ASIC issued ‘please explain’ over unlicensed advice

Mr Wilson noted that ASIC had been quick to clamp down on real estate agents advising tenants to withdraw their super to pay rent during the COVID-19 crisis – something that ASIC eventually “backpedalled” on – but accused them of turning a blind eye to the case of union officials giving advice on signing up to superannuation funds they were affiliated with and questioned whether they were required to hold an AFSL to do so.

“We would need to look at each case to see what was actually said and in what context it was said to determine whether or not it was financial advice and therefore whether or not a licence was required,” said ASIC commissioner Danielle Press.

Mr Wilson questioned whether an official suggesting to a member to sign up to Cbus for “low fees” or “superior returns” counted as financial advice and whether there was a breach if the organisation they were representing received money from Cbus.

“It would depend in that case on whether or not the individual was seen as somebody who was trusted in this space,” Ms Press said.

“It would depend on whether or not it was a default fund. There would be so many different categories.”

Mr Wilson also raised royal commission findings in the case of TWU Super, which paid officials $150,000 a year to encourage employees to sign up to their super fund and questioned whether that would be considered the basis of advice and if ASIC had reviewed the findings.

But Ms Press said that she would have to take the question on notice, noting the case had not been referred to ASIC.

The matter of real estate agents providing unlicensed advice provoked significant action from ASIC. The regulator sent a letter to the Real Estate Institute warning agents could be in breach of the Corporations Act and eventually looked into 124 complaints, issuing 13 warnings.