Treasury Laws Amendment (Miscellaneous Amendments) Regulations 2018 (F2018L01691)

Schedule 1   Amendments

Part 3   Amendments commencing the day after registration

Division 2   Miscellaneous amendments

Corporations Regulations 2001

10   At the end of Part 7.6

Add:

7.6.07A Modification of section 923C

For paragraph 926B(1)(c) of the Act, Part 7.6 of the Act applies as if subsections 923C(1) to (10) of the Act were modified to read as follows:

"(1) An individual contravenes this subsection if:

(a) the individual carries on a financial services business or provides a financial service (whether or not on behalf of another person); and

(b) the individual 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 individual is not a relevant provider;

(ii) the individual is a provisional relevant provider;

(iii) the individual is a limited-service time-sharing adviser.

Note 1: For the meanings of r estricted 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)).

(2) A person contravenes this subsection if:

(a) the person carries on a financial services business or provides a financial service; and

(b) an individual provides a financial service on behalf of the person; and

(c) the 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 individual is not a relevant provider;

(ii) the individual is a provisional relevant provider;

(iii) the individual 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

(3) It is not a contravention of subsection (1) for an individual to assume or use a restricted word or expression if:

(a) the individual provides advice to wholesale clients; and

(b) the individual 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.

(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

(5) It is not a contravention of subsection (1) for an individual to assume or use a restricted word or expression if:

(a) the individual is an employee or director of a body; and

(b) the individual provides advice to the body; and

(c) the individual 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.

(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

(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

(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.

(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 specified by the standards body for the purposes of subparagraph 921U(2)(a)(v).

Contravention does not affect compensation arrangements

(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 compensation arrangements if the licensee provides financial services to retail clients.".