3.3.1 The requirement to be licensed

Any person who is “carrying on a financial services business”, which includes the kind of activity that constitutes “dealing in a financial product”, or “providing a financial service”, MUST hold an appropriate AFS Licence, unless an exemption under the Act applies, or administrative relief is afforded by an ASIC Instrument.

The limited asset classes that have been afforded administrative relief [ASIC Instrument or Class Order] can generally be characterized as “non-speculative” and for “personal use”.

Section 911A states:

“Need for an Australian Financial Services Licence

  1. Subject to this Section, a person who carries on a financial services business in this jurisdiction must hold an Australian financial services licence covering the provision of the financial services…
  2. However, a person is exempt from the requirement to hold an Australian financial services licence for a financial service they provide in any of the following circumstances:

    1. the person provides the service as a representative of a second person who carries on a financial services business and who:

      1. holds an Australian financial services licence that covers the provision of the services; or
      2. is exempt under this subsection from the requirement to hold an Australian financial services licence that covers the provision of the services; …”.

Section 911D states:

When a financial services business is taken to be carried on in this jurisdiction

  1. For the purposes of this Chapter, a financial services business is taken to be carried on in this jurisdiction by a person if, in the course of the person carrying on the business, the person engages in conduct that is:

    1. intended to induce people in this jurisdiction to use the financial services the person provides; or
    2. is likely to have that effect;

    whether or not the conduct is intended, or likely, to have that effect in other places as well.

  2. This section does not limit the circumstances in which a financial services business is carried on in this jurisdiction for the purposes of this Chapter”.