[The Wrap] Conduct wheels spinning

Commerce Minister Kris Faafoi promised no more big announcements this year, but there are still plenty of issues for financial advisers and the broader industry to tackle.

Saturday, February 15th 2020, 7:01AM

by Philip Macalister

He acknowledged, at the Get in Shape Advice Summit, that he had heard "loud and clear" that a lot of change had been forced on the sector.

While financial adviser licensing is a biggie, so too is the conduct legislation which passed through its first reading in Parliament. 

Judging from the way the Government is dealing with this piece of legislation they will try to process it urgently; even getting it passed before the election in September. This will be a big ask; especially as it appears the National Party aren't necessarily on the same page.

This is very different to what is now the Financial Services Legislation Amendment Act, as it was a National bill, Labour picked it up after winning the election and there was unanimous support for it across the parties.

Two of the big, and contentious, questions will be: What is good conduct? And should it be principles based or prescriptive?

Financial Markets Authority chief executive Rob Everett has already come out on this.

"I don’t want it incredibly detailed and prescriptive."

Likewise, ASB chief executive Vittoria Shortt made similar comments to me yesterday. She said philosophically the bank errs away from prescriptive solutions.

She supports good conduct, but also warns "any regulation has unintended consequences".

Everett is clear New Zealand is a long way behind other jurisdictions on conduct issues, and they are urgently needed. (One does wonder why it has taken so long to get to this stage.)

Everett asks the question: What does good conduct look like – rather than us imposing it on you?

It seems no one has really defined good conduct at a practical level, and that may well be because it is too hard to prescribe.

However, Everett has some views:

"Poor conduct and poor treatment of customers is most often about sloppiness – lack of process, lack of training, poor systems, etc. It is relatively rarely, at least in licensed and regulated financial services, about deliberate wrong-doing.

Obviously, where it is or we suspect it is, we’ll go after it and so will other regulators.

But poor processes, product design, complaint-handling, incentive structures – all of these are culpable. 

Reckless or lazy disregard for the needs and interests of customers and investors is not acceptable. It’s why we talk about governance, culture and controls.

It’s why we have recommended to the Government that the new conduct legislation allows us to look for these things and to force providers to improve them – including in cases where we cannot see or prove the harm to investors or customers has already happened."

While that seems harsh there is a bit of tough love going on too.

One observation from the first weeks of this year is that the FMA appears to have slightly changed its tack and actively wants to engage with the sector to develop conduct rules.

Everett acknowledged at the end of last year there was a view that there was "one beat up after another" with regulators getting stuck into the industry.

"I did hear that."

But, Everett has also made it clear there has to be laws "setting out high level expectations" around conduct.


Tags: conduct FMA FSLAA regulation Rob Everett Vittoria Shortt

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