Australian Financial Services Licensees With Wholesale Clients – Compliance Responsibilities To Consider

Australian financial services licence (AFSL) holders must comply with the general licensing obligations under the Corporations Act, including: ensuring financial services are provided efficiently, honestly and fairly complying with licence conditions and financial services laws managing conflicts of interest ensuring that representatives comply with relevant licensing obligations and are adequately trained and competent maintaining competence[…]

澳洲金融服务持牌人(企业客户)- 合规责任的考量

澳大利亚金融服务牌照(AFSL)持有人必须遵守《公司法》规定的一般性许可义务,包括:

  • 确保有效,诚实和公平地提供金融服务
  • 遵守牌照已取得授权的业务范围和金融服务法律
  • 处理利益冲突
  • 确保公司代表遵守相关牌照许可义务,并接受过充分的培训并能够胜任该岗位
  • 牌照负责人必须及时了解相关法律和 ASIC 监管政策的变化,保证持照人应有
  • 的胜任力
  • 有足够的财务,技术和人力的资源
  • 有足够的资源支持监督管理的实施
  • 确保有充足适当的风险管理体系

[…]

澳大利亚金融业“牌照负责人”(RM)资质评估与申请服务

关于“牌照负责人” 在公司法中并没有定义,这只是ASIC使用的一个术语。在ASIC第105号的监管指南中,术语“牌照负责人”用于指由牌照申请人提名的,以达到ASIC关于胜任力要求的人员。“牌照负责人”可以是牌照申请人 / 牌照持有人

的董事,雇员,外包商或授权代表。

[…]

Disclaimers Checklist

When making disclaimers in information, marketing or promotional material about financial services products that will be circulated to the general public, be aware that regulatory policies and specific legal requirements apply. Regulatory Guide 234: Advertising financial products and services (including credit): Good practice guidance, issued by the Australian Securities and Investments Commission, is essential reading[…]

Service delivery during the COVID-19 pandemic

During this time,  all Know Compliance staff and management are working from their individual homes to comply with the social distancing measures.   Each home workplace is equipped with a telephone, computer (PC and/or laptop), appropriate seating and is isolated from other home activities.  Each home computer is password protected All have access to the[…]

All clients beware

Significant increase penalties for misleading statements in licence applications. Pursuant to Section 1308(8) of the Corporations Act a person must not, in connection with an application for an Australian financial services licence: make a statement that is false or misleading in a material particular knowing it to be false or misleading; omit to state any[…]

AFS Licensees – Why You Must Maintain Adequate Financial Resources

Australian Financial Services Licensees must comply with Section 912A(1)(d) Corporations Act – Financial Resources Requirements Holders of Australian financial services (AFS) licences must have sufficient financial resources at all times to provide their licensed financial services and to be able to carry out operational and regulatory compliance checking, monitoring and reporting. Section 912A(1)(d) states that[…]

Compliance Committee Meetings

Effective Minute Taking Effective and accurate minute taking is an important part of any Compliance Meeting. The regulator is likely request copies of compliance committee minutes when auditing a company or investigating a particular breach. Therefore the minutes should be prepared not as a personal record but as an accurate description of the issues discussed[…]

Whistleblower laws come into effect

New national Whistleblower laws came into effect from 1 July 2019. All public companies and large proprietary companies have until 1 January 2020 to put into place a written policy with respect to the protection of whistleblowers. A penalty of up to $12,600 may be applied for non-compliance. A large proprietary company is characterised by[…]

Unconscionable Conduct

An allegation of unconscionable conduct in business dealings arises when a party to a contract says or does something that is so unreasonable that it defies good conscience. The Courts will intervene and potentially set aside a contract if at the time the contract was entered into there ought to have been matters “preying on[…]

General or Personal Advice?

On 28 October 2019, the full Federal Court, in the matter of ASIC v Westpac Securities (2019) FCAFC 187 handed down an important decision regarding the distinction between personal and general advice. Background In 2014 and 2015, Westpac engaged in a telephone campaign to encourage existing customers to roll-over their existing external superannuation into accounts[…]

Conflicts of Interest Management

The successful management of conflict of interests is a crucial part of any organisation. Conflicts of interest can arise between employees and their employers and representatives, and between an organisation and its customers. Conflicts of interest can arise even though there is no financial loss and regardless of the motivations of the people and companies[…]

Legal Professional Privilege

Pursuant to the ASIC Act, ASIC has the ability to demand the production of documents in the following circumstances: in the performance of ASIC’s functions generally; to ensure compliance with the Corporations legislation; in relation to an alleged or suspected contravention of the law; and for the purpose of a formal investigation. The notice will[…]

Best Interests Duty Compliance : Million$$ Reasons to do it Better

A recent $1 million civil penalty imposed on a Melbourne-based financial advice firm should put the industry on notice regarding the perils of not fostering a strong compliance culture. In March 2017, the Federal Court declared that NSG Services (now Golden Financial Group) committed multiple breaches of the Corporations Act, including NOT taking reasonable steps[…]

General Advice: It’s Getting Personal

Under the Corporations Act 2001, financial product advice is classified as either “general advice” and “personal advice”.1  Personal advice is financial product advice that is given or directed to a person (including by electronic means) in circumstances where: The provider of the advice has considered one or more of the person’s objectives, financial situation and[…]

Compliance in a Post-FOFA World (Part 2): The Importance of Using File Notes

As with the Fact Find document covered in Part 1 of this blog series, limited regulatory and legislative guidance is available regarding the use of file notes during the advice process.  Every organisation should put in place a good document/file notes creation and retention policy and ensure that all representatives are properly trained. What is[…]

Industry Funding Model for ASIC

The Government has confirmed that it will introduce an industry funding (user pays) model for ASIC through a cost recovery levy, commencing 1 July 2017. What does this mean for licence holders? That there will be increased costs is definite, unless one decides to give up one’s licence. Many AFS Licensees hold authorisations on their[…]

RESPONSIBLE MANAGERS – ASIC ASSESSMENT

There is no definition of a responsible manager in the Corporations Act. It is a term developed by ASIC. In ASIC Regulatory Guide 105 the term responsible manager is used to label the person nominated by a licence applicant for the purposes of meeting ASIC’s competencies for licensing. As noted in the Regulatory Guide the[…]

Demystifying appointing a Financial Adviser or an Authorised Representative

In 2015, the amendments to the Corporations Act brought in the concept of a Financial Adviser. This means having to make additional notifications to ASIC in relation to the new Financial Adviser Register. Licensees have been required to notify ASIC and its predecessors of the appointment of their Authorised Representatives for over 20 years but[…]

Compliance in a Post-FOFA World (Part 1): Traps for Financial Advisers to Avoid

Since the implementation of the Future of Financial Advice (“FOFA”) reforms in July 2013, many practices continue to grapple with the associated implications on their business. The first part in this blog series addresses one of the early stages of the client / adviser relationship: the fact finding process. Part 1: The Critical Importance of[…]

RECENT COURT DECISIONS: CLIENTS BEWARE!

Recent Court decisions have confirmed that pursuant to Section 79 of the Corporations Act, ANY employee of a corporation (not just directors), can be liable for contraventions of the Act, if they have KNOWLEDGE of a contravention. Section 79 provides: CORPORATIONS ACT 2001 – SECT 79 Involvement in contraventions A person is involved in a[…]

Accountants and Limited AFSLs – time is running out and the process is now not so easy!!

There are just 4 months of the licensing period remaining where recognised accountants can streamline to a limited AFS licence. The transition period of three years ends on 30 June 2016. Be warned that, as with previous transitional licensing processes, ASIC may publicly state that they will not be able to guarantee that applications will[…]

Accountants and Limited AFSLs – making the right decision before time runs out

The accountants’ licensing exemption (Regulation 7.1.29A) currently permits a recognised accountant to recommend the establishment or winding up of an interest in a SMSF without holding an Australian Financial Services (AFS) licence. From 1 July 2016, the accountants’ exemption will be removed. This means that if you wish to continue to provide this advice to[…]

ASIC BREACH REPORTING REQUIREMENTS

ASIC has expressed strong concerns that Australian Financial Services licensees have not been reporting correctly, or have been waiting too long to report, breaches or potential breaches and have therefore been in contravention of section 912D of the Corporations Act. ASIC has warned licensees that failing to report a significant breach could constitute a criminal[…]

Accountants and Limited AFSLs – making the right decision before time runs out

The accountants’ licensing exemption (Regulation 7.1.29A) currently permits a recognised accountant to recommend the establishment or winding up of an interest in a SMSF without holding an Australian Financial Services (AFS) licence. From 1 July 2016 the accountants’ exemption will be removed. This means that if you wish to continue to provide this advice to[…]

ASIC Regulatory Guides 133 and 166 and implications for Responsible Entities with third party custodians

We recommend that all Responsible Entities (REs) which use external custodians consider whether changes are required to the compliance plans of their registered managed investment schemes in the light of changes to the custodial requirements. This resulted from ASIC class orders [CO 13/761] and [CO 13/1409] which are explained in ASIC Regulatory Guides RG 133[…]

What is a good compliance culture?

Be warned that ASIC’s strategic plan for 2014-15 will focus on financial advisers and responsible entities operating managed investment schemes. If you are licensed to give financial advice or operate a managed investment scheme, you may be surprised by a surveillance visit from ASIC. Usually, the main aim of an ASIC surveillance visit is to[…]

AML CTF COMPLIANCE UPDATE

AML CTF COMPLIANCE Changes to the Anti-Money Laundering and Counter Terrorism Financing Rules Instrument 2007 (No.1) (AML Rules) became effective on 1 June 2014. and introduced new customer due diligence requirements, together with deadlines for complying with these new rules. 1 June 2014 – new customer due diligence requirements Key obligations under the new requirements[…]

ASIC update August 2014

Below are notes taken from a meeting at which time ASIC provided information on its activities in assessing participants in the financial services industry. These notes may be of interest to property and mortgage fund managers, platform operators and other holders of Australian financial services licences. 1. During the 2013/14 financial year, ASIC targeted 10[…]

Stockbrokers Financial Requirements – ASX Market Integrity Rules and ASIC Requirements

Key Financial Obligations of Market Participants of Security Exchanges, including the Australian Securities Exchange (ASX) Market Participants are required to comply with either the financial requirements of the ASIC Market Integrity Rules or with the ASX’s financial requirements, if they are ASX clearing participants. In either case, similar requirements apply. Two of the areas of[…]