Historically the regulation of financial products in Australia has constrained innovative approaches to disclosure made possible by rapidly advancing technology. After a period of consultation, ASIC has, however, attempted to embrace the digital world by enabling certain financial services disclosures to be provided digitally. This is achieved by requiring investors to opt out of receiving digital disclosures, together with a requirement they be notified how to access the disclosure. This is a vast improvement upon the old regulatory regime, under which the actual consent of the investor was required to receive disclosure digitally.
In substance, the reforms are achieved through two new legislative instruments, ASIC Corporations (Facilitating Electronic Delivery of Financial Services Disclosure) Instrument 2015/647 and ASIC Corporations (Removing Barriers to Electronic Disclosure) Instrument 2015/649 with the effect of those instruments explained in new ASIC Regulatory Guide 221 (RG 221). ASIC Class Order 10/1219 (which allowed PDSs and other financial services disclosure documents to be delivered electronically but required prior client consent) has been replaced by the new regime.
In short, Instrument 2015/647 allows the electronic delivery of financial services disclosure documents by enabling electronic delivery to be the ‘default’ option for disclosure, provided it has first sent a notice to the investor of its intention to do so and the investor has not opted out of receiving disclosures electronically. If the investor has not opted out within 7 days, the provider may use the method described in the Instrument to satisfy their disclosure obligation. Instrument 2015/649 enables use of innovative PDSs, FSGs and SOAs by giving relief from three current requirements in the Corporations Act and the Corporations Regulations 2001 that relate to page length of PDSs, provision of copies of electronic disclosure documents on request, and placement of the title of electronic disclosure documents.
Appendix 1 to RG 221 provides a highly useful overview of how providers can utilise the new ASIC reforms. We have extracted some of the most relevant sections in the attached PDF document. Click download to view the table.