AFR journalist, Matthew Drummond, reported on 14th September 2011 that:
Australia’s indirect brokers will benefit from the same carve-out from the Future of Financial Advice reforms as licensed stockbrokers, despite being subjected to a much lower level of oversight.”
The article (protected by pay wall) when on to say that:
While Mr Shorten is yet to respond, his spokesman told The Financial Review the carve-out from the FOFA ban on commissions would apply to stockbrokers licensed by the Australian Securities Exchange as market participants and to indirect brokers.
“The government is well aware that, in addition to direct ASX market participants, there are ‘indirect’ market participants that also undertake broking services, and will ensure that the provisions apply equivalently to all those providing brokering services,” Mr. Shorten’s spokesman said.
So what made the Minister backflip on his promise that us non-ASX participants would be equally treated?
Maybe it was from the hard lobbying from SAA, led by its Managing Director and CEO, Mr. David Horsfield. Below is the relevant excerpt from the 6th March 2012 letter sent to Mr. Jim Murphy, Executive Director, Markets Group – The Treasury:
Carve-Outs should only apply to Stockbrokers
It is important to note that in all the published references, the carve-outs are expressed to apply to ‘Stockbrokers’. ‘Stockbroker’ is a restricted term under the Corporations Act. Under section 923B, it is an offence to use unless authorised the expression -
‘…stockbroker or sharebroker, or any other word or expression (whether or not in English) that is of like import to that expression’.
A person must be authorised by its licence or another licensee by ASIC to use the term ‘Stockbroker’. Moreover, ASIC must only authorise Market Participants to use the term.
There are important consequences in dealing with a Stockbroker in term of investor protection. As Stockbrokers, our members are subject to higher levels of regulation under the Market Integrity Rules (MIR) than other licensees who may advise and deal in securities. The Market Integrity Rules contain most of the rules on trading on a licensed market that used to be contained in the ASX Market Rules, including rules on management and supervision (including Responsible Executive Requirements), liquid capital, accreditation, client relationships, record keeping and trading. These are far in excess of the requirements for other licensees under the Act. Moreover, contraventions of the Market Integrity Rules can carry a maximum fine of up to $1m. In our earlier submission of 5 August 2011, we provided details of the added protections to clients under the MIR, including management and supervision requirements, and specific rules against ‘churning’ of clients’ accounts.
Stockbrokers, being Market Participants, should be considered differently to other sectors (like the so called ‘shadow brokers’) who – while they may be licensed or authorised to advise and/or deal in securities - are not Market Participants, and are not subject to the Market Integrity Rules. These shadow brokers are just clients of Market Participants, upon whom they rely to trade.
However, it is a concern that shadow brokers often market themselves as offering the same services as stockbrokers. Therefore, it would be appropriate for the Stockbrokers Carve-Outs to only apply to Stockbrokers, otherwise the problem of misrepresentation of shadow-brokers as stockbrokers may be exacerbated.
Accordingly, we await the detail of the Stockbrokers Carve-Outs with interest.
Finally, as with all the FOFA reforms, it is important that the ban on conflicted remuneration only apply to situations where personal advice is given to retail clients.
Contrary to what Mr. Horsfield states in his letter, firms like ANDIKA are subject to high levels of regulation and scrutiny. For starters AFS License holders like ANDIKA have the SAME AFS License authorisations imposed as an ASX Participant who also advises and deals in securities. ANDIKA is also audited each year as is an ASX Participant is by an independent financial auditing firm. ANDIKA must also conduct an external compliance audit each year to ensure compliance with the relevant sections of the Corporations Act.
As a director (and adviser) of ANDIKA, I must complete at least 20 hours of continued professional education, just as an adviser employed by an ASX Participant would also. ANDIKA also holds each year a valid Professional Indemnity insurance policy and we are members of Financial Ombudsman Service (FOS) – the same Ombudsman Service that all ASX participants are a member of.
The only difference between us and them is we have an intermediary agreement with an ASX participant which allows firms like ANDIKA to facilitate trades of securities and derivatives on behalf of the clients we represent. By default, the Market Integrity Rules (MIR) that Mr. Horsfield mentions in his letter, are applied onto us via our intermediary agreement with the ASX participant.
I also take exception to be labeled as a “Shadow Broker”. ANDIKA is a licensed “Securities and Derivatives Dealer”. It’s just like how the climate change alarmists resort to calling Global Warming sceptics as “deniers”.
“These shadow brokers are just clients of Market Participants, upon whom they rely to trade,” said Mr. Horsfield.
Again Mr.Horsfield is wrong. Firms like ANDIKA rely on their clients and it is the ASX participant that relies on us, as it is firms like ANDIKA that brings our client business to them. What Mr. Horsfield fails to see, is his position will actually hurt the discount ASX participant that his organisation is supposed to represent. Or maybe the SAA is happy to see that end of the ASX participant market get crushed also, leaving the whole pie for the “full service brokers” who occupy Collins Street and Martin Place. Is he reminiscing about the good old days when clients were once charged 3% plus brokerage rates on their buy and sell trades?
People like Mr. Horsfield would rather see firms like ANDIKA actively discriminated against so they can protect their mate’s profits from our competition. The SAA would rather sabotage firms like ANDIKA than compete fairly against us. In the end, the real loser will be the Retail client, because if the SAA wins the day, then we’ll be out of business and competition will be significantly reduced. The fat profit days of old will be back for the big end of town.
As the current FOFA laws stand, they are akin to the government legislating that come 1 July 2013, retail customers will only be allowed to buy their bread from the likes of Coles or Woolworths (the big end of town) and the little owner operated bakery will be banned from selling their bread.
It is an absolute disgrace that the Government has reneged on its promise to treat both direct and indirect securities firms equally. The Hon Bill Shorten MP, Minister for Finance, needs to stand by his promise reported on the 14th September 2011 and not give into the vested interests of a few elitist multinational ASX participant firms. Should he fail to do so, then the Minister has effectively signed the death warrant himself on 450 perfectly legal independent security advisory firms.
He has also failed to protect the very people these new FOFA laws are supposed to protect.
And who would have thought the Labor Party would get into bed with the big end of town.
Shame on them.
You can download a copy of the AFR article here.
You can download a copy of Mr. David Horsfield’s 6th March 2012 letter to Treasury here.
Disclosure: I am the sole director of ANDIKA Pty Ltd, AFS License #297069