Olive Financial Markets Pty Ltd and Australian Securities and Investments Commission

In the matter of Olive Financial Markets Pty Ltd and the Australian Securities and Investments Commission, the Administrative Appeals Tribunal considered an application by Olive Financial Markets Pty Ltd for a stay of a decision made by a delegate of ASIC to cancel its financial services licence. Olive operates both a managed discretionary account business and a superannuation business, holding a licence under the Act to conduct these activities. ASIC had commenced an investigation into Olive's conduct in September 2017, and in March 2020, the delegate found that Olive had failed to comply with its obligations under s.912A of the Act, including obligations to act efficiently, honestly, and fairly, to comply with financial services laws, to ensure its representatives acted in clients' best interests, and to have adequate resources and compliant dispute resolution procedures.

The Tribunal was required to determine whether to grant a stay of the decision to cancel Olive's licence pending a full review of that decision. This involved considering the purpose of s.41(2) of the Act, which allows for stays to ensure the efficacy of the review process, and balancing competing public interests. The Tribunal also considered an application for confidentiality regarding the decision.

The Tribunal reasoned that a stay was desirable to ameliorate potential consequences to innocent third parties, specifically Olive's existing clients and employees. The Tribunal noted that these consequences would be significantly amplified by the circumstances of the COVID-19 pandemic, impacting employment for staff and access to financial advice and investments for clients. The Tribunal also considered the public interest in ensuring the regulator's role in protecting the public and promoting market transparency. While granting a stay of the cancellation decision, the Tribunal refused to grant confidentiality, holding that publication of the cancellation decision was necessary to protect the public and allow clients to make informed decisions about their dealings with Olive.

Consequently, the Tribunal made an order staying the decision to cancel Olive's financial services licence, subject to conditions including that existing clients be informed of the review. The application for confidentiality was dismissed.