ASIC grants no-action on deficient advice fees consent

ASIC has granted a limited no-action position in response to an issue related to the inclusion of account numbers in a client's written consent for the deduction of ongoing advice fees.

ASIC is reminding financial advisers and superannuation trustees to ensure they're complying with client consent requirements when entering ongoing fee arrangements (OFAs).

It comes as the regulator said it does not intend to take action on a breach of section 962S of the Corporations Act and section 99FA of the SIS Act that it has seen.

The issue involved a written consent being given to a client for the fee recipient to deduct or arrange to deduct fees under an OFA from 10 January 2025 until 5 September 2025 but there was no account number included in the consent. A super trustee then deducted the fees from the relevant member's account as dictated in the consent form.

To rely on the no-action position, the licensee or fee recipient, must enter into a new OFA with the client with a new written consent which also covers the period where fees were taken out despite the deficient fee consent form. If this isn't done by September 5, the recipient must not accept further fees, ASIC said.

However, relying on it does not prevent the OFA from terminating due to its non-compliance.

"Superannuation trustees should review their processes for the oversight of advice fee deductions and ensure that any written consents comply with the Corporations Act requirements," ASIC said.

"This no-action position does not prevent third parties from taking legal action in relation to the conduct."

The regulator also clarified that a no-action is not a legal opinion, but an expression of regulatory intent that is specific to the facts and circumstances.