Commonwealth Consolidated Regulations

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Obligation to give Financial Services Guide for service arranged before application of Part 7.7 of the Act

                   For section 1444 of the Act, sections 941A and 941B of the Act are taken not to require a person to give a client a Financial Services Guide in accordance with Division 2 of Part 7.7 of the Act in relation to a financial service (the new financial service ) if, before the person became subject to Part 7.7 of the Act in relation to the provision of the new financial service:

                     (a)  the person was a regulated principal, or a representative of a regulated principal within the meaning of subsection 1436(1) of the Act, whose regulated activities included the provision of financial services of the same kind as the new financial service; and

                     (b)  the person entered into an agreement with the client, to provide the new financial service; and

                     (c)  the client took all of the steps necessary for the person to be able to provide the new financial service.

Note:          When Part 7.7 of the Act begins to apply to a person, the person will be under an obligation to provide a Financial Services Guide to a retail client to which it provides financial services. The Financial Services Guide should be given before the financial service is provided (see sections 941A, 941B and 941D of the Act).

                   However, this could create difficulties if the person, or an authorised representative, has an existing client, and has entered into an arrangement with the client before Part 7.7 started to apply. The obligation to give a Financial Services Guide would arise when Part 7.7 begins to apply, but, under the arrangement, the financial service might have to be provided very shortly afterwards.  This might make the giving of the Financial Services Guide in accordance with section 941D difficult.

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