ASIC RG 184 — ASIC Regulatory Guide – RG 184 Superannuation: Delivery of product disclosure for investment strategies

Page 1 REGULATORY GUIDE 184 Superannuation: Delivery of product disclosure for investment strategies September 2022 About this guide This guide is for trustees of superannuation entities (trustees) to help them comply with the product disclosure requirements in s1012IA of the Corporations Act. It explains:  the requirements that apply to trustees who offer a choice of investment strategies to members, where any of those strategies includes specific financial products (accessible financial products) that will be acquired under the member’s choice of strategy; and  the relief we provide from the disclosure requirements. Page 2 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 2 About ASIC regulatory documents In administering legislation ASIC issues the following types of regulatory documents. Consultation papers: seek feedback from stakeholders on matters ASIC is considering, such as proposed relief or proposed regulatory guidance. Regulatory guides: give guidance to regulated entities by:  explaining when and how ASIC will exercise specific powers under legislation (primarily the Corporations Act)  explaining how ASIC interprets the law  describing the principles underlying ASIC’s approach  giving practical guidance (e.g. describing the steps of a process such as applying for a licence or giving practical examples of how regulated entities may decide to meet their obligations). Information sheets: provide concise guidance on a specific process or compliance issue or an overview of detailed guidance. Reports: describe ASIC compliance or relief activity or the results of a research project. Document history This guide was issued in September 2022 and is based on legislation and regulations as at the date of issue. Previous versions:  Superseded Regulatory Guide 184, issued April 2016  Superseded Policy Statement 184, issued August 2006, reissued June 2007, and rebadged as a regulatory guide 5 July 2007 Disclaimer This guide does not constitute legal advice. We encourage you to seek your own professional advice to find out how the Corporations Act and other applicable laws apply to you, as it is your responsibility to determine your obligations. This guide only deals with product disclosure under the Corporations Act for accessible financial products included in investment strategies offered to members by a trustee of a superannuation entity. It is not intended to provide guidance to trustees on investment strategy disclosure requirements under the Superannuation Industry (Supervision) Act 1993. Page 3 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 3 Contents A Overview ........................................................................................... 4 Product disclosure requirements ....................................................... 4 Relief available .................................................................................. 5 B Product disclosure requirements .................................................. 6 Product disclosure under s1012IA..................................................... 6 Disclosure documents required ......................................................... 8 Compliance issues............................................................................. 9 C Relief available ............................................................................... 10 Relief for providing PDSs for accessible financial products ............ 10 Delivering the PDS .......................................................................... 11 Relief for additional acquisitions ...................................................... 14 How to comply with our relief ........................................................... 15 D Option 1: Trustee’s accessible product PDS .............................. 16 How Option 1 works......................................................................... 16 Disclosure documents required under Option 1 .............................. 17 Content of the superannuation entity’s PDS.................................... 18 Content of the accessible product PDS ........................................... 19 Prescribed PDS content: Fees and costs ........................................ 22 E Option 2: Trustee’s integrated PDS ............................................. 24 How Option 2 works......................................................................... 24 Disclosure documents required under Option 2 .............................. 25 Content of the integrated PDS ......................................................... 26 Prescribed PDS content: Fees and costs ........................................ 29 F Option 3: Issuer’s accessible product PDS ................................ 30 How Option 3 works......................................................................... 30 Disclosure documents required under Option 3 .............................. 31 Content of the superannuation entity’s PDS.................................... 32 Content of the accessible product PDS ........................................... 33 Prescribed PDS content: Fees and costs ........................................ 34 G Relief for additional acquisitions ................................................. 36 What is an additional acquisition? ................................................... 36 How often must you give an accessible product PDS? ................... 37 How does the relief work? ............................................................... 38 Key terms ............................................................................................... 42 Related information ............................................................................... 45 Page 4 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 4 A Overview Key points The trustee of a superannuation entity (trustee) who will acquire specific financial products (accessible financial products) for a member under a particular investment strategy must give the member enough information about those products to help them to make an informed assessment of the investment strategies offered: s1012IA of the Corporations Act 2001 (Corporations Act). The ‘s1012IA requirements’ may raise practical compliance issues when combined with other disclosure requirements (e.g. the general Product Disclosure Statement (PDS) requirements in Div 2 of Pt 7.9 of the Corporations Act). To address these issues, we have given relief by providing you, the trustee, with three additional options for product disclosure: see ASIC Corporations (Shorter PDS and Delivery of Accessible Financial Products Disclosure by Platform Operators and Superannuation Trustees) Instrument 2022/497. Product disclosure requirements RG 184.1 Section 1012IA of the Corporations Act applies to you, the trustee, when you offer a choice of investment strategies to your members, and any of those strategies include accessible financial products that will be acquired under the member’s choice of strategy. You must give a member a PDS for any accessible financial product included in an investment strategy before acquiring the product as part of implementing the strategy (the ‘s1012IA requirements’). Note 1: The superannuation arrangements to which s1012IA and this guide may apply include products commonly known as superannuation master trusts. Note 2: Throughout this guide, references to a PDS or supplementary PDS include a shorter PDS, a Short-Form PDS or supplementary Short-Form PDS. RG 184.2 You must also comply with the ‘general PDS requirements’ in Div 2 of Pt 7.9 of the Corporations Act to prepare and provide a ‘superannuation entity’s PDS’ (i.e. its own PDS about investment in the superannuation entity), including information about all of the investment strategies offered to members. In many cases, the PDS requirements that apply to the superannuation entity will be the shorter PDS requirements under Sch 10D to the Corporations Regulations 2001 (Corporations Regulations): see reg 7.9.11O. Note: Regulatory Guide 168 Disclosure: Product Disclosure Statements (and other disclosure obligations) (RG 168) outlines our expectations about compliance with the general PDS requirements, including the ‘Good Disclosure Principles’. Page 5 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 5 RG 184.3 These disclosure requirements are discussed in more detail in Section B of this guide. In addition, certain requirements under the Superannuation Industry (Supervision) Act 1993 (SIS Act) may apply. This guide is not intended to provide you with guidance on investment strategy disclosure requirements under the SIS Act. Relief available RG 184.4 We recognise that having to comply with both the general PDS requirements and the s1012IA requirements raise some practical compliance issues for trustees. For this reason, we have provided relief from some of the relevant disclosure obligations in Pt 7.9 by giving you three additional options for providing information about accessible financial products to members (including options that allow you to prepare the disclosure information about an accessible financial product). The relief we provide is set out in ASIC Instrument 2022/497. RG 184.5 Two of the disclosure options (i.e. Option 1 and Option 3) allow you to include less information about accessible financial products in your superannuation entity’s PDS, on the basis that this information will be provided in a separate accessible product PDS. The other option (i.e. Option 2) allows you to integrate information about the superannuation entity and the accessible financial products in one disclosure document. Note: In this guide, ‘the accessible product PDS’ refers to the PDS about that accessible financial product (whether prepared by the issuer of that product or the trustee of the superannuation entity). RG 184.6 Section C provides an overview of the three options. Option 1 is fully explained in Section D, Option 2 in Section E and Option 3 in Section F. RG 184.7 Although we have provided relief under ASIC Instrument 2022/497, you do not have to use our relief and may choose to comply with the law without modification. RG 184.8 In addition to the relief provided in Options 1, 2 and 3, we also provide relief from the ongoing requirement under s1012IA to provide a PDS where a member is making contributions to their superannuation on a regular ongoing basis, and an accessible financial product is acquired for a member more than once. RG 184.9 The relief from s1012IA specifies how often you must give a PDS to a member when making additional acquisitions for that member: see s1017CA, as inserted by paragraph 6(f) of ASIC Instrument 2022/497. This relief is discussed in Section G. RG 184.10 In the absence of our relief, complying with s1012IA for additional acquisitions of an accessible financial product would result in an oversupply of information to members. Page 6 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 6 B Product disclosure requirements Key points Section 1012IA of the Corporations Act is relevant to you, the trustee, where you allow a retail client to give instructions to acquire particular financial products through the superannuation entity. In the absence of our relief, s1012IA requires you to give the member of a superannuation entity the superannuation entity’s PDS and a PDS for any accessible financial product, as if the member had invested directly in each accessible financial product. The issuer of the accessible financial product must prepare the accessible product PDS. Some difficulties flow from the operation of s1012IA, such as: • duplication of information in the PDS prepared by you and the PDS prepared by the issuer of each accessible financial product; and • the legal incapacity of a trustee to prepare an accessible product PDS. The application of s1012IA without our relief leads to an oversupply of product information. This is because the provision requires you to give a member an accessible product PDS each time an accessible financial product is acquired via the member’s interest in the superannuation entity. Product disclosure under s1012IA RG 184.11 Trustees commonly offer a range of investment strategies to members of their superannuation funds. Members may select a strategy when investing their money. Selecting a strategy acts as a standing instruction to you by the member to follow that strategy until the member gives you a new instruction. RG 184.12 Some investment strategies include ‘particular financial products’ (e.g. a specified product such as XYZ Managed Fund) that will be acquired by you if you are instructed by your member to follow that strategy. These products are referred to in this guide as ‘accessible financial products’. RG 184.13 Where you will acquire accessible financial products under a particular investment strategy, s1012IA of the Corporations Act requires you to give members enough information about those products to help them to make an informed assessment of the investment strategies offered by you (s1012IA requirements). Page 7 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 7 When s1012IA applies RG 184.14 If you offer a choice of investment strategies to your members that include accessible financial products, you must comply with the s1012IA requirements as well as the general PDS requirements. Note: Section 1012IA applies only where a PDS would be required to be given if there was an equivalent direct acquisition of the accessible financial product. For example, if a PDS is not required to be given under s1012D(1) because the member has already received a PDS or you reasonably believe that the member has already received a PDS, s1012IA does not create a new obligation to give a member the same PDS. RG 184.15 For s1012IA to apply, two main elements must be present: (a) a member must instruct you to acquire an accessible financial product; and (b) you must acquire the product on behalf of the member. RG 184.16 There must be a connection between the ‘instruction’ from the member and the ‘acquisition’ by you of an accessible financial product. Whether you have been instructed to acquire an accessible financial product will depend on the surrounding circumstances, including the nature of the investment strategy made available by you. For example, if you offer ‘Cash’ as an investment option and you specify that, under that option, you will invest only in a particular deposit fund, s1012IA will apply to that fund because it is an accessible financial product. RG 184.17 If you offer a choice of investment strategies to your members that do not include accessible financial products, s1012IA will not apply to those strategies. For example, if you describe the investment options by investment styles (e.g. ‘Growth’, ‘Capital stable’, ‘Balanced’) or asset class (e.g. ‘Fixed interest’, ‘Cash’, ‘Listed managed fund’) and you do not identify particular products that will be acquired under those strategies, s1012IA will not apply because there are no accessible financial products included in these investment strategies. Note: If you reserve unfettered discretion to vary the amount invested in, or to replace, the accessible financial products included in an investment strategy without seeking new instructions from the member, s1012IA is unlikely to apply: see the definition of ‘custodial arrangement’ in s1012IA(1). Exceptions from s1012IA RG 184.18 Even where s1012IA applies on its face (i.e. because there is an instruction and acquisition of an accessible financial product), the resulting obligation to give a member a PDS is itself subject to some exceptions, particularly in s1012D. For example, you are not required to give a member an accessible product PDS under s1012IA if: (a) you know or believe on reasonable grounds that the member has already received an up-to-date PDS (see s1012D(1)); Page 8 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 8 (b) the member already holds a financial product of the same kind and you believe, on reasonable grounds, that the member has either received or knows that they have access to all the disclosure information required to be in an up-to-date PDS for that product, because they already have a PDS for that product plus additional information provided under ongoing disclosure and/or periodic reporting requirements (see s1012D(2)); or (c) because of s1013F, no information would be required to be in the PDS for an accessible financial product acquired through a superannuation entity (see s1012D(2B)). Disclosure documents required RG 184.19 Section 1012IA of the Corporations Act is designed to ensure that a member receives sufficient information about an accessible financial product included in an investment strategy offered by you. This information must be of an equivalent standard to that which the member would receive if they invested directly in that product. RG 184.20 The disclosure requirements that apply to an accessible product PDS will depend on the nature of the accessible financial product. In some situations, the shorter PDS requirements will apply, such as where the accessible financial product is a simple managed investment scheme (see reg 7.9.11W and Sch 10E to the Corporations Regulations) or for most types of accumulation style superannuation funds (see reg 7.9.11O and Sch 10D to the Corporations Regulations). In this situation, the accessible product PDS must set out prescribed content. RG 184.21 If the shorter PDS requirements do not apply and a ‘long-form PDS’ is required for an accessible financial product, then the PDS must satisfy the general PDS requirements. This includes satisfying the test in s1013D: the PDS must contain information that a person would reasonably require for the purpose of making a decision, as a retail client, as to whether to acquire the financial product. RG 184.22 Under the law without modification, if the selected strategy includes an accessible financial product, you must give a member at least two separate disclosure documents (one prepared by you and one prepared by the issuer of the accessible financial product), even though some of the same information is likely to be included in both documents. RG 184.23 You must prepare and provide a PDS about investment in the superannuation entity (i.e. about the superannuation fund—the ‘superannuation entity’s PDS’). You must also give a member an accessible product PDS for any such product that you will acquire at their request before you acquire that product: s1012IA(2). This ‘accessible product PDS’ must be prepared by the issuer of the product: see s1013A. Page 9 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 9 Compliance issues RG 184.24 There is likely to be an overlap between some of the information in your superannuation entity’s PDS and in the accessible product PDS prepared by the product issuer. Under s1012IA, you must give both disclosure documents to a member before you acquire an accessible financial product as instructed by the member. This means that a member will be given similar disclosure in two separate documents, which may be confusing. This duplication of information is not the only compliance issue. Table 1 summarises what we believe are the main compliance issues. Table 1: Practical compliance issues that arise from complying with the general PDS requirements and s1012IA Requirements of the law without modification Issue The same PDS content test applies both to your superannuation entity’s PDS and to the accessible product PDS, which means that some of the same information about accessible financial products will be included in both documents. Overlap and/or duplication of information You must give a member a copy of the accessible product PDS that has been prepared by the product issuer. You do not have the option to prepare this PDS and tailor the information about accessible financial products to the needs of your members as you see fit. No opportunity to tailor information You must give a member a PDS before each acquisition of an accessible financial product, which means that every time additional money is invested in the product at the member’s request, the obligation to give a member a PDS is triggered. Oversupply of information The law does not provide a simple mechanism for you to provide updated disclosure information about an accessible financial product to a member, which means that the member may not always have accurate information about the products that you have been instructed to acquire. Updating information Page 10 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 10 C Relief available Key points To overcome problems flowing from the operation of s1012IA of the Corporations Act, we have granted relief to trustees: see ASIC Instrument 2022/497. Among other things, this instrument: • modifies the PDS requirements in Ch 7 of the Corporations Act to give three options for providing PDSs for accessible financial products; • provides relief to streamline the PDS requirements where an additional investment is made in an accessible financial product under an investment strategy that the member has instructed you to follow; and • provides ancillary relief from the significant event notice requirements. Relief for providing PDSs for accessible financial products RG 184.25 We have provided relief to give you three additional options for providing product disclosure information about accessible financial products: see Table 2 and ASIC Instrument 2022/497. RG 184.26 Options 1 and 3 limit the information about an accessible financial product that you must include in your superannuation entity’s PDS, provided that you also give a member an accessible product PDS for each product included in their selected investment strategy. Option 2 allows you to prepare and include product disclosure information about an accessible financial product in your superannuation entity’s PDS (i.e. in an ‘integrated PDS’). RG 184.27 Options 1 and 2 also modify the law to allow you (rather than the product issuer) to prepare the product disclosure information about an accessible financial product. You may then give this information to members in a separate accessible product PDS (under Option 1) or as part of an integrated PDS that you prepare (under Option 2). The options allow you to ‘tailor’ the content of the product disclosure information about an accessible financial product so that it addresses the information needs of your members. Note: An integrated PDS or accessible product PDS must satisfy the general PDS requirements (including the shorter PDS requirements, where applicable). However, s1013F allows you to decide what information to include in the PDS, taking into account that the accessible product is acquired through a superannuation fund. Section 1013F allows information to be omitted from a PDS if it would not be reasonable for a retail client considering whether to acquire the product to expect to find the information in the PDS (e.g. as they acquire through a superannuation fund rather than directly). Page 11 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 11 RG 184.28 Table 2 summarises the options that are available under our relief. Table 2: Forms of relief under ASIC Instrument 2022/497 Type of relief Disclosure documents required Reference Option 1: Trustee’s accessible product PDS Superannuation entity’s PDS (prepared by you) plus an accessible product PDS (also prepared by you) See Section D Option 2: Trustee’s integrated PDS Integrated PDS that includes information about accessible financial products (prepared by you) See Section E Option 3: Issuer’s accessible product PDS Superannuation entity’s PDS (prepared by you) plus an accessible product PDS (prepared by the product issuer) See Section F Choosing an option RG 184.29 You cannot use a different disclosure option for different accessible financial products included in the same investment strategy. You can use Option 1 for some investment strategies and Option 3 for other strategies. However, if you choose Option 2, you must include disclosure about all your investment strategies in the integrated PDS. You cannot ‘mix and match’ between Option 2 and the other options. RG 184.30 You do not have to use our relief. You may decide to comply with the law without modification. If so, you must comply fully with the general PDS requirements (as they relate to your superannuation entity’s PDS), as well as the s1012IA requirements (which will require you to ‘pass on’ the issuer’s accessible product PDS for any such products). Note: If circumstances allow, you may be able to rely on the exceptions in s1012D: see RG 184.18. Delivering the PDS Who must be given a PDS? RG 184.31 Section 1015C(1)(a) requires that a PDS be given to a ‘person or the person’s agent’. The restriction in s1015C(3), about the capacity in which a person’s agent may act, applies. The PDS must be given to a person or their agent: (a) personally; or (b) by being sent to an address (including an electronic address) or fax number nominated by the person or their agent. Note 1: In practice, we understand members of a superannuation fund are typically asked to nominate an address for the delivery of PDSs and other disclosure information. This might occur on joining the fund or on selecting an investment strategy or at some other time (e.g. such as a check-up on preferred addresses). Note 2: An example of an electronic address is an email address. Page 12 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 12 Who may deliver the PDS? RG 184.32 You are responsible for giving the required PDS(s) to the member: see s1012IA, including s1012IA as modified by our relief. You may arrange for a third party (e.g. employer, adviser) to actually deliver the PDS to a member. However, you remain responsible for delivery of the PDS even if you have arranged for someone else to deliver the PDS. One option for monitoring delivery may be to have an arrangement with the third party that includes warranties about delivery from the third party, and to combine this with actual checks from time to time to ensure that PDSs are being delivered. This combination should give you comfort that the necessary disclosure documents are being delivered by the third party on your behalf. Note: You may also use a third party to deliver ongoing disclosure to members (e.g. any additional disclosure required under s1017CA): see ASIC Instrument 2022/497 and RG 184.138–RG 184.144. How can a PDS be delivered? RG 184.33 The ordinary requirements about delivery of PDSs (i.e. s1015C of the Corporations Act) apply to our relief, including options to provide the PDS in electronic form: see s1015C(1)(b) and reg 7.9.02B. The available electronic delivery options include: (a) sending the PDS in electronic form to an electronic address nominated by a member (s1015C); and (b) making the statement available in a way agreed to by the member (e.g. through a member-only secure area of your website) (reg 7.9.02A). Note: See also RG 184.36. RG 184.34 Where a member has agreed to receive a PDS in electronic form, you might choose to give a member different PDSs in ‘split’ form (i.e. some in electronic form and some in hard copy). RG 184.35 The combination of flexibility about the form and how a PDS may be delivered, will allow you to put in place arrangements to provide upfront and any ongoing disclosure in compliance with s1012IA to members in an efficient and timely manner. This should minimise situations where an instruction from a member cannot be acted on until further disclosure is made to the member in compliance with s1012IA. RG 184.36 Section 1015C(1)(b) allows a PDS to be given in printed or electronic form. For example, a PDS might be given to a member as a file on a CD or DVD, or included as an attachment to an email sent to a nominated electronic address. In addition, reg 7.9.02A permits a PDS to be delivered by making it available in any way that: (a) is agreed to by the member or their agent; and Page 13 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 13 (b) allows you to be satisfied, on reasonable grounds, that the member or their agent has received the PDS. RG 184.37 Agreements with members on other forms of delivery opens up flexibility in the way PDSs may be delivered (e.g. such as use of hyperlinks or online member facilities). RG 184.38 Where our relief will mean that you will give a member more than one PDS, you may provide each PDS either in electronic or hard copy form. For example, under Option 1, you might choose to provide your superannuation entity’s PDS in hard copy and any accessible product PDS in electronic form (e.g. where a member has nominated an electronic address). When must a PDS be delivered? RG 184.39 You must give a PDS to a member before you acquire an accessible financial product as instructed by that member: see s1012IA(2). As a general rule, an accessible product PDS or information about an accessible product contained in an integrated PDS must be given to a member before you act on an instruction from the member to acquire that accessible financial product: see s1012IA(2). RG 184.40 There is a key exception to the general rule— namely, where the acquisition of the accessible financial product is ‘time critical’. The time critical exception applies where a member gives an instruction to you to acquire an accessible financial product immediately or by a specified time: see s1012G, as modified by s1012IA(4). In these circumstances, you may acquire the accessible financial product before the accessible product PDS for that product or, where relevant, the integrated PDS is given to the member. In this situation, the PDS must be given as soon as practicable after the product is acquired but not later than the fifth day after the day on which the product was acquired. RG 184.41 We understand that trustees are not always required to deliver the superannuation entity’s PDS to a person before the person becomes a member of the superannuation fund. In some circumstances, the superannuation entity’s PDS can be given to a person after the person joins the superannuation fund (e.g. if the person is a standard employer-sponsored member): see s1012F. Note: Section 1012F allows the superannuation entity’s PDS to be given to a member up to three months after the member acquires the superannuation product (i.e. joins the superannuation fund). RG 184.42 Trustees may develop different practices for delivering disclosure about accessible financial products to applicants or members of the superannuation fund before the accessible products are acquired, depending on when they Page 14 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 14 are required to deliver the superannuation entity’s PDS. These may include providing information about the accessible financial product: (a) before a person becomes a member of the superannuation fund in an accessible product PDS or in an integrated PDS; or (b) after a person becomes a member of the superannuation fund in an accessible product PDS (where an integrated PDS is not used) or in an integrated PDS (unless a current integrated PDS has already been provided to the member). Note: How you deal with any money contributed on the member’s behalf until you receive the member’s instruction (if any) will depend on your fund rules. Typically, we understand that the money would be invested in your default investment strategy. RG 184.43 Whatever practices you may adopt for the delivery of product disclosure, you will need to put in place procedures for delivery of product disclosure about accessible financial products that will mean that members are given the PDS before an interest in the accessible financial product is acquired (subject to application of the time critical exception). Relief for additional acquisitions RG 184.44 Your obligation to give a member a PDS before each acquisition of an accessible financial product is an ongoing obligation. If you acquire the same product more than once at the request of a member, the law (without our relief) requires you to give the member a PDS for each additional acquisition. We consider that every occasion money is invested in a particular financial product (after the initial investment) will be an additional acquisition of that product. For example, in the case of a managed investment scheme, each additional interest is considered to be a separate product. A member’s selection of an investment strategy acts as a standing instruction to you to make additional acquisitions on their behalf. RG 184.45 Our relief allows you generally to rely on product information that you have previously provided to the member (e.g. at the time of the initial acquisition). However, where you continue to make additional acquisitions for a member, this relief is subject to a condition requiring you to update PDS information if there has been a material adverse change to a matter or a significant event adversely affecting a matter required to be in the PDS immediately before the change or event occurs, unless the member already has the relevant information: see s1017CA(1)(b) as inserted by paragraph 6(f) of ASIC Instrument 2022/497. This relief for additional acquisitions is explained in Section G. Note: This relief is available independently from the disclosure relief described in Sections D, E and F. Page 15 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 15 How to comply with our relief RG 184.46 Table 3 sets out the steps you might want to go through when deciding how to comply with the law as modified by our relief. Table 3: How to comply with the law as modified by ASIC Instrument 2022/497 Step 1 Identify which investment strategies involve the acquisition of accessible financial products. Step 2 Prepare product disclosure information and/or obtain an accessible product PDS for any such products identified in Step 1. Note 1: Under Option 1 (trustee’s accessible product PDS) and Option 2 (trustee’s integrated PDS), you will prepare the product disclosure information about any accessible financial products. Note 2: Under Option 3 (issuer’s accessible product PDS), the product issuer will prepare the product disclosure information about any accessible financial products. Step 3 Give a member a copy of the integrated PDS or the relevant accessible product PDS before acting on an instruction by that member to follow an investment strategy that involves the acquisition of that product. The PDS may be given at the request of the member or, if the member does not request the PDS, you must make arrangements to give to the member the relevant PDS (if any) before implementing the member’s selected strategy. Note: See RG 184.31–RG 184.43. Step 4 (only if you acquire the same product more than once for a member) If you acquire an accessible financial product for the same member more than once (e.g. by following that member’s selected investment strategy) and you become aware that there has been a material adverse change or a significant event adversely affecting a matter required to be in the PDS immediately before the change or event occurs, you must arrange to give to that member updated information and a chance to select a different investment strategy: see Section G. Page 16 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 16 D Option 1: Trustee’s accessible product PDS Key points Option 1 allows you to prepare the superannuation entity’s PDS and the accessible product PDS. The superannuation entity’s PDS will contain the information that is normally required for a superannuation entity (the shorter PDS requirements may apply), plus general information about each accessible financial product. If you rely on this option, the superannuation entity’s PDS must include a statement to the effect that a member has the right to obtain a separate accessible product PDS for each such product. You may elect to prepare an accessible product PDS that covers two or more of these products. Option 1 allows you to tailor information in an accessible product PDS to minimise repetition and duplication. It also allows you to adapt information about each accessible financial product so that it is relevant and meaningful for each recipient who is or will become a member of the superannuation entity. How Option 1 works RG 184.47 Under Option 1, you are responsible for preparing and delivering all of the product disclosure information about accessible financial products to your members. Table 4 summarises Option 1. RG 184.48 There are two aspects to the relief we give under this option. There is relief to: (a) limit the information that you must include in your superannuation entity’s PDS, on the basis that you will be giving members more information about an accessible financial product in the accessible product PDS; and Note: This relief also applies to Option 3, but does not apply to Option 2. (b) allow you to prepare the accessible product PDS, even though you are not the product issuer, and to tailor the information in the PDS to better suit your members. Note: Option 2 also allows you to prepare the disclosure information about an accessible financial product (i.e. in an integrated PDS). Page 17 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 17 Table 4: Overview of Option 1 Who must prepare the PDS? You must prepare your superannuation entity’s PDS. You must prepare the accessible product PDS. Is there a minimum PDS content requirement? Yes. Your superannuation entity’s PDS must meet the general PDS requirements, including, where applicable, the shorter PDS requirements. The general PDS requirements have been modified by this relief to minimise duplication of information about accessible financial products: see RG 184.56. The accessible product PDS prepared by you must satisfy the general PDS requirements as though the product will be offered directly to a retail client. Note: Section 1013F allows you to tailor the content of the accessible product PDS: seeRG 184.57. Who must give the PDS to the member? You are responsible for giving a member your superannuation entity’s PDS. If a member requests an accessible product PDS, you are also responsible for giving that PDS to the member. Note: Before acting on a member’s instruction to acquire an accessible financial product, you must give the member the relevant accessible product PDS. You may be satisfied that the member has received the relevant accessible product PDS if you have an appropriate arrangement in place with a third party to deliver the PDS on your behalf. Disclosure documents required under Option 1 RG 184.49 Under this option, you will give a member at least two disclosure documents prepared by you—your superannuation entity’s PDS plus one or more accessible product PDSs. This means that a member may be given two or more disclosure documents at different times (i.e. your superannuation entity’s PDS and, later, on request, one or more accessible product PDSs). RG 184.50 You may choose to prepare a separate accessible product PDS for each such product, or an accessible product PDS that covers several products that are available as part of the same investment strategy. This approach means that you do not have to provide members with disclosure about investment strategies that do not interest them. RG 184.51 You must give a copy of your accessible product PDS free of charge to anyone who asks for it. If a member gives you an instruction to follow a particular investment strategy and they have not requested the relevant accessible product PDS, you must give them the relevant PDS before you acquire the product on their behalf. Note: As part of compliance with the general PDS requirements, you should advise members that there may be some time gap between them giving you an instruction to acquire an accessible financial product and you acquiring the product in response to their instruction if you are required to give additional disclosure before acquiring the product. Page 18 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 18 RG 184.52 By including the requirement that an accessible product PDS be given to a member ‘on request’, our relief limits the number of disclosure documents that you must provide to a member. The relief allows you to give members only those disclosure documents that are relevant to the accessible financial products included in their preferred investment strategy, rather than giving them information about all the available options (including an accessible product PDS for each such product included in any investment strategy). RG 184.53 In practice, we expect that you will give most members several disclosure documents at different times. Initially, all members will be given your superannuation entity’s PDS. At a later time (but before you acquire any accessible financial products as instructed by a member), you will give the member a copy of the relevant accessible product PDS for each such product included in the selected investment strategy. Note: You may include more than one accessible financial product in an accessible product PDS: see RG 184.60. RG 184.54 Members will have the opportunity to ask for more information about investment strategies that include accessible financial products before they instruct you to follow such a strategy. However, if they do not ask for this information, you must be satisfied that the member has been given all the relevant product disclosure information before implementing the selected investment strategy and acquiring any accessible financial products for a member. RG 184.55 The mechanisms for delivering the PDS under this option are explained at RG 184.32–RG 184.43. Content of the superannuation entity’s PDS RG 184.56 Our relief allows you to modify your superannuation entity’s PDS so that it does not include all the information about accessible financial products that would be required under the general PDS requirements: see s1013FB(4)(a), as inserted by paragraph 6(e) of ASIC Instrument 2022/497. Under this relief, your superannuation entity’s PDS must include, at a minimum: (a) the information about the superannuation product that is required by the PDS requirements in Div 3 of Pt 7.9 of the Corporations Act, including (where applicable) the shorter PDS requirements; (b) the information that a person would reasonably require as a retail client to: (i) identify what accessible financial products (if any) are included in each investment strategy; (ii) understand the investment strategy under which the accessible financial products may be acquired; Page 19 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 19 (iii) work out whether to ask for further information about an accessible financial product; and (c) a statement that you will give to a person, on request and free of charge, an accessible product PDS for each such product (i.e. under this option, the accessible product PDS prepared by you; under Option 3, the issuer’s accessible product PDS)—see s1013FB(3)(c), as inserted by paragraph 6(e) of ASIC Instrument 2022/497. RG 184.57 Both your superannuation entity’s PDS and the accessible product PDS must satisfy the general PDS requirements (as modified by our relief). However, s1013F allows you to ‘tailor’ the PDS content, taking into account that the product is acquired through a superannuation fund, rather than directly as a retail client. As part of compliance with the general PDS requirements, you should consider whether your superannuation entity’s PDS needs to explain any differences there may be between direct acquisition of accessible financial products and acquisition of accessible financial products through the superannuation fund. RG 184.58 While our relief modifies the information you need to include in your superannuation entity’s PDS about accessible financial products, you must still provide sufficient information about the available investment strategies under which the accessible financial products may be acquired. This information needs to be in your superannuation entity’s PDS because it is relevant to the member’s decision whether to invest in the superannuation fund. RG 184.59 Providing sufficient information about the available investment strategies means you need to include enough general information to enable a member to understand the key features of the available investment strategies (including the risks and benefits) and to decide what strategy or strategies they are interested in. Note: Your superannuation entity’s PDS will need to include full disclosure about investment strategies with no accessible financial products and about the default investment strategy. Content of the accessible product PDS More than one accessible financial product RG 184.60 Under this option, you have the flexibility to prepare a separate accessible product PDS for each such product or to include more than one product in an accessible product PDS. You might choose to include information about all of the accessible financial products included in the same investment strategy in the same accessible product PDS. Page 20 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 20 Standard of disclosure RG 184.61 You must prepare the accessible product PDS as if you were the issuer of the accessible financial product. You will be responsible for the disclosure information about the accessible financial product in the accessible product PDS because you will be considered to be the issuer of the product under s1013A. As a general rule, the accessible product PDS must provide the same standard and level of information as is required in a PDS for a product where a retail client would make a direct investment. RG 184.62 Although the accessible product PDS must satisfy the general PDS requirements (as modified by our relief), s1013F allows you to ‘tailor’ the PDS content taking into account the product is accessed through a superannuation fund with its own PDS. You might decide to modify or exclude information that would be relevant to a retail client acquiring the accessible financial product directly, because the information is not relevant to a member of a superannuation fund. RG 184.63 All of the PDS requirements in Pt 7.9 will apply to the accessible product PDS, including the ‘reasonable steps’ defence in s1021E(3) of the Corporations Act. However, we consider that you will only be able to rely on this defence where you have made ‘reasonable inquiries’ to ensure that information about the accessible financial products meets the PDS content requirements in s1013C. If you have an arrangement in place with the product issuer as described in RG 184.66–RG 184.68, we consider that you will have made ‘reasonable inquiries’. RG 184.64 The standard of disclosure that you must meet for the accessible product PDS is the same as the standard of disclosure that the issuer’s accessible product PDS must meet. Therefore, we expect this option to result in an equivalent level of disclosure about an accessible financial product as would be provided under s1012IA without any modification. Obtaining information about the accessible financial product RG 184.65 You will be considered as the responsible person for the accessible financial product under s1013A. You will be required to include information to the extent that the information is actually known to you: see s1013C(2). Where you are preparing an accessible product PDS for the first time, we consider that you will, at a minimum, have actual knowledge of all of the information included in the product issuer’s current accessible product PDS (if there is one) because this is consistent with good practice (as described in RG 184.66). RG 184.66 To prepare an accessible product PDS for the first time, it would be good practice for you to: (a) obtain a copy of the issuer’s current PDS for that product (i.e. a PDS for which there is a current ‘in use’ notice under s1015D). If the product issuer has not prepared a PDS, you should obtain whatever product Page 21 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 21 disclosure information is publicly available (e.g. there may be an information memorandum); (b) enter into an arrangement with the product issuer about the currency of the product disclosure information; and (c) check that you have no reason to believe that the product disclosure information obtained under RG 184.66(a) or RG 184.66(b) is not up to date. Where you have followed this procedure, we consider that you will have done all that can be expected as a minimum to prepare the content of an accessible product PDS. RG 184.67 You will also need to have procedures in place that give you confidence that your accessible product PDSs are up to date on an ongoing basis. Again, it would be good practice for you to have arrangements in place with the product issuer to ensure that you will be advised of any material adverse changes to, or significant events that adversely affect, a matter required to be in an accessible product PDS immediately before the change or event occurs. RG 184.68 These arrangements should include being provided copies of any supplementary PDSs or new PDSs prepared by the product issuer for the accessible financial product. The precise terms of any arrangement with the product issuer will be subject to commercial negotiation between you and the product issuer. We have deliberately not prescribed the terms of these arrangements to allow you this flexibility. Providing relevant information in an accessible product PDS RG 184.69 In deciding what information to include in the accessible product PDS, you should remember that the member will acquire the financial product through the superannuation fund, and not directly. Depending on the particular circumstances, information included in a PDS provided to a retail client who may acquire the product directly may not be relevant to members of a superannuation fund who will acquire the product indirectly. RG 184.70 Section 1013F enables you to tailor information about the accessible financial product to the needs of your members. For example, you might decide to omit information about the accessible financial product that is not relevant to members who have an interest in the product via the superannuation entity (e.g. dispute resolution, voting rights, cooling-off periods) or include information that is of greater relevance to members of a superannuation fund (e.g. investment policy and returns). Page 22 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 22 Prescribed PDS content: Fees and costs RG 184.71 You must meet certain requirements for disclosing fees and costs in PDSs in relation to: (a) the fees and costs you charge relating to membership of your superannuation fund (i.e. the superannuation product); and (b) the fees and costs (if any) the issuer of the accessible financial product separately charges, to the extent that these fees and costs will be payable by a member of a superannuation fund (i.e. if the product is a managed investment product). RG 184.72 The trustees of most superannuation entities must comply with the shorter PDS requirements, which include certain fee and cost disclosure requirements. The shorter PDS requirements will also be relevant to an accessible financial product, such as where an accessible financial product is a simple managed investment scheme. RG 184.73 Otherwise, a superannuation entity’s PDS or an accessible product PDS will be caught by the fees and costs disclosure requirements in Sch 10 to the Corporations Regulations: see regs 7.9.16J to 7.9.16O. These requirements are modified by ASIC Corporations (Disclosure of Fees and Costs) Instrument 2019/1070, which clarifies certain fee and cost disclosure requirements for PDSs and periodic statements. RG 184.74 The relief given from s1013D in ASIC Instrument 2022/497 means that your superannuation entity’s PDS does not have to include the fees and costs template and related additional information for the accessible financial products—because this information will be in the relevant accessible product PDS. Note: In this option, the superannuation entity’s PDS and the accessible product PDS are standalone disclosure documents. The PDS content requirements (as modified by our relief) separately apply to each PDS. RG 184.75 Because fees and costs information will be in separate documents, to minimise confusion, your superannuation entity’s PDS needs to make it clear that to understand all of the fees payable by a member who selects a particular strategy, the member must look at both your superannuation entity’s PDS and the relevant accessible product PDS. Note: We have provided additional guidance in Regulatory Guide 97 Disclosing fees and costs in PDSs and periodic statements (RG 97). RG 184.76 We have given relief to limit the information that must be in your superannuation entity’s PDS, where that information is required also to be in the accessible product PDS. Our relief aims to reduce repetition and minimise duplication across the required PDSs. You can comply with the Page 23 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 23 fees and costs disclosure requirements by including the fees and costs template and related additional information for: (a) the superannuation fund in your superannuation entity’s PDS; and (b) the accessible financial product in the relevant accessible product PDS. RG 184.77 Where additional fees and costs are payable if an accessible financial product is acquired, your superannuation entity’s PDS needs to make it clear to members that to understand all of the fees and costs that might be payable under a particular investment strategy, the member must look at both the superannuation entity’s PDS and the relevant accessible product’s PDS. Where product-specific fees are payable, your superannuation entity’s PDS should include specific cross-references to the relevant fees and costs template in the accessible product PDS. Note: We have provided additional guidance on disclosure of fees and costs in RG 97. Page 24 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 24 E Option 2: Trustee’s integrated PDS Key points The second option under ASIC Instrument 2022/497 for providing PDSs to members allows you to prepare an integrated PDS, or integrated PDSs, that combine the product disclosure information for the superannuation entity and each accessible financial product. Under this option, an integrated PDS must comply with the PDS requirements for the superannuation entity and each accessible financial product. The shorter PDS requirements may apply to the superannuation entity and/or some or all of the accessible financial products. An integrated PDS must contain the information that a person would reasonably require as a retail client to understand the investment strategy under which each accessible financial product is acquired. This option allows you to combine product disclosure information in a way that removes repetition and duplication. How Option 2 works RG 184.78 Under this option, you are responsible for preparing and delivering all of the product disclosure information about accessible financial products to your members. This option allows you to prepare the product disclosure information about an accessible financial product, even though you are not the product issuer, and tailor the information to suit your members. RG 184.79 Under this option, you must include the product disclosure information about an accessible financial product and the information required to be in your superannuation entity’s PDS in the same PDS (integrated PDS): see s1013FB(5), as inserted by paragraph 6(e) of ASIC Instrument 2022/497. We expect that your integrated PDS will work as one coherent document containing information about the superannuation product and any accessible financial products included in an investment strategy. Your integrated PDS may be in the form of a multi-part PDS: see s1013L. RG 184.80 When you prepare an integrated PDS, it must contain the information about the superannuation fund and the information about each accessible financial product that is required by the PDS requirements under Div 2 of Pt 7.9 of the Corporations Act: see s1013FB(6)(a), as inserted by paragraph 6(e) of ASIC Instrument 2022/497. This will include the shorter PDS requirements to the extent that the requirements apply to the superannuation entity and any accessible financial product, such as a simple managed investment scheme. In addition, the integrated PDS must contain the information that a person would reasonably require as a retail client to understand the investment Page 25 REGULATORY GUIDE 184: Superannuation: Delivery of product disclosure for investment strategies © Australian Securities and Investments Commission September 2022 Page 25 strategy under which the accessible financial product may be acquired: see s1013FB(6)(b), as inserted by paragraph 6(e) of ASIC Instrument 2022/497. RG 184.81 Your integrated PDS must comply with the general PDS requirements. When you use an integrated PDS, we consider that there is one PDS for the purposes of the ‘in use’ notice to ASIC under s1015D(2). Table 5 summari