ASIC grilled on process for banning announcements

“The responsibility for ensuring the accuracy of details of individuals named in media releases, such as the person’s profession, lies with the case officer and senior manager who are most familiar with the matter,” ASIC said in response to Mr Falinski’s questions.

“The case officer prepares a first draft of the media release, in accordance with ASIC’s internal guidelines, and is responsible for ensuring that the proposed media release is accurate.”

The regulator said “where necessary” other business units including its legal office were involved in drafting announcements around enforcement action, and that for “significant media releases, approval by a commission member is also required”.

The questioning came following an announcement issued by the regulator in November around a “former adviser” from Victoria, Mark Kawecki, who was convicted of dishonest conduct and fined $30,000.

Mr Falinski questioned ASIC at a December committee hearing around why they had chosen to refer to Mr Kawecki as an adviser when he “doesn’t appear anywhere on ASIC’s AFSL register, he doesn’t appear to have ever been registered as a financial adviser or planner, and he certainly doesn’t appear on any register going back to 2015–16 when the contraventions took place”.

It later emerged that Mr Kawecki had worked for a corporate advisory firm and used the word “adviser” in his job title, while acting as an authorised representative of Fiscus Capital, which was itself a corporate authorised representative of AFSL holder Nexia Corporate Melbourne.

In subsequent questions on notice, Mr Falinski said given ASIC’s role was to “promote confident and informed participation by investors and consumers in the financial system”, sending out misleading materials about the advice profession could be seen to undermine that role.

“Given that the person concerned did not provide financial advice as commonly understood by investors and consumers, how does ASIC’s reference to this person being a former financial adviser, which was replicated in extensive media coverage, advance the statutory role given to ASIC?” Mr Falinski asked.

“ASIC advances its statutory role by, among other things, taking action against misconduct to maintain trust and integrity in the financial system,” the regulator said in response.

“For the financial advice sector, this is about ensuring consumers have trust and confidence in seeking financial advice and that those providing services to consumers are held to account for any misconduct they engage in. 

“For ASIC, as well as focusing on poor advice, it also takes action for other misconduct by persons operating in the financial advice sector to ensure the integrity of the sector.”

The regulator insisted that in the case of Mr Kawecki, “the description ‘former financial adviser’ reflects the person’s role at the time of the offending”.