Australia: Financial services disclosure by electronic means – will the law finally catch up?

Last Updated: 7 April 2015
Article by Jenny Willcocks and Maggie Pascoe

Most Read Contributor in Australia, September 2016

Under current laws, with some limited exceptions, the default method of delivery of disclosure materials1 required under Chapter 7 of the Corporations Act 2001 (Cth) (Act) is in printed form, either personally or to a member's address. An exception remains concerning the posting of fund annual reports online (following the completion of some simple steps), and use of a standing facility for members to be able to see a variety of transactions. While delivery to an electronic address is allowed, members must actively choose to have disclosure materials delivered to a nominated email address - it can't just automatically occur.


In November 2014, ASIC released a discussion paper entitled "Consultation Paper 224: Facilitating electronic financial services disclosure" which is available here. This discussion paper sought feedback to a number of proposals. The consultation period closed in January 2015, and ASIC is expected to release further information after Easter. The discussion paper was accompanied by a proposed revised Regulatory Guide 221 "Facilitating electronic financial services disclosure", which describes the way forward and provides valuable insight into how ASIC is approaching this issue. A copy of the proposed revised Regulatory Guide 221 is available here...

Proposed reforms

Some of ASIC's proposed reforms include:

  1. Giving product providers an additional option for electronic delivery of disclosure documents (i.e. via the fund's website) and notify members (ie via email, or perhaps by other means, such as SMS) that the disclosure document is available and how to access it.
  2. Making it clear that if the product provider has an email address for a member, they do not need the consent of the member to use that address to deliver disclosure documents electronically.
  3. Facilitating the use of more innovative product disclosure statements (perhaps even interactive ones) by proposing relief from the need to comply with certain requirements of the Act.

ASIC may implement all or a combination of these proposed reforms or maintain the status quo.

The proposal for relief in relation to innovative product disclosure statements

ASIC's proposals in relation to the use of more innovative and interactive product disclosure statements include:

  • allowing different printed and electronic versions of a product disclosure statement to be given;
  • relief from the shorter product disclosure statement regime, provided the provider communicates the same information that is required by that regime; and
  • relief from the requirement for certain language to be included on the cover or "at or near the front" of a product disclosure statement so that the language can equally apply to a more innovative and interactive product disclosure statement.


The proposals put forward by ASIC (including the proposals for relief) are welcome, and signal an increasing acceptance of the importance of the use of technology in disclosure and member communications, and recognising the need for more flexibility, efficiency and responsiveness in this area.

The changes, if implemented will need to be considered in the context of any privacy and other related issues, and the appropriateness of such methods of delivery based on a fund's membership profile. Issues of IT security, risk management and internal controls will take on an increasing importance should ASIC's approach or the law change, and trustees seeking to avail themselves of any changes will need to carefully consider these matters before embarking on any wholesale changes to their procedures.

We are continuing to follow developments in this area with interest and will update you when further information is released.


1This includes financial services guides, product disclosure statements, statements of advice, member/periodic statements, disclosure of significant events and material changes.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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