The Australian Financial Complaints Authority (AFCA) and Australian Securities and Investments Commission (ASIC) are on the same page in regards to who is considered a wholesale investor, but have chosen to take different approaches to applying that view, two AFCA ombudsmen have stated.
AFCA investments and advice lead ombudsman Shail Singh, speaking at the recent SMSF Association National Conference 2026, restated the view held by the external dispute resolution body that where an investor is a super fund, including an SMSF, it is treated under the law as a wholesale investor, and ASIC also held that view.
“I want to turn for a moment to this [idea], which is that ASIC and AFCA are now doing different things,” Singh said at the event held in Adelaide.
“We meet with ASIC regularly as we meet with Treasury, and we meet with all the other regulators, and the idea is we are all on the same page to provide consistency for industry and consumers about our approach to issues.
“What ASIC said about the $10 million test is, if you go way back to QFS150 [which was released in 2004], that SMSFs need $10 million in assets to be classified as a wholesale investor. It said that absolutely clearly.
“There was industry backlash and ASIC sort of retracted that position, and I say ‘sort of’ because they published a media release in August 2014 which said they were not going to take enforcement action in this category, but also said that private actions are excluded.
“In my view, it’s quite clear what that means. An action to AFCA is a private action and ASIC has excluded private actions from its already stated views.”
AFCA investments and advice senior ombudsman Alexandra Sidoti added that specific actions were the area that separated the two statutory bodies in regards to this issue.
“The big difference between ASIC and AFCA is that ASIC can make a policy decision to not pursue enforcement in a particular space,” Sidoti noted.
“We don’t get to decide just not to consider an issue for a period of time. If someone brings a private action to AFCA and that decision turns on us making a call, then we have to make a call, which is what we’ve done.”
