This is the Code of Professional Conduct for Authorised Financial Advisers for the purposes of the Financial Advisers Act 2008.

This section of the Code provides a brief overview of the scope and aims of the Code. The remainder of the Code contains the operative provisions which must be complied with by all Authorised Financial Advisers.

Financial advisers are required to be authorised under the Financial Advisers Act in order to provide a personalised service to a retail client that is:

• (a) financial advice or a discretionary investment management service in relation to a category 1 product; or

• (b) an investment planning service.

Financial advisers may also elect to become authorised under the Act in other situations specified in regulations made under the Act. As at the date of this Code no such regulations have been made.

The overarching purpose of the Financial Advisers Act is “to promote the sound and efficient delivery of financial adviser and broking services, and to encourage public confidence in the professionalism and integrity of financial advisers and brokers”.

One of the key ways the Act seeks to achieve its purposes in relation to financial adviser services is by requiring all Authorised Financial Advisers (also referred to as AFAs) to comply with a code which provides for minimum standards of professional conduct. The overarching purpose of the Act provides the spirit underpinning the Code. When considering their conduct and disclosure obligations under the Act and the Code, AFAs should have that spirit in mind.

The Act requires the Code to contain minimum standards of competence, knowledge, and skills, of ethical behaviour, and of client care. The Code is also required to provide for continuing professional training for Authorised Financial Advisers, including specifying requirements that an AFA must meet for the purpose of continuing professional training. AFAs may be disciplined for breaches of the Code.

A number of the Code Standards include reference to legal obligations that would apply to AFAs irrespective of the Code requirements. Such references are included largely for the sake of completeness. However, the Code does not refer to all legal obligations of AFAs. AFAs must comply with all applicable laws, whether or not referred to in the Code.

This Code has been approved by the Minister under the Financial Advisers Act and comes into force, either in part or in full, on a date or dates specified by Gazette notice under section 94 of the Act. The Commissioner may specify different dates for the commencement of different provisions of this Code.

Each standard in this Code consists of an overarching principle identified as a Code Standard together with additional provisions that contain further detail about the application of the Code Standard.

Unless otherwise stated, the additional provisions do not limit the application of the overarching principle under which they are stated, or the application of any other Code Standard. AFAs must apply the Code Standards in a way that encourages public confidence in the professionalism and integrity of financial advisers.

Terms used in this Code that appear in italics are defined in the definitions schedule.

This Code does not limit an AFA’s legal obligations, including those under the Act.

An Authorised Financial Adviser must place the interests of the client first, and must act with integrity.

This Code Standard applies to any activity of an AFA that relates to the AFA's financial adviser services.

What is required to place a client's interests first for the purposes of this Code Standard is determined by what is reasonable in the circumstances, including any regulatory obligations binding on the AFA in addition to the Code.

An AFA is required to advise a client only in relation to financial products or matters that are within the scope of the AFA’s financial adviser services, as advised to the client in writing. An AFA is not required to consider or provide financial adviser services in relation to financial products or matters that are not within that scope in order to comply with this Code Standard.

An AFA’s obligation under this Code Standard to place a client’s interests first will not be breached by reporting to the Securities Commission any breaches of the Act that the AFA reasonably believes to have occurred.

An Authorised Financial Adviser must not do anything or make an omission that would or would be likely to bring the financial advisory industry into disrepute.

This Code Standard prohibits an AFA from conduct that would undermine public confidence in the professionalism or integrity of the financial advisory industry. However, this Code Standard does not prevent an AFA from commenting in good faith on the business, actions, or inactions of any person (including any other financial adviser, financial adviser group, financial service provider or industry body) or from exercising the AFA’s reporting powers under section 45A of the Act.

An Authorised Financial Adviser must not state or imply that the Authorised Financial Adviser is independent, or that any financial adviser services provided are independent, if a reasonable person in the position of a client would consider that the Authorised Financial Adviser or the services provided are not independent.

The following are examples of circumstances where neither the AFA nor the AFA’s provision of financial adviser services may be described as “independent”:

• (a) a related person of the AFA, or a related person of the AFA’s employer, or principal, is the product provider of a financial product relevant to the financial adviser service provided; or

• (b) the AFA is subject to a contractual obligation to:

  • recommend a particular financial product or financial products; or

  • limit the AFA’s recommendations or discretionary investment management services to a particular financial product or financial products; or

  • attain or maintain a target in relation to a particular financial product or financial products.

  However, the contractual obligations falling within this paragraph (b) do not include the use of wrap account services, platforms, or other portfolio administrative or custodial services, where the use of such services and the arrangements the AFA is able to put in place for the AFA's clients permit access to a wide range of financial products and product providers; or

• (c) the AFA or a related person of the AFA will or may directly or indirectly receive a benefit from a person other than the client for providing the services or from the client’s acquisition of a financial product or products.

  However, for the purposes of this paragraph (c) the following benefits do not affect an AFA’s ability to describe the AFA or the AFA’s services as independent:

  • those that are paid, credited, or transferred to the client; and

  • those that are remote or insignificant; and

  • those that are received by the AFA in the form of salary or wages as an employee, or in the form of fees as a contractor, that are not determined in whole or in part by reference to volume or other targets relating to a particular financial product or product provider.

An AFA must not state or imply that a researcher or other third party service provider used by the AFA in relation to the AFA’s financial adviser services is independent unless the AFA has reasonable grounds to believe the third party would be able to describe themselves as independent under this Code Standard, if the third party were an AFA.

An Authorised Financial Adviser must not borrow from or lend to a retail client.

This Code Standard does not apply if the client is

• (a) a related person of the AFA; or

• (b) in the business of borrowing or lending money or valuable property and the AFA’s borrowing or lending is in the ordinary course of the client’s business on terms consistent with the client’s normal business terms.

This Code Standard does not prevent an AFA or an AFA’s employer or principal from entering into financial arrangements on behalf of a client as the client’s agent to meet settlement obligations in relation to any financial product.

An AFA must not arrange for the AFA’s employer or principal to borrow from or lend to a retail client, other than in the ordinary course of the employer’s or principal’s business.

An Authorised Financial Adviser must not provide financial advice to a retail client in relation to a financial product that is not offered to the public if the Authorised Financial Adviser is a related person of the product provider of that financial product.

This Code Standard does not apply:

• (a) if the client is a related person of the AFA, or is a related person of the AFA’s employer or principal; or

• (b) if the AFA is satisfied on reasonable grounds that the AFA’s financial advice is appropriate for the client and, before the client makes a decision in relation to the financial product to which the financial advice relates, the AFA provides to the client in writing:

  • (i) an explanation of the AFA’s relationship with the product provider of the financial product, the risks of the financial product, and details of how the AFA manages any conflict of interest arising as a result of that relationship; and

  • (ii) a recommendation that the client takes financial advice from another AFA who is not a related person of the product provider.

The purpose of this Code Standard is to protect the interests of retail clients in the rare situations where a retail client may hold, or lawfully be offered the opportunity to acquire, a financial product that is not offered to the public. Accordingly, this Code Standard is very limited in its application. It does not enable an AFA to provide financial advice to a retail client in relation to the acquisition of a financial product that is not able to be lawfully offered to the client.

An Authorised Financial Adviser must behave professionally in all dealings with a client, and communicate clearly, concisely, and effectively.

When providing financial adviser services to a client, an AFA must:

• (a) provide only services that the AFA has the competence, knowledge, and skill to provide; and

• (b) provide the services and perform the AFA’s obligations in a timely way; and

• (c) transparently manage any conflicts of interest that may arise in providing the services; and

• (d) make recommendations only in relation to financial products that have been analysed by the AFA to a level that provides a reasonable basis for any such recommendation, or analysed by another person upon whose analysis it is reasonable, in all the circumstances, for the AFA to rely.

Communicating “effectively” for the purposes of this Code Standard requires an AFA to take reasonable steps to ensure the client understands the communication.

When transmitting the financial advice of another person to a client, an AFA must take reasonable care to ensure that the person providing the financial advice has an appropriate level of competence, knowledge, and skill to provide that advice, and either:

• • ensure the client is aware that the AFA has not prepared the financial advice or assessed its suitability for the client; or

• • accompany the financial advice with the AFA’s own financial advice in relation to the same subject matter (in which case the AFA may have further obligations under Code Standards 8 and 9).

When providing financial adviser services to a wholesale client, an AFA must take reasonable steps to ensure the client is aware that the client is regarded as a wholesale client for the purposes of the Act and the Code, and also is aware of the consequences of that status.

An Authorised Financial Adviser must ensure each retail client has sufficient information to enable the client to make an informed decision about whether to use the Authorised Financial Adviser’s financial adviser services and/or to follow any financial advice provided by the Authorised Financial Adviser.

The information an AFA may be required to provide a retail client under this Code Standard includes (but is not limited to) information about any limits on the scope of the AFA's financial adviser services, the AFA's qualifications to provide those services, the fees the client must pay, the benefits the AFA or any related person of the AFA will or may receive, and any conflicts of interest the AFA may have, in relation to the AFA's financial adviser services provided to the client.

In many circumstances an AFA will satisfy the requirements of this Code Standard by complying with the AFA's disclosure obligations under the Act. However, in some circumstances additional information may need to be provided to a retail client to ensure the client has sufficient information to be able to make an informed decision.

The information required under this Code Standard must be updated when there is any change in the AFA’s circumstances that is material to the financial adviser services provided by the AFA to the client.

When providing a personalised service to a retail client an Authorised Financial Adviser must take reasonable steps to ensure that the personalised service is suitable for the client.

An AFA is only required to determine suitability under this Code Standard based on the information provided by the client and information otherwise known to the AFA. However, an AFA must make reasonable enquiries to ensure the AFA has an up-to-date understanding of the client’s financial situation, financial needs, financial goals, and tolerance for risk, having regard to the nature of the personalised service being provided.

Where a client:

• (a) declines to provide some or all of the information required under this Code Standard, an AFA must take reasonable steps to ensure the client is aware that the personalised service is limited and specify those limitations; or

• (b) instructs an AFA (or an AFA's employer or principal) not to determine the suitability of the financial adviser service provided, the AFA is relieved from the obligation to determine suitability to the extent provided for in that instruction. However, this relief is only available if the instruction is provided in a document that is signed and dated by the client, and that includes a clear acknowledgement from the client as to the advantages of the AFA determining suitability based on the provision of all the information contemplated under this Code Standard.

An AFA must not direct or influence a client to instruct the AFA not to determine the suitability of a financial adviser service to be provided for the client, or direct or influence a client to decline to provide any of the information contemplated under this Code Standard. However, this restriction does not prevent an AFA:

• • drawing the client’s attention to the client’s ability to opt out of having suitability determined as contemplated under this Code Standard; or

• • quoting or estimating a reasonable fee for determining suitability under this Code Standard.

If the extent of an instruction given by a client under paragraph (b) of this Code Standard is such that the financial adviser service provided by the AFA to the client is not or will no longer be a personalised service, the AFA will then need to comply with Code Standard 10.

Where an Authorised Financial Adviser provides a personalised service to a retail client that is an investment planning service or that relates to a category 1 product, the Authorised Financial Adviser must provide a written explanation to the client of the basis on which those services are provided. The Authorised Financial Adviser must also take reasonable steps to ensure the client is aware of the principal benefits and risks involved in following any financial advice provided as part of that service, having regard to the characteristics of the personalised service.

All explanations required under this Code Standard must be provided to the client at the time the personalised service is provided or as soon as practicable after that time. However, the requirement to provide an explanation under this Code Standard does not apply where:

• • the AFA has previously provided the client with an explanation under this Code Standard that is sufficient to cover the personalised service provided; or

• • the client has either instructed the AFA (or the AFA’s employer or principal) or confirmed a prior instruction that an explanation under this Code Standard is not required. Any such instruction or confirmation need not be in writing, but must reflect an unambiguous, active instruction or confirmation that is relevant to the personalised service currently being provided.

The extent of any explanation required under this Code Standard is determined by what a retail client would reasonably require for the purpose of deciding whether to follow any advice or guidance provided by the AFA.

An AFA must not direct or influence a client to decline the explanation contemplated under this Code Standard. However, this restriction does not prevent an AFA from:

• • drawing the client’s attention to the client’s ability to opt out of receiving the explanation contemplated under this Code Standard; or

• • quoting or estimating a reasonable fee for providing an explanation under this Code Standard.

When providing a class service to a retail client, an Authorised Financial Adviser must take reasonable steps to ensure the client is aware of the limitations of the service provided.

An Authorised Financial Adviser must ensure there is an appropriate internal process in place for resolving client complaints in relation to the Authorised Financial Adviser’s financial adviser services.

The complaint resolution process under this Code Standard must ensure that:

• (a) the client is, as soon as reasonably practicable after making a complaint, provided with acknowledgement of the complaint, information about the AFA’s internal complaints handling process, and how to complain to the Securities Commission and to any applicable external dispute resolution scheme; and

• (b) a register is kept recording all complaints, and action taken towards resolving those complaints.

The complaints resolution process required under this Code Standard is required in addition to the AFA’s external dispute resolution scheme (if any).

An Authorised Financial Adviser must record in writing adequate information about any personalised services provided to a retail client.

The information required to be recorded under this Code Standard in relation to each retail client must include:

• (a) information about:

  • (i) any personalised service provided or any financial product recommended to the client; and

  • (ii) any required explanation, and advice as to suitability, given to the client in relation to a financial adviser service or financial product; and

  • (iii) the results of any enquiry or any oral confirmation from the client declining an explanation or suitability assessment under Code Standards 8 and 9; and

• (b) copies of all information and documents provided to the client in writing, or received from the client, in connection with the AFA’s personalised services including—

  • (i) any information provided under Code Standard 7; and

  • (ii) any provision or confirmation of financial advice; and

  • (iii) any explanation provided in accordance with Code Standard 9; and

  • (iv) any instructions from the client declining to provide information or declining an explanation under Code Standards 8 or 9; and

  • (v) any instructions from the client declining or acknowledging any limitations of a suitability analysis in accordance with Code Standard 8; and

  • (vi) details of any complaint received in relation to the AFA’s services.

An AFA who is an employee may satisfy the AFA’s obligations under this Code Standard by taking reasonable steps to ensure that relevant measures taken by the AFA’s employer are consistent with the measures contemplated under this Code Standard.

An AFA must comply with all obligations under the Privacy Act 1993. Without limitation, this includes obligations in relation to the use and disclosure of clients’ personal information and the protection of that information from loss and unauthorised access, use, modification, or disclosure.

An Authorised Financial Adviser must ensure that records of all information and documents required under this Code are kept for a minimum of 7 years.

The 7-year minimum period required under this Code Standard generally commences on the last date that the AFA provides a financial adviser service to the client. However, for information relating to a financial product transaction entered into by the client, the 7-year minimum period for that information commences on the date that all benefits potentially available to the client from the financial product have been realised, if that date is earlier than the date that would otherwise apply.

The records required under this Code Standard may be kept in electronic form, provided the records are readily retrievable.

An AFA who is an employee may satisfy the AFA’s obligations under this Code Standard by taking reasonable steps to ensure that relevant measures taken by the AFA’s employer (or the AFA's previous employer, where applicable) are consistent with the measures contemplated under this Code Standard.

Where an AFA transfers the AFA's financial advisory relationship with a client to another financial adviser, the AFA may satisfy the AFA’s obligations under this Code Standard by taking reasonable steps to ensure that the other financial adviser keeps the records contemplated under this Code Standard for at least as long as the AFA would otherwise have been required to keep them.

Before providing a financial adviser service, an Authorised Financial Adviser must have the competence, knowledge, and skills to provide that service.

This Code Standard 14 applies in addition to the requirements of Code Standards 15 and 16 that relate to particular qualifications an AFA must attain.

An AFA must be able to demonstrate that the AFA has a reasonable basis for believing that the AFA has the level of competence, knowledge, and skills required by this Code Standard.

An Authorised Financial Adviser must have a knowledge of the Act, the Code, and other legal obligations relevant to the operation of the Authorised Financial Adviser’s practice as a financial adviser (including relevant consumer protection laws), that is adequate for the proper operation of that practice.

An AFA must attain Unit Standard Set B and be able to demonstrate the adequacy of the AFA’s knowledge of relevant legislative obligations.

To be an Authorised Financial Adviser, a financial adviser must attain the Unit Standard Sets within the National Certificate in Financial Services (Financial Advice) (Level 5) that are relevant to the financial adviser services provided by the AFA.

For the purposes of the Code, an Authorised Financial Adviser is deemed to have attained a particular Unit Standard Set where the Authorised Financial Adviser has attained an alternative qualification or designation to that Unit Standard Set specified in the Code’s Competence Alternatives Schedule.

An AFA who has attained Unit Standard Sets A, B, C, and D of the National Certificate in Financial Services (Financial Advice) (Level 5) is not restricted in the range of financial adviser services the AFA can provide or offer to provide, subject to Code Standard 14 and the terms of the AFA’s authorisation under the Act.

However, provided the AFA satisfies Code Standard 14 an AFA:

• (a) may provide a class service for any client, and any form of financial adviser service for a wholesale client, without having attained Unit Standard Set C or Unit Standard Set D; and

• (b) may provide a discretionary investment management service for a client without having attained Unit Standard Set C; and

• (c) may provide financial adviser services for a client without having attained Unit Standard Set D if the AFA has attained Unit Standard Set E and the financial products that might be included within the scope of the financial adviser services provided for the client concerned do not include any category 1 products.

If an AFA has attained Unit Standard Set D this Code Standard does not also require the AFA to attain Unit Standard Set E in order to provide financial adviser services that involve category 2 products, so long as the AFA satisfies Code Standard 14. For the purposes of this Code Standard, an AFA will be deemed to have attained Unit Standard Set E if the AFA has either passed both of the residential property lending units (units 26286 and 26287), or the AFA has passed unit 25644 and at least one of units 25645, 25646, or 25647 (being units relating to insurance).

For the purposes of the Competence Alternatives Schedule:

• • a designation previously attained that has not been retained at the time an AFA seeks authorisation will still be recognised for the purposes of the Schedule, provided the AFA has completed at least 20 hours CPD in the 12 months immediately before first becoming authorised, including at least 10 hours of structured training as described in Code Standard 18; and

• • references to a qualification paper or designation being “subject to the eligibility sunset” mean the relevant qualification, paper, or designation must be fully attained at the time the AFA seeks authorisation for the first time, and the qualification, paper, or designation will only be recognised for authorisations that come into effect prior to 1 January 2014.

An Authorised Financial Adviser must maintain and keep current a professional development plan for each CPD period.

An AFA’s professional development plan must:

• (a) identify any areas for improvement in the AFA’s competence, knowledge, and skills in relation to the financial adviser services he or she provides or intends to provide;

• (b) include the AFA’s proposals for making those improvements; and

• (c) where available, include details of courses, seminars, workshops, and any other training or professional development planned to be undertaken.

An Authorised Financial Adviser must undertake sufficient continuing professional training to maintain the Authorised Financial Adviser’s competence at a level appropriate for the financial adviser services the Authorised Financial Adviser provides or intends to provide, and keep up to date with developments relevant to the Authorised Financial Adviser’s practice.

An AFA must in each CPD period complete a minimum of 20 hours of professional development relevant to the financial adviser services the AFA provides or intends to provide.

That professional development must, in each CPD period, comprise at least 10 hours of structured training.

To be structured training, the training must form part of the requirements for a qualification on either the National Qualifications Framework or the national register of quality assured qualifications, or be part of a structured continuing professional development programme managed by a DAO, QFE, or professional body.

An AFA must keep appropriate records of any CPD activity completed that is required by this Code Standard in a form suitable for demonstrating compliance with this Code Standard. The records contemplated under this Code Standard include:

• (a) the name of the CPD activity; and

• (b) the date of completion; and

• (c) how many hours of CPD it involved; and

• (d) a brief description of the CPD content covered by it; and

• (e) whether it constituted structured training; and

• (f) in relation to structured training, relevant third-party verification of the successful completion of that training, such as confirmation by the training provider or by the AFA’s employer or principal.

For the purposes of the Code, a person wishing to be an AFA is treated as having satisfied the requirements of a particular Unit Standard Set where the person has attained an alternative qualification or designation as specified in this Schedule.

References in this Schedule to a qualification, paper, or designation being “attained” or “subject to the eligibility sunset” are explained under the “Competence Alternatives Schedule” heading in Code Standard 16.

In this Code, unless the context otherwise requires, the following terms have the meanings set out below. To assist, those terms are shown in italics wherever they appear in the body of the Code. Any term that is not defined in this Schedule, but is defined in the Act or in regulations made under the Act, has the same meaning in the Code as in the Act or in those regulations, as applicable.