The Federal Court has dismissed proceedings brought by ASIC alleging breaches of conflicted remuneration laws, finding Colonial First State Investments Limited (Colonial) did not breach the law when it agreed to pay the Commonwealth Bank of Australia (CBA) to distribute Essential Super.
The arrangements between Colonial and CBA regarding the distribution of Essential Super was the subject of a case study by the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. The conduct was referred to ASIC in the Final Report (Volume 2 - Part 2, p.99).
Justice Anderson found that the payments made by Colonial to CBA did not constitute benefits within the definition of ‘conflicted remuneration’. His Honour highlighted that the statutory context of the conflicted remuneration provisions were focused on situations such as where a financial adviser had a financial incentive.
CBA staff signed up over 390,000 individuals to the Essential Super product between July 2013 and June 2019.
ASIC Deputy Chair Sarah Court said ‘ASIC pursued this case because we were concerned that the arrangements between Colonial and CBA had the potential to influence the choice of financial product recommended to retail clients or the advice given to retail clients. ASIC will carefully consider the judgment.
‘ASIC will continue to work to ensure retail clients receive appropriate advice, that aligns with their interests,’ concluded Ms Court.
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Background
ASIC commenced civil penalty proceedings against CBA and Colonial on 22 June 2020 (20-143MR).
The conflicted and other banned remuneration provisions were introduced in June 2012 as part of the Future of Financial Advice reforms, representing the Australian Government’s response to the 2009 Inquiry into financial products and services in Australia by the Parliamentary Joint Committee on Corporations and Financial Services.
ASIC updated its guidance on conflicted and other banned remuneration (RG 246) in December 2017 (17-421MR).
Editor's note:
On 26 October 2022, ASIC appealed the Federal Court’s decision to dismiss ASIC’s proceedings (22-293MR).