ASIC Corporations (Record-Keeping Requirements for Australian Financial Services Licensees when Giving Personal Advice) Instrument 2024/508

This legislative instrument modifies how Part 7.6 of the Corporations Act 2001 operates for record-keeping about personal advice. It does this by applying Part 7.6, except Divisions 4 and 8, as if a new section 912G were inserted after section 912F.

The practical effect is that when personal advice is provided to a person as a retail client by an AFS licensee or a representative of an AFS licensee, the licensee must ensure certain records are kept. Those records are aimed at showing the basis for the advice process, not just preserving the final advice document.

For businesses, this is an evidence rule as much as a storage rule. If your business gives personal advice, your records need to show what information was relied on, what action was taken, why the advice was appropriate, and how the client’s interests were prioritised where a relevant conflict existed.

The trigger is the provision of personal advice to a person as a retail client by a financial services licensee or a representative of a financial services licensee. If your business gives personal advice to retail clients about financial products, this instrument is likely relevant.

The instrument expressly applies in relation to financial services licensees and former financial services licensees, and to authorised representatives and former authorised representatives. That matters because the retention and handover duties can continue after a licence or authorisation ends.

Businesses commonly in scope include financial planning firms, boutique advice practices, superannuation advisers, insurance advice businesses, and digital advice providers where the service amounts to personal advice to a retail client.

Businesses usually outside the direct trigger are those that only provide general advice, or only deal with wholesale clients, because the instrument is framed around personal advice to a retail client.

The main trigger is straightforward. If personal advice is provided to a retail client, the licensee must ensure the required records are kept unless an exclusion in subsection 912G(6) or the partial carve-out in subsection 912G(7) applies.

Subsection 912G(6) says the section does not apply to the provision of personal advice given in relation to a financial product in circumstances where the provider satisfies the duty in subsection 961B(1) if the provider takes the steps mentioned in paragraphs 961B(2)(a), (b) and (c). Because this exclusion is expressed in specific terms, businesses should check the exact advice scenario carefully before relying on it.

Subsection 912G(7) is narrower than a full exemption. It says the section, other than paragraph (2)(d) and subsection (3) as it relates to that paragraph, does not apply to personal advice covered by either of these circumstances: where a Statement of Advice is not required to be given to the client, or where a record of the advice is kept in accordance with subsection 946B(3A).

That means if your advice falls into one of those two categories, the record-keeping duties in paragraphs (2)(a), (2)(b) and (2)(c) may not apply under this instrument. However, the conflict-related record in paragraph (2)(d) can still apply, and the 7 year retention and accessibility rule in subsection (3) still applies to that paragraph. Businesses should not assume that a no-Statement of Advice scenario removes all duties under the instrument.

The instrument lists four categories of records the licensee must ensure are kept in relation to the provision of the personal advice.

First, records of the information relied on and the action taken by the provider that indicates the provider has, in accordance with subsection 961B(1), acted in the client’s best interests in relation to the advice.

Second, if subsection 961B(2) is being relied on to prove that the best interests duty has been satisfied, records of the information relied on and the action taken by the provider that satisfies the steps in that subsection. The instrument notes that keeping records that satisfy paragraph (2)(b) will satisfy the record-keeping obligation in paragraph (2)(a).

Third, records of the advice given, including the reasons why, under section 961G, it would be reasonable to conclude that the advice is appropriate to the client, had the provider satisfied the best interests duty.

Fourth, where the provider knows, or reasonably ought to know, that there is a conflict between the interests of the client and the interests of a person mentioned in subsection 961J(1), records of the information relied on and the action taken by the provider to indicate that the provider has given priority to the client’s interests when giving the advice.

The instrument does not prescribe a single format for these records. In practice, businesses should expect the records to include the material that shows the adviser process, not just the final advice document. The key point is that the records must be sufficient to show what was relied on and what was done.

The required records must be kept for 7 years after the day the personal advice was provided to the client. They must also be accessible by the licensee at all times during that period in a way that enables the licensee to produce the records.

This accessibility requirement is important. It is not enough to know that records exist somewhere. The licensee must be able to access and produce them throughout the retention period. Businesses should think about storage format, retrieval rights, system migrations, archived files, and what happens if records are held by an external provider or a departing representative.

The obligation continues even if the financial services licensee ceases to be a financial services licensee during the period that the records are required to be kept and accessible. So if a business sells its advice arm, winds down, or otherwise stops being licensed, the retention duty does not simply disappear.

If the provider is an authorised representative and the records are kept by the authorised representative, the representative has additional duties.

The authorised representative must give the records to the licensee if the licensee requests them, provided the request is made in connection with the obligations imposed on the licensee under the Chapter and within 7 years after the day the personal advice was provided to the client.

Unless the records have already been given to the licensee, the authorised representative must keep them for 7 years after the day the personal advice was provided to the client. This obligation continues even if the authorised representative ceases to be an authorised representative during the relevant period.

The instrument also says that this authorised representative rule does not limit the operation of the main duties requiring the licensee to ensure records are kept and accessible. So businesses should not treat representative-held files as outside the licensee’s compliance responsibility.

For most advice businesses, the key compliance question is whether your systems can prove the advice process years later. The instrument focuses on evidence of best interests, appropriateness, and client priority in conflict situations. That means your file structure, templates, CRM prompts, and representative agreements should all support those outcomes.

If your business uses authorised representatives, check who physically holds the records, what the handover process is, and whether the licensee can access and produce the records at all times. If your business relies on no-Statement of Advice pathways or records kept under subsection 946B(3A), check carefully which parts of the instrument still apply, especially the conflict-related record and associated retention duty.

Before relying on this page, businesses should confirm at least three things. First, whether the advice is personal advice to a retail client. Second, whether any exclusion or partial carve-out actually applies to the advice scenario. Third, whether the licensee can access and produce the required records for the full 7 year period.

It is also sensible to compare your internal processes against the exact categories of records listed in the instrument. A business may already keep client files, but that does not automatically mean the files clearly show the information relied on, the action taken, the reasons supporting appropriateness, and the steps taken to prioritise the client’s interests where a relevant conflict existed.

The instrument was made on 23 September 2024 and registered on the Federal Register of Legislation on 24 September 2024. It commenced on the day after registration, which is 25 September 2024.

The instrument is in force and is repealed at the start of 1 October 2029, unless changed earlier by law.

This page is based on the text of the ASIC Corporations (Record-Keeping Requirements for Australian Financial Services Licensees when Giving Personal Advice) Instrument 2024/508 on the Federal Register of Legislation.

Because this page is a practical summary, businesses should check the instrument itself and the relevant Corporations Act provisions it refers to, including sections 946B, 961B, 961G and 961J, before making compliance decisions.