“The problem obviously isn’t financial advice itself, or super platforms, or marketing,” Longo said.

“There is a significant pot of money in our super system that bad actors are trying to exploit on an industrial scale. We’ve all seen the numbers on Shield and First Guardian playing out. More than $1 billion invested by over 11,000 people. Our priority has been to preserve assets so that they can be realised for investors, but even with this action, it is unlikely every investor will be made whole.”

Echoing the regulator’s recent messaging on these firm failures, he stressed that while bad financial advice is “obviously a key part of this problem”, it’s far from the only one.

“There are a whole range of other entities that are involved in this process that we’re looking at – for example, the lead generators, the research houses, the superannuation trustees, and the managed investment schemes,” Longo said.

“Because of the number of entities involved, it can be difficult even for experienced investors to spot the problems here and what’s really going on.”

He added: “When we look at these examples, we see that the various players across different sectors each represent just one aspect of the problem – a problem in my view that needs a holistic response from industry, regulators, and from government.”

Also speaking at the event via a pre-recorded video, Financial Services Minister Daniel Mulino signalled that there could be a rethink in how the cost of these failures is covered through the Compensation Scheme of Last Resort (CSLR).

While the financial advice subsector is only meant to cover the cost of bad advice through the CSLR, the practical reality is that when there has been advice misconduct related to a large fund that has gone belly up, the entirety of the client losses is apportioned to the advice.

Regardless of whether the primary area of fault lies with the responsible entity, if an advice failure is attached, the whole CSLR bill gets sent to the advice subsector.

Arguments for this to change have been made since the CSLR’s structure was put in place, but the Treasury review – the release of which appears to be in a constant state of “imminent” – may allow for this to change.

While Minister Mulino made it clear he didn’t want to “pre-judge” the outcome of the review, he acknowledged that he needs to think about the scheme and the ecosystem that might lead to losses.

“I think that we do need to think about this in that way. We do need to think about all the different components of what can lead to investor losses and think about this in a holistic way,” the minister said.

“I think that when my predecessor thought about scams in that way, it was actually very important and led to better outcomes. So, I want to work with the FSC I want to work with other actors in this industry so that I can get a small understanding of what all of the levers are that need to be thought about.

“Because I expect going forward that if we’re going to deal with this in a way that is sensible and pragmatic, but also that limits losses, that limits how much is going into the CSLR, that we’re going to have to think about a range of actions.”

ASIC stepping up enforcement, wants more MIS power

The multiple high-profile fund failures have led to the regulator not just needing to increase its investigations. Longo said the number of new financial advice-related investigations commenced since last year has doubled – but exposed a blind spot.

According to the chair, instances like Shield and First Guardian require a “whole-of-ecosystem response”, however, he also wants to improve what ASIC can look into.

“Part of the reason this problem needs a collective response is that our data collection powers for managed funds are limited, which means our oversight is too,” Longo said.

He also called the managed investment scheme regime “very permissive”, adding that the “bar is so low to register one, it basically serves no barrier to entry at all”.

“It doesn’t matter if the underlying asset is alpacas or meme coins – if the fund has a valid trust deed and disclosure document, ASIC has to register it,” Longo added.

“And then, so much of our work becomes about picking up the pieces afterwards when things go wrong, rather than preventing the harm, and who pays for that? All the people in this room.”

The MIS regime has long been slated for overhaul, with the most recent attempt languishing despite receiving more than 70 submissions.

Launched in March 2023, the Treasury website for the review of the regulatory framework for MISs still has the findings due in “early 2024”.

Instead, a spin-off inquiry into wholesale investor thresholds put the review on hold, so a parliamentary committee could recommend no changes in February this year.

Longo said ASIC is “continuing to advocate” for reform to the MIS framework, however, as it looks to work with the system as it currently operates, he called for more action from the “gatekeepers”.

“There’s a reason why we are focusing on the role of licensees in our enforcement work – you are the first line of defence. You must have strong quality controls for your approved product lists.”

“We also expect super trustees to review their processes to ensure new members aren’t being exploited by super-switching business models. You should have processes in place that allow you to identify practices that may result in the erosion of super balances, including from inappropriate advice fee charges.

“You can’t pass the buck by saying, ‘Well, there’s an adviser in the picture, so therefore trustees we have a diminished role.’

“Similarly, if you are a licensee who has engaged the service of a sales referral source, you should have in place adequate monitoring and supervision arrangements to detect concerning conduct and to make sure your advisers are acting in the best interests of their clients.”

In his comments earlier in the day, Minister Mulino said the government needs to “let investigations into those events play out”, but the misconduct appearing to take place across a range of areas means it requires attention.

“I think we need to, in the fullness of time, look at all of those different components and see whether or not regulatory settings are appropriate and sensible.”