Win For ASIC Gives Clarity Around ‘Personal Advice’ Definition

The Full Federal Court has upheld an appeal made by ASIC around an earlier decision of the Federal Court regarding Westpac subsidiaries, Westpac Securities Administration Limited (WSAL) and BT Funds Management Limited (BTFM).

ASIC’s appeal concerned the Federal Court’s decision regarding the meaning of ‘personal advice’ in the Corporations Act, including the finding by the Court that WSAL and BTFM did not provide personal advice to 15 customers in two telephone campaigns conducted by members of Westpac’s Super Activation Team.

In the earlier hearing, ASIC alleged that during two telephone campaigns, WSAL and BTFM provided personal financial product advice to customers, specifically recommending that customers roll out of their other superannuation funds into their Westpac-related superannuation accounts. The regulator noted neither of these Westpac subsidiary firms is permitted to provide personal financial product advice under their Australian financial services licences.

…the decision …provides clarity and certainty concerning the difference between general and personal advice

In its original decision in December last year, the Federal Court found that WSAL and BTFM breached the Corporations Act (section 912A(1)(a)) but that ASIC did not make out its case that ‘personal advice’ was provided to 15 customers.

The Full Court reversed that decision this week, finding that in calls to 14 of the customers, Westpac staff did indeed provide them personal advice, in breach of WSAL and BTFM‘s Australian financial services licences.

The Court also found that WSAL and BTFM, by providing personal advice to their customers, failed to comply with other financial services laws in the Corporations Act, including the ‘best interests duty’.

ASIC said it welcomes the decision of the Full Court, which it says provides clarity and certainty concerning the difference between general and personal advice for consumers and financial services providers.

The Full Court was unanimous in its decision.

  • Jeremy Wright

    That is a start. What is next?

    Direct product floggers have for years, been the cause of good quality Life and Disability Insurances being cancelled and replaced with inferior products that appeared cheaper, though because the Direct Company never bothered to investigate what exactly was being replaced, they sold to the unwitting person, worthless policies.

    Like most things in life, there is a simple solution, a hard solution and an incorrect solution.

    ASIC has for many years, promoted the hard solution that does not alleviate the problem, it exacerbates it.

    The moment you use a Lawyer to solve your issues, you may as well throw in the towel.

    ASIC are Public Service Lawyers, which adds another layer of red tape and cost to the Tax payer and Business.

    ASIC may have good intentions, though they are trained one way and that way is to make SIMPLE, COMPLICATED and to make sure their highly paid jobs continue.

    As to fixing the issues, ASIC has had many many years and have cost the Australian Tax payers hundreds of millions of dollars every year to attempt to fix issues and we have never been worse off.

    Do not expect ASIC or any Government body to help, their focus is to be “seen” to be getting things done, not actually just getting on and doing it in a way that everyone can understand and where it actually works in a time and cost effective manner.

    • paulkate72

      Yes, it is like that, Jeremy. Having been in this industry for 25 years+ (over 2 different timeframes), I’ve seen it effectively dwarfed by the organisations which have been set up to monitor it.

      Compliance is now a behemoth and further education is proving to be an enormous windfall for the bodies offering courses in it.

      None will deliver any benefits whatsoever to those which our industry purports to service, namely, the insurance-and-superannuation buying public. How astoundingly farcical it all is!