The Commonwealth Treasury


COMPENSATION FOR LOSS IN THE FINANCIAL SERVICES SECTOR ISSUES AND OPTIONS September 2002

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Chapter 7: Market licensees

The purposes of this Chapter are:

  • to ask whether market licensees should be required to make compensation arrangements;
  • to assess the various compensation arrangements required of market operators and to question the current requirements;
  • to ask, if market licensees are to continue to be required to have compensation arrangements, what shape should they take;
  • to raise the question whether consolidated market arrangements are justified; and
  • to ask whether any obligation to make compensation arrangements on prescribed clearing and settlement facilities (through which uncertificated financial products are transferred) is justified.

A: Should market licensees be required to make compensation arrangements?

History

194. It can be seen from the summary of the origins of the National Guarantee Fund in Attachment C that, at least in the case of the Sydney Stock Exchange, the decision to establish a fidelity fund was made as a means of protecting its reputation and discouraging regulation following the collapse of a broking firm.

195. Fidelity funds were subsequently required in several jurisdictions by legislation in 1970 and 1975 and in all jurisdictions by the Securities Industry Act 1980 and its successors. The National Guarantee Fund was created in 1987 from the amalgamation of a proportion of the fidelity funds of the capital city exchanges. The relevant provisions were re-enacted in 1989, amended in 1990-94, re-enacted in 2001, and retained in substance in the Financial Services Reform legislation.

An assessment of the general features of current Australian compensation funds

196. The ASX's National Guarantee Fund and other Australian exchanges' fidelity funds fall under this heading.

197. The advantages of these funds are:

198. We also note that the International Organisation of Securities Commissions' Objectives and Principles of Securities Regulation contemplate that investors in securities markets will have access to compensation for improper behaviour.51

199. The disadvantages of requiring these arrangements are:

200. In summary, market compensation arrangements, while potentially covering the same events as a professional indemnity insurance policy, offer greater comfort to the client by providing both a decision-making process and a source of funds. This is provided to all clients of stockbrokers in the case of the National Guarantee Fund, and, in the case of markets other than the ASX, to retail clients (once the market transitions into the new Chapter 7 compensation regime).

CASAC's view

201. CASAC concluded that the compensation arrangements in new Chapter 7 of the Corporations Act:

202. The difficulties are indicated by the relevant provisions of Part 7.553 which seek to establish the necessary connection with a particular market. In the absence of such a connection, the client is left to rely on the section 912B compensation arrangements. (An alternative would be to require the market compensation scheme to cover eligible claims arising from the whole of a participant's securities business, for example.)

203. CASAC considered54 that the Financial Services Reform compensation arrangements could be confusing for retail clients, particularly if a client had to seek compensation from several different schemes in the event that the insolvent intermediary traded on that client's behalf in various markets. It could also create inequalities, to the detriment of investors if different eligibility and recovery criteria applied in different markets.

204. Further, CASAC pointed to:55

Questioning the current requirements

205. There are further arguments against requiring market licensees to maintain compensation arrangements:

206. While there are difficulties with the current market compensation requirements, there are also reasons to consider retention of market-based compensation arrangements including:

207. Retail investors on the ASX may wish to consider whether alternative proposed compensation arrangements will provide comparable protection. We note that while there has been only one stockbroker insolvency since 1993, there has been an increased number of claims against the National Guarantee Fund for unauthorised transfer.

208. If market operators were no longer required to make compensation arrangements, and the element of the National Guarantee Fund attributable to clearing house support were paid out,57 there would be no further function for the National Guarantee Fund and it would presumably no longer provide funds for the financial services development account. This leads to the question what would be done with the remaining funds - see secondary issue 15. It is likely that the exchanges would oppose them being used as the basis of any statutory fund of broad application - see paragraphs 250 to 254.

Principal issue 8

Should market licensees continue to be required to make compensation arrangements (as they have in the past and are in Part 7.5)?

B: If market licensees continue to be required to make compensation arrangements

209. If the obligation to make compensation arrangements were to continue to be imposed on market licensees, what changes from the current Part 7.5 would be appropriate? — for example:

210. A number of other issues of relevance here are discussed in Chapter 10. They include subrogation and capping.

Principal issue 8(a)

If market licensees are to continue to be required to have compensation arrangements, what changes to the current Part 7.5 should be made?

C: A consolidated market scheme?

211. A cross-section of international schemes are summarised in Attachment D and some conclusions reached from consideration of these schemes included at paragraphs 239 to 240.

212. Consideration of the various international schemes leads to the question whether a consolidated market scheme would be justified. This would involve amalgamating the existing market arrangements into a single statutory scheme.

213. On the one hand, this would address the issue of responsibility where the licensee participates on several markets and may assist in resolving what to do with the existing National Guarantee Fund and SFE fidelity fund. In addition, if sufficiently similar to the current arrangements, it would provide an assurance of continuity for clients of market participants and it would provide a scheme comprehensible to overseas investors.

214. On the other, such a scheme treats clients of market participants or transactions undertaken on formal markets as requiring a higher level of protection. While they have been treated this way for some time, without further argument it would appear to be inconsistent with the theme in the Financial Services Reform Act of harmonised regulatory treatment across the financial services sector. Further, depending on the governance and structure of such a scheme, it may be seen as involving Government assumption of responsibility more properly borne by market licensees.

215. It also involves many of the issues of any broad statutory scheme — see Chapters 8 and 9.

Principal issue 8(b)

Is there justification for a consolidated scheme for financial services licensees who are market participants?

D: CS (clearing and settlement) facility licensees

216. In the context of secondary sales, financial services licensees hold (or have authority over) financial products and the money of clients largely for the purpose of settlement. With developments in this area, some licensees will offer services in relation to clearing or settlement and may not be participants on a licensed market.

217. Unauthorised transfer is relevant to certificated and uncertificated securities. It is particularly relevant in relation to uncertificated securities transferred through a prescribed CS (clearing and settlement) facility under Division 4 of Part 7.11. In this case, the mechanism is solely within the control of the CS (clearing and settlement) facility licensee, not the market operator. Indeed, the relevant transaction may have been entered into off-market.

218. Currently, there is only one clearing house with this capacity — the ASX Settlement and Transfer Corporation Pty Limited, which was the `Securities Clearing House' of Chapter 7 of the Corporations Act prior to the commencement of the Financial Services Reform Act.

219. Compensation for losses arising from contravention of the Securities Clearing House rules regarding cancellation of certificates, and unauthorised transfer of securities was provided by the National Guarantee Fund,58 and continues to be available under new Chapter 7.59 (This protection does not require conscious wrongdoing on the part of the Exchange participant — the fraud may be perpetrated by another.)

220. However, the new Chapter 7 includes the capacity for other clearing and settlement facilities to be prescribed for this purpose and hence also to facilitate the electronic transfer of legal title.

221. As indicated above, there have been an increasing number of claims against the National Guarantee Fund on the ground of unauthorised transfer since 1997. In addition, there is clearly a need to maintain confidence in uncertificated systems.

222. On the other hand, traditionally clearing houses have not supervised the conduct of participants except to the extent that it relates to risk to the facility.

Principal issue 9

Should prescribed CS (clearing and settlement) facility licensees be required to have compensation arrangements in relation to unauthorised transfers/certificate cancellation? or some wider conduct?

51 See para 4.2.1 of the Objectives which are on IOSCO's website - see www.iosco.org.

52 CASAC Consultation Paper page 4.

53 Section 885C (the losses to be covered) and section 885D (certain losses that are not Division 3 losses).

54 CASAC Consultation Paper, page 6.

55 CASAC Consultation Paper, page 6.

56 Part 7.2.

57 Under section 891A.

58 Divisions 7 and 7A of Part 7.10 of Chapter 7 prior to the Financial Services Reform Act.

59 See Division 4 of Part 7.5 and relevant Corporations Regulations.