Financial Sector Reform (Hayne Royal Commission Response - Better Advice) Act 2021 (115 of 2021)

Schedule 1   Initial amendments

Part 1   Main amendments

Corporations Act 2001

98   In the appropriate position in Chapter 10

Insert:

Part 10.57 - Transitional provisions relating to the Financial Sector Reform (Hayne Royal Commission Response - Better Advice) Act 2021

Division 1 - Definitions

1684 Definitions

In this Part:

amending Act means the Financial Sector Reform (Hayne Royal Commission Response - Better Advice) Act 2021.

exam cut-off day , for an existing provider, means:

(a) if, on 1 January 2022, regulations made for the purposes of paragraph 1684B(a) prescribe a day in relation to the existing provider - that day; or

(b) otherwise - 1 January 2022.

existing provider has the meaning given by section 1546A.

old Tax Agent Services Act means the Tax Agent Services Act 2009 as in force immediately before 1 January 2022.

registered tax (financial) adviser has the meaning given by the old Tax Agent Services Act.

relevant provider has the meaning given by section 910A.

standards body has the meaning given by section 910A, as in force immediately before 1 January 2022.

Division 2 - Transitional provisions for existing providers

1684A Application - qualifications for existing providers

Existing providers who are relevant providers on 1 January 2026

(1) Subsection 921BA(1) and subsection 921BA(5) in so far as it relates to subsection 921BA(1), as inserted by Schedule 1 to the amending Act, apply on and after 1 January 2026 in relation to an existing provider who is a relevant provider if the existing provider is a relevant provider on 1 January 2026.

Existing providers who are not relevant providers on 1 January 2026

(2) If an existing provider who is a relevant provider is not a relevant provider on 1 January 2026, subsection 921BA(1) and subsection 921BA(5) in so far as it relates to subsection 921BA(1), as inserted by Schedule 1 to the amending Act, apply on and after 1 January 2026 in relation to the existing provider as if the reference in subsection 921BA(1), as inserted by Schedule 1 to the amending Act, to meeting the education and training standard in subsection 921B(2), as amended by Schedule 1 to the amending Act, were a reference to:

(a) meeting the education and training standard in subsection 921B(2), as amended by Schedule 1 to the amending Act; or

(b) completing one or more courses determined by the Minister under subsection 1684E(1) to give the existing provider qualifications equivalent to that standard.

1684B Application - exam for existing providers

Subsection 921BA(2) and subsection 921BA(5) in so far as it relates to subsection 921BA(2), as inserted by Schedule 1 to the amending Act, apply, in relation to an existing provider who is a relevant provider, on and after:

(a) if, on 1 January 2022, regulations made for the purposes of this paragraph prescribe a day in relation to the existing provider - that day; or

(b) otherwise - 1 January 2022.

1684C Application - existing providers who meet certain education and training standards exempt from work and training requirement

(1) Subsection 921BA(3) and subsection 921BA(5) in so far as it relates to subsection 921BA(3), as inserted by Schedule 1 to the amending Act, do not apply in relation to an existing provider who is a relevant provider.

(2) Subsection (1) has effect subject to subsections (3) and (4).

Consequences of failing to gain qualifications for existing providers who are relevant providers on certain days

(3) The provisions mentioned in subsection (1) apply, in relation to an existing provider who is a relevant provider, on and after 1 January 2026 if (and only if), at the start of that day:

(a) the existing provider is a relevant provider; and

(b) the existing provider has not:

(i) met the education and training standard in subsection 921B(2), as amended by Schedule 1 to the amending Act; or

(ii) completed one or more courses determined by the Minister under subsection 1684E(1) to give the existing provider qualifications equivalent to that standard.

Consequences of failing to pass exam for existing providers who are relevant providers on certain days

(4) The provisions mentioned in subsection (1) apply to an existing provider who is a relevant provider on and after the exam cut-off day for the existing provider, if (and only if), at the start of that day:

(a) the existing provider is a relevant provider; and

(b) the existing provider has not met the education and training standard in subsection 921B(3), as amended by Schedule 1 to the amending Act.

1684D Application - limitation on authorisation of existing providers to provide personal advice

(1) The following provisions (the relevant provisions ), as inserted by Schedule 1 to the amending Act, do not apply in relation to an existing provider:

(a) paragraph 921C(1)(a);

(b) paragraphs 921C(2)(a) and (b);

(c) paragraphs 921C(3)(a) and (b);

(d) paragraphs 921C(4)(a) and (b).

(2) Subsection (1) has effect subject to subsections (3) and (5).

Consequences of failing to gain qualifications

(3) Subject to subsection (4), the relevant provisions begin to apply on 1 January 2026, in relation to an existing provider if, at the start of that day, the existing provider has not:

(a) met the education and training standard in subsection 921B(2), as amended by Schedule 1 to the amending Act; or

(b) completed one or more courses determined by the Minister under subsection 1684E(1) to give the existing provider qualifications equivalent to that standard.

Exemption in relation to existing providers who are not relevant providers on 1 January 2026

(4) If, under subsection (3), the relevant provisions begin to apply to an existing provider who is not a relevant provider on 1 January 2026, the relevant provisions apply in relation to the existing provider as if:

(a) a reference in them to meeting the education and training standard in subsection 921B(2), as amended by Schedule 1 to the amending Act, were a reference to:

(i) meeting the education and training standard in that subsection; or

(ii) completing one or more courses determined by the Minister under subsection 1684E(1) to give the existing provider qualifications equivalent to that standard; and

(b) they did not include a reference to the education and training standard in subsection 921B(4), as amended by Schedule 1 to the amending Act, or a reference to undertaking work and training in accordance with that subsection.

Consequences of failing to pass exam

(5) Subject to subsection (6), the relevant provisions begin to apply, in relation to an existing provider, on the exam cut-off day for the existing provider if, at the start of that day, the existing provider has not met the education and training standard in subsection 921B(3), as amended by Schedule 1 to the amending Act.

Exemption in relation to existing providers who are not relevant providers on exam cut-off day

(6) If, under subsection (5), the relevant provisions begin to apply to an existing provider who is not a relevant provider on the exam cut-off day for the existing provider, the relevant provisions apply in relation to the existing provider as if:

(a) a reference in them to meeting the education and training standard in subsection 921B(2), as amended by Schedule 1 to the amending Act, were a reference to:

(i) meeting the education and training standard in that subsection; or

(ii) completing one or more courses determined by the Minister under subsection 1684E(1) to give the existing provider qualifications equivalent to that standard; and

(b) they did not include a reference to the education and training standard in subsection 921B(4), as amended by Schedule 1 to the amending Act, or a reference to undertaking work and training in accordance with that subsection.

Consequences of relevant provisions beginning to apply to existing provider

(7) If, on a particular day, any of the relevant provisions begin to apply to an existing provider who is a relevant provider, the existing provider is taken for the purposes of this Act to have ceased to be a relevant provider on that day.

(8) Subsection (7) does not prevent the existing provider again becoming a relevant provider.

1684E Transitional - Minister may determine courses for certain purposes

(1) The Minister may, by legislative instrument, determine courses for the purposes of the following provisions:

(a) paragraph 1684A(2)(b);

(b) subparagraph 1684C(3)(b)(ii);

(c) paragraph 1684D(3)(b);

(d) subparagraphs 1684D(4)(a)(ii) and (6)(a)(ii).

Saving of determinations made by standards body

(2) A determination that:

(a) was made under subsection 1546B(7), as in force immediately before 1 January 2022; and

(b) was in force immediately before that day;

continues in force (and may be dealt with) on and after that day as if it had been made under subsection (1) of this section.

Division 3 - Other transitional provisions

1684F Transitional - exams

If, immediately before 1 January 2022, a person met the education and training standard in subsection 921B(3), as in force at that time, the person is taken, at and after that time, to have met the education and training standard in subsection 921B(3), as amended by Schedule 1 to the amending Act.

1684G Application - continuing professional development

Subsection 921BA(4) and subsection 921BA(5) in so far as it relates to subsection 921BA(4), as inserted by Schedule 1 to the amending Act, apply in relation to a financial services licensee's CPD year that begins on or after 1 January 2022.

1684H Application - action against relevant providers

Section 921K, as inserted by Schedule 1 to the amending Act, applies in relation to an act or omission by a relevant provider that occurs, or a circumstance that arises in relation to a relevant provider, on or after 1 January 2022.

1684J Application - recommendations to ASIC in relation to restricted civil penalty provisions

Section 921Q, as inserted by Schedule 1 to the amending Act, applies in relation to an act or omission by a relevant provider that occurs on or after 1 January 2022.

1684K Application - warnings and reprimands

Sections 921S and 921T, as inserted by Schedule 1 to the amending Act, apply in relation to an act or omission by a relevant provider that occurs, or a circumstance that arises in relation to a relevant provider, on or after 1 January 2022.

1684L Application - requirement for relevant providers to be registered

Sections 921Y and 921Z, as inserted by Schedule 1 to the amending Act, apply on and after 1 January 2023.

1684M Saving - determinations made for education and training standards

An instrument that:

(a) was made under subparagraph 921U(2)(a)(i), (iii) or (iv), as in force immediately before 1 January 2022; and

(b) was in force immediately before that day;

continues in force (and may be dealt with) on and after that day as if it had been made under subsection 921B(6), as added by Schedule 1 to the amending Act.

1684N Saving - word or expression to refer to a provisional relevant provider

A determination that:

(a) was made under subparagraph 921U(2)(a)(v), as in force immediately before 1 January 2022; and

(b) was in force immediately before that day;

continues in force (and may be dealt with) on and after that day as if it had been made under subsection 923C(9A), as inserted by Schedule 1 to the amending Act.

1684P Saving - Code of Ethics

The Code of Ethics that:

(a) was made under paragraph 921U(2)(b), as in force immediately before 1 January 2022; and

(b) was in force immediately before that day;

continues in force (and may be dealt with) on and after that day as if it had been made under section 921E, as amended by Schedule 1 to the amending Act.

1684Q Transitional - approvals of foreign qualifications

An application for approval of a foreign qualification that:

(a) was made under subsection 921V(1), as in force immediately before 1 January 2022; and

(b) had not been finally determined at the start of that day;

may be dealt with, on and after that day, as if it had been made under subsection 921G(1), as added by Schedule 1 to the amending Act.

1684R Saving - approvals of foreign qualifications that are in force

An approval of a foreign qualification that:

(a) was given under paragraph 921V(3)(a), as in force immediately before 1 January 2022; and

(b) was in force immediately before that day;

continues in force (and may be dealt with) on and after that day as if it had been given under paragraph 921G(2)(a), as added by Schedule 1 to the amending Act.

1684S Transitional - approvals of foreign qualifications that are not yet in force

If:

(a) for the purposes of approving a foreign qualification for a person, one or more courses were specified for the person under subsection 921V(5), as in force immediately before 1 January 2022; and

(b) immediately before that day, the person had not completed all of those courses;

section 921G, as added by Schedule 1 to the amending Act, has effect on and after that day, as if the courses were specified for the person under subparagraph 921G(3)(b)(i).

1684T Transitional - orders under section 30-20 of the old Tax Agent Services Act

(1) This section applies if a relevant provider does not comply with:

(a) an order under section 30-20 of the old Tax Agent Services Act that is in force against the relevant provider immediately before 1 January 2022; or

(b) an order made on or after that day against the relevant provider, in relation to an act or omission before that day, under section 30-20 of the old Tax Agent Services Act.

Action by Financial Services and Credit Panels

(2) If no other Financial Services and Credit Panel has taken action against the relevant provider under this subsection, a Financial Services and Credit Panel may do one of the following:

(a) give the relevant provider a warning or reprimand;

(b) make an instrument of a kind specified in subsection 921L(1), as inserted by Schedule 1 to the amending Act, in relation to the relevant provider.

Action by ASIC

(3) If no Financial Services and Credit Panel has taken action against the relevant provider under subsection (2), ASIC may make an order against the relevant provider.

(4) If:

(a) no Financial Services and Credit Panel has taken action against the relevant provider under subsection (2); and

(b) ASIC has not made an order against the relevant provider under subsection (3);

ASIC must give the relevant provider a warning or reprimand.

Application of Act to action taken by Financial Services and Credit Panels under subsection (2)

(5) This Act applies in relation to a warning or reprimand given under paragraph (2)(a) as if the warning or reprimand were given under subsection 921T(1), as inserted by Schedule 1 to the amending Act.

(6) This Act applies in relation to an instrument made, or proposed to be made, under paragraph (2)(b) as if the instrument were made, or proposed to be made, under subsection 921K(1), as inserted by Schedule 1 to the amending Act.

Application of Act to action taken by ASIC under subsection (3) or (4)

(7) This Act applies in relation to an order made, or proposed to be made, under subsection (3) as if the order were a banning order.

(8) This Act applies in relation to a warning or reprimand given under subsection (4) as if the warning or reprimand were given under subsection 921S(1), as inserted by Schedule 1 to the amending Act.

1684U Transitional - deemed registration of certain relevant providers

(1) This section applies in relation to a person if:

(a) the person is a relevant provider; and

(b) immediately before 1 January 2022, the person was a registered tax (financial) adviser; and

(c) the person's registration (the old registration ) as a registered tax (financial) adviser continues, or is, in force on and after that day because of item 139 or 140 of Schedule 1 to the amending Act.

(2) On and after the application day for the person, this Act applies in relation to the person as if:

(a) the person were registered under subsection 921ZC(1), as inserted by Schedule 1 to the amending Act, because of an application in accordance with:

(i) if the relevant provider is a financial services licensee - section 921ZA, as inserted by Schedule 1 to the amending Act; or

(ii) if the relevant provider is not a financial services licensee - section 921ZB, as inserted by Schedule 1 to the amending Act; and

(b) the person's registration under subsection 921ZC(1), as inserted by Schedule 1 to the amending Act, came into force on the application day for the person.

(3) For the purposes of this section, the application day for a person is:

(a) if the person's old registration continues in force because of item 139 of Schedule 1 to the amending Act - 1 January 2022; or

(b) if the person's old registration is in force because of item 140 of Schedule 1 to the amending Act - the day the old registration comes into force under that item.

1684V Transitional - transfer of documents

(1) After 1 January 2022, any document that:

(a) was in the possession of a director or employee of the standards body immediately before that day; and

(b) relates to the functions of the standards body (other than the exam function);

is to be transferred to the Secretary of the Department.

(2) After 1 January 2022, any document that:

(a) was in the possession of a director or employee of the standards body immediately before that day; and

(b) relates to the exam function of the standards body;

is to be transferred to ASIC.

(3) In this section:

exam function means the function mentioned in paragraph 921U(1)(d), as in force immediately before 1 January 2022.