Financial Sector Reform Amendment (Hayne Royal Commission Response - Better Advice) Regulations 2021 (F2021L01854)

Schedule 1   Amendments

Australian Securities and Investments Commission Regulations 2001

1   After Part 2A

Insert:

Part 2B - Financial Services and Credit Panels

12N Circumstances in which ASIC must convene a Financial Services and Credit Panel

(1) For the purposes of subsection 139(2) of the Act, ASIC must convene a Financial Services and Credit Panel to perform functions or exercise powers under the corporations legislation in relation to a relevant provider if:

(a) a circumstance specified in subregulation (2) applies in relation to the relevant provider; and

(b) ASIC has not exercised, and does not propose to exercise, any of its powers under the corporations legislation against the relevant provider in relation to the circumstance.

(2) The following circumstances are specified for the purposes of paragraph (1)(a):

(a) the relevant provider becomes an insolvent under administration and ASIC is aware of the insolvency;

(b) the relevant provider is convicted of fraud and ASIC is aware of the conviction;

(c) ASIC reasonably believes that the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products (all within the meaning of Chapter 7 of the Corporations Act), having regard to:

(i) the matters specified in paragraphs 921U(a) to (k) of the Corporations Act (subject to Part VIIC of the Crimes Act 1914); and

(ii) any other matter ASIC considers relevant;

(d) ASIC reasonably believes that the relevant provider has contravened:

(i) subsection 921BA(1), (2) or (3) of the Corporations Act (relevant providers to meet education and training standards); or

(ii) subsection 921F(4) of the Corporations Act (about the provision of a Statement of Advice by a provisional relevant provider to a retail client); or

(iii) section 921Y of the Corporations Act (unregistered relevant providers not to provide personal advice);

(e) ASIC reasonably believes that:

(i) the relevant provider has contravened a financial services law (including a restricted civil penalty provision); and

(ii) the contravention is serious;

(f) both of the following apply:

(i) the relevant provider has been involved in the contravention of a financial services law (including a restricted civil penalty provision) by another person;

(ii) ASIC reasonably believes that the contravention is serious;

(g) subregulation (3) applies to the relevant provider.

Note: Subsection 921E(3) of the Corporations Act (relevant providers to comply with the Code of Ethics) is a financial services law.

(3) This subregulation applies to the relevant provider if:

(a) the relevant provider has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA relating to a complaint that relates to:

(i) a financial services business; or

(ii) credit activities (within the meaning of the National Consumer Credit Protection Act 2009); and

(b) ASIC reasonably believes that the refusal or failure:

(i) has resulted, or is likely to result, in material loss or damage to a client of the relevant provider; or

(ii) has resulted, or is likely to result, in a material benefit to the relevant provider; or

(iii) involves dishonesty or fraud.

Note: To work out whether a relevant provider has been linked as described in paragraph (a), see section 910C of the Corporations Act.

(4) A contravention is serious for the purposes of subparagraph (2)(e)(ii) or (f)(ii) if it:

(a) has resulted, or is likely to result, in material loss or damage to a client of the relevant provider; or

(b) has resulted, or is likely to result, in a material benefit to the relevant provider; or

(c) involves dishonesty or fraud.

12P Allowances and expenses payable for attendance at hearings of a Financial Services and Credit Panel

For the purposes of section 166 of the Act, a person who appears at a hearing of a Financial Services and Credit Panel in accordance with a summons issued under subsection 165(1) of the Act is entitled to be paid allowances and expenses in accordance with Schedule 2.