This report was provided to ASIC in 2016. This was done in good faith despite being a legally privileged document. It discusses the CPP at length and does not say it was misleading and deceptive. ASIC dismissed the report as incompetent. But did not tell Dover.
18 March 2016
Mr Terry McMaster and Ms Florence Tee Dover Financial Advisers Pty Ltd
PO Box 209
BLACK ROCK VIC 3193
Dear Terry and Florence,
Re: SoA review process
In our experience, Dover Financial Advisers Pty Ltd (Dover)’s Statement of Advice (SOA) review process is not typical of licensees of its size and type. Licensees do not usually require every single SOA to be reviewed by their compliance team. We are unaware of any licensees that have mandated three levels of review for every single SOA, including a final legal sign-off in addition to a compliance review as Dover has. This is, in fact, four lines of defence if you include the initial adviser validation via the adviser checklist and accordingly, is a variation on the common risk management approach of three lines of defence.
Inshort,itisascomprehensiveanSOAreviewprocessaswehaveencountered. Itis robust and pragmatic. It is also appropriate to Dover’s business model. Nevertheless, we have made some suggestions which we believe will enhance the process and documentation.
Also, it must be noted that while the SOA review process is a core feature of Dover’s monitoring and supervision program, the effectiveness of Dover’s overall monitoring and supervision arrangements needs to be considered along with other components such as adviser site visits, recruitment procedures and conflicts management. Such additional components are beyond the scope of this review.
Scope and methodology for the review
Dover has requested us to conduct a review of its SOA review process.
Dover’s SOA review process forms part of its ongoing monitoring and supervision program insofar as it relates to the provision of financial advice. Indeed, it is the core feature of Dover’s monitoring and supervision.
We interviewed key people from Dover who are responsible for the implementation of the SOA review process on a day-to-day basis and this report has relied on representations made in these discussions (see Appendix 2 of this report).
We reviewed the policy and procedural documents that facilitate Dover’s SOA review process with a view to identifying how the system works in theory, its ambit and limitations, if any. We also reviewed a small number of documents that evidence Dover’s application of the process (see Appendix 1 of this report). While we comment on these supporting documents, the number of supporting documents reviewed was limited and
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|should not be used as an indicator of how the policies and procedures are applied as a matter of course.
HNLaw has again been asked by Dover to undertake a review of its SOA review process. We understand that Dover is currently applying for an additional Australian financial services licence and that this report may be used in support of that application and/or be provided to Dover’s professional indemnity insurers. Dover understands that any legal privilege which subsists in this report may be lost on provision of this report to a third party.
In undertaking this review, HNLaw has used the services of another lawyer, Ian McDermott of imac legal & compliance pty ltd, to engage with Dover and to assist in the drafting of this report. This will ensure that a ‘fresh pair of eyes’ is turned to Dover’s processes. Ian has had the advantage of reading the 2013 Report but has brought his own skills, experience and observations to bear. Ian has at all times strived to maintain his independence in providing this report and its accompanying conclusions and recommendations. Ian undertakes no work for Dover and is not in a position of conflict. His only previous dealings involving Dover were several years ago when he assisted a client in reviewing and amending Dover’s authorised representative agreement as the adviser wished to join Dover.
HNLaw has treated this review, not as a follow up to the 2013 review, but rather as a new review with its own independent judgments and recommendations.
The SOA review process
Dover’s compliance arrangements must be adequate to meet its regulatory requirements, taking into account Dover’s size, complexity and type of business.
Dover’s compliance manual describes its business model as follows:
SOA review process – industry environment and description of Dover’s process
In our experience, most licensees employ a post-fact, risk-based SOA review program whereby a small selection of an adviser’s advice files is reviewed. These post-fact reviews are usually coupled with pre-vetting requirements for new advisers, certain types of risky advice and for advisers who have previously been identified as not meeting certain requirements.
Licensees of the size and type of Dover typically use several risk-based criteria to identify risky advice scenarios, products and strategies as well as risky advisers, practices and
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|operational risk factors (eg. if an adviser is a known gambler or if they are undergoing marital or financial issues) which will inform the review program and frequency of review for each adviser.
Dover’s approach to SOA reviews
Dover’s blanket approach, which requires all SOAs to be reviewed, is highly unusual. However, being unusual should not be equated with inadequate.
Indeed, several in-built factors of such a process are inherently superior to other systems. These include:
the fact that all SOAs are theoretically reviewed, not just a small percentage; and
the fact that the advice is reviewed prior to being given to clients, meaning that any
issues should be picked up and addressed before the client receives the SOA.
Employing a blanket approach, as Dover does, to reviewing all SOAs also does away with the need for some of the nuances and requirements of a typical risk-based review approach. However, it should be noted that the process is risk-based insofar as it focuses on the ‘big ticket’ items around the advice being in a client’s best interests and appropriate to their needs. The process also covers off ‘technical’ compliance, (ie. ensuring an SOA includes all the relevant prescribed information as required by s947C of the Corporations Act (the Act) and associated regulations) via the adviser’s checklist which must be submitted with every SOA. This checklist is also checked by Dover’s Vietnam-based compliance team. However, the real value-add with the process in our view is the next phase of checking which focuses mainly on quality of advice-related issues such as best interests and appropriateness. This is as it should be in our view.
Dover does not mandate the use of any particular financial planning software (e.g. XPlan, Coin, Midwinter) and the SOA review process appears to have been designed with this in mind. Advisers are free to use whatever system they wish to construct their advice, documents and client relationship programs. As such, while Dover has much greater visibility of its advisers’ SOAs and fact finds than many other licensees, the SOA Review Process does not, by itself, provide as much access to the broader advice files as some other comparable licensee’s systems. Some other systems allow unfettered access to all elements of an advice file, from file notes, administration, research conducted, portfolio management, bases for projections, and the like. In this sense, Dover’s approach, which requires all SOAs to be submitted for review together with a completed checklist and fact find, is highly appropriate to its circumstances.
The SOA review process
When HNLaw conducted the last review in 2013, Dover divided SOAs into Contentious and Non-contentious. It has since changed the category names to Simple and Complex. All SOAs from new advisers are treated as Complex regardless of the complexity of the advice. We were advised that Dover aims for new advisers to be familiar with the processes and requirements after 2 months and are not considered ‘new advisers’ thereafter. Some advisers who do not provide much financial product advice (eg accountants/lawyers/mortgage brokers) may still be subject to the new adviser requirements for a longer period.
The review process for new advisers also includes an additional step, namely that the relevant Adviser Manager is a part of the feedback chain.
The process for each is described in flowcharts “New Adviser SOA (Complex)” and “Simple SOA?”.
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|However, in addition to what is in those diagrams, some elements of the process are not described. In particular:
the adviser must submit their SOA (via email or portal) with a completed simple checklist and fact find;
Dover’s Vietnam-based compliance team undertake a simple ‘gateway’ check to ensure all requirements as per the checklist are met; and
if the SOA does not get through the gateway it is returned to the adviser, who must address the issues and resubmit.
Dover provided figures for the number of SOA reviews it undertook for the period August 2015 – Feb 2016, as follows:
Total number of SOAs: 2679
Simple SOAs including Records of Advice: 2092
Complex SOAs: 587
If the SOA passes through the initial gateway, it is reviewed for best interests/appropriateness by the compliance and legal departments. Once compliance has reviewed the SOA, it is sent with comments or for further review to Dover’s senior legal personnel.
If changes are required, the adviser is required to attend to these and re-submit the SOA. Once changes are made, legal signs off on the SOA.
The adviser is required to submit the final, signed SOA to compliance for its records.
The adviser checklists
The adviser’s advice checklist covers the best interests safe harbour requirements as per s961B of the Act. Part 1 of the checklist determines whether the advice falls into the Simple or Complex categories.
The checklist states: “For simple SOAs, if you do not hear from us after 24 hours, you are allowed to send the SOA to your client and we will revert as soon as we can. This is to avoid interference with your client service objectives.”
If an adviser answers ‘yes’ to all the questions in Part 1 of the adviser checklist, the advice is deemed to be Simple advice.
The questions in Part 1 are:
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If one or more questions are answered ‘no’, it is treated as Complex. The distinction between Simple and Complex is not scientific. However, while not scientific demarcations, the distinctions to our mind are nonetheless pragmatic and appropriate.
The SOA checklist states:
“Please complete the Best Interest Duty Checklist first to make sure that the advice given in the SOA is appropriate and in the best interest of the client. If you answer “NO” to any of the questions in the Best Interest Duty Checklist, Dover will reject the SOA and you will be required to redraft the SOA. Once you are able to answer “YES” to all of the answers in the Best Interest Duty Checklist, you should then complete the SOA review checklist.
If you answer “NO” to any question in Part 1 of the SOA review checklist, the SOA must be checked by Dover’s compliance team before it is sent to your client. You must send your SOA, fact finder and completed checklist to Dover with a short explanation of why you have answered “NO” to that question in Part 1.”
Part 1 of the checklist and the best interests checklist then follow. We viewed checklists which had been completed correctly by advisers.
In our view, a large part of the success of any system that requires every SOA to be submitted for review is how efficient it is. If the process can consistently turn around SOAs in short timeframes and within the standards set by the program, advisers are much more likely to actively and willingly engage with it.
Dover’s SOA Review Process includes a self-imposed timeframe for turning around simple SOAs in 24 hours and complex SOAs in three days. In our experience these are comparatively very quick turnaround times. However, it appears that Dover is unable to consistently comply with a 24 hour review timeframe. Dover’s records identify that the 24 hour commitment was complied with 340 times over a representative period where 1296 Simple SOAs were submitted. If Dover changed the requirement to refer to ‘1 business day’ instead or some extended period, this might help to position the process and compliance as committed to meeting its promises and help ensure adviser buy-in.
Beyond Part 1, the checklist is a reasonably comprehensive tool for Dover’s compliance team to use, save for the omissions noted below.
The checklist does not ask about whether all conflicts and associations have been properly disclosed as required by s947C(2)(e) and (f) of the Act. We note that the Dover Client Protection Policy, which is incorporated by reference into the SOA, does contain a conflicts disclosure, which states: “we do not have any relationships that may create a conflict of interest that would influence our advice to you.” However, even though the Future of Finance Advice reforms have done away with many conflicts it is difficult to see how such a blanket statement could apply in every case. We, therefore, recommend that the checklist enquires about potential conflicts.
The checklist also does not inquire about whether the advice involves agri-business or other ‘tax effective’ products/recommendations. Such products are typically ‘high risk’ and should result in relevant SOAs being deemed to be Complex under Dover’s regime. We are instructed that Dover does not allow advisers to recommend agri-business or other tax
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|effective products. Terry McMaster told us that “they are not on our APL and never have been. I would sack any adviser who recommended them.” Clearly, such a position diminishes the need to incorporate such checks into the SOA Review Process. However, in our experience, even licensees who have never allowed their advisers to recommend such high risk products can end up with some limited exposure to them as clients bring portfolios with such products when changing advisers. Similarly, book purchases can include such products. As such, we think the best interests duty requirements would require advisers with clients who have pre-existing exposures, to address this in their advice. We therefore think that, even though Dover’s advisers may have little or no exposure to such risky products, as a known risk and for the sake of completeness, the SOA review checklists ought to inquire whether the advice includes any recommendations about agricultural or other tax effective schemes.
We also note that, while the Dover Client Protection Policy, includes a disclosure about the client seeking specific tax advice regarding any income tax implications of proposed transactions, the SOA review checklist does not inquire about whether an SOA contains tax (financial) advice and whether an adviser is registered with the Tax Practitioners Board. While these disclosures are not mandatory in the SOA itself, in our experience it is best practice in the industry to include the disclosures and to check the registration status of advisers who provide tax (financial) advice under the Tax Agents Services Act regime. Accordingly, we think Dover’s checklist should cover off this issue.
Determining a client’s attitudes to risk and what sort of risk profile they are prepared to adopt to meet their goals is an important part of the advice process. Dover does not mandate that advisers use any of the commercially available risk profiling tools (e.g. Visiprofile, FinaMetrica), In fact, we were instructed that Dover does not allow their use. Instead, as part of Dover’s fact finding process, which is built into Dover’s Fact Find document, the adviser and client engage in in-depth discussions around the client’s circumstances (such as age, income, wealth, occupation, education, training and prior investment experience), objectives and attitudes to risk. From these discussions, the adviser and client agree on a risk profile.
Dover is of the view that this process is robust and appropriate. However, we have a couple of issues with how it fits into the SOA Review Process. First, as the process is not a scientific, quantifiable process with a clear risk score at the end of it, it is possible that the process may be applied inconsistently between advisers. That is, faced with the same factual scenario, it is possible that two different advisers could conclude two different risk profiles for the same client. Also, connected to this is the fact that advisers have an incentive to treat a client as balanced or more conservative so that the SOA will be submitted and reviewed as a Simple SOA instead of as a Complex SOA.
Accordingly, we think the checklist could be improved by asking advisers to confirm that they have maintained accurate file notes of all relevant discussions and activities and to confirm that they applied a robust, consistent, defensible and replicable method to determine the client’s risk profile.
Dover has introduced the ‘Client Protection Policy’ into its advice process since HNLaw undertook its initial review in 2013. This document which we are instructed is handed to the client both with Financial Services Guide and the SOA, is incorporated by reference into the SOA and includes several key disclosures, including disclosures around insurance and the duty of utmost good faith, taxation advice, SMSFs, limits on an adviser’s authority, referral arrangements, and several other disclosures. This policy seeks to give clients additional confidence in Dover and the adviser with whom they are dealing. While we viewed this document as part of this current review, we concluded that, while it includes several useful and necessary disclosures, it is of no probative value and
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|does not materially impact the SOA review process itself. We were instructed that the Client Protection Policy is the same for each adviser; it is not tailored to individual advisers. We are not in a position to know whether all disclosures are correct for every adviser.
Dover is aware that one of the risks of its SOA review process is that advisers don’t forward all SOAs for review. Dover mitigates this risk by offering professional indemnity only for SOAs which have been submitted for review. In other words, if a claim arose and a professional indemnity insurance payment had to be made to a client, the adviser would have to indemnify Dover for its large deductible whereas Dover would shoulder the deductibleiftheSOAhadbeenreviewed. Thisisapragmaticsolutionthatgivesadvisers significant incentive to comply with the requirement to submit all SOAs.
Some robust examples of the process in action
We viewed several emails between Terry McMaster and advisers whose advice did not measure up to Dover’s expectations. These emails made it very clear, in what can best be described as ‘strident and robust’ language that Dover is very prepared to terminate advisers whose advice does not meet the required standards.
In discussions with Terry McMaster, he also made it clear that he will not tolerate an adviser whose advice does not meet requirements. He cited several examples of where he has decided to terminate advisers.
Also, the SOAs we reviewed, along with the supporting emails from the compliance team indicate the review program is applied robustly in practice.
Observations from SOAs reviewed
The SOA review process also allows the compliance team to pro-actively and positively influence advice before it is provided to clients. This is a significant benefit and advantage over most post-fact review systems.
However, such a process is only as good as the effectiveness of the reviews along the way. We only reviewed a limited number of SOAs and supporting documents. While the advice appeared well-described, appropriate and in the clients’ best interests in each instance, we noted a small number of issues which, in our view, ought to have been picked up through the review process.
In particular, the Cooper SOA (Jan 2016) contained information around the tax deductibility of insurance premiums in and out of superannuation. There was no mention of the Tax Agents Services Act or tax (financial) advice and related disclosures.
Similarly, the SOA made no mention of the typical risks/consequences of replacing insurances, namely that certain policy inclusions (e.g. suicide) are typically not covered for a period after commencement. Also, even though the client has signed an insurance policy declaration acknowledging they understand their duty of disclosure, there was no mention of the risks of non-disclosure (e.g. of pre-existing ailments and the chance that the client won’t be covered under the new policy whereas they may be under their existing one) and the consequences for the client in the SOA. Given the outcomes in cases such as CFP v Couper  NSWCA 444 and Swansson v Harrison & Ors  VSC 118, we think such risks/consequences should be clearly stated in SOAs.
Dover’s Client Protection Policy does include a disclosure about the client’s duty of utmost good faith as well as the following disclosure regarding new risk insurance contracts:
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|“Subsection 29(3) of the Insurance Contracts Act 1984 allows a claim to be denied by the insurer within three years of any new insurance policy being set up in the insured (i.e. you) failed to disclose all relevant facts. The three-year period starts afresh once a new insurance policy starts.”
However, our view is that this information, by virtue of section 947D(2) & (3) and regulation 7.7.09B(6), must be in the SOA itself and cannot be incorporated by reference. We, therefore, recommend Dover include the relevant disclosures in the SOA, not just the incorporated materials.
The use of templates
Like most dealer group licensees, Dover provides basic SOA templates which its advisers arethenrequiredtotailortoaclient’sparticularcircumstances. However,weunderstand advisersmayalsoelecttousetheirowntemplates. Thetemplatesareupdatedas required and made available to advisers.
While it is not ideal that advisers may not all operate from the same templates, Dover’s SOA review process should that any recently introduced changes have been incorporated into whatever templates advisers use.
In order to be effective, the templates should include all mandated information (or sections highlightedwheresuchinformationneedstobeincluded). Theyshouldalsoprovide instructions and guidance to the advisers on how best to meet their obligations in the SOA, particularly around meeting the best interests requirements and ensuring the advice is appropriate to the client.
It was beyond the scope of this engagement to review all of these SOA templates and review them in depth. We reviewed a number of Dover’s templates, namely:
Dover Robo Strategy
Draft Template Statement of Advice Superannuation Only
Draft Statement of Advice Direct Share Portfolio Strategy Worked Example
Re Template template
It was not clear to us what purpose this template serves, although it appears to be the basis on which all other specific SOA templates are based. It is missing some required disclosure information (e.g. conflicts, prioritisation of interests). It purportedly hyperlinks to guidance on how to scope the advice effectively and describe the basis and rationale for the advice. However, these hyperlinks were not active in the documents we reviewed so we cannot comment on the adequacy of the guidance.
Re Robo Dover Strategy
This was more of an issues paper than an SOA template. It contemplates Dover using an e-docs capability to help advisers fill out some basic types of SOAs. It discusses numerous features and benefits of such a system including efficiency and effective data capture (as licensee, the document would be able to capture key data). The document indicated that this system is still in development and not yet deployed. Accordingly, we cannot comment further on it.
Re Scope paragraphs
As the name suggests, this template provides templated scoping paragraphs for advisers to use depending on the advice situation. The scopes were generally clearly articulated, if not a little simplistic and not terribly nuanced to particular client situations beyond the high
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|level category of advice (e.g. superannuation, insurance, ETF advice, investment advice). We think that it would be preferable to ‘tease out’ the scope beyond reference to “this advice addresses your life insurance needs only” or “the advice addresses your superannuation only.” For example, in the ASIC example SOA in RG 90 the scope is “Joe and Sue, you have asked for my advice about how to invest the $155,000 that you have in your joint-access savings account and how you can protect your family in case either of you should die or become sick or injured.”
Re Draft Template Statement of Advice Superannuation Only
This followed the same basic format of the ‘Template template’ mentioned above. The same comments apply to this template.
Re Draft Statement of Advice Direct Share Portfolio Strategy Worked Example
This followed the same basic format of the ‘Template template’ mentioned above. The same comments apply to this template.
Many of these templates include standard statements about what the adviser has done in providing the advice. For example:
“we have carefully considered the personal circumstances outlined”.
“This was agreed with you. In particular, you have asked us not to address non-
investment based financial products in this advice”.
“we have considered a range of life insurance products”.
“Our review has included issues of cost, accessibility, investment options, reliability of
the provider and the ease with which each provider is known to be able to liaise with,
as well as any benefits that may be lost if you discontinue your existing cover”.
“We have considered both options and, on balance, we believe that share-based
investment best suits your purposes”.
Wherever any such claims are made in a templated document, one of the goals of an ongoing monitoring and supervision program should be to test the veracity of such statements to ensure they are correct. This risk was recognised in our initial review, where Terry McMaster identified the risk of advisers ‘parroting’ the SOA templates. Discussions with the advisers and review of full client files are two of the common ways to verify that such statements are correct. Ideally, such checks should be built into the annual review program. It is beyond the scope of this engagement to determine whether such checks are incorporated.
Of particular concern was the statement in the life insurance only scope statement which said: “Other than cost, this advice will not impose any significant disadvantages on you. The advice will impart a significant advantage: the recommended insurances should reduce the economic impact of one or more insured events occurring. For this reason, we believe this advice is in your best interests.”.
Given the litigation cases referred to earlier in this report, there are significant risks when a life insurance replacement product recommendation is made to which the client should be specifically alerted.
1. Amend the advisers’ advice checklist to:
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|2. include a question confirming that the adviser has maintained accurate file notes of all relevant discussions and activities;
3. require the adviser to acknowledge that they have used an effective, defensible, consistent and replicable risk profiling process;
4. require the adviser to confirm that no advice has been provided in relation to agri-schemes or other tax effective schemes (which we understand will only arise where a client’s existing portfolio holds such products);
5. require the adviser to acknowledge that they have addressed all conflicts of interest and prioritised the client’s interests.
2. Review the Peter Cooper SOA (Jan 16) and make any necessary changes to the SOA review process to ensure that all SOAs which may include tax (financial) advice are picked up and any relevant disclosures made as well as ensuring that the risks and consequences of replacing life insurance policies are fully disclosed in the SOA .
3. The Compliance team should have access to information about the conflicts of interest each adviser has at the time of the SOA review (including any grandfathered benefits) so they can check that appropriate disclosures have been made in SOAs.
4. Review the SOA templates to address the matters referred to in this report.
HOLLEY NETHERCOTE Appendix 1: Documents reviewed
Email trails x 6 – re Dover Independent AFSL application, evidencing the SOA review process, re Dover’s compliance approach, Dover’s AR screening process
Email trail – re terminating advisers who did not meet review requirements (MacKenzie and Villegas)
SOA Review Diagram (Simple SOA)
SOA Review Diagram – new adviser (Complex SOA)
Full FSG/Fact find
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Client protection policy
Compliance Manual (combined licensee and adviser manual titled ‘Combined
Compliance Manual and Adviser Handbook’) dated 1 Feb 2014
SOA – for client Mackay-Cruise, from adviser Andrew Smith. Includes emails with Dover compliance/legal for review/signoff
SOA for Charlton, including adviser checklist, emails with compliance/legal which evidence the SOA review process was adhered to
SOA for Cooper, including adviser checklist, emails with Dover compliance/legal for review/signoff
SOA for Fitzpatrick, including adviser checklist, emails with Dover compliance/legal for review/signoff
SOA for Kurstyn Miller, including adviser checklist, emails with Dover compliance/legal for review/signoff
Fact find and emails with Dover compliance/legal for review/signoff for K&R Fitzpatrick (unable to open the SOA)
Dover Robo Strategy
Draft Template Statement of Advice Superannuation Only
Draft Statement of Advice Direct Share Portfolio Strategy Worked Example
Appendix 2: Staff interviewed
Florence Tee – Adviser Manager
Mina Andrawis – Legal Manager
Yin Low – Compliance Manager
Terry McMaster – Responsible Manager/Director/Lawyer