Thursday, August 02, 2012
Watch what you say about Carbon Credits
People making comments about CFI carbon credits in the media or in presentations or just in conversation may have to watch what they say if they do not have an Australian Financial Services Licence (AFS). When the Government decided that CFI Credit would be classified as a financial instrument, it brought a lot of people under one of the strictest regulatory regimes in the world.
If your words are likely to influence your audience's decision about a CFI investment, you are considered to be a provider of financial services, and you must be licensed by ASIC under the Corporations Act 2001.
“[A]dvice relating to an offset project in the context of the Carbon Farming Initiative” is a specific example given. It may be considered to apply to comments that regularly appear in the media.
To discover whether you fall under the regime, the questions that must be answered are these:
1. What is financial advice?
2. What is technical advice?
3. When can technical advice become financial advice?
It is important to distinguish between advice of a technical nature about projects and advice that is intended to “influence a person’s decision on the financial products emanating from the project... which is likely to be financial product advice.”
Examples of technical advice that are not likely to represent financial product advice are the following:
(a) advice about options for technology that may be used or the feasibility of implementing the physical aspects of a project;
(b) advice about the implementation, construction and costs of a project;
(c) advice about the “potential sequestration, avoidance or abatement of emissions that does not include advice about the income that may be derived from regulated emissions units generated by a project”; and
(d) advice about the ongoing operations of a project.
But it is also important to consider whether this information, when seen beside other material that you provide, may together constitute financial advice.
Factual matter presented in a way that does not contain or imply a recommendation to buy, sell or hold a regulated emissions unit is unlikely to constitute financial product advice. Examples of these types of advice are:
(a) advice about the eligibility of a project as an offsetting project; (b) advice about the process of getting approval of eligiblity; (c) advice about the monitoring of emissions sequestration, avoidance or abatement of the project; or (d) advice about verification or audit of the emissions sequestration, avoidance or abatement of the project.
Advice about the potential commercial benefits of a project through the generation of regulated emissions units relates to a financial product and may influence a decision on that product. This is likely to constitute financial product advice.
Posted by Michael Kiely at 11:33 AM