The Federal Court has today ordered AMP to pay a $5.175 million penalty after the court found AMP failed to take reasonable steps to ensure its financial planners complied with the best interests duty and related obligations under the Corporations Act.
In this case, ASIC alleged that a number of AMP’s financial planners engaged in ‘rewriting conduct’ – which is providing advice that results in the cancellation of the client’s existing insurance policies and the taking out of similar replacement policies by way of a new application rather than through a transfer. By cancelling insurance policies and advising clients to submit new applications, clients were exposed to a number of significant risks and the planners received higher commissions than they would have by simply transferring the policies (18-188MR).
In its decision, the Court noted that the rewriting conduct by one of AMP’s financial planners, Mr Rommel Panganiban, was ‘morally indefensible’. The Court accepted ASIC’s case that, having become aware of Mr Panganiban’s conduct, it was necessary for AMP to ascertain the extent of breaches by other planners to meet its legal obligations. AMP failed to do so, and the Court found, ‘the lack of an effective response is an illustration of how badly things had gone wrong within the organisation’.
In May 2019, the Court noted that AMP had admitted ASIC’s case against it. The Court today found there was a total of six contraventions of section 961L of the Corporations Act and imposed a penalty of $5.175 million. The Court also indicated that it will make orders requiring AMP to undertake a review and remediation program to ensure financial planning clients who were subject to rewriting conduct are detected and properly remediated, as well as, a forward looking compliance plan that seeks to prohibit rewriting conduct through improved communication, training and supervision by AMP of its financial planners.
‘ASIC had a strong case against AMP, which resulted in AMP’s admissions in relation to ASIC’s case in May last year. We now have a decision from the Court which agrees with ASIC’s case that AMP failed to monitor and supervise its financial planners properly and in accordance with its legal obligations,’ said ASIC Deputy Chair Daniel Crennan QC.
‘ASIC believes the penalty applied by the Court today will act as a deterrent to AMP and other financial institutions to engage in such misconduct. AMP and other financial institutions must act in their clients’ best interests.
In its judgment, the Court noted that ‘this penalty proceeding reflects a lamentable failure of corporate will to take the necessary steps to prevent greedy and unlawful conduct taking place, and a further failure to adopt a swift and proper remedial response’. Justice Lee accepted ASIC’s submission that during the relevant period AMP did not have an adequate ‘culture of compliance’.
In light of the proposed remediation program and compliance plan, Justice Lee further noted that ‘AMPFP has been brought, through the persistence of ASIC, to a position where it is now committed to doing the right thing...’.
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Background
The case against AMP is one of a number of ‘best interests duty’ cases that ASIC has brought before the court, including action against Westpac and the poor financial advice provided by one of its former financial planners, Mr Sudhir Sinha (19-368MR) and against RI Advice and former Melbourne financial adviser, Mr John Doyle (19-297MR).
In 2016, Mr Rommel Panganiban was permanently banned by ASIC from providing financial services. This decision was affirmed by the Administrative Appeals Tribunal in 2017 (17-277MR).
The penalty handed down by the Court today was determined under the previous penalty regime where the maximum penalty for each contravention was $1 million. Penalties have increased after legislation was introduced in March 2019 and will apply to contraventions that occurred after March 2019. Civil penalties have significantly increased, now to be capped at $525 million (19-032MR).
ASIC’s action against AMP falls within ASIC's Wealth Management Major Financial Institutions Portfolio. The Portfolio focuses on the financial services conduct of Australia's largest financial institutions (NAB, Westpac, CBA, ANZ and AMP) with respect to credit and retail lending, financial advice, fees for no service, superannuation trustees, insurance, unfair contract terms and other licensee obligations, and other conduct arising from the Financial Services Royal Commission.
Editor's note 1:
The final orders made by the court are available here.
Editor's note 2:
Justice Lee has listed the matter for hearing at 10:15am on 19 October 2022 in Sydney. The hearing will be in relation to AMP’s remediation program which was ordered by the Court in March 2020.
Editor's note 3:
Justice Lee has listed the matter for hearing at 10:15am on 30 March 2023 in Sydney for final disposition. The hearing will be in relation to AMP’s remediation program which was ordered by the Court in March 2020.
Editor's note 4:
On 30 March 2023, the matter was adjourned. The matter has been listed for hearing on 2 June 2023. The hearing will be in relation to AMP’s remediation program which was ordered by the Court in March 2020.
Editor's note 5:
On 2 June 2023, a hearing regarding AMP's compliance with the remediation orders took place before Justice Lee. The matter has now been finalised.