With the Association of Financial Advisers (AFA) calling for planners to lobby their local MP, the Opposition withholding their support, and even some planners calling for legal challenges to the Future of Financial Advice reforms, it isn’t surprising that there is a certain segment of industry players that expect the FOFA reforms to never see the light of day.
However, as “FPA chief executive Mark Rantall said those within the industry relying on the coalition assuming power or blocking FOFA were operating a high-risk strategy”, it is one thing for FOFA to have its difficulties, another for it to be killed off entirely.
Firstly, let’s look at the claim that should the Coalition return to power, it will abolish the FOFA reforms. The fact is, and always has been, that once legislation has been put in place, it is very difficult to backtrack, and often takes years, if not decades, to be changed once again. Take for example Kim Beazley’s 2001 election promise to rollback GST. Ten years later, and we have already accepted GST as part and parcel of everyday life. To roll it back now would require political will and rationale that few Governments (regardless of persuasion) have ever had.
The second thrust of the anti-FOFA brigade is the expectation that the Coalition or one of the independents can be swayed sufficiently enough to block the FOFA legislation. While the Coalition has clearly put its position forward, by itself, it cannot block the passing of the legislation. And in the Senate, with the Greens holding the balance of power, the Senate is not expected to be hostile to FOFA.
As for the independents, all the reports to date would indicate that while the lobbying by financial planners, the AFA, and FPA have caught their ears, it would appear to be the case that the biggest source of contention is still the Opt-In provision.
Ironically, as we have stated before, within the whole FOFA legislation, Opt-In really only represents a small fraction of the entire impact when we compare it to the banning of commissions, volume payments and the such. And given political expediency, it wouldn’t be much of a stretch to expect that provision to be dropped in order to remove the independents concerns and get the FOFA legislation passed.
This all brings us back to still the outstanding issue which seems to be driving the biggest consternation of all – Opt-In. In my opinion, I still find it strange that the main objection seems to still be on Opt-In, when even the banning of commissions on risk within super represents, in some cases, a bigger impact than Opt-In.
And playing into the Government’s hands in favour of Opt-In are three main factors which are important for us to consider:
Firstly, it is already clear from the April FOFA update that the operational requirements of Opt-In aren’t actually that difficult to fulfil (for more information, view our discussion piece on Opt-In)
Secondly, Fee-For-Service, which forms the core of the FOFA reforms, will naturally result in the need for explicit client agreements where a regular renewal is required anyways. For example, if you have an advice package for $2,750 per annum, you would naturally need to renew every year anyways, since the fee is only for one year, and next year you might also need to increase it to say $2,900 to cover for inflation, rising costs, etc.
Third, with advisers calling for platform providers to support them with Opt-In, this removes one of the primary arguments underpinning the pushback against Opt-In – that it is costly to administer.
This leaves only the last argument in place, that the Government has no right to enforce conditions such as Opt-In on the client / planner relationship, and while from a commercial sense I can understand the sentiment, we need to remember that this would not be the first example of where a government has stepped in to create “exceptions to the rule” where it feels there is a need to do so.
Unfortunately, some of the complaints of whether it is constitutionally valid seem to forget that in our system of government we have Legislative, Executive, and Judicial branches of government for that reason – one to create new legislation, one to enact it, and one to administer the law – keeping in mind that “The Australian courts cannot give advisory opinions on the constitutionality of laws.”
While FOFA’s final state may not look the same as we have seen to date, it would definitely be naive to think that FOFA is dead in the water. Given the many industry players that have already been involved to date, it’s very unlikely to go away anytime soon.
Until next time,
Lap-Tin




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