2013‑2014

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES/THE SENATE

EXPOSURE DRAFT

Corporations Amendment (Streamlining of Future of Financial Advice) Bill 2014

No.      , 2014

(Treasury)

A Bill for an Act to amend the law in relation to financial products and financial advice, and for related purposes

Contents
1	Short title	1
2	Commencement	1
3	Schedule(s)	2
Schedule 1—Amendments	3
Corporations Act 2001	3

A Bill for an Act to amend the law in relation to financial products and financial advice, and for related purposes
The Parliament of Australia enacts:
1  Short title
		This Act may be cited as the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014.
2  Commencement
	(1)	Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information	
Column 1	Column 2	Column 3	
Provision(s)	Commencement	Date/Details	
1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.		
2.  Schedule 1	The day after this Act receives the Royal Assent.		
Note: 	This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
	(2)	Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3  Schedule(s)
		Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
  
Corporations Act 2001
1  Section 960
Insert:
consumer credit insurance has the same meaning as in the Insurance Contracts Act 1984.
2  Section 960 (definition of group life policy for members of a superannuation entity)
Repeal the definition.
3  Section 960 (definition of life policy for a member of a default superannuation fund)
Repeal the definition.
4  Section 960
Insert:
MySuper member has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
5  Section 960 (definition of renewal notice)
Repeal the definition.
6  Section 960 (definition of renewal notice day)
Repeal the definition.
7  Section 960 (definition of renewal period)
Repeal the definition.
8  Section 960 (definition of volume‑based shelf‑space fee)
Omit “a meaning affected”, substitute “the meaning given”.
9  At the end of section 960
Add:
Note:	The expression intrafund advice is often used to describe financial product advice given by a trustee of a regulated superannuation fund, as defined in the Superannuation Industry (Supervision) Act 1993, to its members. Section 99F of that Act prohibits trustees of regulated superannuation funds from passing on the cost of providing certain kinds of financial product advice in relation to one member of the fund to another. Paragraph 99F(1)(c) sets out the kinds of advice to which this prohibition applies.
10  Paragraph 961B(2)(a)
Repeal the paragraph.
11  After paragraph 961B(2)(b)
Insert:
	(ba)	identified the objectives, financial situation and needs of the client that are disclosed to the provider by the client;
12  Paragraph 961B(2)(f)
Omit “relevant circumstances;”, substitute “relevant circumstances.”.
13  Paragraph 961B(2)(g)
Repeal the paragraph.
14  Subsection 961B(2) (note)
Repeal the note.
15  Subsections 961B(3) and (4)
Repeal the subsections, substitute:
Advice given by Australian ADIs—best interests duty satisfied if certain steps are taken
	(3)	If:
	(a)	the provider is:
	(i)	an agent or employee of an Australian ADI; or
	(ii)	otherwise acting by arrangement with an Australian ADI under the name of the Australian ADI; and
	(b)	the subject matter of the advice sought by the client relates only to the following:
	(i)	a basic banking product;
	(ii)	a general insurance product;
	(iii)	consumer credit insurance;
	(iv)	a combination of any of those things;
the provider satisfies the duty in subsection (1) in relation to the advice given in relation to the basic banking product and the general insurance product if the provider takes the steps mentioned in paragraphs (2)(b), (ba) and (c).
General insurance products—best interests duty satisfied if certain steps are taken
	(4)	To the extent that the subject matter of the advice sought by the client is a general insurance product, the provider satisfies the duty in subsection (1) if the provider takes the steps mentioned in paragraphs (2)(b), (ba) and (c).
16  After subsection 961B(4)
Insert:
Client seeks scaled advice
	(4A)	To avoid doubt, nothing in subsection (2) prevents a client from agreeing the subject matter of the advice sought by the client with the provider.
17  Section 961E
Repeal the section.
18  Section 962CA
Repeal the section.
19  Subdivision B of Division 3 of Part 7.7A (heading)
Repeal the heading, substitute:
Subdivision B—Disclosure and termination
20  Subsection 962F(1)
Omit “or section 962K (the renewal notice obligation)”.
21  Subsections 962F(2) and (3)
Omit “or section 962K”.
22  Sections 962K, 962L, 962M and 962N
Repeal the sections.
23  Subdivision C of Division 3 of Part 7.7A
Repeal the Subdivision.
24  Paragraph 963A(a)
After “to retail clients”, insert “in personal advice”.
25  Paragraph 963A(b)
Omit “financial product advice”, substitute “personal advice”
26  At the end of section 963A
Add:
Note:	A reference in this Subdivision (including sections 963A, 963B, 963C and 963D) to giving a benefit includes a reference to causing or authorising it to be given (see section 52).
27  Subsection 963B(1)
Omit “in the circumstances set out in any of the following paragraphs”, substitute “to the extent that one or more of the following paragraphs is satisfied”.
28  Paragraph 963B(1)(a)
Omit “solely”.
29  Paragraph 963B(1)(b)
Repeal the paragraph, substitute:
	(b)	the benefit is given to the licensee or representative in relation to a life risk insurance product, other than:
	(i)	a life risk insurance product for MySuper members; or
	(ii)	a life risk insurance product for the benefit of a person, either as a member of a superannuation entity or one of a class of members of a superannuation entity, in relation to which that person has not been given personal advice;
30  Paragraph 963B(1)(c)
Repeal the paragraph.
31  Subsection 963B(2)
Repeal the subsection, substitute:
	(2)	A life risk insurance product is for MySuper members if the product is issued to an RSE licensee of a superannuation entity, or a custodian in relation to a superannuation entity, for the benefit of MySuper members of the entity.
32  Subsection 963B(3)
Repeal the subsection, substitute:
	(3)	Despite section 963A, a monetary benefit given to a financial services licensee who provides financial product advice to persons as retail clients is not conflicted remuneration if:
	(a)	the benefit is given to the licensee in relation to the issue or sale of a financial product to a person; and
	(b)	personal advice in relation to the product, or products of that class, has not been given to the person as a retail client by the licensee, or a representative of the licensee, in the 12 months immediately before the benefit is given.
	(4)	Despite section 963A, a monetary benefit given to a representative of a financial services licensee who provides financial product advice to persons as retail clients is not conflicted remuneration if:
	(a)	the benefit is given to the representative in relation to the issue or sale of a financial product to a person; and
	(b)	personal advice in relation to the product, or products of that class, has not been given to the person as a retail client by the representative in the 12 months immediately before the benefit is given.
33  Section 963C
Omit “in the circumstances set out in any of the following paragraphs”, substitute “to the extent that one or more of the following paragraphs is satisfied”.
34  Paragraph 963C(a)
Omit “solely”.
35  Subparagraph 963C(c)(ii)
Repeal the subparagraph, substitute:
	(ii)	the benefit is relevant to the carrying on of a financial services business;
36  Section 963D
Repeal the section, substitute:
963D  Benefits for employees etc. of ADIs
		If:
	(a)	a monetary or non‑monetary benefit is given to a financial services licensee, or a representative of a financial services licensee; and
	(b)	the benefit is in whole or in part remuneration for work carried out, or to be carried out, by the licensee or representative:
	(i)	as an agent or employee of an Australian ADI; or
	(ii)	in otherwise acting by arrangement with an Australian ADI under the name of the Australian ADI; and
	(c)	access to the benefit, or the amount of the benefit, is in whole or in part dependent on the licensee or representative recommending:
	(i)	a basic banking product; or
	(ii)	a general insurance product; or
	(iii)	consumer creditor insurance; and
	(d)	the licensee or representative does not, in the course of recommending any, or any combination, of those products give other financial product advice that does not relate to any of those products;
to the extent that the benefit relates to the recommendation of any, or any combination of, the products mentioned in paragraph (c), the benefit is not conflicted remuneration.
37  Subsection 964(1)
Repeal the subsection, substitute:
	(1)	This Subdivision applies if:
	(a)	a financial services licensee or an RSE licensee (the platform operator) is, or offers to be, the provider of a custodial arrangement; and
	(b)	a funds manager issues or sells a financial product to which the custodial arrangement relates; and
	(c)	a monetary or non‑monetary benefit is given, or to be given, by the funds manager to the platform operator.
38  Subsection 964(2)
Insert:
funds manager means a financial services licensee or an RSE licensee who issues or sells a financial product to which a custodial arrangement relates.
39  Section 964A
Repeal the section, substitute:
964A  Platform operator must not accept volume‑based shelf‑space fees
	(1)	The platform operator must not accept the benefit if it is a volume‑based shelf‑space fee.
Note:	This subsection is a civil penalty provision (see section 1317E).
	(2)	Subject to subsection (3), the benefit is a volume based shelf‑space fee if, because of the nature of the benefit or the circumstances in which it is given, it could reasonably be expected to influence the platform operator:
	(a)	to increase the total number or value of the funds manager’s financial products in relation to which the platform operator is prepared to provide custodial arrangements; or
	(b)	to give preferential treatment to the funds manager’s financial products in providing custodial arrangements.
	(3)	If all or part of the benefit is of a kind specified in one of the following paragraphs, then, to the extent that the benefit is of that kind, it is not a volume‑based shelf‑space fee:
	(a)	a reasonable fee for a service provided to the funds manager by the platform operator or another person;
	(b)	a discount on an amount payable, or a rebate of an amount paid, to the funds manager by the platform operator, that can reasonably be attributed to economies of scale gained because of the number or value of the funds manager’s financial products in relation to which the platform operator provides custodial arrangements;
	(c)	the benefit is for providing a custodial arrangement in relation to a general insurance product or a life risk insurance product.
40  Subsection 1317E(1) (table item 22)
Repeal the item.
41  Subparagraph 1317G(1E)(b)(v)
Repeal the subparagraph.
42  Part 10.18 (heading)
Repeal the heading, substitute:
Part 10.18—Transitional and application provisions relating to the Future of Financial Advice Measures
43  Before section 1526
Insert:
Division 1—Provisions relating to the Corporations Amendment (Further Future of Financial Advice Measures) Act 2012
44  At the end of Part 10.18
Add:
Division 2—Provisions relating to the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014
1531A  Definitions
		In this Division:
commencement day means the day on which Schedule 1 to the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014 commences.
1531B  Best interests obligation
		The amendments made by items 10 to 17 of Schedule 1 to the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014 apply in relation to the provision of personal advice to a person as a retail client on or after the commencement day.
1531C  Renewal notices (opt‑in requirement)
	(1)	The amendments made by items 18 to 22 and items 40 and 41 of Schedule 1 to the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014 apply in relation to an ongoing fee arrangement for those renewal notice days for the arrangement that occur on or after the commencement day.
	(2)	In this item:
renewal notice day for an ongoing fee arrangement has the same meaning as it has in Part 7.7A of the Corporations Act 2001, as in force immediately before the commencement day.
1531D  Disclosure statements for pre‑existing clients
		The amendment made by item 23 of Schedule 1 to the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014 applies in relation to an ongoing fee arrangement for those disclosure days for the arrangement that occur on or after the commencement day.
1531E  Conflicted remuneration
		The amendments made by items 24 to 36 of Schedule 1 to the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014 apply in relation to a benefit if:
	(a)	the benefit is one to which Division 4 of Part 7.7A applies under section 1528; and
	(b)	the benefit is given on or after the commencement day.
1531F  Volume‑based shelf‑space fees
		The amendments made by items 37 to 39 of Schedule 1 to the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014 apply to a benefit if:
	(a)	the benefit is one to which Subdivision A of Division 5 of Part 7.7A applies under section 1529; and
	(b)	the benefit is given on or after the commencement day.