The Financial Sector Reform (Hayne Royal Commission Response—Better Advice) Act 2021 (Act) implements the Federal Government’s response to the Financial Services Royal Commission Final Report Recommendation 2.10: New financial adviser disciplinary system.
A key reform under the Act is to give the Financial Services and Credit Panel (FSCP) its own statutory functions and powers. The reforms in the Act commence on 1 January 2022.
The powers of the FSCP under the Act include the power to direct financial advisers to undertake specified training, counselling or supervision and to report certain matters to ASIC. An FSCP may also: suspend or cancel a financial adviser’s registration; issue infringement notices in specified circumstances; recommend that ASIC commence civil penalty proceedings; and enter into enforceable undertakings with financial advisers.
From 1 January 2022, ASIC must convene an FSCP in circumstances prescribed by the Financial Sector Reform Amendment (Hayne Royal Commission Response—Better Advice) Regulations 2021 (Regulations), made on 20 December 2021. For instance, ASIC must convene an FSCP where it reasonably believes that a financial adviser is not a fit and proper person to provide advice or a financial adviser becomes an insolvent under administration and ASIC is aware of this. In addition, ASIC must issue a warning/reprimand in relation to certain misconduct.
ASIC will proceed to issue a warning/reprimand or make a referral to an FSCP only where it has formed the reasonable belief after carrying out its usual triaging, investigatory work and referral processes. This means that not all concerns about the conduct of financial advisers that come to ASIC’s attention will result in ASIC issuing a warning/reprimand or a referral to an FSCP.
ASIC will consult on guidance regarding the operation of the FSCP in early 2022.
We will also release guidance about how ASIC will exercise its new power to issue warnings/reprimands in early 2022.
In 2017 ASIC established a panel of external delegates (also called the FSCP) to make administrative decisions on financial services and credit matters. ASIC’s 2017 FSCP ceased to operate from 1 July 2021, in anticipation of the reforms in the Act.