ASIC Corporations (AFCA transition) Instrument 2018/447

The instrument operates through three interlocking mechanisms: modification of statutory application, conditional exemptions, and procedural pre-conditions for relying on relief.

1. Modification of statutory application

• It operates by declaring that particular provisions of Part 7.7 (Financial Services Guides) and Part 7.9 (Product Disclosure Statements, periodic statements and Family Law statements) apply "as if" modified by inserting a parenthetical phrase after the word “information”, allowing certain statements to reflect the position immediately before 1 November 2018 even if up to date or dated on or after that date (see s 5(1), s 6(1)(a)-(c), s 8(1), s 9(1)). The affected provisions include paragraph 942B(2)(h) and 942C(2)(i) (for FSGs) and paragraph 1013D(1)(g) and specified items in Schedules 10C, 10D and 10E to the Regulations (for PDSs and related disclosures).

2. Time‑limited declaratory relief

• The instrument declares that the modification applies only to documents given before 1 July 2019 where additional conditions are satisfied (see ss 5(2), 6(2), 8(2), 9(2)). Those conditions usually require that where the document is given on or after 1 November 2018, the requirements of s 10 are satisfied, and that the document is identical in relevant respects to documents first given before commencement.

3. Conditional exemption from obligation to notify material change

• Section 7 provides a narrow exemption from s 1017B(1), which requires notification of material changes. That exemption applies only to a change or event relating to AFCA starting to cover complaints by holders of a product. It further conditions the exemption on compliance with s 10 for events on or after 1 November 2018 (s 7(2)).

4. Preconditions for relief and scope of required AFCA information

• Section 10 sets out the operational preconditions for relying on relief: making AFCA information available on the website, including AFCA information in documents that purport to describe dispute resolution arrangements provided to retail clients, and for licence holders, including AFCA information in internal dispute resolution documentation. Paragraph 10(2) excludes documents that are required to be given by or under the Act from paragraph 10(1)(b).

Conceptually, the instrument is transitional, designed to bridge the changeover to the AFCA scheme by allowing prior disclosures to remain valid for a period while requiring contemporaneous provision of AFCA information via websites and dispute resolution documents (s 10). The instrument therefore creates a set of compliance trade-offs: document preservation (continuing to use older worded FSGs, PDSs, periodic statements and Family Law statements) in return for affirmative website and dispute-resolution disclosures. The instrument does not define the substantive content of the AFCA information, but requires that the AFCA information be “current” and available on the website from 1 November 2018 (s 10(1)(a)).

Mechanically, the instrument does not amend the Corporations Act text directly, but declares that specified statutory provisions apply "as if" modified. It relies on the Corporations Act powers in ss 951B(1) and 1020F to make such an instrument (s 3). The instrument interacts with the Regulations by amending the manner in which specific items and subitems in Schedules 10C, 10D and 10E, and Regulations 7.9.53, 7.9.75, 7.9.88 and 7.9.89, are treated for the transitional documents (s 6(1)(b)-(c), s 8(1), s 9(1)).

The instrument names categories of persons and documents and thereby allocates compliance obligations and eligibility for relief. Primary affected parties are:

• Financial services licensees and their authorised representatives: Part 7.7 (Financial Services Guides) is modified for licensees and authorised representatives (s 5(1)). Section 5(2) clarifies the conditions under which a Financial Services Guide given before 1 July 2019 may rely on the relief. Licensees who are financial services licensees also have a specific duty under s 10(1)(c) to include AFCA information in internal dispute resolution documentation.

• Regulated persons: The instrument modifies Part 7.9 in relation to “regulated person” as defined by s 1011B of the Act (s 6(1)). That definition in the Act determines the class of persons covered, but the instrument itself does not re‑define the statutory meaning; it relies on the Act’s definition (s 4).

• Issuers of financial products: Issuers are directly affected in multiple ways. Section 6 modifies PDS requirements as they apply to regulated persons, section 7 provides an exemption from the material change notice obligation (s 1017B(1)) for issuers in relation to AFCA coverage, subject to s 10, and section 8 modifies how periodic statements may address dispute resolution information. Section 7(2) makes entitlement to the exemption conditional for events on or after 1 November 2018, unless s 10 applies.

• Trustees of superannuation entities and RSA providers: Section 9 modifies particular statements under Part 7.9 that relate to superannuation interests under the Family Law Act for trustees and retirement savings account providers. The declaratory relief in s 9(2) conditions reliance on the relief similar to other parts: if the statement is given after 1 November 2018, s 10 must apply, and the dispute-resolution information must be the same as in statements given before commencement.

• Retail clients and consumers: The instrument affects how dispute resolution information is delivered to retail clients. It permits certain older document text to remain in circulation while requiring contemporaneous AFCA information to be made available on websites and in dispute resolution documentation (s 10). Retail clients therefore receive AFCA information through websites and dispute-resolution documents, while other customer‑facing documents may reflect the pre‑1 November 2018 position as permitted.

• Authorised representatives and other distributors: By modifying FSG requirements as they apply to authorised representatives, the instrument affects how authorised representatives disclose dispute resolution arrangements in client communications, and conditions the continued use of pre‑commencement FSG wording on the s 10 requirements being met by the licensee or representative (s 5(2)).

Who pays

• The direct compliance costs fall on the entities required to provide AFCA information and maintain document wording consistent with the instrument’s conditions: licensees, authorised representatives, regulated persons, issuers, trustees and RSA providers. These parties must make website updates, adjust IDR documentation, and maintain record evidence that the document relied upon was originally given before commencement where that is necessary to rely upon the relief (see ss 5(2), 6(2), 8(2), 9(2), 10(1)).

Who decides

• The regulated person or issuer chooses whether to rely on the transitional relief. That choice is exercised by meeting the preconditions in s 10 and by continuing to provide documents in the same terms as versions first given before the instrument commenced. Regulators (ASIC) retain oversight under the Corporations Act powers; the instrument itself does not create a separate regulatory decision pathway beyond its declared modifications (s 3).

Behaviour changes required

• Entities must make AFCA information available on their websites from 1 November 2018 (s 10(1)(a)), include AFCA information in dispute-resolution documents provided to retail clients (s 10(1)(b)), and for licensees, include AFCA information in IDR documents (s 10(1)(c)). Entities may elect to keep older worded FSGs, PDSs and other statements in circulation to preserve continuity, but must satisfy the instrument’s conditions if these are given on or after 1 November 2018 (ss 5(2), 6(2), 8(2), 9(2)).

The instrument does not create new standalone duties in the way a primary Act might, but it imposes several concrete obligations and provides conditional rights to rely on relaxed disclosure timing. These obligations and rights are best read against the statutory provisions they modify. Key duties and rights include:

Duty to make AFCA information available on website

• From and after 1 November 2018, a person who wishes to rely on the transitional relief must make available on their website “current information (the AFCA information) about the AFCA scheme and how that scheme may be accessed” (s 10(1)(a)). This is a positive, affirmative duty to host current AFCA information online.

Duty to include AFCA information in dispute-resolution documents

• The person must include AFCA information, subject to subsection (2), in any document that purports to describe dispute resolution arrangements and which is made available to retail clients (s 10(1)(b)). Subsection (2) excludes documents required to be given by or under the Act from this obligation (s 10(2)).

Duty for financial services licensees to include AFCA information in internal dispute resolution documentation

• If the person is a financial services licensee, the documentation relating to their internal dispute resolution procedure must include the AFCA information (s 10(1)(c)).

Right to rely on modified application of disclosure provisions

• Where conditions in ss 5(2), 6(2), 8(2) and 9(2) are met, persons giving Financial Services Guides, Product Disclosure Statements (including Short‑Form PDS), periodic statements, and statements about superannuation interests under the Family Law Act may rely on the modifications specified in ss 5(1), 6(1), 8(1) and 9(1). Specifically, summaries, explanations or information in prescribed paragraphs or items may “be up to date or on or after 1 November 2018, reflect the position immediately before that date” (see s 6(1)(a)-(c) for the PDS modifications).

Limited exemption from material change notification

• An issuer does not have to comply with s 1017B(1) in relation to a change or event that relates to AFCA starting to cover complaints by holders of the product, provided the conditions are met (s 7(1)). That is a specific right to avoid triggering the material change notice obligation for this particular type of change. The exemption is time sensitive: it does not apply to an issuer on or after 1 November 2018 unless s 10 applies to the issuer (s 7(2)).

Temporal and content conditions for relief

• The right to continue using pre‑commencement wording is conditional. For example, a Financial Services Guide given before 1 July 2019 can rely on the modified application only where the Guide is in the same terms as one first given before commencement and, if given on or after 1 November 2018, s 10 applies to the licensee or representative (s 5(2)). Equivalent conditions apply to PDSs, periodic statements and Family Law statements via ss 6(2), 8(2) and 9(2).

Right to exclude statutory documents from the document‑inclusion duty

• Section 10(2) provides that paragraph (1)(b) does not apply to a document required to be given by or under the Act. That is a narrow right to avoid having to insert AFCA information into mandatory statutory documents, though mandatory documents remain subject to the substantive requirements of the Act and Regulations unaffected by this instrument unless otherwise declared.

Collateral duties and implications

• The instrument modifies how specified provisions apply, rather than repealing or revising the underlying obligations in the Act and Regulations. Therefore, all other duties under the Act and Regulations continue to apply. The instrument does not create special enforcement mechanisms; non‑compliance will be assessed under the Act and relevant Regulations and enforcement powers invoked accordingly (s 3 and the instrument’s structure).

Practical drafting implications

• Where an entity relies on the relief, it must maintain documentary evidence that earlier versions of the documents were first given prior to commencement, ensure AFCA information is current on the website, and for licence holders ensure IDR documentation is updated with AFCA information. These are operational duties and record‑keeping obligations implicit in the conditions for reliance (see ss 5(2), 6(2), 8(2), 9(2), 10(1)).

The instrument itself does not create new criminal offences or civil penalty provisions. It functions by modifying the application of existing provisions of the Corporations Act and the Corporations Regulations 2001 during the transitional period. Enforcement consequences therefore arise through breach of the underlying Act or Regulations if an entity either fails to comply with those underlying requirements where they remain in force, or fails to satisfy the conditions necessary to rely on the declared modifications.

Legislative authority and oversight

• The instrument is made under the Corporations Act powers in subsections 951B(1) and 1020F (s 3). These powers confer the capacity to make legislative instruments that vary the way specified provisions apply. Enforcement action in relation to compliance or non‑compliance with the Act will continue to be carried out under the Act by the relevant regulator, such as the Australian Securities and Investments Commission, using the enforcement tools in the Act.

Absence of express penalty clauses

• There are no express penalty clauses, infringement notices or civil penalty provisions in this instrument itself. Consequently, the instrument does not itself levy fines or specify enforcement mechanisms. Non‑compliance will therefore be taken to mean non‑compliance with the Act or Regulations and be governed by the existing enforcement framework in the Corporations Act or other applicable law.

Practical enforcement triggers

• Potential enforcement or regulatory scrutiny can arise in at least three scenarios:
  1. An entity claims the benefit of the transitional relaxation but fails to satisfy the preconditions in s 10, for example by not making AFCA information available on its website or not including AFCA information in dispute resolution documents (s 10(1)). That failure may result in the entity being treated as non‑compliant with Part 7.7 or Part 7.9 as originally enacted.
  2. An issuer relies on the s 7 exemption from s 1017B(1) (material change notice obligation) without satisfying the s 10 preconditions where the exemption is required to apply on or after 1 November 2018 (s 7(2)). This could expose the issuer to claims of non‑compliance with s 1017B(1).
  3. Documents required to be given “by or under the Act” are excluded from paragraph 10(1)(b) per s 10(2), but other statutory requirements governing such documents remain; failure to comply with mandatory content in those documents outside this instrument’s narrow carve out may trigger enforcement.

Evidentiary and record‑keeping enforcement considerations

• The conditions for relying on the instrument’s relief require proof that a Financial Services Guide, PDS, periodic statement, or Family Law statement was first given before the instrument’s commencement, and that a later document is the same in relevant respects (ss 5(2), 6(2), 8(2), 9(2)). Absent adequate records proving those facts, an entity’s claim to rely on the relief may fail and enforcement action under the Act may follow.

Regulatory discretion

• The instrument does not confer discretionary enforcement powers on regulators beyond those already available under the Act. Regulators retain their existing discretion to investigate and take action for breaches of the Act or the Regulations. The instrument’s role is to declare how certain provisions apply for a period, not to stipulate enforcement outcomes.

Temporal limits and enforcement windows

• The transitional relief is explicitly time bound. Documents given before 1 July 2019 can rely on the modifications if the conditions are satisfied; after that date reliance ceases. The instrument therefore sets a finite window within which regulated entities can adjust or rely on older wording. Regulators will assess compliance against the instrument only within the timeframes it prescribes and against the underlying statutory obligations where the instrument does not apply.

This instrument operates by modifying the application of provisions in the Corporations Act 2001 and its Regulations. It does not amend the primary Act text directly. The interaction points are explicit in the instrument and are best described item by item.

Relation to the Corporations Act 2001

• The instrument is made under ss 951B(1) and 1020F of the Corporations Act (s 3). It modifies how Parts 7.7 and 7.9 of the Act apply to specified persons and documents. The Act retains primacy; the instrument declares that certain statutory paragraphs should be read as if modified for transitional documents. The instrument expressly references s 1017B(1) (material change notice requirement) in providing an exemption for issuers in relation to AFCA coverage (s 7(1)). The definitions used by the instrument itself are drawn from the Act: “AFCA scheme” as given by s 761A and “regulated person” as given by s 1011B (s 4).

Interaction with the Corporations Regulations 2001

• Several specific regulatory provisions and schedule items are affected by the instrument. Section 6(1)(b) inserts the allowable parenthetical phrase into item 9 of Schedule 10C (subitem (1A)), and s 6(1)(c) inserts similar words into item 11 of Schedule 10D and item 10 of Schedule 10E (subitem (1A)). Section 8(1) modifies how paragraphs in Regulations 7.9.53(a) and 7.9.75(1)(c) are to be read for periodic statements, and s 9(1) modifies paragraphs 7.9.88(1)(g) and 7.9.89(1)(g) for Family Law statements. The instrument therefore temporarily alters the application of specific regulatory content requirements.

Documents required by or under the Act

• Section 10(2) expressly provides that paragraph 10(1)(b) (the duty to include AFCA information in dispute-resolution documents) does not apply to a document required to be given by or under the Act. That carve out means that mandatory statutory documents remain governed by their own statutorily prescribed content requirements and are not required by this instrument to include the AFCA information. This creates a boundary: the instrument modifies certain voluntary or ancillary documents but does not override the content obligations of documents that the Act expressly requires.

AFCA scheme provisions

• The instrument references the AFCA scheme by name. It does not alter the statutory creation or operation of the AFCA scheme, which is defined in the Act at s 761A. The instrument governs disclosure about AFCA and the transition to AFCA coverage of complaints. It therefore interacts with the underlying regulatory regime for external dispute resolution by prescribing how entities should communicate about AFCA in a limited transitional context.

Interplay with other consumer protection or disclosure regimes

• The instrument’s modifications of disclosure wording for FSGs, PDSs and periodic statements may interact with other statutory or regulatory duties that govern misleading or deceptive conduct, consumer protections, or disclosure adequacy. The instrument does not modify such general duties; entities must ensure that any document that relies on the relief still complies with broader legal duties under the Act and other applicable laws. For instance, if a document is worded to reflect the position immediately before 1 November 2018, the entity must consider whether that presentation could give rise to misleading or deceptive conduct claims under other provisions.

Temporal interactions and transitional obligations

• The instrument establishes temporal boundaries: the instrument commenced on 31 May 2018 (Endnote 1), the critical date referenced in the modified wording is 1 November 2018 (throughout ss 5-10), and the declarations applying to documents given before 1 July 2019 set the outer limit of the transition window (ss 5(2), 6(2), 8(2), 9(2)). Entities must coordinate these dates with the timelines imposed by the Act and other regulatory changes to avoid creating inconsistencies.

Regulatory amendment instruments

• Endnote 2 records that instrument 2018/549 made amendments to paragraphs 6(1)(b), 6(1)(c) and s 7(1). That demonstrates that the instrument can be amended by later legislative instruments, and that interested parties should check amendment instruments for further interaction effects.

The compilation includes an instrument history and an amendment history which record the dates of registration and commencement, and the subsequent amendments to specific provisions. The relevant endnotes in this compilation are authoritative for the instrument’s amendment trail.

Commencement and registration

• The original instrument, numbered 2018/447, was registered on 30 May 2018 and commenced on 31 May 2018, as shown in Endnote 1. An amendment instrument, numbered 2018/549, was registered on 2 July 2018 and commenced on 2 July 2018 (Endnote 1).

Recorded amendments

• Endnote 2 lists specific changes to the instrument text. The amendment history shows:
  • Section 2 was repealed (entry: "Section 2 rep. s48D LA"). Note that Section 2 does not appear in the current compilation text, and the endnote records its repeal under the Legislation Act 2003 or related amendment action.
  • Paragraph 6(1)(b) was amended by instrument 2018/549.
  • Paragraph 6(1)(c) was amended by instrument 2018/549.
  • Section 7(1) was amended by instrument 2018/549.

Content-level implication of the amendments

• The amendments recorded in Endnote 2 indicate that Schedule items and the exemption provision in s 7(1) were modified shortly after the instrument’s initial registration. Those amendments likely refined the precise wording inserted into the Regulations’ schedules and clarified the scope or operation of the s 7 exemption. The compilation presented here includes the final text as in force on 2 July 2018, which incorporates those changes.

Interpretative effect of amendment entries

• The endnotes do not provide the text of the repealed Section 2 or the precise pre‑amendment wording. They do, however, record that changes occurred and identify the amending instrument number (2018/549). Users requiring detailed drafting history must consult the original instrument 2018/447 as registered on 30 May 2018 and the amending instrument 2018/549 registered 2 July 2018 to compare pre‑ and post‑amendment texts.

Practical compliance note

• Because the instrument was amended quickly after commencement, entities relying on transitional relief should ensure they are consulting the consolidated instrument as in force on or after 2 July 2018. The compilation’s endnotes show the necessary instrument numbers and dates for tracking the instrument’s evolution (Endnote 1 and Endnote 2).

Record of compilation

• The compilation indicates it was prepared by the Australian Securities and Investments Commission and is Compilation No. 1 as in force on 2 July 2018. This suggests that the instrument’s text as compiled includes any commenced amendment to that date, which here includes instrument 2018/549 (Endnote 1).

The instrument text and its endnotes do not record any judicial consideration or litigation history. The compilation contains only the legislative text, definitions, declaratory clauses and endnotes about registration and amendment. No court decisions, appeals, or litigation citations are contained within the provided instrument text.

What this means practically

• Because the instrument is a legislative declaration modifying how statutory disclosure provisions apply, disputes about its effect would involve statutory interpretation issues under the Corporations Act and the Legislation Act 2003. Any litigation would therefore deal with the instrument’s proper application to specific factual settings, the sufficiency of AFCA information provided on a website or in documents, or whether a person correctly relied on the transitional relief when giving a document on or after 1 November 2018. None of those matters are reflected in this compilation.

Where to look for any subsequent litigation

• To identify any litigation that has since engaged the instrument, practitioners should search court databases for cases involving Corporations Act disclosure obligations around AFCA’s commencement dates, and any enforcement proceedings brought by ASIC that reference this instrument. The instrument proper does not list cases, and the compilation’s endnotes do not record any judicial history as at 2 July 2018.

Limits of this compilation

• This compilation is accurate as at 2 July 2018 and includes any commenced amendment to that date. It therefore does not include subsequent legal developments, case law or administrative decisions arising after that date. Readers seeking litigation history post‑compilation will need to consult case databases and ASIC enforcement records beyond the instrument’s endnotes.

The instrument’s transitional design creates several practical pitfalls and compliance traps that regulated entities should note. These are grounded in the instrument’s text and its conditional structure.

Reliance condition: “same terms” requirement

• A recurring condition in ss 5(2), 6(2), 8(2) and 9(2) is that a Financial Services Guide, Product Disclosure Statement, periodic statement or Family Law statement given before 1 July 2019 is in the same terms as a version first given before the commencement of the instrument. That requires robust record keeping to prove the earlier version’s date and substantially identical wording. If an entity makes even a minor substantive or formatting change that alters the terms, it risks losing the right to rely on the transitional modification (see ss 5(2)(b), 6(2)(b), 8(2)(b), 9(2)(b)).

Timing trap: interplay of 1 November 2018 and 1 July 2019

• The dates in the instrument create a two‑point timeline: 1 November 2018 is the reference date used in the modified wording and in s 10’s operative requirement; 1 July 2019 is the outer limit for documents to be given and rely on the relief. Entities that issue documents on or after 1 November 2018 must ensure s 10 applies to them. Documents given after 1 July 2019 cannot rely on the transitional relief. Misalignment of internal update schedules around these dates can lead to non‑compliance.

Content ambiguity: what constitutes “AFCA information”

• Section 10(1)(a) requires making available “current information (the AFCA information) about the AFCA scheme and how that scheme may be accessed”. The instrument does not prescribe the exact format, level of detail, or wording. This leaves room for interpretation and potential regulator scrutiny about sufficiency. Entities will need to make an operational judgment about what “current” and “how that scheme may be accessed” mean in practice and preserve evidence of the content published.

Document scope: exclusion of documents required by or under the Act

• Paragraph 10(2) excludes documents that are statutorily required from the obligation in paragraph 10(1)(b) to include AFCA information. However, mandatory statutory documents remain governed by their own content obligations and other disclosure requirements. Entities must carefully distinguish between documents that are statutory and those that are not to determine whether the inclusion duty applies.

Internal dispute resolution documents

• For financial services licensees, s 10(1)(c) requires inclusion of AFCA information in IDR documentation. IDR procedures are often scrutinised by regulators. Failure to update IDR documentation while attempting to rely on the relaxed external document wording will undermine reliance on the instrument and could invite enforcement attention.

Exemption from material change notice

• Section 7(1) exempts an issuer from complying with s 1017B(1) in relation to AFCA starting to cover complaints by holders of the product. However, s 7(2) limits that exemption on or after 1 November 2018 unless s 10 applies. An issuer that assumes the exemption applies without confirming compliance with s 10 risks failing to meet the material change notification standard.

Record evidence and audit trails

• Because reliance on the instrument depends on prior document versions and contemporaneous website/dispute-resolution disclosures, entities must maintain audit trails showing when documents were first given, when website information was posted and how IDR materials were updated. Absent documentary proof, regulators may treat attempts to rely on the transitional relief as invalid.

No standalone penalty provisions, but exposure remains

• Although the instrument contains no direct penalties, failure to meet the instrument’s conditions or to comply with underlying statutory obligations can lead to enforcement under the Corporations Act. Entities should not assume the absence of express instrument penalties equates to immunity from regulatory action.

Amendment history and version control

• The instrument was amended shortly after registration (instrument 2018/549). Practitioners must ensure they are consulting the consolidated instrument in force, and not an earlier printed copy. Endnote tracking is necessary to avoid relying on superseded wording (Endnotes 1 and 2).

Potential consumer confusion risk

• The instrument permits documents to reflect the position immediately before 1 November 2018 even if provided after that date. That can produce a divergence between what a consumer reads in a PDS or FSG and the current dispute resolution arrangements as reflected on the entity’s website. Entities should consider whether such inconsistencies might invite consumer complaints or allegations of misleading or deceptive conduct under other legal provisions.

Compliance with the instrument requires both document control and affirmative disclosure steps. Below is a practical checklist derived from the instrument text, with attention to timing, record‑keeping and content sufficiency.

1. Establish the timeline and governance

• Note the key dates: instrument commencement 31 May 2018 (Endnote 1); the instrument’s operative reference date 1 November 2018 (repeated throughout ss 5-10); and the outer document reliance date 1 July 2019 (ss 5(2), 6(2), 8(2), 9(2)). Create an internal compliance timeline to ensure website and IDR materials are updated by 1 November 2018 if the entity intends to rely on the transitional relief.

2. Publish AFCA information on the website

• From and after 1 November 2018, make available “current information” about the AFCA scheme and how to access it on the entity’s website (s 10(1)(a)). Ensure the content is clearly labelled, easy to find for retail clients, and shows the date when it was last updated. Retain snapshots or archived copies showing publication and update dates as documentary evidence.

3. Include AFCA information in dispute resolution documents

• For any document that “purports to describe dispute resolution arrangement[s]” and is made available to retail clients, include AFCA information (s 10(1)(b)), unless the document is required to be given by or under the Act (s 10(2)). Identify which client‑facing documents fall within this description and update templates accordingly. Maintain records of which documents were updated and when.

4. Update internal dispute resolution documentation for licence holders

• If the entity is a financial services licence holder, ensure IDR procedural documentation includes AFCA information (s 10(1)(c)). Update the text of IDR manuals, staff guidance and complaint handling flowcharts to incorporate AFCA access details, and retain dated versions for evidence.

5. Preserve prior document versions and prove “same terms”

• If relying on the instrument to continue using pre‑commencement FSGs, PDSs or periodic statements after 1 November 2018, maintain documentary proof that the version was first given before the instrument commenced and that the later document is the same in terms (ss 5(2)(b), 6(2)(b), 8(2)(b), 9(2)(b)). Archive prior PDSs, FSGs and other statements with reliable timestamps, distribution logs and version control records.

6. Assess whether documents are “required by or under the Act”

• Determine which documents are statutorily required to be given by or under the Act. Section 10(2) exempts those documents from the paragraph 10(1)(b) insertion duty, but statutory documents remain subject to their own content rules. Do not assume the instrument permits omission of AFCA information from mandatory statutory documents without specific legal review.

7. Review changes to PDS summaries, explanations and statements

• The instrument permits specific regulatory schedule items and paragraphs to be read as if modified, allowing summaries or explanations to reflect the pre‑1 November 2018 position (s 6(1)(a)-(c), s 8(1), s 9(1)). Where using this relief, ensure that the summary or explanation is indeed identical to the earlier version and that the AFCA information is available on the website and in dispute resolution documents per s 10.

8. Avoid substantive changes to documents intended to rely on the relief

• If intending to rely on the transitional relief for documents given up to 1 July 2019, avoid making substantive amendments to those documents after their original issue date. Even minor changes risk losing the “same terms” protection and thereby cause the modified application to be unavailable.

9. Maintain audit trails and evidence of publication

• Keep dated PDF copies, web‑archives (e.g. Wayback snapshots, server logs), and distribution lists that show when materials were published, updated and sent to clients. Regulators will expect evidence that the AFCA information was “current” and that earlier versions of documents were first given before commencement.

10. Coordinate with legal and compliance teams on disclosure sufficiency

• The instrument does not specify the exact AFCA wording required. Legal and compliance teams should determine appropriate wording that conveys AFCA access information clearly, whilst also ensuring that any pre‑1 November 2018 statements used remain compliant with broader legal duties such as prohibitions on misleading or deceptive conduct. Consider including hyperlinks to AFCA, telephone numbers, complaint escalation steps, and where applicable, contact details for external dispute resolution.

11. Train front‑line staff and authorised representatives

• Update authorised representative guidance and train staff who provide Financial Services Guides or PDSs to ensure they understand when they may rely on older wording, how to direct clients to AFCA information on the website, and when updated documents should be used. Ensure that authorised representatives do not inadvertently distribute modified documents that break the “same terms” chain.

12. Monitor regulatory communications and instrument amendments

• The instrument was amended by instrument 2018/549 shortly after commencement. Maintain a process to monitor for further amending instruments or regulatory guidance that affect the instrument’s operation, and adjust compliance steps accordingly.

13. Document decision to rely on transitional relief

• For internal governance and in case of regulatory challenge, document the decision‑making process, including reasons for relying on the instrument, the timeline for updates, and the evidence that demonstrates compliance with s 10 preconditions and the “same terms” requirement. This documentation will be critical if enforcement action questions whether the relief was properly claimed.

14. Prepare exit plan beyond 1 July 2019

• The instrument’s relief ends for documents given on or after 1 July 2019. Prepare to transition to fully updated FSGs, PDSs and other client materials reflecting AFCA coverage without relying on the instrument. Schedule drafting, approval and distribution processes to make that transition smoothly.

Following these steps, and mapping them to the specific sections of the instrument (notably ss 5-10), will align operational practice with the instrument’s conditional relief and minimise enforcement and consumer‑confusion risks.