Compliance - general provisionsDigital - adviceDigital - disclosuresDigital - discussion sitesDigital - using calculatorsAdvice - example SoA Advice - facts, general, scaledAdvice - product adviceAdvice - disclosing feesAdvice - fee disclosureAdvice - dollar disclosureAdvice - past performanceAdvice - adviser dutiesAdvice - PDSAdvice - MDAsConflicts - conflicted remunerationConflicts - managing conflictsConflicts - dispute resolutionBreaches - breach reportingBreaches - remediationBreaches - compensationBreaches - enforceable undertakingsAdvertising
Compliance
The RGs must be seen in the context of the following general provisions;
Corporations Act
Best interests duty and related obligations (Div 2 of Pt 7.7A)
An advice provider must:
- act in the best interests of its clients in relation to the advice;
- only provide advice if, in light of the actions the advice provider
- should have taken to comply with the best interests duty, it is reasonable to conclude that the resulting advice is appropriate for the client;
- give a warning to the client if it is reasonably apparent that the advice is based on incomplete or inaccurate information about the client’s objectives, financial situation or needs; and
- generally prioritise the interests of the client over its own interests and those of some of its related parties.
Complying with the best interests duty and related obligations does not affect whether the conflicted and other banned remuneration provisions have been complied with. The best interests duty and related obligations and the conflicted and other banned remuneration provisions impose separate obligations on an AFS licensee and its representatives.
An AFS licensee and its representatives must:
- give the client an annual fee disclosure statement outlining information about the fees paid and the services received by the client over the previous year; and
- only charge an ongoing fee if the client ‘opts in’ to continue the ongoing fee arrangement every two years. This opt-in requirement applies unless ASIC is satisfied that the licensee or its representatives are bound by a code of conduct that, among other things, obviates the need for complying with the opt-in requirement in the Corporations Act.
If you are an AFS licensee, you have general obligations under s912A(1) of the Corporations Act to:
- do all things necessary to ensure that the financial services covered by your licence are provided efficiently, honestly and fairly (s912A(1)(a));
- have adequate arrangements in place for managing conflicts of interest (s912A(1)(aa));
- comply with the conditions on your licence (s912A(1)(b));
- comply with the financial services laws (s912A(1)(c));
- take reasonable steps to ensure that your representatives comply with the financial services laws (s912A(1)(ca));
- have adequate financial, technological and human resources to provide the financial services covered by your licence and to carry out supervisory arrangements (s912A(1)(d)).
- maintain the competence to provide the financial services covered by your licence (s912A(1)(e));
- ensure that your representatives are adequately trained and competent to provide those financial services (s912A(1)(f));
- if you provide financial services to retail clients, have a dispute resolution system (s912A(1)(g)); and
- establish and maintain adequate risk management systems (s912A(1)(h)).
ASIC Regulatory Guidelines
Below are Regulatory Guidelines (RGs) examining;
- Reviewing personal advice and initiating remediation (RG 256)
- Providing digital advice (RG255)
- Conflicted and banned remuneration (RG246)
RG 255 Providing digital financial product advice
Issued 30 August 2016
RG 221 Facilitating digital financial services disclosures
Issued 29 March 2016
RG 162 Internet discussion sites (IDS)
Issued 15 August 2000
Amended 4 July 2007
RG 167 Caculators
Issued 1 April 2020
RG 90 Example Statement of Advice: Scaled advice for a new client
Issued 7 December 2017
RG 244 Giving information, general advice and scaled advice
RG 36 Licensing: Financial product advice and dealing
Issued June 2016
RG 97 Disclosing fees and costs in PDSs and periodic statements
RG 245 Fee disclosure statements
Issued 22 February 2017
RG 182 Dollar disclosure
Issued 5 December 2017
RG 53 The use of past performance in promotional material
Issued 1 July 2003
RG 175 Licensing: Financial product advisers—Conduct and disclosure
Issued 14 November 2017
RG 168 Disclosure: Product Disclosure Statements (and other disclosure obligations)
Issued 28 October 2011
RG 179 Managed discretionary accounts
Reissued 29 September 2016
RG 246 Conflicted and other banned remuneration
Issued 10 December 2020
RG 181 Managing conflicts of interest
Issued 30 August 2004
RG 165 Licensing: Internal and external dispute resolution
Reissued 30 July 2020
RG 78 Breach reporting by AFS licensees
Issued 30 March 2020
RG 256 Client review and remediation
Issued 15 September 2016
RG 126 Compensation and insurance arrangements for AFS licensees
Issued 27 July 2020
RG 100 Enforceable undertakings
Issued 19 February 2015