No more agents but not everyone impressed
New rules governing financial advice have done away with a proposed "agent" category, but many people are unimpressed.
Monday, February 20th 2017, 6:00AM 
26 Comments
by Susan Edmunds
It was one of the biggest changes revealed in the draft Financial Services Legislation Amendment Bill, which was released on Friday.
The bill replaces the Financial Advisers Act, by amending the Financial Markets Conduct Act and the Financial Service Providers Act.
As widely signalled, it requires all advisers to operate under a code of conduct, with uniform disclosure requirements. All advisers, even those dealing with wholesale clients, have a requirement to put their clients first. It introduces entity licensing and wider conduct requirements.
RFAs, AFAs and QFE advisers are no longer, replaced by financial advisers and financial advice representatives, working for financial advice providers.
The Ministry of Business, Innovation and Employment had earlier favoured "agents" rather than "representatives" but said it had changed that position because of the meaning of the word "agent" within the industry.
IFA chief executive Fred Dodds said the move to representative was a step too far. “Representative has certainly been a suggestion but to have it linked to advice makes a very poor line in the sand,” he said. “It certainly provides no solution or clarity on the contentious sales/advice debate.”
His counterpart at the PAA, Rod Severn, agreed.
"While the earlier proposed term ‘agent’ may have had its own set of confusion-challenges, the newly proposed designations - FA and FAR - take that confusion to a new level.
"The line between 'sales' and 'advice' has not been drawn. The new designations FA ‘financial adviser' and FAR ‘financial advice representative' do not communicate to the public the essential difference between sole-provider advisers and those with access to multiple providers. It also does very little to differentiate between someone providing advice for which they take individual responsibility, and those who don’t," he said.
"The exposure draft states that financial advice representatives will not be individually accountable for compliance with conduct and disclosure. In our view, to increase public trust and confidence and to place the interests of the public first, all advisers must be individually accountable for their advice.
"We don’t support a structure in which some 25,000 FARs - ex-QFEs - can provide ‘advice’ on one provider’s product and without individual accountability. If FARs are to provide ‘advice’, they should also be individually accountable for the advice they provide. The public deserves a better outcome than this. Crucially, this kind of structure would impede the development of a professional advice sector in New Zealand; accountability is fundamental to providing client-first advice."
He said it was not clear what incentive there would be for someone to register as an adviser, with compliance cost, obligation and accountability, when they could be a representative with no accountability for compliance, under the protection of a licenced financial service provider.
Bradley Kidd a partner at Chapman Tripp said there was still some complexity around those designations.
“That’s where advisers have to pay attention, for me the individual what am I going to be? It will depend a bit on what their employer does and what they want to do. Some employers may say they don’t want advisers, they want representatives, others might not. We’re still digesting all that and it’s one area that will get a bit of attention.”
The bill merges financial adviser legislation with the Financial Markets Conduct Act, which has also taken some industry commentators by surprise. Many had expected an updated Financial Advisers Act.
But David Ireland, chair of the code committee and partner at Kensington Swan, said it made sense because the licensing mechanisms were already there, and it would keep everything in one place.
He said, had the legislation been written 10 years ago with a clean slate, this would have been the obvious way to structure it.
As it was, it could take some time for some to get their heads around it, he said. The FMCA was already big and complex, he said, and this added another level.
Instead of dealing with one short act, advisers would have to find their place within the much bigger FMCA.
But he said it instantly gave the Financial Markets Authority access to a much wider range of FMCA tools to deal with advisers.
Ireland said it was also notable that the new legislation gave the responsibility for the code committee and code of conduct to the Commerce Minister. The FMA will no longer have a role in approving code members or the code itself, although it still has to fund the committee.
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Comments from our readers
On 20 February 2017 at 9:45 am AFA said:
There are some very strange proposals, such as this one : Advisers with a wholesale client base will have to meet retail obligations for all advice given if just one of the clients falls under the retail definition.
The reason a lot of Wholesale clients accept that classification in the first place is that they want to be spoon-fed as a retail client. Another example of MBIE thinking "we know best what's good for you"
On 20 February 2017 at 11:12 am Murray Weatherston said:
FAP FA and FAR - Some initial personal observations
1. It is clear now that the de facto principal objective of the FAAR morphed into “merge the FAA into the FMCA”; Mission accomplished.
2. Other than that, I am surprised at how little further ahead we are than we were when the review was published last year.
3. As far as what changes will be made to the regulation of financial advice, the ”can has been kicked down the road” for at least a couple of years. It’s status quo for 18 months until the new Code is promulgated when there may be some changes for AFAs, but a whole new set of rules for non-AFAs.
4. Existing AFAs get a stay of execution as far as any new, if any, CKS (competence knowledge skills) obligations are concerned for four years.
5. Existing RFAs will have to wait until the Code is promulgated to find out what their CKS obligations will be.
6. Firms made up AFAs are RFAs don’t seem to have any choice to classify their advisers as FARs. That option seems in the first instance to be restricted to existing QFEs.
7. After reading the documents I wonder whether a FAP might be able to provide advice on the FAP’s own behalf through simple employees who are neither FAs nor FARs
8. It seems to me the BEOT (big end of town) should be delighted, as I reckon the new regime will enable them to distribute their product openly through their FARs under the guise of limited advice.
9. I don’t understand why FAPs who have FARs are not required to publish somewhere their list of FARs, and to publish any disciplinary action they might have taken against any of their FARs. And I don’t see why FARs should not come under the purview of the FADC in the first place.
PS I am concerned about the officials apparent lack of understanding about business structures at the SEOT. The concept of a sole trader acting through a company is beyond my small brain. I thought in normal usage, a sole trader is a single person acting in unincorporated form. I think officials must have confused and amalgamated genuine sole traders with people like me who are a single adviser operating through a company structure. [Under current FSPR rules, if my company has no more than 2 Directors, it does not have to Register.]
On 20 February 2017 at 12:15 pm Brent Sheather said:
This looks like more stumbling around in the dark from MBIE employees who appear to have no idea what they should be doing except keeping the banks happy. How much time and money has been lost because the MBIE is under resourced in terms of knowledge of skill? For me the changes reiterate the wisdom of a “no new client” strategy and to shift to wholesale clients only ASAP so as to minimise the impact of regulatory bungling.
For the record our recommendations to clients have not changed since the advent of the new regulatory regime except that we are less inclined to take new clients and have less time to talk to clients and research investments.
I guess the Code Committee and the FMA have to share the responsibility for the disruption and costs of imposing new "final solutions" every couple of years but it's the public who eventually pay. We are raising our annual fees for new clients by about one third and are going to distinguish that new fee from our current base monitoring fee as “regulatory cost overhead due to bungling bureaucracy (MBIE)” ie full disclosure.
On 20 February 2017 at 1:29 pm Comprehensive Planner said:
This process started in 2004 with the appointment of Michael Webb as chair of the Financial Intermediaries Taskforce which went back to Government with a range of proposed changes that would help in providing consumer centric advice. I felt at the time that they did quite a good job which was fair for the consuming public and no too onerous for the advisers.
Here MBIE are some 13 years later still stumbling around in the dark looking for issues to resolve but without to competence, knowledge and skills within the profession, ultimately creating more than they are resolving.
The current iteration of legislative changes simply shift the deck chairs further into the bowels of the product providers deck. Absorbing the FAA into the FMCA simply ignores the significant difference between product sales and consumer centric advice, remember the strong proposition was to have the “sales” side of product distribution channels absorbed into the FMCA where it rightly belongs and retain the FAA for those providing “Financial Advice” and growing the consumers’ financial literacy levels along the way.
Murrays comments around sole traders are spot on but as usual the MBIE staffers don’t seem to get this either. Licencing is fine but it needs to be fair and efficient to all, not just the old QFE’s and sales aggregation outfits.
Maybe we should be relooking at Michael Webbs teams work and asking for simple ways to get the right job done.
On 20 February 2017 at 3:42 pm dcwhyte said:
Until now, I've been generally supportive of the review process and of the efforts of those involved. Abolishing the silly category 1 and 2 product demarcations, and doing away with the confusing AFA/RFA/QFE acronyms was also welcome - at least at the consultation stages.
However, the content of the ED has demolished any vestige of support I may have had.
Put simply, this is an exceptionally poor document, and should be immediately returned as "addressee unknown".
If consumers were confused by the previous alphabet soup, they will be no better off with FAs/FARs/FAPs.
Furthermore, there appears to be no logical reason why anyone would want to be a Financial Adviser, subject to additional legal sanction compared to that of a Financial Advice Representative.
What does a Financial Adviser do but give financial Advice?
What does a Financial Advice Representative do that is any different?
Please explain.
This stubborn and wholly misguided attempt to maintain the Vertically Integrated Organisation status as providing financial advice when they are actually selling products is wholly inappropriate.
The consumer should be provided with a clear and immediate understanding of the individual's function by the title provided. Financial Adviser achieves this; Financial Adviser Representative does not. Such individuals should be more properly referred to as XYZ Product Representative.
The confusion caused in Australia has resulted in some of these organisations being taken to task by consumers, and we're proposing to replicate that same experience.
A very poor job - a fail, bigly.
On 20 February 2017 at 3:57 pm dcwhyte said:
Until now, I've been generally supportive of the review process and of the efforts of those involved. Abolishing the silly category 1 and 2 product demarcations, and doing away with the confusing AFA/RFA/QFE acronyms was also welcome - at least at the consultation stages.
However, the content of the ED has demolished any vestige of support I may have had.
Put simply, this is an exceptionally poor document, and should be immediately returned as "addressee unknown".
If consumers were confused by the previous alphabet soup, they will be no better off with FAs/FARs/FAPs.
Furthermore, there appears to be no logical reason why anyone would want to be a Financial Adviser, subject to additional legal sanction compared to that of a Financial Advice Representative.
What does a Financial Adviser do but give financial Advice?
What does a Financial Advice Representative do that is any different?
Please explain.
This stubborn and wholly misguided attempt to maintain the Vertically Integrated Organisation status as providing financial advice when they are actually selling products is wholly inappropriate.
The consumer should be provided with a clear and immediate understanding of the individual's function by the title provided. Financial Adviser achieves this; Financial Adviser Representative does not. Such individuals should be more properly referred to as XYZ Product Representative.
The confusion caused in Australia has resulted in some of these organisations being taken to task by consumers, and we're proposing to replicate that same experience.
A very poor job - a fail, bigly.
On 21 February 2017 at 6:01 am henry Filth said:
Spare a thought for us poor mug punters.
Thrown to the Fund Managers in the name of Kiwisaver, we are now to be drowned in the alphabet soup of yet another round of regulation.
Oh the indignity of it all. . .
On 21 February 2017 at 6:29 am Murray Weatherston said:
Putting the interests of the client first
Before you, dear reader say "OMG, not this again" please read to the end and IMO be very afraid.
For the first time, the draft Bill out last Friday finally puts statutory meat on the bones of the concept.
While on one level, I am pleased that the general idea accords pretty much what I have been prattling on about for months, on another level I am actually appalled by the detail.
From page 16 of the proposed bill
431H Duty to put client's interests first
(1) This section applies if a person who gives regulated financial advice A knows or ought reasonably to know that there is a conflict between
(a) the interests of the person to whom the advice is given B; AND
(b) A’s own interests or *** the interests of any other person ***
(2) In giving the advice or in doing anything in relation to the giving of the advice, A must give priority to B’s interests, including by taking all reasonable steps to ensure that A’s own interests or *** the interests of any other person **** do not materially influence the advice.
The asterisks don't appear in the draft but its the only way I can put emphasis on the words included.
Read the text omitting the words between the asterisks and the duty seems pretty simple and straightforward.
However in my mind, the addition of any conflicts between B "and any other person" is absurd, and makes it impossible for me to discharge that duty. How on earth can I know of the conflicts in my advice between my client and "any other person". That seems so wide that I wonder whether it would be prudent from my own risk management perspective to continue to practice.
I really wonder what sort of quality control is applied in such drafting, and whether any of the raft of lawyers involved in MBIE and the drafting office [and should I add FMA?} ever look at the implications of what they write for those who are statutorily obliged to comply?
I wonder if any of the lawyer commentators on our industry or the compliance assistance consultants might be able to be prodded into making a public comment here on my view.
On 21 February 2017 at 7:13 am afas-in-an-uncertain-world said:
To say that the entire drama of the Financial Markets regulation of advisers is now a complete embarrassment is to massively understate the wholesale disappointment any adviser or investor should feel in terms of correcting the disappointments of the past.
Advisers are drowning in ridiculous change and the poor old investor yet again will sit their with their eyes glazing over as the adviser tries to tell them with a straight face that the new names and descriptions will assist them.
The MBIE and the FMA have let down the NZ consumer, the NZ adviser database and frankly the policy makers behind this should go to another country somewhere in the third world and do their practising their. This should be a national disgrace. ANybody with an ounce of sense will determine the difference between a salesperson and an adviser with fiduciary duty - if you label them like that.
Cmon FMA get the bloody banks of your tail and do the right thing. Call salespeople salespeople and have done. This is seriously disgusting and you wonder why the public faith in the financial markets isn't rapidly improving?
On 21 February 2017 at 7:56 am afas-in-an-uncertain-world said:
And yes I know there are many good people in both FMA and MBIE but really, this is a terrible pathway - a giant step back in credibility - the banks have to get over themselves. A salesperson selling a consumer a product is not an adviser - who goes through a consultative process and has the ability to look at a market wide suite of products. It is truly not that difficult.
Please - let's get this right once and for all so the industry can move and be the professional industry that was aspired to.
On 21 February 2017 at 8:17 am Bikedude said:
This is fantastic. Two years of consultation and pontification and they have managed to change the name of QFEs and make it a bit harder for real advisers. Well done MBIE On 21 February 2017 at 12:34 pm Simon Hassan said:
I strongly agree with comments above. Most consumers will be unable to distinguish between FAs and FARs.
The comparable UK terms:
'Independent' (able to consider and recommend all types of investment products), and
'Restricted' (able to recommend only certain products, product providers, or both),
are infinitely better titles.
On 21 February 2017 at 3:13 pm AFA said:
Correction to my earlier post: There are some very strange proposals, such as this one : Advisers with a wholesale client base will have to meet retail obligations for all advice given if just one of the clients falls under the retail definition.
The reason a lot of Wholesale clients accept that classification in the first place is that they *don't* want (or need) to be spoon-fed as a retail client. Another example of MBIE thinking "we know best what's good for you, even if you're highly successfull millionaires and all we've ever done is open a government sponsored KiwiSaver account"
On 21 February 2017 at 3:21 pm Bruce Cortesi said:
I agree with my fellow colleagues across all points made. A Financial advice representative???
This will only confuse the Consumer even more. I cannot believe we cannot simply have Financial Advisers.
How about a FPS - Financial Product Salesperson - this makes it very clear to the Consumer who does what. We have been mucking around with these acronyms for almost seven years now and they have only got worse.
I am happy about Robo Solutions (personally I fail to see how it can be called advice) being picked up. Why is it that Advisers can see how easy this should be and yet we cannot seem to get the point across? Or is it that another sector has a stronger viewpoint? We still seem to be making it complicated for the Consumer.
You are either a Financial Adviser, or you are not - SIMPLE. What makes me shudder is the draft makes reference to “financial advice representatives will not be individually accountable for compliance with conduct and disclosure”.
I shall test this statement with some consumers to gauge reaction - but what would you say if you were a consumer? Let's hope we can all make some considered submissions to try and influence a better outcome.
On 21 February 2017 at 4:42 pm Pragmatic said:
Without the consumer, there is no financial services industry. No dispensers of advice, no platforms, no funds managers, and limited need for the current regulatory structure.
As observed in other jurisdictions, the lack of consumer confidence (or perhaps heightened consumer confusion) in the financial services industry will encourage consumers to source other gateways to achieve their financial objectives. With the growing sophistication in technology, consumers already have fingertip access to a never-ending array of financial schemes… most of which are beyond the reach of the FMA.
As with the ridiculous volume of Kiwisaver monies in conservative options (a topic for another day), the consequences of consumer confusion, diminished confidence and poor regulatory oversight will have far-reaching social outcomes.
Put bluntly: if you wish to have the word “advisor” (or some derivation of this) in your job description, then you must uphold the fiduciary responsibilities that are attached to the title. There must be no need for the consumer to understand what an acronym stands for, with the “advice” title easily explained in an elevator pitch. For those that are unable / unwilling to meet the “advice” criteria – it’s easy: their title is “sales”.
Come on FMA & MBIE: Start designing the vision for the next few decades, rather than the knee jerk opportunistic remedies that have severe long term repercussions.
On 21 February 2017 at 4:57 pm Barry Read said:
Hi Murray
I think what it is stating is that your advice must not be materially influenced by your own interests or the interests of any other Person (includes Entity). It does read badly in legislation in it appears to imply any other person the client may have a conflict of interest with, when in practice it means that your advice is not being given to benefit other parties or yourself at the expense of the client.
Barry
On 22 February 2017 at 7:30 am Murray Weatherston said:
Hi Barry
Your comment is pure Humpty Dumpty (Alice in Wonderland).
Are you aware that in the Supreme Court’s first 10 years, at least 60 per cent of all appeals involved the interpretation of a statutory
provision?
Lest anyone misinterpret my motive, I am not against the standard itself. Rather I am anxious to ensure that the law is written in a form that is clear effective and efficient i.e. where the words say what they mean and mean what they say.
My submission is simply that as written the provision is absurdly broad. Fix it.
On 22 February 2017 at 8:13 am Charity said:
I find it ironic that every person commenting (presumably mostly advisers) wants regulations that provide a better situation for the client; i.e. truly putting the client's interests first. Yet, MBIE and FMA deal in untruths and obfuscation so that the client won't know whether they are dealing with someone giving them advice or selling them a product. I thought the object of all of this was to protect clients' interests. The problem is that lawyers aren't financial advisers and the people drafting this rubbish are largely lawyers. MBIE and FMA, why do you have such a problem with doing the right thing for the client? Why are you working overtime to hurt clients' interests? Someone from MBIE and FMA please respond. On 22 February 2017 at 10:27 am dcwhyte said:
In light of the confusion created by the Exposure Draft, the recent post on Sales v Advice on GR seems to be more relevant than ever. Seldom has there been such vociferous condemnation of a financial services legislative/regulatory document. This is the one chance to fix the mistakes contained in the original Act and the officials responsible seem to have passed on the opportunity. This lack of clarity will do severe damage to the industry, to the Regulator, and ultimately, to the consumer than any scam, high-fees product, or bad advice incident. With the total number of GR readers, there are a small amount of regular commentators and contributors. However in addition to the usual suspects, the universal rejection of some fundamental aspects of the ED does not auger well for the future of the industry stakeholder relationships. On 22 February 2017 at 11:26 am Barry Read said:
Hi Murray
Agreed! They have expanded the meaning further than the current code.
Code Standard 1 doesn't mention any other person.
Code Standard 5 states that only conflicts with the AFA or a related person must be identified and communicated. Nothing about conflicts of any other person.
Cheers
Barry
On 22 February 2017 at 11:47 am BGW said:
In response to Murray's well framed question, the reason for the muddled (and it is muddled) statutory wording is because the drafters are seeking to describe a completely artificial and newly created principle called "Client interest first". That principle was "invented" by the NZ Code Committee a few years ago, and has no basis in law, or any precedent or other common usage by which to describe or define it. What we are seeing is just the first start of what I anticipate will be a muddled, imprecise series of definitions and interpretations as the legislators seek to define the principle. Each definition will give rise to new ambiguities, which will give rise to new definitions. Contrast that with the already settled position under common law and equity with fiduciary obligations. While still not easy, fiduciary standards have the benefit of +300yrs of judicial consideration and commentary, with some well developed principles holding it all together. Perhaps in 300 yrs the principle of "putting client interest first" may be better understood! A real issue however is that the legislators seem to be doing everything they can to avoid imposing fiduciary obligations on advisors, even though that is so obviously the most appropriate standard. The irony being, the courts are still free to, and will, impose fiduciary obligations on an advisor where the circumstances require it (acting in trust and reliance etc). There is nothing in the legislation that states fiduciary obligations do not apply - so the courts will impose it where they see fit. While its true that there hasn't been much case law in NZ on it - it would, in my view, be very unwise for an advisor to assume that they don't have fiduciary obligations -particularly as they do in every other country in the world (I'm exaggerating for effect). PS. Murray, while I agree with your fundamental conclusions, I think you were slightly overstating some of your observations on fiduciary duties the other day. You can't completely rule them out as applying in NZ. They are an inherent part of NZ equity law, and will be imposed where the test is satisfied. Its just that we haven't had it properly or fully argued before the court ....yet. On 22 February 2017 at 11:55 am Brent Sheather said:
It’s heartening that just about everyone is on the same page here in terms of criticising the latest proposed giant step backwards from the MBIE. However I have to take exception to Barry Read’s comment. He says “your advice must not be materially influenced by your own interests”. Reality is that this doesn’t happen. For example, many advisors active in the Kiwisaver space recommend Kiwisaver funds that pay commission and have much higher annual fees than the average. This advice is obviously materially influenced by their own interests. Similarly the individual wearing an ASB polo sheet invariably recommends the ASB Kiwisaver fund. Again this is putting the interest of their employer ahead of the client.
What a great comment from Charity. The answer to your question, “why does the FMA and MBIE have such a problem with doing the right thing for the client?”, is that they have been told by government that “the client” is the banks. We should not let this issue lie and need to be lobbying Labour, the Greens and Gareth Morgan.
On 22 February 2017 at 1:14 pm w k said:
mbie & fma to consider advisers' submission? ZERO chance. it's all been decided long before "consultation" stage.
there's always a reason why these "expert" lawyers do not write a crystal clear regulation.
On 22 February 2017 at 3:29 pm doomben said:
We should have a contest to see if we can come up with even less meaningful terms than FA and FAR.
My suggestion, real advisers would be called "advisers" and salespeople "advisors" - and then lets see how many clients can spot the difference in spelling.
On 23 February 2017 at 1:12 pm Graeme Tee said:
There is an alarming consensus of opinion on this issue. This must be a first for Good Returns. It’s alarming for two reasons; firstly, the industry is not used to such alignment of views and secondly, no one is castigating Brent Sheather!
No word from the bank protagonists on this story either. Hmmm. More effective to stay quiet and do the lobbying privately.
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I don't think David Ireland's last attributed paragraph tells the whole story.
In the ED of the Bill
1. The Code Committee has a statutory obligation to consult with FMA in drawing up the Code.
2.The Minister has a statutory obligation to consult with the FMA when deciding to approve or to request review of the draft Code.
3. The Minister and the FMA are the only people other than Committee itself who have a statutory right to propose changes to the Code.
There is no suggestion that the new Code Committee will have an independent secretariat.
And if anyone believes that FMA will not be at least consulted by the Minister before appointing the Committee members, then I guess they must still believe in the reality of Santa Claus and the tooth fairy.....
IMO FMA's influence will remain front and centre in the Code.