ASIC opens ongoing fee consent window

The Australian Securities and Investments Commission (ASIC) has provided a regulatory window around fee consent arrangements with respect to superannuation funds.

The regulator said on Friday that it is granting a limited no-action position in response to a specific issue raised by the advice industry about the inclusion of account numbers in a client’s written written consent for the deduction, or arrangement of the deduction or arranging of the deduction for ongoing advice fees.

The official ASIC notification of its no-action position stated:

ASIC does not intend to take action for a breach of section 962S of the Corporations Act 2001 (Corporations Act) and section 99FA of the Superannuation Industry (Supervision) Act 1993 where:

• written consent was given by a client under section 962S of the Corporations Act for the fee recipient to deduct or arrange to deduct fees under an OFA from 10 January 2025 until 5 September 2025
• an account number was not included in the consent, and
• in the case of superannuation, a trustee deducted from the relevant member’s account the advice fees as set out in the consent.

ASIC cautioned, however, that relying on the no-action position did not prevent an ongoing fee arrangement terminating under the legislation where a written consent is not compliance because it does not include the account number.

“In order to rely on this no-action position, the Australian financial services licensee or representative (i.e. fee recipient) must enter into a new OFA with the client and seek a new written consent for the fee recipient to deduct or arrange to deduct ongoing fees, including to cover the period where any fees were deducted under a non-compliant written consent.

“The revised OFA must comply with all the requirements in section 962T of the Corporations Act. If this is not in place by 5 September 2025, the fee recipient must take steps to stop receiving fees,” the ASIC announcement said.

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

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