator for the fund (including the Passport Rules for the host economy for the fund);

(ii) ASIC is of the opinion that it should suspend or cancel the licence, given the potential impact of the failure, or potential failure, to comply on members or potential members of the fund;

(f)    

the application for the licence:

(i) was false in a material particular or materially misleading; or

(ii) omitted a material matter;

(g)    

any information, audit report or statement lodged with ASIC in accordance with a request under subsection 913B(3) in relation to the application for the licence:

(i) was false in a material particular or materially misleading; or

(ii) omitted a material matter;

(h)    

an application made by the licensee under paragraph 914A(2)(b) in relation to the licence:

(i) was false in a material particular or materially misleading; or

(ii) omitted a material matter;

(i)    

any information, audit report or statement lodged with ASIC in accordance with a request under subsection 914B(3) in relation to an application made by the licensee under paragraph 914A(2)(b) in relation to the licence:

(i) was false in a material particular or materially misleading; or

(ii) omitted a material matter.

915C(2)    
(Repealed by No 3 of 2020, s 3, Sch 3 [ 31] (effective 18 February 2020).)

915C(3)    
An Australian financial services licence is suspended or cancelled by ASIC giving written notice to the licensee.

915C(4)    
However, ASIC may only suspend or cancel an Australian financial services licence under this section after giving the licensee an opportunity:

(a)    to appear, or be represented, at a hearing before ASIC that takes place in private; and

(b)    to make submissions to ASIC on the matter.

915C(5)    
(Repealed by No 76 of 2023, s 3, Sch 2[454] (effective 20 October 2023).)

SECTION 915D   EFFECT OF SUSPENSION  

915D(1)   [ Effect]  

A suspended Australian financial services licence has no effect while it remains suspended.

915D(2)   [ Limitation]  

Subsection (1) has effect subject to section 915H .

SECTION 915E  

915E   REVOCATION OF SUSPENSION  

ASIC may at any time revoke the suspension of an Australian financial services licence by giving written notice to the licensee.

SECTION 915F   DATE OF EFFECT AND PUBLICATION OF CANCELLATION OR SUSPENSION  

915F(1)   [ Date of effect]  

A variation, suspension, revocation of a suspension, or cancellation, of an Australian financial services licence takes effect when the written notice of that action is given to the licensee.

915F(2)   [ Publication]  

As soon as practicable after the notice is given to the licensee, ASIC must:

(a) publish a notice of the action in the Gazette ; and

(b) if the licensee is a participant in a licensed market or a licensed CS facility - give written notice of the action to the operator of the market or facility.

A notice under this subsection must state when the action took effect.

SECTION 915G  

915G   STATEMENT OF REASONS  

A notice of suspension or cancellation given to a licensee under this Subdivision must be accompanied by a statement of reasons for the action taken.

SECTION 915H  

915H   ASIC MAY ALLOW LICENCE TO CONTINUE IN EFFECT  

In the written notice of suspension or cancellation that ASIC gives to the licensee, ASIC may specify that the licence continues in effect as though the suspension or cancellation had not happened for the purposes of specified provisions of this Act in relation to specified matters, a specified period, or both.

SECTION 915I   SPECIAL PROCEDURES FOR APRA-REGULATED BODIES  

915I(1)    
If a financial services licensee, or a related body corporate, is a body (the APRA body ) regulated by APRA, other than an ADI (within the meaning of the Banking Act 1959 ), the following provisions apply:

(aa)    

ASIC cannot suspend or cancel the licensee ' s licence if the licensee is authorised to provide a superannuation trustee service unless:

(i) APRA has agreed in writing with the proposed action; or

(ii) the licensee applied under paragraph 915B(1)(e) , (2)(d) , (3)(d) or (4)(d) for ASIC to take the proposed action; or

(iii) the licensee ' s RSE licence is not in effect, and is not treated by section 29GB of the Superannuation Industry (Supervision) Act 1993 as if it were in effect;

(a)    

if paragraph (aa) does not apply, ASIC cannot suspend or cancel the licensee's licence if doing so would, in ASIC ' s opinion, have the result of preventing the APRA body from being able to carry on all or any of its usual activities (being activities in relation to which APRA has regulatory or supervisory responsibilities), unless ASIC has first consulted APRA about the proposed action;

(b)    

if ASIC suspends or cancels the licensee's licence and paragraphs (aa) and (a) do not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

915I(2)    
If:

(a)    a financial services licensee is an ADI (within the meaning of the Banking Act 1959 ); or

(b)    a related body corporate of a financial services licensee is an ADI (within the meaning of the Banking Act 1959 ), and cancellation or suspension of the licensee's licence would, in ASIC's opinion, have the result of preventing the ADI from being able to carry on all or any of its banking business (within the meaning of the Banking Act 1959 );

the following provisions have effect:

(c)    subject to paragraph (d) , the powers that ASIC would otherwise have under this Subdivision to cancel or suspend the licensee's licence, or to subsequently revoke a suspension to which this subsection applied, are instead powers of the Minister;

(d)    the procedures for the exercise of a power to which paragraph (c) applies are the same as would apply if ASIC could exercise the power, except that the Minister must not exercise the power unless he or she has first considered advice from ASIC on the proposed action, being advice given after ASIC has consulted APRA about the proposed action;

(e)    ASIC (rather than the Minister) must still conduct any hearing required under paragraph 915C(4)(a) and receive any submissions under paragraph 915C(4)(b) .

915I(3)    

A failure to comply with a requirement of this section to consult or inform APRA about, or to consider advice from ASIC about, or to get the agreement of APRA about, a suspension or cancellation, or a revocation of a suspension, of a licence does not invalidate the action taken.

SECTION 915J  

915J   VARIATION, SUSPENSION AND CANCELLATION ONLY UNDER THIS SUBDIVISION  

An Australian financial services licence cannot be varied, suspended or cancelled otherwise than under this Subdivision.

Note: The conditions on the licence can be varied under section 914A .

Division 5 - Authorised representatives  

SECTION 916A   HOW REPRESENTATIVES ARE AUTHORISED  

916A(1)    
A financial services licensee may give a person (the authorised representative ) a written notice authorising the person, for the purposes of this Chapter, to provide a specified financial service or financial services on behalf of the licensee.

Note: There are limitations on a financial services licensee authorising an individual to provide certain personal advice if the individual does not meet certain requirements (see section 921C ).

916A(2)    
The financial services specified may be some or all of the financial services covered by the licensee's licence.

916A(3)    
An authorisation under subsection (1) is void to the extent that it purports to authorise a person to provide a financial service:

(a)    that is not covered by the licensee ' s licence; or

(b)    contrary to a banning order or disqualification order under Division 8 ; or

(c)   

in contravention of subsection 921C(2) .

916A(3A)    
A person must not give a purported authorisation if that purported authorisation is void to any extent under subsection (3) .

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916A(4)    
An authorisation may be revoked at any time by the licensee giving written notice to the authorised representative.

SECTION 916B   SUB-AUTHORISATIONS  

916B(1)    
Subject to subsection (3) , an authorised representative of a financial services licensee cannot, in that capacity, make a person their authorised representative or an authorised representative of the licensee.

916B(2)    

A purported authorisation contrary to this section or subsection 921C(3) is void.

916B(2A)    

A person must not give a purported authorisation if that purported authorisation is contrary to this section or subsection 921C(3) .

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916B(3)    

An authorised representative (an authoriser ) of a financial services licensee may, in that capacity, give an individual a written notice authorising that individual, for the purposes of this Chapter, to provide a specified financial service or financial services on behalf of the licensee, but only if the licensee consents in writing given to the authoriser.

Note: There are limitations on sub-authorising an individual to provide certain personal advice if the individual does not meet certain requirements (see section 921C ).

916B(3A)    
An individual who is authorised as mentioned in subsection (3) cannot, in that capacity, authorise another person under subsection (3) .

916B(4)    
The financial services specified may be some or all of the financial services covered by the licensee's licence.

916B(5)    
The licensee may give consent under subsection (3) in respect of either a specified individual or a specified class of individuals (the membership of which might change from time to time).

916B(5A)    

If a licensee gives consent under subsection (3) to an authoriser, the licensee must keep a copy of the consent for 5 years after the day on which it ceases to have effect.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916B(6)    
An individual who is authorised as mentioned in subsection (3) is an authorised representative of the relevant licensee.

916B(7)    
An authorisation of an individual as mentioned in subsection (3) may be revoked at any time by:

(a)    the licensee; or

(b)    

the authoriser that gave the individual the authorisation;

giving written notice to the individual.

916B(8)    
If a person revokes the authorisation of an individual under subsection (7) , that person must inform, in writing, the other person who could have revoked the authorisation.

916B(9)    

To avoid doubt, an authorisation given as mentioned in subsection (3) is taken, for the purposes of sections 916C to 916F , to be given by the authoriser, not the licensee.

SECTION 916C   AUTHORISED REPRESENTATIVE OF 2 OR MORE LICENSEES  

916C(1)    
One person can be the authorised representative of 2 or more financial services licensees, but only if:

(a)    each of those licensees has consented to the person also being the authorised representative of each of the other licensees; or

(b)    each of those licensees is a related body corporate of each of the other licensees; or

(c)    

the only financial services provided by the person as authorised representative of any financial services licensee are claims handling and settling services.

916C(2)    
A purported authorisation given in breach of this requirement is void.

916C(3)    
A person must not give a purported authorisation if that purported authorisation is in breach of this requirement.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

SECTION 916D   LICENSEES CANNOT AUTHORISE OTHER LICENSEES  

916D(1)    
A financial services licensee cannot be the authorised representative of another financial services licensee.

Note 1: Instead, the first licensee could use their own licence to provide financial services on behalf of the second licensee (assuming that the first licensee's licence covered the provision of those services). See paragraph 911B(1) (d).

Note 2: There is an exception to this rule in section 916E .

916D(2)    
A purported authorisation given in breach of this requirement is void.

916D(2A)    
A person must not give a purported authorisation if that purported authorisation is given in breach of this requirement.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916D(2B)    
The requirement in subsection (1) does not prohibit a financial services licensee from being an authorised representative in circumstances covered by section 916E .

Note: In a prosecution for an offence based on subsection (2A), a defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code .

916D(3)    
As well, an authorisation that starts to breach this requirement, because the person authorised is subsequently granted an Australian financial services licence, is void.

SECTION 916E   LICENSEES ACTING UNDER A BINDER  

916E(1)    
Despite section 916D , a financial services licensee (the authorised licensee ) may be the authorised representative of another financial services licensee who is an insurer, if the authorised licensee acts under a binder given by the insurer.

916E(2)    
For all purposes connected with contracts that are risk insurance products, or with claims against the insurer, in respect of which the authorised licensee acts under the binder:

(a)    the authorised licensee is taken to act on behalf of the insurer and not the insured; and

(b)    if the insured in fact relied in good faith on the conduct of the authorised licensee, the authorised licensee is taken to act on behalf of the insurer regardless of the fact that the authorised licensee did not act within the scope of the binder.

SECTION 916F   OBLIGATION TO NOTIFY ASIC ETC. ABOUT AUTHORISED REPRESENTATIVES  

916F(1)    

A person must lodge with ASIC in a prescribed form a written notice (in accordance with subsection (2) ), within 15 business days, if the person authorises a representative to provide a financial service as mentioned in section 916A or 916B .

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916F(1AA)    

Subsection (1) does not apply to an authorisation of a representative by an authorised representative (the authoriser ) if:

(a)    the authorisation is given as mentioned in subsection 916B(3) ; and

(b)    the relevant consent under subsection 916B(3) was given in respect of a specified class of individuals of which the representative is a member; and

(c)    the representative is an employee of the authoriser; and

(d)    the only financial services that the representative is authorised to provide are one or more of the following:

(i) general advice that relates to financial products covered by regulations made for the purposes of this paragraph;

(ii) dealing in financial products covered by regulations made for the purposes of this paragraph;

(iii) personal advice about a basic deposit product or about a facility for making non-cash payments that relates to a basic deposit product; and

(e)    the authoriser provides information about the representative and the representative ' s authorisation when requested.

Note 1: Regulations made for the purposes of paragraph (d) may be expressed to cover all financial products, or only 1 or more specified kinds of financial products.

Note 2: A defendant bears an evidential burden in relation to the matters in subsection (1AA) . See subsection 13.3(3) of the Criminal Code .

916F(1A)    

A person who authorises an individual to provide a financial service on behalf of a financial services licensee as mentioned in section 916B must give the licensee written notice (in accordance with subsection (2) ), within 15 business days of the individual being authorised to provide the financial service, if the licensee's consent to the authorisation was given in respect of a specified class of individuals.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916F(2)    
The notice must include the following details:

(a)    the name and business address of the representative;

(b)    details of the authorisation, including the date on which it was made and what the representative is authorised to do on behalf of the relevant licensee;

(c)    details of each other financial services licensee on behalf of whom the representative is an authorised representative.

916F(3)    
A person must notify ASIC, by lodging a written notice, within 10 business days if:

(a)    the person authorised a representative under section 916A or 916B and there is a change in any details relating to the representative that are required to be included under subsection (2) ; or

(b)    

the person revokes an authorisation to which subsection (1) applied.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916F(4)    
For the purposes of an offence based on subsection (3) , strict liability applies to the physical element of circumstance of the offence, that the details mentioned in subsection (3) changed.

Note: For strict liability , see section 6.1 of the Criminal Code .

SECTION 916G   ASIC MAY GIVE LICENSEE INFORMATION ABOUT REPRESENTATIVES  

916G(1)    
If ASIC considers it appropriate to do so, it may give information to a financial services licensee about a person who ASIC believes is, or will be, a representative of the licensee. However, ASIC may only do so if it believes, on reasonable grounds, that the information is true.

916G(2)    
A financial services licensee to whom the information is given may only make use of, make a record of, or give to another person, the information for a purpose connected with:

(a)    the licensee making a decision about what action (if any) to take in relation to the representative, as a consequence of receiving the information; or

(b)    the licensee taking action pursuant to such a decision.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916G(3)    
A person to whom information has been given for a purpose or purposes under subsection (2) or this subsection, may only make use of, make a record of, or give to another person, that information for that purpose or any of those purposes.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1) ).

916G(4)    
A person has qualified privilege in respect of an act done by the person under subsection (2) or (3) .

916G(5)    
A person to whom information is given in accordance with this section must not give any of the information to a court, or produce in a court a document that sets out some or all of the information, except:

(a)    for a purpose connected with:

(i) a financial services licensee making a decision about what action (if any) to take in relation to the representative, as a consequence of receiving some or all of the information; or

(ii) a financial services licensee taking action pursuant to that decision; or

(iii) proving in a proceeding in that court that particular action taken by a financial services licensee in relation to the representative was taken pursuant to that decision; or

(b)    in a proceeding in that court, in so far as the proceeding relates to an alleged breach of this section; or

(c)    

in a proceeding in respect of:

(i) an offence against section 6 of the Crimes Act 1914 ; or

(ii) an ancillary offence (within the meaning of the Criminal Code );

relating to an offence based on this section; or

(d)    in a proceeding about giving to a court false information some, at least, of which was the information given under this section.

916G(6)    
A reference in this section to a financial services licensee taking action in relation to a representative is a reference to the licensee:

(a)    taking action by way of making, terminating or varying the terms and conditions of an agreement; or

(b)    otherwise taking action in relation to an agreement;

to the extent that the agreement relates to the representative acting on behalf of the licensee.

916G(7)    
Subsection (5) also has the effect it would have if:

(a)    

a reference in it to a court were a reference to a court of a country outside Australia; and

(b)    paragraphs (5)(b) and (c) were omitted.

Division 6 - Liability of financial services licensees for representatives  

SECTION 917A   APPLICATION OF DIVISION  

917A(1)    
This Division applies to any conduct of a representative of a financial services licensee:

(a)    that relates to the provision of a financial service; and

(b)    on which a third person (the client ) could reasonably be expected to rely; and

(c)    on which the client in fact relied in good faith.

917A(2)    

In this Division, a reference to a representative ' s conduct being within authority in relation to a particular financial services licensee is, subject to subsection (3), a reference to:

(a)    if the representative is an employee of the licensee or of a related body corporate of the licensee - conduct being within the scope of the employee ' s employment; or

(b)    if the representative is a director of the licensee or of a related body corporate of the licensee - conduct being within the scope of the director ' s duties as director; or

(c)    in any other case - conduct being within the scope of the authority given by the licensee.

917A(3)    
If:

(a)    a person is the representative of more than one financial services licensee in respect of a particular class of financial service; and

(b)    the person engages in conduct relating to that class of service; and

(ba)    the conduct relates to a particular kind of financial product prescribed by regulations made for the purposes of paragraph 917C(3)(ba) ; and

(c)    any one or more of the licensees issues or transfers a financial product of that kind as a result of the conduct;

then, for the purposes of this Division:

(d)    

the person is taken, in respect of the conduct, to have acted within authority in relation to the licensee or to each licensee who issued or transferred a financial product of that kind as a result of the conduct; and

(e)    

the person is, in respect of the conduct, taken not to have acted within authority in relation to any licensee who did not issue or transfer a financial product of that kind as a result of the conduct.

SECTION 917B  

917B   RESPONSIBILITY IF REPRESENTATIVE OF ONLY ONE LICENSEE  

If the representative is the representative of only one financial services licensee, the licensee is responsible, as between the licensee and the client, for the conduct of the representative, whether or not the representative ' s conduct is within authority.

SECTION 917C   REPRESENTATIVES OF MULTIPLE LICENSEES  

917C(1)    
This section applies if the representative is the representative of more than one financial services licensee.

Financial service covered by only one authority

917C(2)    
If:

(a)    the representative is the representative of one of the licensees only in respect of a particular class of financial service; and

(b)    the conduct relates to that class of service;

that licensee is responsible for the conduct, as between that licensee and the client, whether or not the conduct is within authority.

Financial service covered by multiple authorities: conduct within authority for one or more of them

917C(3)    
If:

(a)    the representative is the representative of more than one of the licensees in respect of a particular class of financial service; and

(b)    the conduct relates to that class of service; and

(ba)    the conduct relates to a particular kind of financial product prescribed by regulations made for the purposes of this paragraph; and

(c)    the conduct is within authority in relation to:

(i) only one of those licensees (the authorising licensee ); or

(ii) two or more of those licensees (the authorising licensees );

then:

(d)    if subparagraph (c)(i) applies - the authorising licensee is responsible for the conduct, as between that licensee and the client; or

(e)    if subparagraph (c)(ii) applies - the authorising licensees are jointly and severally responsible for the conduct, as between themselves and the client.

All other cases

917C(4)    
In any other case, all of the licensees are jointly and severally responsible for the conduct, as between themselves and the client, whether or not the representative ' s conduct is within authority in relation to any of them.

SECTION 917D  

917D   EXCEPTION IF LACK OF AUTHORITY IS DISCLOSED TO CLIENT  

A financial services licensee is not responsible under section 917B or 917C for the conduct of their representative if:

(a)    the conduct is not within authority in relation to the licensee (or in relation to any of the licensees, if there were more than one); and

(b)    the representative disclosed that fact to the client before the client relied on the conduct; and

(c)    the clarity and the prominence of the disclosure was such as a person would reasonably require for the purpose of deciding whether to acquire the relevant financial service.

Note: A person must not hold out that conduct, or proposed conduct, of the person is within authority in relation to a particular financial services licensee, unless that is the case. See section 911C .

SECTION 917E  

917E   RESPONSIBILITY EXTENDS TO LOSS OR DAMAGE SUFFERED BY CLIENT  

The responsibility of a financial services licensee under this Division extends so as to make the licensee liable to the client in respect of any loss or damage suffered by the client as a result of the representative's conduct.

SECTION 917F   EFFECT OF DIVISION  

917F(1)    
If a financial services licensee is responsible for the conduct of their representative under this Division, the client has the same remedies against the licensee that the client has against the representative.

917F(2)    
The licensee and the representative (along with any other licensees who are also responsible) are all jointly and severally liable to the client in respect of those remedies.

917F(3)    
However, nothing in this Division imposes:

(a)    any criminal responsibility; or

(b)    any civil liability under a provision of this Act apart from this Division;

on a financial services licensee that would not otherwise be imposed on the licensee.

917F(4)    
This Division does not relieve a representative of a financial services licensee of any liability they have to the client or the licensee.

917F(5)    
An agreement is void in so far as it purports to alter or restrict the operation of section 917B , 917C , 917D or 917E .

917F(6)    
However, subsection (5) does not apply to the extent that the agreement:

(a)    provides for a representative of a financial services licensee to indemnify the licensee for a liability of the licensee in respect of the representative; or

(b)    provides for a financial services licensee, for whom a representative acts, to indemnify another financial services licensee for a liability in respect of the representative.

917F(7)    
A financial services licensee must not make, or offer to make, an agreement that is, or would be, void under subsection (5).

Division 8 - Banning or disqualification of persons from providing financial services  

Subdivision A - Banning orders  

SECTION 920A   ASIC ' S POWER TO MAKE A BANNING ORDER  

Making a banning order

920A(1)    

ASIC may, in writing, make one or more orders ( banning orders ) against a person if:

(a)    ASIC suspends or cancels an Australian financial services licence held by the person; or

(b)    the person has not complied with their obligations under section 912A ; or

(ba)    

ASIC has reason to believe that the person is likely to contravene their obligations under section 912A ; or

(bb)    

the person becomes a Chapter 5 body corporate or an insolvent under administration; or

(c)    the person is convicted of fraud; or

(d)    

ASIC has reason to believe that the person is not a fit and proper person to:

(i) provide one or more financial services; or

(ii) perform one or more functions as an officer of an entity that carries on a financial services business; or

(iii) control an entity that carries on a financial services business; or

(da)    

ASIC has reason to believe that the person is not adequately trained, or is not competent, to:

(i) provide one or more financial services; or

(ii) perform one or more functions as an officer of an entity that carries on a financial services business; or

(iii) control an entity that carries on a financial services business; or

(db)    

the person has not complied with any one or more of his or her obligations under section 921F (requirements relating to provisional relevant providers); or

(dc)    

both of the following apply:

(i) a supervisor referred to in section 921F has not complied with any one or more of his or her obligations under that section in relation to a provisional relevant provider;

(ii) both the supervisor and the provisional relevant provider are authorised to provide personal advice to retail clients, on behalf of the person, in relation to relevant financial products; or

(dd)    

both of the following apply:

(i) a provisional relevant provider has not complied with his or her obligations under subsection 921F(7) ;

(ii) the provisional relevant provider is authorised to provide personal advice to retail clients, on behalf of the person, in relation to relevant financial products; or

(de)    

ASIC has reason to believe that the person was authorised, in contravention of subsection 921C(2) , (3) or (4) , to provide personal advice to retail clients in relation to relevant financial products; or

(e)    

the person has not complied with a financial services law (other than subsection 921E(3) (relevant providers to comply with the Code of Ethics)); or

(f)    

ASIC has reason to believe that the person is likely to contravene a financial services law; or

(g)    

the person has been involved in the contravention of a financial services law by another person; or

(h)    

ASIC has reason to believe that the person is likely to become involved in the contravention of a financial services law by another person; or

(i)    

the person is the operator of, or another person connected with, an Australian passport fund, and each of the following is satisfied:

(i) a host regulator for the fund has notified ASIC in writing that it is of the opinion that the person or the fund has not complied, is not complying or is not likely to comply with the law of that host economy to the extent that the law is administered by the host regulator for the fund (including the Passport Rules for the host economy for the fund);

(ii) ASIC is of the opinion that it should make the banning order, given the potential impact of the failure, or potential failure, to comply on members or potential members of the fund; or

(j)    

the person has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA relating to a complaint that relates to:

(i) a financial services business; or

(ii) credit activities (within the meaning of the National Consumer Credit Protection Act 2009 ); or

(ja)    

all of the following apply:

(i) an individual who holds an Australian financial services licence, a partner in a partnership, a body corporate or a trustee of a trust is required to pay an amount in accordance with a relevant AFCA determination;

(ii) the CSLR operator has paid, under section 1063 , an amount of compensation for the relevant AFCA determination;

(iii) at the time the payment is made by the CSLR operator, the person is the individual licensee, a partner in the partnership, an officer of the body corporate or the trustee of the trust; or

(k)    

subsection (1C) applies to the person in relation to 2 or more corporations.

Note: To work out whether a person has been linked as described in paragraph (j), see section 910C .

920A(1AA)    

Subsection (1) has effect subject to subsection (2) .

When a person is not a fit and proper person

920A(1A)    

For the purposes of paragraph (1)(d) , ASIC must have regard to the matters in section 913BB .

When a person contravenes a financial services law

920A(1B)    
To avoid doubt, a person contravenes a financial services law if a person fails to comply with a duty imposed under that law, even if the provision imposing the duty is not an offence provision or a civil penalty provision.

When a person has been an officer of a corporation unable to pay its debts

920A(1C)    

This subsection applies to a person in relation to a corporation if, within the last 7 years:

(a)    the person was an officer of the corporation when the corporation was:

(i) carrying on a financial services business; or

(ii) engaging in credit activities (within the meaning of the National Consumer Credit Protection Act 2009 ); and

(b)    the corporation was wound up either:

(i) while the person was an officer of the corporation; or

(ii) within the 12 months after the person ceased to be an officer of the corporation; and

(c)    a liquidator lodged a report under subsection 533(1) (including that subsection as applied by section 526-35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ) about the corporation ' s inability to pay its debts.

Person to be given an opportunity to be heard

920A(2)    

Subject to subsection (3) , if ASIC has not delegated its power to make a banning order against a person to a Financial Services and Credit Panel, ASIC may make the order only after giving the person an opportunity:

(a)    to appear, or be represented, at a hearing before ASIC that takes place in private; and

(b)    to make submissions to ASIC on the matter.

Note: If ASIC delegates its power to make a banning order against a person to a Financial Services and Credit Panel, the panel may make the order only after holding a hearing in relation to the proposed order (see section 157 of the ASIC Act).

920A(3)    

ASIC may make a banning order against a person without giving the person the opportunities mentioned in subsection (2) if:

(a)    either:

(i) ASIC has not delegated its power to make the banning order to a Financial Services and Credit Panel; or

(ii) ASIC exercises its power to make the banning order despite such a delegation; and

(b)    ASIC ' s grounds for making the banning order are or include both of the following:

(i) that the suspension or cancellation of the relevant licence took place under section 915B ;

(ii) that the person has been convicted of serious fraud.

Note: See section 34AB of the Acts Interpretation Act 1901 (effect of delegation).

Special procedure for RSE licensees

920A(3A)    

If a person against whom ASIC proposes to make a banning order is a financial services licensee who is authorised to provide a superannuation trustee service, the following provisions apply:

(a)    ASIC cannot make the banning order if doing so would, in ASIC ' s opinion, have the result of preventing the licensee from providing that service, unless:

(i) APRA agrees in writing to the making of the banning order; or

(ii) the licensee ' s RSE licence is not in effect, and is not treated by section 29GB of the Superannuation Industry (Supervision) Act 1993 as if it were in effect;

(b)    if ASIC makes the banning order and paragraph (a) does not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

920A(3B)    
A failure to comply with a requirement of subsection (3A) to get the agreement of APRA about a banning order does not invalidate the action taken.

Copy of banning order to be given to the person

920A(4)    

ASIC must give a copy of a banning order to the person against whom it was made.

SECTION 920B   WHAT A BANNING ORDER PROHIBITS  

920B(1)    

A banning order made against a person may specify that the person is prohibited from doing one or more of the following:

(a) providing any financial services;

(b) providing specified financial services in specified circumstances or capacities;

(c) controlling, whether alone or in concert with one or more other entities, an entity that carries on a financial services business;

(d) performing any function involved in the carrying on of a financial services business (including as an officer, manager, employee, contractor or in some other capacity);

(e) performing specified functions involved in the carrying on of a financial services business.

920B(2)    

The banning order may specify that a particular prohibition specified in the order applies against the person:

(a) if the sole ground for the banning order is because paragraph 920A(1)(k) applies - for a specified period of up to 5 years; or

(b) otherwise - either permanently or for a specified period.

Note: This subsection applies separately to each prohibition specified in the order.

920B(3)    
A banning order may include a provision allowing the person against whom it was made, subject to any specified conditions:

(a) to do specified acts; or

(b) to do specified acts in specified circumstances;

that the order would otherwise prohibit them from doing.

SECTION 920C   EFFECT OF BANNING ORDERS  

920C(1)    
A person against whom a banning order is made cannot be granted an Australian financial services licence contrary to the banning order.

920C(2)    

A person against whom a banning order is made must not engage in conduct in breach of the banning order.

Fault-based offence

920C(3)    

A person commits an offence if the person contravenes subsection (2).

Civil liability

920C(4)    

A person contravenes this subsection if the person contravenes subsection (2).

Note: This subsection is a civil penalty provision (see section 1317E ).

SECTION 920D   VARIATION OR CANCELLATION OF BANNING ORDERS  

920D(1)    
ASIC may vary or cancel a banning order, by giving written notice to the person against whom the order was made, if ASIC is satisfied that it is appropriate to do so because of a change in any of the circumstances based on which ASIC made the order.

920D(2)    
ASIC may do so:

(a)    on its own initiative; or

(b)    

if the person against whom the order was made lodges with ASIC in a prescribed form an application for ASIC to do so, which is accompanied by the documents, if any, required by regulations made for the purposes of this paragraph.

Note: For fees in respect of lodging applications, see Part 9.10 .

920D(3)    
If ASIC proposes not to vary or cancel a banning order in accordance with an application lodged by a person under paragraph (2)(b) , ASIC must give the person an opportunity:

(a)    to appear, or be represented, at a hearing before ASIC that takes place in private; and

(b)    to make submissions to ASIC on the matter.

SECTION 920E   DATE OF EFFECT AND PUBLICATION OF BANNING ORDER, VARIATION OR CANCELLATION  

920E(1)   [ Date of effect]  

A banning order, or variation or cancellation of a banning order, takes effect when it is given to the person against whom the order is or was made.

920E(2)   [ Publication]  

ASIC must publish a notice in the Gazette as soon as practicable after making, varying or cancelling a banning order. The notice must state when the action took effect and:

(a) in the case of the making of a banning order - set out a copy of the banning order; or

(b) in the case of the variation of a banning order - set out a copy of the banning order as varied.

920E(3)   [ Content of notice]  

However, if the banning order contains a provision of the kind referred to in subsection 920B(3) and ASIC considers that the Gazette notice would be unreasonably long if that provision were included, the notice may instead set out a summary of the provision's effect.

920E(4)   [ Licensed market or CS facility]  

If ASIC makes a banning order against a person who is a participant in a licensed market or a licensed CS facility, or varies a banning order against such a person, ASIC must give the operator of the market or facility written notice of the making of the order or the variation.

SECTION 920F   STATEMENT OF REASONS  

920F(1)   [ Banning order]  

A banning order given to a person must be accompanied by a statement of reasons for the order.

920F(2)   [ Variation]  

If ASIC varies a banning order made against a person, ASIC must, on request by the person, give the person a statement of reasons for the variation.

Subdivision B - Disqualification by the Court  

SECTION 921A   DISQUALIFICATION BY THE COURT  

921A(1)    
ASIC may apply to the Court for an order or orders under this section in relation to a person if ASIC:

(a) cancels an Australian financial services licence held by the person; or

(b) makes a banning order against the person that is to operate permanently.

921A(2)    
The Court may make:

(a) one or more orders disqualifying the person, permanently or for a specified period, from doing one or more of the following:

(i) providing any financial services;

(ii) providing specified financial services in specified circumstances or capacities;

(iii) controlling, whether alone or in concert with one or more other entities, an entity that carries on a financial services business;

(iv) performing any function involved in the carrying on of a financial services business (including as an officer, manager, employee, contractor or in some other capacity);

(v) performing specified functions involved in the carrying on of a financial services business; or

(b) any other order the Court considers appropriate.

921A(3)    
The Court may revoke or vary an order made under subsection (2).

921A(4)    
A person against whom such an order is made cannot be granted an Australian financial services licence contrary to the order.

921A(5)    
If the Court makes or varies an order under this section in relation to a person who is a participant in a licensed market or a licensed CS facility, ASIC must give the operator of the market or facility written notice of the making of the order or the variation.

Division 8A - Professional standards for relevant providers etc.  

Subdivision A - Education and training standards  

SECTION 921B   MEANING OF EDUCATION AND TRAINING STANDARDS  

921B(1)    
This section sets out the education and training standards for a person who is, or is to be, a relevant provider.

Conditions for relevant providers

921B(2)    
The first standard is that:

(a)    

the person:

(i) has completed a bachelor or higherdegree, or equivalent qualification, approved by the Minister; and

(ii) has satisfied the conditions (if any) approved by the Minister for completing the degree or qualification, and has satisfied those conditions in a way (if any) approved by the Minister; or

(b)    

both of the following conditions are satisfied:

(i) the person has completed a foreign qualification;

(ii) the Minister has approved the foreign qualification under section 921G ; or

(c)    

the person holds an approval in force under subsection 921GA(3) .

921B(3)    

The second standard is that the person has passed an exam administered under this subsection by ASIC in accordance with principles approved by the Minister.

921B(4)    

The third standard is that the person has undertaken at least 1 year of work and training that meets the requirements set by the Minister.

Note: A relevant provider who is undertaking work and training in accordance with this subsection is a provisional relevant provider (see the definition of provisional relevant provider in section 9 ). For rules relating to provisional relevant providers, see Subdivision C .

Continuing standard for relevant providers

921B(5)    

The fourth standard is that the person meets the requirements for continuing professional development set by the Minister.

Determinations by Minister

921B(6)    

The Minister may, by legislative instrument, do any or all of the following in one or more determinations:

(a)    

approve bachelor or higher degrees, or equivalent qualifications, for the purposes of subparagraph (2)(a)(i) ;

(a)    

approve for the purposes of subparagraph (2)(a)(ii) :

(i) one or more conditions for completing an approved degree or qualification; and

(ii) one or more ways for satisfying such conditions;

(b)    approve principles for the purposes of subsection (3) ;

(c)    set requirements for work and training for the purposes of subsection (4) ;

(d)    set requirements for continuing professional development for the purposes of subsection (5) in relation to the CPD year of a financial services licensee, the period mentioned in subsection 1546E(5) , or any other period determined by the Minister.

921B(7)    

Before exercising the power in subsection (6) , the Minister must be satisfied that doing so is necessary or desirable to ensure that relevant providers are adequately trained and competent to provide personal advice to retail clients in relation to relevant financial products.

SECTION 921BA   RELEVANT PROVIDERS TO MEET EDUCATION AND TRAINING STANDARDS  

Qualifications

921BA(1)    
A relevant provider must meet the education and training standard in subsection 921B(2) .

Exam

921BA(2)    
A relevant provider must meet the education and training standard in subsection 921B(3) .

Work and training

921BA(3)    
A relevant provider must either:

(a)    meet the education and training standard in subsection 921B(4) ; or

(b)    be undertaking work and training in accordance with that subsection.

Continuing professional development

921BA(4)    
A relevant provider must comply with subsection 921B(5) :

(a)    in the case of a relevant provider who is a financial services licensee - during the licensee ' s CPD year; or

(b)    in the case of a relevant provider who is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products - during the licensee ' s CPD year.

Note: Section 922HB requires a notice to be given at the end of a financial services licensee ' s CPD year if a relevant provider has not complied with this subsection during that year.

Civil liability

921BA(5)    
A person contravenes this subsection if the person contravenes subsection (1) , (2) , (3) or (4) .

Note 1: This subsection is a restricted civil penalty provision (see sections 921Q and 1317E ).

Note 2: ASIC or a Financial Services and Credit Panel may take certain other action against a relevant provider who contravenes subsection (1) , (2) , (3) or (4) (see Division 8B ).

Note 3: Exemptions apply in relation to certain relevant providers (see section 921BC ).

SECTION 921BB   ADDITIONAL REQUIREMENTS FOR RELEVANT PROVIDERS WHO PROVIDE TAX (FINANCIAL) ADVICE SERVICES  

921BB(1)    
The Minister may, by legislative instrument, determine any or all of the following requirements for a person who provides, or is to provide, a tax (financial) advice service:

(a)    a requirement that the person has completed one or more specified bachelor or higher degrees;

(b)    a requirement that the person has completed one or more specified qualifications;

(c)    a requirement that the person has completed one or more specified courses;

(d)    a requirement that the person has undertaken specified work and training;

(e)    a requirement for continuing professional development in relation to the CPD year of a financial services licensee or any other period determined by the Minister.

Note: The determination may deal with matters of a transitional nature relating to any or all of the requirements mentioned in this subsection.

921BB(2)    
Before exercising the power in subsection (1) , the Minister must be satisfied that doing so is necessary or desirable to ensure that relevant providers are adequately trained and competent to provide tax (financial) advice services.

Continuing professional development

921BB(3)    
If a determination in force under subsection (1) sets out a requirement mentioned in paragraph (1)(e) , a relevant provider who provides tax (financial) advice services must comply with that requirement:

(a)    in the case of a relevant provider who is a financial services licensee - during the licensee ' s CPD year; or

(b)    in the case of a relevant provider who is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products - during the licensee ' s CPD year.

Note: Section 922HB requires a notice to be given at the end of a financial services licensee ' s CPD year if a relevant provider has not complied with this subsection during that year.

Civil liability

921BB(4)    
A person contravenes this subsection if the person contravenes subsection (3) .

Note 1: This subsection is a restricted civil penalty provision (see sections 921Q and 1317E ).

Note 2: ASIC or a Financial Services and Credit Panel may take certain other action against a relevant provider who contravenes subsection (3) (see Division 8B ).

Note 3: Exemptions apply in relation to certain relevant providers (see section 921BC ).

SECTION 921BC   EXEMPTIONS FOR CERTAIN RELEVANT PROVIDERS  

Time-sharing schemes

921BC(1)    
Sections 921BA and 921BB do not apply to a relevant provider if the only relevant financial product in relation to which the relevant provider provides personal advice to retail clients is a time-sharing scheme.

Provisional relevant providers

921BC(2)    
The CPD provisions do not apply to provisional relevant providers.

Subdivision AA - Limitations on authorisation to provide personal advice  

SECTION 921C   LIMITATION ON AUTHORISATION TO PROVIDE PERSONAL ADVICE UNLESS CONDITIONS MET  

Financial services licensees

921C(1)    
ASIC must not grant an applicant an Australian financial services licence that covers the provision of personal advice to retail clients in relation to relevant financial products if the applicant is an individual and any of the following paragraphs apply:

(a)    the applicant has not met any one or more of the education and training standards in subsections 921B(2) to (4) ;

(b)    

if:

(i) the applicant is to provide a tax (financial) advice service; and

(ia) the applicant is not a registered tax agent; and

(ii) a determination in force under subsection 921BB(1) sets out a requirement mentioned in any of paragraphs (a) to (c) of that subsection;

the applicant has not met the requirement;

(c)    

if:

(i) the applicant is to provide a tax (financial) advice service; and

(ia) the applicant is not a registered tax agent; and

(ii) a determination in force under subsection 921BB(1) includes a requirement for a person who is to provide a tax (financial) advice service to have undertaken specified work and training;

the applicant has not undertaken that work and training.

Authorised representatives

921C(2)    
A financial services licensee must not, under section 916A , give a person a written notice authorising the person to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products if the person is an individual and any of the following paragraphs apply:

(a)    the person has not met either or both of the education and training standards in subsections 921B(2) and (3) ;

(b)    the person has not met the education and training standard in subsection 921B(4) , and is not undertaking work and training in accordance with that subsection;

(c)    

if:

(i) the person is to provide a tax (financial) advice service; and

(ia) the person is not a registered tax agent; and

(ii) a determination in force under subsection 921BB(1) sets out a requirement mentioned in any of paragraphs (a) to (d) of that subsection;

the person has not met the requirement.

Sub-authorisations

921C(3)    
An authorised representative of a financial services licensee must not, under subsection 916B(3) , give an individual a written notice authorising that individual to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products if any of the following paragraphs apply:

(a)    the individual has not met either or both of the education and training standards in subsections 921B(2) and (3) ;

(b)    the individual has not met the education and training standard in subsection 921B(4) , and is not undertaking work and training in accordance with that subsection;

(c)    

if:

(i) the individual is to provide a tax (financial) advice service; and

(ia) the individual is not a registered tax agent; and

(ii)a determination in force under subsection 921BB(1) sets out a requirement mentioned in any of paragraphs (a) to (d) of that subsection;

the individual has not met the requirement.

Employees and directors

921C(4)    
A financial services licensee must not authorise an employee or director of the licensee, or of a related body corporate of the licensee, to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products if any of the following paragraphs apply:

(a)    the employee or director has not met either or both of the education and training standards in subsections 921B(2) and (3) ;

(b)    the employee or director has not met the education and training standard in subsection 921B(4) , and is not undertaking work and training in accordance with that subsection;

(c)    

if:

(i) the employee or director is to provide a tax (financial) advice service; and

(ia) the employee or director is not a registered tax agent; and

(ii) a determination in force under subsection 921BB(1) sets out a requirement mentioned in any of paragraphs (a) to (d) of that subsection;

the employee or director has not met the requirement.

Exemption in relation to time-sharing schemes

921C(5)    
This section does not apply in relation to a person who is to provide personal advice to retail clients in relation to relevant financial products if the only relevant financial product in relation to which the person is to provide personal advice to retail clients is a time-sharing scheme.

SECTION 921D  

921D   RELEVANT PROVIDERS TO MEET CONTINUING PROFESSIONAL DEVELOPMENT STANDARD  
(Repealed by No 115 of 2021, s 3, Sch 1[44] (effective 1 January 2022).)

Subdivision B - Ethical standards  

SECTION 921E   CODE OF ETHICS  

921E(1)    
The Minister may, by legislative instrument, make a Code of Ethics.

921E(2)    
Without limiting subsection 33(3A) of the Acts Interpretation Act 1901 , the Code of Ethics may make different provision in relation to different classes of relevant provider.

921E(3)    
A relevant provider must comply with the Code of Ethics.

Note 1: Subsection (3) is a restricted civil penalty provision (see sections 921Q and 1317E ).

Note 2: ASIC or a Financial Services and Credit Panel may take certain other action against a relevant provider who contravenes subsection (3) (see Division 8B ).

Subdivision C - Provisional relevant providers  

SECTION 921F   REQUIREMENTS RELATING TO PROVISIONAL RELEVANT PROVIDERS  

921F(1)    
This section sets out the requirements in relation to a person who is a provisional relevant provider.

Meaning of supervisor

921F(2)    
A supervisor of a provisional relevant provider is an individual who:

(a)    has supervisory responsibility for the provisional relevant provider; and

(b)    is a relevant provider; and

(c)    is not a provisional relevant provider; and

(d)    is not a limited-service time-sharing adviser.

Role of supervisors

921F(3)    
A supervisor of a provisional relevant provider must ensure that appropriate supervision is provided to the provisional relevant provider.

921F(4)    
A supervisor of a provisional relevant provider must approve, in writing, any Statement of Advice provided by the provisional relevant provider to a retail client.

Personal advice provided by provisional relevant providers

921F(5)    
For the purposes of this Act, personal advice provided (whether orally or in writing) by a provisional relevant provider at a particular time to a retail client in relation to a relevant financial product is taken to have been provided to the client by each person who is, at that time, a supervisor of the provisional relevant provider (instead of by the provisional relevant provider).

Retail clients to be informed of certain matters

921F(6)    
A supervisor of a provisional relevant provider must ensure that a retail client is informed:

(a)    of the name of each supervisor of the provisional relevant provider (even if the retail client has been informed of the name of each previous supervisor); and

(b)    that the provisional relevant provider is undertaking work and training in accordance with subsection 921B(4) ; and

(c)    that each supervisor is responsible for any personal advice provided by the provisional relevant provider to the client in relation to a relevant financial product.

Provisional relevant providers not to obstruct or hinder supervision

921F(7)    
A provisional relevant provider must not obstruct or hinder a supervisor of the provisional relevant provider in ensuring that appropriate supervision is provided to the provisional relevant provider.

Civil liability

921F(8)    
A person contravenes this subsection if the person contravenes subsection (3) , (4) , (6) or (7) .

Note 1: Subsection (8) is a restricted civil penalty provision (see sections 921Q and 1317E ).

Note 2: ASIC or a Financial Services and Credit Panel may take certain other action against a relevant provider who contravenes subsection (3) , (4) , (6) or (7) (see Division 8B ).

Subdivision D - Other matters  

SECTION 921G   APPROVAL OF FOREIGN QUALIFICATIONS  

Application for approval

921G(1)    
A person who has completed a foreign qualification may apply to the Minister in the form approved, in writing, by the Minister for approval of the foreign qualification.

Approval or refusal to approve

921G(2)    
The Minister must either:

(a)    approve the foreign qualification in accordance with subsection (3) ; or

(b)    refuse to approve the foreign qualification.

921G(3)    
The Minister may approve the foreign qualification only if:

(a)    

the Minister is satisfied that the foreign qualification gives the person qualifications equivalent to a degree or qualification approved by the Minister for the purposes of subparagraph 921B(2)(a)(i) ; or

(b)    both of the following apply:

(i) the Minister specifies one or more courses to be completed by the person under subsection (4) of this section;

(ii) the person completes each of those courses.

921G(4)    

The Minister may specify one or more courses for the purposes of paragraph (3)(b) only if the Minister is satisfied that (together with the person ' s foreign qualification) the course or courses will give the person qualifications equivalent to a degree or qualification approved by the Minister for the purposes of subparagraph 921B(2)(a)(i) .

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History

S 921G(4) amended by No 75 of 2023, s 3, Sch 2[13] (effective 21 September 2023).

When approval comes into force

921G(5)    
An approval under paragraph (2)(a) comes into force:

(a)    if the Minister specifies one or more courses to be completed by the person under subsection (4) - when the person has completed all of those courses; or

(b)    otherwise - when it is given.

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S 921G substituted by No 115 of 2021, s 3, Sch 1[48] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921G is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921GA   APPROVAL OF DOMESTIC QUALIFICATIONS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

Application for approval

921GA(1)    
A person who:

(a)    has completed a bachelor or higher degree approved by a determination in force for the purposes of subparagraph 921B(2)(a)(i) (the domestic qualification ); but

(b)    has not completed the domestic qualification in accordance with subparagraph 921B(2)(a)(ii) ;

may apply to the Minister for approval of the domestic qualification.

921GA(2)    
The application must be:

(a)    in writing; and

(b)    in the form approved, in writing, by the Minister.

Approval or refusal

921GA(3)    
The Minister must, by written notice given to the person, either:

(a)    approve the domestic qualification; or

(b)    refuse to approve the domestic qualification.

921GA(4)    
The Minister may approve the domestic qualification under subsection (3) only if the Minister is satisfied that:

(a)    the person has completed the domestic qualification but not in accordance with subparagraph 921B(2)(a)(ii) ; and

(b)    the person nevertheless has qualifications equivalent to the person completing the domestic qualification in accordance with subparagraph 921B(2)(a)(ii) .

When approval comes into force

921GA(5)    
An approval under subsection (3) comes into force when it is given.

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History

S 921GA inserted by No 75 of 2023, s 3, Sch 2[14] (effective 21 September 2023).

CCH Note - modifying legislative instruments: Section 921GA is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921H   MODIFICATIONS OF PART IN RELATION TO CONTINUING PROFESSIONAL DEVELOPMENT  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921H(1)    
The Minister may, by legislative instrument, determine modifications of the operation of a provision in this Part in relation to a period determined by the Minister under:

(a)    paragraph 921B(6)(d) ; or

(b)    paragraph 921BB(1)(e) .

921H(2)    
A determination made under subsection (1) has effect according to its terms, despite any other provision of this Act.

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S 921H substituted by No 115 of 2021, s 3, Sch 1[48] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921H is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

[ CCH Note: There is no section 921I.]

Division 8B - Action against relevant providers  

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CCH Note - modifying legislative instruments: The application of Division 8B is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Division 8B, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Div 8B substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

Subdivision A - Action by Financial Services and Credit Panels  

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CCH Note - modifying legislative instruments: The application of Subdivision A is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision A, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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Subdiv A substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921J  

921J   WHEN A COMPLIANCE SCHEME COVERS A RELEVANT PROVIDER  
(Repealed by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).)

SECTION 921K   POWER OF FINANCIAL SERVICES AND CREDIT PANELS TO TAKE ACTION AGAINST RELEVANT PROVIDERS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921K(1)    
Subject to subsections (2) and (3) , a Financial Services and Credit Panel may make an instrument of a kind specified in subsection 921L(1) in relation to a relevant provider if:

(a)    the relevant provider becomes an insolvent under administration; or

(b)    the relevant provider is convicted of fraud; or

(c)    the panel reasonably believes, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914 , that the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products; or

(d)    the panel reasonably believes that the relevant provider has contravened a financial services law (including a restricted civil penalty provision); or

(e)    the relevant provider has been involved in the contravention of a financial services law (including a restricted civil penalty provision) by another person; or

(f)    the relevant provider has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA relating to a complaint that relates to:

(i) a financial services business; or

(ii) credit activities (within the meaning of the National Consumer Credit Protection Act 2009 ); or

(g)    subsection 920A(1C) (when a person has been an officer of a corporation unable to pay its debts) applies to the relevant provider in relation to 2 or more corporations.

Note 1: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

Note 2: Subsection 921E(3) (relevant providers to comply with the Code of Ethics) is a financial services law.

Note 3: To work out whether a relevant provider has been linked as described in paragraph (f) , see section 910C .

Proposed action notice given in relation to relevant circumstances

921K(2)    
A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances (the relevant circumstances ) mentioned in that subsection unless:

(a)    the panel gave the relevant provider a proposed action notice in relation to a proposal to make the instrument because of the relevant circumstances and either:

(i) no submission or request for a hearing was made within the response period for the notice; or

(ii) a submission or request for a hearing was made within the response period for the notice and the panel has taken into account the submission or held the hearing (as the case may be); or

(b)    all of the following apply:

(i) the panel gave the relevant provider a proposed action notice in relation to a proposal to make a different instrument in relation to the relevant circumstances or to give the relevant provider an infringement notice in relation to the relevant circumstances;

(ii) a submission or request for a hearing was made within the response period for the notice;

(iii) the panel has taken into account the submission or held the hearing (as the case may be).

Infringement notices, warnings and reprimands

921K(3)    
A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances mentioned in that subsection if the panel, or another Financial Services and Credit Panel, has given the relevant provider an infringement notice, or a warning or reprimand, in relation to those circumstances.

When a person contravenes a financial services law

921K(4)    
To avoid doubt, a person contravenes a financial services law if a person fails to comply with a duty imposed under that law, even if the provision imposing the duty is not an offence provision or a civil penalty provision.

Instruments not legislative

921K(5)    
An instrument made under subsection (1) is not a legislative instrument.

Interaction with ASIC Act

921K(6)    
Subsection (2) does not limit section 158 of the ASIC Act (panels to take account of evidence and submissions).

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History

S 921K substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921K is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921L   INSTRUMENTS THAT FINANCIAL SERVICES AND CREDIT PANELS MAY MAKE IN RELATION TO RELEVANT PROVIDERS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921L(1)    
For the purposes of subsection 921K(1) , the following kinds of instrument are specified:

(a)    a written direction that a relevant provider:

(i) undertake specified training; or

(ii) receive specified counselling; or

(iii) receive specified supervision; or

(iv) report specified matters to ASIC;

(b)    

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a written order (a registration suspension order ), in relation to a relevant provider, that suspends all of the relevant provider ' s registrations under section 921ZC for a period (the suspension period ) specified in the order;

(c)    

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a written order (a registration prohibition order ), in relation to a relevant provider, that:

(i) cancels all of the relevant provider ' s registrations under section 921ZC at a time (the cancellation time ) specified in the order; and

(ii) provides that the person who is or was the relevant provider is not to be registered under section 921ZC until after a day (the prohibition end day ) specified in the order.

Note: If a registration prohibition order is in force against a person who is or was a relevant provider:

(a) each registration of the person under section 921ZC will cease to be in force at the cancellation time specified in the order (unless the registration has ceased to be in force at an earlier time) (see sections 921ZD and 921ZE ); and

(b) ASIC must refuse to register the person until after the prohibition end day specified in the order (see subsection 921ZC(3) ).

[ CCH Note: S 921L(1) will be amended by No 115 of 2021, s 3, Sch 1[142], by substituting " the Registrar " for " ASIC " in para (b) of the note (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921L(1) amended by No 101 of 2023, s 3, Sch 1[1] - [ 3] (effective 28 November 2023).

S 921L(1) amended by No 35 of 2022, s 3, Sch 4, Pt 4[21] and [ 22] (effective 10 August 2022).

Effect of paragraph (1)(a) direction

921L(2)    
A relevant provider must comply with a direction in relation to the relevant provider that is in force under paragraph (1)(a) .

Note: This subsection is a civil penalty provision (see section 1317E ).

Effect of registration suspension order

921L(3)    
For the purposes of this Part, if a registration suspension order is in force against a relevant provider, all of the relevant provider ' s registrations under section 921ZC are taken not to be in force during the suspension period specified in the order.

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History

S 921L(3) amended by No 101 of 2023, s 3, Sch 1[4] (effective 28 November 2023).

Suspension period and cancellation time

921L(4)    
The suspension period specified in a registration suspension order that is made in relation to a relevant provider must begin at or after the time a copy of the order is given to the relevant provider.

921L(5)    
The cancellation time specified in a registration prohibition order that is made in relation to a relevant provider must be a time that is at or after a copy of the order is given to the relevant provider.

When instruments come into force

921L(6)    
An instrument of a kind specified in subsection (1) that is made in relation to a relevant provider comes into force when a copy of it is given to the relevant provider in accordance with subsection 921M(1) .

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History

S 921L substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921L is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921M   COPY OF INSTRUMENT TO BE GIVEN TO AFFECTED PERSON ETC.  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921M(1)    

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If, under subsection 921K(1) , a Financial Services and Credit Panel makes an instrument in relation to a person (the affected person ), the panel must:

(a)    

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give a copy of the instrument to the affected person; and

(b)    

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at the same time, give a copy of the instrument to:

(i) ASIC; and

(ii) if the affected person is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products - the licensee; and

(c)    

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at the same time, give the affected person a written notice informing the affected person of their right to make an application under subsection 921N(3) in relation to the instrument.

Note: ASIC must enter details of certain instruments in the Register of Relevant Providers (see paragraph 922Q(2)(uc) ).

[ CCH Note: S 921M(1) will be amended by No 115 of 2021, s 3, Sch 1[143] and [ 144], by inserting para (b)(ia) and repealing the note (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (b)(ia) will read:

(ia) the Registrar; and]

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History

S 921M(1) amended by No 35 of 2022, s 3, Sch 4, Pt 4[24] and [ 25] (effective 10 August 2022).

921M(2)    
A copy of an instrument given to a person under paragraph (1)(a) or (b) must be accompanied by a statement of reasons for the decision to make the instrument.

921M(3)    
A failure to comply with subsection (1) or (2) in relation to an instrument does not affect the validity of the instrument.

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History

S 921M substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921M is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921N   VARIATION OR REVOCATION OF INSTRUMENTS MADE IN RELATION TO RELEVANT PROVIDERS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921N(1)    

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This section applies if an instrument of a kind specified in subsection 921L(1) is in force against a person (the affected person ).

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History

S 921N(1) amended by No 35 of 2022, s 3, Sch 4, Pt 4[27] (effective 10 August 2022).

Variation or revocation at ASIC ' s initiative

921N(2)    
ASIC may request a Financial Services and Credit Panel to make a decision under subsection (5) in relation to the instrument if ASIC is satisfied that there has been a change in any of the circumstances on the basis of which the instrument was made.

Application by affected person for variation or revocation

921N(3)    

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The affected person may apply to ASIC in the approved form for:

(a)    the instrument to be revoked; or

(b)    a specified variation to be made to the instrument.

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History

S 921N(3) amended by No 35 of 2022, s 3, Sch 4, Pt 4[29] (effective 10 August 2022).

921N(4)    

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If the affected person makes an application under subsection (3) , ASIC must decide to:

(a)    request a Financial Services and Credit Panel to make a decision under subsection (5) in relation to the instrument; or

(b)    refuse to make such a request.

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History

S 921N(4) amended by No 35 of 2022, s 3, Sch 4, Pt 4[29] (effective 10 August 2022).

Decisions of Financial Services and Credit Panel about variations or revocations

921N(5)    

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If ASIC makes a request of a Financial Services and Credit Panel under subsection (2) or paragraph (4)(a) , the panel must decide to:

(a)    revoke the instrument; or

(b)    if the affected person made an application under subsection (3) - make the variation of the instrument specified in the application; or

(c)    make a variation of the instrument (even if the affected person made an application under subsection (3) and the application specified another variation); or

(d)    refuse to revoke the instrument; or

(e)    refuse to vary the instrument.

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History

S 921N(5) amended by No 35 of 2022, s 3, Sch 4, Pt 4[29] (effective 10 August 2022).

921N(6)    

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The panel must give written notice of the panel ' s decision to:

(a)    

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if the decision is mentioned in paragraph (5)(a) , (b) or (c) - all of the following:

(i) the affected person;

(ii) ASIC;

(iii) if the affected person is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products - the licensee; or

(b)    otherwise - the affected person.

[ CCH Note: S 921N(6) will be amended by No 115 of 2021, s 3, Sch 1[145], by inserting para (a)(iia) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (a)(iia) will read:

(iia) the Registrar;]

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History

S 921N(6) amended by No 35 of 2022, s 3, Sch 4, Pt 4[29] (effective 10 August 2022).

921N(7)    
A notice given under subsection (6) must be accompanied by a statement of reasons for the decision to which the notice relates.

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History

S 921N substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921N is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision B - Proposed action notices etc.  

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CCH Note - modifying legislative instruments: The application of Subdivision B is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision B, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Subdiv B substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921P   PROPOSED ACTION NOTICE  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921P(1)    
A Financial Services and Credit Panel must give a written notice (a proposed action notice ) to a relevant provider if the panel proposes to:

(a)    make an instrument under subsection 921K(1) in relation to the relevant provider because of circumstances (the relevant circumstances ) mentioned in that subsection; or

(b)    give the relevant provider an infringement notice for the alleged contravention by the relevant provider of a restricted civil penalty provision.

921P(2)    
The proposed action notice must:

(a)    set out details of the action proposed to be taken, including:

(i) for an action mentioned in paragraph (1)(a) - the relevant circumstances; and

(ii) for an action mentioned in paragraph (1)(b) - the alleged contravention and the amount to be stated in the infringement notice for the purposes of paragraph 1317DAP(1)(f) ; and

(b)    invite the relevant provider to do either of the following within the period of 28 days beginning on the day the notice is given (or such longer period as is approved by the panel) (the response period ):

(i) make a submission, in writing, in relation to the action;

(ii) make a request, in writing, that the panel hold a hearing under Division 4 of Part 9 of the ASIC Act in relation to the action; and

(c)    inform the relevant provider that if no submission or request for a hearing is made within the response period, the panel may take the action; and

(d)    

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for an action mentioned in paragraph (1)(a) - inform the relevant provider that if the panel makes an instrument under subsection 921K(1) , ASIC may be required to enter details of the instrument in the Register of Relevant Providers in accordance with paragraph 922Q(2)(uc) .

[ CCH Note: S 921P(2) will be amended by No 115 of 2021, s 3, Sch 1[146], by substituting " the Registrar may be required to enter details of the instrument in the records maintained under section 922A " for " ASIC may be required to enter details of the instrument in the Register of Relevant Providers in accordance with paragraph 922Q(2)(uc) " in para (d) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921P substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921P is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921Q   RECOMMENDATIONS TO ASIC IN RELATION TO RESTRICTED CIVIL PENALTY PROVISIONS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921Q(1)    

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If a Financial Services and Credit Panel reasonably believes that:

(a)    a person has contravened a restricted civil penalty provision; and

(b)    the person was a relevant provider at the time of the alleged contravention;

the panel may, by written notice given to ASIC, recommend that ASIC make an application under subsection 1317J(1) in relation to the alleged contravention.

Note: If ASIC decides to not follow the panel ' s recommendation, ASIC must report on the recommendation and ASIC ' s reasons for not following it (see subparagraph 136(1)(da)(iv) of the ASIC Act).

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History

S 921Q(1) amended by No 35 of 2022, s 3, Sch 4, Pt 4[30] (effective 10 August 2022).

921Q(2)    

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Subsection (1) applies whether or not the panel also makes an instrument under subsection 921K(1) in relation to the alleged contravention by the person.

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History

S 921Q(2) amended by No 35 of 2022, s 3, Sch 4[31] (effective 10 August 2022).

921Q(3)    
Each of the following is a restricted civil penalty provision :

(a)    subsection 921BA(5) ;

(b)    subsection 921BB(4) ;

(c)    subsection 921E(3) ;

(d)    subsection 921F(8) ;

(e)    section 921Y .

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History

S 921Q substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921Q is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921R   NOTICES TO TAX PRACTITIONERS BOARD ABOUT QUALIFIED TAX RELEVANT PROVIDERS WHO ARE REGISTERED TAX AGENTS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921R(1)    
ASIC must give a written notice to the Tax Practitioners Board if an action specified in subsection (2) is taken against a qualified tax relevant provider who is a registered tax agent.

921R(2)    
The following actions are specified:

(a)    a Financial Services and Credit Panel making an instrument under subsection 921K(1) in relation to the qualified tax relevant provider;

(b)    ASIC giving the qualified tax relevant provider a warning or reprimand under subsection 921S(1) ;

(c)    a Financial Services and Credit Panel giving the qualified tax relevant provider a warning or reprimand under subsection 921T(1) ;

(d)    a Financial Services and Credit Panel giving the qualified tax relevant provider an infringement notice for the alleged contravention by the qualified tax relevant provider of a restricted civil penalty provision;

(e)    ASIC making an application under subsection 1317J(1) in relation to the alleged contravention by the qualified tax relevant provider of a restricted civil penalty provision;

(f)    a Financial Services and Credit Panel accepting an undertaking by the qualified tax relevant provider under subsection 171E(1) of the ASIC Act.

921R(3)    
A notice under subsection (1) must include:

(a)    details of the action; and

(b)    if the action is a Financial Services and Credit Panel making an instrument under subsection 921K(1) - the panel ' s reasons for making the instrument; and

(c)    if the action is ASIC giving the qualified tax relevant provider a warning or reprimand - ASIC ' s reasons for giving the warning or reprimand; and

(d)    if the action is a Financial Services and Credit Panel giving the qualified tax relevant provider a warning or reprimand - the panel ' s reasons for giving the warning or reprimand.

Notice about variation etc. of certain instruments

921R(4)    
ASIC must give a written notice to the Tax Practitioners Board if:

(a)    ASIC has given a notice to the Tax Practitioners Board under subsection (1) ; and

(b)    an instrument mentioned in that notice is subsequently varied, revoked or withdrawn.

921R(5)    
A notice under subsection (4) must include details of the variation, revocation or withdrawal, as the case may be.

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History

S 921R substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921R is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision C - Warnings and reprimands  

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CCH Note - modifying legislative instruments: The application of Subdivision C is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision C, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Subdiv C substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921S   WARNINGS AND REPRIMANDS BY ASIC  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921S(1)    
ASIC must give a relevant provider a written warning or reprimand if:

(a)    ASIC reasonably believes that one or more of the following circumstances exist or have occurred in relation to the relevant provider:

(i) the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914 ;

(ii) the relevant provider has contravened a financial services law (including a restricted civil penalty provision);

(iii) a circumstance mentioned in any of paragraphs 921K(1)(a) , (b) , (e) , (f) or (g) (power of Financial Services and Credit Panels to take action against relevant providers); and

(b)    ASIC has not convened, and does not propose to convene, a Financial Services and Credit Panel under subsection 139(1) of the ASIC Act to perform functions or exercise powers under the corporations legislation in relation to that circumstance or those circumstances; and

(c)    ASIC has not exercised, and does not propose to exercise, any of its powers under the corporations legislation (other than this section) against the relevant provider in relation to that circumstance or those circumstances.

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

921S(2)    
If the relevant provider is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products, ASIC must give a copy of the warning or reprimand to the licensee.

921S(3)    
The warning or reprimand, and any copy of the warning or reprimand given to a financial services licensee under subsection (2) , must be accompanied by a statement of reasons for the decision to give the warning or reprimand.

921S(4)    
A warning or reprimand given under subsection (1) is not a legislative instrument.

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History

S 921S substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921S is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921T   WARNINGS AND REPRIMANDS BY FINANCIAL SERVICES AND CREDIT PANELS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921T(1)    
A Financial Services and Credit Panel may give a relevant provider a written warning or reprimand if the panel reasonably believes that:

(a)    the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914 ; or

(b)    the relevant provider has contravened a financial services law (including a restricted civil penalty provision); or

(c)    a circumstance mentioned in any of paragraphs 921K(1)(a) , (b) , (e) , (f) or (g) (power of Financial Services and Credit Panels to take action against relevant providers) exists or has occurred in relation to the relevant provider.

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

921T(2)    
If a Financial Services and Credit Panel gives a relevant provider a warning or reprimand under subsection (1) , the panel must, at the same time, give a copy of the warning or reprimand to:

(a)    ASIC; and

(b)    if the relevant provider is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products - the licensee.

921T(3)    
The warning or reprimand, and each copy of the warning or reprimand given to a person under subsection (2) , must be accompanied by a statement of reasons for the decision to give the warning or reprimand.

921T(4)    
A warning or reprimand given under subsection (1) is not a legislative instrument.

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History

S 921T substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921T is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision D - Fit and proper person test  

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CCH Note - modifying legislative instruments: The application of Subdivision D is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision D, please consult the legislative instrumentsor class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Subdiv D substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921U  

921U   FIT AND PROPER PERSON TEST FOR RELEVANT PROVIDERS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

The following matters are specified in relation to a relevant provider and a Financial Services and Credit Panel:

(a)    whether any of the following of the relevant provider has ever been suspended or cancelled:

(i) an Australian financial services licence;

(ii) an Australian credit licence, or a registration under the Transitional Act, within the meaning of the National Consumer Credit Protection Act 2009 ;

(b)    whether any of the following has ever been made against the relevant provider:

(i) a banning order, or a disqualification order under Subdivision B of Division 8 of this Part;

(ii) a banning order, or a disqualification order, under Part 2-4 of the National Consumer Credit Protection Act 2009 ;

(c)    whether the relevant provider has ever been disqualified under this Act, or any other law of the Commonwealth or of a State or Territory, from managing corporations;

(d)    whether the relevant provider has ever been banned from engaging in a credit activity (within the meaning of the National Consumer Credit Protection Act 2009 ) under a law of a State or Territory;

(e)    whether the relevant provider has ever been linked to a refusal or failure to give effect to a determination made by AFCA;

(f)    whether the relevant provider has ever been an insolvent under administration;

(g)    whether, in the last 10 years, the relevant provider has been convicted of an offence;

(h)    any relevant information given to ASIC, or an authority of a State or Territory, in relation to the relevant provider;

(i)    whether, in the last 10 years, a Financial Services and Credit Panel has made an instrument under subsection 921K(1) in relation to the relevant provider;

(j)    whether, in the last 10 years, a Financial Services and Credit Panel has given the relevant provider an infringement notice (unless the infringement notice was withdrawn);

(k)    any other matter prescribed by the regulations;

(l)    any other matter the panel considers relevant.

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History

S 921U substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921U is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision E - Review of decisions made under this Division etc.  

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CCH Note - modifying legislative instruments: The application of Subdivision E is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision E, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Subdiv E heading inserted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921V   REVIEW OF DECISIONS ETC.  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

Review of decisions

921V(1)    
A person may apply to the Tribunal for review of any of the following:

(a)    a decision by a Financial Services and Credit Panel to make an instrument under subsection 921K(1) ;

(b)    a decision by a Financial Services and Credit Panel that is covered by paragraph 921N(5)(c) , (d) or (e) ;

(c)    a decision by a Financial Services and Credit Panel to give a relevant provider a warning or reprimand under subsection 921T(1) .

Notice of reviewable decisions and review rights

921V(2)    
Section 1317D applies in relation to a decision by a Financial Services and Credit Panel that is covered by subsection (1) of this section as if:

(a)    the panel were a decision maker for the purposes of section 1317D ; and

(b)    the decision were a decision to which section 1317B applied.

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History

S 921V substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921V is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision F - Electronic communication  

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CCH Note - modifying legislative instruments: The application of Subdivision F is modified by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision F, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Subdiv F heading inserted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921W   ELECTRONIC COMMUNICATION OF DOCUMENTS GIVEN BY FINANCIAL SERVICES AND CREDIT PANELS ETC.  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921W(1)    
This section applies to any document that is required or permitted to be given to a person:

(a)    by a Financial Services and Credit Panel, or the Chair of a Financial Services and Credit Panel, under a provision of this Act; or

(b)    by ASIC under any of the following:

(i) Division 8A of this Part (Professional standards for relevant providers etc.);

(ii) this Division;

(iii) Division 8C of this Part (Registration of relevant providers);

(iv) Division 3 of Part 9.4AB (Infringement notices given by Financial Services and Credit Panels).

921W(2)    
The document may be given to the recipient by means of an electronic communication.

921W(3)    
The document may be given by giving the recipient (by means of an electronic communication or otherwise) sufficient information to allow the recipient to access the document electronically.

921W(4)    
However, an electronic communication or electronic access may only be used if, at the time the electronic communication is used or information about the electronic access is given:

(a)    it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference; and

(b)    there is a nominated electronic address in relation to the recipient.

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History

S 921W substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921W is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921X   ELECTRONIC COMMUNICATION OF DOCUMENTS GIVEN TO FINANCIAL SERVICES AND CREDIT PANELS ETC.  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921X(1)    
This section applies to any document that is required or permitted to be given to:

(a)    a Financial Services and Credit Panel, or the Chair of a Financial Services and Credit Panel, under a provision of this Act; or

(b)    ASIC under any of the following:

(i) Division 8A of this Part (Professional standards for relevant providers etc.);

(ii) this Division;

(iii) Division 8C of this Part (Registration of relevant providers);

(iv) Division 3 of Part 9.4AB (Infringement notices given by Financial Services and Credit Panels).

Giving a document to a Financial Services and Credit Panel etc.

921X(2)    
The document may be given to the recipient by means of an electronic communication.

Signing the document

921X(3)    
If the document is required to be signed by the person under a provision mentioned in subsection (1) , that requirement is taken to have been met in relation to the electronic communication of the document if:

(a)    the person receives a copy or counterpart of the document:

(i) that is in a physical form; or

(ii) by means of an electronic communication; and

(b)    the copy or counterpart includes the entire contents of the document; and

(c)    the person indicates, by means of an electronic communication, that the person has signed the document; and

(d)    a method is used to identify the person and to indicate the person ' s intention in respect of the information communicated in the document; and

(e)    the method used was either:

(i) as reliable as appropriate for the purpose for which the document was generated or communicated, in light of all the circumstances, including any relevant agreement; or

(ii) proven in fact to have fulfilled the functions described in paragraph (d) , by itself or together with further evidence.

921X(4)    
For the purposes of paragraph (3)(b) , a copy or counterpart of a document need not include:

(a)    the signature of another person signing the document; or

(b)    any material included in the document to identify another person signing the document or to indicate another person ' s intention in respect of the contents of the document.

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History

S 921X substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921X is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Division 8C - Registration of relevant providers  

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CCH Note - modifying legislative instruments: The application of Division 8C is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Division 8C, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

[ CCH Note: Div 8C will be substituted by No 115 of 2021, s 3, Sch 2[1], (effective 1 July 2026 or a day or days to be fixed by Proclamation). Div 8C will read:

Division 8C - Registration for the purpose of providing personal advice

SECTION 921Y UNREGISTERED RELEVANT PROVIDERS NOT TO PROVIDE PERSONAL ADVICE  
921Y
A relevant provider must not provide personal advice to retail clientsin relation to relevant financial products unless a registration of the relevant provider under subsection 921ZC(1) is in force.

Note 1: This section is a restricted civil penalty provision (see sections 921Q and 1317E ).

Note 2: See also Division 2 (requirement to be licensed or authorised) and Subdivision AA of Division 8A (limitations on authorisation to provide personal advice).

SECTION 921ZA APPLICATION FOR REGISTRATION  

921ZA(1)
A person may apply to the Registrar to be registered under subsection 921ZC(1) .

921ZA(2)
The application must:

(a) meet any requirements of the data standards; and

(b) include the following declarations by the person:

(i) that the person is a fit and proper person to provide personal advice to retail clients in relation to relevant financial products;

(ii) if subsection 921BA(1) applies to the person - that the person has met the education and training standard in subsection 921B(2) ;

(iii) if subsection 921BA(2) applies to the person - that the person has met the education and training standard in subsection 921B(3) ;

(iv) if subsection 921BA(3) applies to the person - that the person has met the education and training standard in subsection 921B(4) ;

(v) if the person provides, or is to provide, a tax (financial) advice service and a determination is in force under subsection 921BB(1) - that the person meets each requirement set out in the determination that is of a kind mentioned in any of paragraphs (a) to (d) of that subsection.

Note: A person may commit an offence or contravene a civil penalty provision if the person gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code ).

921ZA(3)
Subject to Part VIIC of the Crimes Act 1914 , the person must have regard to the matters specified in section 921U (other than the matters specified in paragraphs (h) and (l) of that section) for the purposes of making a declaration mentioned in subparagraph (2)(b)(i) of this section.

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

SECTION 921ZC REGISTRATION  

921ZC(1)
Subject to subsections (2) and (3) , if:

(a) a person makes an application in accordance with section 921ZA or 921ZD ; and

(b) the Registrar is satisfied that the person ' s identity has been established;

the Registrar must register the person by recording in the records maintained under section 922A that the person is registered under this subsection.

Refusal to register person

921ZC(2)
The Registrar must refuse to register the person if:

(a) a banning order is in force against the person that has the effect that the person is prohibited from providing personal advice to retail clients in relation to relevant financial products; or

(b) a disqualification order under Division 8 is in force against the person that has the effect of disqualifying the person from providing personal advice to retail clients in relation to relevant financial products.

921ZC(3)
If a registration prohibition order is in force against the person, the Registrar must refuse to register the person until after the prohibition end day specified in the order.

Notice of new registration

921ZC(4)
If the person made an application in accordance with section 921ZA and the Registrar registers the person under subsection (1) , the Registrar must give the person a written notice of the registration as soon as practicable after doing so.

Notice of refusal to register person

921ZC(5)
If the Registrar refuses to register the person, the Registrar must, within 5 business days after the refusal, give the person a written notice of the refusal.

921ZC(6)
The notice must specify which of the following provisions apply in relation to the person:

(a) paragraph (2)(a) or (b) ;

(b) subsection (3) .

SECTION 921ZD APPLICATION FOR REGISTRATION RENEWAL  

921ZD(1)
If a person is registered under subsection 921ZC(1) , and the registration is in force, the person may apply to the Registrar to renew (or further renew) that registration.

921ZD(2)
Subsections 921ZA(2) and (3) apply in relation to an application under subsection (1) of this section in the same manner as they apply in relation to an application under subsection 921ZA(1) .

SECTION 921ZE PERIOD OF REGISTRATION  

921ZE(1)
If a person makes an application in accordance with section 921ZA , and the Registrar registers the person under subsection 921ZC(1) , the registration:

(a) comes into force when the Registrar records in the records maintained under section 922A that the person is registered under subsection 921ZC(1) ; and

(b) remains in force until the earliest of the following:

(i) the cancellation time specified in a registration prohibition order in force against the person;

(ii) the time when a banning order against the person takes effect;

(iii) the end of the financial year in which the person was registered.

921ZE(2)
If a person makes an application under subsection 921ZD(1) , and the Registrar registers the person under subsection 921ZC(1) , the registration:

(a) comes into force immediately after the end of the financial year in which the application is made; and

(b) remains in force until the earliest of the following:

(i) the cancellation time specified in a registration prohibition order in force against the person;

(ii) the time when a banning order against the person takes effect;

(iii) the end of the next financial year.]

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History

Div 8C substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

Subdivision A - Requirement for relevant providers to be registered  

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CCH Note - modifying legislative instruments: The application of Subdivision A is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision A, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Subdiv A substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921Y  

921Y   UNREGISTERED RELEVANT PROVIDERS NOT TO PROVIDE PERSONAL ADVICE  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

A relevant provider must not provide personal advice to retail clients in relation to relevant financial products unless a registration of the relevant provider under subsection 921ZC(1) or (1A) is in force.

Note: This section is a restricted civil penalty provision (see sections 921Q and 1317E ).

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History

S 921Y amended by No 101 of 2023, s 3, Sch 1[5] (effective 28 November 2023).

S 921Y substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921Y is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921Z   FINANCIAL SERVICES LICENSEES NOT TO CONTINUE TO AUTHORISE UNREGISTERED RELEVANT PROVIDERS TO PROVIDE PERSONAL ADVICE  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

Authorised representatives

921Z(1)    
A financial services licensee contravenes this subsection if:

(a)    the licensee has given a relevant provider a written notice under subsection 916A(1) authorising the relevant provider to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products; and

(b)    the relevant provider provides such advice; and

(c)    at the time when the relevant provider does so:

(i)the licensee has not revoked the authorisation under subsection 916A(4) ; and

(ii) no registration of the relevant provider under subsection 921ZC(1) or (1A) is in force.

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History

S 921Z(1) amended by No 101 of 2023, s 3, Sch 1[6] (effective 28 November 2023).

Employees and directors

921Z(2)    
A financial services licensee contravenes this subsection if:

(a)    the licensee authorises a relevant provider who is an employee or director of the licensee, or of a related body corporate of the licensee, to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products; and

(b)    the relevant provider provides such advice; and

(c)    at the time when the relevant provider does so:

(i) the licensee has not ceased to authorise the relevant provider as described in paragraph (a) ; and

(ii) no registration of the relevant provider under subsection 921ZC(1) or (1A) is in force.

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S 921Z(2) amended by No 101 of 2023, s 3, Sch 1[7] (effective 28 November 2023).

Strict liability offence

921Z(3)    
A person commits an offence of strict liability if the person contravenes subsection (1) or (2) .

Civil liability

921Z(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 ).

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History

S 921Z substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921Z is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirementsfor Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision B - Applications for registration  

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CCH Note - modifying legislative instruments: The application of Subdivision B is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision B, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Subdiv B substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921ZA   APPLICATION FOR REGISTRATION - RELEVANT PROVIDERS WHO ARE FINANCIAL SERVICES LICENSEES APPLYING TO BE REGISTERED  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921ZA(1)    

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A relevant provider who is a financial services licensee may apply to ASIC to be registered under subsection 921ZC(1) .

Note: A notice must be lodged with ASIC under section 922D if a person becomes a relevant provider.

[ CCH Note: S 921ZA(1) will be amended by No 115 of 2021, s 3, Sch 1[147] and [ 148], by substituting " the Registrar " for " ASIC " and in the note (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

921ZA(2)    
The application must:

(a)    

View history reference

be in the approved form; and

(b)    include the following written declarations by the relevant provider:

(i) that the relevant provider is a fit and proper person to provide personal advice to retail clients in relation to relevant financial products;

(ii) if subsection 921BA(1) applies to the relevant provider - that the relevant provider has met the education and training standard in subsection 921B(2) ;

(iii) if subsection 921BA(2) applies to the relevant provider - that the relevant provider has met the education and training standard in subsection 921B(3) ;

(iv) if subsection 921BA(3) applies to the relevant provider - that the relevant provider has met the education and training standard in subsection 921B(4) ;

(v) if the relevant provider provides, or is to provide, a tax (financial) advice service - that the relevant provider is a qualified tax relevant provider.

Note: A person may commit an offence or contravene a civil penalty provision if the person gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code ).

[ CCH Note: S 921ZA(2) will be amended by No 115 of 2021, s 3, Sch 1[149], by substituting para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (a) will read:

(a) meet any requirements of the data standards; and]

921ZA(3)    
Subject to Part VIIC of the Crimes Act 1914 , the relevant provider must have regard to the matters specified in section 921U (other than the matters specified in paragraphs (h) and (l) of that section) for the purposes of making a declaration mentioned in subparagraph (2)(b)(i) of this section.

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

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History

S 921ZA substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921ZA is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921ZB   APPLICATION FOR REGISTRATION - FINANCIAL SERVICES LICENSEES APPLYING TO REGISTER RELEVANT PROVIDERS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921ZB(1)    

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A financial services licensee may apply to ASIC to register a relevant provider under subsection 921ZC(1A) .

Note 1: A notice must be lodged with ASIC under section 922D if a person becomes a relevant provider.

Note 2: An application cannot be made under this subsection in relation to a provisional relevant provider (see subparagraph (2)(b)(v) of this section).

[ CCH Note: S 921ZB(1) will be amended by No 115 of 2021, s 3, Sch 1[150] and [ 151], by substituting " the Registrar " for " ASIC " and in note 1, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921ZB(1) amended by No 101 of 2023, s 3, Sch 1[10] (effective 28 November 2023).

921ZB(2)    
The application must:

(a)    

View history reference

be in the approved form; and

(b)    include the following:

(i) a written declaration by the licensee that the relevant provider has given the licensee a declaration that the relevant provider is a fit and proper person to provide personal advice to retail clients in relation to relevant financial products;

(ii) a written declaration by the licensee as to whether the licensee is aware of any reason why the relevant provider might not be a fit and proper person to provide personal advice to retail clients in relation to relevant financial products;

(iii) if subsection 921BA(1) applies to the relevant provider - a written declaration by the licensee that the relevant provider has met the education and training standard in subsection 921B(2) ;

(iv) if subsection 921BA(2) applies to the relevant provider - a written declaration by the licensee that the relevant provider has met the education and training standard in subsection 921B(3) ;

(v) if subsection 921BA(3) applies to the relevant provider - a written declaration by the licensee that the relevant provider has met the education and training standard in subsection 921B(4) ;

(vi) if the relevant provider provides, or is to provide, a tax (financial) advice service - a written declaration by the licensee that the relevant provider is a qualified tax relevant provider.

Note: A person may commit an offence or contravene a civil penalty provision if the person gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code ).

[ CCH Note: S 921ZB(2) will be amended by No 115 of 2021, s 3, Sch 1[152], by substituting para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (a) will read:

(a) meet any requirements of the data standards; and]

921ZB(3)    
Subject to Part VIIC of the Crimes Act 1914 , the relevant provider and the licensee must have regard to the matters specified in section 921U (other than the matters specified in paragraphs (h) and (l) of that section) for the purposes of making a declaration mentioned in subparagraph (2)(b)(i) or (ii) of this section.

Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

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History

S 921ZB substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921ZB is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision C - Registration and period of registration  

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CCH Note - modifying legislative instruments: The application of Subdivision C is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision C, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

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History

Subdiv C substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

SECTION 921ZC   REGISTRATION OF RELEVANT PROVIDERS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

Registration - relevant providers who are financial services licensees applying to be registered

921ZC(1)    

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If an application for registration is made in accordance with section 921ZA by a relevant provider who is a financial services licensee, ASIC must register the relevant provider under this subsection by recording in the Register of Relevant Providers that the relevant provider is registered.

[ CCH Note: S 921ZC(1) will be amended by No 115 of 2021, s 3, Sch 1[153], by substituting " the Registrar must register the relevant provider by recording in the records maintained under section 922A that the relevant provider is registered under this subsection " for " ASIC must register the relevant provider by recording in the Register of Relevant Providers that the relevant provider is registered under this subsection " (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921ZC(1) substituted by No 101 of 2023, s 3, Sch 1[11] (effective 28 November 2023).

Registration - financial services licensees applying to register relevant providers

921ZC(1A)    
If an application is made in accordance with section 921ZB by a financial services licensee to register a relevant provider, ASIC must register the relevant provider under this subsection by recording in the Register of Relevant Providers that the relevant provider is registered in relationto the licensee.

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History

S 921ZC(1A) inserted by No 101 of 2023, s 3, Sch 1[11] (effective 28 November 2023).

921ZC(1B)    
To avoid doubt, a relevant provider is able to be registered under subsection (1A) multiple times in relation to different financial services licensees.

Note: The relevant provider may provide personal advice on behalf of multiple licensees, so long as the relevant provider is registered in relation to at least one of them.

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History

S 921ZC(1B) inserted by No 101 of 2023, s 3, Sch 1[11] (effective 28 November 2023).

Refusal to register relevant provider

921ZC(2)    

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Despite subsection (1) or (1A) , ASIC must refuse to register a relevant provider under that subsection if:

(a)    a banning order is in force against the relevant provider that has the effect that the relevant provider is prohibited from providing personal advice to retail clients in relation to relevant financial products; or

(b)    a disqualification order under Division 8 is in force against the relevant provider that has the effect of disqualifying the relevant provider from providing personal advice to retail clients in relation to relevant financial products.

[ CCH Note: S 921ZC(2) will be amended by No 115 of 2021, s 3, Sch 1[154], by substituting " The Registrar " for " ASIC " (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921ZC(2) amended by No 101 of 2023, s 3, Sch 1[12] (effective 28 November 2023).

921ZC(3)    

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Despite subsection (1) or (1A) , if a registration prohibition order is in force against a relevant provider, ASIC must refuse to register the relevant provider under that subsection until after the prohibition end day specified in the order.

[ CCH Note: S 921ZC(3) will be amended by No 115 of 2021, s 3, Sch 1[155], by substituting " the Registrar " for " ASIC " (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921ZC(3) amended by No 101 of 2023, s 3, Sch 1[13] (effective 28 November 2023).

Notice of registration

921ZC(4)    

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If:

(a)    an application is made in accordance with section 921ZA by a relevant provider; and

(b)    ASIC registers the relevant provider under subsection (1) of this section;

ASIC must, as soon as practicable after recording in the Register of Relevant Providers that the relevant provider is registered, give a written notice of the registration to the relevant provider.

[ CCH Note: S 921ZC(4) will be substituted by No 115 of 2021, s 3, Sch 1[156] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 921ZC(4) will read:

Notice of registration

921ZC(4)
If:

(a) the application is made in accordance with section 921ZA ; and

(b) the Registrar registers the relevant provider under subsection (1) ;

the Registrar must, as soon as practicable after recording in the records maintained under section 922A that the relevant provider is registered under subsection (1) of this section, give a written notice of the registration to the relevant provider.]

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History

S 921ZC(4) substituted by No 101 of 2023, s 3, Sch 1[14] (effective 28 November 2023).

921ZC(5)    

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If:

(a)    an application is made in accordance with section 921ZB to register a relevant provider; and

(b)    ASIC registers the relevant provider under subsection (1A) of this section;

ASIC must, as soon as practicable after recording in the Register of Relevant Providers that the relevant provider is registered in relation to the applicant, give a written notice of the registration to:

(c)    the relevant provider; and

(d)    the applicant.

[ CCH Note: S 921ZC(5) will be substituted by No 115 of 2021, s 3, Sch 1[156] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 921ZC(5) will read:

921ZC(5)
If:

(a) the application is made in accordance with section 921ZB ; and

(b) the Registrar registers the relevant provider under subsection (1) of this section;

the Registrar must, as soon as practicable after recording in the records maintained under section 922A that the relevant provider is registered under subsection (1) of this section, give a written notice of the registration to:

(c) the relevant provider; and

(d) the applicant.]

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History

S 921ZC(5) substituted by No 101 of 2023, s 3, Sch 1[15] (effective 28 November 2023).

Notice of refusal to register relevant provider

921ZC(6)    

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If ASIC refuses to register a relevant provider under subsection (1) or (1A) , ASIC must, within 5 business days after the refusal, give a written notice of the refusal to:

(a)    the relevant provider; and

(b)    if the refusal relates to an application made in accordance with section 921ZB - the applicant.

[ CCH Note: S 921ZC(6) will be amended by No 115 of 2021, s 3, Sch 1[157], by substituting " the Registrar " for " ASIC " wherever occurring (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921ZC(6) substituted by No 101 of 2023, s 3, Sch 1[16] (effective 28 November 2023).

921ZC(7)    
The notice must specify which of the following provisions apply in relation to the relevant provider:

(a)    paragraph (2)(a) or (b) ;

(b)    subsection (3) .

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History

S 921ZC substituted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921ZC is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921ZD  

921ZD   PERIOD OF REGISTRATION - RELEVANT PROVIDERS WHO ARE FINANCIAL SERVICES LICENSEES  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

If a relevant provider who is a financial services licensee makes an application in accordance with section 921ZA , and ASIC registers the relevant provider under subsection 921ZC(1) , the registration:

(a)    

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comes into force when ASIC records in the Register of Relevant Providers that the relevant provider is registered; and

(b)    remains in force until the earliest of the following:

(i) the cancellation time specified in a registration prohibition order in force against the relevant provider;

(ii) the time when a banning order against the relevant provider takes effect;

(iii) the relevant provider ' s Australian financial services licence ceases to be in force.

[ CCH Note: S 921ZD will be amended by No 115 of 2021, s 3, Sch 1[158] and [ 159], by substituting " the Registrar registers " for " ASIC registers " and " the Registrar records in the records maintained under section 922A " . for " ASIC records in the Register of Relevant Providers " in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921ZD amended by No 101 of 2023, s 3, Sch 1[17] (effective 28 November 2023).

S 921ZD inserted by No 115 of 2021, s 3, Sch 1[49] (effective 1 January 2022).

CCH Note - modifying legislative instruments: Section 921ZD is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921ZE  

921ZE   PERIOD OF REGISTRATION - RELEVANT PROVIDERS WHO ARE REGISTERED IN RELATION TO FINANCIAL SERVICES LICENSEES  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

If a financial services licensee makes an application in accordance with section 921ZB in relation to a relevant provider, and ASIC registers the relevant provider under subsection 921ZC(1A) , the registration of the relevant provider in relation to the licensee:

(a)    

View history reference

comes into force when ASIC records in the Register of Relevant Providers that the relevant provider is registered in relation to the licensee; and

(b)    remains in force until the earliest of the following:

(i) the cancellation time specified in any registration prohibition order in force against the relevant provider;

(ii) the time when any banning order against the relevant provider takes effect;

(iii) the licensee ceases to authorise the relevant provider to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products.

Note 1: A notice must be lodged under section 922H when there is a change in a matter for a relevant provider.

Note 2: For relevant providers with more than one registration, all registrations cease to be in force under subparagraph (b)(i) or (ii) . For subparagraph (b)(iii) , only the registration relating to the licensee referred to in that subparagraph ceases.

[ CCH Note: S 921ZE will be amended by No 115 of 2021, s 3, Sch 1[160] and [ 161], by substituting " the Registrar registers " . for " ASIC registers " and " the Registrar records in the records maintained under section 922A " for " ASIC records in the Register of Relevant Providers " in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 921ZE substituted by No 101 of 2023, s 3, Sch 1[18] (effective 28 November 2023).

CCH Note - modifying legislative instruments: Section 921ZE is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 921ZF   ASSISTED DECISION MAKING  

CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

921ZF(1)    
ASIC may arrange for the use, under ASIC ' s control, of processes to assist decision making (such as computer applications and systems) for any purposes for which ASIC may make decisions in the performance or exercise of ASIC ' s functions or powers under this Division.

921ZF(2)    
A decision the making of which is assisted by the operation of such a process under an arrangement made under subsection (1) is taken to be a decision made by ASIC.

921ZF(3)    
ASIC may substitute a decision for a decision (the initial decision ) the making of which is assisted by the operation of such a process under an arrangement under subsection (1) if ASIC is satisfied that the initial decision is incorrect.

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History

S 921ZF inserted by No 101 of 2023, s 3, Sch 1[25] (effective 28 November 2023).

CCH Note - modifying legislative instruments: Section 921ZF is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Division 9 - Registers relating to financial services  

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CCH Note - modifying legislative instruments: The application of Division 9 is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; the ASIC Corporations (Investor Directed Portfolio Services) Instrument 2023/669; and the ASIC Corporations and Credit (Breach Reporting - Reportable Situations) Instrument 2021/716 (as amended by the ASIC Corporations and Credit (Amendment) Instrument 2023/589).

For legislative instruments or class orders before 1 January 2022 that affect the application of Division 9, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

[ CCH Note: Div 9 heading will be amended by No 69 of 2020, s 3, Sch 1[1149], by substituting " Records " for " Registers " , (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

Subdivision A - Registers generally  

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CCH Note - modifying legislative instruments: The application of Subdivision A is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision A, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

[ CCH Note: Subdiv A will be substituted by No 69 of 2020, s 3, Sch 1[1150] (effective 1 July 2026 or a day or days to be fixed by Proclamation). Subdiv A will read:

Subdivision A - Records generally

SECTION 922A RECORDS RELATING TO FINANCIAL SERVICES  

922A(1)
The Registrar must maintain records relating to financial services.

Note: The data standards may deal with how the Registrar is to maintain the records.

922A(2)
The regulations may prescribe the fees that a person must pay to the Registrar in relation to access to those records.

Note: For access to these records, see the disclosure framework.]

SECTION 922A   REGISTERS RELATING TO FINANCIAL SERVICES  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922A(1)    
ASIC must establish and maintain one or more registers relating to financial services.

922A(2)    
The regulations may prescribe the way in which the register or registers must be established or maintained, including the details that ASIC must enter in the register or registers in respect of the following persons or bodies:

(a)    financial services licensees;

(b)    authorised representatives of financial services licensees;

(c)    persons against whom a banning order or disqualification order under Division 8 is made;

[ CCH Note: There is no paragraph 922A(2)(d).]

(e)    any other persons or bodies that are prescribed by regulations made for the purposes of this paragraph.

Note: The Register of Relevant Providers is maintained under Subdivision C of this Division.

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History

S 922A(2) amended by No 7 of 2017, s 3, Sch 1[14].

S 922A inserted by No 122 of 2001, s 3, Sch 1, Pt 1 [ 1].

CCH Note - modifying legislative instruments: Section 922A is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648; and the ASIC Corporations (Investor Directed Portfolio Services Provided Through a Registered Managed Investment Scheme) Instrument 2023/668.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922B  

922B   FEES FOR SEARCHING REGISTERS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

The regulations may prescribe the fees that a person must pay to ASIC to do the things mentioned in section 1274A in relation to a register mentioned in section 922A or the Register of Relevant Providers.

Note: Section 1274A provides that ASIC may permit a person to search certain registers kept by ASIC for prescribed information.

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History

S 922B substituted by No 7 of 2017, s 3, Sch 1[15].

CCH Note - modifying legislative instruments: Section 922B is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision B - Notice requirements relating to the Register of Relevant Providers  

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CCH Note - modifying legislative instruments: The application of Subdivision B is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision B, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

[ CCH Note 1: Subdiv B heading will be amended by No 69 of 2020, s 3, Sch 1[1151], by substituting " relevant providers " for " the Register of Relevant Providers " , (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

[ CCH Note 2: Subdiv B heading will be amended by No 115 of 2021, s 3, Sch 2[2], by inserting " etc. " at the end, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

Subdiv B inserted by No 7 of 2017, s 3, Sch 1[16].

SECTION 922D   OBLIGATION TO NOTIFY ASIC ABOUT A PERSON WHO BECOMES A RELEVANT PROVIDER  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

Notice to include details about relevant provider

922D(1)    
A notice must be lodged under this section, in accordance with section 922L , if a person becomes a relevant provider.

Note: A financial services licensee required to lodge a notice under this section may obtain information from a relevant provider under section 922N .

Content of notice

922D(2)    
The notice must include:

(a)    for a relevant provider who is a financial services licensee - the information in section 922E ; or

(b)    for a relevant provider who is not a financial services licensee - the information in section 922F .

[ CCH Note: S 922D will be substituted by No 69 of 2020, s 3, Sch 1[1152] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 922D will read:

SECTION 922D OBLIGATION TO NOTIFY THE REGISTRAR ABOUT A PERSON WHO BECOMES A RELEVANT PROVIDER  

922D(1)
A notice must be lodged under this section with the Registrar if a person becomes a relevant provider.

Note: A financial services licensee required to lodge a notice under this section may obtain information from a relevant provider under section 922N .

922D(2)
The notice must meet any requirements of the data standards.]

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History

S 922D inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922D is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922E   INFORMATION ABOUT A RELEVANT PROVIDER WHO IS A FINANCIAL SERVICES LICENSEE  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922E(1)    
For the purposes of paragraph 922D(2)(a) , the notice must include the following:

(a)    the relevant provider ' s name;

(b)    the address of the relevant provider ' s principal place of business;

(c)    the licence number given to the relevant provider under subsection 913C(1) ;

(d)    the year in which the relevant provider first provided personal advice to retail clients in relation to relevant financial products in accordance with the law (including the law of a State or Territory);

(e)    if applicable, the ABN of the relevant provider;

(f)    information about both of the following:

(i) the relevant financial products in relation to which the relevant provider is authorised to provide personal advice to retail clients;

(ii) whether the relevant provider is authorised to provide class of product advice in relation to some or all of those products;

(g)    the recent advising history of the relevant provider for the 5 years ending immediately before the time the notice is lodged;

(h)    

View history reference

information about the educational qualifications of, and any training courses completed by, the relevant provider, to the extent that the qualifications and training courses are relevant to the provision of financial services.

(i) (Repealed)

Note: For the meaning of recent advising history , see section 922G .

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History

S 922E(1) amended by No 115 of 2021, s 3, Sch 1[50] (effective 1 January 2022).

Educational qualifications

922E(2)    

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For the purposes of paragraph (1)(h) , if a relevant provider has more than 5 educational qualifications or has completed more than 5 training courses, the notice must include the 5 qualifications or training courses that the person lodging the notice believes, on reasonable grounds, are most relevant to the provision of financial services.

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History

S 922E(2) amended by No 115 of 2021, s 3, Sch 1[51] and [ 52] (effective 1 January 2022).

[ CCH Note: S 922E will be repealed by No 69 of 2020, s 3, Sch 1[1152] (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 922E inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922E is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922F   INFORMATION ABOUT A RELEVANT PROVIDER WHO IS NOT A FINANCIAL SERVICES LICENSEE  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922F(1)    
For the purposes of paragraph 922D(2)(b) , the notice must include the following:

(a)    the relevant provider ' s name;

(b)    the address of the relevant provider ' s principal place of business;

(c)    the relevant provider ' s date and place of birth;

(d)    the name of the financial services licensee on whose behalf the relevant provider is authorised to provide personal advice to retail clients in relation to relevant financial products;

(e)   the licence number given to that licensee under subsection 913C(1) ;

(f)    if the relevant provider is a provisional relevant provider - the fact that the relevant provider is a provisional relevant provider;

(g)    if the relevant provider is a provisional relevant provider - the day the relevant provider began undertaking work and training in accordance with subsection 921B(4) ;

(h)    except in relation to provisional relevant providers - the year in which the relevant provider first provided personal advice to retail clients in relation to relevant financial products in accordance with the law (including the law of a State or Territory);

(i)    if the relevant provider is a relevant provider as a result of section 916B - each of the following:

(i) the name of the authorised representative who authorised the relevant provider under that section;

(ii) the number allocated to the authorised representative by ASIC;

(j)    if applicable, the ABN of any of the following:

(i) the relevant provider;

(ii) the licensee referred to in paragraph (d) ;

(iii) the authorised representative referred to in paragraph (i) ;

(k)    details of both of the following:

(i) the relevant financial products in relation to which the relevant provider is authorised to provide personal advice to retail clients;

(ii) whether the relevant provider is authorised to provide class of product advice in relation to some or all of those products;

(l)    the recent advising history of the relevant provider for the 5 years ending immediately before the time the notice is lodged;

(m)    

View history reference

information about the educational qualifications of, and any training courses completed by, the relevant provider, to the extent that the qualifications and training courses are relevant to the provision of financial services.

(n) (Repealed)

Note: For the meaning of recent advising history , see section 922G.

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History

S 922F(1) amended by No 115 of 2021, s 3, Sch 1[53] (effective 1 January 2022).

Educational qualifications

922F(2)    

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For the purposes of paragraph (1)(m) , if a relevant provider has more than 5 educational qualifications or has completed more than 5 training courses, the notice must include the 5 qualifications or training courses that the person lodging the notice believes, on reasonable grounds, are most relevant to the provision of financial services.

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History

S 922F(2) amended by No 115 of 2021, s 3, Sch 1[54] and [ 55] (effective 1 January 2022).

Information already registered

922F(3)    
The notice does not need to include the information referred to in paragraph (1)(h) , (l) or (m) if:

(a)    the person required under subsection 922L(4) to cause the notice to be lodged believes on reasonable grounds that the information has previously been lodged; or

(b)    the information is already entered on the Register of Relevant Providers.

Provisional relevant providers

922F(4)    
The notice does not need to include the information referred to in paragraph (1)(k) in relation to a provisional relevant provider if that information is not known at the time the notice relating to the provisional relevant provider is lodged by the licensee.

Note: A notice must be lodged under section 922H once this information is known.

[ CCH Note: S 922F will be repealed by No 69 of 2020, s 3, Sch 1[1152] (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 922F inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922F is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922G  

922G   MEANING OF RECENT ADVISING HISTORY  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

The recent advising history of a relevant provider is the following information:

(a)    for a relevant provider who is or was a financial services licensee authorised to provide personal advice to retail clients in relation to relevant financial products - each period during which the relevant provider was such a licensee;

(b)    for a relevant provider who is or was authorised to provide personal advice to retail clients, on behalf of one or more financial services licensees, in relation to relevant financial products - the following information:

(i) the name of each licensee;

(ii) if the relevant provider is or was a relevant provider as a result of section 916B - the name of each authorised representative who authorised the relevant provider under that section;

(iii) each period during which the relevant provider was authorised by each licensee or each authorised representative to provide such advice.

Note: If a relevant provider is covered by paragraphs (a) and (b) of this section, the relevant provider ' s recent advising historyincludes all the information required under those paragraphs.

[ CCH Note: S 922G will be repealed by No 69 of 2020, s 3, Sch 1[1152] (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 922G inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922G is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922H   ONGOING OBLIGATION TO NOTIFY ASIC WHEN THERE IS A CHANGE IN A MATTER FOR A RELEVANT PROVIDER  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

[ CCH Note: S 922H heading will be amended by No 69 of 2020, s 3, Sch 1[1153], by substituting " THE REGISTRAR " for " ASIC " , (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

922H(1)    
A notice must be lodged under this section, in accordance with section 922L , if:

(a)    there is a change in a matter, particulars of which are entered for a relevant provider in the Register of Relevant Providers (other than a change that is a direct consequence of an act by ASIC); or

(b)    both of the following apply:

(i) a notice is lodged under section 922D in relation to a relevant provider by a financial services licensee without including the information referred to in paragraph 922F(1)(k) ;

(ii) the information becomes known to the licensee after the notice is lodged.

Note: For paragraph (1)(a) of this section, an example of a change in a matter would be a person ceasing to be a relevant provider.

[ CCH Note 1: S 922H(1) will be amended by No 69 of 2020, s 3, Sch 1[1154] and [ 1155], by substituting " with the Registrar " for " , in accordance with section 922L, " and " , under section 922Q, in the records maintained under section 922A " for " in the Register of Relevant Providers " in para (a) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

[ CCH Note 2: S 922H(1) will be amended by No 69 of 2020, s 3, Sch 1[1156], by substituting para (b) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (b) will read:

(b) a notice is lodged under section 922D in relation to a relevant provider by a financial services licensee without including the information, required by the data standards, relating to:

(i) the relevant financial products in relation to which the relevant provider is authorised to provide personal advice to retail clients; and

(ii) whether the relevant provider is authorised to provide class of product advice in relation to some or all of those products;

and the information becomes known to the licensee after the notice is lodged.]

[ CCH Note 3: S 922H(1) will be amended by No 115 of 2021, s 3, Sch 2[3], by substituting " Subject to subsection (3), a notice " for " A notice " , (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 922H(1) amended by No 115 of 2021, s 3, Sch 1[56] (effective 1 January 2022).

922H(2)    
The notice must include the following information:

(a)    the new particulars or information to be entered in the Register;

(b)    the relevant provider ' s name;

(c)    if applicable, the number given to the relevant provider under section 922R .

[ CCH Note: S 922H(2) will be substituted by No 69 of 2020, s 3, Sch 1[1157] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 922H(2) will read:

922H(2)
The notice must meet any requirements of the data standards.]

[ CCH Note: S 922H(3) will be inserted by No 115 of 2021, s 3, Sch 2[4] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 922H(3) will read:

922H(3)
If:

(a) a relevant provider is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products; and

(b) the relevant provider is required, under section 922PA , to notify the Registrar of a change in a matter;

the financial services licensee is not required to cause a notice under this section to be lodged in relation to that change.]

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History

S 922H inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922H is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922HA   OBLIGATION TO NOTIFY ASIC OF FINANCIAL SERVICES LICENSEE ' S CPD YEAR  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922HA(1)    
A notice must be lodged under this subsection, in accordance with section 922L , if ASIC grants an applicant an Australian financial services licence that covers the provision of personal advice to retail clients in relation to relevant financial products.

922HA(2)    
A notice lodged under subsection (1) must include the day on which the licensee ' s CPD year is to begin.

922HA(3)    
A notice must be lodged under this subsection, in accordance with section 922L , if a financial services licensee:

(a)    has previously lodged a notice under subsection (1) or this subsection specifying a particular day of the year; and

(b)    decides that the licensee ' s CPD year is to begin on another day of the year; and

(c)    has not lodged a notice under subsection (1) or this subsection in the 12-month period preceding that decision.

922HA(4)    
A notice lodged under subsection (3) must include the day on which the licensee ' s CPD year is to begin.

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History

S 922HA inserted by No 7 of 2017, s 3, Sch 1[16] (effective 15 March 2017).

CCH Note - modifying legislative instruments: Section 922HA is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922HB   OBLIGATION TO NOTIFY ASIC OF NON-COMPLIANCE WITH CPD PROVISIONS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922HB(1)    
A notice must be lodged under this section, in accordance with section 922L , in relation to a person if, at the end of a financial services licensee ' s CPD year:

(a)    the person:

(i) is the licensee; or

(ii) is authorised to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products; and

(b)    the person is a relevant provider; and

(c)    

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during the licensee ' s CPD year:

(i) a CPD provision applied to the relevant provider; and

(ii) the relevant provider did not comply with that provision.

Note: A financial services licensee may obtain information from a relevant provider under section 922N for the purposes of determining whether to lodge a notice under this section.

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History

S 922HB(1) amended by No 115 of 2021, s 3, Sch 1[58] - [ 60] (effective 1 January 2022).

922HB(2)    

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The notice must state which of the CPD provisions the relevant provider did not comply with during the licensee ' s CPD year.

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History

S 922HB(2) substituted by No 115 of 2021, s 3, Sch 1[61] (effective 1 January 2022).

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History

S 922HB inserted by No 7 of 2017, s 3, Sch 1[16] (effective 15 March 2017).

CCH Note - modifying legislative instruments: Section 922HB is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922HC   REQUIREMENT TO RETAIN INFORMATION  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922HC(1)    
A financial services licensee must retain evidence of the continuing professional development undertaken during the licensee ' s CPD year by:

(a)    if the licensee is a relevant provider - the licensee; and

(b)    if a relevant provider is authorised to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products - the relevant provider.

922HC(2)    
The evidence must be retained for 12 months after the end of the CPD year.

Offence

922HC(3)    
A person commits an offence if:

(a)    the person is required to retain evidence under this section;and

(b)    the person fails to retain the evidence in accordance with this section.

Penalty: 50 penalty units.

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History

S 922HC inserted by No 7 of 2017, s 3, Sch 1[16] (effective 15 March 2017).

CCH Note - modifying legislative instruments: Section 922HC is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922HD  

922HD   OBLIGATION TO NOTIFY ASIC IN RELATION TO FAILURES TO COMPLY WITH THE CODE OF ETHICS  
(Repealed by No 115 of 2021, s 3, Sch 1[62] (effective 1 January 2022).)

SECTION 922J   OBLIGATION TO NOTIFY ASIC ABOUT A PERSON WHO STARTS TO HAVE CONTROL OF A BODY CORPORATE LICENSEE  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922J(1)    
A notice must be lodged under this section, in accordance with section 922L , if a person starts to have control of a body corporate licensee.

Note: Subsection 922P(3) provides that a notice is not required to be lodged when a person starts and then ceases to have control of a body corporate licensee within 30 business days.

922J(2)    
The notice must include the following information:

(a)    the name of the licensee;

(b)    the licence number given to the licensee under subsection 913C(1) ;

(c)    the name of the person who starts to have control of the licensee;

(d)    the day the person starts to have control of the licensee.

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History

S 922J inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922J is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922K   OBLIGATION TO NOTIFY ASIC ABOUT A PERSON WHO CEASES TO HAVE CONTROL OF A BODY CORPORATE LICENSEE  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922K(1)    
A notice must be lodged under this section, in accordance with section 922L , if a person ceases to have control of a body corporate licensee.

Note: Subsection 922P(3) provides that a notice is not required to be lodged when a person starts and then ceases to have control of a body corporate licensee within 30 business days.

922K(2)    
The notice must include the following information:

(a)    the name of the licensee;

(b)    the licence number given to the licensee under subsection 913C(1) ;

(c)    the name of the person who ceases to have control of the licensee;

(d)    the day the person ceases to have control of the licensee.

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History

S 922K inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922K is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922L   REQUIREMENT FOR NOTICE TO BE LODGED  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

Notice in prescribed form

922L(1)    

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A notice lodged with ASIC under any of the following provisions (a notice provision ) must be in a prescribed form:

(a)    section 922D ;

(b)    section 922H ;

(c)    section 922HA ;

(d)    section 922HB ;

(e)    section 922J ;

(f)    section 922K .

Note 1: Under section 350 , a document that this Act requires to be lodged with ASIC in a prescribed form must:

(a) if a form for the document is prescribed in the regulations - be in that prescribed form; and

(b) if a form for the document is not prescribed in the regulations but ASIC has approved a form for the document - be in that approved form.

Note 2: The prescribed form may deal with information that is required under more than one section of this Act.

[ CCH Note: S 922L(1) will be amended by No 69 of 2020, s 3, Sch 1[1158], by inserting " lodged with ASIC " after " A notice " , (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 922L(1) (not including the notes) substituted by No 76 of 2023, s 3, Sch 2 [ 460] (effective 20 October 2023).

When notice must be lodged

922L(2)    
A notice under a notice provision must be lodged within 30 business days of the following day:

(a)    if the notice is lodged under subsection 922HA(1) - the day ASIC grants the Australian financial services licence mentioned in that subsection;

(b)    if the notice is lodged under subsection 922HA(3) - the day the financial services licensee mentioned in that subsection decides that the licensee ' s CPD year is to begin on another day of the year;

(c)    if the notice is lodged under subsection 922HB(1) - the last day of the CPD year of the financial services licensee mentioned in that subsection;

(d) (Repealed)

(e)    if the notice is lodged under any other notice provision - the day of the event mentioned in subsection (1) of the notice provision.

[ CCH Note: S 922L(2) will be amended by No 69 of 2020, s 3, Sch 1[1158], by inserting " lodged with ASIC " after " A notice " , (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 922L(2) amended by No 115 of 2021, s 3, Sch 1[63] (effective 1 January 2022).

922L(3)    

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The information contained in the notice must be accurate as at the day mentioned in paragraph (2)(a) , (b) , (c) or (e) .

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History

S 922L(3) amended by No 115 of 2021, s 3, Sch 1[64] (effective 1 January 2022).

Who must cause notice to be lodged

922L(4)    
The following person must cause a notice under section 922D , 922H or 922HB to be lodged in relation to a relevant provider:

(a)    if the relevant provider is a financial services licensee - the licensee;

(b)    otherwise - the financial services licensee on whose behalf the relevant provider is authorised to provide personal advice to retail clients in relation to relevant financial products.

922L(5)    
A notice under subsection 922HA(1) or (3) must be lodged by the financial services licensee mentioned in that section.

922L(6)    
(Repealed by No 115 of 2021, s 3, Sch 1[65] (effective 1 January 2022).)

922L(7)    
A notice under section 922J or 922K relating to a person who starts or ceases to have control of a body corporate licensee must be lodged by the licensee.

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History

S 922L inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922L is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922M   FAILING TO COMPLY WITH OBLIGATION TO NOTIFY ASIC  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

[ CCH Note: S 922M heading will be amended by No 69 of 2020, s 3, Sch 1[1159], by inserting " OR THE REGISTRAR " at the end of the heading, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

Failing to comply with obligation to notify ASIC

922M(1)    
A person contravenes this subsection if:

(a)    

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the person is required to cause a notice to be lodged under a provision referred to in subsection 922L(1) ; and

(b)    the person fails to cause the notice to be lodged in accordance with that provision.

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History

S 922M(1) amended by No 76 of 2023, s 3, Sch 2 [ 461] and [ 462] (effective 20 October 2023).

922M(2)    
However, subsection (1) does not apply if:

(a)    the person fails to cause the notice to be lodged in accordance with section 922D ; and

(b)    the only reason the person fails to cause the notice to be lodged in accordance with that section is because the information referred to in paragraph 922F(1)(h) , (l) or (m) is not included in the notice; and

(c)    subsection 922F(3) provides that the notice does not need to include that information.

Note: In criminal proceedings, a defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

[ CCH Note: S 922M(2) will be repealed by No 69 of 2020, s 3, Sch 1[1160] (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

Fault-based offence

922M(3)    
A person commits an offence if the person contravenes subsection (1) .

922M(4)    
Subsection 4K(2) of the Crimes Act 1914 does not apply to subsection (1) of this section.

Note: A person may commit an offence or contravene a civil penalty provision if the person gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code ).

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History

S 922M(4) amended by No 3 of 2020, s 3, Sch 3[56] (effective 18 February 2020).

Civil liability

922M(5)    
A person contravenes this subsection if the person contravenes subsection (1) .

Note: This subsection is a civil penalty provision (see section 1317E ).

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History

S 922M substituted by No 17 of 2019, s 3, Sch 1 [ 82] (effective 13 March 2019).

CCH Note - modifying legislative instruments: Section 922M is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922N   OBLIGATION FOR RELEVANT PROVIDERS TO PROVIDE INFORMATION TO FINANCIAL SERVICES LICENSEES  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

Information about relevant provider

922N(1)    
A person must provide information to a financial services licensee in accordance with this section if:

(a)    the person is a relevant provider; and

(b)    the person has been authorised to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products; and

(c)    

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the licensee has asked the person to provide the information so that the licensee can:

(i) comply with its obligation to lodge a notice relating to the person in accordance with section 922D ; or

(ii) (Repealed)

(iii) determine whether the licensee has an obligation to lodge a notice under section 922HB .

Note: A person may commit an offence or contravene a civil penalty provision if the person gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code ).

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History

S 922N(1) amended by No 115 of 2021, s 3, Sch 1[66] (effective 1 January 2022).

S 922N(1) amended by No 3 of 2020, s 3, Sch 3[57] (effective 18 February 2020).

When information must be given

922N(2)    
The information must be given to the licensee within a period that allows the licensee to comply with the obligation referred to in paragraph (1)(c) .

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History

S 922N inserted by No 7 of 2017, s 3, Sch 1[16] (effective 15 March 2017).

CCH Note - modifying legislative instruments: Section 922N is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922P   CHANGE IN MATTER WITHIN 30 BUSINESS DAYS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

922P(1)    

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Notices must be given under sections 922D and 922H in relation to a person who was a relevant provider even if the person ceases to be a relevant provider before a notice has been lodged under section 922D .

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History

S 922P(1) amended by No 115 of 2021, s 3, Sch 1[67] (effective 1 January 2022).

922P(2)    
A notice is not required to be given under section 922HB in relation to a person if:

(a)    the person was a relevant provider at the end of a financial services licensee ' s CPD year; and

(b)    the person was authorised at that time to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products; and

(c)    the person ceases to be a relevant provider within 30 business days of becoming a relevant provider.

922P(3)    
A notice is not required to be given under sections 922J and 922K in relation to a person who starts or ceases to have control of a body corporate licensee if the person ceases to have control of the licensee within 30 business days of starting to have control of the licensee.

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History

S 922P inserted by No 7 of 2017, s 3, Sch 1[16].

[ CCH Note: S 922PA will be inserted by No 115 of 2021, s 3, Sch 2[5] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 922PA will read:

SECTION 922PA OBLIGATION FOR PERSONS REGISTERED UNDER SUBSECTION 921ZC(1) TO NOTIFY REGISTRAR OF CERTAIN CHANGES  

922PA(1)
A person must lodge a notice with the Registrar if:

(a) a registration of the person under subsection 921ZC(1) is in force; and

(b) there is a change in a matter, particulars of which are entered for the person under section 922Q , in the records maintained under section 922A (other than a change that is a direct consequence of an act by ASIC); and

(c) the change is of a kind specified in the data standards for the purposes of this paragraph.

922PA(2)
The notice must:

(a) be lodged within 30 business days after the change; and

(b) meet any requirements of the data standards.

922PA(3)
A person commits an offence if:

(a) the person is required to lodge a notice in accordance with this section; and

(b) the person fails to do so.]

CCH Note - modifying legislative instruments: Section 922P is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Subdivision C - Register of Relevant Providers  

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CCH Note - modifying legislative instruments: The application of Subdivision C is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Subdivision C, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

[ CCH Note 1: Subdiv C heading will be substituted by No 69 of 2020, s 3, Sch 1[1161] (effective 1 July 2026 or a day or days to be fixed by Proclamation). Subdiv C heading will read:

Subdivision C - Recording information about relevant providers

]

[ CCH Note 2: Subdiv C heading will be amended by No 115 of 2021, s 3, Sch 2[6], by inserting " etc. " at the end, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

SECTION 922Q   REGISTER OF RELEVANT PROVIDERS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

[ CCH Note: S 922Q heading will be amended by No 115 of 2021, s 3, Sch 2[7], by inserting " ETC. " at the end, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

Register to include details of relevant providers

922Q(1)    
ASIC must enter details on a Register of Relevant Providers in respect of each person who is or was a relevant provider.

[ CCH Note: S 922Q(1) will be amended by No 115 of 2021, s 3, Sch 2[8], by substituting " each person: (a) who is or was a relevant provider; or (b) for whom a registration under subsection 921ZC(1) is in force. " for " each person who is or was a relevant provider " , (effective 1 July 2026 or a day to be fixed by Proclamation).]

Contents of Register

922Q(2)    
The details that must be entered on the Register include the following:

(a)    the relevant provider ' s name;

(b)    the relevant provider ' s principal place of business;

(c)    the name of each financial services licensee on whose behalf the relevant provider is or was authorised to provide personal advice to retail clients in relation to relevant financial products;

(d)    if applicable, each person who has control of the licensee;

(e)    the relevant provider ' s date and place of birth;

(f)    the licence number given under subsection 913C(1) to the relevant provider and each licensee referred to in paragraph (c) ;

(g)    if applicable, the number given under section 922R ;

(h)    if the relevant provider is a relevant provider as a result of section 916B :

(i) the name of the authorised representative who authorised the relevant provider under that section; and

(ii) the number allocated to the authorised representative by ASIC;

(i)    the recent advising history of the relevant provider;

(j)    if the relevant provider is a provisional relevant provider:

(i) the fact that the relevant provider is a provisional relevant provider; and

(ii) the day the relevant provider began undertaking work and training in accordance with subsection 921B(4) ; and

(iii) a statement that the relevant provider is required to be supervised in accordance with Subdivision C of Division 8A ;

(k)    except in relation to provisional relevant providers - the year in which the relevant provider first provided personal advice to retail clients in relation to relevant financial products in accordance with the law (including the law of a State or Territory);

(l)    whether the person is currently, or has ceased to be, a relevant provider;

(m)    

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if a financial services licensee has lodged a notice under section 922HB in relation to the relevant provider and a CPD provision - that the relevant provider did not comply with the CPD provision during the licensee ' s CPD year;

(n)    if the relevant provider has been disqualified from managing corporations - information contained on the register established under section 1274AA ;

(o)    if the relevant provider has been banned or disqualified under section 80 or 86 of the National Consumer Credit Protection Act 2009 - information about that banning or disqualification;

(p)    if the relevant provider has been banned, disqualified or suspended under Division 8 of Part 7.6 , or under section 130F of the Superannuation Industry (Supervision) Act 1993 - information about that banning, disqualification or suspension;

(q)    

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information about any undertaking that the relevant provider has given under:

(i) section 93AA or 171E of the ASIC Act; or

(ii) section 322 of the National Consumer Credit Protection Act 2009 ;

(r) (Repealed)

(s)    if applicable, information about both of the following:

(i) the relevant financial products in relation to which the relevant provider is authorised to provide personal advice to retail clients;

(ii) whether the relevant provider is authorised to provide class of product advice in relation to some or all of those products;

(t)    if applicable, the ABN of any of the following:

(i) the relevant provider;

(ii) each licensee referred to in paragraph (c) ;

(iii) if applicable, the authorised representative referred to in paragraph (h) ;

(u)    

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information about the educational qualifications of, and any training courses completed by, the relevant provider (but not courses completed in accordance with a CPD provision), to the extent that the qualifications and training courses are relevant to the provision of financial services;

(ua)    

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whether a registration under section 921ZC of the relevant provider is in force;

(ub)    

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whether the relevant provider provides, or is to provide, a tax (financial) advice service;

(uc)    

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if an instrument of a kind prescribed by regulations made for the purposes of subsection (3) is given to, or made in relation to, the relevant provider - details of the instrument;

(ud)    

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if a Financial Services and Credit Panel gives the relevant provider an infringement notice and the relevant provider pays the amount stated in the notice before the end of the payment period for the notice - all of the following:

(i) details of the notice;

(ii) a statement that the relevant provider has complied with the notice;

(iii) a statement that compliance with the notice is not an admission of guilt or liability;

(iv) a statement that the relevant provider is not regarded as having contravened the provision specified in the notice;

(ue)    any declaration under section 1317E that the relevant provider has contravened a restricted civil penalty provision;

(v) (Repealed)

(w)    any other information that ASIC believes should be included in the Register that relates to the provision of financial services by the relevant provider.

Note 1: Not all of the Register ' s contents are publicly available. However, section 1274A provides that ASIC may permit a person to search certain registers kept by ASIC for prescribed information.

Note 2: Information in paragraph (2)(s) may not be known in relation to a provisional relevant provider (seesubsection 922F(4) ).

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History

S 922Q(2) amended by No 101 of 2023, s 3, Sch 1[19] (effective 28 November 2023).

S 922Q(2) amended by No 115 of 2021, s 3, Sch 1[68] - [ 72] (effective 1 January 2022).

922Q(3)    

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The regulations may prescribe instruments of one or more of the following kinds:

(a)    an instrument made by a Financial Services and Credit Panel under subsection 921K(1) ;

(b)    a warning or reprimand given by ASIC under subsection 921S(1) ;

(c)    a warning or reprimand given by a Financial Services and Credit Panel under subsection 921T(1) .

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History

S 922Q(3) inserted by No 115 of 2021, s 3, Sch 1[73] (effective 1 January 2022).

[ CCH Note: S 922Q will be substituted by No 69 of 2020, s 3, Sch 1[1162] (effective 1 July 2026 or a day or days to be fixed by Proclamation). S 922Q will read:

SECTION 922Q RECORDING INFORMATION ABOUT RELEVANT PROVIDERS  
922Q
The Registrar must enter, in the records maintained under section 922A , details relating to each person who is or was a relevant provider.

Note: The data standards may deal with which details are to be entered in those records.]

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History

S 922Q inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922Q is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922R  

922R   RELEVANT PROVIDER NUMBER  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

ASIC may give a unique number (or any unique combination of numbers, characters, symbols and letters) to a person who is a relevant provider.

[ CCH Note: S 922R will be amended by No 69 of 2020, s 3, Sch 1[1163], by substituting " The Registrar " for " ASIC " , (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 922R inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922R is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 922S  

922S   CORRECTING THE REGISTER  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

ASIC may correct any error in, or omission from, the Register of Relevant Providers.

Note: Australian Privacy Principle 13 applies to ASIC and requires it to take reasonable steps to correct personal information that is wrong or misleading so that the information is accurate, up to date, complete, relevant and not misleading (see Schedule 1 to the Privacy Act 1988 ).

[ CCH Note: S 922S will be repealed by No 69 of 2020, s 3, Sch 1[1164] (effective 1 July 2026 or a day or days to be fixed by Proclamation).]

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History

S 922S inserted by No 7 of 2017, s 3, Sch 1[16].

CCH Note - modifying legislative instruments: Section 922S is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

Division 10 - Restrictions on use of terminology  

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CCH Note - modifying legislative instruments: The application of Division 10 is affected by the following legislative instruments that commenced on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For legislative instruments or class orders before 1 January 2022 that affect the application of Division 10, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 923A   RESTRICTION ON USE OF CERTAIN WORDS OR EXPRESSIONS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

923A(1)    
A person contravenes this subsection if:

(a)    either:

(i) the person carries on a financial services business or provides a financial service (whether or not on behalf of another person); or

(ii) another person (the provider ) provides a financial service on behalf of the first person; and

(b)    the first person assumes or uses, in this jurisdiction, a restricted word or expression in relation to that business or service.

Note 1: For the meanings of restricted word or expression and assume or use , see subsection (5).

Note 2: A contravention of this subsection is an offence (see subsection 1311(1) ).

Note 3: A Financial Services Guide or website disclosure information may need to include a statement relating to the restriction in this subsection (see paragraphs 942B(2)(fa) and 942C(2)(ga) ).

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History

S 923A(1) amended by No 67 of 2024, s 3, Sch 1[29] (effective 10 July 2024).

S 923A(1) amended by No 19 of 2021, s 3, Sch 2 [ 1] (effective 1 July 2021).

923A(2)    
However, it is not a contravention of subsection (1) for a person to assume or use a restricted word or expression if:

(a)    the person does not receive any of the following:

(i) commissions (apart from commissions that are rebated in full to the person's clients);

(ii) forms of remuneration calculated on the basis of the volume of business placed by the person with an issuer of a financial product;

(iii) other gifts or benefits from an issuer of a financial product which may reasonably be expected to influence the person; and

(b)    none of the following persons receives any of the things covered by paragraph (a) :

(i) the person's employer (if any);

(ii) if the person provides the financial service on behalf of another person (as mentioned in subparagraph (1)(a)(i) ) - that other person;

(iii) any other person identified (whether by reference to a class of person or otherwise) in regulations made for the purposes of this subparagraph; and

(c)    if subparagraph (1)(a)(ii) applies in relation to a financial service - the provider mentioned in that subparagraph does not receive any of the things mentioned in paragraph (a) of this subsection in respect of the provision of that service; and

(d)    in carrying on a financial services business, or providing financial services, the person operates free from direct or indirect restrictions relating to the financial products in respect of which they provide financial services; and

(e)    in carrying on that business, or providing those services, the person operates without any conflicts of interest that might:

(i) arise from their associations or relationships with issuers of financial products; and

(ii) reasonably be expected to influence the person in carrying on the business or providing the services.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3) of the Criminal Code .

923A(3)    
The reference in paragraph (2)(d) to direct or indirect restrictions does not include a reference to restrictions imposed on a person by:

(a)    the conditions on an Australian financial services licence; or

(b)    this Chapter or regulations made for the purposes of this Chapter.

923A(4)    
If a person assumes or uses a word or expression in circumstances that give rise to the person committing an offence based on subsection (1) of this section, the person is guilty of such an offence in respect of:

(a)    the first day on which the offence is committed; and

(b)    each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).

923A(5)    
In this section:

(a)    a reference to a restricted word or expression is a reference to:

(i) the word independent , impartial or unbiased ; or

(ii) any other word or expression specified in the regulations as a restricted word or expression for the purposes of this section; or

(iii) any other word or expression (whether or not in English) that is of like import to a word or expression covered by any of the previous subparagraphs; and

(b)    a reference to a word or expression being assumed or used includes a reference to the word or expression being assumed or used:

(i) as part of another word or expression; or

(ii) in combination with other words, letters or other symbols.

923A(6)    

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To avoid doubt, for the purposes of this section a restricted word or expression is not assumed or used if the restricted word or expression is included in a statement in accordance with a requirement in paragraph 942B(2)(fa) or 942C(2)(ga) .

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History

S 923A(6) inserted by No 19 of 2021, s 3, Sch 2 [ 2] (effective 1 July 2021).

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History

S 923A inserted by No 122 of 2001, s 3, Sch 1, Pt 1 [ 1].

CCH Note - modifying legislative instruments: Section 923A is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 923B   RESTRICTION ON USE OF CERTAIN WORDS OR EXPRESSIONS UNLESS AUTHORISED IN LICENCE CONDITIONS  

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CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

923B(1)    
A person contravenes this subsection if:

(a) the person carries on a financial services business or provides a financial service (whether or not on behalf of another person); and

(b) the person assumes or uses, in this jurisdiction, a restricted word or expression in relation to that business or service; and

(c) the person is not authorised, by the conditions on an Australian financial services licence held by the person, or by a person in relation to whom they are a representative, to assume or use that word or expression (see subsection (3)).

Note 1: For the meanings of restricted word or expression and assume or use , see subsection (4).

Note 2: A contravention of this subsection is an offence (see subsection 1311(1) ).

923B(2)    
If a person assumes or uses a word or expression in circumstances that give rise to the person committing an offence based on subsection (1), the person is guilty of such an offence in respect of:

(a) the first day on which the offence is committed; and

(b) each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).

923B(3)    
ASIC can only impose a condition on an Australian financial services licence authorising a person to assume or use a restricted word or expression in these circumstances:

(a) in the case of a word or expression covered by subparagraph (4)(a)(i) - if the person:

(i) can, under the licence, provide a financial service relating to securities (whether or not the person can provide other financial services under the licence as well); and

(ii) is a participant in a licensed market whose licence covers dealings in securities;

(b) in the case of a word or expression covered by subparagraph (4)(a)(ii) - if the person:

(i) can, under the licence, provide a financial service relating to derivatives (whether or not the person can provide other financial services under the licence as well); and

(ii) is a participant in a licensed market whose licence covers dealings in derivatives;

(c) in the case of a word or expression covered by subparagraph (4)(a)(iii) - if the person:

(i) can, under the licence, provide a financial service relating to contracts of insurance (whether or not the person can provide other financial services under the licence as well); and

(ii) in providing that service, acts on behalf of intending insureds;

(d) in the case of a word or expression covered by subparagraph (4)(a)(iv) - if the person:

(i) can, under the licence, provide a financial service relating to contracts of general insurance (whether or not the person can provide other financial services under the licence as well); and

(ii) in providing that service, acts on behalf of intending insureds;

(e) in the case of a word or expression covered by subparagraph (4)(a)(v) - if the person:

(i) can, under the licence, provide a financial service relating to contracts of life insurance (whether or not the person can provide other financial services under the licence as well); and

(ii) in providing that service, acts on behalf of intending insureds;

(f) in the case of a word or expression covered by subparagraph (4)(a)(vi) - in the circumstances (if any) that are prescribed by regulations made for the purposes of this paragraph, or after ASIC has considered the matters (if any) that are so prescribed.

923B(4)    
In this section:

(a) a reference to a restricted word or expression is a reference to:

(i) the expression stockbroker or sharebroker , or any other word or expression (whether or not in English) that is of like import to that expression; or

(ii) the expression futures broker , or any other word or expression (whether or not in English) that is of like import to that expression; or

(iii) the expression insurance broker or insurance broking , or any other word or expression (whether or not in English) that is of like import to that expression; or

(iv) the expression general insurance broker , or any other word or expression (whether or not in English) that is of like import to that expression; or

(v) the expression life insurance broker , or any other word or expression (whether or not in English) that is of like import to that expression; or

(vi) any other expression or word specified in the regulations as a restricted word or expression for the purposes of this section, or any other word or expression (whether or not in English) that is of like import to such a word or expression; and

(b) a reference to a word or expression being assumed or used includes a reference to the word or expression being assumed or used:

(i) as part of another word or expression; or

(ii) in combination with other words, letters or other symbols; and

(c) contract of insurance and insured have the same meanings as in Division 4 of Part 7.8 .

 View history note

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History

S 923B inserted by No 122 of 2001, s 3, Sch 1, Pt 1 [ 1].

CCH Note - modifying legislative instruments: Section 923B is modified by the following legislative instruments that commenced or were amended on or after 1 January 2022: the ASIC Corporations (Incidental Retail Cover) Instrument 2022/716; the ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705; the ASIC Corporations (Financial Requirements for Responsible Entities, IDPS Operators and Corporate Directors of Retail CCIVs) Instrument 2023/647; and the ASIC Corporations (Financial Requirements for Custodial or Depository Service Providers) Instrument 2023/648.

For modifying legislative instruments or class orders before 1 January 2022, please consult the legislative instruments or class orders directly. These are reproduced in the regulatory-resources section of the company-law practice area in CCH iKnowConnect.

SECTION 923C   RESTRICTION ON USE OF TERMS " FINANCIAL ADVISER " AND " FINANCIAL PLANNER "  

View history reference

CCH note: This provision is modified by legislative instruments. See the CCH note at the end of the provision for details.

923C(1)    
A person contravenes this subsection if:

(a)    the person carries on a financial services business or provides a financial service (whether or not on behalf of another person); and

(b)    the person assumes or uses, in this jurisdiction, a restricted word or expression in relation to the service; and

(c)    any of the following apply:

(i) the person is not a relevant provider;

(ii) the person is a provisional relevant provider;

(iii) the person is a limited-service time-sharing adviser.

Note 1: For the meanings of restricted word or expression and assume or use , see subsections (8) and (9) of this section.

Note 2: A contravention of this subsection is an offence (see subsection 1311(1) ).

923C(2)    
A person (the first person ) contravenes this subsection if:

(a)    the first person carries on a financial services business or provides a financial service; and

(b)    another person provides a financial service on behalf of the person; and

(c)    the first person assumes or uses, in this jurisdiction, a restricted word or expression in relation to the service; and

(d)    any of the following apply:

(i) the first person is not a relevant provider;

(ii) the first person is a provisional relevant provider;

(iii) the first person is a limited-service time-sharing adviser.

Note 1: For the meanings of restricted word or expression and assume or use , see subsections (8) and (9) of this section.

Note 2: A contravention of this subsection is an offence (see subsection 1311(1) ).

Advice to wholesale clients

923C(3)    
It is not a contravention of subsection (1) for a person to assume or use a restricted word or expression if:

(a)    the person provides advice to wholesale clients; and

(b)    the person assumes or uses the restricted word or expression only in relation to that advice.

Note: A defendant bears an evidential burden in relation to the matters in subsection (3). See subsection 13.3(3) of the Criminal Code .

923C(4)    
It is not a contravention of subsection (2) for a person to assume or use a restricted word or expression if:

(a)    another person (the adviser ) provides a financial service on behalf of the person; and

(b)    the adviser provides advice to wholesale clients; and

(c)    the person assumes or uses the restricted word or expression only in relation to that advice.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4).See subsection 13.3(3) of the Criminal Code .

Advice as employee or director

923C(5)    
It is not a contravention of subsection (1) for a person to assume or use a restricted word or expression if:

(a)    the person is an employee or director of a body; and

(b)    the person provides advice to the body; and

(c)    the person assumes or uses the restricted word or expression only in relation to that advice.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5). See subsection 13.3(3) of the Criminal Code .

923C(6)    
It is not a contravention of subsection (2) for a person to assume or use a restricted word or expression if:

(a)    another person (the adviser ) is an employee or director of a body; and

(b)    the adviser provides advice to the body; and

(c)    the person assumes or uses the restricted word or expression only in relation to that advice.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3) of the Criminal Code .

Continuing contravention

923C(7)    
If a person assumes or uses a word or expression in circumstances that give rise to the person committing an offence under subsection (1) or (2) , the person commits the offence in respect of:

(a)    the first day on which the offence is committed; and

(b)    each subsequent day (if any) on which the circumstances that gave rise to the person committing the offence continue (including the day of conviction for any such offence or any later day).

References to restricted word or expression

923C(8)    
In this section:

(a)    a reference to a restricted word or expression is a reference to:

(i) the expression financial adviser or financial planner ; or

(ii) any other word or expression specified in the regulations as a restricted word or expression for the purposes of this section; or

(iii) any other word or expression (whether or not in English) that is of like import to a word or expression covered by any of the previous subparagraphs; and

(b)    a reference to a restricted word or expression being assumed or used includes a reference to the restricted word or expression being assumed or used:

(i) as part of another word or expression; or

(ii) in combination with other words, letters or other symbols.

923C(9)    
However, a reference in this section to a restricted word or expression does not include a reference to a word or expression mentioned in paragraph (8)(a) if:

(a)    the word or expression mentioned in that paragraph is assumed or used in relation to a provisional relevant provider; and

(b)    

View history reference

the word or expression is assumed or used as part of a word or expression determined by the Minister under subsection (9A) .  View history note