ASIC Corporations (COVID-19—Advice-related Relief) Instrument 2021/268

About this compilation

Compilation No. 1

This is a compilation of ASIC Corporations (COVID-19—Advice-related Relief) Instrument 2021/268 as in force on 14 October 2021. It includes any commenced amendment affecting the legislative instrument to that date.

This compilation was prepared by the Australian Securities and Investments Commission.

The notes at the end of this compilation (the endnotes) include information

about amending instruments and the amendment history of each amended provision.

Contents

Part 1—Preliminary

1 Name of legislative instrument

3 Authority

4 Definitions

Part 2—Declaration

5 Situations in which Statement of Advice is not required

Part 2A—Exemption

5A     Timing of giving a Statement of Advice—Urgent advice

Part 3—Repeal

6 Repeal 

Endnotes

Endnote 1—Instrument history

Endnote 2—Amendment history

Part 1—Preliminary

1 Name of legislative instrument

This is the ASIC Corporations (COVID-19—Advice-related Relief) Instrument 2021/268.

3 Authority

This instrument is made under subsection 951B(1) of the Corporations Act 2001.

4 Definitions

In this instrument:

Act means the Corporations Act 2001.

client has the same meaning as in section 944A of the Act.

providing entity has the same meaning as in section 944A of the Act.

Regulations means the Corporations Regulations 2001.

Part 2—Declaration

5 Situations in which Statement of Advice is not required

(1) Part 7.7 of the Act applies in relation to providing entities as if regulation 7.7.10AE of the Regulations were modified or varied by, in notional section 946B of the Act, inserting the following subsections at the end of that notional section:

“Third situation: Advice required because of COVID-19

(10) The providing entity does not have to give the client a Statement of Advice for the provision of particular advice (the COVID-19 advice) if subsection (11) applies.

(11) This subsection applies where all of the following are satisfied:

(a) the providing entity reasonably considers that the COVID-19 advice is required because of the adverse economic effects of the coronavirus known as COVID‑19;

(b) either:

(i) the providing entity has previously given the client a Statement of Advice in relation to advice (the previous advice) that sets out the client’s relevant personal circumstances in relation to the previous advice about one or more classes of financial products set out in that Statement; or

(ii) an associated providing entity has previously given the client a Statement of Advice in relation to advice (the previous advice) that sets out the client’s relevant personal circumstances in relation to the previous advice about one or more classes of financial products set out in that Statement; and

(c) the COVID-19 advice is in relation to a class of financial products to which the previous advice related.

Note: Paragraphs 947B(2)(b) and 947C(2)(b) require a Statement of Advice to include information about the basis on which the advice is or was given, which may include the client’s relevant personal circumstances, in which case paragraph (b) of this subsection would be satisfied.

(12) The providing entity must keep a record of the COVID-19 advice which sets out:

(a) a brief explanation of the changes in the client’s relevant personal circumstances in relation to the COVID-19 advice (determined having regard to the client’s objectives, financial situation and needs as currently known to the providing entity); and

(b) brief particulars of the recommendations made to the client and the basis on which the recommendations are made; and

(c) brief particulars of the information that would be required by subsection 947D(2) if a Statement of Advice were given to the client; and

(d) the statement that would be required by subsection 947D(3) if a Statement of Advice were given to the client; and

(e) brief particulars of the information that would be required by paragraphs 947B(2)(d) and (e), or 947C(2)(e) and (f), if a Statement of Advice were to be given to the client.

Note: Failure to comply with this subsection is an offence (see subsection 1311(1)).

(13) The providing entity must:

(a) at the applicable time, give the client a copy of the record of the COVID-19 advice; and

(b) if a copy of the record of the COVID-19 advice is not given to the client when the COVID-19 advice is provided—when the COVID-19 advice is provided, give the client the information that would be required to be in a Statement of Advice by paragraphs 947B(2)(d) and (e), or 947C(2)(e) and (f), as the case requires, and by section 947D, if applicable.

(14) For the purposes of paragraph (13)(a), the applicable time to give the client a copy of the record of the COVID-19 advice is the time:

(a) when, or as soon as practicable after, the COVID-19 advice is provided; and

(b) in any event—before the providing entity provides the client with any further financial service arising out of, or connected with, the COVID-19 advice.

(15) In subsection (11):

associated providing entity, in relation to a providing entity, means:

(a) where the providing entity is a financial services licensee—any person who is an authorised representative of the licensee;

(b) where the providing entity is an authorised representative of a financial services licensee—the authorising licensee or any person who is an authorised representative of the licensee.”.

(2) Part 7.7 of the Act applies in relation to providing entities as if regulation 7.7.10AG of the Regulations were modified or varied by, after “subsection 946B(3A)” (wherever occurring), inserting “or subsection 946B(12)”.

Part 2A—Exemption

5A     Timing of giving a Statement of Advice—Urgent advice

(1)     A providing entity does not have to comply with section 946C of the Act for the provision of particular advice (the COVID-19 advice) to the extent it requires the providing entity to give a client a Statement of Advice any earlier than 20 business days after providing the COVID-19 advice to the client if subsection (2) applies.

(2)     This subsection applies where all of the following are satisfied:

(a)    the providing entity reasonably considers that the COVID-19 advice sought by the client is required on an urgent basis because of the adverse economic effects of COVID‑19;

(b)    the client expressly instructs the providing entity that they require the COVID-19 advice on an urgent basis because of the adverse economic effects of COVID-19;

(c)     if the COVID-19 advice is or includes a recommendation to acquire a financial product and section 1019B of the Act may apply to the acquisition—the providing entity, at the time of providing the COVID-19 advice, gives the client in writing a statement:

(i)      explaining the nature of the rights that the client may have under section 1019B of the Act if they acquire the product; and

(ii)     indicating that the client may not receive a Statement of Advice in relation to the COVID-19 advice until after those rights have expired.

Condition

(3)     The providing entity must take all reasonable steps to give the client a Statement of Advice in relation to the COVID-19 advice as soon as practicable after the COVID-19 advice is provided.

Part 3—Repeal

6 Repeal

This instrument is repealed on 15 April 2022.

Endnotes

Endnote 1—Instrument history

Endnote 2—Amendment history

ad. = added or inserted     am. = amended     LA = Legislation Act 2003    rep. = repealed     rs. = repealed and substituted