Beware ‘hawking’ risks, accountants told
One solicitor has warned accountants against accidentally falling into the trap of 'hawking' when the accountants' exemption expires mid-next year.
Dermot Lindsay, national manager of alliance partners at Perpetual, said accountants must be aware of the upcoming regulatory changes that they will face.
"We understand that the removal of the accountants' exemption is probably the biggest change to the accounting industry for decades, and they're moving into a new environment. They're going to struggle to get the nuances and fully understand what the law says, what they're entitled to and what their obligations are," he said.
Jaime Lumsden Kelly, solicitor at The Fold Legal, said that in particular, practitioners must be careful they do not fall into the trap of hawking, a concept involving attempting to sell unsolicited products in the course of a meeting or phone call.
“If someone calls you up for life insurance advice, you’re absolutely permitted to talk to them about life insurance, but you can’t just start talking about this great managed investments scheme or platform that they might be interested in,” she said.
Mr Lindsay added that "the challenge for accountants is to understand where those lines are, and to understand very clearly what they're licensed to provide and what they're licensed to be able to discuss".
Ms Lumsden Kelly said accountants risk violating prohibitions in the Corporations Act by overstepping their advisory boundaries and spruiking products and services related to self-managed super funds which they are not licensed for.
"It's strictly a Corporations Act requirement," she said. "This requirement has never applied to them [accountants) in the past so it's essentially a new requirement that's going to apply to them once they obtain a limited licence, or even if they choose to become an authorised representative of another licensee."
However, the lines are blurred when determining whether advice is solicited or unsolicited, noted Ms Lumsden Kelly.
“I think that’s where the accountants are more likely to fall afoul of hawking – it’s less clear," she said. "Has the client made a positive request? What was it that actually triggered that request, and was it reasonable in the context of the conversation that was being had?”
The “alarming” lack of accountants obtaining licences has resulted in a failure to address any post-licensing compliance obligations, according to Ms Lumsden Kelly.
“It is something that should be in a set of standard policies and procedures that an accountant implements into their practice, but the degree to which that is done effectively in the mad scramble to get a licence is questionable,” she added.
An ASIC crackdown could result in problems for accountants who fail to properly educate themselves about their new obligations, she said.
“If there’s a high level of ignorance about the obligation, which we are obviously at risk of because of the time pressures, there is scope for it to be breached a lot,” she concluded.