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 10 - Restrictions on use of terminology  

SECTION 923C   RESTRICTION ON USE OF TERMS " FINANCIAL ADVISER " AND " FINANCIAL PLANNER "  

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)    

the word or expression is assumed or used as part of a word or expression determined by the Minister under subsection (9A) .

923C(9A)    

The Minister may, by legislative instrument, determine a word or expression for the purposes of paragraph (9)(b) .

Contravention does not affect arrangements for compensation

923C(10)    
To avoid doubt, this section does not affect the obligation of a financial services licensee to have arrangements in place under section 912B .

Note: Section 912B requires financial services licensees to have in place arrangements for compensation if the licensee provides financial services to retail clients.