About this compilation

Compilation No. 2

This is a compilation of ASIC Corporations (Financial Counselling Agencies) Instrument 2017/792 as in force on 11 February 2022. 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  3

1    Name of legislative instrument 3

3    Authority. 3

4    Definitions. 3

Part 2—Exemption  4

5    Licensing relief for financial counselling agencies. 4

Endnotes  6

Endnote 1—Instrument history. 6

Endnote 2—Amendment history. 6

Part 1—Preliminary

1        Name of legislative instrument

This is the ASIC Corporations (Financial Counselling Agencies) Instrument 2017/792.

3        Authority

This instrument is made under paragraph 926A(2)(a) of the Corporations Act 2001.

4        Definitions

In this instrument:

Act means the Corporations Act 2001.

client means a person who receives a financial service from a financial counselling agency.

financial counselling agency means a person that provides a financial counselling service.

financial counselling association means each of the following:

(a)     Financial Counselling Australia Ltd;

(b)     Financial Counselling Victoria Inc.;

(c)     Financial Counsellors Association of New South Wales Inc;

(d)     Financial Counsellors Association of Western Australia Inc;

(e)     Financial Counsellors Association of Queensland Inc.;

(f)     The South Australian Financial Counsellors’ Association Incorporated;

(g)     Financial Counselling Tasmania Inc.;

(h)     Financial Counsellors ACT.

financial counselling service means a counselling and advocacy service provided predominantly for the purposes of assisting individuals or small businesses who are in financial difficulty to resolve their problems.

small business means a business with less than 100 employees.

Part 2—Exemption

5        Licensing relief for financial counselling agencies

Exemption

(1)     A financial counselling agency does not have to comply with subsection 911A(1) of the Act for the provision of the following financial services to a client:

(a)     financial product advice in relation to any of the following:

(i)      a deposit product;

(ii)     a facility for making non-cash payments within the meaning of subsection 763D(1) of the Act;

(iii)    an insurance product;

(iv)    an RSA product;

(v)     a superannuation product;

(b)     financial product advice to the effect that the client should or may dispose of any of the following:

(i)      a security;

(ii)     a financial product referred to in paragraph 764A(1)(b) or (ba) of the Act;

(iii)    a debenture, stock or bond issued by a government.

Note:    ASIC Corporations (Miscellaneous Technical Relief) Instrument 2015/1115 provides relief from subsections 911A(1) and 911B(1) of the Act to a person who provides financial services on behalf of a person who does not need an Australian financial services licence because of an exemption under section 926A of the Act.

Where the exemption applies

(2)     The exemption in subsection (1) applies where all of the following are satisfied:

(a)     the financial service is provided as part of a financial counselling service;

(b)     no fees or charges (however described) are payable by or on behalf of the client  in relation to the financial service or any other aspect of the financial counselling service, other than any fees or charges payable on behalf of the client by the Commonwealth, a State or a Territory;

 (c)    no remuneration (whether by way of commission or otherwise) is payable to, or for the benefit of, the financial counselling agency, its representatives or  associates by any person in relation to any action by or on behalf of the client arising from either the financial service or any other aspect of the financial counselling service;

 (d)    the financial counselling agency takes all reasonable steps to ensure that each person who provides the financial services on its behalf:

(i)      is a member of, or is eligible to be a member of, a financial counselling association; and

(ii)     has undertaken appropriate training to ensure that they have adequate skills and knowledge to satisfactorily provide the financial services and any other aspect of the financial counselling service;

(e)     the financial counselling agency:

(i)      does not carry on or otherwise participate in a financial services business which involves the provision of a financial service, other than a financial service (exempt financial service) that is:

(A)    a financial service referred to in subsection (1) and in relation to which paragraphs (2)(a) to (d) are satisfied; or

(B)    a claims handling and settling service; and

(ii)     takes all reasonable steps to ensure that none of its representatives provide or participate in the provision of a financial service, other than an exempt financial service.

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