Commonwealth Consolidated Regulations

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CORPORATIONS REGULATIONS 2001 - REG 7.7.02

Situations in which Financial Services Guide is not required

             (1)  For paragraph 941C(6)(c) of the Act, the following are prescribed:

                     (a)  a deposit product that is a facility in relation to which:

                              (i)  there is no minimum period before which funds cannot be withdrawn or transferred from the facility without a reduction in the return generated for the depositor; or

                             (ii)  if there is such a period, it expires on or before the end of the period of 2 years starting on the day on which funds were first deposited in the facility;

                     (b)  travellers' cheques;

                     (c)  a cash management trust interest.

             (2)  For subsection 941C(4) of the Act:

                     (a)  providing general advice to the public, or a section of the public, at an event organised by or for financial services licensees to which retail clients are invited is prescribed; and

                     (b)  a broadcast of general advice to the public, or a section of the public, that may be viewed or heard by any person is prescribed; and

                     (c)  distributing or displaying promotional material that:

                              (i)  provides general advice to the public, or a section of the public; and

                             (ii)  is available in a place that is accessible to the public is prescribed.

Examples:

1                 Television or radio broadcasts.

2                 Distributing promotional material contained in newspapers and magazines.

3                 Sending a broadcast via an Internet website or webcast.

4                 Giving a public lecture or seminar for retail clients, including employees of a workplace.

Note:          If general advice is given to the public, or a section of the public, the requirements of subsection 941C(5) of the Act must be complied with. Additionally, if general advice is provided to 1 or more retail clients, the providing entity must comply with section 949A of the Act.

             (3)  For subsection 941C(8) of the Act, a Financial Services Guide does not have to be given to a client in the following circumstances:

                     (a)  a person ( person 1 ) makes an inquiry by telephone in relation to the rental of a vehicle from another person ( person 2 );

                     (b)  as a result of that inquiry, it becomes apparent to person 2 that a financial service will be, or is likely to be, provided to person 1;

                     (c)  the financial service is the issue of an insurance product that relates to either or both of:

                              (i)  the accidental death of, or bodily injury to, a person caused by an accident in connection with the use of the rented vehicle during the rental period; and

                             (ii)  the loss or destruction of, or damage to, either or both of baggage and personal effects belonging to a person in the rented vehicle caused by an insured event during the rental period;

                     (d)  person 2 makes arrangements for a document that is the equivalent of a Financial Services Guide to be given to person 1 no later than the start of the use to which the insurance product relates.

Example:    The commencement of a journey of the rental vehicle is a use to which the insurance product relates.

          (3A)  For subsection 941C(8) of the Act, a Financial Services Guide does not have to be given to a client for a financial service provided in the circumstances specified in paragraph 7.6.01(1)(la).

             (4)  For subsection 941C(8) of the Act, a Financial Services Guide does not have to be given to a client in respect of advice that:

                     (a)  is provided by a providing entity that is:

                              (i)  a product issuer; or

                             (ii)  a related body corporate of a product issuer; or

                            (iii)  a product distributor; or

                            (iv)  an authorised representative of an entity mentioned in subparagraph (i), (ii) or (iii); and

                     (b)  is only general advice in relation to a financial product that is, or a class of financial products that includes, a financial product that is:

                              (i)  issued by the providing entity or a related body corporate of the providing entity; or

                             (ii)  offered by the providing entity; and

                     (c)  is not provided during a meeting; and

                     (d)  is not provided during a telephone call, unless:

                              (i)  the advice:

                                        (A)  concerns a class of financial products that includes a financial product already held by the client; and

                                        (B)  is provided by the providing entity for that financial product; or

                             (ii)  there is no issue or sale of any financial product during the telephone call.

Note:          The providing entity must meet obligations under the Act in relation to the telephone call such as the prohibition of hawking in sections 992A and 992AA of the Act and the requirements for Product Disclosure Statements in Part 7.9 of the Act.

          (4A)  If general advice is provided during a telephone call in accordance with paragraph (4)(d), the providing entity must tell the client that:

                     (a)  a Financial Services Guide exists; and

                     (b)  the provider will send out a Financial Services Guide on request.

             (5)  If subregulation (4) applies and the providing entity does not give a Financial Services Guide to the client when the advice is provided, the providing entity must give to the client:

                     (a)  the information that would be required to be in the Financial Services Guide by paragraphs 942B(2)(a), (e) and (f) of the Act; or

                     (b)  the information that would be required to be in the Financial Services Guide by paragraphs 942C(2)(a), (c), (f) and (g) of the Act;

as the case requires.

Note:          If general advice is provided to 1 or more retail clients, the providing entity must comply with section 949A of the Act.

          (5A)  For subsection 941C(8) of the Act, a Financial Services Guide does not have to be given to a client in the following circumstances:

                     (a)  the advice is provided in circumstances in which section 1018A of the Act applies or will apply at the end of the transition period;

                     (b)  the advice is only general advice in relation to a financial product that is, or a class of financial products that includes, a financial product issued by the product issuer;

                     (c)  the advice is in the form of advertising the financial product:

                              (i)  on a billboard or a poster; or

                             (ii)  in the media within the meaning of subregulation 7.6.01(7);

                     (d)  the advertisement indicates that a person should consider whether or not the product is appropriate for the person.

          (5B)  For subsection 941C(8) of the Act, a Financial Services Guide does not have to be given to a client in the following circumstances:

                     (a)  the providing entity is an issuer of derivatives that are able to be traded on a financial market;

                     (b)  the financial service is a dealing (within the meaning of section 766C of the Act) in a derivative by the providing entity;

                     (c)  at the time of the dealing, the providing entity is not a participant in the financial market on which the particular derivative may be traded;

                     (d)  the only financial service that the providing entity provides to the client is the issuing of the derivative.

             (6)  In this regulation:

product distributor means a licensee that offers a financial product for sale.

             (7)  If:

                     (a)  a financial service is provided by a person (the secondary service provider ) to a client by causing or authorising another person (the intermediary ) to provide or pass on the service; and

                     (b)  but for the operation of section 52 of the Act, the secondary service provider would not be taken to be providing the financial service to the client; and

                     (c)  the intermediary does not act on behalf of the secondary service provider in providing or passing on the service for the secondary service provider (see section 911B of the Act); and

                     (d)  the intermediary is a financial services licensee or an authorised representative of a financial services licensee; and

                     (e)  the secondary service provider has a written agreement with the intermediary under which the intermediary agrees to either:

                              (i)  give the secondary service provider's Financial Services Guide relating to the financial service provided by the secondary service provider to the client; or

                             (ii)  inform the client how to obtain the secondary service provider's Financial Services Guide relating to the financial service provided by the secondary service provider;

then, for subsection 941C(8) of the Act, the secondary service provider does not have to give the client a Financial Services Guide for the financial service.



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