Corporations Amendment (Register of Relevant Providers) Regulation 2015 (3 of 2015)
Schedule 1 Amendments relating to modifications of the Act
Corporations Regulations 2001
2 After Schedule 8C
Insert:
Schedule 8D - Modifications of Division 9 of Part 7.6 of the Act
Note: See regulation 7.6.02AI.
Corporations Act 2001
1 At the end of Division 9 of Part 7.6
Add:
922C Definitions
In this Division:
basic banking product has the meaning given by section 961F.
body corporate licensee means a body corporate that:
(a) is a financial services licensee; and
(b) is authorised to provide personal advice in relation to relevant financial products to retail clients.
class of product advice means financial product advice about a class of products, but does not include a recommendation about a specific product in the class.
consumer credit insurance has the meaning given by section 11 of the Insurance Contracts Act 1984.
control , in relation to a body corporate licensee, has the meaning given by paragraphs 7.6.04(2)(b) and (c) of the Corporations Regulations 2001.
recent advising history has the meaning given by section 922G.
relevant financial products means financial products other than:
(a) basic banking products; or
(b) general insurance products; or
(c) consumer credit insurance; or
(d) a combination of any of those products.
relevant provider : a person is a relevant provider if the person:
(a) is a natural person; and
(b) is:
(i) a financial services licensee; or
(ii) an authorised representative of a financial services licensee; or
(iii) an employee or director of a financial services licensee; or
(iv) an employee or director of a related body corporate of a financial services licensee; and
(c) is authorised, as the licensee or on behalf of the licensee, to provide personal advice in relation to relevant financial products to retail clients.
922D Obligation to notify ASIC about a person who becomes a relevant provider
Notice to include details about relevant provider
(1) A notice must be lodged under this section, in accordance with section 922L, if a person becomes a relevant provider.
Content of notice
(2) The notice must include:
(a) for a relevant provider who is a financial services licensee - the information in section 922E; or
(b) for a relevant provider who is not a financial services licensee - the information in section 922F.
922E Information about a relevant provider who is a financial services licensee
(1) For the purposes of paragraph 922D(2)(a), the notice must include the following:
(a) the relevant provider’s name;
(b) the licence number given to the relevant provider under subsection 913C(1);
(c) the year in which the relevant provider first provided personal advice in relation to relevant financial products to retail clients in accordance with the law (including the law of a State or Territory);
(d) if applicable, the ABN of the relevant provider;
(e) information about both of the following:
(i) the relevant financial products in relation to which the relevant provider is authorised to provide personal advice to retail clients;
(ii) whether the relevant provider is authorised to provide class of product advice in relation to some or all of those products;
(f) the recent advising history of the relevant provider for the 5 years ending immediately before the time the notice is lodged;
(g) information about both of the following:
(i) the educational qualifications of, and any training courses completed by, the relevant provider;
(ii) the relevant provider’s membership (if any) of professional bodies;
to the extent that the qualifications, training courses or memberships are relevant to the provision of financial services.
Note: For the meaning of recent advising history , see section 922G.
Educational qualifications and memberships
(2) For the purposes of subparagraph (1)(g)(i), if a relevant provider has more than 5 educational qualifications or has completed more than 5 training courses, the notice must include the 5 qualifications or training courses that the person lodging the notice believes, on reasonable grounds, are most relevant to the provision of financial services.
(3) For the purposes of subparagraph (1)(g)(ii), if a relevant provider has more than 5 memberships, the notice must include the 5 memberships that the person lodging the notice believes, on reasonable grounds, are most relevant to the provision of financial services.
922F Information about a relevant provider who is not a financial services licensee
(1) For the purposes of paragraph 922D(2)(b), the notice must include the following:
(a) the relevant provider’s name;
(b) the relevant provider’s date and place of birth;
(c) the name of the licensee on whose behalf the relevant provider is authorised to provide personal advice in relation to relevant financial products to retail clients;
(d) the licence number given to that licensee under subsection 913C(1);
(e) the year in which the relevant provider first provided personal advice in relation to relevant financial products to retail clients in accordance with the law (including the law of a State or Territory);
(f) if the relevant provider is a relevant provider as a result of section 916B - each of the following:
(i) the name of the authorised representative who authorised the relevant provider under that section;
(ii) the number allocated to the authorised representative by ASIC;
(g) if applicable, the ABN of any of the following:
(i) the relevant provider;
(ii) the licensee referred to in paragraph (c);
(iii) the authorised representative referred to in paragraph (f);
(h) details of both of the following:
(i) the relevant financial products in relation to which the relevant provider is authorised to provide personal advice to retail clients;
(ii) whether the relevant provider is authorised to provide class of product advice in relation to some or all of those products;
(i) the recent advising history of the relevant provider for the 5 years ending immediately before the time the notice is lodged;
(j) information about both of the following:
(i) the educational qualifications of, and any training courses completed by, the relevant provider;
(ii) the relevant provider’s membership (if any) of professional bodies;
to the extent that the qualifications, training courses or memberships are relevant to the provision of financial services.
Note: For the meaning of recent advising history , see section 922G.
Educational qualifications and memberships
(2) For the purposes of subparagraph (1)(j)(i), if a relevant provider has more than 5 educational qualifications or has completed more than 5 training courses, the notice must include the 5 qualifications or training courses that the person lodging the notice believes, on reasonable grounds, are most relevant to the provision of financial services.
(3) For the purposes of subparagraph (1)(j)(ii), if a relevant provider has more than 5 memberships, the notice must include the 5 memberships that the person lodging the notice believes, on reasonable grounds, are most relevant to the provision of financial services.
Information already registered
(4) The notice does not need to include the information referred to in paragraph (1)(e), (i) or (j) if:
(a) the person required under subsection 922L(4) to cause the notice to be lodged believes on reasonable grounds that the information has previously been lodged; or
(b) the information is already entered on a register of relevant providers under regulation 7.6.06B of the Corporations Regulations 2001.
922G Meaning of recent advising history
The recent advising history of a relevant provider is the following information:
(a) for a relevant provider who is or was a financial services licensee authorised to provide personal advice in relation to relevant financial products to retail clients - each period during which the relevant provider was such a licensee;
(b) for a relevant provider who is or was authorised to provide personal advice in relation to relevant financial products to retail clients on behalf of one or more financial services licensees - the following information:
(i) the name of each licensee;
(ii) if the relevant provider is or was a relevant provider as a result of section 916B - the name of each authorised representative who authorised the relevant provider under that section;
(iii) each period during which the relevant provider was authorised by each licensee or each authorised representative to provide such advice.
Note: If a relevant provider is covered by paragraphs (a) and (b), the relevant provider’s recent advising history includes all the information required under those paragraphs.
922H Ongoing obligation to notify ASIC when there is a change in a matter for a relevant provider
(1) A notice must be lodged under this section, in accordance with section 922L, if there is a change in a matter, particulars of which are entered for a relevant provider in a register of relevant providers (other than a change that is a direct consequence of an act by ASIC).
Note: An example of a change in a matter would be a person ceasing to be a relevant provider.
(2) The notice must include the following information:
(a) the new particulars to be entered in the register;
(b) the relevant provider’s name;
(c) if applicable, the relevant provider number given to the relevant provider under regulation 7.6.06A of the Corporations Regulations 2001.
922J Obligation to notify ASIC about a person who starts to control a body corporate licensee
(1) A notice must be lodged under this section, in accordance with section 922L, if a person starts to control a body corporate licensee.
(2) The notice must include the following information:
(a) the name of the licensee;
(b) the licence number given to the licensee under subsection 913C(1);
(c) the name of the person who starts to control the licensee;
(d) the day the person starts to control the licensee.
922K Obligation to notify ASIC about a person who ceases to control a body corporate licensee
(1) A notice must be lodged under this section, in accordance with section 922L, if a person ceases to control a body corporate licensee.
Note: Subsection 922P(2) provides that a notice is not required to be lodged when a person starts and then ceases to control a body corporate licensee within 30 business days.
(2) The notice must include the following information:
(a) the name of the licensee;
(b) the licence number given to the licensee under subsection 913C(1);
(c) the name of the person who ceases to control the licensee;
(d) the day the person ceases to control the licensee.
922L Requirement for notice to be lodged
Notice in prescribed form
(1) A notice under section 922D, 922H, 922J or 922K must be in the prescribed form.
Note 1: Under section 350, a document that this Act requires to be lodged with ASIC in a prescribed form must:
(a) if a form for the document is prescribed in the regulations - be in that prescribed form; and
(b) if a form for the document is not prescribed in the regulations but ASIC has approved a form for the document - be in that approved form.
Note 2: The prescribed form may deal with information that is required under more than one section of this Act or the Corporations Regulations 2001.
When notice must be lodged
(2) A notice under section 922D, 922H, 922J or 922K must be lodged within 30 business days of the day the event mentioned in subsection 922D(1), 922H(1), 922J(1) or 922K(1) occurs.
(3) The information contained in the notice must be accurate as at the day of the event mentioned in subsection 922D(1), 922H(1), 922J(1) or 922K(1).
Who must cause notice to be lodged
(4) The following person must cause a notice under section 922D or 922H to be lodged in relation to a relevant provider:
(a) if the relevant provider is a financial services licensee - the licensee;
(b) otherwise - the financial services licensee on whose behalf the relevant provider is authorised to provide personal advice in relation to relevant financial products to retail clients.
Notice about control of a body corporate licensee
(5) A notice under section 922J or 922K relating to a person who starts or ceases to control a body corporate licensee must be lodged by the licensee.
922M Offence for failing to comply with obligation to notify ASIC
(1) A person commits an offence if:
(a) the person is required to cause a notice to be lodged under section 922D, 922H, 922J or 922K; and
(b) the person fails to cause the notice to be lodged in accordance with that section.
Note: A notice must be lodged in accordance with section 922L in order to be lodged in accordance with section 922D, 922H, 922J or 922K (see subsection 922D(1), 922H(1), 922J(1) or 922K(1)).
Penalty: 50 penalty units.
(2) However, subsection (1) does not apply if:
(a) the person fails to cause the notice to be lodged in accordance with section 922D; and
(b) the only reason the person fails to cause the notice to be lodged in accordance with that section is because the information referred to in paragraph 922F(1)(e), (i) or (j) is not included in the notice; and
(c) subsection 922F(4) provides that the notice does not need to include that information.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) Subsection 4K(2) of the Crimes Act 1914 does not apply to subsection (1) of this section.
Note: A person may commit an offence if the person knowingly gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code).
922N Obligation for relevant providers to provide information to financial services licensees
Information about relevant provider
(1) A person must provide information to a financial services licensee in accordance with this section if:
(a) the person has become a relevant provider; and
(b) the person has been authorised by the licensee to provide personal advice in relation to relevant financial products to retail clients; and
(c) the licensee has asked the person to provide the information so that the licensee can comply with its obligation to lodge a notice in accordance with section 922D relating to the person.
Note: A person may commit an offence if the person knowingly gives false or misleading information (see section 1308 of this Act and section 137.1 of the Criminal Code).
When information must be given
(2) The information must be given to the licensee within a period that allows the licensee to comply with its obligation to lodge the notice in accordance with section 922D.
922P Change in matter within 30 business days
(1) Notices must be given under both sections 922D and 922H in relation to a person who was a relevant provider even if the person ceases to be a relevant provider before a notice has been lodged under section 922D.
(2) A notice is not required to be given under sections 922J and 922K in relation to a person who starts or ceases to control a body corporate licensee if the person ceases to control the licensee within 30 business days of starting to control the licensee.