Sections 912ADA to 912ADG apply to a financial services licensee that holds an Australian financial services licence authorising it to operate an IDPS.912ADA IDPS Guide and IDPS contract When an IDPS Guide must be given(1) The licensee must, before entering into an IDPS contract with a person as a retail client, give the person an IDPS Guide.What must be in an IDPS Guide(2) The information included in the IDPS Guide must be worded and presented in a clear, concise and effective manner.(3) Subject to subsections (5) and (8), an IDPS Guide must include all information a person would reasonably require for the purpose of making a decision, as a retail client, whether to become a client of the IDPS, including such information that the person would reasonably require to:(a) understand the nature of the IDPS being offered and any risks associated with participation in the IDPS; and(b) identify the operators and custodians and the nature of their responsibilities and relationships; and(c) understand the method and extent of all charges associated with the IDPS, including any right of the operator or any other person to recoup expenses from a client’s assets; and(d) understand any differences between the rights of a holder of accessible investments and the rights of a client of the IDPS in respect of accessible investments; and(e) understand the consequences for a client if at any time the client has not engaged a person, or a person meeting particular requirements, to provide:(i) financial product advice to the client in relation to the IDPS; or(ii) instructions to the licensee or another operator in relation to accessible investments; and(f) understand how and to whom a client may make a complaint in relation to:(i) the operation of the IDPS; and(ii) accessible financial products held through the IDPS; and(iii) financial product advice provided to the client in relation to the IDPS that is not provided by or on behalf of the licensee or another operator; and(g) understand clients’ rights to disclosure in relation to accessible investments, including in relation to communications sent to holders of accessible investments; and(h) understand how the licensee or, if applicable, any other operator, will determine what financial products, securities or other investments are or will be available as accessible investments for the IDPS.(4) Subject to subsection (8), an IDPS Guide must also include:(a) a statement that copies of the IDPS voting policy are available free of charge on request; and(b) a statement that a separate document specifying the accessible investments for the IDPS will be provided on request free of charge, if the IDPS Guide does not specify these investments; and(c) statements to the effect that:(i) the total fees and charges payable by a client will include the costs of the IDPS as well as the cost of any accessible investments chosen by the client; and(ii) the costs of the accessible investments chosen by the client will generally be set out in a disclosure document or Product Disclosure Statement for the accessible investments; and(d) examples, based on estimates, of the total of fees, charges and expenses of the IDPS and the accessible securities and accessible financial products that may be acquired through the IDPS, that:(i) the licensee has reasonable grounds for believing are based on estimates that are within the range typically charged for accessible securities and accessible financial products of the relevant kind; and(ii) cover a range of accessible securities and accessible financial products that may be acquired through the IDPS; and(e) information about fees and costs in relation to the IDPS that complies with Part 2 of Schedule 10 of the Corporations Regulations 2001 as if:(i) an interest in the IDPS were a managed investment product; and(ii) the IDPS Guide were a Product Disclosure Statement for a managed investment product;except that the costs incurred for accessible investments are not required to be included as management fees and costs, performance fees or transaction costs.(5) An IDPS Guide does not need to include:(a) information in relation to actual or identified accessible investments; or(b) information (excluded information) that would otherwise need to be included under subsection (3) if the information is in writing and is publicly available in a document other than the IDPS Guide, provided the IDPS Guide:(i) refers to the information; and(ii) provides sufficient details about the information to enable a person to identify by a unique identifier the document or part of the document containing the information and to locate the information and decide whether to read or obtain a copy of it; and(iii) states that the information can be obtained from the licensee on request free of charge; and(iv) contains the following information:if the excluded information is information about any significant benefits to which a person will or may become entitled under the IDPS or any other significant characteristics or features of the IDPS or of the rights, terms, conditions and obligations arising under the IDPS—a summary of that excluded information;(B) if the excluded information is information about any significant risks associated with the IDPS—a description, in summary, of the key risks of the IDPS;(C) the name and contact details of each operator of the IDPS;(D) the information required by paragraphs (3)(d) to (h) and subsection (4).(6) The licensee must give, as soon as practicable and at no charge, a copy of any excluded information that the licensee has not included in the IDPS Guide, if requested by a client or prospective client.Giving an IDPS Guide when circumstances change(7) Subject to subsection (8), the licensee must not give a person an IDPS Guide for the purposes of subsection (1) once the licensee becomes aware that:(a) a material change has occurred to the information in it; or(b) it has become misleading or deceptive or likely to mislead or deceive.(8) If:(a) the licensee has prepared an IDPS Guide (existing IDPS Guide) that met the requirements of subsections (3) and (4) when it was prepared; and(b) a new circumstance has arisen since the existing IDPS Guide was prepared that means that it no longer meets the requirements of those subsections;the licensee may continue to satisfy its obligation under subsection (1) to give an IDPS Guide to a person by using the existing IDPS Guide if and only if:(c) the updated information that would be required to be included in a new IDPS Guide is not materially adverse from the point of view of a reasonable person as a retail client of the IDPS; and(d) the licensee has taken reasonable steps to:(i) establish and maintain a simple means by which a person who is provided the IDPS Guide can obtain the updated information on request without charge; and(ii) ensure the IDPS Guide explains how a person can obtain the updated information.Using a Supplementary IDPS Guide (9) Section 1014A (other than paragraph (d) and the note) and sections 1014C and 1014D apply in relation to an IDPS Guide as if:(a) a reference in those sections to a Supplementary Product Disclosure Statement, an SPDS or a Supplementary Disclosure Statement were a reference to a Supplementary IDPS Guide; and(b) a reference in those sections to a Product Disclosure Statement or a PDS were a reference to the IDPS Guide.Note: Among other matters, Supplementary IDPS Guide has the meaning given by section 1014A as applied by this subsection.(10) A Supplementary IDPS Guide must be dated with the date on which the Supplementary IDPS Guide was prepared or the preparation was completed.(11) The licensee must keep a copy of each version of the IDPS Guide and any Supplementary IDPS Guide for at least 7 years after it ceases to be used.Requirements for the IDPS contract(12) The licensee must not enter into an IDPS contract with a person as a retail client unless:(a) the contract contains a prominent warning that:(i) identifies the key areas of difference between acquiring a financial product directly and through the IDPS, including any differences in respect of:(A) cooling-off rights; and(B) voting rights; and(C) withdrawal rights under section 724 and section 1016E in relation to accessible securities and accessible financial products; and(ii) if applicable, that a client of the IDPS may be adversely affected if the client has not engaged a person, or a person meeting particular requirements, to provide financial product advice to the client or provide instructions on behalf of the client in relation to accessible investments; and(b) in the case of:(i) a contract that is entered into electronically—the part of the facility that allows the person to enter into the contract contains a prominent statement; and(ii) otherwise—the contract requires the person entering into the contract to sign an acknowledgement;to the effect that the person entering into the contract acknowledges the matters contained in the warning.912ADB Restrictions on acquiring accessible investments for retail clients(1) The licensee must not, and must ensure that any custodian acting on its behalf does not, acquire accessible investments that are interests in a managed investment scheme under the direction of a retail client as part of the IDPS unless the scheme is a registered scheme.(2) The licensee must not, and must ensure that any custodian acting on its behalf does not, acquire accessible securities or accessible financial products for a client under a direction of a client as part of the IDPS unless:(a) in relation to acquisitions of accessible securities, subsection (3), (5) or (7) applies; and(b) in relation to acquisitions of accessible financial products:(i) subsection (3), (4) or (5) applies; and(ii) subsection (6) applies.(3) This subsection applies if:(a) both of the following apply:(i) the licensee reasonably believes that the client has been given a copy of the disclosure document for the accessible securities or the Product Disclosure Statement for the accessible financial products that would have been required had the accessible securities or accessible financial products been offered to the client directly at the time of their acquisition;(ii) the licensee has no reason to believe that the disclosure document or Product Disclosure Statement is defective as if it were prepared at that time; or(b) the licensee reasonably believes that the accessible securities or accessible financial products could lawfully have been offered and issued or sold, as the case may be, to the client directly:(i) in the case of accessible securities—without the client being required to be given a disclosure document other than because of subsection 708(1); and(ii) in the case of accessible financial products—without the client being required to be given a Product Disclosure Statement other than because of section 1012E.(4) This subsection applies if:(a) the client already holds an accessible financial product of the same kind through the IDPS; and(b) the licensee has given the client a Product Disclosure Statement for a financial product of the same kind; and(c) both the following apply:(i) the licensee reasonably believes that the client has access to, and knows that they have access to, a Product Disclosure Statement for the financial product that is the most current in use or does not differ from the most current in use in a way that is materially adverse for the client;(ii) the licensee has no reason to believe the Product Disclosure Statement the client has access to is defective as if it were prepared at the time of the acquisition.Note: For example, this could apply to one-off acquisitions of a financial product or to acquisitions under a regular savings plan.(5) This subsection applies if the acquisition is made under a distribution reinvestment plan in relation to a client and the client already has an existing holding of an accessible financial product of the same kind or accessible securities in the same class through the IDPS.(6) This subsection applies if the licensee reasonably believes that the issuer or seller of the accessible financial products has a dispute resolution system that satisfies either subsection 912A(2) or 1017G(2) and which covers complaints against the issuer or seller by each client of the IDPS who:(a) holds through the IDPS an accessible financial product issued or sold by the issuer or seller; and(b) if the issuer or seller had issued or sold the accessible financial product the subject of the direction to the client directly—would have acquired the product as a retail client;where the complaints are made in connection with an accessible financial product issued or sold by the issuer or seller that is held through the IDPS.(7) This subsection applies if the licensee reasonably believes that:(a) the client:(i) has accessed the platform of a CSF intermediary containing the CSF offer document for the CSF offer and the licensee has no reason to believe the document is defective as at the time of the acquisition of the shares; and(ii) has completed the acknowledgement that would be required under paragraph 738ZA(3)(b) if the client had applied as a retail client; and(iii) was able to use the relevant communication facility for the CSF offer provided under subsection 738ZA(5); and(iv) was able to withdraw the direction within 5 business days after it was made; and(v) has not been provided with financial assistance in relation to the CSF offer by:(A) a person referred to in subsection 738ZE(1); or(B) the licensee; or(C) an associate of the licensee that is not an Australian ADI; and(vi) has not in total paid for, or become liable to pay for, or given directions under an IDPS, an IDPS-like scheme or a nominee and custody service for the acquisition of shares under a CSF offer of the company making the CSF offer that together exceed the cap on investment in paragraph 738ZC(1)(b); or(b) the client would have acquired the shares as a wholesale client if the client had acquired the shares directly under the CSF offer.912ADC Provision of informationPassing on communications from underlying issuers to clients(1) The licensee must give to a client on request a copy of all communications that are required by law to be given to the holder of an accessible investment (including communications that are required to be given on request) where that accessible investment is required to be held on trust for the client by the licensee or a custodian acting on its behalf.(2) A client may make a request under subsection (1) in relation to a particular communication or make a standing request in relation to a class of communications. The licensee must provide the information as soon as practicable after the information is received or otherwise becomes available to be provided to the client.Giving clients electronic access to information about their accounts (3) The licensee must give each client electronic access to the following information, which at the time of access must be as current as is reasonably practicable, on a substantially continuous basis:(a) all transactions which the client has conducted through the IDPS for a period of at least 2 years (or such shorter period as the client’s account has been in existence);(b) the quantity and value of assets held through the IDPS by the client and corresponding liabilities, the values being determined as follows:(i) for financial assets—net market value (being the amount which could be expected to be received from the disposal of the asset in an orderly market after deducting costs expected to be incurred in realising the proceeds of such a disposal); and(ii) for all other assets—the value which would be shown in the books of the IDPS;(c) the revenue and expenses of the client in relation to the IDPS and assets held through the IDPS by the client during a period of at least 2 years (or such shorter period as the client’s account has been in existence);(d) the time at which the information is current.Annual investor statements for clients(4) The licensee must give to each client within three months of the end of each IDPS financial year:(a) a report (annual investor statement) containing a summary of the transactions by or on behalf of the client through the IDPS during the financial year containing the particulars that a client may reasonably require in relation to the transactions; and(b) a copy of the annual report or reports for the relevant IDPS financial year prepared by a registered company auditor under section 912ADD.912ADD Annual audit requirements(1) The licensee must, after the end of each IDPS financial year, cause a registered company auditor to provide one or more reports which:(a) meet the requirements set out in:(i) if the licensee is a full service operator or back office operator—subsections (2), (3) and (4); and(ii) if the licensee is a client contact operator—subsection (2); and(b) do not contain any statement that has or purports to have the effect of excluding or disclaiming liability to clients of the IDPS as users of the report.(2) For the purposes of paragraph (1)(a), the reports must set out the auditor’s opinion as to whether the internal controls and other procedures of the operator, any custodian and any other relevant person acting on behalf of the operator were suitably designed and operated effectively in all material respects to ensure that:(a) any annual investor statement for the relevant IDPS financial year:(i) in the case of a full service operator or a client contact operator—is or has been given to clients without material misstatements; and(ii) in the case of a back office operator—is not materially misstated; and(b) the following information is not materially misstated at the end of each quarter in the IDPS financial year:(i) in the case of a full service operator—any information that is made accessible electronically under subsection 912ADC(3) in respect of the IDPS financial year; and(ii) in the case of a back office operator—any information given to the client contact operator to be made accessible electronically under subsection 912ADC(3) during the IDPS financial year; and(c) in the case of a client contact operator—any information given to the client contact operator by the back office operator to be made accessible electronically under subsection 912ADC(3) that relates to any of the following:(i) transactions during the IDPS financial year;(ii) assets held during the IDPS financial year and any corresponding liabilities;(iii) revenue and expenses for the IDPS financial year;is so made accessible without material alteration at the end of each quarter in the IDPS financial year.(3) For the purposes of subparagraph (1)(a)(i), the reports must also set out the auditor’s opinion as to whether the aggregates of assets (other than assets held by a client), liabilities, revenue and expenses shown in the following statements have been properly reconciled in all material respects to the corresponding amounts shown in the reports prepared by the custodian and which have been independently audited:(a) in the case of a full service operator—any annual investor statement for the relevant IDPS financial year; and(b) in the case of a back office operator—any annual investor statement for the relevant IDPS financial year given to the client contact operator.(4) For the purposes of subparagraph (1)(a)(i) the reports must also set out the auditor’s statement as to whether or not the auditor has any reason to believe that:(a) any annual investor statement for the relevant IDPS financial year:(i) in the case of a full service operator—given to any client; and(ii) in the case of a back office operator—given to the client contact operatoris materially misstated; and(b) any information:(i) in the case of a full service operator—made accessible electronically under subsection 912ADC(3); and(ii) in the case of a back office operator—given to the client contact operator for the purposes of being made accessible electronically under subsection 912ADC(3);that relates to any of the following was materially misstated at the end of each quarter in the IDPS financial year:(iii) transactions during the IDPS financial year;(iv) assets held during the IDPS financial year and any corresponding liabilities;(v) revenue and expenses for the IDPS financial year.(5) In this section:back office operator means an operator who:(a) prepares the content of annual investor statements or information made accessible electronically under subsection 912ADC(3); and(b) gives the statements or information to a client contact operator for giving or making it accessible to clients.client contact operator means an operator who:(a) receives the content of annual investor statements or information made accessible electronically under subsection 912ADC(3) from a back office operator; and(b) gives the statements, or makes the information accessible, to clients.full service operator means an operator who:(a) prepares annual investor statements or information made accessible electronically under subsection 912ADC(3); and(b) gives the statements, or makes the information accessible, to clients, other than by giving the statements or information to a client contact operator.912ADE Additional obligations of IDPS operatorsHow IDPS operators must perform their obligations(1) The licensee must perform its obligations under each IDPS contract and sections 912ADA to 912ADF honestly and with reasonable care and diligence.Compensating clients for acts or omissions of agents(2) The licensee must compensate clients in relation to the functions that the licensee has contracted to perform, for acts and omissions of any of its agents engaged to perform those functions or functions connected with the performance of those functions (including transactional functions), as if they were the acts or omissions of the licensee.
(3) A licensee that engages a custodian to hold IDPS property must ensure that:(a) if the licensee holds a beneficial interest in the IDPS property on behalf of the relevant client or clients, it has a written agreement with the custodian that meets the requirements of paragraphs (c) to (e) except:(i) to the extent that, in relation to IDPS property held outside of this jurisdiction, the licensee holds documents that demonstrate that it is not reasonably practicable to engage another person to hold the IDPS property who is willing to include such matters in the agreement; or(ii) where the custodian is controlled by the licensee and the licensee is liable to the relevant client or clients for the acts and omissions of the custodian as if they were the acts or omissions of the licensee; and(b) if the licensee does not hold a beneficial interest in the IDPS property on behalf of the relevant client or clients:(i) it has a written agreement with the custodian that meets the requirements of paragraphs (c) to (e); and(ii) it does all things necessary to ensure that the custodian has a written agreement with each person that the custodian engages to hold the IDPS property and the written agreement meets the requirements of paragraphs (c) to (e) as if the person were the custodian and the custodian were the licensee except:(A) to the extent that, in relation to IDPS property held outside of this jurisdiction, the licensee holds documents that demonstrate that it is not reasonably practicable to engage another person to hold the IDPS property who is willing to include such matters in the agreement; or(B) where the person is controlled by the custodian and the custodian is liable to its client for the acts and omissions of the person as if they were the acts or omissions of the custodian; and(c) the agreement with the custodian has provisions:(i) specifying reasonable rights that the licensee has for the ongoing review and monitoring of the custodian and any sub-custodian and the standards against which their performance will be assessed; and(ii) to the effect that the custodian must certify to the licensee in writing at least every 13 months that the custodian believes on reasonable grounds that the custodian and each sub-custodian have met since the date of the previous statement in writing or the commencement of the agreement, and the custodian has no reason to believe that the custodian and each sub-custodian will not continue to meet:(A) in the case of the custodian, the terms of the agreement; and(B) in any case, the requirements that the licensee must do all things necessary to ensure under subsections (5) to (12) and paragraphs (13)(a), (c) and (e) are met by the custodian or the sub-custodian in relation to IDPS property held by the custodian or a sub-custodian (except to the extent that the licensee is not complying with a requirement under paragraph (6)(a) or (b) and the custodian is not aware of any non-compliance);other than:(C) as disclosed in writing to the licensee; or(D) that the custodian reasonably believes are trivial, andthe custodian acknowledges that it or the sub-custodian must continue to meet those obligations; and(iii) to the effect that the custodian must acknowledge to the licensee on request that the IDPS property to which the agreement relates is held for the licensee or the relevant client or clients and notify any other person where the custodian is aware that doing so might protect the rights or equitable interest of the licensee or the client or clients that the property is so held, unless the licensee directs in writing otherwise; and(iv) specifying how instructions will be given by the licensee to the custodian; and(v) to the effect that the custodian must not take or grant a security interest, mortgage, lien or other encumbrance over, or in relation to, the IDPS property held under the agreement unless it is in accordance with the agreement and does not cover unpaid fees of the custodian; and(vi) specifying how the custodian will maintain records of the IDPS property to which the agreement relates and the transactions in relation to that IDPS property including by whom, when and how transactions were authorised; and(vii) specifying procedures for reconciliation each business day or if it is ordinary and reasonable commercial practice to reconcile certain property less frequently, in accordance with that practice, by checking information the custodian is given as to the existence and quantity of the IDPS property against the records of the custodian and for reporting by the custodian concerning the outcomes of the reconciliation in case of any unreconciled matter; and(viii) to the effect that the custodian must provide all reasonable access and assistance to any auditor engaged to audit the licensee’s financial statements or statements and records concerning clients’ holdings or transactions; and(ix) to the effect that the custodian will provide the licensee with written notice of and contact information for any other person holding IDPS property or to be appointed by the custodian:(A) as soon as reasonably practicable; and(B) in any event before the property is held, except in exceptional circumstances identified in the agreement; and(x) to the effect that the licensee may terminate the agreement without:(A) payment other than in relation to entitlements previously accrued or the reasonable expenses involved in transfer of the assets to the licensee or another custodian; and(B) limiting any right to damages the licensee may have under the agreement, including recovering expenses referred to in sub-subparagraph (A) if the custodian is in breach;if the licensee has reasonable grounds for believing that:(C) there is or has been an act or omission of the custodian or a sub-custodian that results in the custodian being in breach of the agreement; and(D) as a result of the act or omission, to a material extent the custodian or a sub-custodian is not complying with or is unlikely to comply with the requirements that the licensee must do all things necessary to ensure under subsections (5) to (12) and paragraphs (13)(a), (c) and (e) are met by the custodian or the sub-custodian in relation to IDPS property held by the custodian or that the custodian arranged to be held, having regard to any remedy provided or that may be expected to be provided by the custodian or the sub-custodian; and(xi) to the effect that on termination of the engagement, the IDPS property must be transferred to the licensee or as the licensee directs within a reasonable period subject to reasonable provisions for the obligations of the parties at termination, including the payment of outstanding fees and charges to the custodian and any costs of the transfer; and(xii) to the effect that the custodian must notify material or systemic breaches of the agreement by it or by the licensee in writing to the licensee within a reasonable time of becoming aware of the breach; and(xiii) specifying the terms on which the custodian is authorised to engage a person to hold the IDPS property to which the agreement relates and providing that any such engagement must be either:under a written agreement meeting the requirements of paragraphs (c) to (e) (including this sub-subparagraph and sub-subparagraph (B)) as if the person engaged were the custodian and the custodian were the licensee except to the extent that, in relation to assets held outside of this jurisdiction, the custodian has provided written reasons to the licensee as to why it reasonably considers that it is not practicable to engage a person that is willing to include such matters in the agreement; oran arrangement with a related body corporate of the custodian, where the custodian has a written agreement with the licensee that it is liable to its client for the acts and omissions of the related body corporate as if those acts and omissions were the acts or omissions of the custodian; and(xiv) to the effect that the custodian must establish and maintain business continuity arrangements that are reasonable for a business of the nature, scale and complexity of the custodian’s business; and(xv) to the effect that the custodian must not disclose any confidential information relating to the IDPS, apart from any disclosure to ASIC or as required or permitted by law or by the licensee in writing; and(d) the agreement with the custodian has reasonable liability provisions and does not include provisions that exclude the liability of the custodian for direct loss that it would have if the exclusion were not included except in particular circumstances that the licensee considers to be reasonable and contains, if appropriate, reasonable indemnity provisions in relation to losses caused to the licensee, as IDPS operator or to the relevant client or clients by the custodian’s acts and omissions that relate to that agreement; and(e) it does not, under the agreement with the custodian or otherwise, permit the granting of a security interest, mortgage, lien or other encumbrance in favour of the custodian or its associates unless the licensee reasonably believes for reasons it has recorded in writing that any conflict that may arise as a result of the security interest, mortgage, lien or encumbrance will not materially increase the risks that the custodian will fail to meet its obligations and the licensee must keep the written record of reasons for 7 years after the security interest, mortgage, lien or encumbrance has ceased.(4) A licensee that complies with subsection (3) in relation to an arrangement with a custodian is taken to comply with any condition on its Australian financial services licence concerning the arrangement.
(5) The licensee must:(a) have reasonable procedures for giving instructions to a custodian it engages or where there is no custodian, custodial staff in relation to the accessible investments that include how the instructions are given, and reasonable controls to ensure that the instructions are properly authorised and carried out; and(b) ensure that it, and do all things necessary to ensure that any person the licensee directly or indirectly engages to hold IDPS property:(i) as far as practicable identifies the IDPS property as property held on behalf of the person for whom it is held; and(ii) holds the IDPS property separately from property in which the licensee or the person holding the IDPS property has an interest and from the property of any other person, other than clients of the IDPS, except in relation to:(A) Australian or foreign currency; or(B) a deposit taking facility of a body carrying on a business of accepting money on deposit including rights under that facility; or(C) securities (as defined in subsection 92(1)); or(D) derivatives;held separately from property in which the licensee or person holding the IDPS property has an interest other than as a trustee for a person other than the licensee, except where property is not held separately to comply with paragraph (6)(f).(6) The licensee must do all things necessary to ensure that, if IDPS property is not held separately from property in which the licensee or a person it directly or indirectly engages has an interest and separately from the property of any person other than clients of the IDPS:(a) the licensee has put in place, and keeps for 7 years after it was last relied on, a written policy in relation to not holding IDPS property separately which sets out its reasons why that policy is appropriate having regard to any extent to which it might expose its clients to the risks arising from the IDPS property not being held separately and its duties to each client; and(b) the licensee reviews the policy at least every 13 months, prepares a written record of the outcome of the review and keeps that record for 7 years; and(c) adequate records are kept at all times showing each client’s entitlement to IDPS property that includes the IDPS property not held separately; and(d) reconciliation procedures are performed on each business day in relation to the IDPS property not held separately or if because of the nature of the property, it is ordinary and reasonable commercial practice in the place where the property is located to reconcile property of that kind less frequently, as frequently as would be performed in accordance with that practice; and(e) not holding the IDPS property separately does not restrict the capacity of the licensee to exercise its powers in relation to the IDPS property in accordance with its duties including in relation to voting rights; and(f) if the property that includes the IDPS property is not sufficient to meet the entitlements of all persons in relation to that property, the insufficiency ceases by the second business day after the insufficiency arises, whether through the provision of additional property by the licensee or otherwise.(7) The licensee must do all things necessary to ensure that it, if it holds IDPS property, and any custodian it engages to hold IDPS property has an organisational structure that supports compliance with subparagraph (5)(b)(ii).(8) The licensee must do all things necessary to ensure that it, if it holds IDPS property, and any custodian it engages to hold IDPS property segregates custodial staff from persons performing other functions, in a way that minimises the potential for conflict, if a conflict of interest exists or might arise between:(a) their duties as custodial staff; and(b) the interests served or advanced by persons who perform duties to make investment decisions, trading decisions or other discretionary decisions resulting in the transfer or disposal of IDPS property other than discretionary decisions in relation to holding a deposit account with a corporation that is regulated for the taking of deposits where the balance of the deposit account is payable on demand and discretionary decisions relating to buying or selling foreign currency.(9) The licensee must do all things necessary to ensure that it and any custodian it engages to hold IDPS property has a documented policy that is:(a) approved by its directors or governing body, or a senior manager authorised to give approval on behalf of the directors or governing body, or in the case of a custodian that is a foreign company that is carrying on business in this jurisdiction or registered under Division 2 of Part 5B.2, its most senior officer or employee in this jurisdiction with responsibility for managing the functions of custodial staff; and(b) designed to ensure that custodial staff are not influenced because of a conflict mentioned in subsection (8) to act other than in accordance with their duties.(10) The licensee must undertake reasonable checks to find out and document if there has been any attempt to inappropriately influence custodial staff and take reasonable action in the event this happens.(11) The licensee must do all things necessary to ensure that it and any custodian it engages to hold IDPS property structures its business so that:(a) custodial staff can report to the directors of the licensee directly or through other custodial staff; and(b) the duties of:(i) direct managers of custodial staff; and(ii) indirect managers of custodial staff that are not the most senior officer of the licensee or the most senior officer or employee of the custodian in this jurisdiction or, for a custodian, the jurisdiction in which the custodian is based; and(iii) custodial staff; do not extend to other functions that may create conflicts of interest including that custodial staff and those managers are not responsible for investment decisions, trading decisions or other discretionary decisions resulting in the transfer or disposal of IDPS property, other than discretionary decisions in relation to holding a deposit account with a corporation that is regulated for the taking of deposits where the balance of the deposit account is payable on demand and discretionary decisions relating to buying and selling foreign currency; and(c) custodial staff and persons involved in investment decisions, trading decisions or other discretionary decisions resulting in the transfer or disposal of IDPS property, other than discretionary decisions in relation to holding a deposit account with a corporation that is regulated for the taking of deposits where the balance of the deposit account is payable on demand and discretionary decisions relating to buying and selling foreign currency, are located sufficiently separately during the performance of their duties to reduce, so far as reasonably practicable, the risk of inappropriate influence on decisions relating to holding of IDPS property.(12) The licensee must, for its custodial staff ensure that, and for custodial staff of any custodian do all things necessary to ensure that the custodian ensures that:(a) custodial staff have the knowledge and skills necessary to perform their duties properly; and(b) ongoing training and educational programs are provided to custodial staff that provide reasonable assurance that they have knowledge that remains at a level necessary for performing their assigned duties including knowledge of the licensee’s obligations under this Part to the extent relevant to enable the custodial staff to perform their particular duties; and(c) custodial staff have the necessary time and authority to perform their duties as custodial staff; and(d) resources are made available to custodial staff to the extent necessary for them to adequately perform their duties as custodial staff.(13) The licensee must:(a) if the licensee has engaged a custodian, also comply with subsections (7) to (12) as if any sub-custodian were the custodian, except to the extent that, in relation to IDPS property outside of this jurisdiction, it is not reasonably practicable for the licensee to do all things necessary to ensure that the sub-custodian does a particular thing; andNote: For example, if the custodian engaged a sub-custodian, the licensee would need to do all things necessary to ensure that the requirements of subsections (7) to (12) were satisfied in relation to the custodian, the sub-custodian and their custodial staff, subject to the exception in relation to property outside this jurisdiction.(b) keep for 7 years records demonstrating how it complies with subsections (1), (2) and (5) to (12) and paragraph (13)(a); and(c) set out in writing and implement a reasonable process to monitor and assess the performance, by any custodian it engages, of its obligations as a custodian and must do all things necessary to ensure that a custodian it engages sets out in writing and implements a reasonable process to monitor and assess the performance of its obligations by any sub-custodian; and(d) not permit a custodian it engages or a sub-custodian to be involved in discretionary decisions concerning a deposit account, unless the licensee is satisfied that the custodian or sub-custodian has set out in writing and implements reasonable processes for:(i) determining which account to use; and(ii) monitoring performance by the issuer of the account of the issuer’s obligations in relation to that account; and(iii) taking action in case of failure of the issuer of the account of the issuer’s obligations in relation to that account; and(e) keep records of the IDPS property in a way that enables the holding of the IDPS property to be conveniently and properly audited by an auditor of the IDPS operator and do all things necessary to ensure that any custodian or sub-custodian keeps such records in relation to any IDPS property that is held by the custodian or the sub-custodian; and(f) set out in writing and implement a reasonable process for determining if it should hold IDPS property or engage a custodian, unless either choice is determined by its contractual obligations, and if it is to engage a custodian, which person will be the custodian and on what terms. The process must involve the application of a reasonable written policy approved by the directors which addresses potential conflicts of interest and other considerations relevant to the interests of each client; and(g) do the following:(i) review the appropriateness of the written policies and processes that the licensee is required to ensure exist under paragraphs (c), (d) and (f) at least once in every 13 months; and(ii) as directed by ASIC in writing, arrange for a report on the effectiveness or the reasonableness of any of the processes or policies to be prepared and given to ASIC.The written direction may specify who is to prepare the report and the time by which it must be given to ASIC.(14) A licensee that complies with subsections (5) to (13) is taken to comply with conditions (if any) of its Australian financial services licence that refer to ASIC Policy Statement 133 or ASIC Regulatory Guide 133 as applying on a certain date.912ADG Interpretation
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