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Financial Advisers Act changes revealed

RFAs, AFAs and QFEs are set to become a thing of the past as a revamped Financial Advisers Act (FAA) brings in a single set of expectations for all market participants.

Wednesday, July 13th 2016, 5:00AM 31 Comments

by Susan Edmunds

The recommendations for the new-look FAA, revealed today fall into three main categories.

One set of rules for all

The first removes distinctions between advisers and types of advice. Under the new FAA, definitions of class, personalised advice and product categories will be removed. So will the RFA, AFA and QFE designations.

Commerce Minister Paul Goldsmith said the revamped FAA was an attempt to get conversations about New Zealanders' finances flowing, instead of advisers being hindered by restrictions on the type of product they could discuss.

All advisers, whether they are human or roboadvice, will be required to place the interests of the consumer first and provide advice only where they are competent to do so.

All will be subject to a code of conduct, although the standards of that will vary according to the different types of advice provided. The code will also set the competency requirements expected of advisers. A blanket introduction of a level five qualification requirement is not being promoted at this stage.

All advisers will be expected to put the interests of their clients first.

Goldsmith said the changes would mean a higher bar for people who are currently RFAs as they were drawn into the regulatory net. "It is a step up for them. But if you look around the world, this is broadly the direction that everyone is going and is what consumers expect."

He said it would be interesting to see whether the number of advisers in the market changed. The Financial Markets Authority would be charged with monitoring whether clients were being put first and breaches could be penalised. Reporting requirements could be introduced that include things such as data on replacement and new business and details of commission, including soft commissions.


Roboadvice gets green light

The second major change allows for roboadvice. The new FAA will remove the requirement for advice tailored to a consumer to be provided by a natural person.

"Roboadvice will need to meet the same standards as a person providing advice; however the means of meeting these standards will differ. For example, while a financial adviser may be required to demonstrate competence through having passed a qualification, a roboadvice platform may have to demonstrate equivalent quality through algorithm and scenario testing," the Ministry for Business, Innovation and Employment (MBIE) said.


Entity licensing

The third covers entity licensing. All advisers will be required to be licensed by the FMA but they can also opt to be agents of a firm that is licensed. Those who continue as advisers will be individually accountable for complying with the legislative and code obligations on them. Firms will be responsible for their agents.

"This approach replicates the efficiencies of the current QFE model and applies it to all," MBIE said. "There will be flexibility, depending on the size and nature of the firm, in how prospective licensees will be expected to meet those requirements given a ‘one size fits all’ approach to licensing and reporting is unlikely to work. their agents."

MBIE said advisers would be better off under the new rules because the absence of a class and personalised delineation would mean they would not be restricted from providing consumers with the advice they wanted, if they were competent to provide it.

New simplified disclosure requirements and streamlining licensing and reporting requirements would help ease the regulatory burden for AFAs in particular.

There had been discussion during the options paper process of a carve-out of sales versus advice services. Goldsmith said requiring all advisers and agents to make clear the limitations of their services, and tell clients if they could only offer advice on one type of product, would deal with that issue.

MBIE said: "All advisers and agents have limitations on the services they can provide. For example, some only provide advice on one or two providers’ products. In putting the interests of the consumer first they would not be expected to consider the full range of products from across the market, but would be required to recommend the best product for the consumer from their suite and, if no product from those providers is genuinely suitable, to advise the consumer on that basis. In all cases, advisers and agents must put the consumers’ interests ahead of their own regardless of the differing financial incentives offered by providers."

MBIE said it had considered banning commissions but that was not an appropriate response.

"MBIE recommended focusing on the conduct of those providing financial advice, rather than imposing a ban or restriction on commissions."

It said commissions were no tin themselves harmful and a ban would not directly target poor conduct.

Goldsmith said he hoped to have the legislation into the house before the end of the year. But he said it was important not to rush it. "This is an area where there are so many opportunities for unintended consequences."

Tags: Financial Advisers Act

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Comments from our readers

On 13 July 2016 at 7:30 am AdviserMan said:
This is a very balanced and fair outcome for the industry and moves us all forward to a level of greater accountability, responsibility and opportunity.

Well done Minister Goldsmith for having the fortitude and courage to enable these changes and provide an industry which will better serve the NZ public.
On 13 July 2016 at 7:34 am Jaelo said:
Crikey! I've just had to stop full-time work due to ongoing illness, but now am doing money coaching part-time. (I'm on income protection, yay!) Now I'm working part time as a Money Coach, and just renewed my authorisation after five years at quite a cost! So this means my extra fees I pay are for nothing? The level five qualification I have is not expected of advisers and there is no distinction between those who chose to set a higher bar for themselves? I understand the point to make it easier for clients, but I'm annoyed that in my lower earning capacity, I only just forked out $582 to be re authorised, and in the future not be able to call myself Authorised.
On 13 July 2016 at 8:21 am mrmrthomas said:
How could MBIE even consider banning commissions? My understanding is that the vast majority of Advisers are self-employed contractors remunerated solely by commissions. What alternatives to commission could the MBIE consider?
On 13 July 2016 at 8:31 am rosconz said:
Some sensible changes made which is pleasing although the requirement 'to recommend the best product for the consumer from their suite' could have some interesting implications for those 'tied' advisers who have a requirement implied or otherwise to steer towards a particular provider. They may need to either change process and become an actual 'adviser' maybe breaking from their current dealer group (if this is actually possible) or presumably retrench their business back into the mothership to reflect they are effectively an 'agent' using a single provider under the new rules. Interesting times ahead...
On 13 July 2016 at 8:34 am Brent Sheather said:
If this wasn’t such a bad deal for NZ investors it would be humorous. Indeed it brings to mind that dead parrot sketch by Monty Python where the parrot was really dead but everyone pretended it was ok. Similarly…. organisations and the AFA’s that work for them that only sell their own, totally unattractive products are putting client’s interests first if, out of their limited product range, that product is the least unattractive for their poor fool client. That’s putting client’s interests first, not.

The MBIE and the FMA totally ruin their credibility when they sanction this sort of obvious unfair practice especially given that the only beneficiary of these rules are the banks for whom they have or will work.

Breaking news : “In two apparently unrelated announcements the Commerce Minister and the MBIE team have left to join the wealth management arm of an Australian bank”.
On 13 July 2016 at 8:38 am Scott Black said:
Great to see common sense prevail. Some of the complexity has been stripped out, relevant standards have been raised and flexibility has been retained. A good outcome for the consumer, and a reasonable one for advisers.
On 13 July 2016 at 9:40 am Licensed Adviser said:
This is a great result for the Banks
They can sell their single products
Their Advisers are not called Sales or anything derogatory.
The Advisers are licensed as a Group Entity meaning one Bank could register thousands.
The bank Advisers don't have to do code 5
If fact the name of the tens of thousand of QFE staff will be the same as AFA's and RFA's
Great lobbying Banks
On 13 July 2016 at 9:48 am Barry Read said:
Well done to MBIE on the proposed framework. I believe it will simplify how advisers and adviser business are represented to consumers and allow them to choose service appropriate to their needs, which is a good outcome. Brent, I suggest you read the Colmar Brunton Research Report that was released with the FAA Review Options paper. Consumers can understand the limitations of financial advice from product providers, and their agents, and should be allowed to choose whom they get their advice from. I also think the framework suggested will improve the disclosure of its limitations.
On 13 July 2016 at 10:00 am Murray Weatherston said:
A few initial reactions after a quick read of the 80 pages, and a couple of comments on earlier comments.

First it looks to me like they are going to have to take a big red pen to a lot of the existing Financial Advisers Act and regulations under it. We'll have to wait for version 3 of the original intention to see exactly what the new regime is.

Second, the recommendations are a lot of high-level stuff only, and there is still the details to be worked out.

My gut feel, and hope to be proven wrong, that they are swapping one consumer-confusing set of regulations for another. For example, it is very clear to me that the competence requirements for different "financial advisers" will not be homogeneous.

MBIE still seem very confused between "putting the interests of the consumer first" [the current and future standard] and "consumers best interests". They made the same mistake in the Options paper, some submitters pulled them up, but yet we still have the same confusion.

Hopefully Jaelo will be able to have his/her recent AFA renewal fees credited towards his/her "Financial advice firm fee" and "financial adviser registration fee"

Lastly, I agree with most of what Brent says above. My knee-jerk headline would have been "institutions 100 The Rest nil". I'll let you know if that projection changes.
On 13 July 2016 at 10:04 am innocent bystander said:
From the brief bit of reading I have done, this is how I see it, please correct me if I am wrong

There will be one Financial Adviser designation.
Those licensed will be able to provide Rabo Advice, if they can prove its works.
There will be new competency requirements for both AFA's and RFA's around what advice they can provide, so is this a lowering of the bar for AFA's or raising the bar for RFA's
Is door is open for dealer groups to be licensed
RFA's could do STD set D and promote KiwiSaver as they are now competent?
Perhaps those that arrange mortgages will have to complete a kiwisaver paper and insurance paper before being able to offer any advice around first home buyers withdrawals.
Could those aligned, tied or licensed ONLY provide advice on selling their own products but NOT offer an opinion on cancelling or switching someone else's product
Interesting times ahead, who really wins, the Banks, AFA, RFA and will the public really see a different and choose the right adviser to give advice?

On 13 July 2016 at 10:29 am Tash said:
"required to recommend the best product for the consumer from their suite" this effectively means bank staff, tied agents and others who have a limited suite can never advise a client with existing insurance cover by a provider not "in their suite". This is going to dramatically reduce churn (if policed properly) and is in my view entirely appropriate. There is no way replacement can be recommended unless the policy to be replaced is fully understood. I look forward to a tied agent, bank employee trying to churn one of my clients with cover by one of the good insurance companies - seems a successful complaint will be almost guaranteed!
On 13 July 2016 at 12:17 pm Licensed Adviser said:
Just some other Comments.
Despite lobbying, it seems Accountants and Lawyers are exempt as they have sufficient oversight elsewhere...It is unclear if they are obligated to put the customers interest first.

The MBIE white paper says that one of the key drivers is to enable Robo Advice. For Robo Advice read Banks. They will swamp the market in years to come.
The document calls for entity licensing rather than individual, this provides 'economies of scale can be enabled" This means that Banks get economies of scale and individual advisers do not.
It seems that AFA's who have gone the extra mile for customers are to be homogenised with the greater pool of advisers.
Still reading
On 13 July 2016 at 12:43 pm Headmaster said:
Reading the comments above, I would choose between AdviserMan and Barry Read to be my adviser, thank you.

The proposed removal of the distinction between AFAs and RFAs (which was promoted by self-serving advisers who only wanted a badge which said that they were better than others) shows what a failed experiment it was.

To Minister Goldsmith and MBIE, I say well done and stay the course.
On 13 July 2016 at 1:52 pm Carey Church said:
I congratulate MBIE for synthesising all the submissions and coming up with what at first glance appears to be a sensible principles based approach.

I applaud the move away from 'sales people' with a suitability requirement (which appeared to have many practical flaws) to the introduction of a financial agent definition. The relationship between an agent and his/her principal is well established in law. By identifying this person as an agent for their employer as well as requiring them and their employer/financial advice firm to put the interests of their clients first, the proposals make a significant step forward in my opinion.

I also applaud the recognition that not all people are built to show their competency by sitting exams - and hope that the broad spectrum provided to the (to be updated Code Committee) for assessing competency will lead to a range of personalities remaining in the industry who care for the client and put the interests of their clients first.

My only concern is the continuing availability of the loophole for 'transaction only' services which will still be able to be arbitraged by the tiny group of unscrupulous people that are not at all interested in the client and only in their own income

Well done to all the submitters and MBIE.
On 13 July 2016 at 2:33 pm dcwhyte said:
Keeping the powder dry to study some of the recommendations more closely.

Some initial thoughts and a point of clarification - someone attaching to an adviser firm is under the firm's license - there is no requirement for the non-financial adviser (agent) to obtain a license. In other words, it's either individual license (financial adviser working independently or for financial advice firm) OR 'agent' (under adviser firm license). The second sentence in the Entity Licensing paragraph above is not entirely clear. Those who opt to join a financial advice firm as an agent do not have to register with the FMA individually, see pp.62 and 63 of the Report.
My reading so far suggests that in the absence of any stated minimum qualification no educational requirements will be imposed.

The dealer group licensing structure is as per the Australian model.
Akin to DLA Philips Fox having a license to practice law but retaining the services of unqualified individuals. But don't worry, at the firm's insistence, they've watched all the episodes of Boston Legal and Ally McBeal.

Agree with Murray's points thus far - dumped RFA, AFA, QFE - replaced with FA, A, FAF = status quo.

Disclosure - fine; Robo-advice - fine, Product categories and advice definitions - fine.

Powder still dry......
On 13 July 2016 at 4:47 pm blogger billy said:
Informed comment I have read today indicates that this is another case of big institutions/banks with lots money and lots of lawyers lobbying hard out

And utilising their “gamekeeper-turned-poacher” employees inside knowledge of the regulators

e.g. Simon Power

Is this insider trading of another kind ?

To get a sweet deal for them and their profits

and pay only lip service to putting the consumer first

Lip service - “To pretend that you believe a certain thing but not practice that belief.”

We need regulations to prevent this pernicious all-too-common trend

email and voice your concerns
On 13 July 2016 at 6:36 pm w k said:
there is only way to have a level playing field - all financial advisers to be INDIVIDUALLY licensed. similar to lawyers, doctors, accountants, motor mechanics, builders, electricians, plumbers, teachers, nurses, etc. otherwise every tom, dick and harry employed in the hospital should be able poke a needle into your body. just my thoughts.
On 14 July 2016 at 10:17 am R1 said:
Agreed wk.
Looks like all power to the banks to continue peddling their expensive 'potions' to their unsuspecting, brand loyal clients without breaking any rules and while not truly putting their clients' interests first(not that they are being brought to account under this current regime); i.e. business as usual for most advisers.
I watch with interest to see who moves where across the political/regulatory/financial institution corridors.
On 14 July 2016 at 11:10 am MPT Heretic said:
Looks very much like the Australian dealer licence model.....and look how well that has gone.

Remind me again how many of the large Aussie banks have been pulled up by the regulators and had to compensate investors for poor advice.
On 14 July 2016 at 12:50 pm AFA Muggins said:
Blogger Billy; I have no idea why you think writing to a politician is going to have any effect – they brought this in, and they are lobbied by the interests that wanted this.

I think that the two largest professional bodies in this country have done their membership a huge disservice, and are continuing to. I was a member of BOTH and am still a member of one but have also recently joined another smaller more independent association. I will be resigning my membership of the other.

It appears that the interests of members have largely been pushed to the side of corporate interests and ignored by legislators and regulators. It is now blatantly obvious that big corporate interests have had their agendas furthered, and the revolving door policy with the regulator has cemented the agendas. The professional bodies have no real teeth.

With the two largest to join ranks and create a new association; “One to rule them all”, and the ranks of the individual associations being swelled by the large corporate interests ‘Agents’ the writing has to be on the wall for all but the most naïve ‘independent’ advisers. That growing membership along with the corporate sponsorship cannot be ignored. It is exactly what has happened overseas.

So what to do? My thinking is that there should have been and should be media campaigns from the associations to the public letting them know the situation and how badly it will affect their choices into the future. Lobbying government doesn’t work unless you have huge money, power and political clout. In other works professional bodies are a soft touch and have, and will continue to be walked over and manipulated by more potent interests.

I believe that Advice New Zealand will be exactly what will cement in the structure, that the banks and other QFEs want. They will lobby Government in the interests of the ‘Membership’ as a ‘united’ voice. And goodness knows the money will flow for that.

We need to take a leaf out of the book of European advisors book, who didn’t put up with it.
On 14 July 2016 at 12:53 pm AFA Muggins said:
... to add to my last post regarding professional bodies and their push back in Europe, a video produced by the FECIF for public consumption
On 14 July 2016 at 3:50 pm blogger billy said:
to AFA Muggins

agree but we have to start somewhere

embarrassing cynical politicians and revolving FMA staff is a good place to start

The FECIF is just what we need

But will NZ advisers pull together ? never seen it so far

Perhaps now is the time !!!

Bad things happen when good men do nothing
On 14 July 2016 at 4:17 pm Murray Weatherston said:
Has the Minister's acceptance of the MBIE FAAR just burned $200 million of AFA expenditure imposed by FAA2008?

The new policy throws out the fundamental building blocks of the old regime - individual authorisation of AFAs and a privileged status for QFEs.

I have seen IFA estimates that the regulatory cost incurred under FAA2008 was of the order of $20,000 per AFA per year. So using round numbers, 2000 AFAs for 5 years at $20,000 p.a is $200 million. If IFA's estimate was 100% overstated [the real cost was only $10,000 per AFA per year], it's still $100 million.

I have no idea what the cost to the 50 odd QFEs has been. But I bet it is more 10s of millions. Maybe not all of their money will be burned as they will be hoping for a cheap transition from QFE status to FAF licence holder.

Nobody seems to have factored that in.

I suppose in the best Yes Minister fashion, the NZ equivalents of Sir Humphrey might simply say "but Minister, abolishing AFA will actually save them $40 million p.a. on their calculations - so what are they bitching about"!!!!!!!!!!!!
On 15 July 2016 at 10:46 am dcwhyte said:
Having read some more of the comments, and the paper's proposals section, and in particular pp 62 and 63 - again - I submit the following remarks as my own views.

There are to be only two types of advisers - financial advisers or agents - and both must operate under a firm's license.

"Licensing would be required at firm level (for the avoidance of doubt, a sole-trader is considered a firm)."

Please note an individual financial adviser CANNOT be licensed - there is to be no option available for this.

To all intents and purposes, this replicates the Dealer Group licensing structure in Australia, and abandons the principle of individual responsibility. That said, the licensing requirements have not been stipulated, nor have the competency requirements been developed by the Code Committee as yet.

But why would I want to accept multiple layers of responsibility and, inevitably, expense?

I can apply to license my company, and become an agent of the company - will the consumer care? I doubt it.

Adopting the Australian entity licensing - now largely regarded as definitely not the optimal choice in the Australian industry - has been justified based on the "success of the QFE model".

How this success is measured is not mentioned, nor has there been any substantive research conducted to support this statement.

QFE's have a remarkable - some would opine bizarre - clean bill of health from dispute resolution providers and regulators alike. In 5 years, there have been hardly any breaches of the Act, or of their responsibilities, reported.

Truly remarkable!

There is more to come from the Minister and his advisers - there will be more responses to come from the industry, no doubt.
On 15 July 2016 at 12:49 pm Tash said:
I would submit there have been no complaints against QFE advisers because most people can't recognise poor advice, particularly in the insurance space, let alone be prepared to go to the trouble of doing anything about it.
On 15 July 2016 at 1:08 pm w k said: advisers can't be license? electricians, immigration consultants, real estate agents, etc have individual license, don't they? or if you prefer, call it practising certificate in some other professions - but it's still a license, aren't they? financial advisers must be a special breed to be treated differently.
On 15 July 2016 at 1:11 pm w k said:
i stand corrected, even a forklift operator needs a license.
On 15 July 2016 at 1:48 pm NoNoCents said:
My simplistic take on one part is that the proposals improve the standing of the term Financial Adviser.

Currently a person selling insurance policies, and that's all, is required, by law, to be a REGISTERED FINANCIAL ADVISER. The legal status of the term implies some competence to give financial advice. Currently a REGISTERED Financial Adviser is someone who HASN’T, for whatever reason, PROVEN that they are qualified to give financial advice except on a small subset of products, effectively insurance policies and bank term deposits. I don’t believe the consumers understand the difference between Registered and Authorised. Looks to me as if RFA’s and QFE’s will be able to continue as they are but they’ll be called Agents, YES that’s what they are, they are not financial advisers.

Under proposals if someone wants to be called a Financial Adviser and CAN PROVE COMPETENCE they can, but no longer will some just be able to register and legally use the term Financial Adviser. I heartily applaud that!

Hopefully those willing, and competent, to provide financial advice, in all it’s many facets, whilst putting the interest of the consumer first, will still be able to do so independently of providers and make a reasonable living. Likewise for those wishing to solely sell insurance policies.

But we won’t all be put in the same basket - Financial Adviser, unless we can PROVE COMPETENCE to use the term.

MPT Heretic I don’t like the Aussi model either but the fact that “… large Aussie banks have been pulled up by the regulators and had to compensate investors for poor advice.” Is GREAT. The banks have to either up their game or get out.
On 17 July 2016 at 2:57 pm Barry Read said:
Hi David

Pg 69 states that all individuals who operate as a Financial Adviser are individually accountable. The fact that they are registered under the licence of the firm doesn't change that fact, but potentially providers efficiency in not having to have multiple licences for firms with more than one FA. (I would also hope that all FA's will be listed under each FAF on the FSPR, which would be an improvement compared to Aussie.) Therefore if an individual financial adviser operates as a sole trader or limited liability company they can apply for a licence and be the financial adviser for that licence holder, so in effect can individually register for a licence. The good thing is though for multi adviser firms only one licence application would be required and this will have to show how all financial advisers listed under that firm meet their individual requirements. This will make for some interesting discussions over the transition period. It is worth noting that under the current act the responsibility for and adviser who provides financial advisers services under a registered FSP firm, that the firm and the individual are jointly responsible for the advice already. So I don't see a major shift, other than clarity of the agents who are working for a firm where the firm doesn't allow them scope to individualise there advice, where as at the moment that can only happen if you form a QFE.
On 18 July 2016 at 4:16 pm dcwhyte said:
Baz - not disputing the individual accountability part - got that. But the license is to be granted in the name of the firm alone, so if I'm a one-man band - plenty of them in the PAA/IFA - multi-agency distributor of risk products only, why would I not just obtain a firm license and appoint myself as Principal Agent? Developing sufficient processes and controls isn't that hard - many who have followed the wise guidance of IDS Ltd will already have these in place.

This would avoid all the requirements of the Code Committee (yet to be published), wouldn't change what I'm doing now, and wouldn't make one whit of difference to the clients. An agent of his own FAF will easily be able to personalise advice.

I'm not advocating this for as the way forward for the Advisory industry, but this is a legitimate and less complex path for an individual to contemplate.

All Australian advisers operating under an AFSL licensee have to be individually recorded with ASIC by the licensee.
On 19 July 2016 at 4:33 pm Andrew Gunn said:
The Review’s final report has some laudable aspirations to provide better access to financial advice and reduce complexity. The sad reality is that clients of advisers will probably not understand the distinction between ‘adviser’ and ‘agent’ any more than they did between AFA and RFA and QFE adviser. As DC Whyte points out there well could a flight of advisers into ‘agency world’ to avoid the very real issue of the adviser’s personal (and legal) liability. Why not reduce your business risk by transferring liability to the financial advice firm? I know many lawyers would advise this.
No doubt the 6,500-someRFAs will have to get qualified over time, or prove via the tried-and-true NZQA process of Recognition of Priority Learning - their competency in the ‘prescribed courses which will be deemed to comply’ (page 71). This process is yet to be determined by the Code Committee – but surely the Code Committee won’t overlook the current vocational pathway for AFAs - the newly developed NZ Certificate Level 5 in Financial Services with its 8 industry strands (including Banking). This fit-for-purpose qualification was the extensive work of the TRoQ process of Skills Org and NZQA.
However, very worryingly, MBIE have specifically allowed a loop-hole for the training of ‘agents’ through ‘FMA-approved internal training programmes’ (page 71)! QFE’s are not NZQA-accredited training providers nor will they ever be. This internal training is undoubtedly at ‘potentially less cost’ as MBIE phrase it on page 71 – but who will moderate and quality assure this? This is a large rod for the Code Committee and FMA’s backs as they take on a role they have no educational competence in nor resources for. It by-passes a perfectly quality-assured system!
The only sure result of this regime is that the 24,000-odd ‘agents’ will gain an internal training certificate not worth the paper it’s written on. In educational-speak: there is no ‘portable qualification’ – and denies them a major personal asset on their CV! In my time on the Industry Training Board I’ve seen many other sectors show their lack of vision and commitment to qualify their people – but it does surprise me that these loopholes are contemplated in the high risk area (to consumers) of financial services.
This MBIE loophole runs counter to the NZ Tertiary Education Strategy and the Industry Training Act. I wonder if Skills Org (the ITO for financial services) will provide MBIE an analysis of the long-term impact of this lack of formally-recognised qualification for the 24,000 QFE employees? QFEs, let’s face it, have deep pockets and are the one group who can afford to qualify their staff appropriately! Ironic it is they who have been offered this loop-hole. MBIE may be unwittingly setting up a two-tier system of qualification system in financial services; NZQA for the advisers and the more nebulous ‘internal training programme’ for all others. It’s not a legacy the Minister Goldsmith may have been warned about and the MBIE rhetoric of the ‘even playing field’ (on page 62) is severely breached with this concession.

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