Superannuation Industry (Supervision) Act 1993
The trustee or the trustees of a regulated superannuation fund must not directly or indirectly pass the cost of providing financial product advice in relation to a member of the fund on to the member, unless: (a) the cost is to be paid in accordance with the terms of an arrangement entered into by the member; and (b) the trustee passes the cost on, or the trustees pass the cost on, in accordance with the terms of a written consent of the member; and (c) if the arrangement is an ongoing fee arrangement:
(i) the consent is of a kind described in paragraph 962R(2)(a) or 962S(3)(a) of the Corporations Act 2001 ; and
(d) if the arrangement is not an ongoing fee arrangement:
(ii) if requirements that apply in relation to the consent are determined under section 962T of that Act - the consent complies with those requirements; and
(i) the consent is for the trustee or the trustees to directly or indirectly pass the cost of providing financial product advice in relation to the member on to the member; and
(e) the trustee has, or the trustees have, the consent or a copy of the consent.
(ii) if requirements that apply in relation to the consent are determined under subsection (2) - the consent complies with those requirements; and
Note:
If the arrangement is an ongoing fee arrangement, it may be terminated as a result of section 962F or 962FA of the Corporations Act 2001 .
99FA(2)
ASIC may, by legislative instrument, make a determination specifying requirements for the purposes of subparagraph (1)(d)(ii) .
[ CCH Note: ASIC Superannuation Consent to Pass on Costs of Providing Advice) Instrument 2021/126 (F2021L00301 as amended: F2023C00647), effective 1 July 2021, states:
]PART 1 - PRELIMINARY
4 Definitions
4
In this instrument:financial product advice
has the meaning given by section 766B of the Corporations Act 2001 .ongoing fee arrangement
has the meaning given by section 962A of the Corporations Act 2001 .SIS Act
means the Superannuation Industry (Supervision) Act 1993 .PART 2 - DETERMINATION
5 Requirements for giving written consent to pass on advice costs to member
5(1)
The requirements in this section are specified for the purposes of subparagraph 99FA(1)(d)(ii) of the SIS Act in relation to giving written consent by a member of a regulated superannuation fund to permit the trustee or trustees of the regulated superannuation fund to pass the cost of providing financial product advice in relation to the member on to the member.
5(2)
A written consent may only be given by a member by signing, or otherwise agreeing in writing (including electronically) to the terms of, a written consent which complies with this section and must also bear a date indicating when the consent was given by the member.
5(3)
The written consent must include the following information:
(a) the name of the member at the time the member signs (or otherwise agrees in writing to the terms of) the written consent;
(b) the name and contact details of the fund;
(c) the name and contact details of the person who, at the time the member signs (or otherwise agrees in writing to the terms of) the written consent, is to be the provider of the financial product advice;
(d) an explanation of why the member ' s consent is being sought;
(e) how long the consent will last;
(f) information about the services that the member will be entitled to receive under the arrangement;
(g) as applicable:
(i) where the cost is passed on to the member by way of deducting fees from the member ' s superannuation interest - a statement to that effect, including details of the interest;
(ii) otherwise - an explanation of how the cost is passed on to the member, including details of the interest;
(h) as applicable:
(i) where subparagraph (g)(i) applies:
(A) the amount of the fees to be deducted from the member ' s superannuation interest; or
(B) if the amount of the fees cannot be determined - a reasonable estimate of the amount and an explanation of the method used to work out the estimate;
(ii) where subparagraph (g)(ii) applies:
(A) the amount of the cost; or
(B) if the amount of the cost cannot be determined - a reasonable estimate of the amount of the cost and an explanation of the method used to work out the estimate;
(i) a statement to the effect that the member can withdraw their consent at any time before the cost is passed on to the member by contacting the fund.
5(4)
The written consent must be worded and presented in a clear, concise and effective manner.
99FA(3)
Subsection (1) does not apply if the cost is shared by passing it on to the member mentioned in subsection (1) and to other members of the fund.
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