The Morrison government has introduced the National Consumer Credit Protection Amendment (Mortgage Brokers) Bill 2019 – containing a new bests interest duty obligation on mortgage brokers, as recommended by commissioner Kenneth Hayne in the final report of the banking royal commission.  

The bill states that brokers “must act in the best interests of consumers when giving credit assistance in relation to credit contracts”, meaning:

• Where there is a conflict of interest, mortgage brokers must give priority to consumers in providing credit assistance in relation to credit contracts.
• Mortgage brokers and mortgage intermediaries must not accept conflicted remuneration – any benefit, whether monetary or non-monetary that could reasonably be expected to influence the credit assistance provided or could be reasonably expected to influence whether or how the licensee or representative acts as an intermediary.
• Employers, credit providers and mortgage intermediaries must not give conflicted remuneration to mortgage brokers or mortgage intermediaries.

The draft bill, which is open for consultation until 4 October, notes that the duty to act in the best interests of the consumer in relation to credit assistance is a “principle-based standard of conduct” and “does not prescribe conduct that will be taken to satisfy the duty in specific circumstances”.

“It is the responsibility of mortgage brokers to ensure that their conduct meets the standard of ‘acting in the best interests of consumers’ in the relevant circumstances,” the bill states.

According to the bill, the content of the duty “ultimately depends on the circumstances in which credit assistance is provided”.

Examples of such content cited in the draft bill include:

• Prior to the recommendation of a credit product, it could be expected that the mortgage broker consider a range of such products (including the features of those products) and inform the consumer of that range and the options it contain.
• Any recommendations made could be expected to be based on consumer benefits rather than benefits that may be realised by the broker (such as commissions).
• In cases where critical information is not obtained when inquiring about a consumer’s circumstances, the broker could be expected to refrain from making a recommendation about a loan where there is a consequent risk that the loan will not be in the consumer’s best interests.
• A broker would not suggest a white label home loan that has the same features as a branded product from the same lender but with a higher interest rate, because it would not be in the best interests of the consumer to pay more for an otherwise similar product.
• During an annual review, a broker would not suggest that the consumer remain in a credit contract without considering whether this would be in the consumer’s best interests.

In addition to the new best interests obligation, the draft bill requires a mortgage broker to “resolve conflicts of interests in the consumer’s favour”.

The bill states that “if the mortgage broker knows, or reasonably ought to know”, that there is a conflict between the interests of the consumer and the interests of the broker or a related party, the mortgage broker “must give priority to the consumer’s interests”.

As an extension to the best interests duty, the bill builds on remuneration reforms proposed by the Combined Industry Forum, which includes:

• requiring the value of upfront commissions to be linked to the amount drawn down by borrowers instead of the loan amount;
• banning campaign and volume-based commissions and payments; and
• capping soft dollar benefits.

The proposed regulations also limit the period over which commissions can be clawed back from aggregators and mortgage brokers to two years, and prohibit the cost of clawbacks being passed on to consumers.

Following the publication of the draft bill, Treasurer Josh Frydenberg said he is confident the reforms would further strengthen the broker proposition by producing better outcomes for borrowers.  

“Mortgage brokers play an important role in promoting good consumer outcomes and competition in the home loan market.

“Mortgage brokers have a strong presence in the home loan market, accounting for close to 60 per cent of home loans.

“The implementation of the best interests duty will bring the law in line with what consumers expect of mortgage brokers.”

The new provisions are scheduled for implementation by 1 July 2020.

 [Related: Remuneration changes, best interests duty to be introduced this year]

Best interests duty ‘reflects customer expectations’: Treasurer

Charbel Kadib

Last Updated: 26 August 2019 Published: 26 August 2019

Written by Charbel Kadib

Last Updated: 26 August 2019

Published: 26 August 2019

Charbel Kadib

Charbel Kadib is the news editor on The Adviser and Mortgage Business.

Before joining the team in 2017, Charbel completed internships with public relations agency Fifty Acres, and the Department of Communications and the Arts.

Email Charbel on: This email address is being protected from spambots. You need JavaScript enabled to view it.