ASIC is calling on financial advisers and superannuation trustees to ensure they are complying with client consent requirements when entering into ongoing fee arrangements (OFAs).
ASIC has granted a limited no-action position in response to a specific issue raised by the advice industry about the inclusion of account numbers in a client's written consent for the deduction, or arranging of the deduction, of ongoing advice fees.
ASIC does not intend to take action for a breach of section 962S of the Corporations Act 2001 (Corporations Act) and section 99FA of the Superannuation Industry (Supervision) Act 1993 where:
- written consent was given by a client under section 962S of the Corporations Act for the fee recipient to deduct or arrange to deduct fees under an OFA from 10 January 2025 until 5 September 2025
- an account number was not included in the consent, and
- in the case of superannuation, a trustee deducted from the relevant member's account the advice fees as set out in the consent.
Relying on this no-action position does not prevent an OFA terminating under section 962WA where a written consent was not compliant because it did not include the account number.
In order to rely on this no-action position, the Australian financial services licensee or representative (i.e. fee recipient) must enter into a new OFA with the client and seek a new written consent for the fee recipient to deduct or arrange to deduct ongoing fees, including to cover the period where any fees were deducted under a non-compliant written consent.
The revised OFA must comply with all the requirements in section 962T of the Corporations Act. If this is not in place by 5 September 2025, the fee recipient must take steps to stop receiving fees.
Superannuation trustees should review their processes for the oversight of advice fee deductions and ensure that any written consents comply with the Corporations Act requirements.
This no-action position does not prevent third parties from taking legal action in relation to the conduct.
Status of the no-action position
This no-action position is given in accordance with our policy in Regulatory Guide 108 No-action letters (RG 108). That is, it is not a legal opinion; it is an expression of regulatory intent and is specific to the facts and circumstances. For further information see RG 108.
ASIC is Australia's corporate, markets and financial services regulator.
