FSR GPS: Misleading or deceptive conduct – A disclaimer antidote?

In this edition of the FSR GPS, we explore key principles for financial services businesses to consider when considering the use of a disclaimer to mitigate false, misleading or deceptive conduct. As noted in our previous article about where an unintentional error may not constitute misleading or deceptive conduct, the key test for misleading or … Read more

Defining (narrowing) the parameters of a “financial service” for the purposes of EHF breach reporting

This article is the first of our recently launched “Regulatory Wrangling” client program. According to the Macquarie Dictionary, the meaning of the term ‘wrangling’ is “to engage in argument, debate or disputation”, “to influence, persuade, or otherwise affect by arguing” or “to deal with or manage expertly”. Our take on the term is that “regulatory … Read more

5 YEARS ON FROM THE ROYAL COMMISSION

It has been 5 years since Commissioner Hayne, in February 2019, released the Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (FSRC). It was a watershed moment for the financial services sector, with the rippling effects still being felt 5 years on. It is safe to say … Read more

Regulatory Rumbles: Can an issuer be held liable for a distributor’s conduct?

Increasingly, ASIC has sought to hold product issuers responsible for the conduct of other entities down the distribution chain. The recent case of ASIC v Diversa Trustees Limited [2023] FCA 1267 (Diversa) is an example of this. In this edition of Regulatory Rumbles, we explore this trend and examine the legal bases for holding product … Read more

QUALITY OF ADVICE TRANCHE 1: HSF MAKES SUBMISSION ON TREASURY CONSULTATION

On 14 November 2023, Treasury released exposure draft legislation for consultation, proposing amendments to a number of statutes in response to the Quality of Advice Review. Our team has made a formal submission on this consultation. In summary, our submission addresses the proposed removal of the exception to the conflicted remuneration provisions for benefits given by … Read more

ASIC doubles down – DDO pressure points

Following months of heightened scrutiny on target market determinations (TMDs) across the financial services sector, we are seeing signs that ASIC has shifted its focus on broader product and distribution governance under the DDO regime. In particular, ASIC has started issuing statutory notices and asking questions as part of a thematic review into how issuers and distributors are complying with their reasonable steps obligations. In this article, we focus on some of the key pressure points in DDO compliance as ASIC shifts its focus. Read more

FSR GPS: What is the deadline for notifying ASIC of a reportable situation?

In this edition of FSR GPS, we set out some useful tips to help licensees calculate the 30-day reporting deadline under the ASIC breach reporting regime. A licensee is required to report to ASIC within 30 days after it first knows that, or is reckless with respect to whether, there are reasonable grounds to believe … Read more

FSR GPS: WHEN IS AN INCORRECT MISSTATEMENT NOT MISLEADING OR DECEPTIVE?

In this edition of the FSR GPS, we highlight some key principles that can help AFS licensees identify when an immaterial misstatement may: not constitute misleading or deceptive conduct; and therefore, not automatically be reportable as a significant breach to ASIC under section 912DAA of the Corporations Act 2001 (Cth) (Corporations Act). As with our … Read more