The Anti Avoidance Provision (RG273.180 - RG273.186) has been designed to ensure that the policy intent of the Best Interests Duty (BID) reforms are not avoided through industry or transaction structuring. Ultimately, you must not seek to avoid the BID legislation / conflicted remuneration bans through any form of scheme / actions.
What is it?
ASIC have stated that nothing in RG 237 is intended to create a ‘safe harbour’ for mortgage brokers in meeting their new obligations.
To further ensure this is the case, brokers cannot purport to contract out of the Best Interests Duty via any scheme or conduct under the Anti-Avoidance Provision in Section 158T of the National Consumer Credit Protection Act 2009 ("NCCP"). Brokers found to have breached the Anti-Avoidance Provision may be liable for a civil penalty under the NCCP.
ASIC has provided further guidance that brokers cannot avoid the BID obligation by any notice or disclosure provided to or signed by the customer, nor attempting to comply with the obligation by procuring the customer to consent to credit assistance or a conflict of interest (RG 273.14).
This means that you are bound by law to adhere to the Best Interests Duty and Conflict Priority Rule and that you cannot seek to avoid these obligations through gaining a customer’s consent to do so.
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