Monday, 23 November 2009
Corporations and Financial Services Committee; Report
On behalf of the Parliamentary Joint Committee on Corporations and Financial Services, I present the committee’s report entitled Inquiry into financial products and services in Australia, together with evidence received by the committee.
Ordered that the report be made a parliamentary paper.
As Chair of the Parliamentary Joint Committee on Corporations and Financial Services, it gives me great pleasure to table this report on the work that we have done. The committee inquired into financial products and services regulation with a particular focus on the issues raised by recent collapses such as Storm Financial and Opes Prime. The committee received nearly 400 submissions, more than 200 of which were from people affected by the collapse of Storm Financial. The collapses of Storm, Opes Prime and others have certainly had a devastating effect on the people who invested in them. On behalf of the committee, I would like to thank those individual investors who took the time and effort to assist the committee with its deliberations while in the midst of such difficult personal circumstances.
When taking evidence on these collapses, most notably Storm Financial, the committee has taken the approach that we are not a judicial body and are in no position to make judgments about individual claims that have been made to us. Nor has it been possible for the committee to resolve the contradictory evidence received from Storm investors, the banks who provided margin loans, and Storm Financial themselves.
The committee can say this: investors were frequently given financial advice from Storm’s financial advisers that was clearly inappropriate for them. The committee has been highly critical of the one-size-fits-all investment strategy offered by Storm, especially when that strategy involved borrowing to invest against the value of people’s homes. We cannot reconcile the fact of Storm recommending aggressive, leveraged investment strategies to people on low incomes or near the end of their working lives, with Storm’s obligation under the Corporations Act to provide advice appropriate to their clients.
The committee also considers the confusion between Storm and the banks over the provision of margin calls to be unacceptable, and it is concerned that some banks were lax in their lending practices when allowing Storm clients to borrow against their homes. The margin lending and consumer credit protection bills which the parliament has debated this year should rectify gaps in legislation that allowed these circumstances to occur outside the regulatory system.
The committee has taken into account the circumstances of these collapses when making recommendations for regulatory change to guard against similar events in the future. As a committee, we recognise that isolated corporate collapses do not necessarily indicate regulatory failure. However, the committee received broad and consistent evidence telling us that improvements are needed to raise the overall quality of financial advice that Australians receive. The committee’s recommendations are designed to increase professionalism within the financial advice sector and improve consumer confidence and protection.
A better regulatory framework for managing financial advisers’ conflicts of interest is needed. The product distribution role of financial advisers—and the remuneration they receive from product providers for recommending certain financial products—too often leaves consumers getting advice that is not in their best interests. The law needs to explicitly state that financial advisers must place their clients’ interests ahead of their own. The committee has recommended that the Corporations Act be amended to include a fiduciary duty requiring advisers to put their clients’ interests first.
The committee believes that payments from product providers to financial advisers, such as commissions and volume bonuses, create entrenched conflicts that are very difficult to manage. The committee has therefore recommended that the government consult with industry on the most appropriate way to cease payments from product manufacturers to financial advisers. In order to make transparent fee-for-service payments more appealing, the committee has also recommended that the government consider the implications of making the cost of financial advice tax deductible.
Greater professionalism could also be achieved by requiring those wishing to call themselves financial advisers to become members of an independent, industry based professional standards board. The committee has recommended that ASIC immediately consult with industry on setting up this body, which would establish, monitor and enforce nomenclature, competency and conduct standards for the industry.
Recent collapses have also shown the need for more effective regulatory enforcement. The committee has recommended that ASIC be appropriately resourced to perform effective risk based surveillance of advice provided under licence and perform financial advice shadow-shopping exercises annually. We recognise that it is often difficult for ASIC to take action when it identifies problems. The committee has therefore made two recommendations designed to lower the threshold for ASIC to remove individuals and licensees from the industry.
To protect investors when collapses do occur, the committee has recommended that the government investigate options for a statutory last resort compensation fund for investors.
I thank the committee secretariat for their assistance with this inquiry and all of the committee members. Finally, I would again like to express my sincere thanks to all those who provided submissions to this inquiry and provided evidence at one of our public hearings. We as a committee hope that this report will lead to change to improve the regulation of financial products and services in the years ahead. (Time expired)
I rise as a member of the Parliamentary Joint Committee on Corporations and Financial Services to speak on the report Inquiry into financial products and services in Australia. From the outset, I want to join with the chair of the committee, the member for Oxley, in acknowledging the disastrous consequences suffered by many people who had invested, in many cases, their life savings in the organisations which were probed by this review. I want to thank them for assisting the committee during such difficult and trying circumstances.
As the chair has noted, the committee is not a judicial body. Our charter was to investigate and review the current regulatory and legislative environment for financial products and services in Australia and to recommend any appropriate changes. I strongly concur with the chair’s comments that there can be no doubt that a number of individual investors were given advice from some organisations that was clearly inappropriate for them and their personal circumstances.
More broadly speaking, informing its view, the committee has taken into account all of the evidence provided relating to the high-profile collapses as outlined in the terms of reference. In addition, more broadly based evidence from across the sector was provided by many stakeholders about how the current framework may be improved so that greater levels of transparency and consumer protection are offered. It is important to note that, without diminishing the substantial negative impact many people experienced in the collapses considered by the inquiry, in general Australia’s regulatory system has served the community well. Every year there are many millions of individual transactions and interfaces which Australians have each day with financial products and services. Australia’s relative success, compared with others across the world, especially during the global financial crisis, is evidence that our system has in fact been robust and has worked well in the majority of cases.
The committee’s report has made 11 recommendations. Recommendation 1 is far reaching and substantial and recommends that the act be amended to explicitly include a fiduciary duty for financial advisers operating under an AFSL, requiring them to place their clients’ interests ahead of their own. If adopted by the government, I believe this would have the dual benefit of further improving consumer protection and lifting industry standards.
During the inquiry, there was much debate and discussion around conflicts of interest and the role that remuneration plays in managing potential conflicts. As many people are aware, the sector itself has proactively embraced the need for reform in this important area. The committee has recommended that the government consult with and support industry in developing an appropriate mechanism that will see payments from product manufacturers to financial advisers cease. Importantly, any remuneration structure in the future would clearly need to be compatible with the introduction of a fiduciary duty as outlined in recommendation 1.
Recommendation 5 suggests that the government consider making the cost of financial advice tax deductible for consumers. The recommendation would potentially encourage many more Australians to obtain professional advice when they would otherwise not have considered doing so due to the costs involved. Any initiative that encourages a greater number of Australians to seek professional advice regarding their financial future I think is a step in the right direction.
Recommendation 9 is also an important step in the right direction. The recommendation proposes that ASIC immediately begins consultation with the financial services industry on the establishment of an independent, industry-based professional standards board to oversee competency and conduct standards for financial advisers. Such an initiative would, without question, increased professionalism within the sector.
The critical area of financial literacy is touched upon in recommendation 11. This is an area where I believe strongly the stakeholders have responsibility to promote. No-one can doubt that it is critical that citizens both young and old are better educated about the myriad of financial products and services which are available to them. Recommendation 11 suggests that ASIC develop and deliver more effective education activities to groups in the community which are likely to be seeking financial advice, particularly those seeking it for the very first time. Quite clearly, there is no one silver bullet in what is a complex and ever-changing area of commerce. The adoption of this report will provide better outcomes, I believe, for Australians.
Tonight I join with the chair in expressing my hope and I am sure the hope of all committee members that the committee’s work will indeed further improve and very much enhance Australia’s financial services system.