Federal Register of Legislation - Australian Government

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Determinations/Other as made
This instrument approves the exam that a person must pass to meet the second of the education and training standards under section 921B of the Corporations Act 2001 (see subsection 921B(3) of the Act).
Administered by: Treasury
Registered 06 Feb 2019
Tabling HistoryDate
Tabled HR12-Feb-2019
Tabled Senate12-Feb-2019

 

Financial Adviser Standards and Ethics Authority Ltd

 

 

 

Corporations (Relevant Providers Exams Standard) Determination 2019

 

 

 

Explanatory Statement

 


Key information

1.             This instrument approves the exam that a person must pass to meet the second of the education and training standards under section 921B of the Corporations Act 2001 (see subsection 921B(3) of the Act).

2.             Date of effect: the day after this instrument is registered in the Federal Register of Legislation (see section 2).

Glossary

3.             Words and expressions used in this statement are defined in the following table.

 

Expression

Meaning

Act

the Corporations Act 2001.

applied ethical and professional reasoning and communication area

the area of knowledge and skills described in paragraph 6(3)(b).

Authority

Financial Adviser Standards and Ethics Authority Ltd, which is the standards body under section 921X of the Act.

candidate

for an exam—a person sitting the exam.

education and training standards

the standards set out in section 921B of the Act.

eligible candidate

a person who is eligible, in terms of this determination, to sit an exam.

exam

an exam approved under this determination.

exam administrator

the person notified by the Authority on its website as the exam administrator.

exam location

a place at which an exam is to be held.

financial advice construction area

the area of knowledge and skills described in paragraph 6(3)(c).

financial advice regulatory and legal obligations area

the area of knowledge and skills described in paragraph 6(3)(a).

knowledge and skills area

the applied ethical and professional reasoning and communication area, the financial advice regulatory and legal obligations area or the financial advice construction area.

registered

registered by the exam administrator for an exam.

relevant provider

defined in section 910A of the Act.

retail client

defined in sections 761G and 761GA of the Act.

 

 

4.             References to numbered sections or other provisions are to those sections or other provisions of the determination, unless indicated otherwise.

Context

5.             The Act was amended in 2017 to raise the education, training, and ethical standards of financial advisers

6.             Section 921B of the Act sets 4 standards that relevant providers must meet (education and training standards). Section 921C of the Act prohibits ASIC from granting a financial services licence to a person who has not met the education and training standards. It also prohibits licensees and authorised representatives of licensees from authorising other persons to give personal advice to retail clients in relation to relevant financial products unless the other persons have met the education and training standards.

7.             The second of the standards requires a person to pass an exam approved by the Authority. Under subparagraph 921U(2)(a)(ii) of the Act, the Authority must, by legislative instrument, approve an exam. The determination contains that approval.

8.             The Authority has contracted a service provider (the exam administrator) to prepare and administer exams in accordance with the determination.

9.             The Authority will publish the exam timetable, along with registration terms and procedures, on its website. The first exam is expected to be held in mid-2019 and quarterly thereafter in 2019. It is intended that there will be at least 6 sittings scheduled in 2020.

Preliminary matters

Name

10.         Section 1 provides that the name of the instrument is the Corporations (Relevant Providers Exams Standard) Determination 2019.

Commencement

11.         Section 2 provides that the determination will commence on the day after it is registered in the Federal Register of Legislation.

Authority

12.         Section 3 sets out the legislative authority for making the determination: subparagraph 921U(2)(a)(ii) of the Act.

Definitions

13.         Section 4 defines “the Act” as the Corporations Act 2001 and refers readers to the definitions of a range of expressions in the Act. These, and other definitions relevant to the determination, are in the Glossary at paragraph 3 above.

Section 5: Approval of exams

14.         To satisfy the second of the education and training standards, a person must pass an exam approved by the Authority.

15.         This section gives approval to exams that meet all the standards set out in the determination.

16.         An exam must be administered by the exam administrator.

Section 6: Standard: knowledge and skills areas

17.         The first standard deals with the 3 defined knowledge and skills areas that will be covered in an exam:

·                the financial advice regulatory and legal obligations area;

·                the applied ethical and professional reasoning and communication area; and

·                the technical financial advice construction area.

To pass an exam, a candidate must demonstrate an appropriate level of knowledge and skills in all 3 areas as they apply in relation to financial products.

18.         Candidates must achieve AQF 7 level, as described in Australian Qualifications Framework, 2nd edition (January 2013) published by the Australian Qualifications Framework Council. Candidates at this level:

·                have broad and coherent theoretical and technical knowledge with depth in one or more disciplines or areas of practice

·                have well-developed cognitive, technical and communication skills to select and apply methods and technologies to analyse and evaluate information, generate and communicate solutions to unpredictable and sometimes complex problems, transmit knowledge, skills and ideas to others and demonstrate autonomy, well-developed judgement and responsibility.

19.         Subsection 6(3) describes the 3 knowledge and skills areas, and details the specific knowledge and skills that a candidate will need to demonstrate to pass an exam.

Section 7: Standard: exam questions

20.         This section requires that an exam must have at least 70 questions, made up of at least 64 multiple-choice questions and at least 6 written response questions that require short answers or report writing.

21.         The questions in an exam will cover all 3 knowledge and skills areas.

Section 8: Standard: duration of exam

22.         This section specifies that a candidate will have 3.5 hours to complete an exam. This period will include 15 minutes of reading time. Subsection 10(15) prohibits a candidate from recording answers to exam questions during the reading time.

Section 9: marking exams

23.         This section deals with marking an exam.

24.         An exam must specify the maximum marks that may be awarded for each question.

25.         Subsection 9(3) provides that persons with appropriate expertise, appointed by the exam administrator, will approve the questions in an exam, and the maximum marks that may be awarded for each question.

Section 10: Standard: terms of registration for sitting exams

Registration for exams

26.         A candidate is eligible to sit an exam only if registered for the exam by the exam administrator (see paragraph 4(2)(b)). The exam administrator will charge a fee for an exam (noted in Note 2 to subsection 10(2)). The terms of registration will apply to the conduct of the exam. The Authority will publish the terms of registration on its website for information, and they will be provided to candidates on registration (see Note 1 to subsection 10(2)).

27.         Section 10 sets out standards that the terms of registration must comply with.

Subsections 10(3) and (4): entry into an exam location

28.         The terms of registration for an exam will only permit a person into an exam location if the person is an eligible candidate for that exam, or is an employee or other personnel of the exam administrator. Eligible candidate is defined in subsections 4(2) and (3).

29.         The registration terms will set out any identification requirements.

Subsections 10(5) to (9): equipment

30.         Candidates must complete an exam using a computer provided by the exam administrator (subsection 10(5)), unless the special circumstances in subsection 10(19) apply. This computer will enable access to statutory materials and materials published by ASIC and other relevant regulators, as specified by the Authority.

31.         Subsection 10(6) prohibits a candidate from using a device (other than the computer provided for the candidate by the exam administrator) to access the internet from an exam location.

32.         Subsections 10(7) and (8) prohibit a candidate from bringing any equipment or materials into the exam location without the approval of the exam administrator. Approval will only be given for equipment needed because of a candidate’s special needs. The terms of registration may set out procedures for applying for and gaining approval.

33.         Subsection 10(9) provides that the exam administrator will make reasonable and appropriate provision for candidates with special needs if the administrator is notified at least 30 days before the scheduled date for the exam.

Subsections 10(10) to (14): conduct of an exam

34.         Subsections 10(10) and (11) provide that an exam will be invigilated (supervised to ensure proper conduct), and that candidates must comply with any instruction or direction given by an invigilator in connection with the exam. Invigilation technology will be used for candidates who sit an exam remotely.

35.         To preserve the integrity of exams, subsection 10(12) prohibits a candidate from communicating with another person unless permitted to do so by an invigilator, reading another candidate’s work or copying another candidate’s work during an exam.

36.         Subsection 10(14) prohibits a candidate from recording answers to exam questions during the reading time in an exam.

37.         Subsection 10(15) provides that the exam administrator may exclude a candidate from the exam location, fail a candidate, or both, if the candidate breaches subsection (5), (6), (7), (11), (12), or (14).

Subsection 10(16): marking and results

38.         Candidates will be notified only whether they have passed or failed an exam.

Subsection 10(17): review of results

39.         Subsection 10(17) provides that a candidate who has failed an exam may apply once to the exam administrator for a review of the marking of the written response style questions in the exam. The exam administrator will charge a fee for a review. The terms of registration will:

·                specify how and by when that application may be made;

·                provide for the review to be conducted;

·                provide for the results of the review to be communicated to the candidate.

Subsection 10(18): deferral of exams for exceptional circumstances

40.         Subsection 10(18) requires the terms of registration for an exam to provide:

·                that a registered candidate may apply to the exam administrator to defer sitting the exam due to exceptional circumstances beyond the candidate’s control;

·                for reasonable procedures for making and dealing with those applications; and

·                that, if deferral is granted, the candidate may be registered for another exam without incurring additional charges.

Subsection 10(19) and (20): alternative arrangements

41.         Subsection 10(19) provides that a candidate may apply to the exam administrator for alternative arrangements for an exam if it is unreasonable for that candidate to travel to the exam because they live in a remote location or because they are not able to travel to the exam location. To preserve the integrity of exams, alternative arrangements must provide for the candidate to sit the exam in similar circumstances, and subject to similar conditions and requirements, as other candidates. This subsection will commence on 1 January 2020.

Consultation

42.         The Authority undertook consultation in July 2018, with 63 formal submissions received. The draft determination itself was also the subject of consultation, with 26 formal submissions received. The Authority conducted 5 forums with stakeholder groups. All feedback was given due consideration. The Authority concluded that the provisions of the determination set out appropriate arrangements for the exams required by the Act.

Regulatory impact

43.         The Office of Best Practice Regulation has confirmed that no Regulatory Impact Statement is needed for the determination.

44.         The compliance costs associated with the 2017 amendments to the Act raising education, training and ethical standards of financial advisers was estimated in the Explanatory Memorandum for the Bill for the Corporations Amendment (Professional Standards of Financial Advisers) Act 2017 at approximately $165.1m. It is not practicable to make a meaningful estimate of the value of the benefits to consumers of improved standards in the industry.

Statement of compatibility with human rights

45.         The determination may engage the right to freely choose and accept work under Article 6(1) of the International Convention on Economic, Social and Cultural Rights. However, it is part of a series of legislated requirements for financial planners and financial advisers designed to ensure that consumers get better service standards and to instil overall confidence in the industry. On that basis, the instrument is assessed to be compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.