ASIC Corporations (In-use Notices for Employer-sponsored Superannuation and Superannuation Dashboards) Instrument 2022/496

Product dashboard refers to the concise one-page summary of key product features, fees, costs, and returns that trustees must publish under section 1017BA of the Corporations Act. The dashboard is designed to give members a quick comparison tool. The instrument in section 5 exempts trustees from making dashboards publicly available for choice products. Choice products are investment options within a superannuation fund where the member selects the investment strategy, as distinct from the default MySuper product. The exemption is complete: no dashboard need be published for any choice product. However, the exemption in section 6 (periodic statements) only applies where the trustee is already required to publish a dashboard , so if the trustee voluntarily publishes a dashboard for a choice product (or is required for a non-choice product), the trustee may include a web link instead of embedding the dashboard in the periodic statement.

Standard employer-sponsored fund is defined by reference to section 16 of the Superannuation Industry (Supervision) Act 1993 (SIS Act). Roughly, it is a fund where the employer makes contributions for employees and has a connection to the fund’s governing rules, often as the sole or dominant source of membership. Public offer superannuation fund is defined in section 18 of the SIS Act: a fund that is not a standard employer-sponsored fund (i.e., it offers membership to the public). The instrument in section 8 covers the intersection: a fund that is both a public offer fund and a standard employer-sponsored fund. This seems internally contradictory, but in practice such funds exist where the fund is open to the public but also has employer-sponsored divisions. The key is that the PDS for such a fund can be split into a common part (the generic information applicable to all members) and a variable choice part (information specific to the employer’s choices on investment strategies, insurance, fees, employer contribution levels, and vesting agreements). The variable choice part is a document that only includes information about matters set out in SIS regulations 4.02A or 4.02AA (investment strategies), insurance products covering standard employer-sponsored members, fees relating to particular investment strategies, vesting agreements referred to in SIS regulation 5.08(2)(b), and employer contribution levels.

In-use notice is the notice that a responsible person must lodge with ASIC under section 1015D(2) of the Corporations Act when a PDS or Supplementary PDS is first given to someone in a recommendation, issue, or sale situation. The instrument creates an alternative to lodgment of multiple notices for each PDS with a different variable choice part. The alternative is a primary notice lodged as soon as practicable (within five business days) after the common part is first given, plus secondary notices within five business days after each financial year end. The secondary notices list all PDS documents that include the common part and that were given to someone during that financial year and remain available. The regime eases administrative load but requires careful record-keeping to ensure all PDS versions with variable choice parts are captured each year.

Accumulation product is defined in new section 1015DA(9) as a superannuation product other than one where the holder is a defined benefit member under SIS section 83A. This excludes defined benefit funds from the alternative notice facility.

The instrument directly affects trustees of regulated superannuation funds, responsible persons for PDSs and Supplementary PDSs, standard employer-sponsors, and members of standard employer-sponsored funds that are also public offer funds. It does not affect self-managed superannuation funds (SMSFs), which are expressly excluded from the definition of regulated superannuation fund for the purposes of the exemptions, though SMSFs are defined in the instrument but not otherwise referenced; the exemptions apply only to regulated superannuation funds (which include SMSFs per SIS Act but SMSFs are not public offer funds and typically do not issue choice products in the same way). In practice, the exemptions are most relevant to large industry funds, retail funds, and corporate funds that offer choice products to members.

Trustees of regulated superannuation funds that offer choice products benefit from the section 5 exemption: they need not expend resources to design, publish, and maintain product dashboards for each choice product. This reduces compliance costs and removes a duplication risk, since choice products often have numerous investment options and the dashboard obligation would be burdensome. The section 6 conditional exemption allows trustees to send periodic statements without embedding the dashboard, reducing printing and postage costs for paper statements and simplifying digital delivery. However, the condition requires the trustee to provide a precise website address and a statement, so the trustee must ensure the website link works and the dashboard is kept up to date.

Responsible persons (typically the trustee or a director of the corporate trustee) who issue PDSs for employer-sponsored superannuation products that have variable features chosen by the employer are the primary beneficiaries of Part 3. Without the instrument, each time an employer chooses a different investment strategy, insurance arrangement, fee schedule, vesting agreement, or contribution level, a new PDS or Supplementary PDS might be created, and each would require a separate in-use notice to be lodged with ASIC. The alternative notice facility reduces lodgment volume from potentially hundreds per year to one primary notice and one secondary notice per year, provided the common part remains unchanged. This saves administrative cost and reduces the risk of inadvertent non-compliance with lodgment deadlines.

Standard employer-sponsors are indirectly affected because the variable choice part of the PDS reflects their selections. The instrument facilitates more efficient product distribution, which may result in faster turnaround when employers want to change features. Members receive periodic statements without the dashboard embedded, but the dashboard remains available online. The condition does not require the dashboard to be provided in the document itself, so members with limited internet access may face a barrier to obtaining the dashboard quickly.

ASIC is also affected as the recipient of fewer in-use notices and as the body responsible for supervising compliance with the conditions. The instrument reduces its lodgment processing burden but may shift supervisory focus to ensuring the annual secondary notices are accurate and complete.

The instrument creates no new duties but modifies existing duties under the Corporations Act. The key duty for trustees is the condition in section 7: if a trustee relies on the section 6 exemption, the trustee must include in the periodic statement (or in an accompanying document) a website address for the latest product dashboard and a statement that the dashboard can be found there. This is a legal duty that, if breached, means the trustee cannot rely on the exemption and must be taken to have failed to comply with section 1017D and regulation 7.9.20(1)(o), exposing the trustee to potential liability under the Act. The condition is binary: the trustee either includes the address and statement or does not. There is no obligation to ensure the dashboard is actually accessible at that address, but that would raise questions under other provisions (misleading conduct, section 1017BA itself).

The section 5 exemption is unconditional, so trustees have no additional compliance burden for choice product dashboards. However, trustees still have obligations under section 1017BA for MySuper products and possibly other products not covered by the exemption.

Part 3 grants responsible persons the right to use the alternative notice facility instead of lodging individual in-use notices under section 1015D(2). This is a right, not an obligation; a responsible person may continue to lodge individual notices if preferred. The right is subject to the conditions set out in the modified Part 7.9. Specifically, the alternative applies only where:

• The PDS is for an accumulation product that is an interest in a public offer superannuation fund that is also a standard employer-sponsored fund.
• The PDS is made up of a common part and a variable choice part.
• The Supplementary PDS supplements a PDS of that kind and a notice has not been lodged under section 1015D(2).

If those conditions are met, the responsible person must lodge a primary notice within five business days after the common part (or related Supplementary PDS) is first given. That primary notice must specify each PDS that includes the common part and that was given before the lodgment (paragraph 8(3)). The responsible person must then lodge secondary notices within five business days after the end of each financial year, listing all PDS documents that include the common part and that were given to someone during the financial year and remain available. If a Supplementary PDS relates to the variable choice part, the secondary notice must also specify that Supplementary PDS and which PDS it supplements.

The person must continue lodging secondary notices until no PDS that includes the common part remains available for use. This creates an ongoing record-keeping duty that may be more burdensome than the original regime for small-scale issuers, but for large-scale issuers it reduces lodgment frequency.

The instrument itself does not prescribe penalties. Penalties arise from the underlying Corporations Act if a person fails to comply with the modified obligations. For example, if a trustee relies on the section 6 exemption without including the required website address and statement, the exemption does not apply, and the trustee is taken to have breached section 1017D and regulation 7.9.20(1)(o). Section 1017D is a civil penalty provision under the Corporations Act, with maximum penalties for an individual of up to $1.1 million (or three times the benefit derived) and for a body corporate up to $11 million or more depending on the benefit. Similarly, breaching section 1017BA (product dashboard obligation) is a strict liability offence with a maximum penalty of 200 penalty units (currently $55,000 for an individual, higher for a body corporate under the Penalties and Sentences Act). But the instrument exempts trustees from that obligation for choice products, so the penalty risk is absent for that specific class.

For responsible persons using the alternative notice facility, the modified section 1015DA imposes mandatory lodgment deadlines: within five business days for primary notices and within five business days after financial year end for secondary notices. Failure to lodge within those deadlines means the responsible person is not complying with the modified provision, and the exemption from the in-use notice requirement under section 1015D(2) lapses. ASIC could then take action for failing to lodge a notice under section 1015D, which carries a penalty of 50 penalty units ($11,000 for an individual, higher for a body corporate) under the existing penalty regime. The instrument does not create any specific enforcement mechanism; ASIC can use its general powers under the ASIC Act to investigate and seek civil or criminal penalties.

Enforcement risk may be lower under the alternative regime because the annual secondary notice creates a clear lodgment trigger tied to the financial year end, reducing ambiguity about when a notice is due. However, the definition of when a PDS is “available to be given” at year end may be unclear: if a trustee holds stock of printed PDSs, are they still available? The instrument uses the language “available to be given to someone in a recommendation, issue or sale situation”, which may include both electronic and physical availability. Responsible persons should maintain a list of all PDS versions in circulation.

The instrument is repealed on 1 October 2027 (Part 4). After repeal, the original unmodified provisions apply. Trustees and responsible persons should plan for the temporary nature of the relief. There is no grandfathering mechanism for notices lodged under the alternative regime, so post-repeal compliance will revert to individual lodgment.

The instrument operates under the Corporations Act 2001, specifically subsection 1020F(1) which allows ASIC to exempt persons from provisions of Part 7.9 or declare that Part 7.9 applies with modifications. Part 7.9 deals with disclosure for financial products, including superannuation. The instrument sits alongside the Superannuation Industry (Supervision) Act 1993 (SIS Act) and SIS Regulations, from which it borrows key definitions: choice product, public offer superannuation fund, standard employer-sponsored fund, registrable superannuation entity, regulated superannuation fund, and self-managed superannuation fund. These cross-references mean that any amendment to those definitions in the SIS Act will automatically change the scope of the instrument, unless the instrument adopts a specific date-reference.

The instrument also interacts with the Corporations Regulations 2001. Section 6 refers to paragraph 7.9.20(1)(o) of the regulations, which requires a periodic statement to include the product dashboard. The exemption in section 6 is limited “to the extent that provision requires the trustee to comply with paragraph 7.9.20(1)(o)”. If the regulation is amended or replaced, the reference will need to be read in context, and a new instrument may be needed.

The instrument does not affect the operation of the Australian Securities and Investments Commission Act 2001 (ASIC Act), particularly the provisions on misleading or deceptive conduct. A trustee or responsible person using the alternative notice facility must still ensure that PDS documents are not misleading. The alternative facility does not excuse accuracy or currency of content.

The instrument is likely intended to be read together with ASIC Corporations (Product Dashboard) Instrument 2022/497 and other related instruments in the same CP 358 package, though the source does not name them. Practitioners should check for companion instruments that may affect the same superannuation dashboard obligations.

There is no specific interaction with the Tax Administration Act or tax laws, but note that employer contributions and vesting agreements referred to in the variable choice part have tax implications under division 295 of the Income Tax Assessment Act 1997. The instrument does not modify tax obligations.

State and territory fair trading legislation may apply if the superannuation product is marketed to consumers, but the Commonwealth Corporations Act generally covers the field for financial products.

The instrument is silent on privacy. The website address condition does not impose additional privacy obligations, but the trustee must comply with the Privacy Act 1988 when handling member information, including where the periodic statement includes a link to an online dashboard that may track user activity.

This instrument is a standalone instrument made on 9 June 2022 and commenced at the same time that ASIC Corporations (Repeal) Instrument 2022/499 commences. The source does not state when that repeal instrument commences, but typically concurrent commencement means this instrument replaced earlier instruments or exemptions. The instrument itself has no amendment history because it is the original instrument. Part 4 contains a sunset clause: the instrument is repealed on 1 October 2027. That is a fixed date, not a trigger-based repeal. ASIC may amend or replace the instrument before that date, but as at the date of the source, no amendments were made.

The instrument cites no prior legislative instruments being repealed other than impliedly by the reference to the repeal instrument. The fact that it is a legislative instrument under the Acts Interpretation Act 1901 means it is subject to periodic review by ASIC and the Office of Parliamentary Counsel. Changes in the superannuation industry may prompt ASIC to amend the conditions or extend the sunset date.

Practitioners should monitor ASIC’s website for any amending instruments, particularly around the 2027 sunset. If no replacement instrument is made, the obligations under Part 7.9 will snap back to full effect for choice product dashboards and individual in-use notices.

The source does not cite any litigation concerning this instrument. Given that it commenced in 2022 and is a technical legislative instrument, it is unlikely to have been litigated directly. However, underlying provisions (sections 1017BA, 1017D, 1015D) have been the subject of ASIC administrative actions and a small number of Federal Court proceedings, typically in the context of broader disclosure failures. The alternative notice facility in section 1015DA is new and has not been tested in court. The primary legal risk is not the instrument itself but failure to comply with its conditions, which could lead to proceedings for breach of the underlying Corporations Act.

If a dispute arises about the meaning of “common part” or “variable choice part”, or about whether the alternative notice was lodged in time, a court would interpret the modifications using ordinary principles of statutory interpretation, considering the purpose of the instrument (to reduce regulatory burden) and the text. The explanatory materials (if any) would be relevant.

No Administrative Appeals Tribunal or Federal Court decisions relating to this specific instrument are known at the time of writing.

The most significant gotcha is the conditional nature of the section 6 exemption. The condition in section 7 requires the trustee to “include in, or in a document accompanying, the periodic statement” the website address and statement. “In a document accompanying” means the website address could be in a separate page, but the trustee must ensure it is physically accompanying the statement. For electronic statements, that is straightforward; for paper mailings, it means a separate insert or a printed address. The condition does not require the website address to be hyperlinked or to work after a specific period, but if the link leads to an error or outdated dashboard, the trustee may be at risk of misleading conduct under the ASIC Act or Corporations Act section 1041H. The exemption only covers the duty to embed the dashboard in the statement; it does not exempt the trustee from ensuring the dashboard is accurate and available.

The section 5 exemption is unconditional but is limited to “choice products”. It does not apply to MySuper products or to any other investment options that are not choice products. Trustees offering a mix of default and choice options must ensure they maintain dashboards for the non-choice options.

In Part 3, the definition of “variable choice part” is exhaustive: it only includes information about investment strategies (regulations 4.02A/4.02AA), insurance cover, fees relating to particular investment strategies, vesting agreements (regulation 5.08(2)(b)), and employer contribution levels. If a variable part includes any other information, it would not fit the definition, and the alternative notice facility cannot be used. The responsible person must carefully delimit what goes into the variable choice part. If extra material is included inadvertently, the entire notice lodgment regime under section 1015DA may be invalid, and the person must revert to individual notices.

The instrument applies only to accumulation products. Defined benefit members are excluded, so any fund with both accumulation and defined benefit components must treat defined benefit PDSs separately.

The primary notice deadline is “as soon as practicable, and in any event within 5 business days” after the common part is first given. This dual standard is ambiguous: “as soon as practicable” may be less than five business days. Responsible persons should lodge immediately rather than waiting until the fifth day. Similarly, the secondary notice is due “as soon as practicable after the end of each financial year, and in any event within 5 business days of the end of each financial year”. The financial year end for most super funds is 30 June. The notice must be lodged by 7 July (if no weekend intervenes). Missing this window means the exemption for that year’s PDSs may be lost.

The instrument is repealed on 1 October 2027. Any PDS that includes a common part that was first used before repeal may still be used after repeal, but the alternative notice facility will no longer be available. After repeal, the responsible person would need to lodge individual in-use notices for each PDS given after 1 October 2027. There is no transitional provision. Trustees should plan for the sunset and consider building compliance systems that can revert to individual lodgment.

For trustees seeking to rely on the exemptions in Part 2, compliance steps are straightforward. For section 5, simply do not publish product dashboards for choice products. No positive action is required. For section 6, the trustee must first ensure that a product dashboard is publicly available for the investment option (as required under section 1017BA). Then, for each periodic statement issued, the trustee must include either on the statement or in an accompanying document the website address of the latest product dashboard and a statement that the dashboard can be found there. The statement should be clear and unambiguous, for example: “The latest product dashboard for this investment option is available at [URL].” The trustee should maintain a valid URL that points to the current dashboard. The periodic statement must still contain all other required information under section 1017D; only the dashboard itself can be replaced by the link. The trustee should document compliance by retaining copies of periodic statements or records of the link included.

For responsible persons using the alternative notice facility in Part 3, compliance requires a structured process.

1. Determine eligibility: the PDS must be for an accumulation product in a public offer fund that is a standard employer-sponsored fund. The PDS must be composed of a common part and a variable choice part. The variable choice part must only contain the permitted categories (investment strategies, insurance, fees, vesting agreements, employer contribution levels). Any other content disqualifies the use of the facility.

2. Prepare the common part: ensure it contains all information that is not dependent on the employer’s choices. The common part may consist of multiple documents given together (per section 1013L). The common part must not include any variable information.

3. Upon first giving the common part as part of any PDS in a recommendation, issue or sale situation, lodge a primary notice with ASIC within five business days. The notice must specify each PDS that includes the common part that has been given before lodgment. A sample notice form is not prescribed, but it should clearly identify the fund, the common part document, and the PDS names. The notice can be lodged via ASIC’s online portal (typically the ASIC Regulatory Portal for lodgment of notices under Part 7.9).

4. At each financial year end (30 June), compile a list of all PDS documents that include the common part that were given to someone during the financial year and that remain available for use. Also note any Supplementary PDS that relates to the variable choice part and that was given. Lodge a secondary notice within five business days after year end (by 7 July). The secondary notice must specify each PDS that meets the criteria in subsection (5): it includes the common part, was given during the year, and is still available at year end. If there are Supplementary PDSs relating to the variable choice part, specify them and indicate which PDS they supplement.

5. Continue lodging secondary notices each year until no PDS that includes the common part is available for use. If the common part is withdrawn, no further notices are required after that year.

6. Maintain records of all PDS versions and the dates they were first given, as well as the date they ceased to be available. This will support the accuracy of secondary notices.

7. If the common part materially changes (e.g., investment strategy changes that affect the common part), the instrument treats it as a new common part (subsection (7) states that a common part is taken not to be first given where a common part with the same information (except employer identification) has previously been given). But if the information changes, a new first giving occurs, triggering a new primary notice. Subsection (7) only preserves fungibility for identically worded common parts with only employer names varying. Therefore, any substantive update to the common part requires a fresh primary notice.

8. After repeal on 1 October 2027, cease using the alternative facility and revert to lodging individual in-use notices under section 1015D(2) for each PDS and Supplementary PDS. Retain pre-repeal records for the notice period (generally five years under ASIC record-keeping guidance).