Section 961B(2)(e) sets out one of the requirements that an adviser must be able to prove in relation to personal financial product advice given to retail clients, in order to demonstrate that they have satisfied the “best interests” requirement.

The adviser must be able to prove (on the balance of probabilities):

if, in considering the subject matter of the advice sought, it would be reasonable to consider recommending a financial product:

(i) conducted a reasonable investigation into the financial products that might achieve those of the objectives and meet those of the needs of the client that would reasonably be considered as relevant to advice on that subject matter; and

(ii) assessed the information gathered in the investigation;

In short, if you are recommending a financial product, you must be able to prove that you’ve made reasonable inquiries in relation to financial products (plural) before giving the advice. 

This should be a lot easier for ASIC to prosecute than section 945A, which was much broader and had a higher burden of proof (beyond reasonable doubt versus balance of probabilities).

There’s a lot to be said about this provision. It will be interesting to see whether (and to what extent) ASIC enforces it.

Sonnie Bailey

Sonnie is an Authorised Financial Adviser (AFA) and former lawyer with experience in the financial services and trustee industries. Sonnie operates Fairhaven Wealth (www.fairhavenwealth.co.nz).

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