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Lawyer defends ASIC FOFA approach

ASIC is right to be working on the basis that the FOFA legislation is subject to change, according to a Baker & McKenzie partner.

Reflecting on comments made by Labor Senator Sam Dastyari that ASIC has given a “green light” to advisers to breach the FOFA legislation and that the regulator should be enforcing the law as it stands, commercial lawyer Astrid Raetze told ifa ASIC is taking a “sensible approach”.

“It indicates that ASIC recognises that there is little point in expending limited ASIC resources on enforcing law that is subject to change, and in fact may no longer exist in a few months,” she said.

In particular, a number of the laws that are subject to change or repeal by the government are not even set to come into force until 1 July 2014, said Ms Raetze.

For example, ASIC agreed to transition the new rules on performance payments to employees until the middle of next year – “by which time it is expected that the government's revision to FOFA will be effective”, she said.

The real motivation for Mr Dastyari’s comments may be that Labor’s “noses are out of joint” because elements of their legislation are being reversed, Ms Raetze added.

“[But] it’s not like the government’s reversing all of [the FOFA legislation] – they’re really just reversing the bits that were difficult and costly and didn't necessarily add anything to the overall integrity and compliance of the law. I think they’ve improved [the FOFA regime],” she said.