Hello, my name is Neil Unantenne and I am
a Senior Inspector in AFSA’s Regulation and Enforcement division. I take this opportunity to welcome all stakeholders
to this podcast on our revised “Inspector General Practice Guideline 1 – which is Guidelines
relating to advertising and marketing of debt agreements”. These guidelines on regulated and non-regulated
entities explain when and how the Inspector-General in Bankruptcy will interpret areas of work
or practice that are not provided for under the Bankruptcy Act. The guideline describes the principles underlying
the Inspector-General’s approach and expectation of practitioners. In this podcast we will cover 3 areas: Firstly, the purpose of the guideline. Secondly, an overview of the guideline, and
thirdly, the changes made in July 2016 to the guideline. The purpose of the guideline is to outline
the best practice principles in relation to advertising and marketing of debt agreements. The expectations of the Inspector-General
align with the professional codes, regarding advertising and marketing of debt agreements. Debt Agreement Administrators, brokers and
other promoters should not encourage potential debtors to enter into debt agreements when
their circumstances are such it would be an unsuitable option. Their advertising and marketing should reflect
this – they should not be promising what they cannot deliver. This extends to the activities of any third
parties working for (or on behalf of) Debt Agreement Administrators in promoting debt
agreements and/or their services to potential debtors. Debt Agreement Administrators are responsible
for advertising or marketing undertaken on their behalf – whether directly or indirectly. It is a key strategic focus area of AFSA’s Compliance
Program to review practitioner’s advertising methods and first point of contact with debtors. This is done to ensure that the advice provided
is independent and within legislative and best practice guidelines. This guideline has eight main parts: Number 1: Introduction Number 2: Regulatory framework Number 3: Inspector-General’s Expectations Number 4: False representations and misleading or deceptive
conduct Number 5: Representing debt agreements as debt consolidation Number 6: Monitoring and investigation Number 7: Conclusion; and Number 8: Related information The introduction explains our regulatory role
and the purpose of the guideline. The regulatory framework provides a snapshot
of the law, regulatory agencies, and the professional codes and bodies that relate to the advertising
and marketing of debt agreements in Australia. The main body of the guideline outlines the
type of conduct that is inappropriate for advertising and marketing of debt agreements. There are some helpful practical examples
provided in the guideline here. In addition, The guideline details how we
regularly monitor the activities of Debt Agreement Administrators, brokers and others who promote
debt agreements across the internet, TV, radio, print and social media on a regular basis. It also details how we identify and investigate
false and misleading representations or misleading and deceptive conduct. It also outlines regulatory initiatives, guidance
and other stakeholder engagement activities conducted during the period. Finally, the guideline also provides related
information on all the reports, codes, cases and legislation that I’ve mentioned here. There are some well-established principles
that will be relevant to determining whether a particular advertisement by a promoter of
Debt Agreements is misleading or deceptive. These include: • Whether the conduct is misleading or deceptive
must be assessed objectively. • The conduct must be considered “as a whole
and in its proper context”. That means that it would be wrong to examine
conduct “divorced from “disclaimers” about that “conduct” and divorced from other circumstances
which might qualify its character”, and • Whether the conduct is misleading or deceptive
must also be considered in the context of the likely audience. In considering an advertisement by a Debt
Agreement Administrator, the essential question is whether it has a tendency to lead the viewer
of the advertisement into error as to the nature of a debt agreement (and therefore
the nature of the service being offered by the Debt Agreement Administrator). The changes made to the guidelines in 2016
were in response to our concerns based on regular monitoring, investigation of complaints
and tip-offs from stakeholders. Having reviewed and considered the feedback
received, we have made several changes to broaden, reorder and simplify the content
within the guideline to ensure that it is more accessible to readers. The title of Inspector General Practice Guideline
1 has been changed from ‘Debt Agreement Administrators’ Guidelines Relating to Advertising’
to ‘Guidelines relating to advertising and marketing of debt agreements.’ This broadens the target audience beyond just
Debt Agreement Administrators to also cover brokers and other promoters of debt agreements
identified through AFSA’s monitoring activities. The application of the guideline has been
broadened to also capture pre-insolvency advice and assistance. In response to stakeholder feedback, the guideline now includes one short practical case study
which helps illustrate specific concerns about representations and conduct of Debt Agreement
Administrators and brokers. This case study has been adapted from examples
provided by stakeholders. The content has been reordered to ensure that
critical information (such as AFSA’s role and the Inspector General’s expectations)
appears toward the front of the guideline and is formatted with sub-headings to enhance
readability. Finally, content has been consolidated and simplified where possible – in favour of a summary of
key points. This concludes our podcast on the revised
Inspector General Practice Guideline 1. I encourage stakeholders to contact AFSA with
any feedback or questions about the guideline. Thank you for watching this podcast.