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 7.7 - FINANCIAL SERVICES DISCLOSURE  

Division 1 - Preliminary  

SECTION 940A  

940A   HOW PART APPLIES IF A FINANCIAL SERVICES LICENSEE IS ACTING AS AUTHORISED REPRESENTATIVE  

If a financial services licensee is, in providing a financial service, acting as the authorised representative of another financial services licensee (see section 916E ), this Part applies to the first-mentioned licensee, in relation to the service, in the capacity of authorised representative (rather than the capacity of licensee).

SECTION 940B   WHAT IF THERE IS NO REASONABLE OPPORTUNITY TO GIVE A DOCUMENT, INFORMATION OR STATEMENT REQUIRED BY THIS PART?  

940B(1)    
If:

(a)    apart from this section, a person (the providing entity ) would be required by a provision of this Part to give another person (the client ) a particular document (for example, a Financial Services Guide or a Statement of Advice), or particular information or a particular statement; and

(b)    the providing entity has not had a reasonable opportunity to give (in accordance with section 940C ) the client the document, information or statement by the time they are required by this Part to give it to the client;

the fact that the providing entity has not given the document, information or statement to the client as required by the provision is not a contravention of the provision.

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

940B(2)    
For the purposes of subsection (1), the providing entity is not taken not to have had a reasonable opportunity to provide the document, information or statement if:

(a)    section 940C (or regulations made for the purposes of that section) permit the document, information or statement to be sent to an address (including an electronic address) or fax number nominated by the client; and

(b)    the client has not given the providing entity an address (including an electronic address) or fax number to which the document, information or statement can be sent; but

(c)    the providing entity has had a reasonable opportunity to make, but has not made, reasonable enquiries of the client to obtain such an address or fax number.

SECTION 940C   HOW DOCUMENTS, INFORMATION AND STATEMENTS ARE TO BE GIVEN  

940C(1)    

For the purposes of this Part (unless a contrary intention appears), a Financial Services Guide, a Supplementary Financial Services Guide, a Statement of Advice or a Cash Settlement Fact Sheet is given by a person (the providing entity ) to another person (the client ) if (and only if):

(a)    it is:

(i) given to the client, or to the client ' s agent, personally; or

(ii) sent to the client, or the client ' s agent, at an address (including an electronic address) or fax number nominated by the client or the client ' s agent; or

(iii) otherwise made available to the client, or the client ' s agent, as agreed between the client, or the client ' s agent, and the providing entity; and

(b)    it is in printed or electronic form.

940C(2)    
For the purposes of this Part (unless a contrary intention appears), information that subsection 941C(7) or 946B(6) requires to be given by a person (the providing entity ) to another person (the client ) is given by the providing entity to the client if (and only if):

(a)    it is given to the client, or the client ' s agent, orally; or

(b)    it is in printed or electronic form and is:

(i) given to the client, or the client ' s agent, personally; or

(ii) sent to the client, or the client ' s agent, at an address (including an electronic address) or fax number nominated by the client or the client ' s agent; or

(iii) otherwise made available to the client, or the client ' s agent, as agreed between the client or the client ' s agent and the providing entity; or

(c)    it is given by some other method permitted by regulations made for the purposes of this paragraph.

940C(3)    

For the purposes of this Part (unless a contrary intention appears), information that subsection 941C(5) , paragraph 946AA(5)(b) or subsection 946B(3) or (8) requires to be given by a person (the providing entity ) to another person (the client ) is given by the providing entity to the client if (and only if) it is given to the client, or the client ' s agent, in accordance with the applicable requirements of regulations made for the purposes of this subsection.

940C(4)    
For the purposes of this Part (unless a contrary intention appears), a statement that subsection 941D(2) or 946C(2) requires to be given by a person (the providing entity ) to another person (the client ) is given by the providing entity to the client if (and only if) it is given orally to the client or the client ' s agent.

940C(5)    
For the purposes of this section, a document, information or statement to which this section applies is sent to a person at an address if, and only if:

(a)    the document, information or statement is sent to the address; and

(b)    either:

(i) the envelope or other container in which it is sent; or

(ii) the message that accompanies it;

is addressed to the person.

940C(6)    
A document, information or statement to which this section applies may be given or sent to a person ' s agent only if the agent is not acting as the person ' s agent in one of the following capacities:

(a)    a financial services licensee;

(b)    an authorised representative of a financial services licensee;

(c) (Repealed)

(d)    a person who is not required to hold an Australian financial services licence because the person is covered by:

(i) paragraph 911A(2)(j) ; or

(ii) an exemption in regulations made for the purposes of paragraph 911A(2)(k) ; or

(iii) an exemption specified by ASIC for the purposes of paragraph 911A(2)(l) ;

(e)    a person who is required to hold an Australian financial services licence but who does not hold such a licence;

(f)    an employee, director or other representative of a person referred to in paragraph (a), (b), (c), (d) or (e).

940C(7)    
The regulations may specify requirements as to:

(a)    the manner in which a document, information or statement may be given to a person; and

(b)    the presentation, structure and format for a document, information or statement that is to be given in electronic form.

The giving of the document, information or statement is not effective unless those requirements are satisfied.

SECTION 940D  

940D   GENERAL APPROACH TO OFFENCE PROVISIONS  

Subdivision A of Division 7 contains provisions creating offences by reference to various rules contained in Divisions of this Part. However, it does not create all the offences relating to those rules, as some offences are created by subsection 1311(1) . Where offences are created by subsection 1311(1) in relation to a rule, this is indicated by a note at the end of the provision containing the rule.

Division 2 - Person provided with financial service as retail client to be given a Financial Services Guide  

Subdivision A - Requirement for a Financial Services Guide to be given  

SECTION 941A   OBLIGATION ON FINANCIAL SERVICES LICENSEE TO GIVE A FINANCIAL SERVICES GUIDE IF FINANCIAL SERVICE PROVIDED TO PERSON AS A RETAIL CLIENT  

941A(1)    
A financial services licensee (the providing entity ) must give a person a Financial Services Guide in accordance with this Division if the providing entity provides a financial service to the person (the client ) as a retail client.

941A(2)    
This section has effect subject to section 941C .

941A(3)    

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

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

SECTION 941B   OBLIGATION ON AUTHORISED REPRESENTATIVE TO GIVE A FINANCIAL SERVICES GUIDE IF FINANCIAL SERVICE PROVIDED TO PERSON AS A RETAIL CLIENT  

941B(1)    
An authorised representative (the providing entity ) of a financial services licensee (the authorising licensee ), or of 2 or more financial services licensees (the authorising licensees ), must give a person a Financial Services Guide in accordance with this Division if the providing entity, as a representative of the authorising licensee, or one or more of the authorising licensees, provides a financial service to the person (the client ) as a retail client.

Note: If the providing entity is the authorised representative of 2 or more financial services licensees, each of those licensees is, for the purposes of this Division, an authorising licensee in relation to the financial service provided to the client, even though the providing entity may not have been acting as representative of each of those licensees in providing the service to the client.

941B(2)    
A Financial Services Guide must not be given to the person by the providing entity unless the authorising licensee, or each of the authorising licensees, has authorised its distribution by the providing entity.

941B(3)    
This section has effect subject to section 941C .

941B(4)    

A person contravenes this subsection if the person contravenes subsection (1) or (2).

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

SECTION 941C   SITUATIONS IN WHICH A FINANCIAL SERVICES GUIDE IS NOT REQUIRED  

Client has already received the information

941C(1)    
The providing entity does not have to give the client a Financial Services Guide (the new FSG ) if the client has already received a Financial Services Guide that contains all of the information that the new FSG is required to contain.

Providing entity is product issuer dealing in own products

941C(2)    
The providing entity does not have to give the client a Financial Services Guide if:

(a)    the providing entity is an issuer of financial products; and

(b)    

the financial service is a dealing in financial products, other than derivatives able to be traded on a licensed market, issued by the providing entity, and does not also relate to financial products issued by someone else.

Note: The issuer will however have to comply with the Product Disclosure Statement requirements (see Division 2 of Part 7.9 ).

Dealing in financial products in ordinary course of operation of superannuation entity

941C(2A)    

The providing entity does not have to give the client a Financial Services Guide if:

(a)    the providing entity is the trustee of a superannuation entity; and

(b)    the client is a member (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) of the superannuation entity; and

(c)    the financial service is a dealing by the trustee in financial products in the ordinary course of operation of the superannuation entity.

Dealing in financial products in ordinary course of operation of registered scheme

941C(2B)    

The providing entity does not have to give the client a Financial Services Guide if:

(a)    the providing entity is the responsible entity of a registered scheme; and

(b)    the client is a member the scheme; and

(c)    the financial service is a dealing by the responsible entity in financial products in the ordinary course of operation of the scheme.

Dealing in financial products in ordinary course of operating the business and conducting the affairs of a CCIV

941C(2C)    

The providing entity does not have to give the client a Financial Services Guide if:

(a)    the providing entity is the corporate director of a CCIV; and

(b)    the client is a member of the CCIV; and

(c)    the financial service is a dealing by the corporate director in financial products in the ordinary course of operating the business and conducting the affairs of the CCIV.

Providing entity is merely operating a registered scheme.

941C(3)    
The providing entity does not have to give the client a Financial Services Guide if:

(a)    the providing entity is the responsible entity of a registered scheme; and

(b)    the financial service consists only of the operation of that scheme by the providing entity.

Providing entity is merely operating a notified foreign passport fund

941C(3A)    
The providing entity does not have to give the client a Financial Services Guide if:

(a)    the providing entity is the operator of a notified foreign passport fund; and

(b)    the financial service consists only of the operation of that fund by the operator.

Providing entity is merely providing a superannuation trustee service

941C(3B)    

The providing entity does not have to give the client a Financial Services Guide if:

(a)    the providing entity is the trustee of a registrable superannuation entity; and

(b)    the financial service consists only of a superannuation trustee service.

Financial product advice given to the public

941C(4)    
The providing entity does not have to give the client a Financial Services Guide if the financial service is general advice provided to the public, or a section of the public, in the manner prescribed by regulations made for the purposes of this subsection.

941C(4A)    
(Repealed by No 101 of 2007, s 3, Sch 1, Pt 3 [ 220].)

941C(5)    
However, if subsection (4) applies and the client is not given a Financial Services Guide before the advice is provided, the client must instead, before the advice is provided, be given the information that would be required to be in the Financial Services Guide by paragraphs 942B(2)(a) , (e) and (f) , or paragraphs 942C(2)(a) , (c) , (f) and (g) , as the case requires.

Financial product advice - information is publicly available on providing entity ' s website

941C(5A)    

The providing entity does not have to give the client a Financial Services Guide if:

(a)    the financial service provided to the client is financial product advice; and

(b)    by the time the providing entity would otherwise be required to give the client a Financial Services Guide:

(i) the providing entity has made website disclosure information (see Division 2A ), or something purporting to be website disclosure information, available on its website; and

(ii) the providing entity has not given (within the meaning of section 940C ) the client a Financial Services Guide, or something purporting to be a Financial Services Guide.

Certain basic deposit and other products

941C(6)    

The providing entity does not have to give the client a Financial Services Guide if the financial service is a dealing in, is the provision of financial product advice about, or in any other way relates to, any of the following:

(a)    a basic deposit product;

(b)    

a facility for making non-cash payments that is related to a basic deposit product;

(c)    a financial product of a kind prescribed by regulations made for the purposes of this paragraph.

941C(7)    

However, if subsection (6) applies and the client is not given a Financial Services Guide before the service is provided, the client must instead, before the service is provided, be given the information that would be required to be in the Financial Services Guide by paragraphs 942B(2)(a) , (fa) and (h) , or paragraphs 942C(2)(a) , (ga) and (i) , as the case requires.

Claims handling and settling service

941C(7A)    

The providing entity does not have to give the client a Financial Services Guide if:

(a)    the financial service consists only of a claims handling and settling service; and

(b)    the claims handling and settling service does not consist only of representing the client as a person insured under an insurance product in pursuing a claim under that product.

Regulations may specify other exemptions

941C(8)    
A Financial Services Guide does not have to be given to the client in circumstances specified in regulations made for the purposes of this subsection.

SECTION 941D   TIMING OF GIVING FINANCIAL SERVICES GUIDE  

General rule

941D(1)    
Subject to this section, the Financial Services Guide must be given to the client as soon as practicable after it becomes apparent to the providing entity that the financial service will be, or is likely to be, provided to the client, and must in any event be given to the client before the financial service is provided.

Time critical cases

941D(2)    
If:

(a)    the client expressly instructs that they require the financial service to be provided immediately, or by a specified time; and

(b)    it is not reasonably practicable to give the Financial Services Guide to the client before the service is provided as so instructed;

the providing entity must instead give the client a statement that complies with subsection (3) before the service is provided.

941D(3)    
The statement must contain:

(a)    

the information that would be required to be in the Financial Services Guide by paragraphs 942B(2)(e) , (f) , (fa) and (i) , or paragraphs 942C(2)(f) , (g) , (ga) and (j) , as the case requires; and

(b)    such other information as would be required to be in the Financial Services Guide as is particularly relevant to the financial service to be provided.

941D(4)    
The client must then be given the Financial Services Guide within 5 days after being given the statement, or sooner if practicable.

SECTION 941E   INFORMATION MUST BE UP TO DATE  

941E(1)    
The information in the Financial Services Guide must be up to date as at the time when it is given to the client.

941E(2)    
However, if the Financial Services Guide is given to the client under subsection 941D(4) , the information in the Financial Services Guide may be up to date as at the time the statement referred to in that subsection is given to the client.

Note: A Supplementary Financial Services Guide containing updated information may be given with a Financial Services Guide that has become out of date. The updated information is taken to be included in the Financial Services Guide (see section 943D ).

SECTION 941F  

941F   OBLIGATION TO GIVE UPDATED FINANCIAL SERVICES GUIDE  

If:

(a)    the Financial Services Guide is given to the client before the financial service is provided; and

(b)    the following conditions are satisfied:

(i) there is a change in circumstances before the service is provided, and the Financial Services Guide does not contain the information it would be required to contain if it were given to a person immediately after that change;

(ii) the fact that the Financial Services Guide does not contain the up to date information is materially adverse from the point of view of a reasonable person deciding, as a retail client, whether to proceed to be provided with the financial service;

the providing entity must, before the service is provided:

(c)    

give the client:

(i) another Financial Services Guide that contains the up to date information before the service is provided; or

(ii) a Supplementary Financial Services Guide (see Subdivision C ) that updates the information in the Financial Services Guide; or

(d)    

make website disclosure information available on its website in accordance with Division 2A .

Subdivision B - Content and authorisation of Financial Services Guide  

SECTION 942A   TITLE OF FINANCIAL SERVICES GUIDE  

942A(1)    
The title " Financial Services Guide " must be used on the cover of, or at or near the front of, a Financial Services Guide.

942A(2)    
In any other part of a Financial Services Guide, " Financial Services Guide " may be abbreviated to " FSG " .

SECTION 942B   FINANCIAL SERVICES GUIDE GIVEN BY FINANCIAL SERVICES LICENSEE - MAIN REQUIREMENTS  

942B(1)    
This section applies if the providing entity is a financial services licensee.

942B(2)    
Subject to subsection (3) and to the regulations (see subsection (4)), the Financial Services Guide must include the following statements and information:

(a)    a statement setting out the name and contact details of the providing entity; and

(b)    a statement setting out any special instructions about how the client may provide instructions to the providing entity; and

(c)    information about the kinds of financial services (the authorised services ) that the providing entity is authorised by its licence to provide, and the kinds of financial products to which those services relate; and

(d)    information about who the providing entity acts for when providing the authorised services; and

(e)    information about the remuneration (including commission) or other benefits that any of the following is to receive in respect of, or that is attributable to, the provision of any of the authorised services:

(i) the providing entity;

(ii) a related body corporate of the providing entity;

(iii) a director or employee of the providing entity or a related body corporate;

(iv) an associate of any of the above;

(v) any other person in relation to whom the regulations require the information to be provided;

(f)    information about any associations or relationships between the providing entity, or any related body corporate, and the issuers of any financial products, being associations or relationships that might reasonably be expected to be capable of influencing the providing entity in providing any of the authorised services; and

(fa)    

if the authorised services provided by the providing entity include the provision of personal advice to retail clients, and the providing entity would contravene subsection 923A(1) by assuming or using a restricted word or expression (within the meaning of subsection 923A(5) ) in relation to such provision of personal advice - a statement that:

(i) sets out that the providing entity is not independent, impartial or unbiased (which are restricted words or expressions within the meaning of subsection 923A(5) ) in relation to the provision of personal advice, and explains the reasons why; and

(ii) if any other word or expression has been specified as a restricted word or expression in regulations made for the purposes of subparagraph 923A(5)(a)(ii) - sets out that the providing entity is not able to assume or use the restricted word or expression in relation to the provision of personal advice, and explains the reasons why; and

(iii) meets the requirements (if any) determined in an instrument under subsection (7A) ; and

(g)    

if the providing entity provides further market-related advice (see subsection 946B(1) ) or advice to which subsection 946B(7) applies - a statement in relation to which the following requirements are satisfied:

(i) the statement must indicate that the client may request a record of that advice, if they have not already been provided with a record of that advice;

(ii) the statement must set out particulars of how the client may request such a record;

(iii) any limitations in those particulars on the time within which the client may request such a record must be consistent with any applicable requirements in regulations made for the purposes of this subparagraph or, if there are no such applicable requirements, must be such as to allow the client a reasonable opportunity to request a record of the advice; and

(h)    information about the dispute resolution system that covers complaints by persons to whom the providing entity provides financial services, and about how that system may be accessed; and

(i)    if the providing entity acts under a binder in providing any of the authorised services - a statement that:

(i) identifies the services provided under the binder; and

(ii) states that they are provided under a binder; and

(iii) explains the significance of the services being provided under a binder; and

(j)    if the providing entity is a participant in a licensed market or a licensed CS facility - a statement that the providing entity is a participant in that market or facility; and

(k)    any other statements or information required by the regulations.

Note: A Supplementary Financial Services Guide containing additional information may be given with a Financial Services Guide that does not contain all the required information. The additional information is taken to be included in the Financial Services Guide (see section 943D ).

942B(3)    
Subject to subsection (4), the level of information about a matter that is required is such as a person would reasonably require for the purpose of making a decision whether to acquire financial services from the providing entity as a retail client.

942B(4)    
The regulations may provide all or any of the following:

(a)    that a provision of subsection (2) does not apply in a particular situation;

(b)    that particular information is not required by a provision of subsection (2), either in a particular situation or generally;

(c)    a more detailed statement of the information that is required by a provision of subsection (2), either in a particular situation or generally;

(d)    that certain supplementary information must be given or made available to the client in some other way.

942B(5)    
The Financial Services Guide must be dated. The date must be the date on which the Financial Services Guide was prepared or its preparation was completed.

942B(6)    
The Financial Services Guide may also contain other information.

942B(6A)    
The information included in the Financial Services Guide must be worded and presented in a clear, concise and effective manner.

942B(7)    
The regulations may require the providing entity, in circumstances specified in the regulations, to provide the client, on request, with more detailed information about remuneration (including commission) or other benefits of a kind referred to in paragraph (2)(e).

942B(7A)    

ASIC may, by legislative instrument, determine requirements for a statement for the purposes of subparagraph (2)(fa)(iii) .

942B(7B)    

Without limiting subsection (7A) , the instrument may include the following:

(a)    requirements that a specified form, or specified form of words, be used for the statement;

(b)    requirements for the statement to include specified information;

(c)    requirements about the presentation, structure and format of the statement, including the location of the statement within the Financial Services Guide.

942B(8)    
If:

(a)    

the Financial Services Guide includes a statement to the effect that a client may request a record of further market-related advice or advice to which subsection 946B(7) applies; and

(b)    

the client is provided with advice to which that statement applies; and

(c)    the client has not already been provided with a record of that advice;

the providing entity must comply with a request made in accordance with that statement for a record of that advice.

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

SECTION 942C   FINANCIAL SERVICES GUIDE GIVEN BY AUTHORISED REPRESENTATIVE - MAIN REQUIREMENTS  

942C(1)    
This section applies if the providing entity is an authorised representative.

942C(2)    
Subject to subsection (3) and to the regulations (see subsection (4)), the Financial Services Guide must include the following statements and information:

(a)    a statement setting out the name and contact details of the providing entity; and

(b)    a statement setting out any special instructions about how the client may provide instructions to the providing entity; and

(c)    a statement:

(i) setting out the name and contact details of the authorising licensee, or of each of the authorising licensees; and

(ii) stating that the providing entity is the authorised representative of that licensee or those licensees; and

(d)    information, in relation to the authorising licensee or each of the authorising licensees, about the kinds of financial services (the authorised services ) that the providing entity provides as representative of the authorising licensee, and the kinds of financial products to which those services relate; and

(e)    information about who the authorising licensee, or each of the authorising licensees, acts for when financial services are provided on their behalf by the providing entity; and

(f)    information about the remuneration (including commission) or other benefits that any of the following is to receive in respect of, or that is attributable to, the provision of any of the authorised services:

(i) the providing entity;

(ii) an employer of the providing entity;

(iii) the authorising licensee, or any of the authorising licensees;

(iv) an employee or director of the authorising licensee, or of any of the authorising licensees;

(v) an associate of any of the above;

(vi) any other person in relation to whom the regulations require the information to be provided; and

(g)    information about any associations or relationships between:

(i) the providing entity, or any employer of the providing entity, and the issuers of any financial products; or

(ii) the authorising licensee, or any of the authorising licensees, or any related body corporate of the authorising licensee or any of the authorising licensees, and the issuers of any financial products;

being associations or relationships that might reasonably be expected to be capable of influencing the providing entity in providing any of the authorised services; and

(ga)    

if the authorised services provided by the providing entity include the provision of personal advice to retail clients, and the providing entity would contravene subsection 923A(1) by assuming or using a restricted word or expression (within the meaning of subsection 923A(5) ) in relation to such provision of personal advice - a statement that:

(i) sets out that the providing entity is not independent, impartial or unbiased (which are restricted words or expressions within the meaning of subsection 923A(5) ) in relation to the provision of personal advice, and explains the reasons why; and

(ii) if any other word or expression has been specified as a restricted word or expression in regulations made for the purposes of subparagraph 923A(5)(a)(ii) - sets out that the providing entity is not able to assume or use the restricted word or expression in relation to the provision of personal advice, and explains the reasons why; and

(iii) meets the requirements (if any) determined in an instrument under subsection (7A) ; and

(h)    

if the providing entity, when acting as representative of the authorising licensee or any of the authorising licensees, provides further market-related advice (see subsection 946B(1) ) or advice to which subsection 946B(7) applies - a statement in relation to which the following requirements are satisfied:

(i) the statement must indicate that the client may request a record of that advice, if they have not already been provided with a record of that advice;

(ii) the statement must set out particulars of how the client may request such a record;

(iii) any limitations in those particulars on the time within which the client may request such a record must be consistent with any applicable requirements in regulations made for the purposes of this subparagraph or, if there are no such applicable requirements, must be such as to allow the client a reasonable opportunity to request a record of the advice; and

(i)    information about the dispute resolution system that covers complaints by persons to whom the providing entity provides financial services when acting as representative of the authorising licensee or any of the authorising licensees, and about how that system may be accessed; and

(j)    if the providing entity acts under a binder in providing any of the authorised services - a statement that:

(i) identifies the services provided under the binder; and

(ii) states that they are provided under a binder; and

(iii) explains the significance of the services being provided under a binder; and

(k)    if the providing entity, or the authorising licensee or any of the authorising licensees, is a participant in a licensed market or a licensed CS facility - a statement that the providing entity or authorising licensee is a participant in that market or facility; and

(l)    a statement to the effect that the distribution of the Financial Services Guide by the providing entity has been authorised by the authorising licensee, or by each of the authorising licensees; and

(m)    any other statements or information required by the regulations.

Note: A Supplementary Financial Services Guide containing additional information may be given with a Financial Services Guide that does not contain all the required information. The additional information is taken to be included in the Financial Services Guide (see section 943D ).

942C(3)    
Subject to subsection (4), the level of detail of information about a matter that is required is such as a person would reasonably require for the purpose of making a decision whether to acquire financial services from the providing entity as a retail client.

942C(4)    
The regulations may provide all or any of the following:

(a) that a provision of subsection (2) does not apply in a particular situation;

(b) that particular information is not required by a provision of subsection (2), either in a particular situation or generally;

(c) a more detailed statement of the information that is required by a provision of subsection (2), either in a particular situation or generally;

(d) that certain supplementary information must be given or made available to the client in some other way.

942C(5)    
The Financial Services Guide must be dated. The date must be the date on which the Financial Services Guide was prepared or its preparation was completed.

942C(6)    
The Financial Services Guide may also contain other information.

942C(6A)    
The information included in the Financial Services Guide must be worded and presented in a clear, concise and effective manner.

942C(7)    
The regulations may require the providing entity, in circumstances specified in the regulations, to provide the client, on request, with more detailed information about remuneration (including commission) or other benefits of a kind referred to in paragraph (2)(f).

942C(7A)    

ASIC may, by legislative instrument, determine requirements for a statement for the purposes of subparagraph (2)(ga)(iii) .

942C(7B)    

Without limiting subsection (7A) , the instrument may include the following:

(a)    requirements that a specified form, or specified form of words, be used for the statement;

(b)    requirements for the statement to include specified information;

(c)    requirements about the presentation, structure and format of the statement, including the location of the statement within the Financial Services Guide.

942C(8)    
If:

(a)    

the Financial Services Guide includes a statement to the effect that a client may request a record of further market-related advice or advice to which subsection 946B(7) applies; and

(b)    

the client is provided with advice to which that statement applies; and

(c)    the client has not already been provided with a record of that advice;

the providing entity must comply with a request made in accordance with that statement for a record of that advice.

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

SECTION 942D   FINANCIAL SERVICES GUIDE MAY CONSIST OF 2 OR MORE SEPARATE DOCUMENTS GIVEN AT SAME TIME  

942D(1)    
Subject to this section, a Financial Services Guide may be made up of 2 or more separate documents that are given at the same time.

942D(2)    
Each of the documents must have on the cover of the document, or at or near the front of the document, a statement:

(a) to the effect that the document is part of a Financial Services Guide; and

(b) that (subject to subsection (3)) identifies the other documents that make up the Financial Services Guide.

942D(3)    
If there are or may be different versions of a document referred to in paragraph (2)(b), the statement required by subsection (2) does not have to identify any particular one of those versions and may instead identify the document generically.

Note: For example, if a Financial Services Guide is made up of a core document that is not updated very frequently, and a separate document providing information about remuneration that is updated more frequently:

(a) the statement in the core document need only refer to the fact that it, and a separate document about remuneration, make up the Financial Services Guide; and

(b) the statement in the document about remuneration need only refer to the fact that it, and a separate document about all other required matters, make up the Financial Services Guide.

942D(4)    
The requirement of section 942A (title of Financial Services Guide) is taken to be satisfied if the title " Financial Services Guide " is used on the cover of, or at or near the front of, at least one of the documents that make up the Financial Services Guide.

942D(5)    
The requirement of subsection 942B(5) or 942C(5) (dating of Financial Services Guide) must be separately complied with in relation to each of the documents. If, for any purpose, a single date needs to be determined as the date of the Financial Services Guide as a whole, that date is the most recent of the dates of those documents.

942D(6)    
Section 942E applies to an alteration to one of the documents as though the reference in that section to the date specified in the Financial Services Guide were a reference to the date specified in the document.

942D(7)    
The regulations may impose additional requirements to be complied with if a Financial Services Guide is made up of 2 or more documents.

SECTION 942DA   COMBINING A FINANCIAL SERVICES GUIDE AND A PRODUCT DISCLOSURE STATEMENT IN A SINGLE DOCUMENT  

942DA(1)    
A Financial Services Guide and a Product Disclosure Statement may be combined in a single document (a combined FSG and PDS ) in circumstances specified in regulations made for the purposes of this section.

942DA(2)    
Those regulations may also provide that this Chapter applies in relation to a combined FSG and PDS as if specified provisions were omitted, modified or varied as specified in the regulations.

942DA(3)    
A Financial Services Guide and a Product Disclosure Statement must not be combined in a single document except as permitted under subsection (1).

SECTION 942E  

942E   ALTERING A FINANCIAL SERVICES GUIDE AFTER ITS PREPARATION AND BEFORE GIVING IT TO A PERSON  

A financial services licensee, or an authorised representative of a financial services licensee, must not, in purported compliance with a provision of this Part, give a person a Financial Services Guide (the FSG ) that has been altered (otherwise than pursuant to paragraph (b)) after the date specified in the FSG as required by subsection 942B(5) or 942C(5) unless:

(a) the alteration was made by, or with the authority of:

(i) if section 942B applies to the FSG - the financial services licensee to which the FSG relates; or

(ii) if section 942C applies to the FSG - the financial services licensee, or each of the financial services licensees, who authorised the distribution of the FSG; and

(b) if the alteration is a material alteration - the date of the FSG has been changed to the date on which the alteration was made.

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

Subdivision C - Supplementary Financial Services Guides  

SECTION 943A   WHAT A SUPPLEMENTARY FINANCIAL SERVICES GUIDE IS  

943A(1)    
A Supplementary Financial Services Guide is a document by which a person who has prepared a Financial Services Guide (the FSG ) can:

(a)    correct a misleading or deceptive statement in the FSG; or

(b)    correct an omission from the FSG of information it is required to contain; or

(c)    update the information contained in the FSG.

943A(2)    
A Supplementary Financial Services Guide must not be given to a person by an authorised representative of a financial services licensee unless the licensee has authorised its distribution by the authorised representative.

SECTION 943B   TITLE OF SUPPLEMENTARY FINANCIAL SERVICES GUIDE  

943B(1)    
The title " Supplementary Financial Services Guide " must be used on the cover of, or at or near the front of, a Supplementary Financial Services Guide.

943B(2)    
In any other part of a Supplementary Financial Services Guide, " Supplementary Financial Services Guide " may be abbreviated to " SFSG " .

SECTION 943C   FORM OF SUPPLEMENTARY FINANCIAL SERVICES GUIDE  

943C(1)    
At the beginning of a Supplementary Financial Services Guide there must be:

(a)    a statement that it is a Supplementary Financial Services Guide; and

(b)    an identification of the Financial Services Guide that it supplements; and

(c)    a statement that it is to be read together with that Financial Services Guide and any other specified Supplementary Financial Services Guides.

943C(2)    
The Supplementary Financial Services Guide must be dated. The date must be the date on which the Supplementary Financial Services Guide was prepared or its preparation was completed.

943C(3)    
If the Supplementary Financial Services Guide will or may be distributed by an authorised representative of a financial services licensee, it must contain a statement to the effect that its distribution by the authorised representative has been authorised by the licensee.

SECTION 943D  

943D   EFFECT OF GIVING A PERSON A SUPPLEMENTARY FINANCIAL SERVICES GUIDE  

If:

(a)    a person is given a Financial Services Guide (the FSG ); and

(b)    at the same time, or later, they are given a Supplementary Financial Services Guide (the SFSG ) that supplements the FSG;

the FSG is taken, from when the SFSG is given to the person, to include the information and statements contained in the SFSG.

SECTION 943E  

943E   SITUATION IN WHICH ONLY A SUPPLEMENTARY FINANCIAL SERVICES GUIDE NEED BE GIVEN  

If:

(a)    apart from this section, a person (the providing entity ) would be required to give another person (the client ) a Financial Services Guide (the new FSG ); and

(b)    the client has, because of some previous conduct, already been given a Financial Services Guide (the earlier FSG ) containing some, but not all, of the information that the new FSG is required to contain;

the provider may, instead of giving the client the new FSG, give the client a Supplementary Financial Services Guide that contains the additional information.

SECTION 943F  

943F   ALTERING A SUPPLEMENTARY FINANCIAL SERVICES GUIDE AFTER ITS PREPARATION AND BEFORE GIVING IT TO A PERSON  

A financial services licensee, or an authorised representative of a financial services licensee, must not, in purported compliance with a provision of this Part, give a person a Supplementary Financial Services Guide (the SFSG ) that has been altered (otherwise than pursuant to paragraph (b)) after the date specified in the SFSG as required by subsection 943C(2) unless:

(a) the alteration was made by, or with the authority of:

(i) if section 942B applies to the Financial Services Guide that the SFSG supplements - the financial services licensee to which the Guide relates; or

(ii) if section 942C applies to the Financial Services Guide that the SFSG supplements - the financial services licensee, or each of the financial services licensees, who authorised the distribution of the SFSG; and

(b) if the alteration is a material alteration - the date of the SFSG has been changed to the date on which the alteration was made.

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

Division 2A - Website disclosure for financial product advice provided to a retail client  

SECTION 943G   OBLIGATION ON FINANCIAL SERVICES LICENSEE TO MAKE WEBSITE DISCLOSURE INFORMATION AVAILABLE  

943G(1)    
A financial services licensee (the providing entity ) must make website disclosure information available on its website in accordance with this Division if the providing entity provides financial product advice to a person as a retail client.

943G(2)    
However, subsection (1) does not apply if:

(a)    disregarding subsection 941C(5A) , the providing entity is not required by a provision of this Part to give the client a Financial Services Guide in accordance with Division 2 in relation to the financial product advice; or

(b)    the providing entity gives (within the meaning of section 940C ) the client a Financial Services Guide, or something purporting to be a Financial Services Guide, by the time they are required by this Part to do so.

943G(3)    
A person contravenes this subsection if the person contravenes subsection (1) .

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

Interaction with section 941A

943G(4)    
If conduct constitutes a contravention of subsection (3) and subsection 941A(3) , proceedings may be started against a person in relation to the contravention of either or both of those subsections.

943G(5)    
However, the person is not liable to more than one pecuniary penalty in relation to the same conduct.

SECTION 943H   OBLIGATION ON AUTHORISED REPRESENTATIVE TO MAKE WEBSITE DISCLOSURE INFORMATION AVAILABLE  

943H(1)    
An authorised representative (the providing entity ) of a financial services licensee (the authorising licensee ), or of 2 or more financial services licensees (the authorising licensees ), must make website disclosure information available on its website in accordance with this Division if the providing entity, as a representative of the authorising licensee, or one or more of the authorising licensees, provides financial product advice to a person (the client ) as a retail client.

Note: If the providing entity is the authorised representative of 2 or more financial services licensees, each of those licensees is, for the purposes of this Division, an authorising licensee in relation to the financial service provided to the client, even though the providing entity may not have been acting as representative of each of those licensees in providing the service to the client.

943H(2)    
However, subsection (1) does not apply if:

(a)    disregarding subsection 941C(5A) , the providing entity is not required by a provision of this Part to give the client a Financial Services Guide in accordance with Division 2 in relation to the financial product advice; or

(b)    the providing entity gives (within the meaning of section 940C ) the client a Financial Services Guide, or something purporting to be a Financial Services Guide, bythe time they are required by this Part to do so.

943H(3)    
An authorised representative must not make website disclosure information available on its website unless the authorising licensee, or each of the authorising licensees, has authorised its distribution by the authorised representative.

943H(4)    
A person contravenes this subsection if the person contravenes subsection (1) or (3) .

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

Interaction with section 941B

943H(5)    
If conduct constitutes a contravention of subsection (4) and subsection 941B(4) , proceedings may be started against a person in relation to the contravention of either or both of those subsections.

943H(6)    
However, the person is not liable to more than one pecuniary penalty in relation to the same conduct.

SECTION 943J  

943J   MEANING OF WEBSITE DISCLOSURE INFORMATION  

Website disclosure information
, in relation to a financial services licensee or an authorised representative of a financial services licensee, means the statements and information:

(a) in the case of a financial services licensee - that would be required by section 942B to be in a Financial Services Guide given by the licensee; and

(b) in the case of an authorised representative - that would be required by section 942C to be in a Financial Services Guide given by the authorised representative.

SECTION 943K   WEBSITE DISCLOSURE INFORMATION MUST BE READILY ACCESSIBLE  

943K(1)    
This section applies if the providing entity makes website disclosure information, or something purporting to be website disclosure information, available on its website.

943K(2)    
The providing entity must ensure that the website disclosure information on its website is kept readily accessible by the public.

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

SECTION 943L   WEBSITE DISCLOSURE INFORMATION MUST BE KEPT UP TO DATE  

943L(1)    
This section applies if the providing entity makes website disclosure information, or something purporting to be website disclosure information, available on its website.

943L(2)    
The providing entity must ensure that the website disclosure information on its website:

(a)    is kept up to date; and

(b)    specifies the day on which it was prepared or last updated.

Note 1: This subsection is a civil penalty provision (see section 1317E ).

Note 2: Website disclosure information must not be updated unless doing so is authorised by the relevant financial services licensee: see section 943M .

SECTION 943M  

943M   ALTERING WEBSITE DISCLOSURE INFORMATION AFTER IT HAS BEEN MADE AVAILABLE  

A financial services licensee, or an authorised representative of a financial services licensee, must not, in purported compliance with a provision of this Part, alter website disclosure information on its website, unless:

(a)    the distribution of the altered website disclosure information was authorised by:

(i) if the website disclosure information relates to a financial services licensee - that licensee; or

(ii) if the website disclosure information relates to an authorised representative of a financial services licensee or financial services licensees - the financial services licensee, or each of the financial services licensees, who authorised the distribution of the website disclosure information as required by subsection 943H(3) ; and

(b)    if the alteration is a material alteration - the day specified as required by paragraph 943L(2)(b) has been changed to the date on which the alteration was made.

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

SECTION 943N  

943N   RECORD OF ADVICE MUST BE PROVIDED IN CERTAIN CIRCUMSTANCES  

If:

(a)    the website disclosure information includes a statement to the effect that a client may request a record of further market-related advice or advice to which subsection 946B(7) applies; and

(b)    the client is provided with advice to which that statement applies; and

(c)    the client has not already been provided with a record of that advice;

the providing entity must comply with a request made in accordance with that statement for a record of that advice.

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

Division 3 - Additional requirements for personal advice provided to a retail client  

Subdivision A - When this Division applies  

SECTION 944A  

944A   SITUATION IN WHICH DIVISION APPLIES  

This Division applies in relation to the provision of personal advice (the advice ) in the following circumstances:

(a) the advice is provided:

(i) by a financial services licensee (the providing entity ); or

(ii) by a person (the providing entity ) in their capacity as authorised representative of a financial services licensee (the authorising licensee ), or of 2 or more financial services licensees (the authorising licensees ); and

(b) the advice is provided to a person (the client ) as a retail client.

Subdivision B - Requirements relating to basis of advice  

SECTION 945A  

945A   REQUIREMENT TO HAVE A REASONABLE BASIS FOR THE ADVICE  
(Repealed by No 68 of 2012, s 3, Sch 1[6] (effective 1 July 2012).)

SECTION 945B  

945B   OBLIGATION TO WARN CLIENT IF ADVICE BASED ON INCOMPLETE OR INACCURATE INFORMATION  
(Repealed by No 68 of 2012, s 3, Sch 1[6] (effective 1 July 2012).)

Subdivision C - Requirement for a Statement of Advice to be given  

SECTION 946A   OBLIGATION TO GIVE CLIENT A STATEMENT OF ADVICE  

946A(1)    
The providing entity must give the client a Statement of Advice in accordance with this Subdivision and Subdivision D .

946A(2)    
The Statement of Advice may be:

(a) the means by which the advice is provided; or

(b) a separate record of the advice.

946A(3)    

This section has effect subject to sections 946AA and 946B .

946A(4)    

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

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

SECTION 946AA   SMALL INVESTMENTS - STATEMENT OF ADVICE NOT REQUIRED  

Small investments generally

946AA(1)    
The providing entity does not have to give the client a Statement of Advice for particular advice (the small investment advice ) if:

(a)    both of the following apply:

(i) an amount (the threshold amount ) has been prescribed by regulations made for the purposes of this paragraph;

(ii) the total value of all financial investments in relation to which the advice is provided, as worked out under subsection (2), does not exceed the threshold amount; and

(b)    the advice does not relate to any of the following:

(i) a derivative;

(ii) a general insurance product;

(iii) a life risk insurance product (except to the extent that advice about a superannuation product relates to a life risk insurance product); and

(c)    

the advice does not relate to any superannuation product or RSA, unless the client already has an interest in the product.

946AA(1A)    
(Repealed by No 70 of 2015, s 3, Sch 1[35].)

Total value of investments

946AA(2)    
For the purposes of paragraph (1)(a) , the total value of investments in relation to which the small investment advice is provided is:

(a)    if the advice solely relates to the acquisition of all (or part) of one or more financial products, or of an increased interest in one or more financial products - the sum of the values (the total acquisition value ) of each acquisition; or

(b)    if the advice solely relates to the disposal of all (or part) of one or more financial products, or of a part of an interest in one or more financial products - the sum of the values (the total disposal value ) of each disposal; or

(c)    if the advice relates to both an acquisition, and a disposal, mentioned in paragraphs (a) and (b):

(i) the total acquisition value; or

(ii) if the total disposal value exceeds the total acquisition value - the total disposal value.

Method for working out threshold amount

946AA(3)    
Regulations made for the purposes of paragraph (1)(a) may prescribe how the threshold amount is to be worked out in relation to particular kinds of financial products.

Record of advice

946AA(4)    
The providing entity must keep a record of the small investment advice and, in doing so, must comply with any applicable requirements of regulations made for the purposes of this subsection.

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

946AA(5)    
The providing entity must, at the applicable time, give the client:

(a)    a copy of the record of the small investment advice; and

(b)    the information that would, if a Statement of Advice were to be given, be required to be in the Statement by paragraphs 947B(2)(d) and (e) , or 947C(2)(e) and (f) , as the case requires.

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

946AA(6)    
For the purposes of subsection (5) , the applicable time for something to be given relating to the small investment advice is the time:

(a)    when, or as soon as practicable after, the advice is provided; and

(b)    in any event - before the providing entity provides the client with any further financial service arising out of, or connected with, the advice.

SECTION 946B   OTHER SITUATIONS IN WHICH A STATEMENT OF ADVICE IS NOT REQUIRED  

Further market-related advice

946B(1)    

The providing entity does not have to give the client a Statement of Advice for particular advice (the further market-related advice ) if:

(a)    the providing entity is a participant in a licensed market, or is an authorised representative of a participant in a licensed market; and

(b)    the providing entity has previously given the client a Statement of Advice that set out the client's relevant personal circumstances in relation to the advice (the previous advice ) set out in that Statement; and

(c)    

the further market-related advice recommends that the client:

(i) acquire or dispose of, or not acquire or dispose of; or

(ii) accept or refuse an offer or invitation which, if accepted, would result in the client acquiring or disposing of, or offering to acquire or dispose of;

securities, managed investment products, foreign passport fund products or derivatives that are able to be traded on a licensed market; and

(d)    the following conditions are satisfied:

(ia) the providing entity has, either immediately before the further market-related advice is given, or within the preceding 12 months, checked with the client whether the client's objectives, financial situation and needs have changed since the last time the providing entity checked with the client about those matters; and

(i) the client's relevant personal circumstances in relation to the further market-related advice (determined having regard to the client's objectives, financial situation and needs as currently known to the providing entity) are not significantly different from the client's relevant personal circumstances in relation to the previous advice; and

(ii) so far as the basis on which advice is given relates to other matters - the basis on which the further market-related advice is given is not significantly different from the basis on which the previous advice was given; and

(e)    the providing entity has a reasonable belief that:

(i) the client requires the further market-related advice to be provided promptly; or

(ii) it is in the client's interests that the further market-related advice be provided promptly; and

(f)    either:

(i) the further market-related advice does not contain any other kind of financial product advice; or

(ii) the only other kind of financial product advice contained in the further market-related advice is cash management facility advice; and

(g)    

the further market-related advice is given:

(i) by telephone; or

(ii) by fax; or

(iii) by email; or

(iv) by another kind of electronic communication specified in regulations made for the purposes of this subparagraph.

Note: Paragraphs 947B(2)(b) and 947C(2)(b) require a Statement of Advice to include information about the basis on which the advice is or was given, which may include the client's relevant personal circumstances, in which case paragraph (b) of this subsection would be satisfied.

946B(2)    

For the purposes of subsection (1) :

able to be traded on a licensed market
means:

(a) in relation to securities, managed investment products or foreign passport fund products - either:

(i) the securities or products are admitted to quotation on a licensed market and their admission to quotation is not suspended; or

(ii) the securities or products are not admitted to quotation on a licensed market, but are further securities or products of a kind that are already admitted to quotation on the market and whose admission to quotation is not suspended; and

(b) in relation to derivatives:

(i) the standard terms of the arrangement that constitutes the derivative are set out in the operating rules of a licensed market; and

(ii) under the operating rules of that market, the derivatives are able to be dealt with on the market.

cash management facility
means:

(a) an interest in a registered scheme or a notified foreign passport fund of a kind commonly known as a cash common fund or a cash management trust; or

(b) a basic deposit product; or

(c) a bank accepted bill.

cash management facility advice
means advice about the use (but not the establishment) of a cash management facility in connection with an acquisition or disposal of securities, managed investment products, foreign passport fund products or derivatives to which the further market-related advice relates.

946B(3)    

However, in the same communication as is used to provide the further market-related advice to the client, the client must be given the information that would, if a Statement of Advice were to be given, be required to be in the Statement by paragraphs 947B(2)(d) and (e), or 947C(2)(e) and (f), as the case requires.

946B(3A)    

The providing entity must keep a record of the further market-related advice and, in doing so, must comply with any applicable requirements of regulations made for the purposes of this subsection.

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

Note 2: For the client's right to a record of the advice, see subsections 942B(8) and 942C(8) .

Certain basic deposit and other products

946B(5)    
The providing entity does not have to give the client a Statement of Advice if the advice relates to any or all of the following:

(a)    a basic deposit product;

(b)    

a facility for making non-cash payments that is related to a basic deposit product;

(c)    a financial product of a kind prescribed by regulations made for the purposes of this paragraph.

946B(6)    
However, if subsection (5) applies and the client is not given a Statement of Advice, the client must instead, when, or as soon as practicable after, the advice is provided, be given the information that would be required to be in the Statement of Advice by paragraphs 947B(2)(d) and (e), or 947C(2)(e) and (f), as the case requires.

Where advice does not recommend the purchase or sale of products

946B(7)    

The providing entity does not have to give the client a Statement of Advice for particular advice if:

(a)    the advice does not recommend or state an opinion in respect of:

(i) the acquisition or disposal of any specific financial product, or the products of a specific issuer; nor

(ii) a modification to an investment strategy or a contribution level in relation to a financial product held by the client; and

(b)    the following persons do not directly receive any remuneration (other than remuneration that is currently being received for an earlier acquisition of a product) or other benefit for, or in relation to, the advice:

(i) the providing entity;

(ii) an employer of the providing entity;

(iii) the authorising licensee, or any of the authorising licensees;

(iv) an employee or director of the authorising licensee, or of any of the authorising licensees;

(v) an associate of any of the above;

(vi) any other person prescribed by regulations made for the purposes of this paragraph.

946B(8)    

However, in the same communication as is used to provide to the client the advice referred to in subsection (7) , the client must be given the information that would, if a Statement of Advice were to be given, be required to be in the Statement by paragraphs 947B(2)(d) and (e) , or 947C(2)(e) and (f) , as the case requires.

946B(9)    

The providing entity must keep a record of the advice and, in doing so, must comply with any applicable requirements of regulations made for the purposes of this subsection.

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

Note 2: For the client ' s right to a record of the advice, see subsections 942B(8) and 942C(8) .

SECTION 946C   TIMING OF GIVING STATEMENT OF ADVICE  

General rule

946C(1)    
Subject to this section, if the Statement of Advice is not the means by which the advice is provided, the Statement of Advice must be given to the client when, or as soon as practicable after, the advice is provided and, in any event, before the providing entity provides the client with any further financial service that arises out of or is connected with that advice.

Statement of certain information if Statement of Advice not given when advice provided

946C(2)    
If the Statement of Advice is not given to the client when the advice is provided, the providing entity must, when the advice is provided, give the client a statement that contains the information that would be required to be in a Statement of Advice by paragraphs 947B(2)(d) and (e) , or 947C(2)(e) and (f) , as the case requires, and by section 947D , if applicable.

Time critical cases

946C(3)    
If:

(a)    the client expressly instructs that they require a further financial service that arises out of, or is connected with, the advice to be provided immediately, or by a specified time; and

(b)    it is not reasonably practicable to give the Statement of Advice to the client before that further service is provided as so instructed;

the providing entity must give the client the Statement of Advice:

(c)    

unless paragraph (d) applies - within 5 business days after providing that further service, or sooner if practicable; or

(d)    if that further service is the provision to the person of a financial product and section 1019B (cooling-off period) will apply to the acquisition of the product by the person - before the start of the period applicable under subsection 1019B(3) , or sooner if practicable.

Subdivision D - Content of Statement of Advice  

SECTION 947A   TITLE OF STATEMENT OF ADVICE  

947A(1)    
The title " Statement of Advice " must be used on the cover of, or at or near the front of, a Statement of Advice.

947A(2)    
In any other part of a Statement of Advice, " Statement of Advice " may be abbreviated to " SoA " .

SECTION 947B   STATEMENT OF ADVICE GIVEN BY FINANCIAL SERVICES LICENSEE - MAIN REQUIREMENTS  

947B(1)    
This section applies if the providing entity is a financial services licensee.

947B(2)    
Subject to subsection (3) and to the regulations (see subsection (4)), the Statement of Advice must include the following statements and information:

(a) a statement setting out the advice; and

(b) information about the basis on which the advice is or was given; and

(c) a statement setting out the name and contact details of the providing entity; and

(d) information about any remuneration (including commission) or other benefits that any of the following is to receive that might reasonably be expected to be or have been capable of influencing the providing entity in providing the advice:

(i) the providing entity;

(ii) a related body corporate of the providing entity;

(iii) a director or employee of the providing entity or a related body corporate;

(iv) an associate of any of the above;

(v) any other person in relation to whom the regulations require the information to be provided; and

(e) information about:

(i) any other interests, whether pecuniary or not and whether direct or indirect, of the providing entity or of any associate of the providing entity; and

(ii) any associations or relationships between the providing entity or any associate of the providing entity and the issuers of any financial products;

that might reasonably be expected to be or have been capable of influencing the providing entity in providing the advice; and

(f) if section 961H requires a warning to be given to the client in relation to the advice - a statement setting out, or recording, the warning required by that section; and

(g) any other statements or information required by the regulations; and

(h) unless in accordance with the regulations, for information to be disclosed in accordance with paragraph (d) and subparagraph (e)(i), any amounts are to be stated in dollars.

947B(3)    
Subject to subsection (4), the level of detail about a matter that is required is such as a person would reasonably require for the purpose of deciding whether to act on the advice as a retail client.

947B(4)    
The regulations may provide all or any of the following:

(a) that a provision of subsection (2) does not apply in a particular situation;

(b) that particular information is not required by a provision of subsection (2), either in a particular situation or generally;

(c) a more detailed statement of the information that is required by a provision of subsection (2), either in a particular situation or generally.

947B(5)    
The Statement of Advice:

(a) must also include any information required by section 947D , if applicable; and

(b) may also include other information.

947B(6)    
The statements and information included in the Statement of Advice must be worded and presented in a clear, concise and effective manner.

SECTION 947C   STATEMENT OF ADVICE GIVEN BY AUTHORISED REPRESENTATIVE - MAIN REQUIREMENTS  

947C(1)    
This section applies if the providing entity is an authorised representative.

947C(2)    
Subject to subsection (3) and to the regulations (see subsection (4)), the Statement of Advice must include the following statements and information:

(a) a statement setting out the advice; and

(b) information about the basis on which the advice is or was given; and

(c) a statement setting out the name and contact details of the providing entity; and

(d) a statement

(i) setting out the name and contact details of the authorising licensee, or of each of the authorising licensees; and

(ii) stating that the providing entity is the authorised representative of that licensee or those licensees; and

(e) information about the remuneration (including commission) or other benefits that any of the following is to receive that might reasonably be expected to be or have been capable of influencing the providing entity in providing the advice:

(i) the providing entity;

(ii) an employer of the providing entity;

(iii) the authorising licensee, or any of the authorising licensees;

(iv) an employee or director of the authorising licensee, or of any of the authorising licensees;

(v) an associate of any of the above;

(vi) any other person in relation to whom the regulations require the information to be provided; and

(f) information about:

(i) any other interests, whether pecuniary or not and whether direct or indirect, of the providing entity, any employer of the providing entity, the authorising licensee or any of the authorising licensees, or of any associate of any of those persons; and

(ii) any associations or relationships between the providing entity, any employer of the providing entity, the authorising licensee or any of the authorising licensees, or any associate of any of those persons, and the issuers of any financial products;

that might reasonably be expected to be or have been capable of influencing the providing entity in providing the advice; and

(g) if section 961H requires a warning to be given to the client in relation to the advice - a statement setting out, or recording, the warning required by that section; and

(h) any other statements or information required by the regulations; and

(i) unless in accordance with the regulations, for information to be disclosed in accordance with paragraph (e) and subparagraph (f)(i), any amounts are to be stated in dollars.

947C(3)    
Subject to subsection (4), the level of detail about a matter that is required is such as a person would reasonably require for the purpose of deciding whether to act on the advice as a retail client.

947C(4)    
The regulations may provide all or any of the following:

(a) that a provision of subsection (2) does not apply in a particular situation;

(b) that particular information is not required by a provision of subsection (2), either in a particular situation or generally;

(c) a more detailed statement of the information that is required by a provision of subsection (2), either in a particular situation or generally.

947C(5)    
The Statement of Advice:

(a) must also include any information required by section 947D , if applicable; and

(b) may also include other information.

947C(6)    
The statements and information included in the Statement of Advice must be worded and presented in a clear, concise and effective manner.

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