Commonwealth: Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Act 2021 (Cth)

Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Act 2021 No. 115, 2021 Compilation No. 1 Compilation date: 21 June 2022 Includes amendments up to: Act No. 35, 2022 Registered: 12 August 2022 About this compilation This compilation This is a compilation of the Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Act 2021 that shows the text of the law as amended and in force on 21 June 2022 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Initial amendments Part 1—Main amendments Australian Securities and Investments Commission Act 2001 Corporations Act 2001 Part 2—Other amendments Division 1—Amendments Freedom of Information Act 1982 National Consumer Credit Protection Act 2009 Tax Agent Services Act 2009 Division 2—Application of amendments to the Tax Agent Services Act 2009 Part 3—Contingent amendments Corporations Act 2001 Schedule 2—Later amendments Corporations Act 2001 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to amend the law in relation to financial services, and for related purposes 1 Short title This Act is the Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Act 2021. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 28 October 2021 2. Schedule 1, Parts 1 and 2 1 January 2022. 1 January 2022 3. Schedule 1, Part 3 A day or days to be fixed by Proclamation. However, if any of the provisions do not commence before 1 July 2026, they commence on that day. 4. Schedule 2 A day or days to be fixed by Proclamation. However, if any of the provisions do not commence before 1 July 2026, they commence on that day. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Initial amendments Part 1—Main amendments Australian Securities and Investments Commission Act 2001 1 Subsection 5(1) Insert: Financial Services and Credit Panel means a panel convened under subsection 139(1). 2 Subsection 5(1) (paragraph (a) of the definition of member) After "the Panel,", insert "a Financial Services and Credit Panel,". 3 Subsection 5(1) (after paragraph (a) of the definition of member) Insert: (aa) in relation to a Financial Services and Credit Panel—a member of the panel appointed under subsection 140(1); and 4 Subsection 5(1) Insert: proposed action notice has the same meaning as in Part 7.6 of the Corporations Act. relevant provider has the same meaning as in Part 7.6 of the Corporations Act. restricted civil penalty provision has the same meaning as in Part 7.6 of the Corporations Act. Tax Practitioners Board means the Tax Practitioners Board established by section 60‑5 of the Tax Agent Services Act 2009. 5 After paragraph 11(2)(a) Insert: (aa) to provide such staff and support facilities to Financial Services and Credit Panels as are necessary or desirable for the performance and exercise by the panels of their functions and powers; 6 Section 93AA (heading) After "undertakings", insert "given to ASIC". 7 At the end of subsection 102(2) Add: ; or (f) a Financial Services and Credit Panel. 8 After paragraph 127(2A)(c) Insert: (ca) a Financial Services and Credit Panel; (cb) the Tax Practitioners Board; 9 Paragraph 127(4)(e) Omit "legislation; or", substitute "legislation;". 10 Paragraph 127(4)(f) Repeal the paragraph. 11 After paragraph 136(1)(d) Insert: (da) information about the following: (i) the activities (if any) that have been undertaken by each Financial Services and Credit Panel during the period; (ii) the exams (if any) that have been administered by ASIC under subsection 921B(3) of the Corporations Act during the period; (iii) the warnings (if any) and reprimands (if any) given by ASIC to relevant providers under section 921S of the Corporations Act during the period; (iv) if, during the period, ASIC decided not to follow a recommendation in a notice given to ASIC under subsection 921Q(1) of the Corporations Act (recommendations to ASIC in relation to restricted civil penalty provisions)—the recommendation and the reasons why ASIC decided not to follow it; 12 After Part 8 Insert: Part 9—Financial Services and Credit Panels Division 1—ASIC to convene panels 139 ASIC to convene panels (1) ASIC may, in writing, convene one or more Financial Services and Credit Panels. (2) ASIC must, in circumstances prescribed by the regulations (if any), convene a panel under subsection (1) to perform functions or exercise powers under the corporations legislation in relation to a relevant provider. (3) A panel convened under subsection (1) must consist of the following members appointed under subsection 140(1): (a) a Chair; (b) at least 2 other members. (4) The Chair must be a staff member. Division 2—Panel members 140 Appointment of panel members (1) A member of a Financial Services and Credit Panel is to be appointed by ASIC by written instrument. (2) If a determination is in force under subsection 141(1), a person must not be appointed as a member of a Financial Services and Credit Panel unless the person is specified in the determination. (3) However, subsection (2) does not apply in relation to the appointment of the Chair of a Financial Services and Credit Panel. 141 Minister may specify persons who are eligible to be appointed to panels (1) The Minister may make a written determination specifying persons who are eligible to be appointed to Financial Services and Credit Panels. (2) The Minister must not specify a person for the purposes of subsection (1) unless: (a) the person is not a member of ASIC; and (b) the person is not a staff member; and (c) the Minister is satisfied that the person has experience or knowledge in at least one of the following fields: (i) business; (ii) administration of companies; (iii) financial markets; (iv) financial products and financial services; (v) law; (vi) economics; (vii) accounting; (viii) taxation; (ix) credit activities and credit services. (3) In specifying a person for the purposes of subsection (1), the Minister may consult the Tax Practitioners Board. (4) A determination made under subsection (1) is not a legislative instrument. 142 Disclosure of interests to ASIC A person specified in a determination in force under subsection 141(1) must give written notice to ASIC of all interests, pecuniary or otherwise, that the person has or acquires and that could conflict with the proper performance of the person's duties if the person were to be appointed as a member of a Financial Services and Credit Panel. 143 Allowances (1) A member of a Financial Services and Credit Panel is to be paid the allowances that are determined by the Remuneration Tribunal. If no determination of those allowances by the Tribunal is in operation, a member is to be paid the allowances that are prescribed under subsection (3). (2) This section has effect subject to the Remuneration Tribunal Act 1973. (3) The Minister may, by legislative instrument, prescribe allowances for the purposes of subsection (1). 144 Resignation (1) A member of a Financial Services and Credit Panel may resign the member's appointment by giving ASIC a written resignation. (2) The resignation takes effect on the day it is received by ASIC or, if a later day is specified in the resignation, on that later day. 145 Termination of appointment ASIC may at any time terminate the appointment of a member of a Financial Services and Credit Panel. 146 Other terms and conditions A member of a Financial Services and Credit Panel holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined in writing by ASIC. 147 Application of finance law A member of a Financial Services and Credit Panel (other than the Chair of the panel) is not an official of ASIC for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013). Division 3—Decisions of panels Subdivision A—Decisions of panels at meetings 148 Convening meetings (1) The Chair of a Financial Services and Credit Panel must hold such meetings as are necessary for the panel to: (a) perform its functions and exercise its powers under the corporations legislation; and (b) perform functions or exercise powers delegated to the panel by ASIC under section 102 of this Act. (2) The Chair of a Financial Services and Credit Panel may convene a meeting at any time. (3) However, the Chair of a Financial Services and Credit Panel must not convene a meeting if the Chair has or acquires any interest, pecuniary or otherwise, that conflicts or could conflict with the proper performance of the Chair's duties in a matter being considered or about to be considered by the panel. (4) The Chair of a Financial Services and Credit Panel must, by written notice given to ASIC, disclose any interest of a kind mentioned in subsection (3). 149 Presiding at meetings The Chair of a Financial Services and Credit Panel must preside at all meetings of the panel. 150 Disclosure of interests to panels (1) A member of a Financial Services and Credit Panel (other than the Chair of the panel) who has or acquires any interest, pecuniary or otherwise, that conflicts or could conflict with the proper performance of the member's duties in a matter being considered or about to be considered by the panel must disclose the nature of the interest to the Chair of the panel. (2) The disclosure must be made as soon as possible after the relevant facts have come to the member's knowledge. (3) The disclosure must be recorded: (a) if the disclosure is made at a meeting of the panel—in the minutes of that meeting; or (b) otherwise—in the minutes of the next meeting of the panel after the disclosure is made. (4) At a meeting of the panel after the disclosure is made, the member: (a) must not be present during any deliberation by the panel on the matter; and (b) must not take part in any decision of the panel with respect to the matter. 151 Quorum (1) At a meeting of a Financial Services and Credit Panel, a quorum is constituted by a majority of members of the panel. (2) However, if: (a) a member of the panel is required under section 150 not to be present during the deliberations, or to take part in any decision, of the panel with respect to a particular matter; and (b) when the member leaves the meeting concerned there is no longer a quorum present; the remaining members of the panel at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter. 152 Voting at meetings (1) A question arising at a meeting of a Financial Services and Credit Panel is to be determined by a majority of the votes of the members of the panel present and voting. (2) The Chair of the panel has a deliberative vote and, if the votes are equal, a casting vote. 153 Participation in meetings etc. (1) The Chair of a Financial Services and Credit Panel may decide to hold all or part of a meeting: (a) at a particular place; or (b) using any technology that allows an individual to participate in the meeting, or that part of the meeting, without being physically present at the meeting or that part of the meeting. (2) If the Chair of the panel decides to hold all or part of a meeting using technology of a kind mentioned in paragraph (1)(b): (a) each member of the panel may use that technology to participate in the meeting or that part of the meeting; and (b) the meeting or that part of the meeting may be held at 2 or more places at the same time. 154 Conduct of meetings A Financial Services and Credit Panel may, subject to this Division, regulate proceedings at its meetings as it considers appropriate. 155 Minutes A Financial Services and Credit Panel must keep minutes of its meetings. Subdivision B—Decisions of panels without meetings 156 Decisions without meetings (1) A Financial Services and Credit Panel is taken to have made a decision at a meeting if: (a) the Chair of the panel informs the other members of the panel of the proposed decision, or makes reasonable efforts to do so; and (b) without meeting, a majority of the members of the panel entitled to vote on the proposed decision indicate agreement with the decision; and (c) that agreement is indicated in accordance with the method determined by the panel under subsection (2). (2) Subsection (1) applies only if: (a) the Chair of the panel is not prevented by subsection 148(3) from convening a meeting in relation to the proposed decision; and (b) the panel: (i) has determined that it may make decisions of that kind without meeting; and (ii) has determined the method by which members of the panel are to indicate agreement with proposed decisions. (3) For the purposes of paragraph (1)(b): (a) a member of the panel (other than the Chair of the panel) is not entitled to vote on a proposed decision if the member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the panel; and (b) if: (i) the number of members indicating agreement with the decision is equal to the number of members not indicating agreement with the decision; and (ii) the Chair of the panel indicates the Chair's agreement with the decision; a majority of the members of the panel entitled to vote on the proposed decision is taken to have indicated agreement with the decision. (4) The panel must keep a record of decisions made in accordance with this section. Division 4—Panel hearings Subdivision A—General 157 When hearings are to be held (1) A Financial Services and Credit Panel may only hold a hearing as required or permitted by this section. (2) A Financial Services and Credit Panel must hold a hearing if: (a) the panel proposes to make: (i) a decision to make an order, as an ASIC delegate, against a person under subsection 920A(1) of the Corporations Act (ASIC's power to make a banning order); or (ii) a decision to make an order, as an ASIC delegate, against a person under subsection 80(1) of the National Consumer Credit Protection Act 2009 (ASIC's power to make a banning order); or (b) a relevant provider requests that the panel hold a hearing in response to a proposed action notice given to the relevant provider. (3) A Financial Services and Credit Panel may hold a hearing if ASIC makes a request of the panel under: (a) paragraph 171E(3)(a) of this Act (variation, withdrawal and enforcement of undertakings given to Financial Services and Credit Panels); or (b) subsection 921N(2) or paragraph 921N(4)(a) of the Corporations Act (variation or revocation of instruments affecting relevant providers). 158 Panels to take account of evidence and submissions A Financial Services and Credit Panel must take into account the following: (a) any evidence given, or any submission made, to it at a hearing of the panel; (b) any submission lodged with it under subsection 162(2); (c) any submission made in response to a proposed action notice; in making a decision on a matter to which the evidence or submission relates. Subdivision B—Hearing procedures 159 Proceedings at hearings (1) A hearing of a Financial Services and Credit Panel must be conducted with as little formality and technicality, and with as much expedition, as a proper consideration of the matters before the panel permits. (2) At a hearing of a Financial Services and Credit Panel, the panel: (a) is not bound by the rules of evidence; and (b) may, on such conditions as it thinks fit, permit a person to intervene; and (c) must observe the rules of natural justice. (3) The Chair of a Financial Services and Credit Panel may decide to hold all or part of a hearing of the panel: (a) at a particular place; or (b) using any technology that allows an individual to participate in the hearing, or that part of the hearing, without being physically present at the hearing or that part of the hearing. (4) If the Chair of a Financial Services and Credit Panel decides to hold all or part of a hearing using technology of a kind mentioned in paragraph (3)(b): (a) each participant in the hearing (including each member of the panel) may use that technology to participate in the hearing or that part of the hearing; and (b) the hearing or that part of the hearing may be held at 2 or more places at the same time. (5) Subdivision A of Division 3 (decisions of panels at meetings) applies, so far as practicable, in relation to a hearing of a Financial Services and Credit Panel as if the hearing were a meeting of the panel. 160 Notice of hearings If a Financial Services and Credit Panel holds a hearing in relation to a proposed decision affecting a person: (a) the Chair of the panel must appoint a time for the hearing and give written notice of that time to the person; and (b) if the Chair of the panel decides under paragraph 159(3)(a) to hold the hearing, or part of the hearing, at a particular place—the Chair must give written notice of the place to the person; and (c) if the Chair of the panel decides under paragraph 159(3)(b) to hold the hearing, or part of the hearing, using technology that allows an individual to participate in the hearing, or that part of the hearing, without being physically present at the hearing or that part of the hearing—the Chair must give notice of the technology to be used to the person. 161 Who may be present at hearings etc. (1) A person must not be present at a hearing, or a part of a hearing, of a Financial Services and Credit Panel in relation to a proposed decision affecting a person (the affected person) unless: (a) the panel has decided, under paragraph 163(2)(a), to hold the hearing or the part of the hearing, as the case may be, in public; or (b) the person is required by a summons under subsection 165(1) to appear at the hearing; or (c) the Chair of the panel gives a written direction naming the person; or (d) both the following apply: (i) the person is a staff member; (ii) the Chair of the panel has not directed the person to leave the hearing or the part of the hearing, as the case may be; or (e) the person is covered by subsection (2). Note: Failure to comply with this subsection is an offence (see subsection 171(1)). (2) This subsection covers the following: (a) the affected person; (b) a person who is, under section 164, representing: (i) the affected person; or (ii) a person required by a summons under subsection 165(1) to appear at the hearing. 162 Appearance of affected persons at hearings (1) A person does not need to appear at a hearing of a Financial Services and Credit Panel in relation to a proposed decision affecting the person (even if the person requested the hearing in response to a proposed action notice given to the person). (2) If the person chooses not to appear at the hearing, the person may, before the day of the hearing, lodge with the panel any written submissions that the person wishes the panel to take into account in relation to the proposed decision. 163 Affected persons may request hearings to be held in public (1) A person may request that a hearing (or a part of a hearing) of a Financial Services and Credit Panel in relation to a proposed decision affecting the person be held in public. (2) The panel must decide to: (a) hold the hearing (or that part of the hearing) in public; or (b) not hold the hearing (or that part of the hearing) in public. (3) In making a decision under subsection (2), the panel must have regard to the following: (a) whether evidence that may be given, or a matter that may arise, during the hearing (or that part of the hearing) is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence; (b) any unfair prejudice to a person's reputation that would be likely to be caused if the hearing (or that part of the hearing) took place in public; (c) whether it is in the public interest that the hearing (or that part of the hearing) take place in public; (d) any other relevant matter. 164 Representation at hearings (1) At a hearing of a Financial Services and Credit Panel, an individual may appear in person or be represented by an employee of the individual approved by the panel. (2) A body corporate may be represented at a hearing of a Financial Services and Credit Panel by an officer or employee of the body corporate approved by the panel. (3) An unincorporated association, or a person in the person's capacity as a member of an unincorporated association, may be represented at a hearing of a Financial Services and Credit Panel by a member, officer or employee of the association approved by the panel. (4) Any person may be represented at a hearing of a Financial Services and Credit Panel by a barrister or solicitor of the Supreme Court of a State or Territory or of the High Court. 165 Power to require persons to appear and give evidence etc. (1) At or prior to a hearing of a Financial Services and Credit Panel in relation to a proposed decision affecting a person (the affected person), the Chair of the panel may, by written summons given to a person (other than the affected person): (a) require the person to appear before the panel at the hearing to give evidence, to produce specified documents, or to do both; and (b) require the person to attend from day to day unless excused, or released from further attendance, by the Chair. Note 1: The affected person does not need to appear at the hearing (see subsection 162(1)). Note 2: Failure to comply with a requirement made under this subsection is an offence (see subsection 170(1)). (2) At a hearing of a Financial Services and Credit Panel, the panel may take evidence on oath or affirmation, and for that purpose the Chair of the panel may: (a) require a person appearing at the hearing to either take an oath or make an affirmation; and (b) administer an oath or affirmation to a person appearing at the hearing. Note: Failure to comply with a requirement made under this subsection is an offence (see subsection 170(2)). (3) The oath or affirmation to be taken or made by a person for the purposes of subsection (2) is an oath or affirmation that the evidence the person will give will be true. (4) The Chair of a Financial Services and Credit Panel presiding at a hearing of the panel: (a) may require a person appearing at the hearing to answer a question put to the person; and (b) may require a person appearing at the hearing pursuant to a summons issued under this section to produce a document specified in the summons. Note: Failure to comply with a requirement made under this subsection is an offence (see subsection 170(3)). (5) The Chair of a Financial Services and Credit Panel may permit a person appearing at a hearing of the panel to give evidence by tendering, and if the Chair so requires, verifying by oath or affirmation, a written statement. 166 Allowances and expenses A person required by a summons under subsection 165(1) to appear at a hearing of a Financial Services and Credit Panel in relation to a proposed decision affecting a person (the affected person) is entitled to be paid the prescribed allowances and expenses (if any) by: (a) if the summons was issued at the affected person's request—the affected person; or (b) otherwise—ASIC. 167 Panels may restrict publication of certain material (1) If, at a hearing of a Financial Services and Credit Panel, the panel is satisfied that it is desirable to restrict the publication of evidence given before the panel, or matters contained in documents lodged with the panel, the panel may give a written direction restricting the publication of that evidence or those matters. Note: Failure to comply with a direction in force under this subsection is an offence (see subsection 171A(1)). (2) In determining whether it is desirable to restrict the publication of evidence given before the panel, or matters contained in documents lodged with the panel, the panel must have regard to: (a) whether evidence that has been or may be given, or a matter that has arisen or may arise, during the hearing is: (i) of a confidential nature; or (ii) relates to the commission, or to the alleged or suspected commission, of an offence against an Australian law; and (b) any unfair prejudice to a person's reputation that would be likely to be caused unless the panel gives a direction restricting the publication of that evidence or those matters; and (c) whether it is in the public interest that the panel gives a direction restricting the publication of that evidence or those matters; and (d) any other relevant matter. Subdivision C—Offences 168 Contempt of panels (1) A person commits an offence if: (a) the person does an act or omits to do an act; and (b) the act or omission results in the obstruction or hindering of a Financial Services and Credit Panel, or a member of the panel, in the performance or exercise of any of the panel's functions and powers. Penalty: 2 years imprisonment. (2) A person commits an offence if: (a) the person does an act or omits to do an act; and (b) the act or omission results in the disruption of a hearing. Penalty: 2 years imprisonment. 169 Giving false evidence (1) A person commits an offence if: (a) the person gives evidence at a hearing of a Financial Services and Credit Panel; and (b) the evidence is false or misleading in a material particular. Penalty: 2 years imprisonment. (2) Subsection (1) does not apply if the person, when giving the evidence, reasonably believed that it was true and not misleading. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). 170 Failing to comply with certain requirements (1) A person commits an offence if: (a) the person is required to do something in accordance with a summons given to the person under subsection 165(1); and (b) the person fails to comply with the requirement. Penalty: 50 penalty units. (2) A person commits an offence if: (a) the person is required under paragraph 165(2)(a) to take an oath or make an affirmation; and (b) the person fails to comply with the requirement. Penalty: 50 penalty units. (3) A person commits an offence if: (a) the person is required under subsection 165(4) to answer a question or produce a document; and (b) the person fails to comply with the requirement. Penalty: 50 penalty units. (4) An offence against subsection (1), (2) or (3) is an offence of strict liability. 171 Being present at hearings (1) A person commits an offence if: (a) the person is present at a hearing, or a part of a hearing, of a Financial Services and Credit Panel; and (b) the panel has not decided, under paragraph 163(2)(a), to hold the hearing or the part of the hearing, as the case may be, in public; and (c) the person is not named in a direction of the Chair of the panel in force under paragraph 161(1)(c); and (d) the person is not covered by subsection 161(2). Penalty: 30 penalty units. (2) An offence against subsection (1) is an offence of strict liability. 171A Publication of restricted material (1) A person commits an offence if: (a) the person publishes evidence given before, or matters contained in documents lodged with, a Financial Services and Credit Panel; and (b) a direction restricting the publication of that evidence or those matters is in force under subsection 167(1). Penalty: 120 penalty units. (2) An offence against subsection (1) is an offence of strict liability. Subdivision D—Other matters 171B Reference to Court of question of law arising at hearing (1) ASIC may, at the request of the Chair of a Financial Services and Credit Panel, refer to the Court for decision a question of law arising at a hearing of the panel. (2) Where a question is referred under subsection (1), the panel must not, in relation to a matter to which the hearing relates: (a) make, while the reference is pending, a decision to which the question is relevant; or (b) proceed in a manner, or make a decision, that is inconsistent with the Court's opinion on the question. (3) Where a question is referred under subsection (1): (a) ASIC must send to the Court all documents that were before the panel in connection with the hearing; and (b) at the end of the proceeding in the Court in relation to the reference, the Court must cause the documents to be returned to ASIC. 171C Protection of panel members etc. (1) A member of a Financial Services and Credit Panel has, in the performance or exercise of any of the member's functions and powers as a member in relation to a hearing of the panel, the same protection and immunity as a Justice of the High Court. (2) A barrister, solicitor or other person representing a person at a hearing of a Financial Services and Credit Panel has the same protection and immunity as a barrister in appearing for a party in a proceeding in the High Court. (3) Subject to this Act, a person who is required by a summons under subsection 165(1) to appear at a hearing of a Financial Services and Credit Panel, or a person appearing at a such a hearing, has the same protection as a witness in a proceeding in the High Court. Division 5—Information given to panel members 171D Use and disclosure of information (1) A person commits an offence if: (a) the person is or was a member of a Financial Services and Credit Panel; and (b) the person uses or discloses information; and (c) the information was obtained by the person in connection with the performance of the panel's functions or the exercise of the panel's powers. Penalty: 2 years imprisonment. (2) Subsection (1) does not apply if the use or disclosure: (a) is required or permitted by a law of the Commonwealth or a prescribed law of a State or Territory; or (b) is made to ASIC for the purposes of the performance of ASIC's functions, or the exercise of its powers, under the corporations legislation or the National Consumer Credit Protection Act 2009; or (c) is made to the Tax Practitioners Board for the purposes of the performance of the Board's functions, or the exercise of its powers, under the Tax Agent Services Act 2009; or (d) is made for the purposes of the performance of the panel's functions or the exercise of its powers; or (e) is made to another Financial Services and Credit Panel for the purposes of the performance of the other panel's functions or the exercise of the other panel's powers. Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code). Division 6—Enforceable undertakings 171E Variation, withdrawal and enforcement of undertakings given to Financial Services and Credit Panels (1) A Financial Services and Credit Panel may accept a written undertaking given by a person in connection with a matter in relation to which the panel may make an instrument under subsection 921K(1) of the Corporations Act (power of Financial Services and Credit Panels to take action against relevant providers). Variation or withdrawal of undertaking (2) The person may apply to ASIC to withdraw or vary the undertaking. (3) If the person makes an application under subsection (2), ASIC must decide to: (a) request a Financial Services and Credit Panel to decide whether it consents to the person withdrawing or varying the undertaking; or (b) refuse to make such a request. (4) The person may withdraw or vary the undertaking only if: (a) ASIC makes a request of a Financial Services and Credit Panel under paragraph (3)(a) in relation to the variation or withdrawal; and (b) the panel consents to the variation or withdrawal. Enforcement of undertaking (5) If ASIC considers that the person who gave the undertaking has breached any of its terms, ASIC may apply to the Court for an order under subsection (6). (6) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders: (a) an order directing the person to comply with that term of the undertaking; (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; (c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach; (d) any other order that the Court considers appropriate. Division 7—Electronic communication 171F Electronic communication of documents Documents given by panels etc. (1) Section 921W of the Corporations Act applies in relation to a document that is required or permitted under this Part to be given to a person by: (a) a Financial Services and Credit Panel; or (b) the Chair of a Financial Services and Credit Panel; or (c) ASIC; as if the document were covered by subsection (1) of that section. Documents given to panels etc. (2) Section 921X of the Corporations Act applies in relation to a document that is required or permitted under this Part to be given by a person to: (a) a Financial Services and Credit Panel; or (b) the Chair of a Financial Services and Credit Panel; or (c) ASIC; as if the document were covered by subsection (1) of that section. 13 At the end of subsection 244(2) Add: ; or (d) to refuse, under paragraph 171E(3)(b), to make a request mentioned in paragraph 171E(3)(a). Corporations Act 2001 14 Section 9 Insert: BAS agent has the same meaning as in the Tax Agent Services Act 2009. Financial Services and Credit Panel, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. proposed action notice, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. registered tax agent has the same meaning as in the Tax Agent Services Act 2009. response period, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. restricted civil penalty provision, when used in a provision outside Chapter 7, has the same meaning as it has in Chapter 7. 15 Paragraph 766B(5)(c) Omit "(within the meaning of the Tax Agent Services Act 2009)". 16 Section 910A Insert: cancellation time, in relation to a registration prohibition order, has the meaning given by subparagraph 921L(1)(c)(i). 17 Section 910A (definition of Code of Ethics) Repeal the definition, substitute: Code of Ethics means the Code of Ethics in force under section 921E. 18 Section 910A Repeal the following definitions: (a) definition of compliance scheme; (b) definition of covers. 19 Section 910A Insert: CPD provision (short for continuing professional development provision) means: (a) subsection 921BA(4); or (b) subsection 921BB(3). Financial Services and Credit Panel has the same meaning as in the ASIC Act. 20 Section 910A (definition of monitoring body) Repeal the definition. 21 Section 910A (definition of notice provision) Omit "922HD,". 22 Section 910A (definition of professional association) Repeal the definition. 23 Section 910A Insert: prohibition end day, in relation to a registration prohibition order, has the meaning given by subparagraph 921L(1)(c)(ii). proposed action notice has the meaning given by subsection 921P(1). qualified tax relevant provider: a person is a qualified tax relevant provider if: (a) the person is a relevant provider; and (b) if a determination is in force under subsection 921BB(1)—the person meets each requirement set out in the determination that is of a kind mentioned in any of paragraphs (a) to (d) of that subsection. registration prohibition order has the meaning given by paragraph 921L(1)(c). registration suspension order has the meaning given by paragraph 921L(1)(b). response period, for a proposed action notice, has the meaning given by paragraph 921P(2)(b). restricted civil penalty provision has the meaning given by subsection 921Q(3). 24 Section 910A (definition of standards body) Repeal the definition. 25 Section 910A Insert: suspension period, in relation to a registration suspension order, has the meaning given by paragraph 921L(1)(b). tax (financial) advice service has the same meaning as in the Tax Agent Services Act 2009. Tax Practitioners Board means the Tax Practitioners Board established by section 60‑5 of the Tax Agent Services Act 2009. 26 Paragraph 912A(1)(f) Omit "section 921D", substitute "the CPD provisions". 27 Subsection 913B(1) (note 2) Omit "the education and training standards in subsections 921B(2) to (4)", substitute "certain requirements". 28 Subsection 916A(1) (note) Omit "the education and training standards in subsections 921B(2) to (4)", substitute "certain requirements". 29 Subsection 916B(3) (note) Omit "the education and training standards in subsections 921B(2) to (4)", substitute "certain requirements". 30 Paragraph 920A(1)(e) Omit "section 921E", substitute "subsection 921E(3)". 31 After subsection 920A(1) Insert: (1AA) Subsection (1) has effect subject to subsection (2). 32 Subsection 920A(2) Omit "However, ASIC may only make a banning order against a person", substitute "Subject to subsection (3), if ASIC has not delegated its power to make a banning order against a person to a Financial Services and Credit Panel, ASIC may make the order only". 33 At the end of subsection 920A(2) Add: Note: If ASIC delegates its power to make a banning order against a person to a Financial Services and Credit Panel, the panel may make the order only after holding a hearing in relation to the proposed order (see section 157 of the ASIC Act). 34 Subsection 920A(3) Repeal the subsection, substitute: (3) ASIC may make a banning order against a person without giving the person the opportunities mentioned in subsection (2) if: (a) either: (i) ASIC has not delegated its power to make the banning order to a Financial Services and Credit Panel; or (ii) ASIC exercises its power to make the banning order despite such a delegation; and (b) ASIC's grounds for making the banning order are or include both of the following: (i) that the suspension or cancellation of the relevant licence took place under section 915B; (ii) that the person has been convicted of serious fraud. Note: See section 34AB of the Acts Interpretation Act 1901 (effect of delegation). 35 Division 8A of Part 7.6 (at the end of the heading) Add "etc.". 36 Paragraph 921B(2)(a) Omit "standards body under section 921U", substitute "Minister". 37 Subparagraph 921B(2)(b)(ii) Repeal the subparagraph, substitute: (ii) the Minister has approved the foreign qualification under section 921G. 38 Subsection 921B(3) Omit "approved by the standards body", substitute "administered under this subsection by ASIC in accordance with principles approved by the Minister". 39 Subsection 921B(4) Omit "standards body", substitute "Minister". 40 Subsection 921B(5) Omit "standards body", substitute "Minister". 41 Subsection 921B(5) (note) Repeal the note. 42 At the end of section 921B Add: Determinations by Minister (6) The Minister may, by legislative instrument, do any or all of the following in one or more determinations: (a) approve bachelor or higher degrees, or equivalent qualifications, for the purposes of paragraph (2)(a); (b) approve principles for the purposes of subsection (3); (c) set requirements for work and training for the purposes of subsection (4); (d) set requirements for continuing professional development for the purposes of subsection (5) in relation to the CPD year of a financial services licensee, the period mentioned in subsection 1546E(5), or any other period determined by the Minister. (7) Before exercising the power in subsection (6), the Minister must be satisfied that doing so is necessary or desirable to ensure that relevant providers are adequately trained and competent to provide personal advice to retail clients in relation to relevant financial products. 43 After section 921B Insert: 921BA Relevant providers to meet education and training standards Qualifications (1) A relevant provider must meet the education and training standard in subsection 921B(2). Exam (2) A relevant provider must meet the education and training standard in subsection 921B(3). Work and training (3) A relevant provider must either: (a) meet the education and training standard in subsection 921B(4); or (b) be undertaking work and training in accordance with that subsection. Continuing professional development (4) A relevant provider must comply with subsection 921B(5): (a) in the case of a relevant provider who is a financial services licensee—during the licensee's CPD year; or (b) in the case of a relevant provider who is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products—during the licensee's CPD year. Note: Section 922HB requires a notice to be given at the end of a financial services licensee's CPD year if a relevant provider has not complied with this subsection during that year. Civil liability (5) A person contravenes this subsection if the person contravenes subsection (1), (2), (3) or (4). Note 1: This subsection is a restricted civil penalty provision (see sections 921Q and 1317E). Note 2: ASIC or a Financial Services and Credit Panel may take certain other action against a relevant provider who contravenes subsection (1), (2), (3) or (4) (see Division 8B). Note 3: Exemptions apply in relation to certain relevant providers (see section 921BC). 921BB Additional requirements for relevant providers who provide tax (financial) advice services (1) The Minister may, by legislative instrument, determine any or all of the following requirements for a person who provides, or is to provide, a tax (financial) advice service: (a) a requirement that the person has completed one or more specified bachelor or higher degrees; (b) a requirement that the person has completed one or more specified qualifications; (c) a requirement that the person has completed one or more specified courses; (d) a requirement that the person has undertaken specified work and training; (e) a requirement for continuing professional development in relation to the CPD year of a financial services licensee or any other period determined by the Minister. (2) Before exercising the power in subsection (1), the Minister must be satisfied that doing so is necessary or desirable to ensure that relevant providers are adequately trained and competent to provide tax (financial) advice services. Continuing professional development (3) If a determination in force under subsection (1) sets out a requirement mentioned in paragraph (1)(e), a relevant provider who provides tax (financial) advice services must comply with that requirement: (a) in the case of a relevant provider who is a financial services licensee—during the licensee's CPD year; or (b) in the case of a relevant provider who is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products—during the licensee's CPD year. Note: Section 922HB requires a notice to be given at the end of a financial services licensee's CPD year if a relevant provider has not complied with this subsection during that year. Civil liability (4) A person contravenes this subsection if the person contravenes subsection (3). Note 1: This subsection is a restricted civil penalty provision (see sections 921Q and 1317E). Note 2: ASIC or a Financial Services and Credit Panel may take certain other action against a relevant provider who contravenes subsection (3) (see Division 8B). Note 3: Exemptions apply in relation to certain relevant providers (see section 921BC). 921BC Exemptions for certain relevant providers Time‑sharing schemes (1) Sections 921BA and 921BB do not apply to a relevant provider if the only relevant financial product in relation to which the relevant provider provides personal advice to retail clients is a time‑sharing scheme. Provisional relevant providers (2) The CPD provisions do not apply to provisional relevant providers. 44 Sections 921C and 921D Repeal the sections, substitute: Subdivision AA—Limitations on authorisation to provide personal advice 921C Limitation on authorisation to provide personal advice unless conditions met Financial services licensees (1) ASIC must not grant an applicant an Australian financial services licence that covers the provision of personal advice to retail clients in relation to relevant financial products if the applicant is an individual and any of the following paragraphs apply: (a) the applicant has not met any one or more of the education and training standards in subsections 921B(2) to (4); (b) if: (i) the applicant is to provide a tax (financial) advice service; and (ii) a determination in force under subsection 921BB(1) sets out a requirement mentioned in any of paragraphs (a) to (c) of that subsection; the applicant has not met the requirement; (c) if: (i) the applicant is to provide a tax (financial) advice service; and (ii) a determination in force under subsection 921BB(1) includes a requirement for a person who is to provide a tax (financial) advice service to have undertaken specified work and training; the applicant has not undertaken that work and training. Authorised representatives (2) A financial services licensee must not, under section 916A, give a person a written notice authorising the person to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products if the person is an individual and any of the following paragraphs apply: (a) the person has not met either or both of the education and training standards in subsections 921B(2) and (3); (b) the person has not met the education and training standard in subsection 921B(4), and is not undertaking work and training in accordance with that subsection; (c) if: (i) the person is to provide a tax (financial) advice service; and (ii) a determination in force under subsection 921BB(1) sets out a requirement mentioned in any of paragraphs (a) to (d) of that subsection; the person has not met the requirement. Sub‑authorisations (3) An authorised representative of a financial services licensee must not, under subsection 916B(3), give an individual a written notice authorising that individual to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products if any of the following paragraphs apply: (a) the individual has not met either or both of the education and training standards in subsections 921B(2) and (3); (b) the individual has not met the education and training standard in subsection 921B(4), and is not undertaking work and training in accordance with that subsection; (c) if: (i) the individual is to provide a tax (financial) advice service; and (ii) a determination in force under subsection 921BB(1) sets out a requirement mentioned in any of paragraphs (a) to (d) of that subsection; the individual has not met the requirement. Employees and directors (4) A financial services licensee must not authorise an employee or director of the licensee, or of a related body corporate of the licensee, to provide personal advice to retail clients, on behalf of the licensee, in relation to relevant financial products if any of the following paragraphs apply: (a) the employee or director has not met either or both of the education and training standards in subsections 921B(2) and (3); (b) the employee or director has not met the education and training standard in subsection 921B(4), and is not undertaking work and training in accordance with that subsection; (c) if: (i) the employee or director is to provide a tax (financial) advice service; and (ii) a determination in force under subsection 921BB(1) sets out a requirement mentioned in any of paragraphs (a) to (d) of that subsection; the employee or director has not met the requirement. Exemption in relation to time‑sharing schemes (5) This section does not apply in relation to a person who is to provide personal advice to retail clients in relation to relevant financial products if the only relevant financial product in relation to which the person is to provide personal advice to retail clients is a time‑sharing scheme. 45 Section 921E Repeal the section, substitute: 921E Code of Ethics (1) The Minister may, by legislative instrument, make a Code of Ethics. (2) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, the Code of Ethics may make different provision in relation to different classes of relevant provider. (3) A relevant provider must comply with the Code of Ethics. Note 1: Subsection (3) is a restricted civil penalty provision (see sections 921Q and 1317E). Note 2: ASIC or a Financial Services and Credit Panel may take certain other action against a relevant provider who contravenes subsection (3) (see Division 8B). 46 Section 921F (note) Repeal the note. 47 At the end of section 921F Add: Civil liability (8) A person contravenes this subsection if the person contravenes subsection (3), (4), (6) or (7). Note 1: Subsection (8) is a restricted civil penalty provision (see sections 921Q and 1317E). Note 2: ASIC or a Financial Services and Credit Panel may take certain other action against a relevant provider who contravenes subsection (3), (4), (6) or (7) (see Division 8B). 48 At the end of Division 8A of Part 7.6 Add: Subdivision D—Other matters 921G Approval of foreign qualifications Application for approval (1) A person who has completed a foreign qualification may apply to the Minister in the form approved, in writing, by the Minister for approval of the foreign qualification. Approval or refusal to approve (2) The Minister must either: (a) approve the foreign qualification in accordance with subsection (3); or (b) refuse to approve the foreign qualification. (3) The Minister may approve the foreign qualification only if: (a) the Minister is satisfied that the foreign qualification gives the person qualifications equivalent to a degree or qualification approved by the Minister for the purposes of paragraph 921B(2)(a); or (b) both of the following apply: (i) the Minister specifies one or more courses to be completed by the person under subsection (4) of this section; (ii) the person completes each of those courses. (4) The Minister may specify one or more courses for the purposes of paragraph (3)(b) only if the Minister is satisfied that (together with the person's foreign qualification) the course or courses will give the person qualifications equivalent to a degree or qualification approved by the Minister for the purposes of paragraph 921B(2)(a). When approval comes into force (5) An approval under paragraph (2)(a) comes into force: (a) if the Minister specifies one or more courses to be completed by the person under subsection (4)—when the person has completed all of those courses; or (b) otherwise—when it is given. 921H Modifications of Part in relation to continuing professional development (1) The Minister may, by legislative instrument, determine modifications of the operation of a provision in this Part in relation to a period determined by the Minister under: (a) paragraph 921B(6)(d); or (b) paragraph 921BB(1)(e). (2) A determination made under subsection (1) has effect according to its terms, despite any other provision of this Act. 49 Divisions 8B and 8C of Part 7.6 Repeal the Divisions, substitute: Division 8B—Action against relevant providers Subdivision A—Action by Financial Services and Credit Panels 921K Power of Financial Services and Credit Panels to take action against relevant providers (1) Subject to subsections (2) and (3), a Financial Services and Credit Panel may make an instrument of a kind specified in subsection 921L(1) in relation to a relevant provider if: (a) the relevant provider becomes an insolvent under administration; or (b) the relevant provider is convicted of fraud; or (c) the panel reasonably believes, having regard to the matters specified in section 921U but subject to Part VIIC of the Crimes Act 1914, that the relevant provider is not a fit and proper person to provide personal advice to retail clients in relation to relevant financial products; or (d) the panel reasonably believes that the relevant provider has contravened a financial services law (including a restricted civil penalty provision); or (e) the relevant provider has been involved in the contravention of a financial services law (including a restricted civil penalty provision) by another person; or (f) the relevant provider has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA relating to a complaint that relates to: (i) a financial services business; or (ii) credit activities (within the meaning of the National Consumer Credit Protection Act 2009); or (g) subsection 920A(1C) (when a person has been an officer of a corporation unable to pay its debts) applies to the relevant provider in relation to 2 or more corporations. Note 1: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them. Note 2: Subsection 921E(3) (relevant providers to comply with the Code of Ethics) is a financial services law. Note 3: To work out whether a relevant provider has been linked as described in paragraph (f), see section 910C. Proposed action notice given in relation to relevant circumstances (2) A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances (the relevant circumstances) mentioned in that subsection unless: (a) the panel gave the relevant provider a proposed action notice in relation to a proposal to make the instrument because of the relevant circumstances and either: (i) no submission or request for a hearing was made within the response period for the notice; or (ii) a submission or request for a hearing was made within the response period for the notice and the panel has taken into account the submission or held the hearing (as the case may be); or (b) all of the following apply: (i) the panel gave the relevant provider a proposed action notice in relation to a proposal to make a different instrument in relation to the relevant circumstances or to give the relevant provider an infringement notice in relation to the relevant circumstances; (ii) a submission or request for a hearing was made within the response period for the notice; (iii) the panel has taken into account the submission or held the hearing (as the case may be). Infringement notices, warnings and reprimands (3) A Financial Services and Credit Panel must not make an instrument under subsection (1) in relation to a relevant provider because of circumstances mentioned in that subsection if the panel, or another Financial Services and Credit Panel, has given the relevant provider an infringement notice, or a warning or reprimand, in relation to those circumstances. When a person contravenes a financial services law (4) To avoid doubt, a person contravenes a financial services law if a person fails to comply with a duty imposed under that law, even if the provision imposing the duty is not an offence provision or a civil penalty provision. Instruments not legislative (5) An instrument made under subsection (1) is not a legislative instrument. Interaction with ASIC Act (6) Subsection (2) does not limit section 158 of the ASIC Act (panels to take account of evidence and submissions). 921L Instruments that Financial Services and Credit Panels may make in relation to relevant providers (1) For the purposes of subsection 921K(1), the following kinds of instrument are specified: (a) a written direction that a relevant provider: (i) undertake specified training; or (ii) receive specified counselling; or (iii) receive specified supervision; or (iv) report specified matters to ASIC; (b) a written order (a registration suspension order) suspending a relevant provider's registration under subsection 921ZC(1) for a period (the suspension period) specified in the order; (c) a written order (a registration prohibition order) that: (i) cancels the registration of a relevant provider under subsection 921ZC(1) at a time (the cancellation time) specified in the order; and (ii) provides that the relevant provider is not to be registered under that subsection until after a day (the prohibition end day) specified in the order. Note: If a registration prohibition order is in force against a relevant provider: (a) the relevant provider's registration under subsection 921ZC(1) will cease to be in force at the cancellation time specified in the order (unless the registration has ceased to be in force at an earlier time) (see sections 921ZD and 921ZE); and (b) ASIC must refuse to register the relevant provider until after the prohibition end day specified in the order (see subsection 921ZC(3)). Effect of paragraph (1)(a) direction (2) A relevant provider must comply with a direction in relation to the relevant provider that is in force under paragraph (1)(a). Note: This subsection is a civil penalty provision (see section 1317E). Effect of registration suspension order (3) For the purposes of this Part, if a registration suspension order is in force against a relevant provider, the relevant provider's registration under subsection 921ZC(1) is taken not to be in force during the suspension period specified in the order. Suspension period and cancellation time (4) The suspension period specified in a registration suspension order that is made in relation to a relevant provider must begin at or after the time a copy of the order is given to the relevant provider. (5) The cancellation time specified in a registration prohibition order that is made in relation to a relevant provider must be a time that is at or after a copy of the order is given to the relevant provider. When instruments come into force (6) An instrument of a kind specified in subsection (1) that is made in relation to a relevant provider comes into force when a copy of it is given to the relevant provider in accordance with subsection 921M(1). 921M Copy of instrument to be given to relevant provider etc. (1) If, under subsection 921K(1), a Financial Services and Credit Panel makes an instrument in relation to a relevant provider, the panel must: (a) give a copy of the instrument to the relevant provider; and (b) at the same time, give a copy of the instrument to: (i) ASIC; and (ii) if the relevant provider is authorised to provide personal advice to retail clients, on behalf of a financial services licensee, in relation to relevant financial products—the licensee; and (c) at the same time, give the relevant provider a written notice informing the relevant provider of their right to make an application under subsection 921N(3) in relation to the instrument. Note: ASIC must enter details of certain instruments in the Register of Relevant Providers (see paragraph 922Q(2)(uc)). (2) A copy of an instrument given to a person under paragraph (1)(a) or (b) must be accompanied by a statement of reasons for the decision to make the instrument. (3) A failure to comply with subsection (1) or (2) in relation to an instrument does not affect the validity of the instrument. 921N Variation or revocation of instruments affecting relevant providers (1) This section applies if an instrument of a kind specified in subsection 921L(1) is in force against a relevant provider. Variation or revocation at ASIC's initiative (2) ASIC may request a Financial Services and Credit Panel to make a decision under subsection (5) in relation to the instrument if ASIC is satisfied that there has been a change in any of the circumstances on the basis of which the instrument was made. Application by relevant provider for variation or revocation (3) The relevant provider may apply to ASIC in the approved form for: (a) the instrument to be revoked; or (b) a specified variation to be made to the instrument. (4) If the relevant provider makes an application under subsection (3), ASIC must decide to: (a) request a Financial Services and Credit Panel to make a decision under subsection (5) in relation to the instrument; or (b) refuse to make such a request. Decisions of Financial Services and Credit Panel about variations or revocations (5) If ASIC makes a request of a Financial Services and Credit Panel under subsection (2) or paragraph (4)(a), the panel must decide to: (a) revoke the instrument; or (b) if the relevant provider made an application under subsection (3)—make the variation of the instrument specified in the application; or (c) make a variation of the instrument (even if the relevant provider made an application under subsection (3) and the application specified another variation); or (d) refuse to revoke the instrument; or (e) refuse to vary the instrument. (6) Th