Financial Markets (Conduct of Institutions) Amendment Bill

I move, That the Financial Markets (Conduct of Institutions) Amendment Bill be now read a first time. I nominate the Finance and Expenditure Committee to consider the bill and to report back by 23 June this year.

This bill will create a broad regime governing the conduct of financial institutions such as banks, insurers, and non-bank deposit takers. The ultimate aim of this new regime is to improve the conduct of financial institutions and to help rebuild trust and confidence in our financial sector. This will serve the needs and interests of everyday consumers and lift wellbeing across the board. This is particularly important and timely given the problems that have been occurring in the financial sector, and the various reviews that have taken place which led to the introduction of this bill.

There have been several recent reviews into the conduct of financial institutions, including the 2018 royal commission into financial services and the reviews into banks and life insurers in New Zealand undertaken by the Financial Markets Authority (FMA) and the Reserve Bank. These reviews showed that there are extensive weaknesses in the conduct and culture of institutions in New Zealand’s financial sectors, particularly in respect of governance and management of conduct risks and lack of focus on outcomes for customers. The reviews also highlighted a gap in New Zealand’s regulatory settings, in that there is currently no explicit legislative mandate for the regulation of the general conduct of financial institutions.

Some of the examples that were heard, either in the consultation that was held by the agency or the investigation by the Reserve Bank and the FMA, were numerous. In one example, a 25-year-old with no dependents was sold a life insurance policy by his bank when he signed up for KiwiSaver. The bank, essentially, led him to believe that buying the life insurance was required as part of joining KiwiSaver. I’ve also heard about a person with tetraplegia who was sold a life insurance with a clause excluding tetraplegia, which made the cover, essentially, meaningless.

Financial institutions and the products and services that they provide are an essential part of a well-functioning society. Financial products and services are a critical part of our everyday lives as well as our long-term wellbeing. They enable us to save for the things that we want, to borrow for a house, or to cover ourselves against an unexpected loss. Banking and insurance in particular play an integral role in people’s lives. So we’ve moved swiftly to fast track measures in these areas to protect consumers and to maintain confidence.

It is vital that New Zealanders can trust their banks and insurers and be treated fairly by them. Treating consumers fairly is essential to building trust in the finance sector. It will be a win-win for consumers and the financial sector if we can all have more confidence that banks and insurers are placing fair treatment of consumers at the heart of their businesses, that financial products are being designed and sold with a view to best meeting consumers’ needs, and that consumers don’t face unreasonable pressure to retain or to change products that may no longer be useful for their particular situation.

The new conduct regime that this bill creates is seeking to help cement this trust. In order to address these problems and in turn build the necessary trust in the industry, the bill will implement a package of changes. The bill requires banks, insurers, and non-bank deposit takers to be licensed by the Financial Markets Authority in respect of their general conduct, and licensing gives consumers confidence that licensed entities have been checked and meet the appropriate standards of conduct. Moreover, it also establishes an ongoing supervisory relationship between an entity and the regulator. Licensing will provide the FMA with a full range of tools to monitor, supervise, and enforce the new regime. It’s not about having an ambulance at the bottom of a cliff but more about enabling the FMA to work with entities to prevent harm in the first place.

This bill also centres on an overarching fair treatment principle. Licensed institutions and their intermediaries must comply with this principle, which will require them to treat consumers fairly. Financial institutions will also be required to establish, to implement, and to maintain an effective fair conduct programme, and this requirement is a way for financial institutions to operationalise the fair conduct principle and turn the principle into concrete actions within the entities.

The conduct programme will require licensed entities to have policies, processes, systems, and controls in place to ensure they’re considering consumers’ interests and treating them fairly in all aspects of their business. This requirement reflects that fair treatment of consumers is a broad concept that touches on and goes to the heart of every aspect of business.

Our financial institutions as well as their intermediaries will be required to comply with the fair conduct programme. Where more detailed obligations are required, regulations can provide more guidance, but at its core this is about ensuring institutions think about customers all of the time. This approach allows flexibility too. Rather than the Government or the regulator prescriptively laying out exactly what those concrete actions must be for every licensed institution, instead this approach enables each financial institution to determine what policy systems and controls make best sense for their business.

Industry may have concerns about overlaps of regulatory requirements, such as with the consumer credit legislation and whether this new regime will require businesses to duplicate different compliance activities. The conduct programme requirement allows financial institutions to take a coordinated and a flexible approach to different regulatory requirements.

The bill will also create the ability to prescribe regulations relating to incentives which financial institutions and their intermediaries will be required to comply with. These regulations will be the mechanism through which sales incentives based on volume and value targets will be prohibited, and this prohibition applies not just to licensed entities but also to all intermediaries throughout the supply chain. It’s also about any and all incentives, whether monetary, such as commissions, bonuses, or other non-monetary rewards like leader boards or trips abroad.

I’ve taken this approach because conflicted remuneration and incentives are one of the biggest issues driving poor outcomes for consumers in the financial sector. As the Australia royal commission found, in almost every case the conduct at issue was driven not only by the relevant entity’s pursuit for profit but also an individual’s pursuit for gain. This prohibition on target-based incentives will address the fact that targets create an increasingly strong incentive to sell and therefore can encourage the person making the sale to prioritise their own interests over those of the customer. This prohibition still allows people to be remunerated for sales, but removes the particularly problematic target-based remuneration.

The regime also contains strong civil pecuniary penalties if a financial institution or intermediary contravenes an obligation within the law. Compensation for affected consumers can also be sought by any persons. Officials have recently consulted with financial institutions about how the bill will work in practice, and I have heard concerns that industry have raised around certain aspects of the bill; for instance, how the framework of the bill works in relation to intermediaries, the requirements related to conduct programmes, and the timing for implementation of the changes, and we will be watching the select committee process very closely.

New Zealanders do need to be confident that the financial products and services that they are buying will be appropriate for their circumstances and meet their needs. By introducing this bill to improve conduct in the financial sector, we’re putting the consumer at the centre and helping banks and insurers to ensure trust and confidence in their industry. We will all benefit from a well-functioning finance sector that’s focused on the interests and needs of consumers. So I commend this bill to the House.

Thank you, Madam Speaker. As I rise to speak on this bill in its first reading, I just want to note that both the bill itself and some comments we’ve heard tonight—both on this bill but also in the one immediately preceding it—show that this is a Government that’s always on the lookout for perceived problems and that’s—

ASSISTANT SPEAKER (Hon Ruth Dyson): Sorry to interrupt—

You needed to do the thing, yes.

ASSISTANT SPEAKER (Hon Ruth Dyson): I forgot to say, “The question is that the motion be agreed to.” My apologies. Carry on, Mr Hudson.

Thank you. Well, we’ll get to whether we agree to the motion in a few minutes, I think. This is a Government that clearly is always on the lookout for perceived problems. Now, looking for problems itself is not necessarily a bad thing. The problem with them is that they see the solution to any problem, real or perceived, as more Government. More and more often, which is even worse, they see the solution for more Government as being regulation-making power, sidestepping the authority and role of this Parliament in the setting of rules, legislation, in this country. This bill is another example of precisely that.

I want to start by referring back to the work undertaken and the reports issued by the Reserve Bank of New Zealand (RBNZ) with respect to banks and by the RBNZ and the Financial Markets Authority together with respect to the insurance industry. Both of those reports make it very clear that they did not find many actual instances of bad behaviour. They didn’t find evidence, in many cases, that bad things had taken place. What they say they found was a lack of process and documentation to satisfy them that the conduct—the way the banks and insurance companies go about managing their business, and particularly through those sales channels—did not satisfy them that it looked robust enough for their purposes or for their desires.

Now, business controls are a good thing in any business, particularly a larger business. They help to ensure that the business is run well and that instances such as this, where they interface with customers, are run appropriately. But having come from, at least, actually, more than one multinational business in my history, I can tell this Parliament that when business controls take over, and the controls become the outcome in themselves rather than the governance of the behaviour or the actual business outcome, then they are merely an anchor on a business, creating enormous amounts of work and compliance activities and cost, and often—mostly, in fact—yielding no tangible benefit for the end customer.

Ultimately, because they add cost and effort and time, they add no real benefit—true benefit—to the business either. But what they do and why they come about and why more and more of them get layered on is because a group of people feel more confident within the business that they can prove that something was done the right way—the way they see the right way as being. Now, we need to be focused, across the economy but even here in our financial institutions, on making sure the outcome is right, that our institutions are offering products that are fit for purpose and that they’re fit for the customers that they are selling them to and that they behave appropriately in that process.

Now, arguably, that doesn’t need a whole rule book of processes and documents to evidence that. The Minister himself in charge of this bill actually saw through to conclusion the Financial Services Legislation Amendment Bill, which the previous National Government introduced, which had a very simple way of dealing with—well, I would argue—the exact matters he wishes to address in this bill. It placed a duty, an obligation, on those financial advisers to act in the best interests of the customer.

Now, you could achieve the same thing here with what he’s doing about what he calls his fair conduct programme simply by having a provision that the institution is responsible for ensuring that the actions of the institution and its employees and intermediaries are in the interests of the customer. There are already provisions to deal with transgressions such as under the Financial Markets Conduct Act, the provision for the company to be fined up to three times the gain made or loss avoided up to a maximum $5 million for such transgressions. They could do that. There you go. Don’t need a big, long rule book. Don’t need tons and tons of compliance, proof, and behaviour. Place the obligation on the institution. Make it clear that it applies to employees and how they want to do it with intermediaries. The tools are already there.

Because if an institution is going to suffer that sort of penalty for getting it wrong, they’re going to make sure they don’t get it wrong. If they’re going to suffer that sort of potential penalty, if one or more of their employees or intermediaries takes actions for personal gain ahead of the interests of the customer, which I’d argue are also actually the long-term interests of the business, then they’re going to make sure that they’ve got the management and process oversight to make sure it doesn’t happen.

And that flows on to the point I also want to spend some time on, which is this regulation-making power, which the Minister’s own words tells us pretty strongly is all about banning incentives. Well, first problem is it’s simply a blanket regulation-making power, which means that if we agree to this, then the Minister and their officials will fundamentally be able to decide at their whim what incentives can be curtailed or banned, what roles they can apply to at any time—any time at all. So it’s signing a very blank cheque for that sort of power-making to what, in effect, is officials, because this Government won’t argue with their officials on these sorts of matters.

But first of all, even the fact that the regulation-making power they want is far too powerful. The first problem with it is that it actually shows a lack of understanding of business, certainly in the Government, but I worry also with officials. Because here’s the reality—how are these businesses going to transact if they don’t have people actually selling their wares to customers? It’s how businesses operate. Whether they’re a product business or a services-based business, someone’s actually got to sell the offering to the client or customer. The reality is the people that put themselves in that position as salespeople tend to be people that value the risk and reward that comes with being successful. They tend to sacrifice some salary up front with the possibility of overachieving if they deliver against a set of sales targets—all of which should be, and normally are, managed by controls across the business, referring back to my earlier point about the obligation to act in the interests of the customer.

So this idea of regulating sales incentives to the extent that, one, the Government might ban some or potentially all of them simply cuts across a fundamental necessity of operating a business. Now, I met with a business in the industry. I won’t name them. They had voluntarily taken sales incentives from their own sales staff. Guess what happened? Sales dropped. Well, that comes as no surprise to anyone who’s worked in business. There are better and less onerous ways of ensuring an obligation to ensure the outcome that a customer is not going to be harmed simply because there is a person who may have some salary incentive to sell certain products.

Also, to that point, of course, which worries me deeply because I’ve heard this before—the Minister tonight said that the sales incentives they want to ban are the ones that are based on volume or value. Well, here’s a challenge which backs up my immediate previous point. I challenge anyone to name me a sales incentive that is not either based on value of sale or sales or volume. It’s fundamental. So if his intention is to ban sales incentives to do with volume or value, he’s basically just said to us all his intention is to ban every sales incentive he possibly can. It’s ludicrous.

There are better ways to deal with this. There are better ways to ensure that businesses are transacting and behaving appropriately with their customers. I fear that this is rooted in this belief on the other side that if you’re doing something for profit, you’re bad, and if you make profit, it only comes at the expense of doing over your customer. That is not the case in the real world, at least. It might seem so in some of the hallowed halls in this place, but it’s not the case in the real world. The simple solution, as I have said, would be to place an obligation of the best interests of the customer certainly on the institution—it could be done down to an employee or someone with a sales incentive—and then let the mechanisms and the penalties which exist in our law today cover that. Get it right. Get the penalty right. Every incentive will be there for the business, its management, and the employees to act—

ASSISTANT SPEAKER (Hon Ruth Dyson): I’m very, very sorry to interrupt the member, but the time has come for the House to adjourn for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

Well, this bill is actually a lot like the Prime Minister’s speech today: very, very long on promises and good intentions, but woefully let down in the execution. We’ll be constructive on the select committee, but we will not support the bill in the form it’s currently in.

I’m delighted to hear that the Opposition will be constructive on the select committee. I know that the promise that Mr Hudson has made is a sincere one because in the recent firearms legislation bill that we’ve worked on together on that particular committee, that has indeed been a very constructive relationship. So I’m sure there will be a constructive relationship on this bill.

This bill seeks to regulate the conduct of financial markets institutions, and Mr Hudson in his speech raised a couple of interesting points and they’re related. He said, first of all, that on this side of the House we perhaps didn’t understand the need for businesses to make a profit and that we felt that making a profit was a bad thing. I reject that view. What we want to be sure of is that businesses make a fair profit and that businesses make a profit in the service of their customers, not at the expense of their customers. We all know that trade benefits both or all partners, but unfair trade exploits one partner.

What we want to make sure of is that there is fair trade between institutions and their customers, and Mr Hudson raised the point. He said, “Was there any evidence, really, that, in fact, there had been problems with financial institutions, and, in particular, the financial institutions of the sort that are being dealt with in this bill?”, and the answer is yes, there have been problems. In particular, there’s some really interesting evidence around so-called soft commissions.

Now, a soft commission is when we’re talking about individual consumers—retail consumers like you and me. They are commissions where the person, the employee—the member of the institution—is paid, not necessarily in hard dollars, but in a benefit. In particular, an overseas trip might be the reward for selling a particular number of financial instruments—a particular number of KiwiSaver memberships, a particular number of insurance policies, or a particular number of investment schemes.

It turns out that in May 2018, the Financial Markets Authority looked at soft commissions in the life and health insurance industry, and these people are quite hard-nosed. They concluded that soft commissions were effective sales incentives for financial advisers. They found that a higher value of these soft commissions was related to higher sales incomes for insurers. They found that increased spending by insurers on soft commissions appeared to relate to increased sales—perhaps by only a small amount, but it was there. The qualification date for trips overseas appeared to coincide and to correspond with a peak in sales. When one insurer removed their overseas trips as a sales incentive, their sales dropped by about a third—so that’s quite significant—but only 42 percent of commissions required the adviser to sell a particular number or a value, so there was a real incentive going on there.

It’s a tricky problem. Of course we want to motivate people to do their jobs and to do them well, and of course, in a sales-oriented industry, making sales is critical. But at what point does a commission provide an incentive, so that instead of selling the customer a product they genuinely need or a product that will genuinely serve them, the real service that is performed is the commission that is paid to the sales agent? That’s a very tricky point to judge.

Now, this bill does not set out to make that judgment in itself, but it does require institutions to set up rules for themselves as to how they will conduct themselves to set up understandings in institutions as to what is a reasonable way to remunerate sales staff and what is not. I think it is worth remembering that, in terms of these so-called sales staff, in some institutions these are bank tellers. They are financial advisers. Their objective is to help a customer or a client to structure their finances as best possible, but their advice is being skewed by the presence of a commission. So how do we get institutions to regulate that? Well, we invite them to think about them themselves, and this is what this bill does.

Now, I agree there are some pretty complex issues in this bill, and I think it is worth spending our time discussing it at select committee as to whether or not this will be effective and as to whether or not the rules will actually work in the way in which they are intended. I know from my previous experience of working with people across the aisle, such as Mr Hudson and Mr Young, who are interested in these sorts of areas, that we will have a constructive and reasonable discussion about it. But it is a discussion worth having, and that is why I commend this bill to the House.

Thank you, Madam Speaker. I have so looked forward to speaking on this nonsense bill. It’s obvious to me that the Government have a very low legislative programme and they have thought, “What can we do to fill the Order Paper?”, and here we are. We have a bill that’s addressing a problem that has been predominantly in Australia that the Reserve Bank and the Financial Markets Authority (FMA) looked at in New Zealand and could not find anywhere near the same problem. They saw some areas that could need some work on, but to bring a piece of legislation into the House to do that is, I think, essentially filibustering by this Government.

Can I say, one of the goals of this bill is to protect the interests of the consumer, but it was probably less than two years ago that this House passed a bill called the Financial Services Legislation Amendment Bill. The purpose of that bill required all people who give regulated financial advice to comply with standards of ethical behaviour, conduct, and client care. So what we are doing today is Groundhog Day—we’re doing the same thing two years later because this Government doesn’t have a strong legislative programme. We are repeating what has already been achieved.

It’s quite interesting, because one particular firm who I respect—Chapman Tripp—analysed this bill, and they said this. They said that you have to be very careful regarding this bill because “The proposed legislation regulates the banks, insurers and non-bank deposit takers which are already subject to registration and licensing regimes under [the Reserve Bank of New Zealand]. Care will need to be taken to ensure that the further licensing obligations under the FMCA are streamlined, the licensors are co-ordinated and the obligations are consistent and not duplicated.”

So this bill that was passed within the last couple of years, the Financial Services Legislation Amendment Bill, was to bring those elements of care to clients regarding commission payments—that if somebody was going to receive a remuneration from selling a financial product, they had to disclose it and they had a limitation to declare that there were other similar products out there in the market place. So somebody couldn’t say, “You’ve got to have this; this is the only product that you need to have and I’m here to sell it to you.”

So it’s interesting that if you go to the FMA website—and they make this comment about the Financial Service Providers Register, which the bill established two years ago—they said, “All financial service providers in New Zealand must be registered on the Financial Service Providers Register to legally provide financial services. There is a requirement to also be licensed by the FMA or the Reserve Bank to provide some financial services. Financial service providers include financial advisers, brokers, building societies, credit providers, credit unions, money changers, finance companies, foreign currency exchange dealers, fund managers, insurers, investment portfolio managers, issuers, and registered banks.” So there’s already a regime in place put in by this Parliament to protect consumers, and, by law, registered banks need to register as a financial service provider. When we look through this bill, all it does is exactly the same thing. It’s Groundhog Day.

Chapman Tripp went on to say, “However, significant costs are expected to fall on banks, insurers [and non-bank deposit takers] and their intermediaries selling products to retail customers. Compliance costs are expected to be moderate to high as noted by the Ministry for Business, Innovation and Employment in their Regulatory Impact Statement. Further, administrative and enforcement costs to the Government and the FMA will be significant.”

Every head on the other side is looking down at their desk. Why? You should be embarrassed. Minister Faafoi, you should be embarrassed. What you are doing is already being done. You’re wasting this House’s time. You’re putting further expenses upon customers in New Zealand for elements of protection that are already being put in place and that the FMA and the Reserve Bank already have oversight over.

I don’t need to say anything else. I think I’ve said enough. I think that what we see here is a bill that is a duplication, and that’s why we don’t support this bill.

Thank you, Madam Speaker. It’s a pleasure to stand in support of this fantastic piece of legislation despite the moans from the Opposition there. Just an observation of the argument made by the previous speaker, Jonathan Young: first of all, he said that National had already brought this legislation in, it’s already done, there’s no need to do it any more. And then he says, “And by doing this you’re going to add extra costs and you’re going to ruin the industry,” after saying it’s already been done. Then the speaker before him, in the Opposition, Brett Hudson, talked about incentive for sales. Now, I have sympathy for that. You do need good incentives in terms of sales. But I loved what Dr Russell said in terms of actually what we want to do is talk about sales that are consumer focused, that are fair, and that are not profit gouging from our New Zealand consumers.

What the Opposition speaker previously failed to realise in his argument, when he said there were no problems in the insurance or financial services industry, was kind of an asymmetric information breakdown between those parties of the contract. All that fundamentally means is that when a person sits down to sign an insurance contract, for example, or takes financial advice from an expert, they are at a disadvantage in terms of the information in front of them. Particularly with insurance contracts, it is not written in for the layman and it becomes incredibly confusing. And that’s just in that moment. That’s just that time and place where a normal person in a household is trying to figure out what insurance they need to look after their livelihood, their health, and protect their income. Never mind the lack of information that person may have on the history of that financial or insurance institution and whether or not they have a history of serving their customers well—to what degree have they let their customers down, to what degree have they sold insurance products to people with disabilities when those very products exclude the disability that that person has in the insurance contract? I mean, that’s still what this House is trying to deal with today.

So, to the members opposite, I know that more needs to be done. They are an essential part of modern life. We’re dealing with banks, we’re dealing with financial advice, and we’re dealing with insurance companies, but what we have seen recently—and we have seen it in New Zealand; in fact, the previous speaker himself said that it wasn’t as bad as Australia. Well, Australia was diabolical and there were huge problems that needed to be rectified and the Government there put a heavy foot in to change those markets to make sure those organisations were looking after their consumers. I put it to the House tonight that to ask those institutions to put their consumers first—their customers at the forefront of their business model—is not unreasonable at all. In fact, as one of the previous speakers said, long-term benefit to that kind of organisation is good; that’s good business practice. But then we come back to this conversation about asymmetric legislation.

So this is what this legislation is fundamentally about. We’ve had reviews of New Zealand banks, life insurers—in 2018, a joint one from the Reserve Bank of New Zealand and the Financial Markets Authority—that there is a gap in our regulatory settings and there is currently no explicit legislated mandate for the regulation of general conduct of financial institutions despite what the member previous claimed in the House in his contribution.

I’ve spoken for longer than I intended. This is a sensible piece of legislation. It is about protecting consumers and customers. It is about making sure that those undertakings that we would all expect are fair and reasonable and have the customer at the forefront of an organisation’s thinking. So I very much support this legislation this evening. Thank you, Madam Speaker.

Thank you, Madam Speaker. It’s a real pleasure to rise to speak for the first time in 2020. Although, I did actually have a question—this is the first time I’m actually speaking on a bill. I am, with my colleagues on this side of the House, opposing this bill. To give the reasons, I’ll actually give a little bit of a background; I think other members have actually started to do that.

The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry in Australia actually found widespread abuses within the financial sector, which has actually led to a raft of legislative and regulatory changes in Australia. In New Zealand, following that royal commission, the Reserve Bank of New Zealand as well as the Financial Markets Authority launched its own review into the conduct of our own banking industry, the financial services sector, and the insurance sector. What they found was that there were some concerns, some small number of conduct issues related to poor conduct by bank staff, but it wasn’t a widespread misconduct like the one that they actually found in Australia.

So, in terms of this particular bill, I am a little bit baffled as to what Fletcher Tabuteau was actually talking about in terms of why we need this bill when my colleague Jonathan Young had earlier said that in this very House we had passed legislation within the last two years that actually deals with some of these issues. When someone now deals with a financial institution, a bank, or an insurance company, what they do is that they now have to be registered. There are plenty of warnings but this bill doesn’t actually sort of go into the issue. We already have that in place where bad behaviour and bad advice can be dealt with.

This bill doesn’t actually deal with, I guess, something called caveat emptor or buyer beware. There is always this issue when someone is purchasing a financial product or an insurance that they should really read into it. Fair enough that there are some financial literacy issues that we have in this country; we need to improve some of this. But I’m not so sure if there’s another piece of legislation or regulation that needs to be introduced to deal with something we’ve already dealt with, which is already in place.

Earlier Dr Deborah Russell also gave an example of the sales incentives and the commissions that she was apparently particularly concerned about. I think when there is bad behaviour we all are concerned about it, but one of the examples that she actually gave was that there was an increase in sales which was correlated with the increase of overseas trips. I wonder if she actually really believes that that example that she gave was, in fact, proof of misconduct or the fact that there was harm created to consumers. I’m not so sure what that example was supposed to have been. It just goes to prove that this Government has no concept of business, that sometimes incentives for salespeople who actually—I mean people have to sell products. Salespeople are very good at selling products, and often they do not take a salary. Often they are on a very bare sort of contract that gives them some sort of an incentive payment for the amount of sales that they actually make. That does not equate or does not actually mean that these people are selling a bad product, or that their behaviour or the very fact that they are very good at sales does not mean that they’re actually creating harm for the consumers, or that there is, in fact, misconduct actually happening.

Of course, all of us in this House are concerned if there is bad behaviour happening in the market place, or that banks or institutions like insurance companies are actually behaving badly, and we want to make sure that we protect consumers to make sure that they’re getting a fair deal for the purchases that they actually make. However, often when businesses are wanting to make a profit, they need to make sales; salespeople also need incentives. This bill actually allows the Government to create regulations, which in fact, could lead to a ban on salespeople. I’m not so sure if that is, in fact, a good idea.

I think a long time ago someone said something about using a sledge hammer to hammer in a little nail. I think I don’t know what that, you know—

💬 Stuart Smith: Crack a nut.

Cracking a nut. I think when you need a very small instrument to actually fix a problem—I think this Government is trying to introduce a massive ban on something that does not prove that they are, in fact, a bad thing for the market place. I stand with my colleagues on this side of the House and oppose this bill.

Tēnā koe e Te Māngai o Te Whare. I am very pleased to speak on the Financial Markets (Conduct of Institutions) Amendment Bill and support it on behalf of the Green Party.

The members of the Opposition seem to have their eyes wide shut. They seem to be unaware of the need to have a much greater standard of fairness in the financial sector, as Deborah Russell alluded to. Yes, there is already a licensing regime, which the Financial Markets Authority can administer, but what this bill does is build on the results of the Australian reviews and the reviews which have been done in New Zealand, which highlighted that issues like incentives, which were based around targets to sell particular volumes or to sell to a particular value, which rewarded the adviser with trips overseas, soft rewards like that, ended up being to the detriment of the customer and focus more on benefiting the sales adviser rather than benefiting the customer. They resulted in, as one of the reviews showed, a tetraplegic being sold life insurance which excluded tetraplegia; so it was, essentially, meaningless.

This Government is about fairness. I find it extraordinary that members of the Opposition are siding with the big people, the banks, the big insurers, and not with the consumers. We all want financial markets which are fair. What this bill does, by providing a regulation-making power, is not using a sledgehammer to crack a nut but is ensuring that we have a fair market so that people can trust, and if people trust the markets they are involved in because it’s got a good regulatory framework, they are more likely to buy those services rather than being vulnerable to exploitation. We know that these contracts are very complex, that there is not a high degree of financial literacy in New Zealand, and because of that people can be exploited. So this bill is about ensuring that we manage those risks, that we have greater accountability, and that we have an ability to enforce fair conduct and good conduct.

The National Opposition did pass some legislation, but like everything, it did not go far enough. This, through using the licensing system that already exists, through using the ability to pass more regulations, will ensure a much stronger standard of fairness throughout our financial markets. The Green Party is pleased to support it.

Thank you very much, Madam Speaker. It’s great to have my first speech in the House for 2020. Unfortunately, it’s not on a particularly good bill, but that’s been well covered by my colleagues.

Going back to the New Zealand First speaker earlier who spoke quite a bit about the lack of symmetry or an asymmetrical imbalance in terms of knowledge, there will always be, in a transaction, an asymmetry in knowledge. The seller always, almost always, will know more about what they’re selling, about that product, than the buyer. That is just commerce every day. Now, to try and balance that up by putting in this overbearing regulatory regime is just nonsense.

We have caveat emptor as my colleague mentioned before—the buyer beware. People have buyer’s remorse all the time. They buy something as little as a pair of jeans, perhaps, or as large as a house, a big transaction, they can then have buyer’s remorse the next day or in the coming days and have all sorts of regrets about that purchase. It seems a lot of that thinking is rooted into this bill.

When we go back to the commission that looked at the banking in Australia and then the inquiry that was held here in New Zealand, yes, they found some issues in there. The main issue was there was a lack of documentation. It didn’t satisfy the inquiry as to what the documentation around those transactions was, not necessarily anything further than that. This is such an overbearing reaction. It shows a lack of understanding of commerce, it shows a lack of understanding of business, and I certainly am very suspicious of anyone going down this path. I always think back to, you know, the devil makes work for idle bureaucrats. That seems to be what they’ve done here, try and find something to fill out their legislative programme because they didn’t do the work when they were in Opposition to do some policy research. Fortunately, we aren’t falling into that trap.

I just go back to the pursuit of profit. It is absolutely in a transaction. The seller is trying to maximise the price and the buyer is trying to minimise the price; that is how a transaction happens every time. This seems to be a surprise to people on the other side of the House. This legislation won’t change that. In fact, what really worries me about it is the regulation-making powers, which as my colleague said, may even allow them to seek to ban sales altogether. It is just a nonsense. This bill deserves to go in the bin. I’ll be voting that way.

Right, so this is a split call.

Madam Speaker, thank you for the opportunity to take a call on the Financial Markets (Conduct of Institutions) Amendment Bill—my second speech in the House this year. We’ve heard from the Opposition that they’re not voting for this bill because it regulates companies to comply with ethical behaviour. Now, I think there’s some confusion over there, because wouldn’t we want companies to comply with ethical behaviour? And those were the exact words that came out of the mouth of one of the Opposition members. So I think the Opposition members do need to have a little bit more of a think about this.

Look, there is an imbalance of power between financial institutions and consumers—and, yes, in most cases, the seller does have more knowledge than the purchaser—but trust and confidence in our financial sector is a vital part of our economy, and even if the members opposite don’t believe that we need balance or that we need fairness, surely they believe that our financial sector must be strong and stable. If there is no trust and confidence in these services that are provided, then we could have a whole lot of people not taking out life insurance, for example, and something like that, you know, could have a disastrous effect on our economy potential. So we need trust and confidence and, at times, the Government do need to provide some regulation to ensure that stability.

This has stemmed out of recent reviews into banks and life insurers—and the Green Party member mentioned one of the reviews in Australia, which quite clearly showed up that we do need some regulation. Just to close, this is actually a win-win for banks and institutions and consumers, and the reason it’s a win-win is because it creates confidence and trust in the financial sector, and that’s what we need for our country. Thank you.

Thank you, Madam Speaker. It’s my first opportunity to speak in the House this year as well; so can I just welcome everyone back. It’s wonderful to be here. I will just be taking a reasonably short call this evening, though, for two reasons: first of all, because I think my colleagues over this side of the House have laid out very well the reasons that we won’t be supporting the bill, and, secondly, because I’m conscious that Mr Ian McKelvie is due to speak after me, and I’m sure everyone will be looking forward to that. So I’ll just take a very short call.

I am quite interested in this bill, though, and particularly the history of it, because prior to coming to Parliament, for a short time I did work in banking and so I am aware of some of the history behind the bill and certainly what happened in Australia. So what interests me is that obviously the Australians went off and did their royal commission, found a large number of systemic problems in the Australian banking system, and so following on from that New Zealand regulators and agencies went off and did their own review. And what they found actually was that there wasn’t this level of problems—anywhere near the level of problems—that exists in Australia.

So it was quite interesting to hear from Minister Eugenie Sage earlier saying that this bill builds on the review that was done in Australia. This intrigues me because what they’re, essentially, doing is saying there’s a problem in Australia; therefore, we need to legislate in New Zealand. That to me really is suggesting that we’re creating a solution to a problem that doesn’t actually exist in New Zealand, because what they found was that they said there’s a small number of conduct issues related to poor conduct by bank staff but not widespread misconduct or culture issues like in Australia. So, again, nowhere near the level of problems that they see in Australia.

We do support some of the aspects of this bill. There are some important issues in it, and we do support, of course, a strong banking conduct framework, but where I think they go too far is in relation to setting rules for sales incentives by regulation. There’s two important parts to that, and the first one of those is that we said it’s heavy and disproportionate to, essentially, hand a power to Government to say that there could be a blanket ban on any sort of sales incentives and, in particular, my colleague Melissa Lee has laid out the concerns that we have in relation to that. The second important point is actually that it’s taking away the power of Parliament to do that and giving it to a Minister to set by regulation and so there’ll be no scrutiny of that decision by Parliament, and that is pretty concerning to me.

I do want to just touch on what the effects of that will be, and actually that’s laid out quite well in the regulatory impact statement, which talks about the fact that the bill could lead to more expensive financial products and services, for instance, if costs are passed through to customers. My concern around that—and to me it really sums up what this Government does actually—is they come in and they think, “Oh well, look, here’s potentially a problem that we need to fix.”—or in this case, probably not a problem at all—“So what we’ll do is we’ll put a whole bunch of new costs on to businesses or on to farmers or on to landlords, whoever it might be, whatever industry they decide to pick on.

They think to themselves, “OK, well, this, of course, will have no effect. There’ll be no effect of doing this.” But of course, as we know, there is an effect because all of those costs just end up getting passed on to the end-user—in this case, the customer or the consumer. So when Eugenie Sage earlier today said that we are siding with the big guys, siding with the big guys by not voting for this bill, well, actually, Ms Sage, we’re not siding with the big guys; we’re siding with the customers. We are siding with the consumers who, ultimately, have to pay more as a result of this bill.

I’d just like to correct that previous speaker, Andrew Falloon—that we’ve had an inquiry into New Zealand. What Australia had was a royal commission of inquiry with the ability to summons people to the inquiry, and anyone who has been subject to a commission of inquiry, particularly a royal commission of inquiry, will understand they leave no stone unturned. In New Zealand, what happened was the Financial Markets Authority and the Reserve Bank wrote to the banks and asked them if they were engaging in the sort of behaviour that the Australians had done. Funnily enough, they said they weren’t. Well, that was our commission of inquiry—a good old Kiwi one.

I was once the chair of a mortgage company, and that was in the good old days when the margin between lending and borrowing was around 400 percentage points, or 4 percent. Now, when that existed, and that was the financial regime which existed, and no one really needed to do this sort of thing because everybody was making so much money, virtually overnight, the percentage went down to less than 1 percent. When we exited that particular product, we were actually getting less than 1 percent, or 100 basis points, between borrowing and lending, and the reason we exited was the only other way we were actually going to be able to continue to make money was on value-added products like insurance, etc. What quickly became clear was that we were going to have to incentivise a lot of people for us to make any money and the only people who were going to suffer were going to be our customers. So we exited. So I have a firsthand account or experience of that change in incentive.

So this is a very essential piece of legislation. Nobody in banking is a particularly bad person. Nobody in there is out to rip anyone off. What they’re doing is doing what humans do: they are out there to make a living the best way they can. Some people sell drugs because it’s the only way they can make a living. The authorities—the State—stop them from doing that and so it is essential that just the ability, the desire to make money, the need to make money is not by itself a reason why the State, the regulator, should not become involved. The more incentive there is, the more there will be an incentive for those to actually act against the interests of everyone else in the industry, and that’s exactly what happened in Australia and there’s no reason to expect that largely it hasn’t happened in New Zealand. This is to ensure it doesn’t happen. This is to ensure we protect New Zealand customers. I commend this to the House, Madam Speaker.

Thank you, Madam Speaker, and I will be brief because most of the extremely valuable stuff I was going to introduce to this debate has been introduced already, but I can’t resist but to comment on a couple or three comments from Government members who’ve already spoken. And I want to start with the last one, Greg O’Connor, who I think vastly or grossly underestimates the diligence of our Reserve Bank Governor. I wouldn’t want to be on the end of one of his letters. I think that might be a bit testing. So that’s the first thing I want to bring up.

The second thing I want to talk about was something that Fletcher Tabuteau raised with relation to this bill as well. He talked about the gaps in the legislation. Well, the unfortunate thing about legislation is every time we create a piece of legislation, we create another gap. So you can’t plug gaps in legislation with more legislation.

And the third thing I want to comment very briefly on is that I sort of didn’t really like the comment that Jamie Strange made. I thought it was rather a strange comment, in fact, where he accused us of opposing a bill that encourages ethical behaviour. I think we’re really opposing a bill that, in my view, is liable to lump costs on the very people that it’s designed to protect, and I think that’s the issue that I have personally with a lot of the legislation—not just this piece of legislation; the previous Government passed some pieces of legislation which have proved to be extremely expensive for those people that we’re trying to protect as well. So we have a habit in this House of passing legislation without fully understanding the ramifications of it and making sure that what we do is going to in fact achieve what we want to achieve without imposing extra pain on the people that we deign to protect.

Now, there’s a couple of other things I want to comment on, and it’s very interesting, because I do think that some of our sales habits—or some of our incentivising of sales—over the years has been suspect. I myself have been involved in the motor industry for a long time, and we had some very odd and unfortunate sales incentives set in that industry at times, which actually cost the industry a lot of money. That’s what almost always happens with poorly designed sales incentives. They almost always backfire on the industry in the end.

The other comment I wanted to make was around education. I think, rather than keeping passing bits of legislation to protect people from other people, we’d be much better to introduce a whole lot more education into our system around financials and how people should manage their lives. I don’t think it would be that hard. I know education’s a touchy subject and I shouldn’t be talking about it in Deborah Russell’s presence, but education, for mine, would overcome a whole lot of issues we have with these kind of rules that we’re trying to put in place with legislation like this.

Some of these transactions are quite complicated. We’ve seen a number of cases of very complicated banking arrangements that have ended up in court and ended up with people being repaid money and all sorts of things over the years, because they are complicated. Even very simple transactions are complicated. So I think it’s important that we get more education for the system.

We aren’t supporting this bill, not because we don’t think those people that it purports to protect need protecting but because we think it’s a completely inadequate piece of legislation and partly already covered. So thank you, Madam Speaker.

Tēnā koe e Te Mana Whakawā. Ngā mihi nui. It’s good to be here in this new year. Look, this is a really important piece of legislation. Stuart Smith stood up before and talked about caveat emptor and then made a quite unusual comparison between buying financial services and buying a pair of jeans. I just want to pick up on that, because, when you buy a pair of jeans, you see exactly what you get—although, having seen his attire, perhaps he didn’t look closely enough. When you’re buying some insurance product, you’re buying something which is entirely impossible to understand exactly. You’re buying a promise—you’re buying nothing more than a promise—that a faceless company will do good and indemnify you—will make up any losses that you suffer.

The document—and let’s be honest: who’s read cover to cover their insurance policy? I suggest—[Dr Deborah Russell raises hand] Perhaps Dr Deborah Russell, but no reasonable person. The fact is we take it on trust that the insurance company has written fair and reasonable terms. Then, when a claim comes along, all of the power is in the hands of the insurer—as Stuart Smith should know, given his electorate. So, in fact, we’ve got a situation where we’re buying a product. We don’t actually know what it’s going to deliver. We don’t know when it’s going to deliver it or whether the insurer will stand behind it when the time comes and deal with this fairly. And what does this bill do? What’s its central precept? That when selling these products—these complex products—the interests of the consumer should be taken into account.

We’ve heard that old term “caveat emptor” bandied about by the other side. There’s a reason that it’s Latin and hasn’t been used for 100 years: it’s because it’s a pretty useless term. What it means is it’s a licence to cheat, to manipulate, to misrepresent, and, basically, to rip the other side off if they’re not as smart as you are. Frankly, the law has moved on, and I’m glad to see it. That is why we have a bill like this, which is here to protect consumers, to impose a duty on insurers and other financial service providers to take into account and take care of consumers. It’s how it should be—a great bill. I commend it to the House.

on behalf of the Minister of Commerce and Consumer Affairs: I move, That the Financial Markets (Conduct of Institutions) Amendment Bill be reported to the House by 23 June 2020.

Motion agreed to.