As part of its ongoing review of the legislative framework for financial services regulation, the Australian Law Reform Commission has taken aim at a subject that will be quite familiar to NMP readers.
The ALRC’s latest background paper, Risk and reform in Australian financial services law, addresses the ways in which financial services legislation has failed to adapt to “changes in regulatory philosophies.” This failure, the paper notes, has led to a complex web of “exemptions, conditions, notional amendments, obligations and prohibitions,” the by-product of which has been rampant duplication and redundancies.
One example of this is the changing attitudes to managing product risk, and how those attitudes have both informed and been undermined by the legislative architecture of financial services regulation. The ALRC notes that in Australia, it is generally understood that market efficiency depends on a “reduction of information asymmetries” – in other words, consumers require adequate information about a product’s features, estimated return and risk/return trade-off in order for it to be priced appropriately.
This philosophy was enshrined in the 1997 Wallis Inquiry’s position of disclosure being “at the core of any scheme to protect consumers as it allows them to exercise informed choice.” This position, the paper notes, went on to inform multiple reforms aimed at standardising product disclosure requirements in financial services, including subsequent efforts to make those standardised requirements easier for consumers to understand.
Over time, though, these requirements became increasingly prescriptive – and the paper suggests this may have been less due to consideration of consumer risk and more because “companies sought more detailed disclosure requirements in an effort to increase certainty as to their legal obligations.” At a certain point, one could argue, compliance and regulatory risk overtook product risk as the primary consideration.
The paper suggests this has created a dangerous situation where “prescriptiveness can itself introduce risks of non-compliance by increasing the complexity and sheer scale of the legislation, thereby making it harder to understand and enforce.” Moreover, prescriptive disclosure requirements can create a sense of “risk shift” – where a product provider or distributor, having ticked all the boxes, “may feel it has executed its responsibilities” while letting its “broader conduct obligations” fall by the wayside.
“In particular,” the paper adds, “an emphasis on prescriptive disclosure requirements, including as to the content and form of information, may focus compliance on black and white aspects of the law, rather than the more indeterminate requirements imposed by prohibitions such as that against misleading and deceptive conduct or the requirement that AFS licensees act efficiently, honestly, and fairly.”
The paper cites two examples of this: the collapse of Storm Financial and the cases heard during the Royal Commission. These incidents, the paper says, “illustrate the way in which complying with disclosure provisions may create a sense of licence to disregard consumer interests or generally accepted norms of conduct, whether in the law or not.”
It’s not just those who “disregard consumer interests” who are negatively impacted by prescriptive regulation, though. The ALRC notes that prescriptive content requirements for SOAs, for example, “may … simply reduce the time that can be given to actually providing advice, and add to the costs of [personal] advice. The fundamental obligations of an adviser – to act in the best interests of the client – can be overwhelmed by the disclosure obligations to which an adviser is subject.”
These findings reflect the situation described by Story Wealth Management CEO Anne Graham in a recent discussion with NMP. In that piece, she argued that the primary problem for new advice clients is “how much time it takes to get the work done.”
“If you’re a client or a customer and you’ve made the decision to purchase or get advice on something,” Anne explained, “you pretty much want it there and then. You’ve gone through the ‘will I or won’t I’ phase, you’ve done your fact-find on whether you think the adviser is trustworthy and whether you’re going to get value for money. You’re ready. And then it takes two months or so to actually get advice.”
So how can this be resolved? The paper says that, to date, there have been no efforts to “comprehensively review and simplify” these laws, which means there are currently multiple “easy wins” available, including “consolidation of notional amendments and removal of the duplication, redundancy and unnecessary prescription that has crept into the legislation.”
To fully rectify the issue and prevent further “amendment creep,” though, the paper recommends more fundamental simplification of the Corporations Act via “shifts in the law’s underlying policy and the development of a more consistent regulatory philosophy for regulating financial products and the risks they pose.”
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