Corporations Amendment (Professional Standards of Financial Advisers) Act 2017 (7 of 2017)

Schedule 1 Amendments

Part 1 Amendments

Corporations Act 2001

16 At the end of Division 9 of Part 7.6

Add:

Subdivision B - Notice requirements relating to the Register of Relevant Providers

922D Obligation to notify ASIC about a person who becomes a relevant provider

Notice to include details about relevant provider

(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

(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.

922E Information about a relevant provider who is a financial services licensee

(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;

(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) information about both of the following:

(i) 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;

(ii) the relevant provider's membership (if any) of a professional association if an approval is in force under section 921K in relation to a compliance scheme monitored and enforced by the association;

(i) the name of the compliance scheme that is to cover the relevant provider.

Note: For the meaning of recent advising history , see section 922G.

Educational qualifications and memberships

(2) For the purposes of subparagraph (1)(h)(i), 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.

922F Information about a relevant provider who is not a financial services licensee

(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;

(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) information about both of the following:

(n) the name of the compliance scheme that is to cover the relevant provider.

Note: For the meaning of recent advising history , see section 922G.

Educational qualifications and memberships

(2) For the purposes of subparagraph (1)(m)(i), 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.

Information already registered

(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

(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.

922G Meaning of recent advising history

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 history includes all the information required under those paragraphs.

922H Ongoing obligation to notify ASIC when there is a change in a matter for a relevant provider

(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. Another example would be a change in the compliance scheme that covers a relevant provider.

(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;

922HA Obligation to notify ASIC of financial services licensee's CPD year

(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.

(2) A notice lodged under subsection (1) must include the day on which the licensee's CPD year is to begin.

(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

(4) A notice lodged under subsection (3) must include the day on which the licensee's CPD year is to begin.

922HB Obligation to notify ASIC of non-compliance with continuing professional development standard

(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

Note 1: 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.

Note 2: Subsection 921D(1) requires certain relevant providers to meet the continuing professional development standard in subsection 921B(5).

(2) The notice must state that the relevant provider has not complied with section 921D during the licensee's CPD year.

922HC Requirement to retain information

(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.

(2) The evidence must be retained for 12 months after the end of the CPD year.

Offence

(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.

922HD Obligation to notify ASIC in relation to failures to comply with the Code of Ethics

(1) A notice must be lodged under this subsection, in accordance with section 922L, if:

(a) a monitoring body for a compliance scheme determines under subsection 921L(1) that a relevant provider covered by the scheme has failed to comply with the Code of Ethics; or

(b) a sanction is imposed on a relevant provider covered by a compliance scheme in relation to a failure to comply with the Code of Ethics by the relevant provider.

(2) The notice must include the following information:

(a) if the relevant provider is a financial services licensee - the name of the licensee;

(b) if the relevant provider is not a financial services licensee:

(i) the name of the relevant provider; and

(ii) 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;

(d) if paragraph (1)(b) applies - details of the sanction imposed.

(3) If, in relation to the same failure to comply, the events mentioned in paragraphs (1)(a) and (b) occur within 30 business days of one another:

(a) a single notice may be lodged under subsection (1) within 30 business days of the later of those events; and

(b) only one notice is taken to be required to be caused to be lodged for the purposes of subsection 922M(1).

922J Obligation to notify ASIC about a person who starts to have control of a body corporate licensee

(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.

(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);

(d) the day the person starts to have control of the licensee.

922K Obligation to notify ASIC about a person who ceases to have control of a body corporate licensee

(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.

(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);

(d) the day the person ceases to have control of the licensee.

922L Requirement for notice to be lodged

Notice in prescribed form

(1) A notice under a notice provision must be in the prescribed form.

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.

When notice must be lodged

(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) if the notice is lodged under subsection 922HD(1) - (subject to subsection 922HD(3)) the day the monitoring body mentioned in subsection 922HD(1) determines under subsection 921L(1) that a relevant provider has failed to comply with the Code of Ethics or a sanction is imposed;

(e) if the notice is lodged under any other notice provision - the day of the event mentioned in subsection (1) of the notice provision.

(3) The information contained in the notice must be accurate as at the day mentioned in paragraph (2)(a), (b), (c), (d) or (e).

Who must cause notice to be lodged

(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.

(5) A notice under subsection 922HA(1) or (3) must be lodged by the financial services licensee mentioned in that section.

(6) A notice under section 922HD must be lodged by the monitoring body mentioned in subsection 922HD(1).

(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.

922M Offence for failing to comply with obligation to notify ASIC

(1) A person commits an offence if:

(a) the person is required to cause a notice to be lodged under a notice provision; and

(b) the person fails to cause the notice to be lodged in accordance with that provision.

Note: A notice must be lodged in accordance with section 922L in order to be lodged in accordance with a notice provision (see subsection (1) of the notice provision).

Penalty: 50 penalty units.

(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

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) Subsection 4K(2) of the Crimes Act 1914 does not apply to subsection (1) of this section.

Note: A person may commit an offence if the person knowingly gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code).

922N Obligation for relevant providers to provide information to financial services licensees

Information about relevant provider

(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

(i) comply with its obligation to lodge a notice relating to the person in accordance with section 922D; or

(ii) comply with its obligation to lodge, under section 922H, a notice relating to the person for the purposes of section 921H; or

(iii) determine whether the licensee has an obligation to lodge a notice under section 922HB.

Note: A person may commit an offence if the person knowingly gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code).

When information must be given

(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).

922P Change in matter within 30 business days

(1) Notices must be given under sections 922D, 922H and 922HD 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.

(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

(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.

Subdivision C - Register of Relevant Providers

922Q Register of Relevant Providers

Register to include details of relevant providers

(1) ASIC must enter details on a Register of Relevant Providers in respect of each person who is or was a relevant provider.

Contents of Register

(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) if a financial services licensee has lodged a notice under section 922HB in relation to the relevant provider - that the relevant provider did not comply with section 921D 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) if the relevant provider has given an undertaking under either or both section 93AA of the ASIC Act and section 322 of the National Consumer Credit Protection Act 2009 - information about that undertaking;

(r) if a monitoring body for a compliance scheme determines under subsection 921L(1) that the relevant provider who is covered by the scheme has failed to comply with the Code of Ethics:

(i) details of the failure to comply; and

(ii) details of any sanction imposed on the relevant provider in relation to the failure to comply;

(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) information about both of the following:

(i) the educational qualifications of, and any training courses completed by, the relevant provider (but not courses completed for the purposes of subsection 921B(5)), to the extent that the qualifications and training courses are relevant to the provision of financial services;

(v) the name of the compliance scheme that is to cover the relevant provider;

(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 (see subsection 922F(4)).

922R Relevant provider number

ASIC may give a unique number (or any unique combination of numbers, characters, symbols and letters) to a person who is a relevant provider.

922S Correcting the Register

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).

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