Regulating the financial advice profession: an examination of recent developments in Australia, New Zealand and the United Kingdom and recommendations for further reform.
Whilst increasingly ageing populations have been in pressing need of quality, affordable guidance on managing their financial affairs, recent financial market scandals have shaken consumer trust in the financial advisory professions. At the same time, emerging market technologies such as automated 'robo-advice' have developed at a level which has presented challenges for often complicated financial services licensing laws. At the same time, concerns about the unclear delimitation between comprehensive financial advice and the more simple forms of providing basic information have also caused many financial advisers to be concerned about their potential liability for regulatory breaches and as a result to restrict their service offerings. Recognising these challenges, governments in Australia, New Zealand and the United Kingdom have in recent years undertaken wide-ranging reviews of financial advice regulation in their respective jurisdictions.
This article commences with an examination of the current arrangements for regulating professional standards in the financial advice industries in Australia, New Zealand and the United Kingdom. (1) As the regulation of conflicted remuneration of financial advisers in these three jurisdictions has been comprehensively analysed, (2) Part 1 focuses on examining the regulation of training and competence standards of financial advisers. Part 2 proceeds from this basis to examine the arrangements for enforcing financial advice laws in Australia, New Zealand and the United Kingdom with recent case studies. Part 3 of the article analyses the recent reviews of financial advice regulation that have taken place during 2016 and 2017 in these three jurisdictions. It shows that despite the differing legal and regulatory arrangements in the three jurisdictions, several common regulatory challenges have confronted law and policy makers. Whilst most of the reforms resulting from these major reviews are still in the process of being implemented, the article identifies a number of interesting pointers that may be gleaned from each jurisdiction on the innovative ways of addressing the common challenges of regulating the provision of financial advice in the years to come. Lastly, Part 4 draws together the key themes from the recent reforms and makes recommendations on further law and policy reforms that should be considered in these and other jurisdictions.
I CURRENT FINANCIAL ADVICE STANDARDS IN AUSTRALIA, NEW ZEALAND, AND THE UNITED KINGDOM
Although nearly a decade has passed since the Global Financial Crisis ('GFC') of 2008, the significant losses sustained by investors have been widely noted as having undermined the confidence of consumers to invest in financial markets and to seek financial advice. The significant losses from the GFC resulted from a multitude of factors on the part of companies, banks and issuers of investment products including irresponsible lending and investment practices, fraud, auditing deficiencies and poor disclosure. By the same token, several instances of misconduct and incompetence by financial advisers have also been identified as contributing towards losses by consumers both during the GFC and in more recent years.' As explained below, governments and regulators in Australia, New Zealand and the United Kingdom have instituted a range of responses to lessen the prospects of a recurrence of similar crises. These responses have included banning conflicted remuneration structures, raising the educational and professional standards of financial advisers and improving client disclosure requirements.
Since 15 July 2001 Ch 7 of the Corporations Act 2001 (Cth), (financial markets and services) has been the principal source of regulation for the provision of financial advice in Australia. The current regulatory framework was an outcome of the 1997 Wallis Financial System Inquiry Report, which recommended a 'twin peaks' model of financial system regulation. Under the 'twin peaks' model, the Australian Prudential Regulatory Authority ('APRA') is responsible for the prudential regulation of Authorised Deposit-Taking Institutions, general and life insurers and superannuation providers. In relation to financial services, the Australian Securities and Investments Commission ('ASIC') is responsible for the regulation of licensing, disclosure and consumer protection, with other regulatory responsibilities for Australian companies and, since 2009, the provision of consumer credit.
Chapter 7 of the Corporations Act sets out a broad, overarching 'medium-neutral' system of financial market regulation. (4) Chapter 7 takes the approach of broadly defining key terms such as 'financial products' and 'financial services', and then providing exclusions to the generally inclusive definitions. Of relevance to this article's focus, Pt 7.6 of the Corporations Act (ss 91 OA--926B) provides for the licensing of providers of financial services; Pt 7.7 (ss 940A-953C) regulates financial services disclosure; and Pt 7.7A (ss 960-968) outlines the requirements for the provision of personal advice to retail clients." Given the broadly-expressed nature of Ch 7, (6) ASIC publishes regulatory guidance to provide its interpretation of the law and recommendations for compliance and best practice (some examples of which are discussed below).
Section 766B defines the key term 'financial product advice', (7) which consists of 'personal advice' (which takes into account a client's personal objectives, financial situation, and needs), and 'general advice' (which incorporates all 'financial product advice' that is not 'personal advice'). When an Australian Financial Services ('AFS') licensee or its representative provides personal advice to a retail client, a Statement of Advice must be provided which details the basis for this advice, (8) in addition to the other disclosure documentation requirements under the Corporations Act. (9)
The regulation of personal advice to retail clients has undergone major changes in recent years. The fallout from major corporate collapses including Westpoint Corporation (in 2006), Storm Financial, and Opes Prime (in 2009) prompted a major inquiry which identified concerns about many financial advisers being more part of a sales force for financial product issuers rather than trusted, impartial advisers to their clients. (10) In response to the recommendations of this inquiry, the 2010 Future of Financial Advice (FOFA) reforms introduced several requirements for the provision of financial advice to retail clients which have been mandatory since I July 2013. These have included a ban on conflicted remuneration structures involving commissions and volume-based payments in respect of the distribution of financial products, (11) to act in the best interests of their clients when providing personal advice to retail clients; (12) and the obligation to prioritise client interests. (13)
Section 961 B(2) sets out the requirements for advice providers to satisfy the best interests obligations, which may be summarised as identifying the client's objectives, financial situation and needs; making reasonable inquiries to obtain complete and accurate information from the client; assessing whether the advice provider has the required expertise to provide the advice sought by the client; and conducting a reasonable investigation into, and assessment of, the financial products which might achieve the client's objectives. Additionally, s 961G requires advice providers to ensure that advice is appropriate to the client. ASIC's Regulatory Guide (RG) 244 provides practical guidance to assist financial advisers in meeting these requirements, through the use of 14 illustrated examples, and also through explaining that advice may be 'scaled' through being limited in its scope to the specific needs of the client. (14) Illustrative examples are also used in ASIC's other regulatory guidance for the provision of financial advice to retail clients, (15) and as the conclusion of this article notes, ASIC's practice in this regard could provide a useful model for the development of regulatory guidance in other jurisdictions. Nevertheless as IIIB4 explains, despite this extensive regulatory guidance, the parameters between 'personal advice' and 'general advice' have proved problematic, and the appropriateness of the term 'general advice' have been questioned by many, with calls for reform of this term.
The AFS licensing regime under Pt 7.6 of the Corporations Act places extensive requirements upon licensees. In line with the broad focus and generalised expression of Ch 7, s 912A sets out the general obligations of AFS licensees--which include maintaining the competence to provide those financial services, (16) and ensuring that its representatives are adequately trained and are competent, to provide the relevant financial services. (17) ASIC Regulatory Guides then set out ASIC's expectations of the standards expected of AFS licensees in order to comply with these generally-worded requirements.
ASIC's expectations for AFS licensees to demonstrate competence at the organisational level are set out in RG 105, which presents five options for responsible managers of the AFS licensee to demonstrate competence. (18) At the individual level ASIC's RG 146 sets out the standards required of financial product advisers through outlining both knowledge and skill requirements depending on the activities undertaken by the financial product adviser. (19) Whilst in most cases, financial product advisers can demonstrate their competence through the satisfactory completion of training courses specified in RG 146, the guide also provides for experienced advisers to demonstrate competence through individual assessment by an authorised assessor. Regulatory Guide 146 also requires AFS licensees to ensure that their representatives undertake continuing training. (20) Regulatory Guide 146 currently sets the minimum qualifications to provide personal advice in relation to Tier 1 products (which includes all financial products expect those listed as Tier 2 products) at Diploma-level (Level 5 of the Australian Qualifications Framework ('AQF'), and for Tier 2 products, (21) at Certificate III (AQF Level 3). However as IIIB3 below explains, major changes will come into effect from 1 January 2019 through the 2017 Professional Standards Amendments, which will raise the minimum entry standards for 'relevant providers' (22) from Diploma to Bachelor Degree (AQF level 7).
B New Zealand
Since 1 December 2010, New Zealand's financial advice industry has been regulated under both the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (NZ) (the LFSP Act') and the Financial Advisers Act 2008 (NZ) (the 'FA Acf). However, as IIIC explains, following the recommendations of a major review of the operation of both Acts in 2016, (23) this regime will undergo significant reform with the repeal of the FA Act following the passage of the Financial Services Legislation Amendment Bill 2017 ('FSLA Bill').
Before 2010 New Zealand's financial markets were regulated under the Securities Act 1978 and the Securities Markets Act 1988, with this earlier legislative framework being criticised for its unclear structure. (24) A major shortcoming of this pre-2010 legislative framework was the lack of regulation of New Zealand's financial advice industry, leading to low levels of investor and consumer confidence. (25) The Review of Financial Products and Providers between 2005 and 2008 identified numerous instances of poor financial advice, resulting in the formulation of the current licensing regime for financial advisers. (26) A series of finance company failures between 2006 and 2011 prompted a major inquiry by the NZ Parliament's Commerce Committee, with this inquiry also noting the low standards of competence amongst many financial advisers as a contributing factor to the significant investor losses which resulted from the collapse of the finance companies. (27)
With the 2009 Capital Markets Development Taskforce noting the fragmented system of New Zealand's regulatory agencies, (28) in 2011 the Securities Commission of NZ (which had regulated financial markets and services since 1978) was replaced by the Financial Markets Authority ('FMA'), which amongst its various responsibilities, administers the FA Act and the FSP Act.
The FA Act classifies financial products as either Category 1 products (which include complex and high risk products such as equity securities and KiwiSaver funds), and Category 2 products (which include low risk and less complex products such as insurance policies, credit contracts and most savings contracts). (29) The current legislation also defines the term 'financial service' by specifying 19 activities which fall within this definition, (30) and then specifying exceptions from this definition. (31)
NZ's current regulatory framework provides for three categories of financial services providers who may provide financial advice; although as IIIC explains, this current system will be subject to change following the passage of the FSL.A Bill. The current system distinguishes between the provision of 'personalised service' which takes account of the client's financial situation and goals, (32) and 'class service' for financial adviser services which does not take account of these considerations. (33)
Individual financial advisers (34) may either be Authorised Financial Advisers ('AFAs'), who may provide the widest range of financial adviser services, or Registered Financial Advisers ('RFAs'), (35) who are restricted to providing more limited financial advice on lower risk Category 2 products. (36) The current legislation allows the FMA to designate firms as Qualifying Financial Entities ('QFEs'), which then allows the firm's financial advisers to provide personalised advice in respect of Category 1 products issued by the QFE, without the requirement to be individually registered and authorised. (37) It is a requirement for all providers of financial services to be registered on the Financial Services Providers Register ('FSPR') which records the services the provider is registered to provide, (38) with around 13,000 financial services providers currently registered on the FSPR. (39) The current legislation imposes additional requirements when financial adviser services are provided to 'retail clients', (40) including disclosure statements and information about dispute resolution arrangements. (41)
AFAs are subject to a higher level of regulation than RFAs, including being subject (42) to the Code of Professional Conduct for AFAs which sets out 18 minimum standards covering ethical behaviour; client care; standards of competence, knowledge and skills; and standards for continuing professional training. (43)
Code Standard 16 requires AFAs to attain components of the NZ Certificate in Financial Services (Level 5) that are relevant to the financial adviser services provided. (44) The Code also sets out a range qualifications that are equivalent to the NZ Certificate in Financial Services (Level 5 of the NZ Qualifications Framework). (45) QFEs and AFAs must also maintain an up to date Adviser Business Statement setting out the services they provide and their compliance arrangements. (46)
C United Kingdom
In the United Kingdom since I December 2001, (47) the provision of financial advice has been governed by the Financial Services and Markets Act 2000 ('FSMA'), which replaced the earlier Financial Services Act 1986. (48) The fall-out from a series of scandals involving the mis-selling of pension plans between 1988 and 1994 (which have been estimated to have impacted as many as two million investors) were one of the key reasons for the regulatory reforms undertaken by the Blair Labour government from 1997 which lead to the enactment of the FSMA. (49) Inadequacies in the training and monitoring of sales agents was identified as a major contributing factor to these instances of mis-selling. (50) Between 2001 and April 2013 the FSMA was administered by the Financial Services Authority ('FSA'). Following the GFC, the FSA's functions were divided between the Prudential Conduct Authority ('PCA'), responsible for the prudential regulation of the UK's financial sector and the Financial Conduct Authority ('FCA'), responsible for regulating the conduct of financial services firms. (51)
The FSMA provides the FCA (52) with wide powers to make rules, issue codes, to give guidance and to develop rules, policy and guidance in order to regulate financial markets and services in the UK.
The FSMA prevents a person from carrying on a 'regulated activity' unless the person is authorised by the FCA or an 'exempt person'. (53)
The FCA Handbook provides the primary re-statement of relevant rules, codes and general guidance (54) in force at a given time, and consists of several 'blocks'. These 'blocks' in turn contain a number of 'source books', containing legally-enforceable rules and regulatory guidance. (53) The Conduct of Business Sourcebook ('COBS') sets out the obligations of firms (56) in carrying out a 'designated investment business' and 'long-term insurance business' (57) in relation to life policies. (58) When carrying out a 'designated investment business' for 'retail clients', (59) a firm must do so honestly, fairly and professionally in accordance with the best interests of its client. (60) COBS 9.2.1 requires firms to take reasonable steps to ensure that a 'personal recommendation' is suitable for the client. COBS 9.2.1 defines a 'personal recommendation' as 'a recommendation that is advice on investments, advice on conversion or transfer of pension benefits, or advice on a home finance transaction and is presented as suitable for the person to whom it is made, or is based on a consideration of the circumstances of that person' but excludes recommendations issued exclusively through distribution channels or to the public. COBS 9.2 also requires firms to obtain specified details from clients before providing a 'personal recommendation'.
When personal recommendations are provided to retail clients, COBS 9.4 requires firms to provide a 'suitability report' if the client decides to take action as a result of this recommendation.
Since 2005, COBS has included provision for firms to provide 'basic advice' which allows the sale of simplified, low-risk investment 'stakeholder products' (61) (including pension schemes) through a pre-scripted process under which product charges are capped, and for which advisers are not required to hold formal qualifications. (62)
The FCA's Training and Competence Sourcebook ('TC') sets out the training and Competence (63) requirements for employees of firms that carry on specified activities (64) for retail clients, customers or consumers. (65) These rules prohibit firms from assessing employees as being competent to carry on specified activities until they have demonstrated the necessary competence, and where required, (66) attained the appropriate qualifications. (67) The appropriate qualifications to carry on 'specified activities' range from Certificate to postgraduate degree level, with the TC rules listing all approved qualifications, (68) with employees having 48 months from starting to attain the required qualifications. (69)
The rules also prevent firms from allowing employees to carry on specified activities without appropriate supervision, (70) and require supervisors and assessors of the employees who advise retail clients to hold appropriate qualifications. (71) However the rules also permit firms to allow employees who have not yet attained each module of an appropriate qualification to carry on a limited number of specified activities such as advising on investments. (72)
Firms must also regularly review their employees' competence and ensure they remain competent for their roles, (73) including through ensuring that retail investment advisers who have been assessed as competent remain competent by completing a minimum of 35 hours of appropriate continuing professional development in each 12month period. (74)
Firms must also declare annually that their retail investment advisers have in the preceding 12 months complied with the Statements of Principle and Code of Practice for Approved Persons ('APER') or the Code of Conduct for Staff sourcebook ('COCON'). COCON 2 sets out individual conduct rules for specified employees (75) as applicable to their role, as well as their compliance with applicable continuing professional development requirements. (76) The TC rules also require firms to obtain independent verification annually of their compliance with these requirements by an 'accredited body', (77) and to promptly notify the FCA of certain breaches of the TC rules by their retail investment advisers. (78)
II ENFORCEMENT OF FINANCIAL ADVICE STANDARDS
This part examines the arrangements for enforcing financial advice standards in Australia, New Zealand and the United Kingdom. To illustrate the application of these laws it examines recent case studies which have involved the removal of unsuitable persons from the financial advice industry, and the prevention of unsuitable persons from entering the industry. Whilst the legislative and regulatory arrangements in each jurisdiction differ, it is suggested that the outcomes from the case studies below may be of interest to regulators in the other jurisdictions.
B Enforcement of financial advice standards in Australia
ASIC continually monitors compliance with the laws noted in IA above, and produces reports on the findings of its compliance monitoring activities to provide guidance to the financial services industry. (79) The Commission has extensive powers to monitor and enforce compliance with the legislation it administers. In the financial services field, depending on factors including the seriousness of a breach and its regulatory impact, (80) ASIC may initiate criminal prosecutions, civil penalty actions, and/or civil recovery actions. For example, in ASIC v NSG Services Pty Ltd  FCA 345, Moshinsky J of the Federal Court of Australia handed down the first finding of a breach of the 'best interests' financial advice standards which were introduced through the FOFA reforms noted in I A. The Court found that between July 2013 and August 2015, eight of NSG's clients were sold insurance and/or advised to rollover their superannuation accounts which committed them to costly, unsuitable, and unnecessary financial arrangements. (81) NSG consented to declarations of contraventions of ss 961B and 961G of the Corporations Act on account of its inadequate processes for providing advice to new clients; its inadequate systems for training its representatives; its failure to implement the recommendations arising from external audits; its lack of policies for ensuring compliance and for recording breaches; and its continuation of remunerating its representatives by way of commission. (82) In light of his findings on these breaches, Moshinsky J declared that NSG had contravened ss 961K, (83) and 961L of the Corporations Act, (84) which are both civil penalty provisions. (85) Noting that the parties had not reached a joint position on the pecuniary penalties sought by ASIC, the Judge noted that this would need to be determined at a contested hearing at a later stage. (86)
ASIC also has a range of administrative enforcement powers against providers of financial services and consumer credit. These include the power to impose conditions on AFS Licences, (87) as well as suspending or cancelling AFS Licences. (88) At an individual level, ASIC may impose banning orders preventing persons from providing financial services--either permanently or for specified periods. (89) ASIC's approach to the use of its administrative enforcement powers against financial services providers is outlined in its Regulatory Guide 98. (90)
Individuals and AFS Licensees who are subject to such orders may apply for a review of the merits of ASIC's decisions in the Administrative Appeals Tribunal (AAT). (91) For instance, in Ma.su Financial Management Pty Ltd and ASIC  AATA 97 the AAT affirmed ASIC's decision to suspend an AFS Licence for 8 weeks under s 915C. The AAT agreed with ASIC's concerns that Masu had failed to demonstrate adequate measures to ensure compliance with its obligations as an AFS Licensee in particular noting deficiencies in Masu's training registers and arrangements for ensuring appropriate disclosures when its representatives recommended products provided by related entities. (92)
As an alternative to court or administrative action, ASIC may also accept enforceable undertakings from persons and entities subject to its regulation, under which may require the promisor to undertake a range of actions. (93) Since March 2012, ASIC has published reports on the outcomes of its enforcement actions at six monthly intervals, (94) as well as reporting its enforcement outcomes and key cases in its annual reports.
C Enforcement of financial advice standards in New Zealand
Similarly to ASIC, the FMA has a range of powers to monitor and enforce compliance with the legislation it administers. If the FMA is satisfied of breaches of the FA Act or conditions of an adviser's authorisation, it may suspend or cancel the authorisation of AFAs and QFEs, or amend the terms and conditions of such authorisation. (95) The FMA may also issue directions to AFAs and QFE to comply with specified terms or conditions, and it may stipulate steps that must be taken to comply with such terms and conditions. (96) The FMA may make temporary banning orders of up to 14 days against financial advisers for persistent contraventions of the FA Act or the Financial Markets Conduct Act 2013. (97)
The FMA is required to refer substantiated complaints about financial advisers to the Financial Advisers Disciplinary Committee ('FADC'). (98) After providing the affected financial adviser with the opportunity for a hearing, the FADC may make a range of orders including the cancellation of the adviser's authorisation (either permanently or for a specified period); imposing restrictions on the adviser's authorisation; fining the adviser or directing the adviser to undertake specified training. (99) The legislation also includes offences of providing financial adviser services without authorisation, (100) or holding out as being authorised. (101) Examples of criminal convictions of financial advisers include those of Mr David Ross (sentenced to ten years imprisonment in 2013 for the operation of a Ponzi scheme which resulted in over $1 15 million of losses for investors), (102) and of Mr Andrew Robinson (sentenced to 12 months imprisonment for making false statements in his application for authorisation as an AFA, providing a broking service without being registered, and making false statements in a company's accounts). (103)
Under's 46 of the Financial Markets Authority Act 2011 (NZ), the FMA may accept enforceable undertakings from persons in relation to the legislation it administers. For example, on 11 April 2016 the FMA accepted a five year enforceable undertaking from Mr Stephen Duff, an RFA who had provided the financial adviser services of an AFA without authorisation. (104) Additionally, a person may appeal a decision of the FMA to decline authorisation as an AFA or QFE under s 138 of the FA Act in the NZ District Court (NZDC). In the first appeal under s 138, Sean Floyd Wood v Financial Markets Authority (CIV-2011-085-954), the NZDC upheld the FMA's refusal of an application for authorisation as an AFA. Mr Wood, who operated a business known as Property Tutors Limited, which educated paying members of the public about investment in the Auckland real estate market, and who was already an RFA, applied for registration as an AFA to expand the range of investment advice he could offer. (105) However Mr Wood failed to disclose previous convictions that he, and a company of which he was the sole director and shareholder, had incurred under the Building Act 2004 (NZ) for unauthorised building works in his application. (106)
Judge Harrop agreed with the FMA's contention Mr Wood's failure to disclose these convictions reflected poorly on Mr Wood's character and attitude to compliance with the law, and therefore made him unsuitable for registration as an AFA. (107)
The FMA publishes reports on its compliance monitoring and enforcement activities to provide guidance for New Zealand's financial services industry, (108) and on 20 February 2017 published its first 'Conduct Outcomes Report' for 2015-2016 which reported on its various enforcement actions. (109)
D Enforcement of financial advice standards in the United Kingdom
The FCA has extensive powers to investigate potential breaches of the legislation and rules it administers, (110) and depending on its assessment of the relevant breach, (111) to impose a range of sanctions against persons who have to perform functions related to a regulated activity. These powers include prohibiting a person from performing a specified function on the grounds of not being 'fit and proper' to perform a regulated activity, (112) and in cases where the FCA considers that a person may be guilty of misconduct, impose a penalty, suspend relevant approvals (for up to two years) or impose limitations or restrictions as it sees fit. (113) The FCA may institute a range of sanctions in relation to breaches by authorised persons, including the issuance of a public censure, (114) the imposition of a penalty, (115) or suspending, limiting or restricting the Authorised Person's permission to carry on regulated activities for up to 12 months. (116) Persons subject to such actions have the right to appeal to the Tax and Chancery Chamber ('TCC') of the Upper Tribunal. (117)
A recent Upper Tribunal case which illustrates the FCA's enforcement of financial advice standards is Bayliss & Co (Fin Services) and Clive John Rosier v FCA  UK.UT 0265 (TCC). Since 1983 Mr Clive Rosier had been the sole director of Bayliss & Co (Financial Services) Limited ('Bayliss')--a small financial advisory firm which between 2000 and 2004 had included a business trading under the name Money Matters. For several years Bayliss advised its clients on investment in Geared Traded Endowment Policies ('GTEPs') and unregulated collective investment schemes ('UCIS'), which were high risk products. (118) In 2007 and again in 2010 as part of a sector-wide review of small firms which were known to have advised on GTEPs and UCISs, the former FSA reviewed Bayliss's compliance arrangements and the standards of investment advice it had provided to clients. The FSA's review identified numerous deficiencies in Bayliss's advice practices--including the lack of procedures for assessing and recording the suitability of advice to clients; ineffective arrangements for supervising advisers; and the absence of documented procedures for handling complaints. The FSA subsequently determined that Bayliss had failed to undertake the necessary remedial action to address these identified deficiencies. (119) After considering all evidence, the Tribunal agreed with the FCA's contention that as the sole director, Mr Rosier had failed to act with due skill, care, and diligence on carrying out a controlled function, and that he had failed to take reasonable steps to ensure that Bayliss complied with the FSA's standards, particularly the requirements for assessing the suitability of investment advice to clients under COBS 9.2. (120) The Tribunal therefore affirmed and upheld the FCA's decision to prohibit Mr Rosier from performing significant influence functions in relation to regulated activities pursuant to s 56 of the FSMA. (121) The Tribunal also affirmed and upheld the FCA's imposition of a financial penalty of 10,000 [pounds sterling] under s 66 of the FSMA, on account of his breach of the FCA's Statements of Principle and Code of Practice for Approved Persons. (122) Mr Rosier's appeal against the Tribunal's determination was unsuccessful. (123)
Similarly to ASIC and the FMA, the FCA also publishes the outcomes of the reviews it undertakes on compliance standards by firms. (124) In addition to complaining to the FCA, clients may also pursue complaints against financial advisers through the UK's Financial Ombudsman Service ('FOS'), which may award compensation, or initiate civil action under s 138D of the FSMA for breach of statutory duties. (125) The next Part of this article examines the reviews and reforms to the regulatory arrangements governing the financial advice industries in Australia, New Zealand and the United Kingdom during the last two years.
III RECENT REVIEWS AND REFORMS OF FINANCIAL ADVICE REGULATION
Whilst the legislative and policy arrangements examined above have resulted in a number of positive outcomes, particularly in removing unsuitable persons from the financial advice professions (as Part 2 discussed), several aspects of these jurisdictions' financial services laws have been criticised for their complexity. In particular, the legal delimitation between the provision of comprehensive financial advice, and the more simple forms of providing basic information or guidance, have been identified as a significant uncertainty. These uncertainties have lead many financial advisers to restrict their service offerings, which has been noted to be detrimental to consumers who are frequently in need of more specific advice about matters such as their superannuation (in Australia), their KiwiSaver fund (in New Zealand) and their pension plans (in the United Kingdom). Another uncertainty has resulted from the growth of automated 'robo-advice', whereby financial product advice is provided using technology and algorithms without the direct involvement of a human adviser. (126) As discussed below, recent reviews in Australia, New Zealand and the United Kingdom have resulted in the development of law and policy reforms to improve the effectiveness and responsiveness of the financial services laws in these jurisdictions.
B Recent reviews and reforms in A ustralia
1 FSI and Senate Economics References Committees
As noted in Part I, during the last two decades the Australian financial services industry has been impacted by a number of high profile corporate collapses, with the standards of financial advice being identified as a contributing factor to the significant losses experienced by many retail investors. Following on from the 2010 FOFA reforms discussed in Part I, during 2014 three major inquiries made recommendations for further reforms to Australia's financial advice industry. (127)
In June 2014 the Senate Economics Reference Committee presented the report of its inquiry into the performance of ASIC. This inquiry had been established to inquire into ASIC's handling of complaints about misconduct by several rogue advisers at Commonwealth Financial Planning Limited ('CFPL') between 2006 and 2010, which had caused significant losses to many retail clients. (128) Amongst its 61 recommendations, (129) in response to concerns about the level of competence amongst financial advisers, the report recommended raising the educational qualifications for financial planners and advisers to degree level, and for financial advisers to successfully pass a national examination before being able to provide personal advice to retail clients; placing restrictions on the ability to use terms such as 'financial planner' and 'financial adviser'; and creating a register of those licensed to provide personal advice. (130)
The wide-ranging 2014 Financial System Inquiry ('FSI') Report also made similar recommendations on raising the minimum competency standards for financial advisers. (131) The FSI Report also noted the scope for consumer misinterpretation of, and over-reliance on, the term 'general advice', and called for this term to be replaced with a more appropriate, consumer-tested term. (132)
2 2014 PJC Inquiry
Following on from the recommendations of the 2014 Senate Economics Reference Committee report, and taking account of the recommendations of the 2014 FSI Report, during late 2014 the Parliamentary Joint Committee on Corporations and Financial Services ('PJC') conducted an inquiry focused on lifting the professional. ethical and education standards within the Australian financial services industry. (133) The PJC Report noted the scope for confusion amongst consumers about the distinctions between 'personal advice' and 'general advice'. It recommended that after a process of consumer testing, the term 'personal advice' should be replaced by 'financial advice' (to be provided only by registered financial advisers), and that the term 'general advice' should be replaced by a term such as 'product sales information', in order to more closely reflect the nature of the information provided to consumers under these terms. (134) In addition to recommending that the ability to use the titles of 'financial adviser' and 'financial planner' be legislatively restricted to appropriately qualified persons, (135) the PJC Report also recommended the creation of a public register of financial advisers. (136) After noting concerns that the training requirements under ASIC's RG 146 to become qualified to provide financial advice in Australia could be satisfied in as little as three days (in contrast to the degree-level requirements for many other professions), as well as the lack of consistent measures of measuring the competence of financial advisers the PJC Committee recommended raising the minimum educational standards for financial advisers to a degree qualification at level seven of the AQF. (137) The committee further recommended that in line with similar jurisdictions, new financial advisers should be required to pass a registration examination, and also satisfactorily complete a structured professional year. (138) Other recommendations of the committee included the introduction of mandatory continuing professional development requirements, (139) and a professional code of ethics. (140)
3 2017 Professional Standards Amendments
The majority of the recommendations from the 2014 PJC Report have been incorporated into the Corporations Amendment (Professional Standards of Financial Advisers) Act 2017 (Cth), which makes significant amendments to Ch 7 of the Corporations Act with effect from 1 January 2019. These reforms introduce the new term of 'relevant provider' to refer to individuals employed or authorised by an AFS Licensee to provide personal advice to retail clients in relation to 'relevant financial products'. (141)
The new requirements to be registered as a 'relevant provider' will include completing an approved bachelor degree or higher; (142) passing an exam approved by a 'Standards Body'; (143) and completing at least one year of work and training specified by the 'Standards Body'. (144) Financial advisers who have not yet satisfied these three requirements will be referred to as 'provisional relevant providers', (145) and be subject to supervision and restrictions on the scopc of their activities (for example requiring supervisors to approve any Statement of Advice provided by the provisional relevant provider to a retail client). (146) Once registered, 'relevant providers' will be required to complete the continuing professional development requirements set by the 'Standards Body', (147) and to comply with the Code of Ethics, which will also be set by the 'Standards Body'. (148) ASIC's banning powers under s 920A of the Corporations Act have been expanded to enforce compliance with these new requirements. (149) On 10 April 2017 Australia's Minister for Revenue and Financial Services announced the appointment of directors to the board of the 'Financial Adviser Standards and Ethics Authority', which will assume the responsibilities of the 'Standards Body'. (150)
4 Lack of progress on reformulating the terms personal and general advice
Despite these significant changes, as at 25 May 2017 the recommendations from both the 2014 FSI Report and the 2014 PJC Report for reformulation of the terms 'personal advice' and 'general advice' have not been acted upon. As HID below explains, recent reforms in the UK, through which well-reasoned terms to distinguish between financial advice and guidance have been developed, provides an encouraging model for Australian law-makers to consider in re-formulating these terms.
5 Regulatory guidance on the provision of automated 'robo-advice'
In spite of Australia's lack of progress on reformulating the terms 'personal advice' and 'general advice', ASIC has been proactive in formulating regulatory guidance for the Australian financial services industry on the provision of digital advice (also known as 'robo-advice' or 'automated advice') in its Regulatory Guide 255 (RG 255). (151) Through the use of several examples, ASIC provides guidance on scenarios where the provision of digital advice might fall within the parameters of 'personal advice' and, factors for AFS Licensees to consider when outsourcing functions relating to the digital advice aspects of their businesses (for example the development and evaluation of algorithms). As the following sections below explain, policy-makers in New Zealand and the UK have also been grappling with options for regulating the provision of financial advice through digital mediums, and it is argued that ASIC's RG 255 provides useful practical guidance on regulating this growing linancial advice medium.
C Recent reviews and reforms in New Zealand
As Part IB noted, the regulation of financial advice in New Zealand has been the subject of significant change in recent years. In July 2016, following the analysis of numerous submissions from various stakeholders to an Issues Paper and then an Options Paper the MB IE presented its statutory report on the review of the operation of the FA Act and the FSP Acts during the first five years of operation of those Acts (the MBIE Review). (152) This report identified several shortcomings in NZ's regulation of the financial advice industry that warranted reform. In response to the MBIE's Review in 2016 the NZ government agreed to the re-design of the regulatory regime for the provision of financial advice in NZ. An exposure draft of the Financial Services Legislation Amendment Bill 2017 (NZ) was open for comments between 17 February and 31 March 2017, with feedback from these submissions currently being evaluated. (153) This Bill proposes to repeal the FA Act 2008 and incorporate the majority of changes to NZ's financial advice regulation into a new sub-part 5A of Part 6 of the FMC Act 2013. These amendments will represent a move from individual licensing (under which as IB noted, AFAs are individually licensed) to firm-level licensing--and will also subject financial advisers to the civil penalty and licensing actions in the FMC Act 2013. The Bill also proposes changes to FSPR Act to deter mis-use of the FSPR. The following section discusses the key recommendations in the 2016 MBIE Review, and the response by the 2017 FSLA Bill to these recommendations.
2 Definitions of financial products
The MBIE Review found the current distinction between Category 1 (complex) and Category 2 (simple) products to be arbitrary and in many cases dependent on the value of the products rather than being reflective of the complexity or risk of the products. As an example, the Review noted that advice on life insurance or mortgages, which can be complex and have a significant impact on consumers' financial wellbeing are currently classed as Category 2 products. (154) Accordingly the Review recommended the removal of this distinction so that all financial advice products are regulated in the same manner. (155) In response to these recommendations, Pt I of the 2017 FSLA Bill replaces the terms 'Category 1' and 'Category 2' products with the new term of 'financial advice product', which will expand on the existing definition of 'financial product' product in the FMC Act through also including discretionary investment management service facilities, contracts of insurance, consumer credit contracts and other products declared by the regulations to be a financial advice product. (156)
3 Definitions of financial services
The MBIE Review noted that whilst many New Zealanders were in need of relatively simple personalised advice (particularly advice on appropriate KiwiSaver funds for their circumstances), the current regulatory system disincentivised the provision of such advice in an affordable manner. In particular, the MBIE Review noted that due to the current definitions of personalised advice (which involved significant compliance costs) and class advice, (157) many financial advisers were limiting their advice to class service. The MBIE Review also noted reports of increasing risk aversion amongst other advisers who felt compelled to undertake a full assessment of their clients' financial circumstances in order to comply with the requirements governing the provision of personalised advice. (158) Accordingly, the MBIE Review recommended the removal of the distinctions between personalised advice and class advice, with amending legislation to enable the scope of advice to be limited by factors such as a consumer's wishes or the adviser's competency levels. (159) Part 3 of the FSLA Bill addresses these concerns by introducing the new concept of "regulated financial advice', with the Consultation Paper including a useful diagram which is shown over the page.
Figure 1: Relationship between financial advice and regulated financial advice (160) Financial advice * Making a rccommcndaticm or giving an opinion aboal acquiring or disposing of a financial advice product * Designing an investment plan for a person (investment planning service) Excluded a. Incidental services and oilier occupations b. Crown related entities c. Trustee corporations d. Non-profit organisation (providing free services) e. Workplace financial products f. Advice to product provider g. Activities under other regulatory frameworks h. Prescribed circumstances Regulated financial advice Financial advice that is Given in the ordinary coursc of business Nol given in excluded circumstances Discretionary Investment Management Service * Regulated as a separate market service * Not financial advice Not financial advice * Providing information * Carrying out an instruction * General recommendation or opinion * Recommending a person obtain financial advice * Passing on financial advice
Proceeding from this new definition of 'regulated financial advice', Part 3 of the FSLA Bill provides that a person or firm will provide a 'financial advice service' if, in the ordinary course of their business, they give regulated financial advice or they engage a person to give regulated financial advice on their behalf. (161)
Part 3 of the FSLA Bill also outlines the duties of persons providing regulated financial advice; (162) and the division of civil liability, and liability to disciplinary action, between financial advice providers and individual advisers. (163)
Part 5 of the FSLA Bill proposes miscellaneous amendments to the FMC Act, which include providing the FMA with a flexible power to designate a service as a 'regulated financial advice service' in response to future market and technological developments; (164) expanding the civil liability regime in the FMC Act in order to provide the FMA with a wider range of enforcement options than the primary focus on criminal offences under the FA Act; (165) and clarifying the circumstances under which a financial advice service will be a 'retail service' and hence subject to more extensive regulation. (166)
4 Categorisation of financial advisers
The MBIE Review also noted a significant imbalance between the higher competency requirements for AFAs (who as IB noted, are subject to the Code of Professional Conduct and the obligations to prioritise consumer interests) and those of RFAs who are not currently subject to such competency requirements. The Review considered this imbalance to be significant given that many RFAs frequently provide advice on life insurance products which can have a significant impact on consumers' financial well-being. Another inconsistency was that QFEs may currently set their own competence standards for their QFE advisers. (167) Along similar lines the Review also noted that whilst AFAs must currently prioritise the interests of their clients, RFAs are not currently subject to this obligation, and that QFE Advisers only have this obligation when giving personalised advice on Category 1 products. The MBIE Review estimated this meant that only around 1,900 advisers were therefore subject to the client priority obligation. (168)
The MBIE Review therefore recommended the replacement of the categories of AFAs, RFAs, QFEs, and QFE Advisers with a more streamlined system of 'financial advisers', 'financial advice firms" and 'agents', with firms being accountable for the actions of their advisers and agents. (169) The MBIE Review also recommended the formulation of a universal Code of Conduct for the financial advice industry, with common standards of competence and CPD requirements. (170) In contrast to the Australian PJC Report on Professional Standards (which as II1B3 explained recommended introducing degree-level requirements, which will take effect in Australia from 1 January 2019), the Review decided against mandating specific qualifications for financial advisers--recommending instead that a flexible system (possibly through case studies and recognition of work experience) could be adopted. (171)
Part I of the FSLA Bill incorporates these recommendations through replacing the roles of AFAs, RFAs and QFEs with the roles of 'financial advice providers', and the adoption of the term 'financial advice representative' (in preference to the term of 'agent' as suggested in the MBIE Review). Along similar lines to the Australian Financial Services Licensing regime, the FSLA Bill places most compliance obligations on financial advice providers. (172) Part 3 of the FSLA Bill also incorporates a prohibition on persons holding out that they are a financial advice provider, financial adviser or a financial advice representative when they are not authorised to provide such services. (173)
5 Competency requirements for financial advisers
In light of the proposed expanded definitions of 'financial advice providers', a consultation process to develop a new Code of Conduct for persons who provide regulated financial advice to retail clients is scheduled to take place during 2017, which is expected to be approved by August 2018. (174) As the Consultation Paper for the FSLA Bill explains, it is intended for the revised Code to include general minimum standards of competence, knowledge and skill for all those giving financial advice, with additional standards for specific types of financial advice, for example advice about investments or insurance. (175) Interestingly, in comparison to the Australian reforms discussed in II1B3 which will mandate both degree-level entry requirements, and industry-wide CPD requirements, the reforms outlined in the FSLA Bill give financial advice providers considerable flexibility on the ways through which they will be able to demonstrate competence--including for example through external or in-house courses, or through other support or control measures. (176) The FSLA Bill will also broaden the conditions under which the FMA may refer instances of misconduct by financial advice providers and individual advisers to the FADC. (177)
6 Provision of automated 'robo-advice'
The MBIE Review noted concerns about the inability of New Zealand financial services providers to provide automated advice to consumers through online channels, in light of the current requirement under the FA Act for financial advice to be provided by a natural person. Accordingly, the Review recommended the removal of this restriction. (178) The FSLA Bill has incorporated these recommendations, through expressing the new legislation in 'technology-neutral' terms, and with the FSLA Bill consultation paper explaining that 'robo-advice' is simply another channel through which advice may be provided. (179)
7 Deterring misuse of the Financial Services Providers Register
Finally, noting concerns about the mis-use of the Financial Services Providers Register (FSPR) by offshore-controlled firms to gain the appearance of being regulated in New Zealand, the MBIE Review recommended amendments to the FSP Act that would only enable entities to register on the FSPR where they were providing financial services either in New Zealand, or to New Zealanders. (180) In response to these recommendations, Pt 6 of the FSLA Bill proposes amendments to the FSP Act through enabling the Registrar to seek information about directors of a Financial Services Provider in order to deter misuse of the FSP, as well as imposing more stringent requirements for a substantial connection with New Zealand for persons seeking to register on the FSPR. (181)
D Recent reviews and reforms in the United Kingdom
In March 2016, the report of the UK's Financial Advice Market Review (FAMR) was presented. The FAMR had a wide-ranging ambit to assess the availability of quality financial advice within the UK, including the suitability of the UK's legal and regulatory framework, the economics of providing advice, consumer engagement and the role of technology. The FAMR followed on from the earlier reforms to the Retail Distribution Review (RDR), which had been launched by the FSA in 2006. The RDR had introduced several reforms which had been mostly implemented by 2012--including raising the minimum level of adviser qualifications, improving the transparency of charges and services and removing commission payments to advisers and platforms from product providers. (182)
Notwithstanding the RDR reforms, the FAMR noted several major challenges for the UK's financial advice industry. These included the lack of affordable quality financial advice due to complex financial services laws, liability concerns and high compliance costs compelling many advisers to restrict their offerings to comprehensive 'full-scale' advice; uncertainties amongst employers about the extent to which they could permissibly provide financial guidance to employees on pensions; and the appropriate means of regulating the provision of financial advice through the digital mediums. (183)
Following the FAMR's report, a Financial Advice Working Group (FAWG) was established to examine ways of implementing the FAMR's recommendations. (184) On 5 April 2017 the FAWG presented three reports outlining recommendations for the reform of the UK's regulatory framework for the financial advice industry. (185) The following sections examine the 2017 responses of the FAWG in relation to the key regulatory challenges identified in the 2016 FAMR report.
2 Limiting guidance' from 'advice'
The FAMR Report noted a widely-held consensus that the 'basic advice' regime, which as IC explained, allows firms to focus on specific needs of clients without the need to undertake a comprehensive overview of their overall financial circumstances, had not been widely utilised by financial advisors. Many advisers considered such advice uneconomical to provide, and also expressed concerns that in the event of client complaints to bodies such as FOS they would be judged according to the 'full advice' standard. (186) After noting the challenges of delimiting more limited financial advice activities (for example 'financial health check') from the more full-scale forms of 'advice', (187) the FAMR recommended that the FAWG should undertake a consultation process involving market research and consumer testing on appropriate terms for distinguishing 'guidance' from 'advice', and suggested several options for further investigation. (188)
On 11 April 2017, the FAWG published the report of its inquiries, based on over 1,000 surveys of consumers on their understandings of the meanings of 'advice' and 'guidance', as well as numerous interviews with consumers. (189) This report recommended that the terms 'advice' and 'guidance' should be adopted for use within the financial advice industry, and be consistently displayed side-by-side to allow comparisons by consumers. It recommended that the use of these terms should be mandatory for entities regulated by the FCA, encouraged by commentators such as the media. (190) The FAWG Report's comparative table for these terms is depicted over the page, with this report also providing further elaboration, with examples, (191) of the activities that would be associated with 'guidance' and 'advice'.
3 Addressing regulatory uncertainties about 'rules of thumb ' and 'nudges'
Another issue of concern identified by the FAMR was the lack of regulatory and industry consensus about financial 'rules of thumb' (for example, that consumers can afford to take more financial risk at young ages, and less at old ages), and 'nudges' (that is, prompts for consumers to evaluate their financial circumstances--such as 'when starting a family, consider whether you could cope financially if your income stopped because of illness or accident, or whether you could benefit from taking out income protection'). (193) In agreeing that the wider and more consistent use of such 'nudges' and 'rules of thumb' could result in more consumers taking an active role in managing their personal finances, the FAMR recommended that further consultation should be undertaken to design and test options for encouraging the more widespread use of such 'nudges' and 'rules of thumb'. (194)
Accordingly, on 11 April 2017 the FAWG presented the findings of its inquiries, based on a comprehensive review of relevant academic literature, with further market testing scheduled during 2017. (195) This report explained that a 'rule of thumb" 'is a simple, broad principle that most people can use in thinking about their personal finances (e.g., "don't put all your eggs in one basket")', and that a '"nudge" is a timely prompt from a trusted source (a "nudge agent"), designed to help an individual make financial decisions (e.g., a text message telling the recipient their current account is about to be overdrawn)'. (196) This report also developed a 'Financial Five' rules of thumb, designed to help people meet their most common financial needs, as:
* Clean up your finances regularly
* Manage your borrowing, don't let your borrowing manage you
* Save when you can--even a little helps a lot
* Pile into your pension--it's your future income
* Other people get help to make the most of their money, so can you (197)
4 Developing regulatory guidance on the provision of 'streamlined' advice
The FAMR also made several recommendations for the FCA to develop comprehensive regulatory guidance (with illustrative examples) to assist firms in providing advice which could be 'streamlined' towards addressing specific aspects of their financial needs. (198) In its April 2017 progress report on the implementation of these recommendations, the FAWG reported that consultation was underway with firms and industry associations to develop this regulatory guidance which would include guidance for firms to contact consumers to encourage them to evaluate their financial circumstances, without such actions constituting the provision of a 'personal recommendation'. Additionally, the FAWG reported that a new 'Pensions Advice Allowance' would come into effect from April 2017 which would enable consumers to withdraw up to 500 [pounds sterling] tax free from their pension pot to redeem against the cost of pensions or retirement advice. (199)
5 Clarifying the extent to which employers can provide financial guidance to their employees
Along similar lines to the recommendations for more comprehensive regulatory guidance for firms, the FMAR also recommended the FCA and The Pensions Regulator (TPR) should collaborate to provide clarification on the guidance that employers and trustees of pension funds could provide to employees in relation to their pensions. (200) In response, in March 2017 the FAWG noted that the FCA and TPR were developing a fact sheet to guide employers and pension fund trustees in providing guidance without being subject to regulation. (201)
6 Addressing the regulatory uncertainties surrounding automated 'robo-advice'
Whilst acknowledging the increased use of automated advice tools as a means of enabling consumers to access affordable, high quality advice, the FAMR also noted the scope for the FCA to formulate best practice guidance to assist firms in testing and evaluating these tools. (202) In response, the FAMR Progress Report in April 2017 noted that the FCA had established an Advice Unit to help firms develop their automated advice models and that several firms had already progressed the testing and evaluation of their automated advice models with feedback from the FCA's Advice Unit. (203)
IV CONCLUSIONS AND RECOMMENDATIONS FOR REFORM
Part 3 showed that legislators and regulators in Australia, New Zealand and the United Kingdom have been presented with similar challenges for regulating the financial advice industries in their respective jurisdictions over the last two years. Whilst consumers in all three jurisdictions were in need of quality, affordable advice (particularly advice about specific matters such as retirement savings), the legal parameters of several aspects of the financial advisory function were uncertain, resulting in confusion both amongst consumers and amongst financial advice providers. In particular, delineating between 'advice' and 'guidance' in a manner that is understandable to consumers was a common challenge, as was the regulation of automated 'robo-advice'. Other challenges included determining the appropriate level of training and competence required for different financial advisory functions. Whilst the reforms examined in Part 3 have comprehensively addressed the majority of these challenges, there are valuable lessons that law and policy makers can glean from the reforms in the other jurisdictions.
In Australia, ASIC's formulation of detailed regulatory guidance (with the extensive use of illustrative examples) for both the provision of 'scaled' financial advice, and the provision of automated 'robo-advice' are useful examples which could be implemented in the other jurisdictions. (204) ASIC's practice of comprehensively reporting its enforcement outcomes at six monthly intervals (205) could also be adopted by the FCA in the UK and by the FMA in New Zealand. Lastly the enhanced competency standards and the mandatory requirements for continuing professional development which will come into effect from 1 January 2019 (206) could also be considered for adoption in the other jurisdictions as a means of increasing professional standards. However despite the recommendations of the 2014 Financial System Inquiry and the 2014 PJC Inquiry on lifting professional, ethical and education standards, (207) reform of the terms 'personal advice' and 'general advice' has not progressed further. Whilst there is no apparent reason for the lack of progress in progressing these reforms, given the scope for confusion arising from the use of these terms, it is recommended that further attention should be given to their reformulation as recommended by the 2014 inquiries. As discussed above, recent reforms in the United Kingdom and in New Zealand provide useful examples of reformulation of these terms.
As Part 3 explained, the Financial Advice Working Group (FAWG) has formulated several well-reasoned solutions for implementing the recommendations from the Financial Advice Market Review. These have included a clear explanation of the differences between financial 'advice' and 'guidance', (208) and guidance on the use of 'rules of thumb' and 'nudges' which could encourage consumers to seek financial advice to manage their financial affairs. (209) Another positive recommendation by the FAWG is allowing consumers to withdraw up to 500 [pounds sterling] tax free from their pension pot for seeking financial advice. (210)
Lessons may be also gleaned from the proposals in the 2017 FSLA Bill in New Zealand. The explanation (with the use of an illustrated diagram) of when 'regulated financial advice' is, and is not, being provided (211) in the FSLA Bill represents, similarly to the FAWG's development of descriptors of 'advice' and 'guidance', a helpful clarification of the parameters of financial advice regulation. Also, the proposal to provide the FMA with a power to designate a service as a 'regulated financial advice service' in response to future market and technological developments (212) should be regarded as a positive and flexible tool to help the FMA clarify the parameters of financial advice regulation in years to come.
It is hoped that the innovative approaches to financial advice regulation identified in this article will encourage policy makers in the three jurisdictions to further consider options for regulating the continuously-developing financial advice industries in the years to come.
ROBIN BOWLEY, Lecturer, University of Technology Sydney Faculty of Law
(1) This article discusses the legislative and regulatory arrangements in place as at 25 May 2017.
(2) For an excellent comparative analysis of the conduct of business rules for financial advisers in New Zealand, Australia, and the United Kingdom (particularly relating to the regulation of conflicted remuneration), see Victoria Stace 'New Zealand's Financial Adviser Regulation: Falling behind in the wake or overseas reforms' (2015) 26 New Zealand Universities Law Review 869.
(3) See for example Financial System Inquiry, Financial System Inquiry Final Report (Australian Government, 7 December 2014), 233-235.
(4) Corporations Act 2001 (Cth) s 760A.
(5) Ibid s 761G.
(6) For an interesting critique of the broadly-expressed nature of Ch 7, see Kevin Lewis 'When is a financial product not a financial product?' (2004) 22 Companies and Securities Law Journal 103.
(7) Corporations Act 2001 (Cth) s 766B(1) defines 'financial product advice' as meaning a recommendation or statement of opinion that is intended to influence a person in making a decision in relation to a financial product or class of financial products, or an interest in a particular financial product or class of financial products; or could reasonably be regarded as being intended to have such an influence.
(8) Ibid ss 946A-947E.
(9) These include Financial Services Guides (which set out the scope of financial services provided by the AFS Licensee--see ibid ss 941A-9431"), and Product Disclosure Statements (which set out the features of relevant financial products--see ibid ss 1011A-1016F).
(10) Parliamentary Joint Committee on Corporations and Financial Services, Inquiry into financial products and services in Australia, November 2009.
(11) Corporations Act 2001 (Cth) ss 963-968.
(12) Ibid s 961B.
(13) Ibid s 961J. For a comprehensive discussion of the FOFA reforms, see Andrew Serpell 'The future of financial advice reforms' (2012)30 Companies and Securities Law Journal 240.
(14) ASIC Regulatory Guide 244 'Giving information, general advice and scaled advice' (December 2012).
(15) See for example ASIC Regulatory Guide 36 'Licensing: Financial product advice and dealing' (June 2016) and ASIC Regulatory Guide 175 'Ficensing: Financial product advisers--Conduct and disclosure' (March 2017).
(16) Corporations Act 2001 (Cth) s 912A(1)(e).
(17) Ibid s 912A(1)(f).
(18) ASIC Regulatory Guide 105 'Licensing: Organisational competence' (December 2016)--with these options including meeting widely adopted and relevant industry standard or relevant standard set by APRA; being individually assessed by an authorised assessor as having relevant knowledge equivalent to a diploma; holding a university degree in a relevant discipline and complete a relevant short industry course; and holding a relevant industry- or product-specific qualification equivalent to a diploma (or higher).
(19) ASIC Regulatory Guide 146 'Licensing: Training of financial product advisers' (July 2012), 18.
(20) Ibid 34.
(21) Ibid 146.6 delines Tier 2 products as 'General insurance products, except for personal sickness and accident (as defined in Corporations Regulation 2001 (Cth) reg 7.1.14); consumer credit insurance (as defined in reg 7.1.15); basic deposit products; non-cash payment products; and First Home Saver Account deposit accounts'.
(22) Corporations Act 2001 (Cth) s 910A--discussed in IIIB3 below.
(23) Ministry of Business, Innovation and Employment Final Report: Review of the operation of the Financial Advisers Act 2008 and the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (July 2016), 6--noting that s 161 of the Financial Advisers Act 2008 (NZ), and s 45 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008 (NZ) both require reviews of the operation of these Acts, and recommendations for amendments, live years after their commencement. See also David Ireland and Tom McLaughlin 'The shifting sands of financial services regulation in New Zealand (2016) 31 Australian Journal of Corporate Law Al
(24) NZ Parliament Report of the Commerce Committee: Inquiry into finance company failures (October 2011), 11-13.
(25) Ministry of Business, Innovation and Employment, above n 23, 4.
(26) Victoria Stace 'Mis-selling financial products: When can the customer claim in negligence?' (2016) 6 Journal of Business Law 517, 519. The reports from this review between 2005 and 2008 arc accessible at Ministry of Business, Innovation and Employment Review of Financial Products and Providers <http://www.mbie.govt.nz/info-services/business/business-law/pastwork-older-topics/ review-of-financial-products-and-providers> (24 December 2015).
(27) NZ Parliament Inquiry into finance company failures, Report of the Commerce Committee. (October 2011), 19-20 <http://www.parliament.nz/resource/minz/49DBSCH_SCR5335_1/0d9cfef1280ab5ba97f9569c8f965bfd7374305f>--cited in Ministry of Business, Innovation and Employment, above n 23, 15.
(28) Ministry of Economic Development, Capital Markets Matter: Summary Report of the Capital Market Development Taskforce (December 2009).
(29) Financial Advisers Act 2008 (NZ) s 5; Ministry of Business, Innovation and Employment, above n 23, 20.
(30) Financial Service Providers (Registration and Dispute Resolution) Act 2008 (NZ) s 5.
(31) Financial Advisers Act 2008 (NZ) ss 13, 14.
(32) Ibid s 15(1).
(33) Ibid s 15(3).
(34) Ibid s 8--which defines a 'financial adviser' as a person who provides a financial adviser service.
(35) Ministry of Business, Innovation and Employment, above n 23, 22 explains that the term 'RFA' is not defined in the legislation--although s 16(b) of the Financial Advisers Act 2008 (NZ) refers to financial advisers including 'an individual who is registered but not authorised'.
(36) Ministry of Business, Innovation and Employment, above n 23, 22-24, 32.
(37) Ibid 24-25.
(38) The Financial Services Register is accessible at: <https://www.companiesoffice.govt.nz/fsp/>.
(39) Ministry of Business, Innovation and Employment, above n 23, 27.
(40) Financial Service Providers (Registration and Dispute Resolution) Act 2008 (NZ) s 49(1) defined as a person who receives a financial service who is not a wholesale client--with s 49(2) then listing nine categories of wholesale clients. In this respect the NZ legislation takes the opposite approach to the Australian Corporations Act 2001 (Cth), which as I1C explained, assumes that financial services are provided to clients as retail clients unless they qualify as wholesale clients.
(41) Financial Advisers Act 2008 (NZ) ss 23-24.
(42) Ibid s 37.
(43) Financial Markets Authority Code of Conduct for Authorised Financial Advisers (1 December 2016) <https://fma.govt.nz/assets/Code-of-Professional-Conduct-for-AFAs/Code-ofProfessional-Conduct-for-AFAs.pdf>.
(44) Financial Markets Authority, above n 43, 15.
(45) Ibid 17-18.
(46) Ministry of Business, Innovation and Employment, above n 23, 23.
(47) George Walker and Robert Purves (eds), Financial Services Law (3rd edition, 2014), 743.
(48) For an overview of the evolution of financial market regulation in the FIK since 1936, sec ibid 737-744.
(49) Ibid 792-794.
(50) Ibid 792-794.
(51) Ibid 3-6.
(52) Although the I'SMA, which is jointly administered by the FCA and the I'RA refers to 'the Authority', this paper focuses only on the FCA.
(53) Financial Services and Markets Act 2000 (UK) s 19 (containing the general prohibition--unless the person is authorised or exempt).
(54) In the FCA Handbook, mandatory rules are followed by an 'R'--whereas guidance is followed by a 'G': above n 47, 8 10.
(55) George Walker and Robert Purves, above n 47, 5.39.
(56) Financial Conduct Authority 'TC Training and Competence Sourcebook' <www.handbook.fca.org.uk> (accessed 11 May 2017), TC 1.1.1.
(57) Most other forms of insurance are regulated under the FCA's Insurance Conduct of Business Sourcebook (ICOBS).
(58) Financial Conduct Authority 'COBS Conduct of Business Sourcebook' <www.handbook.fca.org.uk> (accessed 11 May 2017), COBS 1.1.1.
(59) Ibid 3.4.1--defined as 'a client who is not a professional client or eligible counterparty'.
(60) Ibid 2.1.1.
(61) 'Stakeholder products' are defined in Article 52B(3) of the Regulated Activities Order--the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI 2001/544)--as including Child Trust Funds and Pension Schemes.
(62) Financial Conduct Authority 'COBS Conduct of Business Sourcebook' above n 58, 9.6; IIM Treasury Financial Advice Market Review: Final Report (March 2016), 19, 34. Financial Conduct Authority 'TC Training and Competence Sourcebook' above n 56, 1.1.4 G explains that 'In this sourcebook, "competence" means having the skills, knowledge and
(63) expertise needed to discharge the responsibilities of an employee's role. This includes achieving a good standard of ethical behaviour'.
(64) TC Appendix 1 specifies the 26 activities to which the training and Competence requirements apply--subject to the exceptions in TC App 2 and TC App 3--and then specifics whether an 'appropriate qualification' is required for these activities.
(65) Financial Conduct Authority 'TC Training and Competence Sourcebook' above n 56, 1.1.1 Subject to the limitations set out in TC App 3.
(66) For activities specified in TC App I.
(67) Financial Conduct Authority, 'TC T raining and Competence Sourcebook', above n 56, 2.1.1 R which specifies additional knowledge and competence requirements for firms that act as Mortgage Credit Derivative creditors or intermediaries; and with TC App 1.1.1 R providing that 'basic advice' in respect of 'stakeholder products' docs not have an 'appropriate qualification' requirement.
(68) Ibid TC App 4.
(69) Ibid TC 2.2A R.
(70) Ibid TC 2.1.2 R. Also TC 2.1.3 G provides guidance on the factors firms should consider when determining the appropriate level of supervision of employees.
(71) Ibid TC 2.1.5 R.
(72) Ibid TC 2.1.9 R.
(73) Ibid TC 2.1.12 R.
(74) Ibid TC 2.1.15 R--which provides exceptions in eases such as illness and parental leave.
(75) Financial Conduct Authority 'COCON Code of Conduct Sourcebook' <www.handbook.lca.org.uk> (accessed II May 2017), COCON 1.1.2 R specifies the persons to whom COCON applies, with COCON 2 then specifying the general conduct obligations of such persons.
(76) Financial Conduct Authority 'TC Training and Competence Sourcebook', above n 56, TC 2.1.26 R.
(77) Ibid TC 2.1.27 R.
(78) Ibid TC 2.1.31.
(79) See for example ASIC Report 515 Financial advice: Review of how large institutions oversee their advisers (17 March 2017) <http://download.asic.gov.au/media/4186280/rep515-publishedl7-march-2017.pdf>; and ASIC Report 499 Financial advice: Fees for no service (27 October 2016) <http://download.asic.gov.au/media/4054607/rep499-published-27-octobcr-2016.pdf>.
(80) ASIC Information Sheet 151 'ASIC's Approach to Enforcement' (February 2012).
(81) ASIC Media Release 17-100MR 'Federal Court declares Melbourne licensee breached FOFA laws'(4 April 2017).
(82) ASIC v NSG Services Pty Ltd  FCA 345 -,
(83) Ibid -.
(84) Ibid [751.
(85) Corporations Act 2001 (Cth) s 1317E.
(86) ASIC v NSG Services Pty Ltd [20171 FCA 345 .
(87) Corporations Act 2001 (Cth) s 914A.
(88) Ibid s 915C.
(89) Ibid s 920A.
(90) ASIC Regulatory Guide 98 'Licensing: Administrative action against financial services providers'(July 2013).
(91) Corporations Act 2001 (Cth) s 1317B.
(92) Masu Financial Management Pty Ltd and ASIC [2017| A ATA 97 -,
(93) Australian Securities and Investments Commission Act 2001 (Cth) s 93AA; Sec also ASIC Regulatory Guide 100 'Enforceable Undertakings' (February 2015).
(94) ASIC Media Release I2-58MR 'ASIC releases lirst enforcement report' (29 March 2012).
(95) Financial Advisers Act 2008 (NZ) s 59 (for AI'As) and s 751) (for QFEs).
(96) Ibid s 61 (for AFAs) and s 75F (for QFEs).
(97) Ibid s I37M, with s I37S making it an offence to fail to comply with such orders.
(98) Ibid s 98; See also <www.fade.govt.nz>.
(99) Financial Advisers Act 2008 (NZ) s 101.
(100) Ibid s 114.
(101) Ibid s 115.
(102) Financial Markets Authority Media Release 'David Ross sentenced for New Zealand's largest ever Ponzi' (15 November 2013) <https://fma.govt.nz/news/media-releases/david-rosssentenced-for-new-zealands- largest-ever-ponzi/>.
(103) Financial Markets Authority Media Release MR No. 2015-51 'SPG and SPGI director Andrew Robinson sentenced (27 October 2015) <https://fma.govt.nz/news/media-releases/spg-and-spgidirector-andrew- robinson-sentenced/>.
(104) Financial Markets Authority 'Enforceable undertaking from Stephen Duff (11 April 2016) <https://fma.govt.nz/news/enforcement-and-court-decisions/undertakings/enforceableundcrtaking-from-stephen-duff/>.
(105) Sean Floyd Woodv Financial Markets Authority (CIV-2011-085-954) , [111.
(106) Ibid , -,
(107) Ibid -,
(108) See for example Financial Markets Authority Licensing overview report: What we found and what you need to know to meet your obligations (24 May 2017). <https://fma.govt.nz/assets/Reports/versions/9516/170524-FMA-licensing-overview-report2017.1.pdf>.
(109) Financial Markets Authority Conduct Outcomes Report 2016. <https://fma.govt.nz/assets/Reports/170220-FMA-Conduct-Outcomes-Report-2016.pdf>; Sec also Financial Markets Authority 'The Financial Markets Authority publishes its first Conduct Outcomes Report' Media Release MR No 2017-05 (20 February 2017).
(110) If M Treasury, above n 62, 5.17
(111) The FCA's approach to enforcement is outlined in the Decision Procedure and Penalties Manual (DEPP), with DEPP 6A detailing the FCA's powers to impose suspensions, restrictions, conditions, limitations, or disciplinary prohibitions. See also HM Treasury, above n 62, 5.16; 5.79.
(112) Financial Services and Markets Act 2000 (LI K) s 56.
(113) Ibid s 66.
(114) Ibid s 205.
(115) Ibid s 206.
(116) Ibid s 206A.
(117) Ibid s 57 (for prohibition orders under FSMA s 55); and FSMA s 67 (for disciplinary orders under FSMA s 66).
(118) Bayliss & Co (Fin Services) and Clive John Rosier v FCA  IJKUT 0265 (TCC) [841 .
(119) Ibid -[139|.
(120) Ibid -.
(121) Ibid -16]; -.
(122) Ibid -; -.
(123) Bayliss and Co (Financial Services) Ltd and Anor v The Financial Conduct Authority  EWCA Civ 218.
(124) Sec for example Financial Conduct Authority The Assessing Suitability Review--Results (18 May 2017) <https://www.fca.org.uk/publication/mulli-lirm-revicws/asscssing-suilability-review.pdf>.
(125) For an overview of these sources of liability, see HM Treasury, above n 62, 51-57; Stace 'Mis-selling financial products: When can the customer claim in negligence?' above n 26 and George Walker and Robert Purves, above n 47, 273-324 (for FOS liability) and 567-588 (for civil liability under s 1381) of the FSMA).
(126) ASIC Regulatory Guide 255 'Providing digital financial product advice to retail clients' (August 2016), 4. See also Imogen Garner, Hannah Mcakin, Albert Weatherill, Anushka llerath, Gavin Punia, Matthew Gregory and Simon Fovegrove 'Fin l ech: Analysing the changing nature of financial services' (2016) Compliance Officer Bulletin 140, 18-19.
(127) For an overview of these inquiries, see Parliamentary Joint Committee on Corporations and Financial Services Inquiry into proposals to lift the professional, ethical and education standards in the financial services industry (December 2014), 3-15.
(128) The misconduct of these advisers had included allocating the assets of retail clients with conservative risk profiles (including retirees) into high-risk products without the clients' knowledge, and in several cases through forgery and dishonest concealment of material facts. Whilst many retail clients experienced major losses through this misconduct, several of CFPL's financial advisers received significant bonuses and other rewards: Senate Economics Committee Performance of the Australian Securities and Investments Commission (June 2014), 109-124.
(129) Senate Economics Committee, above n 128, xxiii xxxiv.
(130) Senate Economics Committee, above n 128, 393-394. Financial System Inquiry, above n 3, 222-226 <http://fsi.gov.au/publications/final-report/>; See also improving Australia's financial system Government response to the Financial System Inquiry' (Commonwealth Treasury, 20 October 2015).
(132) Financial System Inquiry, above n 3, 271-272.
(133) Parliamentary Joint Committee on Corporations and Financial Services, above n 127, <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_FinancialServices/Financial Adviser_Qualifications/Report>.
(134) Ibid 17-22.
(135) Ibid 23-26.
(136) Ibid 26-30.
(137) Ibid 35-45.
(138) Ibid 35-45.
(139) Ibid 49-52.
(140) Ibid 59-65.
(141) Corporations Act 2001 (Cth) s 910A--which defines 'relevant financial products' as financial products other than basic banking products, general insurance products, consumer credit insurance or a combination of such products.
(142) Corporations Act 2001 (Cth) s 921 B(2).
(143) Ibid s 921 B(3).
(144) Ibid s 921 B(4).
(145) Ibid s 910A.
(146) Ibid s 921F.
(147) Ibid s 921B(5).
(148) Ibid s 921E.
(149) Ibid s 920A (db)-(de).
(150) The Hon Kelly O'Dwyer MP Minister for Revenue and Financial Services--Media Release 'Financial Adviser Standards and Ethics Authority appointments' (10 April 2017) <http://kmo.ministers.treasury.gov.au/media-release/033-2017/>.
(151) ASIC Regulatory Guide 255 'Providing digital financial product advice to retail clients' (August 2016).
(152) Ministry of Business, Innovation and Employment, above n 23, 9-10 summarises the consultation process. Also at 6 the MBIE Review notes that s 161 of the FA Act 2008, and s 45 of the FSP Act 2008 both require reviews of the operation of these Acts, and recommendations for amendments, five years after their commencement.
(153) For an overview of the financial advice reforms see Ministry of Business, Innovation and Employment Improving access to quality financial advice (21 April 2017) <www.mbie.govt.nz/faareview>.
(154) Ministry of Business, Innovation and Employment, above n 23, 42.
(155) Ministry of Business, Innovation and Employment, above n 23, 72.
(156) Ministry of Business, Innovation and Employment, Consultation Paper--New Financial Advice Regime: The draft Financial Services Legislation Amendment Bill and proposed transitional arrangements (February 2017), 12.
(157) Whilst s 15 of the FA Act uses the term 'personalised service', the MIME Review uses the term 'personalised advice', which is used here for consistency.
(158) Ministry of Business, Innovation and Employment, above n 23, 40-42: noting concerns about AFAs being unwilling to provide personalised advice unless it was part of a full financial plan.
(159) Ministry of Business, Innovation and Employment, above n 23, 67.
(160) Ministry of Business, Innovation and Employment, above n 156, 16-17.
(161) Ibid 18, 35-36. Additionally, Schedule 2 of the FSLA Bill (which creates a schedule to the FMC Act dealing with the more specific aspects of the regulation of financial advice) provides an exception in cases where advice is given only as an incidental part of a business.
(162) These duties will include ensuring that financial advisers and representatives comply with the advice duties; having clear and effective processes, controls and limitations for their representatives; and not providing inappropriate incentives to their representatives: Ministry of Business, Innovation and Employment, above n 156, 19-21.
(163) Ibid 21.
(164) Ibid 25.
(165) Ibid 24.
(166) Ibid 26.
(167) Ministry of Business, Innovation and Employment, above n 23, 42-44.
(168) Ibid 44."
(169) Ibid 67-71.
(170) Ibid 68.
(171) Ibid 68-69.
(172) Ministry of Business, Innovation and Employment, above n 156, 12-15.
(173) Ibid 19.
(174) Ministry of Business, Innovation and Employment, 'Improving access to quality financial advice' (Press Release, 21 June 2017).
(175) Ministry of Business, Innovation and Employment, above n 156, 38.
(176) Ibid 38.
(177) Ibid 39.
(178) Ministry of Business, Innovation and Employment, above n 23, 39-40, 62, 67.
(179) Ministry of Business, Innovation and Employment, above n 156, 19.
(180) Ministry of Business, Innovation and Employment, above n 23, 59-60. In 2015 the MBIE also completed a review on the operation of Part 2 of the FSP Act (which provides for the registration of financial services providers); however as that review was focused on the operation of the FSPR rather than the regulation of financial advice it is not examined in this paper.
(181) Ministry of Business, Innovation and Employment, above n 156, 27-31.
(182) HM Treasury, above n 62, 5-6.
(183) Ibid 5-8.
(184) Financial Conduct Authority, 'Financial Advice Working Group established' (20 June 2016) <https://www.rca.org.uk/news/news-slories/rinancial-advice-working-group-established>.
(185) For a summary of the responses by the l-'AWG, sec Financial Advice Working Group, 'Final Report for 11 Ml Treasury and the Financial Conduct Authority Financial Advice Working Group: Foreword' (March 2017) <https://www.fca.org.uk/publication/research/fawg-linal-rcportsloreward.pdf
(186) IIM Treasury, above n 62, 19.
(187) Ibid 28-29.
(188) Ibid 49--For 'guidance' the FAMR suggested the terms 'Financial guidance'; 'Guidance without a personal recommendation'; 'Assisted self-help'; 'General advice'; 'Financial help'; and 'Tailored information'. For 'advice' the FAMR suggested the terms 'Financial advice'; 'Advice with a personal recommendation'; 'Specialist advice'; 'Regulated financial advice'; 'Professional advice'; 'Personal advice'; 'Financial planning'.
(189) Financial Advice Working Group, 'Final Report for IIM Treasury and the Financial Conduct Authority: Consumer explanations of "advice" and "guidance"' (March 2017).
(190) Ibid 6.
(191) Ibid 25.
(192) Ibid 30-31.
(193) HM Treasury, above n 62, 49-50.
(194) Ibid 49-50.
(195) Financial Advice Working Group, 'Final Report for HM Treasury and the Financial Conduct Authority: Rules of Thumb and Nudges--Improving the financial well-being of UK consumers' (March 2017).
(196) Ibid iv.
(197) Ibid iv.
(198) MM Treasury, above n 62, 27-35.
(199) MM treasury Financial Market Review: Progress Report (April 2017), <https://www.fca.org.uk/publication/corporate/famr-progress-rcport.pdf> 4-8.
(200) MM t reasury, above n 62, 42-45.
(201) Financial Advice Working Group, 'Final Report for MM Treasury and the Financial Conduct Authority: Financial Well-being in the Workplace--A Way Forward' (March 2017), 2.
(202) HM Treasury, above n 62, 39-41.
(203) Ibid 6.
(204) See IA above.
(205) See 1A above.
(206) See IIIB3 above.
(207) See IIIB4 above.
(208) Sec IIID2 above.
(209) See IIID3 above.
(210) See IIID4 above.
(211) See IIIC3 above.
(212) See IIIC3 above.
Table 2: FAWG explanation of'guidance' and 'advice' (developed through consumer research) (192) 'Guidance' * Guidance is an impartial service which will help you to identify your options and narrow down your choices but will not tell you what to do or which product to buy; the decision is yours * Providers of guidance are responsible for the accuracy and quality ofthe information they provide but not for any decision you make based on it. * Guidance is free unless your provider clearly tells you otherwise. * It will suggest what you could do. 'Advice' * Advice will recommend a specific product or course of action for you to take given your circumstances and financial goals. This will be personal to you, based on information you provide * Advice will be provided by a qualified and regulated individual or online by a regulated organisation * Providers of advice are responsible and liable for the accuracy, quality and suitability of the recommendation that they make and you are protected by law * You will usually pay a fee for advice. Fees will be disclosed before you are asked to commit yourself * It will recommend what you should do
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|Title Annotation:||Special Colloquium Section on Contested Domains: Regulatory Challenges in Banking and Finance|
|Publication:||University of Queensland Law Journal|
|Date:||Jun 1, 2017|
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