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“....Given the recent press on the Royal Commission hearing in regard to the vertical integration of the big four Banks and their financial advisory businesses, and in particular the proposal that the grandfathering of benefits should be banned retrospectively (see Australian Financial Review 28 May 2018, p.18), RG 246. 212 makes the interesting comment:

“Note 1: The ban on conflicted remuneration also does not apply to the extent that it would result in an acquisition of property from a person otherwise than on just terms (within the meaning of s51(xxxi) of the Constitution).”

This comment would appear to lay the ground for a challenge to any legislation the Government might wish to introduce legislation seeking to outlaw grandfathered benefits – as was intimated by the ANZ in the AFR article. That is not to say that the High Court may form a different view as to whether or not a grandfathered benefit is ‘property’ within the meaning of s51(xxxi) of the Constitution.”