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Economics Legislation Committee—Senate Standing—Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Bill 2021—Report, dated July 2021


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July 2021

The Senate

Economics Legislation Committee

Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Bill 2021 [Provisions]

© Commonwealth of Australia

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iii

Members

Chair Senator Slade Brockman LP, WA

Deputy Chair Senator Anthony Chisholm ALP, QLD

Members Senator Jess Walsh ALP, VIC

Senator Andrew Bragg LP, NSW

Senator Susan McDonald NATS, QLD

Senator Rex Patrick IND, SA

Secretariat Mr Mark Fitt, Committee Secretary Dr Andrew Gaczol, Principal Research Officer Ms Eleonora Fionga, Administrative Officer Ms Taryn Morton, Administrative Officer

PO Box 6100 Phone: 02 6277 3540

Parliament House Fax: 02 6277 5719

Canberra, ACT 2600 Email: economics.sen@aph.gov.au

v

Contents

Members ............................................................................................................................................. iii

Chapter 1—Introduction .................................................................................................................... 1

Chapter 2—Views on the bill.......................................................................................................... 21

Additional Comments—Labor Senators....................................................................................... 33

Dissenting Report—Senator Rex Patrick ...................................................................................... 35

Appendix 1—Submissions .............................................................................................................. 37

Appendix 2—Public hearings ......................................................................................................... 39

List of Tables

Table 1.1—Summary of new law ....................................................................................................... 8

Table 1.2—Commencement information ........................................................................................ 10

1

Chapter 1 Introduction

Referral of the inquiry 1.1 On Thursday, 24 June 2021, the Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Bill 2021 (the bill) was introduced into the House of Representatives.1

1.2 On the same day, the Senate referred the provisions of the bill to the Senate Economics Legislation Committee (the committee) for inquiry and report by 28 July 2021.2

Background 1.3 The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry ('the Hayne Royal Commission') was headed by Commissioner, the Honourable Kenneth Madison Hayne AC QC.3

1.4 The Commission was established on 14 December 2017 by the

Governor-General of the Commonwealth of Australia, His Excellency General the Honourable Sir Peter Cosgrove AK MC (Retd).

1.5 The Royal Commission's terms of reference were extensive covering the following key areas: banking; financial advice; superannuation; insurance; culture, governance and remuneration; and the regulators in the banking sector.

1.6 Commissioner Hayne published an interim report on 28 September 2018 followed by his final report which was submitted to the Governor-General on 1 February 2019 and tabled in the Parliament on 4 February 2019.4

1.7 The Royal Commission's findings were that greed has been a major factor in banking practices far beyond what might be expected. A culture existed in

1 House of Representatives, Votes and Proceedings, No. 129, Thursday, 24 June 2021, p. 2071.

2 Journals of the Senate, No. 6, Thursday, 24 June 2021, p. 3757.

3 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry,

Australian Government webpage, https://www.royalcommission.gov.au/royal-commission-misconduct-banking-superannuation-and-financial-services-industry (accessed 2 July 2021).

4 Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry,

Australian Government webpage, https://www.royalcommission.gov.au/royal-commission-misconduct-banking-superannuation-and-financial-services-industry (accessed 2 July 2021).

2

which profit was rewarded above all else with incentives and rewards offered irrespective of the sale being conducted according to law or policy.5

1.8 Commissioner Hayne put forward 76 recommendations, 27 of which have already been implemented, many of which could present significant changes for the banking, superannuation and insurance sector, including:

(a) a legal duty by mortgage brokers to act in the best interests of the borrower, punishable by civil penalties; (b) a requirement that borrowers, rather than lenders, pay the mortgage brokers’ services, with Lenders barred from providing a trailing

commission to mortgage brokers on all new loans; (c) grandfathering commissions to financial advisors to be banned; (d) creation of a disciplinary body and disciplinary system for financial

advisers; (e) banks to be barred from charging dishonour fees on basic accounts; (f) banks to be barred from charging default interest on loans to farmers in areas affected by drought or other natural disasters; (g) motor dealers providing finance no longer to be exempt from national

consumer credit laws; (h) a cap on commissions to motor dealers for add-on insurance products; (i) commissions on life insurance products reduced to zero; (j) a single default superannuation fund for all workers to be carried over or

'stapled' to members as they move jobs; (k) no advice fees to be deducted from MySuper accounts; (l) unsolicited selling of superannuation and insurance products banned; (m) funeral expense insurance policies no longer to be exempt from being a

'financial product' and therefore coming under ASIC regulation; (n) creation of a new authority independent of Government to oversee ASIC and APRA; and (o) establishment of a Government funded compensation scheme of last resort

for victims of financial misconduct.6

Purpose of the bill 1.9 According to the Explanatory Memorandum (EM), the bill implements the Government's response to Recommendation 2.10 of the Financial Services Royal Commission Final Report7 by:

5 'The Key Findings of the Banking Royal Commission', Bennett & Philip Layers webpage,

5 February 2019, https://www.bennettphilp.com.au/blog/key-findings-banking-royal-commission (accessed 2 July 2021).

6 'The Key Findings of the Banking Royal Commission', Bennett & Philip Layers webpage,

5 February 2019, https://www.bennettphilp.com.au/blog/key-findings-banking-royal-commission (accessed 2 July 2021).

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 expanding the role of the Financial Services and Credit Panel within Australian Securities and Investments Commission (ASIC) to operate as the single disciplinary body for financial advisers to ensure that less serious misconduct does not go unaddressed;  creating new penalties and sanctions for financial advisers who have

breached their obligations under the Corporations Act 2001;  introducing a new registration system for financial advisers to improve the accountability and transparency of the financial services sector; and  transferring functions from Financial Adviser Standards and Ethics

Authority (FASEA) to the Minister responsible for administering the Corporations Act 2001 and to ASIC to streamline the regulation of financial advisers.8

1.10 The bill also implements the Government’s response to Recommendation 7.1 of the Tax Practitioners Board Review9 by introducing a single registration and disciplinary system under the Corporations Act 2001 for financial advisers who provide tax (financial) advice services and removing duplicate regulation.10

7 'Recommendation 2.10 - A new disciplinary system

The law should be amended to establish a new disciplinary system for financial advisers that:

 requires all financial advisers who provide personal financial advice to retail clients to be registered;  provides for a single, central, disciplinary body;  requires AFSL holders to report ‘serious compliance concerns’ to the disciplinary body; and  allows clients and other stakeholders to report information about the conduct of financial

advisers to the disciplinary body.' Hayne Royal Commission, Final Report, p. 28.

8 Explanatory Memorandum, p. 9.

9 'Recommendation 7.1

The Review recommends, in alignment with implementing Recommendation 2.10 of the Final Report of the Financial Services Royal Commission, a new model be developed for regulating tax (financial) advisers in consultation with ASIC, FASEA, the TPB and Treasury. This new model should incorporate the following features:

(a) single point of registration for individuals; (b) requirement to abide by only the one code of conduct; and (c) any disciplinary action involving the provision of tax advice is decided by experts from the tax profession.

Until the new model is developed the status quo should be retained.' Final Report, p. 77.

The entire Final Report can be found at: https://treasury.gov.au/review/review-tax-practitioners-board-final-report, (accessed 5 July 2021).

10 Explanatory Memorandum, p. 9.

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Provisions of the bill 1.11 The bill contains two schedules:

Schedule 1—Initial amendments

Part 1—Main amendments

Australian Securities and Investments Commission Act 2001

Corporations Act 2001

Part 2—Other amendments

Division 1—Amendments

Freedom of Information Act 1982

National Consumer Credit Protection Act 2009

Tax Agent Services Act 2009

Division 2—Application of amendments to the Tax Agent Services Act 2009

Part 3—Contingent amendments

Corporations Act 2001

Schedule 2—Later amendments

Corporations Act 2001

1.12 In his second reading speech, the Assistant Treasurer, the Hon. Michael Sukkar MP, provided an overview of the above schedules noting that:

This bill will empower the Financial Services and Credit Panel within ASIC as the single disciplinary body for financial advisers. The panel will be provided with new sanction powers to enable it to fully perform its disciplinary functions, including being able to issue an infringement notice, require that the financial adviser undertake additional training and recommend to ASIC that it seek a civil penalty. The bill will also require all financial advisers who provide personal financial advice to retail clients to be registered.

This fulfils the government's commitment to implement

Recommendation 2.10 of the financial services royal commission. The royal commission highlighted that the financial advice industry lacked an effective system of professional discipline, as a result of there being too many different pathways for consumer complaints and ineffective sanctions to deal with misconduct appropriately. In addition, while sanctions are available to ASIC, the lack of less serious sanctions means that ASIC generally only focuses on the most serious incidents.

The bill will also provide that tax (financial) advisers will no longer be regulated by the Tax Practitioners Board but instead be regulated only under the Corporations Act 2001. This implements Recommendation 7.1 of the Tax Practitioners Board review, which recommended that a new model

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be developed for regulating tax (financial) advisers in alignment with implementing Recommendation 2.10 of the royal commission.

Importantly, the bill also winds up the Financial Adviser Standards and Ethics Authority and transfers its functions to the minister responsible for the Corporations Act 2001 and ASIC.

These reforms will further streamline the number of bodies involved in the oversight of financial advisers, resulting in continuous improvements to the regulatory framework for the financial advice sector and enhanced access for Australians to affordable and quality financial advice.

Finally, the Legislative and Governance Forum for Corporations was consulted in relation to the bill and has approved it as required under the Corporations Agreement 2002.11

The bill in more detail

Single disciplinary body for financial advisers 1.13 The bill implements Recommendation 2.10 of the Financial Services Royal Commission Final Report by establishing a single disciplinary body for relevant providers.12

1.14 A 'relevant provider' is defined as an individual who is authorised to provide personal advice to retail clients in relation to relevant financial products, as the holder of an Australian financial services licence or on behalf of the licensee. In this explanatory memorandum, the term 'financial adviser' is used instead of 'relevant provider'.13

1.15 The bill expands the role of the Financial Services and Credit Panel within ASIC to take on the functions of the single disciplinary body for financial advisers.14

1.16 In prescribed circumstances, ASIC must convene a Financial Services and Credit Panel. A Financial Services and Credit Panel must comprise a minimum of at least two industry participants, which ASIC must select from a list of eligible persons appointed by the Minister. The Chair of the panel will always be an ASIC staff member.15

1.17 The list of eligible persons appointed by the Minister could include representatives from the financial services industry, such as financial advisers

11 House of Representatives, Hansard, 24 June 2021, pp. 6-7.

12 Explanatory Memorandum, p. 11.

13 Explanatory Memorandum, p. 11.

14 Explanatory Memorandum, p. 11.

15 Explanatory Memorandum, p. 11.

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and financial services licensees, as well as people with experience in other fields, such as law, economics, accounting and tax.16

1.18 Once convened, a Financial Services and Credit Panel may take administrative action against a financial adviser. The types of administrative actions that a panel can take against a financial adviser are warnings or reprimands, directions to undertake specified training, supervision, counselling or reporting, and orders suspending or cancelling an adviser’s registration. For certain types of breaches, a Financial Services and Credit Panel may give the adviser an infringement notice or recommend that ASIC apply to the court for a civil penalty.17

1.19 Except in cases where a warning or reprimand is to be given to a financial adviser, before a Financial Services and Credit Panel can issue an infringement notice or make an instrument taking other administrative action, the panel must give the financial adviser a notice with:

 details of the relevant circumstances;  the proposed sanction; and  the adviser’s right to request a hearing or make a submission to the panel.18

1.20 If ASIC reasonably believes that a person has contravened a restricted civil penalty provision or that a specified circumstance exists or has occurred and does not take alternate enforcement action or convene a Financial Services and Credit Panel, ASIC must give the financial adviser a written warning or reprimand.19

1.21 ASIC must include details of the sanction on the Register of Relevant Providers (Financial Advisers Register) if the sanction is of a kind prescribed by regulations.20

1.22 Where it is appropriate to do so, a Financial Services and Credit Panel can accept an enforceable undertaking from a financial adviser, as an alternative to administrative or civil sanctions.21

Registration of financial advisers 1.23 The bill introduces a two-stage registration process for financial advisers:22

16 Explanatory Memorandum, p. 11.

17 Explanatory Memorandum, p. 11.

18 Explanatory Memorandum, p. 11.

19 Explanatory Memorandum, p. 12.

20 Explanatory Memorandum, p. 12.

21 Explanatory Memorandum, p. 12.

22 Explanatory Memorandum, p. 12.

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 Stage 1 registration commences after 1 January 2022 and involves a one-off registration process administered by ASIC using the existing Register of Relevant Providers (Financial Advisers Register). This stage requires financial services licensees to apply to ASIC to register their financial advisers;23 and  Stage 2 registration commences on a day set by proclamation (or if no such

proclamation is made within the specified period, four years after the day this Act receives Royal Assent). The commencement of Stage 2 registration coincides with the delivery of the new Australian Business Registry Service administered by the Australian Taxation Office. This stage requires eligible individuals to apply to the Registrar to register themselves and renew their registration annually.24

Wind up of FASEA and transfer of its standards functions to the Minister and ASIC 1.24 On 1 January 2022, FASEA will be wound up and its functions transferred to the Minister responsible for administering the Corporations Act 2001 and to

ASIC.25

1.25 The Minister will be responsible for making education and training standards for financial advisers, including approving principles for the financial adviser exam, and a Code of Ethics. The Minister will also be responsible for approving foreign qualifications.26

1.26 ASIC will be responsible for administering the financial adviser examination in accordance with the principles approved by the Minister.27

Regulation of tax (financial) advisers 1.27 The bill also implements recommendation 7.1 of the Tax Practitioners Board Review by introducing a single registration and disciplinary system for tax (financial) advisers.28

1.28 The Minister may make additional education and training standards for the provision of tax (financial) advice services.29

23 Explanatory Memorandum, p. 12.

24 Explanatory Memorandum, p. 12.

25 Explanatory Memorandum, p. 12.

26 Explanatory Memorandum, p. 12.

27 Explanatory Memorandum, p. 12.

28 Explanatory Memorandum, p. 13.

29 Explanatory Memorandum, p. 13.

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1.29 From 1 January 2022, financial advisers who meet the additional education and training requirements to provide tax (financial) advice services may do so without being registered under the Tax Agent Services Act 2009.30

1.30 A person or entity who provides tax agent services or business activity statement services (BAS services) must continue to be a registered tax agent or registered business activity statement agent (BAS agent) under the Tax Agent Services Act 2009.31

Summary of new law 1.31 The following table provides a summary of the new law:

Table 1.1 Summary of new law

New law Current law

Single disciplinary body for financial advisors

ASIC may be required to convene a Financial Services and Credit Panel if it reasonably believes that a financial adviser has breached their

Corporations Act 2001 obligations.

Once convened, a panel can:

 give a warning or reprimand;  make an instrument taking other administrative action;

or

 in certain circumstances - issue an infringement notice or recommend that ASIC apply to the court for a civil penalty.

ASIC may make banning orders for serious breaches of the Corporations Act 2001.

Registration of financial advisors

Stage 1 registration (commences no later than 1 January 2023) - financial services licensees are required to apply to ASIC to register their financial advisers.

Stage 2 registration (commences by

A financial services licensee is required to authorise a person to provide financial advice on their behalf.

30 Explanatory Memorandum, p. 13.

31 Explanatory Memorandum, p. 13.

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proclamation) - financial advisers are required to apply to the Registrar to register themselves annually.

Wind up of FASEA and transfer of its standard functions to the Minister and ASIC

The Minister is responsible for performing all of the standards setting functions.

ASIC must administer an exam for financial advisers in accordance with the principles approved by the Minister.

The Minister may establish a standards body by legislative instrument.

The standards body is responsible for performing all of the standards setting functions, including determining who will administer the financial adviser exam.

Regulation of tax (financial) advisors

To provide tax (financial) advice services, a person must either be a registered tax agent, or be a financial adviser who has met the additional education and training standard to provide tax (financial) advice

services under the Corporations Act 2001.

Financial advisers who provide tax (financial) advice services must:

 be registered as a tax (financial) adviser under the Tax Agent Services Act 2009, which includes meeting the Tax Agent Services Act 2009 education and experience requirements;

 comply with the Code of Professional Conduct under the Tax Agent Services Act 2009;

 be authorised as a financial adviser under the Corporations Act, which includes meeting Corporations Act education and training standards; and

 comply with the Code of Ethics under the Corporations Act.

Source: Explanatory Memorandum, pp. 13-14.

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Financial impact 1.32 The EM states funding for this measure was provided to the Department of Treasury in the 2021-22 Budget as part of an omnibus treasury measure— Treasury Portfolio—resourcing for Government priorities32. This included

$2.5 million in 2021-22 to fund the ongoing operational costs of FASEA and its wind-up costs after its industry funding agreement ceases on 30 June 2021.33

Regulation Impact Statement 1.33 The EM argued that the Financial Services Royal Commission Final Report has been certified as being informed by a process and analysis equivalent to a Regulation Impact Statement for the purposes of the Government decision to

implement this reform. The Financial Services Royal Commission Final Report and the Regulation Impact Statement certification is available from the Department of Prime Minister and Cabinet website.34

1.34 Similarly, the EM argued that the Tax Practitioners Board Review Final Report has been certified as being informed by a process and analysis equivalent to a Regulation Impact Statement for the purposes of the Government decision to implement this reform. The Tax Practitioners Board Review Final Report and Regulation Impact Statement certification is available from the Department of Prime Minister and Cabinet website.35

Commencement 1.35 The provisions of the bill take effect in accordance with the table below:

Table 1.2 Commencement information

Column 1 Column 2 Column 3

Provisions Commencement Date/ Details

1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table.

The day this Act received the Royal Assent.

2. Schedule 1, Parts 1 and 2 1 January 2022 1 January 2022

32 Budget 2020-21, Budget Measures, Budget Paper No. 2, 2021-22, p. 193.

33 Explanatory Memorandum, p. 8.

34 Explanatory Memorandum, p. 7. The relevant webpage is:

https://ris.pmc.gov.au/2019/09/26/government-response-financial-services-royal-commission, (accessed 23 July 2021).

35 Explanatory Memorandum, pp. 7-8. The relevant webpage is:

https://ris.pmc.gov.au/2020/12/03/review-tax-practitioners-board, (accessed 23 July 2021).

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3. Schedule 1, Part 3 At the same time as item 1150 of Schedule 1 to the Treasury Laws Amendment (Registries Modernisation and Other Measures)Act 2020 commences.

4. Schedule 2 A single day to be fixed by

Proclamation. However, if the provisions do not commence within the period of 4 years beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

Source: Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Bill 2021, p. 2.

Compatibility with human rights 1.36 The EM explained that the bill engages the following rights:

 Article 14 of the International Covenant on Civil and Political Rights (ICCPR);  Article 15 of the ICCPR;  Article 17 of the ICCPR;  Article 19 of the ICCPR; and  Article 6 of the International Convention on Economic, Social and Cultural

Rights (ICESR).

Strict liability offences 1.37 The strict liability offences in this bill may engage the right to a fair trial, as well as the presumption of innocence in Article 14 of the ICCPR. Article 14 of the ICCPR provides that everyone shall be entitled to a fair and public hearing

by a competent, independent and impartial tribunal established by law.36

1.38 The EM argued that given the need to deter misconduct, and the potential harm that could arise from non-compliance with these obligations, these new strict liability offences are considered a reasonable and proportionate means of achieving the legitimate objective of strengthening the regulation of the financial advice industry.37

Civil penalties 1.39 The bill introduces new civil penalty provisions, which may engage the right to a fair trial, as well as the presumption of innocence in Articles 14 and 15 of

36 Explanatory Memorandum, p. 80.

37 Explanatory Memorandum, p. 81.

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the ICCPR. Article 14(2) of the ICCPR recognises that all people have the right to be presumed innocent until proven guilty according to the law.38

1.40 The EM argued that the civil penalty provisions contained in this bill are not 'criminal' for the purposes of human rights law. While a criminal penalty is deterrent or punitive, these provisions are regulatory and disciplinary, and they do not, according to the EM, result in the same stigma or condemnation as criminal offences. Further, the provisions do not apply to the general public, but to a sector or class of regulated people (financial advisers and financial services licensees) who should be aware of their obligations under the Corporations Act 2001. These civil penalty provisions apply prospectively for conduct that occurs on or after commencement of the legislation on 1 January 2022 and therefore, according to the EM, uphold Article 15 of the ICCPR.39

Infringement notices 1.41 The bill may engage the right to a fair and public hearing in Article 14 of the ICCPR by extending the existing infringement notice regime in Part 9.4AB of the Corporations Act 2001 to provide for the Financial Services and Credit Panel

to be able to issue infringement notices where a financial adviser is alleged to have contravened a restricted civil penalty provision.40

1.42 The EM argued that the new infringement notice scheme in this bill is considered a reasonable and proportionate means of achieving the legitimate objective of introducing a new disciplinary system for financial advisers.41

The right against self-incrimination 1.43 The new information-gathering powers in the bill may engage the right against self-incrimination under Article 14(3)(g) of the ICCPR because they provide that a Financial Services and Credit Panel may require:

 a person to appear before the panel at a hearing to give evidence or produce specified documents, or both; and  a person appearing at the hearing to answer a question put to the person or produce a document.42

1.44 The EM argued that individual rights against self-incrimination are protected by ensuring that information obtained by the panel using these powers cannot

38 Explanatory Memorandum, pp. 81-82.

39 Explanatory Memorandum, pp. 82-83.

40 Explanatory Memorandum, p. 83.

41 Explanatory Memorandum, p. 84.

42 Explanatory Memorandum, p. 84.

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be used against the individual in criminal proceedings or in proceedings where the person may be liable to a criminal penalty.43

1.45 According to the EM, the bill also protects the rights of persons by granting the Financial Services and Credit Panel the power to restrict the publication of evidence given before the panel or matters contained in documents lodged with the panel. In determining whether to exercise this power, the panel must have regard to whether the evidence or material concerns the commission, alleged, or suspected commission of an offence against an Australian law. The publication of evidence or material when such a direction is in force is an offence of strict liability, the penalty for which is 120 penalty units44 ($26 640).45

1.46 The bill also protects persons and businesses from possible damage to their reputation by making the unauthorised use or disclosure of information by members, or former members, of a Financial Services and Credit Panel an offence. The penalty for this offence is two years imprisonment.46

1.47 Overall, the EM argued that the information gathering powers in the bill are considered to be consistent with the right against self-incrimination under Article 14(3)(g) of the ICCPR.47

Right to privacy 1.48 The bill engages the right to protection from unlawful or arbitrary interference with privacy under Article 17 of the ICCPR because it provides for:

 ASIC to disclose information to a Financial Services and Credit Panel and the Tax Practitioners Board;  a Financial Services and Credit Panel to disclose information to ASIC, the Tax Practitioners Board and another Financial Services and Credit Panel as

required or permitted by a law of the Commonwealth or state or territory, or for the purposes of performing the panel’s functions or exercising its powers; and  the Tax Practitioners Board to disclose information to a Financial Services and Credit Panel for the purposes of the panel performing its functions or exercising its powers.48

43 Explanatory Memorandum, p. 85.

44 Explanatory Memorandum, p. 85.

45 The value of a penalty unit is prescribed by the Crimes Act 1914 and is currently $222 for offences

committed on or after 1 July 2020. See ASIC's website: https://asic.gov.au/about-asic/asic-investigations-and-enforcement/fines-and-penalties/, (accessed 5 July 2021).

46 Explanatory Memorandum, p. 85.

47 Explanatory Memorandum, p. 85.

48 Explanatory Memorandum, p. 86.

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1.49 Any information that is shared between ASIC, a Financial Services and Credit Panel and the Tax Practitioners Board is, according to the EM, subject to strict protections and requires all reasonable measures to be taken to protect confidential information from unauthorised disclosure. This protection is reinforced by offence provisions, which provide that current or former members of a Financial Services and Credit Panel or the Tax Practitioners Board commit an offence if they use or disclose information other than as authorised. The penalty for these offences is two years imprisonment.49

Right to freedom of expression 1.50 The bill engages the right to freedom of expression in Article 19(2) of the ICCPR, which stipulates that all individuals shall have the right to freedom of expression, including the freedom to seek, receive and impart information 'of

all kinds'.50

1.51 Article 19(3) of the ICCPR provides that interferences with the right to freedom of expression may be permissible if they are provided by law and necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals. The EM argues that the bill engages these rights by:

 providing a Financial Services and Credit Panel the power to restrict the publication of evidence given to, or matters contained in documents lodged with the panel;

 making it an offence to publish evidence or information in breach of a direction that is in force; and  making the unauthorised use or disclosure of information an offence where it was obtained in connection with the performance of the panel’s functions

or the exercise of its powers by an individual who is or was a member of a Financial Services and Credit Panel.51

1.52 These provisions limit freedom of expression in a manner that is, according to the EM, reasonable, necessary and proportionate to a legitimate objective, namely for respect of the rights or reputation of others, as provided for in article 19(3) of the ICCPR.52

1.53 The restriction on the publication of specified information or material is according to the EM, essential to the proper functioning of a Financial Services and Credit Panel, noting that the information is provided for the limited purpose of proceedings before the panel. Restrictions on disclosure in this

49 Explanatory Memorandum, p. 86.

50 Explanatory Memorandum, p. 87.

51 Explanatory Memorandum, p. 87.

52 Explanatory Memorandum, p. 87.

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context are intended to protect confidential information given for the purposes of the panel’s examination of a particular issue. In deciding whether to make an order restricting the publication of specified material, the panel must take into account considerations such as public interest and privacy concerns, including protection of the reputation of persons and businesses.53

1.54 The EM argued that the bill is thus compatible with the right to freedom of expression in Articles 19(2) and (3) of the ICCPR.54

Right to work 1.55 The bill may engage the right to freely choose and accept work under Article 6(1) of the ICESR, which provides that everyone must be able to freely accept or choose their work and not to be unfairly deprived of work. The right

to work also requires that state parties provide a system of protection guaranteeing access to employment. This right must be made available in a non-discriminatory manner pursuant to article 2(1) of the ICESCR.55

1.56 Participation in Australia’s financial services sector is not a right; participation is only possible if relevant standards are met and is only granted by the Commonwealth to suitable persons. A person seeking the benefit of participation in this industry will do so in the knowledge that the existence of certain circumstances may result in their registration as a financial adviser being refused, suspended or cancelled, or another administrative action being taken against them. This is appropriate as it remains necessary to protect consumers and the integrity of Australia’s financial services sector against misconduct.56

1.57 Including a fit and proper person test in the bill, according to the EM, ensures that the Regulator receives notification of any advisers who pose a potential risk and is intended to allow action to be taken to ensure the integrity of financial services to retail clients is not compromised.57

Conclusion 1.58 In conclusion, the EM states that to the extent that the bill engages rights under Articles 14, 15, 17 and 19 of the International Covenant on Civil and Political Rights and Article 6 of the International Convention on Economic, Social and

Cultural Rights, it is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human

53 Explanatory Memorandum, p. 87.

54 Explanatory Memorandum, p. 87.

55 Explanatory Memorandum, pp. 87-88.

56 Explanatory Memorandum, p. 88.

57 Explanatory Memorandum, p. 88.

16

Rights (Parliamentary Scrutiny) Act 2011 as the limitations are appropriate, proportionate and achieve a legitimate objective.58

Legislative scrutiny 1.59 The Scrutiny of Bills Committee had reviewed the bill and published a report.

Scrutiny of Bills Committee 1.60 The Scrutiny of Bills Committee reported on the bill on 13 July 2021.59 They noted the following:

Strict liability offences 1.61 Item 12 of Schedule 1 to the bill seeks to insert proposed section 171A into the Australian Securities and Investments Commission Act 2001 (ASIC Act) which would make it an offence for a person to publish evidence given before a

Financial Services and Credit Panel where there is a direction restricting the publication of that evidence. The penalty for the offence is 120 penalty units. Proposed subsection 171A(2) provides that the offence is one of strict liability.

1.62 The Scrutiny of Bills Committee has scrutiny concerns about the application of strict liability to an offence carrying a penalty of 120 penalty units and does not consider that the explanation provided adequately justifies why a penalty that is double the amount recommended in the Guide to Framing Commonwealth Offences is required in this instance. The committee has also generally not accepted consistency with existing legislation to be a sufficient justification for applying strict liability in circumstances in which the penalty is inconsistent with the recommendations of the Guide to Framing Commonwealth Offences.

The Scrutiny of Bills Committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the

appropriateness of providing that the offence relating to the publication of restricted material in proposed section 171A is an offence of strict liability subject to a maximum penalty of 120 penalty units.60

Reversal of the evidential burden of proof 1.63 Item 12 of Schedule 1 to the bill seeks to insert proposed section 171D into the ASIC Act to provide that it is an offence for a member or former member of a Financial Services and Credit Panel to use or disclose information obtained in

connection with the performance of the panel's functions or exercise of the panel's powers. Proposed subsection 171D(2) provides an exception (offence-specific defence) to the offence in circumstances where the use or disclosure is

58 Explanatory Memorandum, p. 88.

59 Scrutiny of Bills Committee, Scrutiny Digest 10/21, 13 July 2021. https://www.aph.gov.au/-/media/Committees/Senate/committee/scrutiny/scrutiny_digest/2021/PDF/d10_21.pdf?la=en&hash =D680E407AB0D9634E48DFA4CEBAF516539E33815, (accessed 14 July 2021).

60 Scrutiny of Bills Committee, Scrutiny Digest 10/21, 13 July 2021, p. 7.

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for certain purposes, such as where the disclosure is to another entity for the performance of their functions or powers.

1.64 The Scrutiny of Bills Committee observed that is not apparent that matters such as whether the disclosure of information is to another government entity for the performance of that entity's functions, are matters peculiarly within the defendant's knowledge, or that it would be significantly more difficult or costly for the prosecution to establish the matters.

1.65 These matters appear to be matters more appropriate to be included as an element of the offence.

The Scrutiny of Bills Committee requested the minister's detailed justification as to the appropriateness of including the specified matters as offence-specific defences. The committee considers that it may be appropriate if the bill was amended to incorporate the matters in proposed subsection 171D(2) as elements of the offence and seeks the minister's advice regarding this matter.61

Significant matters in delegated legislation 1.66 Item 45 of Schedule 1 to the bill seeks to insert proposed section 921E into the Corporations Act 2001 to provide that the minister may, by legislative instrument, make a Code of Ethics. Proposed subsection 921E(3) provides a

relevant provider must comply with the Code of Ethics. A provider who fails to comply with the Code of Ethics may be subject to a restricted civil penalty. There is no guidance on the face of the bill as to what matters may be included in the Code of Ethics.

1.67 The Scrutiny of Bills Committee considers that this provision provides the minister with a broad discretionary power to mandate a Code of Ethics in circumstances where there is no guidance on the face of the bill as to how the power should be exercised.

1.68 Additionally, the Scrutiny of Bills Committee's consistent scrutiny view is that significant matters, such as the contents of an enforceable Code of Ethics, should be contained in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance the explanatory memorandum contains no justification as to why there is no detail regarding the matters to be included in the Code of Ethics on the face of the primary legislation. It is unclear to the committee why at least high-level guidance regarding the types of matters that may be included in the Code of Ethics cannot be included on the face of the primary legislation.

1.69 The Scrutiny of Bills Committee's concerns are heightened in this instance by the fact that a provider who fails to comply with the Code of Ethics may be

61 Scrutiny of Bills Committee, Scrutiny Digest 10/21, 13 July 2021. pp. 8-9.

18

subject to a restricted civil penalty of 5,000 penalty units or three times the benefit derived or detriment avoided because of the contravention.

In light of the above, the committee requests the minister's advice as to:

 why it is considered necessary and appropriate to provide the minister with a broad discretion to create a Code of Ethics by legislative instrument, without any guidance as to the matters that may be included in the Code on the face of the bill; and  whether the bill can be amended to provide at least high-level guidance

on as to the matters that may be included in a Code of Ethics.62

No-invalidity clause 1.70 Item 49 of Schedule 1 to the bill seeks to into insert proposed section 921K into the Corporations Act 2001 to provide that a Financial Services and Credit Panel may make instruments of a kind specified in proposed section 921L in relation

to a relevant provider in certain circumstances, for example, if the provider becomes insolvent or is convicted of fraud. Proposed section 921L provides that the types of instruments include directions to undertake training or specified counselling as well as written orders suspending or cancelling a provider's registration. Proposed section 921M provides that if an instrument is made under proposed section 921K, the Financial Services and Credit Panel must give a copy of the instrument to the provider, ASIC and any relevant financial services licensee. The instrument must be accompanied by a statement of reasons for the decision to make the instrument. The Financial Services and Credit Panel must also give the provider a notice informing them of their right to apply to have the instrument revoked or varied. Proposed subsection 921M(3) provides that a failure to comply with these requirements does not affect the validity of the instrument.

1.71 A legislative provision that provides that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a 'no-invalidity' clause. There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. Consequently, the committee expects a sound justification for the use of a no-invalidity clause to be provided in the explanatory memorandum to the bill. In this instance, the explanatory memorandum does not contain a justification for the inclusion of a no-invalidity clause in proposed section 921M.

62 Scrutiny of Bills Committee, Scrutiny Digest 10/21, 13 July 2021, p. 9.

19

The committee therefore requests the minister's advice as to why it is considered necessary and appropriate to include a no-invalidity clause in proposed subsection 921M(3) in relation to requirements for notifying providers about instruments made against them.63

1.72 As of Monday, 26 July 2021, the Scrutiny of Bills Committee had received no response to the above questions and requests.

Joint Committee on Human Rights 1.73 As of Monday, 26 July 2021, the Joint Committee on Human Rights had not published any comment on the bill.

Conduct of the inquiry 1.74 The committee advertised the inquiry on its website and wrote to relevant stakeholders and interested parties inviting written submissions by Friday, 9 July 2021.

1.75 The committee received 16 submissions which are listed at Appendix 1.

1.76 The committee held one public hearing for the inquiry on Friday, 16 July 2021 at Parliament House, Canberra. The names of witnesses who appeared at the hearing can be found at Appendix 2.

Acknowledgements 1.77 The committee thanks all individuals and organisations who assisted with the inquiry, especially those who made written submissions and appeared at the public hearing.

63 Scrutiny of Bills Committee, Scrutiny Digest 10/21, 13 July 2021, p. 10.

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Chapter 2 Views on the bill

Introduction 2.1 The committee received 16 submissions and evidence through a public hearing. The most important of the common themes presented to the committee were:

 there is generally support for the bill and the wind-up of the Financial Adviser Standards and Ethics Authority (FASEA);1  the composition of the board, particularly if and when members may have to excuse themselves because of conflict of interest;2  the need to triage the cases brought before the Board;3  regulation, training, and education of financial advisors;4  the need for consumer input;5 and  access and review of the accompanying regulations.6

Views on the bill

Support for the bill 2.2 Many submitters and witnesses expressed support for the bill and its aims. There was a general view that FASEA's dissolution and the transfer of its powers to Australian Securities and Investments Commission (ASIC) and the

Minister was positive reform.

2.3 The Stockbrokers and Financial Advisers Association (SAFAA) commented:

It is important that FASEA be wound up and the standard-setting powers be transferred. We see this initiative as further strengthening the oversight of financial advisers. ASIC has significant experience in monitoring

1 Stockbrokers and Financial Advisers Association, Submission 1; SMSF Association, Submission 7;

CPA Australia, Submission 9; Financial Planning Association of Australia, Submission 10; Chartered Accountants ANZ, Submission 16; Australian Institute of Superannuation Trustees, Submission 4.

2 Financial Planning Association of Australia, Submission 10; Association of Financial Advisers Ltd,

Submission 12; SCA and CHOICE, Submission 8.

3 Institute of Public Accountants, Submission 6; Chartered Accountants ANZ, Submission 16.

4 SMSF Association, Submission 7; Institute of Public Accountants, Submission 6; CPA Australia,

Submission 9; Financial Planning Association of Australia, Submission 10; Association of Financial Advisers Ltd, Submission 12.

5 Maurice Blackburn, Submission 2; SCA and CHOICE, Submission 8.

6 The issue was broached by a number of witnesses during the public hearing held on Friday,

16 July 2021.

22

misconduct through its regulatory oversight of licensees, and it makes sense to align the oversight of financial advisers with that of licensees.7

2.4 Super Consumers Australia supported the bill's enforcement aspect arguing it would lift professionalism:

A core component of professionalisation involves individuals being accountable for their actions. This bill furthers this cause by establishing a single central disciplinary body to provide graduated, efficient and timely responses when individual failure is identified. The Financial Services and Credit Panel perform an important role in this process by driving a compliance culture through resolving complaints efficiently.8

2.5 The Association of Financial Advisers Ltd (AFA) supported both the dissolution of FASEA and the strengthening of accountability provisions:

The AFA supports the introduction of a pragmatic disciplinary system for financial advisers, including access to a broader range of penalties.

We support the winding down of FASEA at the end of 2021 and the transfer of existing responsibilities to the minister and ASIC.9

2.6 The Financial Services Council (FSC) also supported FASEA being wound up and the bill's support for the Royal Commission recommendation 2.10 and the recommendation 7.1 of the Tax Practitioners Board (TPB) review:10

The FSC supports the bill in its implementation of the royal commission's recommendation 2.10. As with the introduction of the professional standards regime in 2017, establishing a system of individual registration for financial advisers is another important step towards a professional and accountable financial advice profession.

Other features of the bill that we support include the adoption of recommendation 7.1 of the Tax Practitioners Board review, bringing tax financial advisers into a single regulatory regime, the review mechanism available in the legislation to appeal determinations to the Administrative Appeals Tribunal, and clarification of circumstances in which AFCA can refer matters to the Financial Services and Credit Panel.11

2.7 Finally, the TPB was also supportive of the recommendations already described above:

7 Ms Judith Fox, Chief Executive Officer, Stockbrokers and Financial Advisers Association Proof

Committee Hansard, 16 July 2021, p. 1.

8 Mr Xavier O'Halloran, Director, Super Consumers Australia, Proof Committee Hansard, 16 July 2021,

p. 7.

9 Mr Philip Anderson, Acting Chief Executive Officer, Association of Financial Advisers Ltd, Proof

Committee Hansard, 16 July 2021, p. 11.

10 Mr Blake Briggs, Deputy Chief Executive Officer, Financial Services Council, Proof Committee

Hansard, 16 July 2021, p. 16.

11 Mr Blake Briggs, Proof Committee Hansard, 16 July 2021, p. 16.

23

…we welcome this reform, which implements similar recommendations from two independent reviews: recommendation 2.10 of the financial services royal commission; and recommendation 7.10 of a more specific independent review, the James review of the TPB. The board strongly supports better advice and reducing regulatory burden on tax and financial advisers and, at the same time, we seek consistent standards for all tax advisers regardless of who they are regulated by.12

2.8 Finally, the Financial Planning Association of Australia (FPA) saw the streamlining of regulators for financial planners as a positive outcome:

Fundamentally, though, the move to reduce the number of regulators regulating financial planners from the current nine and simplifying the disciplinary framework for financial planning is a welcome change. These are critical changes in progressing the work of this parliament to create a professional framework for financial planners. We therefore welcome the consolidation of discipline for financial advice to ASIC through the FSCP, with professional peers sitting in judgement of the conduct of their peers and the ultimate creation of an individual professional-registration obligation.13

Composition of the Financial Services and Credit Panel 2.9 The composition of the Financial Services and Credit Panel (FSCP) attracted a significant amount of comment, particularly with regard to the potential for conflict of interest and the mechanism employed to manage it.

2.10 It was generally felt that FSCP members excusing themselves without replacement was not ideal, and that self-declaration of such a conflict lacked sufficient robustness.

2.11 The AFA commented:

...if someone is disqualified because they have a conflict of interest, which we've said we would like to seek further guidance on, we believe that they should be replaced by someone else so there are always at least three people on that panel.14

2.12 CPA Australia argued that it is important that the composition of the FSCP reflects the nature of the matters being heard:

For credibility and to engender professionalism within the sector, peer to peer discipline is vitally important.

Where a member of the FSCP is not entitled to be present at a meeting due to a conflict of interest, the remaining members and the panel, including the chair, will constitute a quorum. Depending on the number of industry

12 Mr Michael O'Neill, Chief Executive Officer and Secretary, Tax Practitioners Board, Proof

Committee Hansard, 16 July 2021, p. 26.

13 Mr Benjamin Marshan, Head of Policy, Strategy and Innovation, Financial Planning Association of

Australia, Proof Committee Hansard, 16 July 2021, p. 19.

14 Mr Philip Anderson, Proof Committee Hansard, 16 July 2021, pp. 11 and 12.

24

representatives on the panel, or the situation where more than one member is excused due to conflicts of interest, the end result, in a worst case scenario, may be a panel of just the ASIC chair and one industry representative. Section 151 should therefore be amended to clarify that the minimum quorum should be the ASIC chair and no less than two industry representatives from the FSCP. If this quorum cannot be met, additional industry representatives should be selected for the panel.15

2.13 The FPA are generally accepting of the FSCP's structure as proposed in the legislation. However, they too, felt that there should always be three members on the panel:

We have always been of a view that the profession and the peers of the profession should sit in judgement over the conduct of their peers, and we think the make-up of the panels makes sense to provide that professional framework for considering whether or not you have upheld the standards of the profession and whether or not you've complied with the laws and regulations of that profession. Professionals are best placed to sit in judgement of other professionals within their own profession. We see that in law and in medicine, and we see that in engineering type fields, so we believe the make-up is right. Our main concern, though, is that, in the bill at the moment, where there's a conflict and one of the panel members has to step aside, you get into a situation where you no longer have a panel of peers, effectively. You just have ASIC making the decision…

….

We had envisaged, when we were looking at setting up our disciplinary body, that you would have reserve panellists potentially put against cases. That way, if somebody had a conflict that arose as the case was being heard, you could switch them in and out.16

2.14 Importantly, the Australian Commission for Law Enforcement Integrity (ACLEI) expressed some concern at the conflict of interest provisions:

The draft Explanatory Memorandum and the bill recognise that the primary corruption risk for FSCPs under the proposed arrangement is likely to be conflicts of interest. This may be particularly the case for the industry representatives appointed to the FSCPs.

ACLEI considers this a significant risk to the integrity of the proposed arrangement for FSCPs as the single disciplinary body for financial advisers.

This risk is heightened noting that these members (all except the Chair) may be outside of ACLEI jurisdiction. The risks are noted in paragraph 1.43 of the Draft Explanatory Memorandum and are currently addressed through an ongoing obligation to disclose to ASIC 'any direct or indirect financial or other interests, such as personal or business relationships, that could conflict with the proper performance of their duties as members of a Financial Services and Credit Panel.'

15 CPA Australia, Submission 9, p. 2.

16 Mr Benjamin Marshan, Proof Committee Hansard, 16 July 2021, p. 20.

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ACLEI notes the bill's proposed conflict of interest declarations as a measure to mitigate this risk, however, we also note that this system relies entirely on self-disclosure by the panel members.17

Number and type of cases brought before the Financial Services and Credit Panel 2.15 A number of submitters expressed concern at the potential number of cases the FSCP might be required to review. There was general support for a 'triage'

process so that the panel be convened only for necessary cases. SAFAA commented:

I'll go back to my example of a financial services guide being sent out three days late. That is a contravention of the financial services law, but you wouldn't want to convene a panel to hear about a financial service guide going out three days late. That would be something that is appropriate for ASIC to look at, to issue a notice of some kind, but it shouldn't be a matter to convene a panel about.

We think it's utterly appropriate that the panel be convened to hear serious matters, but we think the very minor matters could be dealt with without convening a panel.18

2.16 The Institute of Public Accountants (IPA) had similar views:

IPA fully supports the establishment of a SDB [Single Disciplinary Body] to improve the regulation of financial advisers. In particular, we support the process of a ‘triage’ to ensure that minor matters or breaches do not create bottlenecks in the overall disciplinary process; and having a separate, efficient process to deal with minor matters and breaches. The IPA also has a two-tier process by which administrative breaches can be dealt with expeditiously whilst more serious breaches are channelled through the Disciplinary Tribunal and then the Appeals Tribunal (if applicable).19

2.17 The AFA also brought to the committee's attention the potential for unnecessary cost to be passed onto consumers if the FSCP becomes inundated with low-level cases:

I would add the impact of cost. You spoke about the industry wearing the brunt of this additional compliance cost if the regime is inundated with minor administrative matters. But, really, I would like to throw a consumer lens on it, because these costs are ultimately borne by the consumer. It is well documented. Your colleagues in the Senate have spoken about the exacerbating crisis in relation to ordinary Australians being able to afford financial advice. We see that as a significant risk as a result of this regime, having to deal with minor administrative issues, and

17 Australian Commission for Law Enforcement Integrity, Submission 14, p. 3.

18 Ms Judith Fox, Proof Committee Hansard, 16 July 2021, p. 3.

19 Institute of Public Accountants, Submission 6, p. 3.

26

we are extremely concerned about the consumer impact of the rising compliance costs.20

2.18 Moreover, the AFA argued that there was an apparent contradiction in the Acts governing breaches and that ASIC was, in fact, obligated to investigate even the most minor of matters:

Section 139 of the ASIC Act talks to how ASIC may call a panel. But the complication is section 921S of the Corporations Act, which says where there has been a breach of the law, however minor that may be, and ASIC has not chosen to convene a panel, ASIC must issue a written warning or reprimand. To do that, they must go through the process of investigating even the most minor of matters. Our suggestion is in two ways: firstly, ASIC should have the option to take no further action with a matter that they choose not to refer to a panel; and, secondly, the criteria for matters that can be considered through this should be elevated so that they are more a matter of the significant breaches that would otherwise be reported to ASIC through the significant breach reporting regime.21

Regulation, training, and education of financial advisers 2.19 A number of submitters raised the question of training and education standards as well as regulation more broadly. There was an emphasis on ensuring that the recognition of education qualifications and processes and

were streamlined and simplified without any lowering of standards.

2.20 To provide some context, SAFAA described what is currently required for someone to enter their profession and the difficulties they face:

Say you graduated from the University of Sydney with a degree in economics. You'd then have to go off and do a financial planning diploma at a different university. The only universities offering them are ones like Central Queensland University, Griffith University or Western Sydney University. You'd also then have to do a two-year professional year candidacy, where you would not be allowed to give advice yourself—so you couldn't actually earn any revenue for the organisation in that time; you'd have to be supervised. That's very challenging in our industry, because, as you know, clients ring up and want to place trades instantly. Having that ongoing minute-by-minute supervision is very challenging indeed. We're also concerned about the loss of experienced advisers in terms of providing that mentoring and supervisory role.

Eventually, having gone through the professional year candidacy, you can start giving advice. Having said that, no-one comes into the business and starts giving advice instantly anyway; you have to learn too much about the industry and markets. The professional year candidacy is extremely challenging in terms of how it's going to work. It's not like financial planning, where you meet with a client once a year and do an annual review, because, as you know, people are trading daily—so it doesn't quite

20 Mr Sam Perera, National Vice President, Association of Financial Advisers Ltd, Proof Committee

Hansard, 16 July 2021, p. 13.

21 Mr Philip Anderson, Proof Committee Hansard, 16 July 2021, p. 14.

27

work like that. Our concern is that graduates don't want to go off and do another unrelated graduate diploma before they can even enter the industry, and then do those two years of professional candidacy. We're not seeing anyone come into the industry. There are very few new professional year candidates coming in.22

2.21 SAFAA further expressed the view that the existing regime should not be perpetuated:

…we would not want to see a repeat of what the FASEA board has done, which has been to narrow the scope of educational qualifications. We certainly hope that, once this bill has passed and FASEA has been wound up, there will be a much more common-sense approach to the idea of what educational qualifications are required for our industry and that those degrees [sic] will be approved.23

2.22 The Self-Managed Super Fund Association (SMSFA) noted that:

…current education standards and approved courses and degrees refer to Tax Practitioner Board approved courses in commercial and taxation law. This relationship will cease on the winding up and transfer of FASEA functions and the transfer of tax financial advisers out of the Tax Practitioners Board purview.24

….

The FASEA education standards will over time bring all advisers into the approved tertiary or, diploma or higher award education standard. For most advisers, this aligns with the education standards currently set out in TASR 2009 Schedule 2, Part 3 Division 1 (items 301 and 302).

The current education standards will need to be reviewed and updated post 1 January 2022 as the Tax Practitioners Board will cease to be the standard setting body for taxation education for tax (financial) advisers. Further the FASEA education standard references course and degrees approved by the Tax Practitioners Board. With the transfer of the FASEA and tax (financial) adviser functions to the Minister and ASIC, there is an urgent need for review and updating of this legislative instrument.

In addition to the FASEA education standards is the need for continuing professional development and compliance with the Financial Planners and Advisers Code of Ethics 2019. These address any actual or perceived gaps in the education requirements.

Separate professional development standards are currently prescribed by the Tax Practitioners Board. These need to be met in addition to those prescribed by FASEA.

A review of what is the current FASEA continuing professional development standard will be essential to ensure that taxation is properly

22 Ms Judith Fox, Proof Committee Hansard, 16 July 2021, p. 5.

23 Ms Judith Fox, Proof Committee Hansard, 16 July 2021, p. 5.

24 SMSFA, Submission 7, p. 3.

28

and separately considered. A robust CPD standard will ensure that the appropriate standards are upheld.25

2.23 Certified Practicing Accountants (CPA) Australia felt that there had been insufficient recognition given in the bill to previous reforms regarding educational standards:

The proposed new regime also fails to recognise the significant reforms that have been implemented for the retail financial planning sector since 2014, including:

 the lifting of education requirements to a minimum of a bachelor’s degree;  40 hours of professional development that must be completed annually a legislated Code of Ethics implemented by FASEA; and  compulsory education in commercial law and taxation law as part of the

approved qualifications for new financial advisers.

Further, existing financial advisers have already had to meet education and/or experience requirements to register as a tax (financial) adviser with the TPB. Yet, it is possible under the proposed reforms that an existing financial adviser who has been registered as a tax (financial) adviser may be required to complete one or more approved bachelor or higher degrees, qualifications or courses to continue providing tax (financial) advice if the Minister determines new requirements by legislative instrument.26

2.24 Additionally, the SAFAA pointed out the potential risks of experienced professionals leaving the sector:

For our members, I know that the loss of experienced advisers is a top risk on their risk register. Some of them are looking at losing up to 10 per cent of their advisers. It varies across the industry, but, within some of the larger stockbroking firms, they are worried they're going to lose up to 10 per cent of their advisers.27

Consumer input 2.25 Given that ultimately these reforms are designed to be for the benefit of consumers, there was some support for a consumer voice on the FSCP. Super Consumers Australia commented:

…we think there's value in ensuring the panel has at least one member with consumer experience or equal representation with those with industry experience. As the royal commission showed us, this industry has fallen short of community expectations. Practices common in the sector, such as charging fees for no service, were exposed to public scrutiny and were seen as thoroughly inappropriate.

25 SMSFA, Submission 7, p. 4.

26 CPA Australia, Submission 9, p. 4.

27 Ms Judith Fox, Proof Committee Hansard, 16 July 2021, p. 5.

29

Introducing consumer experience into the disciplinary panel will help ensure this disconnect does not occur again. People with consumer experience bring a specialist expertise and skill set. Examples of such people can be seen throughout the financial services regulatory system, serving on compliance and complaints handling bodies. They combine intimate knowledge of the law, regulatory guidance and industry practice, and, most importantly, have a determined focus on the impact of misconduct on consumers.28

2.26 This view was not, however, universally shared. SAFAA argued that the FSCP was a disciplinary body and not a complaints body:

In terms of consumer representation, I come back to my point that it's a professional disciplinary body, which is very, very different from a complaints body. AFCA is the consumer complaints body. The AFCA board consists of an independent chair and an equal number of consumer directors and industry directors, and the AFCA decision panels are made up of an independent ombudsman, a consumer panel member and an industry panel member. That's a complaints body; this is a professional disciplinary body. For example, the Law Society has a professional disciplinary body, and it doesn't have consumer reps sitting on it. That doesn't happen in medicine either. This is not about consumer detriment or complaint, because those matters should get referred to AFCA. It could be, for example, a matter about an adviser not completing a CPD or an educational requirement. That's not a consumer issue; that's a professional disciplinary matter.

So, for us, it's a peer review panel. That's entirely appropriate for a disciplinary body and consistent with other professional bodies, and review of conduct by peers is an important part of professionalism. We think it's important that we understand the difference between that and a complaints body.29

Regulations 2.27 As noted in the Scrutiny of Bills report discussed in chapter 1, the accompanying regulations have not been published. Thus, they cannot be considered alongside the bill leaving both the interested parties to the bill and

the committee at a disadvantage in terms of assessing the bill's

appropriateness and effectiveness.

2.28 The following dialogue from the public hearing shows that, due to the lack of regulations, even the regulators are currently unable to assess the full impact the legislation will have:

Senator WALSH: One of the issues that has been raised is a concern around how ASIC and the expanded panel will work to triage minor

28 Mr Xavier O'Halloran, Director, Super Consumers Australia, Proof Committee Hansard, 16 July 2021,

p. 7.

29 Ms Judith Fox, Proof Committee Hansard, 16 July 2021, p. 3.

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breaches and allocate more significant breaches. Do you have any advice for us at this stage about how you would intend to approach that?

Ms Bird: As you would be aware, the bill gives ASIC a discretion to refer matters to the panel. It also sets out that ASIC will be compelled to refer matters to the panel in certain circumstances set out in the regulations. Those regulations haven't yet been made or exposed, so at this stage is very challenging to answer that question exactly how we will manage that triage process, because at this stage we are not really aware of what matters we will be compelled to refer to the panel.

Senator WALSH: I understand this is a question for Treasury about where we are at with the regulations, but do I take it that you don't have draft regulations yet?

Ms Bird: No, I haven't seen draft regulations. When we see those regulations we will consider that issue in particular. If it was just an open discretion, so under the first part of that section where we can refer matters, we would obviously take a normal sort of triage process to decide what we would refer on for further action. In doing that, we would take into account the relative harms in the financial advice industry and we would also take into account the clear intention of government and parliament in passing the bill, which is to make sure there is a mechanism for less serious misconduct to be addressed.30

2.29 At the same hearing, Treasury confirmed that the regulations would not be available prior to tabling of this report:

Senator WALSH: The report for the inquiry we are in at the moment will be done from these hearings in a couple of weeks, and it might be difficult to report without the regulations. Is that a time frame that you think might be met? Can you give us any guidance on whether a fortnight or so or this month is a time frame that might be met?

Ms Zaheed: I wouldn't expect us to have regulations in place. We will be consulting on the provisions that will go into the regulation—so getting the policy calibration quite right to ensure that the right matters are being referred to FSCP and the right matters are being registered on the FAR. So I wouldn't necessarily be expecting regulations to be drafted in the next two weeks.31

Committee comment

Support for the bill 2.30 The committee notes the support expressed by submitters. The translation of the Royal Commission's outcomes into tangible legislation has been warmly

30 Exchange between Senator Jess Walsh and Ms Joanna Bird, Executive Director, Financial Services

and Wealth, Australian Securities and Investments Commission, Committee Hansard, 16 July 2021, pp. 26-27.

31 Exchange between Senator Jess Walsh and Ms Mohita Zaheed, Assistant Secretary, Financial

System Division, Markets Group, Department of the Treasury, Committee Hansard, 16 July 2021, p. 31.

31

welcomed. While there was overall support, the committee notes the issues raised.

The Financial Services and Credit Panel's composition, role and cost impact 2.31 Submitters raised substantive issues about potential cost impacts of legislation and its impacts on the ability of a wide range of Australians to access financial advice. For example, the committee notes the evidence from some witnesses

that minor breaches and/or relatively low-level disciplinary issues should not lead to escalation in costs, and that the Financial Services and Credit Panel should focus on matters of serious and/or systemic misconduct.

2.32 The committee believes more broadly that it is the responsibility of the regulator to look to reduce regulatory costs across the Financial Advice industry in this transition.

2.33 As such, the committee suggests that the government conducts a review of the FSCP and its functions within two years after the legislation comes into effect.

Recommendation 1

2.34 The committee recommends that the government conduct a review of the Financial Services and Credit Panel (FSCP) and its functions two years after the legislation comes into effect.

Training and Education of Financial Advisors 2.35 Although not the subject of this legislation, the committee also notes the concerns about the nature of education and training required by financial advisors of all types. The professional and educational standards that current

and future advisors are obligated to uphold should be clear and not a discouragement to individuals joining the profession.

2.36 The committee notes that the government intends to transfer the existing legislative instruments defining the current standards largely intact when the transition from FASEA to the Minister as standard-setter occurs.

2.37 Further, the committee believes that in the transition from FASEA to ASIC, ongoing consideration of the impact on the composition of the industry is essential. Anecdotal evidence that older and more experienced individuals are choosing to leave the industry rather than undertake further training is possibly a source of potential weakness for the sector. The committee would encourage ASIC to actively monitor this issue.

Scrutiny of regulations 2.38 The committee again notes that the accompanying regulations for the bill have not been published and this has made assessing the bill more difficult both for interested stakeholders and the committee itself.

32

2.39 However, the committee acknowledges that the regulations will in due course be published and consulted on, and subject to parliamentary scrutiny, including disallowance.

Final comment 2.40 Notwithstanding the areas of concern raised by submitters and by the committee in this report, the committee is of the view that the outcomes of the Royal Commission should be acted upon. Those issues raised can be

addressed through the ongoing review of the FSCP and the legislation itself. Accordingly, the committee recommends the bill should be passed.

Recommendation 2

2.41 The committee recommends that the bill be passed.

Senator Slade Brockman Chair Liberal Senator for Western Australia

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Additional Comments—Labor Senators

1.1 Labor supports the implementation of recommendation 2.10 of the Banking Royal Commission.

1.2 The Morrison Government has been too slow to implement the

recommendations made in that important inquiry. This legislation has been introduced more than two years after Commissioner Hayne handed over his final report, which identified glaring failures of the regulatory system surrounding financial services. Misconduct by Australia’s large banks and financial service providers cost customers millions and has caused immeasurable harm.

1.3 This failure to introduce legislation on this important matter in a timely manner is another Coalition failure in the financial advice sector. The sector has already incurred significant costs attempting to implement the government’s previous reform agenda—the implementation of code-monitoring bodies. Peak bodies spent hundreds of thousands of dollars working to establish code-monitoring bodies, which ultimately went to waste as the government decided to take a different approach.

1.4 Financial advisers have also suffered deep uncertainty through the failed implementation of the Financial Adviser Standards and Ethics Authority (FASEA) standards. The independent standards setting body—which was meant to deliver certainty for the sector—failed in every respect. Three Chief Executive Officers (CEOs) were appointed in the body's first eighteen months of operation. Standards were issued mere days before they were due to come into effect. Advisers were forced to suffer uncertainty in relation to exams and qualification requirements for months or even years.

1.5 Given these failures, Labor strongly supports the Chairs’ recommendation for a review of the legislation and its impact after two years.

1.6 Labor Senators also encourage the government to strongly consider the view of consumer advocates, and consider appointing representatives with appropriate consumer experience and sectoral knowledge to the Financial Services and Credit Panel.

Senator Anthony Chisholm Senator Jess Walsh

Deputy Chair Member

Labor Senator for Queensland Labor Senator for Victoria

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Dissenting Report—Senator Rex Patrick

PUNITIVE LAWS—HALF FINISHED

1.1 I thank the committee and the secretariat for their work on this inquiry.

1.2 The government seeks, through this bill, to implement recommendation 2.10 of the Financial Services Royal Commission and recommendation 7.1 of the Tax Practitioners Board Review. The bill deals with aspects of misconduct and concerns disciplinary processes and penalties for financial advisors.

1.3 I support the goals of the bill, and I am generally satisfied with the provisions of the bill as they stand. However, the bill is only half finished. The regulations that deal with the detail (where the devil lies) are missing.

1.4 How can any parliamentarian vote for half law? I will not be.

1.5 The Senate Standing Committee for the Scrutiny of Delegated Legislation spoke concerningly in its 2019 report on Parliamentary Scrutiny of Delegated Legislation:

Generally speaking, about half of the law of the Commonwealth by volume consists of delegated legislation (as opposed to Acts of Parliament). The volume of delegated legislation made each year has increased over time. For example, in the mid-1980s there were around 850 disallowable instruments tabled each year. By contrast, around 1,700 disallowable instruments are now made annually.1

1.6 Section 1 of the Australian Constitution makes it clear that it is

parliamentarians, in open view of the public, that make the laws of this land; not faceless bureaucrats sitting in offices that the public can’t peer into. Delegated legislation should only be utilised in very specific circumstances—it should not be standard practice.

1.7 The concerns about the job only being half done were raised by the Scrutiny of Bills Committee. Concerns about the job only being half done were raised by financial advisors. This is mentioned in the main report.

1.8 The Minister and the department need to up their game. Turning up to ask the parliament to pass half a law is disrespectful to the Parliament and disrespectful to those in the community who will be affected by the unwritten parts of the laws parliamentarians are being asked to give assent to.

1 Standing Committee on Regulations and Ordinances, Parliamentary Scrutiny of Delegated Legislation,

3 June 2019, https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legi slation/DelegatedLegislation/Report, (accessed 30 July 2021).

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1.9 This half-baked Bill is not fit to pass—as least not without seeing the proposed regulations that are to accompany it.

Recommendation: That the bill not be put to a vote until the regulations have also been put before the Parliament.

Senator Rex Patrick Member Independent Senator for South Australia

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Appendix 1 Submissions

1 Stockbrokers and Financial Advisers Association 2 Maurice Blackburn Lawyers 3 Australian Small Business and Family Enterprise Ombudsman 4 Australian Institute of Superannuation Trustees 5 Australia Securities and Investment Commission (ASIC) 6 Institute of Public Accountants 7 SMSF Association 8 Super Consumers Australia and CHOICE 9 CPA Australia 10 Financial Planning Association of Australia 11 Financial Services Council

 Attachment 1

12 Association of Financial Advisers Ltd  12.1 Supplementary to submission 12

13 Association of Independently Owned Financial Professionals 14 Australian Commission for Law Enforcement Integrity 15 Australian Shareholders’ Association 16 Chartered Accountants Australia and New Zealand

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Appendix 2 Public hearings

Friday, 16 July 2021 Committee Room 2S1 Parliament House Canberra

Stockbrokers and Financial Advisers Association  Ms Judith Fox, Chief Executive Officer  Ms Michelle Huckel, Policy Manager

Super Consumers Australia and CHOICE  Mr Franco Morelli, Policy Manager—Super Consumers Australia  Mr Xavier O’Halloran, Director—Super Consumers Australia  Mr Patrick Veyret, Senior Policy & Campaigns Advisor—CHOICE

Association of Financial Advisers Ltd  Mr Phil Anderson, Acting Chief Executive Officer  Mr Michael Nowak, National President  Mr Stephen Perera, National Vice President

Financial Services Council  Mr Blake Briggs, Deputy Chief Executive Officer  Mr Zach Castles, Policy Manager (Advice)

Financial Planning Association of Australia  Mr Benjamin Marshan, Head of Policy—Strategy and Innovation

Association of Independently Owned Financial Professionals  Mr Peter Johnston, Executive Director  Mr Phillip Osbourne, Consultant

Australia Securities and Investment Commission (ASIC)  Ms Joanna Bird, Executive Director—Financial Services and Wealth  Mr Martin Stockfeld, Senior Specialist—Financial Advisors

Tax Practitioners Board  Mr Michael O’Neill, Chief Executive Officer and Secretary  Ms Janette Luu, Director Policy & Legislation

The Treasury  Ms Erin Wells, Assistant Secretary—Law Division, Markets Group

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 Ms Mohita Zaheed, Assistant Secretary—Financial Systems Division, Markets Group  Ms Anna Schneider Rumble, Acting Assistant Secretary—Retirement, Advice and Investment Division, Markets Group  Mr Phil Bignell, Director—Law Division, Markets Group