The Future of Financial Advice (FOFA) laws: an enforcement perspective

This article examines the legal provisions which affect ASICs ability to enforce the Future of Financial Advice (FOFA) laws. After briefly explaining the FOFA laws, the article examines the mechanisms by which ASIC detects breaches of the FOFA provisions, highlighting two areas where the current law is arguably defective, namely the AFS breach reporting provisions and the whistleblower protection laws. The article then outlines the current civil penalty regime which applies to FOFA breaches. Several issues are discussed, including whether criminal penalties should apply and whether the range of persons against whom civil (pecuniary) penalties can be imposed should be broadened. Finally, the article considers ASICs administrative powers, observing that under the current law a banning order merely prevents a person providing financial services. A key issue which arises is whether ASIC should be empowered to ban persons from participating in the management of AFS licensees or to ban persons from participating in the financial services industry in any capacity in specified circumstances.