Amending government legislation is not normally an exciting affair, especially if it is just about removing or correcting the odd sentence in the statute.

But amending the Future of Financial Advice (FOFA) legislation has been gaining as much airtime as the repeal of the carbon tax – and much of it suggests the Government will have a fight on its hands to make the changes.

The Government said for many months it was going to change the legislation by removing the opt-in requirement, tightening up the best-interests duty and making scaled advice simpler.

The amendment bill introduced into Parliament last week has done that. It is very similar to what the then-coalition opposition proposed in its dissenting report to the Parliamentary Joint Committee report on the FOFA bills.

But critics of the move, led by the Labor Party, consumer group Choice and the industry super funds, would have the world believe FOFA is being scrapped in its entirety. It’s not, but many of the consumer-friendly aspects are in the firing line.

One issue that has become highly contentious is the removal of the “catch-all” clause in the best-interests duty requirements.

Currently an adviser has to meet six points of the “safe harbour” requirements of the best-interests duty. Then they have to prove that the advice being given “would reasonably be regarded as being in the best interests of the client”.

Critics of this clause point out it could cover anything that would affect the advice and lawyers would have a field day as advisers struggled to defend themselves. Supporters say that without it advisers will never be held to account for their advice.

But some of the lawyers making submissions on the amendment legislation have also questioned the reasoning behind the clause.

It should be pointed out that lawyers associated with the industry super funds have supported the retention of the best-interests duty clauses, including the contentious “catch-all” provision.

Minter Ellison Partners Richard Batten and Christopher Brown questioned the steps required in the best interests duty to deliver a “safe harbour”.

They argue that making an adviser identify all the circumstances disclosed by the client “seems an unnecessary addition and risks requiring the adviser to make a record of matters that are not relevant to the advice”.

The partners say only the relevant information pertinent to the advice needs to be identified.

The Financial Services Council’s (FSC) legal advice on the best-interests duty finds that the proposed changes will not alter an adviser’s duty to act in their best interests.

Counsel Ian Jackman and Gregory Drew say the removal of the “catch-all” provision would not compromise the protection offered by the best-interests clause in the legislation.

“The legal advice is clear,” said FSC CEO John Brogden. “The proposed amendments do not reduce in any way a financial adviser’s legal requirement to act in the best interest of their clients.”

The Governance Institute of Australia, while supporting the concept, thinks the “catch-all” provision is unworkable. But it doesn’t want the clause removed, just clarified.

“Rather than weakening this essential protection, the provision should clarify that the onus of proof rests with the person alleging the breach of this section,” it says in its FOFA submission.

“[This is] to ensure that the honest and competent practitioner is not exposed to defending unreasonable actions.”

Not unsurprisingly, Choice is totally against removal of this clause in the best-interests duty. It argues that having the six points in the “safe harbour” requirements will result in advisers just ticking the boxes.

“By removing this clause, which requires advisers to proactively consider a client’s best interests, advisers will be able to satisfy the duty without acting in the client’s best interest,”

Choice says in its submission.

The arguments about the best-interests duty will continue, as the Senate has sent the amendment bill to the Finance and Public Administration Legislation Committee.

The committee will be seeking submissions on the amendment bill, a move similar to Treasury’s consultation on the draft bill.

This committee is due to report on the bill by June 16. That creates another problem for the Government, because the composition of the Senate changes on July 1.

It would have only two weeks to pass the legislation before the change. After July 1 the Senate will have 30 Coalition senators and 33 Labor and Green senators.

There is an assortment of other senators, including Clive Palmer’s Palmer United and the Australian Motoring Enthusiast Party, adding up to seven more senators who have given no indication of how they might vote on the FOFA bill.

And if that isn’t uncertain enough, a further six senators will be elected next month in a re-run of the Senate election in WA.

One thing that’s unlikely to hamper the Government’s continued drive to push the FOFA bill through is the decision last week by Assistant Treasurer Arthur Sinodinos to step aside while he appears before the NSW Independent Commission Against Corruption over matters related to Australian Water Holdings, where he was chairman.

Finance Minister Mathias Cormann has taken over the financial services portfolio during his absence, and as the architect of much of the rollback during his time as Opposition financial services spokesman, he can mount a strong campaign for change.

That’s fortunate for the Government, because while Prime Minister Tony Abbott has expressed confidence that Senator Sinodinos will return to the Assistant Treasurer’s office, the media coverage of the senator’s time at Australian Water Holdings has undermined his formidable reputation and raised questions about his financial competence. This will make his continued occupation of a treasury portfolio – and possibly any other portfolio – politically difficult.

With all that uncertainty, the current FOFA legislation might be around for quite some time.