NEED TO KNOW

The Government has released draft legislation to unwind parts of the Future of Financial Advice (FoFA) regime but issues remain regarding the way in which the reforms will be introduced. Click here for a link to the Government's FoFA consultation documents.

Contrary to comments in the explanatory material that the regulations will temporarily amend the statute, there appears to be no reference in the regulations to such amendments.

BACKGROUND

The draft legislation follows through with the Government's commitment to implement the recommendations of its 'Dissenting Report to the Parliamentary Joint Committee on Corporations and Financial Services'. This Report inquired into the Bills that introduced the FoFA provisions in 2010.

The Government maintains its proposal will increase certainty and reduce compliance costs in the financial advice industry. Our In Brief on 20 December 2013 reported on the Government's initial announcement regarding the package of changes to the FoFA regime.

THE DRAFT LEGISLATION

The draft legislation proposes to amend Part 7.7A of the Corporations Act 2001 dealing with the best interests obligation and conflicted remuneration, and the related Corporations Regulations 2001. The amendments are set out in the following exposure drafts:

  • Corporations Amendment (Streamlining of Future of Financial Advice) Bill 2014 (the draft FoFA Bill)
  • Corporations Amendment (Streamlining of Future of Financial Advice) Regulation 2014 (the draft FoFA Regulations)

A list of the key proposals under the draft FoFA Bill is summarised in the table below.

Draft FoFA Bill
'Opt-in' requirement Remove the need for clients to renew their ongoing fee arrangement with their adviser every two years.
Annual fee disclosure Remove the requirement to provide an annual fee disclosure statement to clients in ongoing fee arrangements prior to 1 July 2013.
Best interests duty Remove the 'catch-all' provision from the list of steps an advice provider may take to satisfy the best interests obligation.
Scaled advice Amend the best interest duty to allow for the provision of scaled advice.
'Intra-fund' advice Clarify the meaning of 'intra-fund' advice.
Conflicted remuneration

Amend the application of the ban on conflicted remuneration as follows:

  • exempt general advice;
  • exempt monetary benefits paid in relation to certain life risk insurance offerings inside superannuation;
  • amend the exemption for execution-only services to provide that only advice provided by the party receiving the benefit is considered;
  • broaden the exemption for training and education that relates to operating a financial services business;
  • broaden the existing exemption for basic banking products to allow an agent or employee of an authorised deposit-taking institution to access the exemption in a broader range of circumstances.

Under the draft FOFA Bill, the changes are proposed to commence the day after the Corporations Amendment (Streamlining of Future of Financial Advice) Act 2014 receives Royal Assent.

A list of the proposals under the draft FoFA Regulations is summarised in the table below.

Draft FoFA Regulations
Wholesale/retail client distinction Ensure that the wholesale and retail client distinction that currently applies in other parts of the Corporations Act also applies in respect of the FoFA provisions.
Stamping fee exemption Clarify the application of the stamping fee exemption to capital raising activities and broaden its application to include investment entities.
Stockbroking-related exemptions Amend the application of the existing brokerage fee exemptions to include brokerage fees paid in relation to financial products traded on the ASX24 (formerly the Sydney Futures Exchange).
Amendments to conflicted remuneration
  • Clarify what benefits can be paid under a balanced scorecard arrangement.
  • Exempt bonuses paid in relation to 'permissible revenue'.
  • Clarify the operation of the 'mixed benefits' provisions.
Grandfathering Broaden the circumstances when the grandfathering arrangements for the ban on conflicted remuneration apply.

The Government proposes to amend the FoFA regime by using the regulation-making power under the Corporations Act to amend both the statute and the regulations. The Explanatory Memorandum to the draft FoFA Bill states that the following changes "will all be implemented via regulation, and subsequently repealed" once they receive Royal Assent:

  • removal of the opt-in requirement;
  • changes to fee disclosure statements;
  • removal of the 'catch-all' provisions under the best interests obligation;
  • facilitation of the provision of scaled advice; and
  • clarification of the meaning of 'intra-fund' advice.

The Explanatory Statement to the draft FoFA Regulations states that to the extent possible under the regulation-making power, the draft FoFA Regulations will make interim changes until the draft FoFA Bill is passed and receives Royal Assent. However, the draft FoFA Regulations do not appear to make reference to any of the above changes - so a question remains as to whether the draft FoFA Regulations are incomplete, or whether the explanatory material is inaccurate.

In the meantime, it is expected that ASIC will take a facilitative approach to the FoFA regime until mid-2014. This means ASIC will not take enforcement action in relation to the specific FoFA provisions that the Government is planning to repeal.

NEXT STEPS

The draft FoFA Bill and FoFA Regulations are open for consultation and submissions close on 19 February 2014.

Please contact a member of our team listed in this publication if you would like assistance in preparing a submission or further details regarding the proposed amendments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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