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
49 Divisions 8B and 8C of Part 7.6
Repeal the Divisions, substitute:
Division 8B - Action against relevant providers
Subdivision A - Action by Financial Services and Credit Panels
921K Power of Financial Services and Credit Panels to take action against relevant providers
(1) Subject to subsections (2) and (3), a Financial Services and Credit Panel may make an instrument of a kind specified in subsection 921L(1) in relation to a relevant provider if:
(a) the relevant provider becomes an insolvent under administration; or
(b) the relevant provider is convicted of fraud; or
(c) the panel reasonably believes, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914, that the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products; or
(d) the panel reasonably believes that the relevant provider has contravened a financial services law (including a restricted civil penalty provision); or
(e) the relevant provider has been involved in the contravention of a financial services law (including a restricted civil penalty provision) by another person; or
(f) 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); or
(g) subsection 920A(1C) (when a person has been an officer of a corporation unable to pay its debts) applies to the relevant provider in relation to 2 or more corporations.
Note 1: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
Note 2: Subsection 921E(3) (relevant providers to comply with the Code of Ethics) is a financial services law.
Note 3: To work out whether a relevant provider has been linked as described in paragraph (f), see section 910C.
Proposed action notice given in relation to relevant circumstances
(2) A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances (the relevant circumstances ) mentioned in that subsection unless:
(a) the panel gave the relevant provider a proposed action notice in relation to a proposal to make the instrument because of the relevant circumstances and either:
(i) no submission or request for a hearing was made within the response period for the notice; or
(ii) a submission or request for a hearing was made within the response period for the notice and the panel has taken into account the submission or held the hearing (as the case may be); or
(b) all of the following apply:
(i) the panel gave the relevant provider a proposed action notice in relation to a proposal to make a different instrument in relation to the relevant circumstances or to give the relevant provider an infringement notice in relation to the relevant circumstances;
(ii) a submission or request for a hearing was made within the response period for the notice;
(iii) the panel has taken into account the submission or held the hearing (as the case may be).
Infringement notices, warnings and reprimands
(3) A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances mentioned in that subsection if the panel, or another Financial Services and Credit Panel, has given the relevant provider an infringement notice, or a warning or reprimand, in relation to those circumstances.
When a person contravenes a financial services law
(4) To avoid doubt, a person contravenes a financial services law if a person fails to comply with a duty imposed under that law, even if the provision imposing the duty is not an offence provision or a civil penalty provision.
Instruments not legislative
(5) An instrument made under subsection (1) is not a legislative instrument.
Interaction with ASIC Act
(6) Subsection (2) does not limit section 158 of the ASIC Act (panels to take account of evidence and submissions).
921L Instruments that Financial Services and Credit Panels may make in relation to relevant providers
(1) For the purposes of subsection 921K(1), the following kinds of instrument are specified:
(a) a written direction that a relevant provider:
(i) undertake specified training; or
(ii) receive specified counselling; or
(iii) receive specified supervision; or
(iv) report specified matters to ASIC;
(b) a written order (a registration suspension order ) suspending a relevant provider's registration under subsection 921ZC(1) for a period (the suspension period ) specified in the order;
(c) a written order (a registration prohibition order ) that:
(i) cancels the registration of a relevant provider under subsection 921ZC(1) at a time (the cancellation time ) specified in the order; and
(ii) provides that the relevant provider is not to be registered under that subsection until after a day (the prohibition end day ) specified in the order.
Note: If a registration prohibition order is in force against a relevant provider:
(a) the relevant provider's registration under subsection 921ZC(1) will cease to be in force at the cancellation time specified in the order (unless the registration has ceased to be in force at an earlier time) (see sections 921ZD and 921ZE); and
(b) ASIC must refuse to register the relevant provider until after the prohibition end day specified in the order (see subsection 921ZC(3)).
Effect of paragraph (1)(a) direction
(2) A relevant provider must comply with a direction in relation to the relevant provider that is in force under paragraph (1)(a).
Note: This subsection is a civil penalty provision (see section 1317E).
Effect of registration suspension order
(3) For the purposes of this Part, if a registration suspension order is in force against a relevant provider, the relevant provider's registration under subsection 921ZC(1) is taken not to be in force during the suspension period specified in the order.
Suspension period and cancellation time
(4) The suspension period specified in a registration suspension order that is made in relation to a relevant provider must begin at or after the time a copy of the order is given to the relevant provider.
(5) The cancellation time specified in a registration prohibition order that is made in relation to a relevant provider must be a time that is at or after a copy of the order is given to the relevant provider.
When instruments come into force
(6) An instrument of a kind specified in subsection (1) that is made in relation to a relevant provider comes into force when a copy of it is given to the relevant provider in accordance with subsection 921M(1).
921M Copy of instrument to be given to relevant provider etc.
(1) If, under subsection 921K(1), a Financial Services and Credit Panel makes an instrument in relation to a relevant provider, the panel must:
(a) give a copy of the instrument to the relevant provider; and
(b) at the same time, give a copy of the instrument to:
(i) ASIC; and
(ii) if the relevant provider is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products - the licensee; and
(c) at the same time, give the relevant provider a written notice informing the relevant provider of their right to make an application under subsection 921N(3) in relation to the instrument.
Note: ASIC must enter details of certain instruments in the Register of Relevant Providers (see paragraph 922Q(2)(uc)).
(2) A copy of an instrument given to a person under paragraph (1)(a) or (b) must be accompanied by a statement of reasons for the decision to make the instrument.
(3) A failure to comply with subsection (1) or (2) in relation to an instrument does not affect the validity of the instrument.
921N Variation or revocation of instruments affecting relevant providers
(1) This section applies if an instrument of a kind specified in subsection 921L(1) is in force against a relevant provider.
Variation or revocation at ASIC's initiative
(2) ASIC may request a Financial Services and Credit Panel to make a decision under subsection (5) in relation to the instrument if ASIC is satisfied that there has been a change in any of the circumstances on the basis of which the instrument was made.
Application by relevant provider for variation or revocation
(3) The relevant provider may apply to ASIC in the approved form for:
(a) the instrument to be revoked; or
(b) a specified variation to be made to the instrument.
(4) If the relevant provider makes an application under subsection (3), ASIC must decide to:
(a) request a Financial Services and Credit Panel to make a decision under subsection (5) in relation to the instrument; or
(b) refuse to make such a request.
Decisions of Financial Services and Credit Panel about variations or revocations
(5) If ASIC makes a request of a Financial Services and Credit Panel under subsection (2) or paragraph (4)(a), the panel must decide to:
(a) revoke the instrument; or
(b) if the relevant provider made an application under subsection (3) - make the variation of the instrument specified in the application; or
(c) make a variation of the instrument (even if the relevant provider made an application under subsection (3) and the application specified another variation); or
(d) refuse to revoke the instrument; or
(e) refuse to vary the instrument.
(6) The panel must give written notice of the panel's decision to:
(a) if the decision is mentioned in paragraph (5)(a), (b) or (c) - all of the following:
(i) the relevant provider;
(ii) ASIC;
(iii) if the relevant provider is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products - the licensee; or
(b) otherwise - the relevant provider.
(7) A notice given under subsection (6) must be accompanied by a statement of reasons for the decision to which the notice relates.
Subdivision B - Proposed action notices etc.
921P Proposed action notice
(1) A Financial Services and Credit Panel must give a written notice (a proposed action notice ) to a relevant provider if the panel proposes to:
(a) make an instrument under subsection 921K(1) in relation to the relevant provider because of circumstances (the relevant circumstances ) mentioned in that subsection; or
(b) give the relevant provider an infringement notice for the alleged contravention by the relevant provider of a restricted civil penalty provision.
(2) The proposed action notice must:
(a) set out details of the action proposed to be taken, including:
(i) for an action mentioned in paragraph (1)(a) - the relevant circumstances; and
(ii) for an action mentioned in paragraph (1)(b) - the alleged contravention and the amount to be stated in the infringement notice for the purposes of paragraph 1317DAP(1)(f); and
(b) invite the relevant provider to do either of the following within the period of 28 days beginning on the day the notice is given (or such longer period as is approved by the panel) (the response period ):
(i) make a submission, in writing, in relation to the action;
(ii) make a request, in writing, that the panel hold a hearing under Division 4 of Part 9 of the ASIC Act in relation to the action; and
(c) inform the relevant provider that if no submission or request for a hearing is made within the response period, the panel may take the action; and
(d) for an action mentioned in paragraph (1)(a) - inform the relevant provider that if the panel makes an instrument under subsection 921K(1), ASIC may be required to enter details of the instrument in the Register of Relevant Providers in accordance with paragraph 922Q(2)(uc).
921Q Recommendations to ASIC in relation to restricted civil penalty provisions
(1) If a Financial Services and Credit Panel reasonably believes that a relevant provider has contravened a restricted civil penalty provision, the panel may, by written notice given to ASIC, recommend that ASIC make an application under subsection 1317J(1) in relation to the alleged contravention.
Note: If ASIC decides to not follow the panel's recommendation, ASIC must report on the recommendation and ASIC's reasons for not following it (see subparagraph 136(1)(da)(iv) of the ASIC Act).
(2) Subsection (1) applies whether or not the panel also makes an instrument under subsection 921K(1) in relation to the alleged contravention by the relevant provider.
(3) Each of the following is a restricted civil penalty provision :
(a) subsection 921BA(5);
(b) subsection 921BB(4);
(c) subsection 921E(3);
(d) subsection 921F(8);
(e) section 921Y.
921R Notices to Tax Practitioners Board about qualified tax relevant providers who are registered tax agents
(1) ASIC must give a written notice to the Tax Practitioners Board if an action specified in subsection (2) is taken against a qualified tax relevant provider who is a registered tax agent.
(2) The following actions are specified:
(a) a Financial Services and Credit Panel making an instrument under subsection 921K(1) in relation to the qualified tax relevant provider;
(b) ASIC giving the qualified tax relevant provider a warning or reprimand under subsection 921S(1);
(c) a Financial Services and Credit Panel giving the qualified tax relevant provider a warning or reprimand under subsection 921T(1);
(d) a Financial Services and Credit Panel giving the qualified tax relevant provider an infringement notice for the alleged contravention by the qualified tax relevant provider of a restricted civil penalty provision;
(e) ASIC making an application under subsection 1317J(1) in relation to the alleged contravention by the qualified tax relevant provider of a restricted civil penalty provision;
(f) a Financial Services and Credit Panel accepting an undertaking by the qualified tax relevant provider under subsection 171E(1) of the ASIC Act.
(3) A notice under subsection (1) must include:
(a) details of the action; and
(b) if the action is a Financial Services and Credit Panel making an instrument under subsection 921K(1) - the panel's reasons for making the instrument; and
(c) if the action is ASIC giving the qualified tax relevant provider a warning or reprimand - ASIC's reasons for giving the warning or reprimand; and
(d) if the action is a Financial Services and Credit Panel giving the qualified tax relevant provider a warning or reprimand - the panel's reasons for giving the warning or reprimand.
Notice about variation etc. of certain instruments
(4) ASIC must give a written notice to the Tax Practitioners Board if:
(a) ASIC has given a notice to the Tax Practitioners Board under subsection (1); and
(b) an instrument mentioned in that notice is subsequently varied, revoked or withdrawn.
(5) A notice under subsection (4) must include details of the variation, revocation or withdrawal, as the case may be.
Subdivision C - Warnings and reprimands
921S Warnings and reprimands by ASIC
(1) ASIC must give a relevant provider a written warning or reprimand if:
(a) ASIC reasonably believes that one or more of the following circumstances exist or have occurred in relation to the relevant provider:
(i) the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914;
(ii) the relevant provider has contravened a financial services law (including a restricted civil penalty provision);
(iii) a circumstance mentioned in any of paragraphs 921K(1)(a), (b), (e), (f) or (g) (power of Financial Services and Credit Panels to take action against relevant providers); and
(b) ASIC has not convened, and does not propose to convene, a Financial Services and Credit Panel under subsection 139(1) of the ASIC Act to perform functions or exercise powers under the corporations legislation in relation to that circumstance or those circumstances; and
(c) ASIC has not exercised, and does not propose to exercise, any of its powers under the corporations legislation (other than this section) against the relevant provider in relation to that circumstance or those circumstances.
Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
(2) If the relevant provider is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products, ASIC must give a copy of the warning or reprimand to the licensee.
(3) The warning or reprimand, and any copy of the warning or reprimand given to a financial services licensee under subsection (2), must be accompanied by a statement of reasons for the decision to give the warning or reprimand.
(4) A warning or reprimand given under subsection (1) is not a legislative instrument.
921T Warnings and reprimands by Financial Services and Credit Panels
(1) A Financial Services and Credit Panel may give a relevant provider a written warning or reprimand if the panel reasonably believes that:
(a) the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914; or
(b) the relevant provider has contravened a financial services law (including a restricted civil penalty provision); or
(c) a circumstance mentioned in any of paragraphs 921K(1)(a), (b), (e), (f) or (g) (power of Financial Services and Credit Panels to take action against relevant providers) exists or has occurred in relation to the relevant provider.
Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
(2) If a Financial Services and Credit Panel gives a relevant provider a warning or reprimand under subsection (1), the panel must, at the same time, give a copy of the warning or reprimand to:
(a) ASIC; and
(b) if the relevant provider is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products - the licensee.
(3) The warning or reprimand, and each copy of the warning or reprimand given to a person under subsection (2), must be accompanied by a statement of reasons for the decision to give the warning or reprimand.
(4) A warning or reprimand given under subsection (1) is not a legislative instrument.
Subdivision D - Fit and proper person test
921U Fit and proper person test for relevant providers
The following matters are specified in relation to a relevant provider and a Financial Services and Credit Panel:
(a) whether any of the following of the relevant provider has ever been suspended or cancelled:
(i) an Australian financial services licence;
(ii) an Australian credit licence, or a registration under the Transitional Act, within the meaning of the National Consumer Credit Protection Act 2009;
(b) whether any of the following has ever been made against the relevant provider:
(i) a banning order, or a disqualification order under Subdivision B of Division 8 of this Part;
(ii) a banning order, or a disqualification order, under Part 2-4 of the National Consumer Credit Protection Act 2009;
(c) whether the relevant provider has ever been disqualified under this Act, or any other law of the Commonwealth or of a State or Territory, from managing corporations;
(d) whether the relevant provider has ever been banned from engaging in a credit activity (within the meaning of the National Consumer Credit Protection Act 2009) under a law of a State or Territory;
(e) whether the relevant provider has ever been linked to a refusal or failure to give effect to a determination made by AFCA;
(f) whether the relevant provider has ever been an insolvent under administration;
(g) whether, in the last 10 years, the relevant provider has been convicted of an offence;
(h) any relevant information given to ASIC, or an authority of a State or Territory, in relation to the relevant provider;
(i) whether, in the last 10 years, a Financial Services and Credit Panel has made an instrument under subsection 921K(1) in relation to the relevant provider;
(j) whether, in the last 10 years, a Financial Services and Credit Panel has given the relevant provider an infringement notice (unless the infringement notice was withdrawn);
(k) any other matter prescribed by the regulations;
(l) any other matter the panel considers relevant.
Subdivision E - Review of decisions made under this Division etc.
921V Review of decisions etc.
Review of decisions
(1) A person may apply to the Tribunal for review of any of the following:
(a) a decision by a Financial Services and Credit Panel to make an instrument under subsection 921K(1);
(b) a decision by a Financial Services and Credit Panel that is covered by paragraph 921N(5)(c), (d) or (e);
(c) a decision by a Financial Services and Credit Panel to give a relevant provider a warning or reprimand under subsection 921T(1).
Notice of reviewable decisions and review rights
(2) Section 1317D applies in relation to a decision by a Financial Services and Credit Panel that is covered by subsection (1) of this section as if:
(a) the panel were a decision maker for the purposes of section 1317D; and
(b) the decision were a decision to which section 1317B applied.
Subdivision F - Electronic communication
921W Electronic communication of documents given by Financial Services and Credit Panels etc.
(1) This section applies to any document that is required or permitted to be given to a person:
(a) by a Financial Services and Credit Panel, or the Chair of a Financial Services and Credit Panel, under a provision of this Act; or
(b) by ASIC under any of the following:
(i) Division 8A of this Part (Professional standards for relevant providers etc.);
(ii) this Division;
(iii) Division 8C of this Part (Registration of relevant providers);
(iv) Division 3 of Part 9.4AB (Infringement notices given by Financial Services and Credit Panels).
(2) The document may be given to the recipient by means of an electronic communication.
(3) The document may be given by giving the recipient (by means of an electronic communication or otherwise) sufficient information to allow the recipient to access the document electronically.
(4) However, an electronic communication or electronic access may only be used if, at the time the electronic communication is used or information about the electronic access is given:
(a) it is reasonable to expect that the document would be readily accessible so as to be useable for subsequent reference; and
(b) there is a nominated electronic address in relation to the recipient.
921X Electronic communication of documents given to Financial Services and Credit Panels etc.
(1) This section applies to any document that is required or permitted to be given to:
(a) a Financial Services and Credit Panel, or the Chair of a Financial Services and Credit Panel, under a provision of this Act; or
(b) ASIC under any of the following:
(i) Division 8A of this Part (Professional standards for relevant providers etc.);
(ii) this Division;
(iii) Division 8C of this Part (Registration of relevant providers);
(iv) Division 3 of Part 9.4AB (Infringement notices given by Financial Services and Credit Panels).
Giving a document to a Financial Services and Credit Panel etc.
(2) The document may be given to the recipient by means of an electronic communication.
Signing the document
(3) If the document is required to be signed by the person under a provision mentioned in subsection (1), that requirement is taken to have been met in relation to the electronic communication of the document if:
(a) the person receives a copy or counterpart of the document:
(i) that is in a physical form; or
(ii) by means of an electronic communication; and
(b) the copy or counterpart includes the entire contents of the document; and
(c) the person indicates, by means of an electronic communication, that the person has signed the document; and
(d) a method is used to identify the person and to indicate the person's intention in respect of the information communicated in the document; and
(e) the method used was either:
(i) as reliable as appropriate for the purpose for which the document was generated or communicated, in light of all the circumstances, including any relevant agreement; or
(ii) proven in fact to have fulfilled the functions described in paragraph (d), by itself or together with further evidence.
(4) For the purposes of paragraph (3)(b), a copy or counterpart of a document need not include:
(a) the signature of another person signing the document; or
(b) any material included in the document to identify another person signing the document or to indicate another person's intention in respect of the contents of the document.
Division 8C - Registration of relevant providers
Subdivision A - Requirement for relevant providers to be registered
921Y Unregistered relevant providers not to provide personal advice
A relevant provider must not provide personal advice to retail clients in relation to relevant financial products unless a registration of the relevant provider under subsection 921ZC(1) is in force.
Note: This section is a restricted civil penalty provision (see sections 921Q and 1317E).
921Z Financial services licensees not to continue to authorise unregistered relevant providers to provide personal advice
Authorised representatives
(1) A financial services licensee contravenes this subsection if:
(a) the licensee has given a relevant provider a written notice under subsection 916A(1) authorising the relevant provider to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products; and
(b) the relevant provider provides such advice; and
(c) at the time when the relevant provider does so:
(i) the licensee has not revoked the authorisation under subsection 916A(4); and
(ii) no registration of the relevant provider under subsection 921ZC(1) is in force.
Employees and directors
(2) A financial services licensee contravenes this subsection if:
(a) the licensee authorises a relevant provider who is an employee or director of the licensee, or of a related body corporate of the licensee, to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products; and
(b) the relevant provider provides such advice; and
(c) at the time when the relevant provider does so:
(i) the licensee has not ceased to authorise the relevant provider as described in paragraph (a); and
(ii) no registration of the relevant provider under subsection 921ZC(1) is in force.
Strict liability offence
(3) A person commits an offence of strict liability if the person contravenes subsection (1) or (2).
Civil liability
(4) A person contravenes this subsection if the person contravenes subsection (1) or (2).
Note: This subsection is a civil penalty provision (see section 1317E).
Subdivision B - Applications for registration
921ZA Application for registration - relevant providers who are financial services licensees
(1) A relevant provider who is a financial services licensee may apply to ASIC to be registered under subsection 921ZC(1).
Note: A notice must be lodged with ASIC under section 922D if a person becomes a relevant provider.
(2) The application must:
(a) be in the approved form; and
(b) include the following written declarations by the relevant provider:
(i) that the relevant provider is a fit and proper person to provide personal advice to retail clients in relation to relevant financial products;
(ii) if subsection 921BA(1) applies to the relevant provider - that the relevant provider has met the education and training standard in subsection 921B(2);
(iii) if subsection 921BA(2) applies to the relevant provider - that the relevant provider has met the education and training standard in subsection 921B(3);
(iv) if subsection 921BA(3) applies to the relevant provider - that the relevant provider has met the education and training standard in subsection 921B(4);
(v) if the relevant provider provides, or is to provide, a tax (financial) advice service - that the relevant provider is a qualified tax relevant provider.
Note: A person may commit an offence or contravene a civil penalty provision if the person gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code).
(3) Subject to Part VIIC of the Crimes Act 1914, the relevant provider must have regard to the matters specified in section 921U (other than the matters specified in paragraphs (h) and (l) of that section) for the purposes of making a declaration mentioned in subparagraph (2)(b)(i) of this section.
Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
921ZB Application for registration - relevant providers who are not financial services licensees
(1) A financial services licensee may apply to ASIC to register a relevant provider under subsection 921ZC(1).
Note 1: A notice must be lodged with ASIC under section 922D if a person becomes a relevant provider.
Note 2: An application cannot be made under this subsection in relation to a provisional relevant provider (see subparagraph (2)(b)(v) of this section).
(2) The application must:
(a) be in the approved form; and
(b) include the following:
(i) a written declaration by the licensee that the relevant provider has given the licensee a declaration that the relevant provider is a fit and proper person to provide personal advice to retail clients in relation to relevant financial products;
(ii) a written declaration by the licensee as to whether the licensee is aware of any reason why the relevant provider might not be a fit and proper person to provide personal advice to retail clients in relation to relevant financial products;
(iii) if subsection 921BA(1) applies to the relevant provider - a written declaration by the licensee that the relevant provider has met the education and training standard in subsection 921B(2);
(iv) if subsection 921BA(2) applies to the relevant provider - a written declaration by the licensee that the relevant provider has met the education and training standard in subsection 921B(3);
(v) if subsection 921BA(3) applies to the relevant provider - a written declaration by the licensee that the relevant provider has met the education and training standard in subsection 921B(4);
(vi) if the relevant provider provides, or is to provide, a tax (financial) advice service - a written declaration by the licensee that the relevant provider is a qualified tax relevant provider.
Note: A person may commit an offence or contravene a civil penalty provision if the person gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code).
(3) Subject to Part VIIC of the Crimes Act 1914, the relevant provider and the licensee must have regard to the matters specified in section 921U (other than the matters specified in paragraphs (h) and (l) of that section) for the purposes of making a declaration mentioned in subparagraph (2)(b)(i) or (ii) of this section.
Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
Subdivision C - Registration and period of registration
921ZC Registration of relevant providers
(1) Subject to subsections (2) and (3), if an application is made in accordance with section 921ZA or 921ZB to register a relevant provider, ASIC must register the relevant provider by recording in the Register of Relevant Providers that the relevant provider is registered under this subsection.
Refusal to register relevant provider
(2) ASIC must refuse to register the relevant provider if:
(a) a banning order is in force against the relevant provider that has the effect that the relevant provider is prohibited from providing personal advice to retail clients in relation to relevant financial products; or
(b) a disqualification order under Division 8 is in force against the relevant provider that has the effect of disqualifying the relevant provider from providing personal advice to retail clients in relation to relevant financial products.
(3) If a registration prohibition order is in force against the relevant provider, ASIC must refuse to register the relevant provider until after the prohibition end day specified in the order.
Notice of registration
(4) If:
(a) the application is made in accordance with section 921ZA; and
(b) ASIC registers the relevant provider under subsection (1);
ASIC must, as soon as practicable after recording in the Register of Relevant Providers that the relevant provider is registered under subsection (1), give a written notice of the registration to the relevant provider.
(5) If:
(a) the application is made in accordance with section 921ZB; and
(b) ASIC registers the relevant provider under subsection (1);
ASIC must, as soon as practicable after recording in the Register of Relevant Providers that the relevant provider is registered under subsection (1), give a written notice of the registration to:
(c) the relevant provider; and
(d) the applicant.
Notice of refusal to register relevant provider
(6) If ASIC refuses to register the relevant provider, ASIC must, within 5 business days after the refusal, give a written notice of the refusal to:
(a) the relevant provider; and
(b) if the application is made in accordance with section 921ZB - the applicant.
(7) The notice must specify which of the following provisions apply in relation to the relevant provider:
(a) paragraph (2)(a) or (b);
(b) subsection (3).
921ZD Period of registration - relevant providers who are financial services licensees
If a relevant provider who is a financial services licensee makes an application in accordance with section 921ZA, and ASIC registers the relevant provider under subsection 921ZC(1), the registration:
(a) comes into force when ASIC records in the Register of Relevant Providers that the relevant provider is registered under subsection 921ZC(1); and
(b) remains in force until the earliest of the following:
(i) the cancellation time specified in a registration prohibition order in force against the relevant provider;
(ii) the time when a banning order against the relevant provider takes effect;
(iii) the relevant provider's Australian financial services licence ceases to be in force.
921ZE Period of registration - relevant providers who are not financial services licensees
If a financial services licensee makes an application in accordance with section 921ZB in relation to a relevant provider, and ASIC registers the relevant provider under subsection 921ZC(1), the registration:
(a) comes into force when ASIC records in the Register of Relevant Providers that the relevant provider is registered under subsection 921ZC(1); and
(b) remains in force until the earliest of the following:
(i) the cancellation time specified in a registration prohibition order in force against the relevant provider;
(ii) the time when a banning order against the relevant provider takes effect;
(iii) the licensee ceases to authorise the relevant provider to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products.
Note: A notice must be lodged under section 922H when there is a change in a matter for a relevant provider.