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ABZ Bank (ABZ), an ADI and AFS Licensee, operates through 700 branches across Australia. Z Super is a superannuation product issued and promoted by Zpac

ABZ Bank (ABZ), an ADI and AFS Licensee, operates through 700 branches across Australia. "Z Super" is a superannuation product issued and promoted by Zpac Super, a wholly-owned subsidiary of ABZ. ABZ runs an aggressive marketing campaign to distribute "Z Super" through its retail branch network. Any branch staff who sells "Z Super" is paid a substantial commission. "Z super" is sold to customers by ABZ's branch staff who are authorized to provide general advice to retail customers and to assist retail customers to apply for superannuation products. The distribution process developed and implemented by ABZ involved the following steps:

  • Firstly, the branch staff member asks the retail customer to fill in a questionnaire of 25 questions (called '1-25 review') on the financial situation, needs and circumstances of the retail customer.
  • Secondly, the branch staff member asks whether the retail customer would like to be provided with information about "Z Super".
  • Thirdly, if the retail customer agrees, the retail customer is provided with a detailed Product Disclosure Statement and brochure. The branch staff also provides a quick appraisal of benefits to invest in "Z Super" and provides them with a general advice warning.
  • Fourthly, the branch staff obtains (1) signatures on blank forms for 'Z Super' and (2) a letter of authorization for cancelling the existing superannuation account.

The application will only be proceeded upon confirmation from the retail customer through an email or telecall. ASIC's surveillance on branch sales of "Z Super" has revealed that 45-50% of customers opted for "Z Super" soon after the '1-25 review' on the same day. ASIC is concerned about the promotion of "Z Super" through branches and initiates an investigation. You are employed in the legal division of ABZ and are asked to review if the sale and distribution of "Z Super" breach any provisions of Chapter 7 of the Corporations Act, 2001 (Cth). You are specifically asked to include a detailed analysis of whether ABZ's staff comply with the best interests duty and related obligations under C7.7A of the Corporations Act, 2001 (Cth).

In relation to the given scenario, you need to discuss the following issues with relevant legal provisions and application of the law:

  1. Whether a financial product, financial product advice and financial service is provided?
  2. Whether the financial product advice provided is general advice or personal advice?
  3. Whether the financial product advice is given to a retail client?
  4. Whether ABZ's staff comply with all C.7.7A obligations?
  5. Whether ABZ's staff conduct could be classified as an unconscionable conduct?
  6. Whether ABZ Bank is liable under s.961K for breaches of ABZ's staff?
  7. Whether ABZ Bank is liable for breach of general licensee conditions?
  8. What are the legal remedies available for ABZ's staff?

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