If you provide a designated service, your customer (for the purpose of the Act) will be the person identified in the column of table 6 titled ‘customer of the designated service’.

The facts of each case will determine who your customer is. 

We’ll regulate businesses that provide services to an external customer who is a separate legal person to the business. You’re also not providing a designated service where you provide the service to a member in your business group. 

Learn more about reporting groups.

Provided in the course of carrying on a business (all items)

A service is only a designated service under item 6 if it’s provided ‘in the course of carrying on a business’. 

A business is a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis. 

We consider this to mean that a service can be provided in the course of business even if the service is any of the following:

• not the only service provided by the business
• only provided once. 

The term ‘in trade or commerce’ includes operations of a commercial character. Indicators of operations of a commercial character include organising activities in a business-like manner, the keeping of books and records and the use of a system to keep books or records.

We consider that a service will be provided in the course of a business where it’s provided by a business for a fee or for free to otherwise further that business. This is important as the fact that a person is receiving a service for free, or at a reduced price, will not necessarily lower the ML/TF risk of providing the service. 

As table 6 is profession neutral, this applies regardless to the type of business in question. 

Not pursuant to or resulting from a court or tribunal order (items 1 and 2)

Items 1 and 2 of table 6 provide an exception that a designated service isn’t provided where a transaction to sell, buy or transfer real estate, a body corporate or a legal arrangement is pursuant to, or resulting from, an order of a court or tribunal. 

The transaction must take place to comply with or give effect to an order that has been made by a court or tribunal. 

This exception will only apply to services that are carried out after the court order has been made. It doesn’t apply to services that are provided to obtain a court or tribunal order, if those services fall within the scope of table 6. 

Legal dispute resolution services will generally not fall under the scope of table 6, as they’ll often: 

• not constitute assistance to the client that directly advances a relevant transaction
• only relate to determining legal questions on matters that have already occurred, not matters that are in progress or will occur in the future.

Example: lawyer helping client claim rights over a real estate transaction

A lawyer is taking steps to dissolve a marriage. As part of this service, the lawyer provides advice to the husband in relation to real estate that was purchased during their marriage. 

They’re not providing a designated service under item 1 of table 6 (transaction to transfer property) as there is no ongoing or future transaction. The only relevant transaction (to originally purchase the property) has already been completed. 

The lawyer, following mediation between the parties, drafts a consent order to settle the ongoing litigation. This includes provisions related to the transfer of real estate to their client following the dissolution of the marriage. 

This is also not a designated service under item 1 of table 6, as all of the following apply:

• there’s no transaction at this point
• this doesn’t directly advance the planning of a transaction to transfer real estate
• only influences a possible future conveyancing process (which would directly advance this transaction) by determining the legal rights of the parties to the real estate. 

If the consent order is made by a court, the transfer of the property by a conveyancer pursuant to this order isn’t providing a designated service. 

If no court or tribunal order was made, and the property was instead transferred to their client pursuant to a binding financial agreement agreed by the parties, then:

• if the family lawyer provides work in drafting and executing the binding financial agreement, this wouldn’t be regulated, as this is not performed in connection to a transaction
• the conveyancer’s services to directly advance the transfer of the property pursuant to the agreement would be regulated under item 1 of table 6.

Body corporate or legal arrangement (items 2, 4–5, 6–9)

Table 6 regulates certain services related to a body corporate or legal arrangement (items 2, 4 and 6–9) or shelf companies (item 5). 

‘Body corporate’ refers to a person, association or group of persons legally incorporated into a corporation. This includes a shelf company, which is a company that has been registered with Australian Securities and Investments Commission (ASIC) but hasn’t traded or engaged in any business activity, and doesn’t have any assets or liabilities. 

Legal arrangement means any of the following: 

• an express trust
• a partnership
• a joint venture
• an unincorporated association
• an arrangement, including a foreign arrangement such as a fiducie, treuhand or fideicomiso, similar to an arrangement mentioned above. 

An express trust includes a trust expressly or intentionally created in writing by a settlor. This doesn’t include trusts created solely by operation of law (not in writing) and explicitly doesn’t include a testamentary trust. 

This means that the drafting of a will, and the subsequent creation of a testamentary trust, won’t constitute a designated service under items 2, 4–5 and 6–9.

Real estate (item 1)

The term ‘real estate’ covers real property ownership and some ownership-like leases. It refers to an interest in land within Australia where a person (including both individuals and non-individual persons) has any of the following:

• ‘fee simple interest’ – which is the usual form of land ownership in most of Australia
• leasehold interest of more than 30 years
• land use entitlement – an entitlement to occupy land conferred through ownership of shares in a company, or units in a unit trust scheme, or a combination of a shareholding or ownership of units together with a lease or licence.

Examples include: 

• 99-year leases in the Australian Capital Territory
• crown and pastoral leases
• residential site agreements where the interest in that land is longer than 30 years.

‘Real estate’ also covers an interest, estate, right or entitlement in land in a foreign country that’s equivalent to one of the above interests or otherwise confers ownership rights. While the ‘real estate’ can be located in a foreign country, you will only have obligations under the Act if the designated service has a geographical link to Australia. 

Designated services relating to real estate regulate the sale, purchase and transfer of these interests whether or not there was any payment or other consideration involved in the transfer. For example, a conveyancer who assists a parent to transfer ownership of the family home to their child without consideration will provide a designated service.

Exclusions from definition of real estate

The definition of real estate excludes interests such as:

• leases of 30 years or less
• incorporeal hereditaments. For example, easements and restrictive covenants
• mortgagee interests
• dwellings not attached to land, where the resident owns the dwelling but leases the land on which the dwelling is located such. Such as caravan parks and some retirement villages. 

This means that a business involved in the sale, purchase and transfer of these interests won’t be providing a designated service relating to real estate. 

For example, a person may own a mobile home (such as a caravan) but have only a lease that’s less than 30 years over the land on which the home is situated. In this situation, neither the caravan nor the lease of land qualifies as real estate, as the caravan is treated as a chattel under law and the lease is too short.

Assisting to plan or execute a transaction to buy, sell or transfer real estate

You’re providing this designated service if you’re:

Designated services

Activities that directly advance a transaction include where a lawyer, conveyancer or settlement agent plans, executes or acts for their client in a transaction for the sale, purchase or transfer of real estate from one person to another. The designated service includes both the execution and planning of this transaction.

Activities that fall under this designated service include the typical steps taken in the conveyancing process to transfer real property from one person to another, such as any of the following: 

• preparing, reviewing or lodging the contract of sale and transfer of land instrument
• researching property titles, strata documents, or land use specifications
• coordinating with financial institutions regarding payments and discharge of mortgage for the real estate transfer
• holding funds on behalf of a buyer and disbursing trust funds at settlement, or organising for release of deposit to the seller
• preparing for financial settlement
• preparing documents to be provided to a registry authority for transfer of real estate on behalf of a client.

These activities can start to be a designated service depending on when they occur. 

Starting to provide a designated service

A person commences providing the designated service when they act on instructions in relation to a transaction to buy, sell or transfer property and a relevant transaction exists. 

A transaction will typically exist when there is at least one buyer and one seller (they don’t need to be specifically identified) and from the point that either:

• in a private treaty or where an auction doesn’t meet reserve, when a buyer and seller, verbally or in writing, agree to the sale price of the property prior to the payment of any deposit or the exchange of any contracts
• in an auction that meets reserve, at the point a buyer is successful at auction. 

While conveyancers would ordinarily need to complete their initial customer due diligence (CDD) obligations before they start to provide a designated service, they can delay this process if required. This includes where it is essential to delay initial CDD to avoid interrupting the ordinary course of business and there’s a low additional risk of ML/TF occurring.

Learn more about delayed initial customer due diligence.

Example: conveyancer services

A conveyancer provides a potential client with general advice on the process for buying real estate. They accept instructions to act for the client and draw up a draft contract for sale. 

There is no real estate transaction at this point, so the designated service hasn’t started. 

The buyer is successful at an auction, making an offer that’s above reserve. The conveyancer will commence to provide a designated service at this point. 

Before settlement, the buyer expresses regret in buying the real estate and instructs the following professionals to provide additional services: 

• an accountant provides financial advice on the implications of pulling out of the settlement process
• a lawyer provides advice on the legal consequences of pulling out of the settlement process. 

While these services may influence whether or not the transaction will proceed, they don’t directly advance this transaction (this is done through the conveyancing process) and so won’t be regulated under item 1 of table 6. 

Town agent services

A person may be engaged to act as a town agent at a settlement on behalf of another reporting entity (typically a conveyancer) who is acting for a client to transfer property. 

In these circumstances the town agent is an agent of the reporting entity and is providing designated services in this capacity. 

This means that the person or business who engaged the town agent (typically the conveyancer) is the reporting entity, not the town agent. This reporting entity must make sure the town agent complies with the AML/CTF policies of the reporting entity and comply with AML/CTF obligations when engaging the town agent. 

This includes the reporting entity doing all of the following:

• conducting appropriate personnel due diligence on the town agent
• providing training to the town agent, or checking to see that training has previously been provided, that’s relevant to the services they’ll provide in their capacity as an agent as a part of the designated service.

Selling, buying or transferring a legal arrangement or body corporate

You’re providing this designated service if you’re:

A body corporate includes any legally incorporated entity that has legal personality. For example, it can own property and sue or be sued in its own right. This includes all of the following:

• companies
• incorporated associations
• incorporated limited partnerships
• corporations sole.

A legal arrangement is an entity that doesn’t have legal personality, and includes all of the following:

• express trusts
• general partnerships
• joint ventures
• unincorporated associations
• foreign equivalents.

It doesn’t matter if any of the following occur:

• the entity or structure is a body corporate or other legal arrangement
• it’s transferred for value or not.

This only applies where the sale, purchase or transfer relates to a controlling interest in the body corporate or legal arrangement. 

Example: accountant providing tax advice

An accountant provides tax advice to a client on the implications of selling a body corporate. While potentially influential to the client deciding whether to sell the body corporate, it doesn’t directly advance any related transaction and there isn’t a transaction at this point.

If it is clear there is one buyer and the accountant is instructed to act for the client to sell the body corporate to a buyer. The designated service begins from this point. 

If there are many potential buyers that have been identified, the designated service would begin when negotiations begin with one or more potential buyers.

The preparatory steps taken to assist in the sale of the body corporate will be regulated, including: 

• representing the customer in negotiations for the sale
• preparing or reviewing contracts for sale
• conducting due diligence, valuation of assets and liabilities in anticipation for the sale
• obtaining Foreign Investment Review Board approvals, and Australian Securities Exchange and ASIC waivers for clients
• preparing for financial settlement
• preparing documents to be provided to an authority (such as ASIC) for the transfer of the body corporate. 

These steps go directly to advancing the outcome of the designated service in item 2, namely assisting in a transaction for the sale of the body corporate. 

Receiving, holding, controlling or managing a person’s property

You’re providing this designated service if you’re:

Scope of the designated service

We consider that a professional will receive, hold and control, or manage a person’s money or property if it passes through their accounts (including a trust account) or if they otherwise deal with the money or property on direction or instruction from the client in a transaction. 

This may include activities such as where a professional service provider does any of the following: 

• manages sale proceeds or purchase funds for a customer on escrow (sometimes referred to as ‘transit money’)
• manages money or property prior to it being settled as trust property on the creation of an express trust
• has authority over a customer’s bank account and makes payments from that account on behalf of a customer. For example, to make loan repayments to a financial institution relating to a transaction
• helps create legal arrangements to disburse client funds to help purchase an asset on their behalf.

The designated service isn’t limited to transactions relating to real estate, bodies corporate or legal arrangements.

Examples of what’s not a designated service

Some examples of activities where a professional service provider holds or manages funds which aren’t providing a designated service under item 3 of table 6 include any of the following: 

• money or property being held or managed as payment for the provision of goods or services provided. For example, money placed in trust for a solicitor or conveyancer for the purposes of funding conveyancing services for the sale of property

• where the business doesn’t provide any designated services other than the services at item 3 of table 6 (for example, holding a trust account), and the receiving, holding and controlling of money or property is incidental to the provision of services that aren’t designated services. For example, a law firm specialising in criminal defence, and which doesn’t provide any other designated services, holds client money in its trust account for the payment of barrister’s fees for representation in a criminal matter. 

  To qualify for this exception, the receiving, holding and controlling or managing of funds etc. must be incidental to another service. Allowing a client to use your trust accounts as a de facto bank account would not qualify for the exception and would be a designated service. 

• money or property being held or managed is to be received or payable under an order of a court or tribunal. Such as where a solicitor uses their trust account to receive a judgment sum from the opposing party to litigation and then sends the sum to their client’s bank account.

It also includes money or property that’s the receipt or disbursement to or from any of the following: 

• government body
• court or tribunal of the Commonwealth, a state, a territory or a foreign country
• public international organisation
• person who is licensed under a law of the Commonwealth, a state or a territory to provide insurance, including self-insured licensees.

This receipt or disbursement may include: 

• a personal injury practitioner receiving payment from an insurer to pay their client’s insurance claim
• bail payments made to a court or tribunal, including payments made by a surety through a legal professional’s trust account
• tax payments made to the Australian Taxation Office (ATO).

Assistance will only be a designated service under item 3 when it directly advances the outcome of this designated service, and assistance that merely influences this outcome won’t be regulated. 

Learn more about the scope of item 3 using a financial adviser arranging for an accountant to create a trust as an example. 

Equity or debt financing for a body corporate or legal arrangement

You’re providing this designated service if you’re:

It doesn’t matter if the body corporate or legal arrangement is in existence or only at some stage of formation (see the word ‘proposed’ in the designated service). 

The transaction must be for equity or debt financing. This includes all capital and debt raising methods. 

Examples of capital and debt raising methods include any of the following: 

• equity capital raising. Such as initial public offerings, venture capital, share purchase plans, rights issues, and block trades
• debt financing. Such as secured or unsecured bonds, bills or notes, asset financing, loans (including government loans), and debentures.

The funds raised by the transaction must be able to be paid to the body corporate or legal arrangement, or to be held in trust on behalf of the body corporate or legal arrangement. 

Example: business consultant providing general advice

A business consultant is approached by a customer who asks about the steps to fund a startup company (a body corporate). 

The consultant provides general advice about various financing options, including equity and debt financing, but doesn’t directly assist in organising, planning or executing a specific financing transaction. 

At this point, the consultant isn’t providing a designated service under item 4, as: 

• there’s no transaction at this point
• they’re not directly advancing a transaction to secure equity and debt financing for the company. 

The customer then identifies several potential investors who are likely to fund the start-up company. The customer retains the business consultant to lead the process to secure equity and debt financing from them.

The consultant starts providing a designated service when they accept and act on the customer’s instructions. The subsequent acts of negotiating, structuring and executing a financing deal or the drafting of debt or equity finance documents, will all be captured by the designated service.

The consultant organises a third-party credit rating agency to credit rate the company. The credit rating agency isn’t providing a designated service as its credit rating service influences but doesn’t directly advance the transaction.  

Selling or transferring a shelf company

You’re providing this designated service if you’re:

This complements other designated services, such as: 

• assisting, or otherwise acting for on behalf of a person to plan or execute a transaction to buy, sell or transfer a shelf company (item 2)
• assisting a person to plan or execute, or otherwise acting on behalf of a person in, the creation or restructuring of a shelf company (item 6).

The customer of the designated service is the buyer or transferee of the shelf company. 

Creating or restructuring a body corporate or legal arrangement

You’re providing this designated service if you’re:

For the purposes of item 6 of table 6, restructuring refers to changing the legal form of the body corporate or legal arrangement. This includes altering the legal structure of a body corporate or legal arrangement through a merger or demerger.

Restructuring doesn’t extend to aspects of the body corporate or legal arrangement that are unrelated to its legal form, such as its: 

• organisational staffing profile
• IT systems
• debt restructuring for small businesses under the Corporations Act 2001. Although the debt and equity financing designated service (item 4 of table 6) may separately apply to some debt restructuring scenarios.

It doesn’t include services related to the creation or restructuring of any of the following: 

• testamentary trusts or trusts that aren’t created intentionally or in writing. Such as trusts created solely by operation of law
• corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

The nature of the service you provide will determine who your customer is. Your customer is the person providing you with instructions for any of the following:

• the creation or restructuring of a body corporate that’s a company – the proposed beneficial owners and directors of the company
• the creation of an express trust – the proposed trustee, proposed settlor and proposed beneficiaries of the trust.

This designated service also extends to preparatory steps you take that are required in anticipation of creating a body corporate or legal arrangement including any of the following: 

• drafting, reviewing and negotiating corporate agreements and business documents. For example, company constitutions, partnership agreements, shareholders agreements, documents creating corporate trustees and personal insolvency agreements
• drafting and reviewing trust deeds and documents. For example, preparing a deed for a discretionary trust, a bare trust or other asset protection arrangements using legal structures
• drafting, reviewing and negotiating documents to support a customer’s mergers and demergers, as well as proposed mergers and demergers
• registering applications and forms with ASIC. For example, to register a company or a business name
• obtaining Foreign Investment Review Board approvals and ASX and ASIC waivers for clients
• conducting due diligence on accounts and finances for corporate financial transactions prior to a transaction.

Examples: insolvency practitioner helping restructure a company

An insolvency practitioner changing a company limited by guarantee into a company limited by shares, splitting one body corporate into multiple bodies corporate or merging multiple bodies corporate are examples of a restructure. The insolvency practitioner would be helping their client to directly advance the restructure of a body corporate.

An insolvency practitioner that assists a body corporate to restructure its internal governance and business operations, including reducing staff numbers at a particular plant or focusing on producing more profitable product lines, isn’t providing a designated service as this doesn’t change the legal structure of the body corporate.

Acting on behalf of a person or as a nominee shareholder in a body corporate or legal arrangement

You’re providing this designated service if you’re:

Acting or arranging for a person to act in certain positions 

You’re providing a designated service under item 7 when you act as, or arrange for another person to act as, any of the following on behalf of a person: 

• director or secretary of a company
• power of attorney of a body corporate or legal arrangement
• partner in a partnership
• trustee of an express trust
• position in any other legal arrangement that is functionally equivalent to a position mentioned above. 

The designated service at item 7 doesn’t apply to any of the following: 

• a power of attorney in relation to natural persons
• trustees of testamentary trusts or trusts not created in writing
• acting, or arranging for another person to act, in a fiduciary capacity pursuant to, or as a result of, an order of a court or tribunal
• acting as the trustee of a regulated debtor’s estate (within the meaning of Schedule 2 to the Bankruptcy Act 1996). 

You’re providing a designated service under item 8 when you act as, or arrange for another person to act as, a nominee shareholder of a body corporate or legal arrangement on behalf of a person. 

A nominee shareholder is a person who both:

• holds shares or an interest in the body corporate or legal arrangement on behalf of another person
• exercises voting rights associated with the shares according to the instructions of the nominator or receives dividends on behalf of the nominator. 

The designated services also extend to arranging for another person to act in one of these positions.

 ‘Acting as’ the director of a body corporate on behalf of a customer means the customer retains control over the acting director’s fulfilment of duties and responsibilities, and the acting director acts on the wishes and instructions of the customer. 

We consider that this designated service includes any of the following:

• coming to an agreement or understanding for a person to act
• prepare or plan, or to make preparations for a person to act.

You’re providing a designated service when you’re making preparations, including but not limited to any of the following:

• drafting documents to authorise or make appointments to the listed positions on behalf of a customer
• identifying or introducing a person to be authorised as or appointed to the listed positions on behalf of a customer.

Who is the customer

The customer is the nominator. This is the person on whose behalf you’ll act or arrange for another person to act for. 

Providing a registered office address or principal place of business

You’re providing this designated service when:

This designated service regulates persons who provide addresses that customers may use and notify to ASIC in absence of a true office address. A company may wish to conceal their address for privacy or commercial reasons, or if the company doesn’t have a physical presence in Australia. It also applies to providing equivalent addresses outside Australia. It doesn’t matter whether this service is provided free of charge or not.

The customer of the designated service is the person who is being provided with the address or principal place of business.

Related pages

• Check to see if you may be regulated
• New industries and services to be regulated (Reform)
• Real estate services (Reform)
• Combating money laundering, terrorism financing and proliferation financing
• Summary of obligations (Reform).