FSCP hands down strongest decision to date

The FSCP announced last week that it had made its first registration prohibition order, cancelling the registration of financial adviser Timothy Anderson from 7 December 2023 until after 17 May 2025.

The decision means that Mr Anderson’s registration as a financial adviser is cancelled and he is prohibited from being registered with ASIC. He is also prohibited from giving personal advice to retail clients on relevant financial products during the prohibition period, with the FSCP sitting panel citing that he is “currently an insolvent under administration and is expected to be discharged from that bankruptcy on 17 May 2025”.

“The Sitting Panel decided to make the registration prohibition order because it is satisfied that there is a real risk of harm being caused to the public’s confidence in the financial services industry, and to ASIC’s reputation, if an undischarged bankrupt is permitted to continue to give personal advice to retail clients about relevant financial products,” the FSCP said.

“The Sitting Panel is also satisfied that Mr Anderson has demonstrated a lack of professional judgement and insight in relation to his bankruptcy which warrants the making of a registration prohibition order until after 17 May 2025.”

Commenting on the FSCP decision, Michael Miller, a director at Capital Advisory, said that the allusions to Mr Anderson’s conduct in relation to his administration suggested that “being in administration by itself may not have led to the sanction chosen”.

“I thought that the mechanics of cancelling registration and then prohibiting registration for a certain period were interesting, simply because it walks and quacks a lot like a ban,” Mr Miller said.

“It is technically though, not a ban.”

The FSCP does not have the power to issue a banning order, with that measure reserved for ASIC itself.

“It is a little more extensive than the sanction that is available to the FSCP, because it can be enacted by a wider range of circumstances,” Mr Miller added.

This latest decision from the FSCP is also notable as the first in which the adviser subject to a decision has been named, with all prior decisions referring to the subject of sanction in anonymised terms. The first decision, for instance, referred only to “Mr S”.

Speaking at an FAAA roadshow event in Sydney in May, Leah Sciacca, a senior executive leader for financial advisers at ASIC, confirmed that neither the register nor the press release would typically disclose the name of the financial adviser involved in a particular matter unless the outcome is required to be displayed on the Financial Advisers Register (FAR).

Ms Sciacca also explained that a summary of the decisions made by the FSCP, which was established under the Better Advice Bill as the single disciplinary body for financial advisers, will be published on the FSCP Outcomes Register, and occasionally accompanied by a media release.

The FSCP kicked off at the start of last year, with its 31 part-time members being appointed in February.

In August last year, ASIC released regulatory guide 263, which provides an overview of the purposes of the FSCP, as well as processes and procedures around hearings and decisions.

Meanwhile, information sheet 273 explains the rights of advisers affected by an FSCP decision, including how to make an application to vary or revoke a decision and how to seek an independent review of an FSCP decision.