Former High Court judge enters FOFA fray

Participants in the FOFA debate should remember the common law already imposes a fiduciary duty on professional service providers, according to Sir Anthony Mason.

Speaking to delegates at the SMSF Professionals' Association of Australia national conference in Brisbane yesterday, Sir Anthony, a former chief justice of the Australian High Court and current SPAA patron, made comments about the media coverage of the proposed amendments to FOFA.

“It is not for me to comment on the advice given by Arnold Bloch Liebler [to Industry Super Australia], but there are some points I would like to make, and as forcefully as I can,” Sir Anthony said.

“First, if it should come about that some aspect of the best interests duty is to be wound back, it would be a grave mistake to think that a financial adviser is under no duty to act in the interests of the client,” he said.

“Quite apart from relevant statutory provisions, the common law imposes a duty on the adviser to act in the interests of [their] client.”

Sir Anthony added, however, that provisions in a particular adviser-client contract can “exclude or limit the adviser’s liability” and that it is therefore important that advisers act as “professionals rather than salespeople”. 

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