Future of Financial Advice: Best interests duty and related obligations Update to RG 175

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1 CONSULTATION PAPER 182 Future of Financial Advice: Best interests duty and related obligations Update to RG 175 August 2012 About this paper This consultation paper sets out ASIC s proposed guidance for persons who provide personal financial product advice to retail clients, and explains: the processes to follow to act in the best interests of the client; and how to meet the other obligations in Div 2 of Pt 7.7A of the Corporations Act 2001 (Corporations Act). In assessing whether these processes are effective, we will consider whether they are being applied and the outcome of following them. This paper includes a draft new section of Regulatory Guide 175 Licensing: Financial product advisers Conduct and disclosure (RG 175). We are seeking the views of Australian financial services (AFS) licensees, authorised representatives, advisers and consumers on our proposals.

2 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 About ASIC regulatory documents In administering legislation ASIC issues the following types of regulatory documents. Consultation papers: seek feedback from stakeholders on matters ASIC is considering, such as proposed relief or proposed regulatory guidance. Regulatory guides: give guidance to regulated entities by: explaining when and how ASIC will exercise specific powers under legislation (primarily the Corporations Act) explaining how ASIC interprets the law describing the principles underlying ASIC s approach giving practical guidance (e.g. describing the steps of a process such as applying for a licence or giving practical examples of how regulated entities may decide to meet their obligations). Information sheets: provide concise guidance on a specific process or compliance issue or an overview of detailed guidance. Reports: describe ASIC compliance or relief activity or the results of a research project. Document history This paper was issued on 9 August 2012 and is based on the Corporations Act as at the date of issue. Disclaimer The proposals, explanations and examples in this paper do not constitute legal advice. They are also at a preliminary stage only. Our conclusions and views may change as a result of the comments we receive or as other circumstances change. Australian Securities and Investments Commission August 2012 Page 2

3 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 Contents The consultation process... 4 A Background to the proposals... 6 The Future of Financial Advice reforms... 6 The best interests duty and related obligations... 8 Our approach to administering the best interests duty and related obligations...12 Our proposed guidance...13 Your feedback...14 Relationship with CP B Proposed guidance on the best interests duty and related obligations...16 Acting in the best interests of the client...16 Satisfying the safe harbour for the best interests duty...17 Providing appropriate personal advice...19 Prioritising the interests of the client...20 Complying with the modified best interests duty...22 C Regulatory and financial impact...23 Key terms...24 List of proposals and questions...28 Attachment: Draft new section of RG Australian Securities and Investments Commission August 2012 Page 3

4 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 The consultation process You are invited to comment on the proposals in this paper, which are only an indication of the approach we may take and are not our final policy. Among other things, we would like your feedback on the costs and benefits of implementing our proposed guidance, rather than the costs and benefits of the requirements in Div 2 of Pt 7.7A of the Corporations Act. These were extensively consulted on by the Government under a different process. As well as responding to the specific proposals and questions, we also ask you to describe any alternative approaches you think would achieve our objectives. We are keen to fully understand and assess the financial and other impacts of our proposals and any alternative approaches. Therefore, we ask you to comment on: the likely compliance costs; the likely effect on competition; and other impacts, costs and benefits. Where possible, we are seeking both quantitative and qualitative information. We are also keen to hear from you on any other issues you consider important. Your comments will help us develop our guidance on the best interests duty and related obligations in the Corporations Act. In particular, any information about compliance costs, impacts on competition and other impacts, costs and benefits will be taken into account if we prepare a Regulation Impact Statement: see Section C, Regulatory and financial impact. Making a submission We will not treat your submission as confidential unless you specifically request that we treat the whole or part of it (such as any financial information) as confidential. Comments should be sent by 20 September 2012 to: Prashanti Ravindra Senior Lawyer Strategic Policy Australian Securities and Investments Commission Level 5, 100 Market Street Sydney NSW 2000 facsimile: policy.submissions@asic.gov.au Australian Securities and Investments Commission August 2012 Page 4

5 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 What will happen next? Stage 1 9 August 2012 ASIC consultation paper released Stage 2 20 September 2012 Comments due on the consultation paper September December 2012 Drafting updates to Regulatory Guide 175 Licensing: Financial product advisers Conduct and disclosure (RG 175) Stage 3 December 2012 Updated regulatory guide released Australian Securities and Investments Commission August 2012 Page 5

6 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 A Background to the proposals Key points The best interests duty and related obligations in Div 2 of Pt 7.7A of the Corporations Act 2001 (Corporations Act) are a key part of the Government s Future of Financial Advice (FOFA) reform package. These obligations have been introduced to improve the quality of personal financial product advice received by retail clients. We propose to provide updated guidance in Regulatory Guide 175 Licensing: Financial product advisers Conduct and disclosure (RG 175) on our expectations for how advice providers can comply with the best interests duty and related obligations. Our proposed amendments are shown in a draft new section of RG 175, attached to this paper. This section of the consultation paper sets out some background information on the FOFA reforms and the new obligations, and explains our approach in developing the proposals in this paper. The Future of Financial Advice reforms 1 In April 2010, the former Minister for Financial Services, Superannuation and Corporate Law, the Hon Chris Bowen, announced the Government s Future of Financial Advice (FOFA) reform package, aimed at improving the trust and confidence of retail investors in the financial advice sector. 2 The FOFA reforms represent the Government s response to the Inquiry into financial products and services in Australia by the Parliamentary Joint Committee on Corporations and Financial Services (PJC) in The inquiry examined the issues associated with the collapses of financial product and services providers, such as Storm Financial, Opes Prime and other similar collapses. 3 Commenting on the effect of the collapse of Storm Financial on investors, the PJC stated: The committee acknowledges the catastrophic effect that the collapse of Storm Financial has had on many investors These investors now face great challenges in meeting living expenses, repaying debts and, in some cases, keeping their homes (paragraph 3.1). 4 Among other things, the PJC also expressed concerns with the apparent provision of one-size-fits-all advice to Storm s investment clients, without the appropriate regard for their personal circumstances : paragraph Australian Securities and Investments Commission August 2012 Page 6

7 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG The PJC found that the law relating to how personal advice is provided could be improved, commenting that: The committee supports the proposal for the introduction of an explicit legislative fiduciary duty on financial advisers requiring them to place their clients interests ahead of their own. There is no reason why advisers should not be required to meet this professional standard, nor is there any justification for the current arrangement whereby advisers can provide advice not in their clients best interests, yet comply with section 945A of the Corporations Act. A legislative fiduciary duty would address this deficiency (paragraph 6.28). 6 The PJC also recommended that the Corporations Act 2001 (Corporations Act) include a fiduciary duty for financial advisers, requiring them to place their clients interests ahead of their own: Recommendation 1, paragraph ASIC s Report 279 Shadow shopping study of retirement advice (REP 279), which sets out the results of our 2011 shadow shopping research into personal advice about retirement, also demonstrates that there is room for improvement in the quality of advice many retail clients receive. The study results included that: (c) 39% of advice examples reviewed were poor and did not meet the requirements of s945a for providing appropriate advice; 58% were adequate; and 3% were good. 8 The best interests duty and related obligations contained in the Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 (FOFA Act No. 2) are part of the Government s FOFA reform package and have been introduced to improve the quality of financial advice received by retail clients. 9 In his second reading speech to the Corporations Amendment (Further Future of Financial Advice Measures) Bill 2011 on 24 November 2011, The Hon Bill Shorten MP, Minister for Financial Services and Superannuation, stated that the FOFA Act No. 2 was intended to bring into effect significant reform to the regulation of financial advice, which in turn will enhance trust and confidence in the sector. Australian Securities and Investments Commission August 2012 Page 7

8 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 The best interests duty and related obligations 10 The best interests duty and related obligations are set out in Div 2 of Pt 7.7A of the Corporations Act. In his second reading speech, the Minister stated that: The best interests duty is a legislative requirement to ensure the processes and motivations of financial advisers are focused on what is best for their clients. It is true that this will ultimately lead to better advice in many cases, but first and foremost it is about regulating conflicts, not the intrinsic quality of the advice provided. 11 The best interests duty and related obligations replace the conduct obligations in Subdiv B of Div 3 of Pt 7.7 of the Corporations Act relating to the basis of advice that is, the requirement to have a reasonable basis for personal advice (s945a), and the obligation to warn the client if advice is based on incomplete or inaccurate information (s945b). Note: In this consultation paper: references to sections (s), parts (Pts), divisions (Divs) and subdivisions (Subdivs) are to the Corporations Act, unless otherwise specified; references to client mean retail client as defined in s761g of the Corporations Act and Div 2 of Pt 7.1 of Ch 7 of the Corporations Regulations 2001 (Corporations Regulations); and references to advice or personal advice mean financial product advice given or directed to a person (including by electronic means) in circumstances where the provider of the advice has considered one or more of the client s objectives, financial situation and needs, or a reasonable person might expect the provider to have considered one or more of these matters (s766b(3)). 12 It is mandatory for Australian financial services (AFS) licensees and their representatives that provide personal advice to clients to comply with the best interests duty and related obligations from 1 July From 1 July 2012, licensees can elect to comply with their obligations in Pt 7.7A of the Corporations Act, including the best interests duty and related obligations, by lodging a notice with ASIC. Note: A form is available on ASIC s website to enable AFS licensees to do this: see 13 Until 1 July 2013, if the best interests duty and related obligations do not apply (i.e. an AFS licensee has not elected to comply with Pt 7.7A), the obligations in s945a and 945B will apply to the licensee and their authorised representatives: see paragraph 14. Who the obligations apply to 14 The old obligations in Subdiv B of Div 3 of Pt 7.7 apply to the AFS licensee or authorised representative that provides the personal advice that is, the providing entity. These obligations are: to provide appropriate advice under s945a; and Australian Securities and Investments Commission August 2012 Page 8

9 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 to warn the client if advice is based on incomplete or inaccurate information under s945b. 15 A providing entity must generally also give the client a Statement of Advice under Subdiv C of Div 3 of Pt 7.7, if personal advice is provided. 16 Failure to comply with these obligations is a criminal offence. 17 In contrast, the new obligations in Div 2 of Pt 7.7A apply to the advice provider. This is generally the individual who provides the personal advice. However, if there is no individual that provides the advice, which may be the case if advice is provided through a computer program, the obligations in Div 2 of Pt 7.7A apply to the legal person that provides the advice (e.g. a corporate licensee or authorised representative): s A failure to comply with the obligations in Div 2 of Pt 7.7A may result in a civil penalty against an authorised representative or AFS licensee: s961k and 961Q. An advice provider and their licensee or authorised representative may be subject to administrative sanctions for a breach of the obligations in Div 2 of Pt 7.7A for example, being banned from providing financial services for a period of time. Further, a client, or ASIC, may take civil action for any loss or damage suffered as the result of a failure to comply with the best interests duty and related obligations: see s961m. 19 There are no criminal sanctions for breaching a provision in Div 2 of Pt 7.7A. 20 A number of financial services businesses outsource their personal advice functions to financial advisory firms (e.g. trustees of superannuation funds). Where this occurs, it is the individual advice provider of the outsourced entity that has a duty to act in the best interests of their client and comply with the other obligations in Div 2 of Pt 7.7A (assuming it is an individual who provides the advice). 21 Table 1 summarises the key changes under the Corporations Act for persons providing personal advice to retail clients. Table 1: Summary of key changes for persons providing personal advice to retail clients Obligations in Div 3 of Pt 7.7 New obligations in Div 2 of Pt 7.7A Who the obligations apply to The providing entity that is, the AFS licensee or authorised representative that provides the personal advice. The advice provider this is generally the individual who provides the personal advice. However, if there is no individual that provides the advice, which may be the case if advice is provided through a computer program, the obligations apply to the legal person that provides the advice (e.g. a corporate licensee or authorised representative). Australian Securities and Investments Commission August 2012 Page 9

10 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 Obligations in Div 3 of Pt 7.7 New obligations in Div 2 of Pt 7.7A What the obligations are When the obligations apply Under Subdiv B: to provide appropriate advice (s945a); and to warn the client if advice is based on incomplete or inaccurate information (s945b). Under Subdiv C: to give the client a Statement of Advice. Subdiv B will apply until 1 July 2013, unless a person elects to comply with Pt 7.7A before this date (from 1 July 2012). Subdiv C will continue to apply after 1 July To act in the best interests of the client: best interests duty (s961b). To provide appropriate advice (s961g). To warn the client if advice is based on incomplete or inaccurate information (s961h). To prioritise the interests of the client (s961j). Pt 7.7A applies from 1 July 2013, unless a person elects to comply before this date (from 1 July 2012). Compliance Failure to comply is a criminal offence. Failure to comply may result in a civil penalty. Key obligations in Div 2 of Pt 7.7A 22 There are four key obligations in Div 2 of Pt 7.7A imposed on persons who provide personal advice to clients. Table 2: Key obligations in Div 2 of Pt 7.7A for advice providers providing personal advice to retail clients Obligation Acting in the best interests of the client: best interests duty (s961b) Providing appropriate advice (s961g) Warning the client if advice is based on incomplete or inaccurate information (s961h) Prioritising the interests of the client (s961j) Summary Advice providers must act in the best interests of their client. One way an advice provider can demonstrate they have done this is by showing they have carried out certain steps in advising their clients. These steps, which act as a safe harbour for complying with the best interests duty, are set out in s961b(2): see paragraph 46. A modified form of the best interests duty applies when advice is provided: on a basic banking product only, and the advice provider is an agent or employee of an Australian authorised deposit-taking institution (ADI), or otherwise acting by arrangement with an Australian ADI under the name of the Australian ADI; or on a general insurance product only. When the modified best interests duty applies, advice providers only need to undertake a limited number of steps to have acted in the best interests of their client: see paragraphs Assuming the advice provider has complied with the best interests duty in s961b, the resulting advice must only be given if it is reasonable to conclude that it is appropriate for the client. If it is reasonably apparent that the advice is based on incomplete or inaccurate information about the client s objectives, financial situation and needs, advice providers must give a warning to the client. Advice providers must prioritise the interests of the client over their own interests and those of any of their related parties, including their AFS licensee or associates of their licensee. Australian Securities and Investments Commission August 2012 Page 10

11 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG In addition, we consider that the following obligations require an AFS licensee to keep records of the personal advice that is provided to clients: the duty to do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honesty and fairly (s912a(1)); and the duty to have an adequate dispute resolution system (s912a(1)(g)). The modified best interests duty 24 A modified form of the best interests duty applies when: the advice is about a basic banking product only, and the advice provider is an agent or employee of an Australian ADI, or otherwise acting by arrangement with an Australian ADI under the name of the Australian ADI (s961b(3)); or the advice is about a general insurance product only (s961b(4)). 25 When the modified best interests duty applies, advice providers: (c) (d) only need to undertake a limited number of steps to show they have acted in the best interests of the client; must comply with the appropriate advice requirement; must comply with the obligation to warn the client if advice is based on incomplete or inaccurate information; and do not need to comply with the requirement to prioritise the client s interests. 26 The Government is also consulting on regulations relating to the application of the best interests duty where the subject matter of the advice sought by the client is about more than one of the following: (c) a basic banking product; a general insurance product; and a product that is not a financial product. 27 We will take these regulations into account in our final guidance on the best interests duty. Note: See Treasury, Exposure Draft Third Package of Regulations, at age/default.htm. Australian Securities and Investments Commission August 2012 Page 11

12 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 Our approach to administering the best interests duty and related obligations 28 The following basic policy principles will guide our administration of the best interests duty and related obligations in Div 2 of Pt 7.7A, and are reflected in our proposed guidance: (c) (d) the provisions are intended to enhance trust and confidence in the financial advice industry; increased trust and confidence in the financial advice industry should lead to more consumers accessing financial advice; the provisions should lead to a higher quality of advice being provided compared with the standard of advice being provided under s945a and 945B; and if a client were to follow the advice, it is likely that this would leave them in a better position. 29 The best interests duty and related obligations are not intended to require advice providers to provide perfect advice to each client. Nor are they intended to prohibit advice providers from charging fees and costs for their services. 30 We will administer the best interests duty and related obligations in light of other obligations that apply to AFS licensees and their representatives (including authorised representatives). These obligations may include: (c) (d) (e) common law obligations such as the duty of care and fiduciary duties; contractual obligations; compliance with relevant industry standards and codes; regulatory requirements under the Corporations Act, including those in Ch 7 about licensing, disclosure obligations and the requirements to: (i) (ii) provide services efficiently, honestly and fairly; ensure adequate representative training; (iii) manage conflicts of interest; and (iv) maintain dispute resolution systems; regulatory requirements under Div 2 of Pt 7.10 of the Corporations Act and Div 2 of Pt 2 of the Australian Securities and Investments Commission Act 2001 (ASIC Act), which: (i) (ii) prohibit, among other things, misleading or deceptive conduct and unconscionable conduct; and impose implied warranties in contracts for the supply of financial services; Australian Securities and Investments Commission August 2012 Page 12

13 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 (f) (g) trustee duties and obligations under the Superannuation Industry (Supervision) Act 1993 (SIS Act) and under general law; and the duties and obligations imposed on responsible entities of managed investment schemes under Ch 5C of the Corporations Act and under general law. Our proposed guidance 31 We will provide guidance about how to comply with the best interests duty and related obligations in Div 2 of Pt 7.7A. Because these are new statutory obligations, we are consulting on our proposed guidance and seeking industry and consumer feedback. 32 We are asking for your feedback in this consultation paper on a number of proposals. Among other things, we would like your feedback on the costs and benefits of implementing our proposed guidance not the costs and benefits of the requirements in Div 2 of Pt 7.7A. These were extensively consulted on by the Government under a different process. 33 We will discuss our proposed guidance with industry and consumer representatives before it is finalised and released. 34 Our guidance on the best interests duty and related obligations will be contained in an update to Regulatory Guide 175 Licensing: Financial product advisers Conduct and disclosure (RG 175). 35 To the extent that our guidance on s945a and 945B is relevant to an advice provider s obligations under Div 2 of Pt 7.7A, we will retain our existing approach in providing guidance. For example, where our guidance on s945a contains practical guidance on giving personal advice and is consistent with the best interests duty, we will retain our existing approach. 36 In addition, some of the obligations in Div 2 of Pt 7.7A use the same language that is used in s945a and 945B. For example, both s945b and 961H require the same warning to be given to a client in circumstances where advice is based on incomplete or inaccurate information. Where the old provisions in Subdiv B of Div 3 of Pt 7.7 and the new provisions in Div 2 of Pt 7.7A use the same language, we will reaffirm our existing guidance. 37 When we reissue the updated RG 175, containing our final guidance on the best interests duty and related obligations, we will also make other consequential changes to the regulatory guide. These include updates: Australian Securities and Investments Commission August 2012 Page 13

14 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 to reflect the fact that: (i) (ii) the obligations in Div 2 of Pt 7.7A apply to the advice provider and not the providing entity ; and criminal sanctions do not apply to the obligations in Div 2 of Pt 7.7A; and for consistency with our proposed guidance on giving factual information, general advice and scaled advice (i.e. personal advice that is limited in scope): see Consultation Paper 183 Giving information, general advice and scaled advice (CP 183). 38 Sections 945A and 945B will cease to have effect from 1 July We will retain our guidance on these provisions until this time: see paragraph 40. Your feedback 39 Our proposed guidance on the best interests duty and related obligations is set out in the attached draft new section of RG 175. We are seeking feedback specifically on our proposals for guidance about meeting the best interests duty and related obligations in Div 2 of Pt 7.7A. We will take into account your comments before publishing a final updated version of the guide. 40 Our guidance on s945a and 945B, which is contained in the current Section D of RG 175, will be moved into an appendix after our guidance on the best interests duty and related obligations is finalised and incorporated into the regulatory guide. Our guidance on s945a and 945B will be removed altogether from RG 175 after these provisions cease to have effect, and we will reissue the regulatory guide. Relationship with CP This CP 182 sets out our proposed guidance about meeting the best interests duty and related obligations in Div 2 of Pt 7.7A. This guidance is designed to apply to anyone who provides personal advice to retail clients, including: (c) (d) (e) (f) financial advisers; some staff at ADIs; customer service staff at general insurance companies; stockbrokers; insurance advisers; general insurance brokers; and Australian Securities and Investments Commission August 2012 Page 14

15 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 (g) employees or outsourced customer service representatives at trustees of superannuation funds and responsible entities. Note: This list is not intended to be exhaustive. 42 CP 183 sets out our proposed guidance about giving information and financial product advice to retail clients. This includes guidance on how the requirements of the best interests duty can be scaled up or scaled down, depending on a number of factors. It also proposes guidance and examples on how the best interests duty applies to specific advice scenarios when giving scaled advice. These include, but are not limited to: (c) (d) basic deposit products (which is the best product for the client?); advice from a stockbroker about purchasing shares for existing and new clients; how to invest an inheritance; and retirement planning. Australian Securities and Investments Commission August 2012 Page 15

16 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 B Proposed guidance on the best interests duty and related obligations Key points We propose to amend RG 175 to include guidance on how advice providers can comply with the best interests duty and related obligations: see the draft new section of RG 175, attached to this consultation paper. Our proposed guidance will cover the following key areas: acting in the best interests of the client; satisfying the safe harbour for the best interests duty; providing appropriate personal advice; prioritising the interests of the client; and complying with the modified best interests duty for basic banking and general insurance products. Acting in the best interests of the client 43 A general obligation is imposed on advice providers when giving personal advice to a client to act in the best interests of the client in relation to the advice: s961b(1). Proposal B1 We propose to provide guidance on s961b(1). This includes that we expect that the processes for an advice provider to follow in acting in the best interests of their client will result in the client being in a better position, if the client acts on the advice provided. See draft RG 175.A25 RG 175.A44. Your feedback B1Q1 Do AFS licensees, authorised representatives and individual advisers need ASIC guidance to assist in complying with the best interests duty in s961b(1)? B1Q2 Do you agree with our proposed approach to providing guidance on s961b(1)? B1Q3 Are there any matters, other than those described at draft RG 175.A29 RG 175.A31, that you think would indicate the client is or is not in a better position as a result of following the advice? Please provide details. Australian Securities and Investments Commission August 2012 Page 16

17 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 B1Q4 Are there any factors, other than those listed at draft RG 175.A34, that you think would suggest that an advice provider has complied with the best interests duty in s961b(1)? B1Q5 Is there any further guidance or examples we should give on s961b(1)? Please provide as much specific information as possible, as this will assist us to provide further guidance if needed. B1Q6 Will our proposed guidance (as distinct from what is needed to comply with the law) require AFS licensees, authorised representatives and individual advisers to implement new processes or change existing ones? If so, please describe the changes and the likely costs involved. Rationale 44 The best interests duty is concerned with the actions an advice provider adopts in providing a client with personal advice. We do not consider that the best interests duty involves providing perfect advice. Nor do we propose to examine the quality of advice, or the advice provider s conduct, only by reference to the outcome that is later achieved by the client as a result of following the advice. Instead, the best interests duty is concerned with what occurred at the time the advice was given. Satisfying the safe harbour for the best interests duty 45 Section 961B(2) contains a safe harbour for complying with the best interests duty in s961b(1). If an advice provider can prove they have taken each of the steps listed in s961b(2), this is one way of demonstrating they have satisfied the best interests duty in s961b(1). Note: When the modified best interests duty applies, an advice provider does not need to take all the steps listed in the safe harbour to act in the best interests of the client. 46 The steps of the safe harbour require an advice provider to: identify the objectives, financial situation and needs of the client that were disclosed by the client in their instructions; identify: (i) (ii) the subject matter of the advice that is being sought by the client (whether explicitly or implicitly); and the objectives, financial situation and needs of the client that would reasonably be considered relevant to the advice being sought on that subject matter (client s relevant circumstances); Australian Securities and Investments Commission August 2012 Page 17

18 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 (c) (d) (e) (f) (g) if it is reasonably apparent that information relating to the client s relevant circumstances is incomplete or inaccurate, make reasonable inquiries to obtain complete and accurate information; assess whether the advice provider has the expertise required to provide the client with advice on the subject matter being sought and, if not, decline to provide the advice; if it would be reasonable to consider recommending a financial product: (i) (ii) conduct a reasonable investigation into the financial products that might achieve the objectives and meet the needs of the client that would reasonably be considered relevant to advice on that subject matter; and assess the information gathered in the investigation; base all judgements in advising the client on the client s relevant circumstances; and take any other step that, at the time the advice is provided, would reasonably be regarded as being in the best interests of the client, given the client s relevant circumstances. Proposal B2 We propose to give guidance on what we expect advice providers to do to meet each element of the safe harbour for the best interests duty. Among other things, we state in our guidance that what needs to be done will vary depending on the circumstances, including the objectives, financial situation and needs of the client. See draft RG 175.A48 RG 175.A113. Your feedback B2Q1 Do AFS licensees, authorised representatives and individual advisers need ASIC guidance to assist in satisfying the safe harbour for the best interests duty? B2Q2 Do you agree with our proposed approach to guidance on the safe harbour? B2Q3 If you are an AFS licensee, authorised representative or individual adviser, in complying with the best interests duty in s961b(1), will you rely on the safe harbour in s961b(2) or rely on other processes to show you have complied with the best interests duty? B2Q4 If you are relying on other processes, please let us know what these processes are. B2Q5 If you are an AFS licensee, authorised representative or individual adviser, in what circumstances (if any) do you currently take steps to verify the veracity of information about the client s relevant circumstances? Australian Securities and Investments Commission August 2012 Page 18

19 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 B2Q6 In what circumstances do you think that the safe harbour for the best interests duty requires an advice provider to take steps to independently verify the veracity of information about the client s relevant circumstances? B2Q7 Do you currently ascertain the extent to which considering labour standards, or environmental, social or ethical issues, is relevant to the advice a client is seeking? If so, please provide details on when and how you do this. B2Q8 Do you think we should provide guidance on the extent to which the safe harbour for the best interests duty requires advice providers to ascertain whether the subject matter of advice sought by the client includes considering labour standards, or environmental, social or ethical issues? Note: RG currently contains guidance on making inquiries into the client s attitude towards environmental, social and ethical considerations. B2Q9 Is there any further guidance we should give on how to satisfy the safe harbour for the best interests duty? Please provide as much specific information as possible, as this will assist us to provide further guidance if needed. B2Q10 Will our proposed guidance (as distinct from what is needed to comply with the law) require AFS licensees, authorised representatives and individual advisers to implement new processes or change existing ones? If so, please describe the changes and the likely costs involved. Rationale 47 The proposed guidance sets out our expectations for how an advice provider can show they have met each element of the safe harbour for the best interests duty. Our expectations have been informed by our regulatory experience and what we consider advice providers need to do to act in the client s best interests. Providing appropriate personal advice 48 Personal advice must only be provided if it would be reasonable to conclude that the advice is appropriate to the client, assuming that the best interests duty has been complied with: s961g. Proposal B3 We propose that it would be reasonable to conclude that advice is appropriate if: it is fit for its purpose that is, following the advice is likely to satisfy the client s relevant circumstances; and following the advice is likely to leave the client in a better position. Australian Securities and Investments Commission August 2012 Page 19

20 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 See draft RG 175.A114 RG 175.A133. Your feedback B3Q1 Do AFS licensees, authorised representatives and individual advisers need ASIC guidance to assist in complying with the appropriate advice requirement in s961g? B3Q2 Do you agree with our proposed approach in providing guidance on s961g? B3Q3 Is there any further guidance we should give? Please provide as much specific information as possible, as this will assist us to provide further guidance if needed. B3Q4 Will our proposed guidance (as distinct from what is needed to comply with the law) require AFS licensees, authorised representatives and individual advisers to implement new processes or change existing ones? If so, please describe the changes and the likely costs involved. Rationale 49 The appropriate advice requirement tests the quality of the advice that has been provided, based on what the advice provider should have done in acting in the best interests of their client. Prioritising the interests of the client 50 An advice provider must prioritise the interests of the client if the advice provider knows, or reasonably ought to know, that there is a conflict between the interests of the client and the interests of: (c) (d) (e) (f) the advice provider; an associate of the advice provider; an AFS licensee of whom the advice provider is a representative; an associate of an AFS licensee of whom the advice provider is a representative; an authorised representative who has authorised the advice provider to provide financial services (or a financial service) on behalf of an AFS licensee; or an associate of an authorised representative who has authorised the advice provider to provide financial services (or a financial service) on behalf of an AFS licensee: s961j. Australian Securities and Investments Commission August 2012 Page 20

21 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 Proposal B4 We propose that, in complying with the obligation in s961j to prioritise the client s interests, advice providers should consider what an advice provider without a conflict of interest would do. See draft RG 175.A138 RG 175.A154. Your feedback B4Q1 Do AFS licensees, authorised representatives and individual advisers need ASIC guidance to assist in complying with the obligation to prioritise the client s interests in s961j? B4Q2 Do you agree with our proposed approach in providing guidance on s961j? B4Q3 Are there are any other conflicting interests we should list in our guidance? B4Q4 If you are an AFS licensee or authorised representative, will you be putting information barriers in place to ensure that your representative advice providers do not become aware of any conflicting interests held by you or any other of the advice provider s related parties? B4Q5 Is there any further guidance or examples we should give? Please provide as much specific information as possible, as this will assist us to provide further guidance if needed. B4Q6 Will our proposed guidance (as distinct from what is needed to comply with the law) require AFS licensees, authorised representatives and individual advisers to implement new processes or change existing ones? If so, please describe the changes and the likely costs involved. Rationale 51 Section 961J requires that an advice provider should not act to further their interests, or those of any of their related parties, over the client s interests when giving the client personal advice. Considering what an advice provider without a conflict of interest would do will help advice providers in complying with this obligation. Australian Securities and Investments Commission August 2012 Page 21

22 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 Complying with the modified best interests duty 52 Paragraphs of this consultation paper set out when a modified form of the best interests duty applies. When the modified best interests duty applies, advice providers will only need to comply with s961b(2) (c) to have acted in the best interests of their client. Proposal B5 We propose that our guidance for complying with s961b(2) (c) will also apply when the modified best interests duty applies. See draft RG 175.A45 RG 175.A47, RG 175.A121 RG 175.A125 and RG 175.A150 RG 175.A151. Your feedback B5Q1 Do AFS licensees, authorised representatives and individual advisers need ASIC guidance to assist in complying with the modified best interests duty? B5Q2 Do you agree with our proposed approach in providing guidance on the modified best interests duty? B5Q3 Is there any further guidance we should give? Please provide as much specific information as possible, as this will assist us to provide further guidance if needed. B5Q4 Will our proposed guidance (as distinct from what is needed to comply with the law) require AFS licensees, authorised representatives and individual advisers to implement new processes or change existing ones? If so, please describe the changes and the likely costs involved. Rationale 53 When the modified best interests duty applies, an advice provider need only comply with s961b(2) (c). We propose to state that our guidance on s961b(2) (c) is also relevant when the modified best interest duty applies. 54 CP 183 contains examples about giving scaled advice in a way that complies with the modified best interests duty. Australian Securities and Investments Commission August 2012 Page 22

23 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 C Regulatory and financial impact 55 In developing the proposals in this paper, we have carefully considered their regulatory and financial impact. On the information currently available to us, we think they will strike an appropriate balance between: (c) ensuring that retail clients receive personal advice that is appropriate for them in light of the subject matter of advice sought and their objectives, financial situation, and needs; ensuring that licensees comply with the best interests duty and related obligations in Div 2 of Pt 7.7A of the Corporations Act; and not causing licensees to incur unreasonable costs in complying with the best interests duty and related obligations. 56 Before settling on a final policy, we will comply with the Australian Government s regulatory impact analysis (RIA) requirements by: (c) considering all feasible options, including examining the likely impacts of the range of alternative options which could meet our policy objectives; if regulatory options are under consideration, notifying the Office of Best Practice Regulation (OBPR); and if our proposed option has more than minor or machinery impact on business or the not-for-profit sector, preparing a Regulation Impact Statement (RIS). 57 All RISs are submitted to the OBPR for approval before we make any final decision. Without an approved RIS, ASIC is unable to give relief or make any other form of regulation, including issuing a regulatory guide that contains regulation. 58 To ensure that we are in a position to properly complete any required RIS, please give us as much information as you can about our proposals or any alternative approaches, including: (c) the likely compliance costs; the likely effect on competition; and other impacts, costs and benefits. See The consultation process, p. 4. Australian Securities and Investments Commission August 2012 Page 23

24 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 Key terms Term ADI advice advice provider AFS licence AFS licensee ASIC ASIC Act authorised representative best interests duty best interests duty and related obligations Ch 2 (for example) client Meaning in this document Authorised deposit-taking institution Personal advice A person to whom the obligations in Div 2 of Pt 7.7A of the Corporations Act apply when providing personal advice to a client. This is generally the individual who provides the personal advice. However, if there is no individual that provides the advice, which may be the case if advice is provided through a computer program, the obligations in Div 2 of Pt 7.7A apply to the legal person that provides the advice (e.g. a corporate licensee or authorised representative) Note: These obligations will apply from 1 July 2013, or a person may elect to comply from 1 July An Australian financial services licence under s913b of the Corporations Act that authorises a person who carries on a financial services business to provide financial services Note: This is a definition contained in s761a of the Corporations Act. A person who holds an Australian financial services licence under s913b of the Corporations Act Note: This is a definition contained in s761a of the Corporations Act. Australian Securities and Investments Commission Australian Securities and Investments Commission Act 2001 A person authorised by an AFS licensee, in accordance with s916a or 916B of the Corporations Act, to provide a financial service or services on behalf of the licensee Note: This is a definition contained in s761a. The duty to act in the best interests of the client when giving personal advice to a client, as set out in s961b(1) of the Corporations Act The obligations in Div 2 of Pt 7.7A of the Corporations Act A chapter of the Corporations Act (in this example numbered 2), unless otherwise specified A retail client as defined in s761g of the Corporations Act and Div 2 of the Pt 7.1 of Ch 7 of the Corporations Regulations Australian Securities and Investments Commission August 2012 Page 24

25 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 Term client s relevant circumstances conflicts priority rule Corporations Act Corporations Regulations financial product financial product advice Meaning in this document The objectives, financial situation and needs of a client that would reasonably be considered relevant to the subject matter of advice sought by the client The rule to prioritise a client s interests as set out in s961j of the Corporations Act Corporations Act 2001, including regulations made for the purposes of that Act Corporations Regulations 2001 A facility through which, or through the acquisition of which, a person does one or more of the following: makes a financial investment (see s763b); manages financial risk (see s763c); makes non-cash payments (see s763d) Note: This is a definition contained in s763a: see also s763b 765A. A recommendation or a statement of opinion, or a report of either of these things, that: is intended to influence a person or persons in making a decision about a particular financial product or class of financial product, or an interest in a particular financial product or class of financial product; or could reasonably be regarded as being intended to have such an influence. This does not include anything in an exempt document Note: This is a definition contained in s766b of the Corporations Act. financial service FOFA FOFA Act No. 2 general advice licensee Has the meaning given in Div 4 of Pt 7.1 of the Corporations Act Future of Financial Advice Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 Financial product advice that is not personal advice Note: This is a definition contained in s766b(4) of the Corporations Act. An AFS licensee Australian Securities and Investments Commission August 2012 Page 25

26 CONSULTATION PAPER 182: Future of Financial Advice: Best interests duty and related obligations Update to RG 175 Term modified best interests duty personal advice PJC platform providing entity Meaning in this document The limited number of steps an advice provider needs to take to act in the best interests of the client when: the advice is about a basic banking product only and the advice provider is an agent or employee of an Australian ADI, or otherwise acting by arrangement with an Australian ADI under the name of the Australian ADI (s961b(3)); or the advice is about a general insurance product only (s961b(4)) Financial product advice given or directed to a person (including by electronic means) in circumstances where: the provider of the advice has considered one or more of the client s objectives, financial situation and needs; or a reasonable person might expect the provider to have considered one or more of these matters Note: This is the definition contained in s766b(3) of the Corporations Act. Parliamentary Joint Committee on Corporations and Financial Services For the purposes of this consultation paper, investor directed portfolio services (IDPS) and IDPS-like schemes, but does not extend to nominee and custody services, as defined in Regulatory Guide 149 Nominee and custody services (RG 149), superannuation master trusts or other superannuation funds, self-managed superannuation funds or managed discretionary account services Note: This is the same definition used in Consultation Paper 176 Review of ASIC policy on platforms: Update to RG 148 (CP 176). A person to whom the obligations in Pt 7.7 of the Corporations Act apply. This is the AFS licensee or an authorised representative that provides the financial product advice Pt 7.7 (for example) A part of the Corporations Act (in this example, numbered 7.7) related party A related party of an advice provider is: an associate of the advice provider; an AFS licensee of whom the advice provider is a representative; an associate of an AFS licensee of whom the advice provider is a representative; an authorised representative who has authorised the advice provider to provide financial services (or a financial service) on behalf of an AFS licensee; or an associate of an authorised representative who has authorised the advice provider to provide financial services (or a financial service) on behalf of an AFS licensee Australian Securities and Investments Commission August 2012 Page 26