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Inside track: Superannuation, Funds Management & Financial Services

01 December 2020

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

ASIC takes court action to enforce enforceable undertaking
The Australian Securities and Investments Commission (ASIC) has taken the unusual step of pursuing civil proceedings in the Federal Court to enforce the terms of an enforceable undertaking on a Gold Coast-based self-managed superannuation fund accountant (23 November 2020).  More...

AIST questions Retirement Income Review case to halt super increase as women and low income earners will suffer
The Australian Institute of Superannuation Trustees (AIST) has welcomed release of the Retirement Income Review, while urging the government to stick to the scheduled increase of the superannuation guarantee (20 November 2020). More...

Government action needed to avoid lower retirement living standards
The release of the 2020 Mercer CFA Institute Global Pension Index, which saw Australia’s super system record a drop in ranking across two key categories, highlights the need for new policy measures and a commitment from the Government to the legislated timeline to increase the super compulsory rate to 12 per cent (20 November 2020).  More...

AFCA Member Forums: two years of operations, future of membership experience
Acting Chief Ombudsman and CEO Justin Untersteiner told AFCA members the ombudsman had received more than 153,000 complaints in its first 24 months, resolving around 135,000 disputes and awarding more than $474.5 million in compensation and refunds to consumers and small businesses (20 November 2020).  More...

ASFA: Superannuation delivers for Australia
The Association of Superannuation Funds of Australia (ASFA) has welcomed the release of the Retirement Income Review, which found Australia’s retirement income system is effective, sound and its costs are broadly sustainable leaving it well-placed to deal with economic volatility and the challenge of an ageing society (20 November 2020).  More...

Govt’s RIR welcomed but opposing views on key issues
Employers, including small businesses, should be made to report more detailed superannuation guarantee (SG) information to the Australian Taxation Office (ATO) more frequently, according to the Australian Institute of Superannuation Trustees (AIST)(20 November 2020). More...

ASIC consults on reference checking and information sharing protocol
ASIC released a consultation paper seeking feedback on a new reference checking and information sharing protocol for financial advisers and mortgage brokers. Mandating reference checking for financial advisers and mortgage brokers was a recommendation of the Financial Services Royal Commission (Royal Commission)(19 November 2020).  More...

ASFA: 700,000 Australians reunited with over $1 billion of lost and unclaimed super
ASFA estimates 700,000 Australians stand to receive a payment as a result of the latest round of consolidating lost and small inactive superannuation account balances. Each April and October super funds send lost and small inactive accounts to the ATO as part of a process of reuniting accounts with account holders (19 November 2020).  More...

Hume flags continuing hard line on super defaults
The Federal Government has reinforced its hardline approach to superannuation fund performance and fees with the Assistant Minister for Superannuation, Financial Services and Financial Technology, Senator Jane Hume, claiming inefficiencies have resulted in Australians paying $30 billion a year in super fees (17 November 2020).   More...

ASIC affordable advice paper opportunity to address limited licence regime
The SMSF Association has welcomed the Australian Securities and Investments Commission’s consultation paper on affordable advice and said the self-managed superannuation fund advisers being able to provide limited advice was a key issue (17 November 2020). More...

ASIC consults on promoting access to affordable advice for consumers
ASIC has issued Consultation Paper 332 Promoting access to affordable advice for consumers (CP 332).A particular focus of this paper is on promoting access to quality ‘limited advice’(17 November 2020). More...

In practice and courts

ASIC Papers open for public comment
CP 333 Implementing the Royal Commission recommendations: Reference checking and information sharing
Released 19 November 2020. Comments close 29 January 2021.
Seeks feedback on ASIC's proposed approach to implementing aspects of the law reform arising from Royal Commission Recommendations 1.6 and 2.7. relating to the reference checking and information sharing protocol for financial advisers and mortgage broker.  More...

CP 332 Promoting access to affordable advice for consumers
Released 17 November 2020. Comments close 18 January 2021.
Seeks information from financial advice industry participants and other stakeholders on impediments to the delivery of good-quality affordable personal advice, particularly access to quality 'limited advice': see here.  More...

ASIC regulatory documents
20/11/2020 RG 36 Licensing: Financial product advice and dealing (updated)
20/11/2020 REP 673 Consumer engagement in insurance in super
Presents findings from research exploring the experiences of superannuation fund members, who were not using a financial adviser and directly contacted their fund to make enquiries about or make changes to their insurance arrangements: see 20-293MR

APRA superannuation statistics for September 2020
The APRA has released its Quarterly Superannuation Performance publication and the Quarterly MySuper Statistics report for the September 2020 quarter (24 November 2020).  More...

APRA weekly data on the superannuation early release scheme
The APRA has published the latest industry-level and fund-level data on the temporary early release of superannuation scheme. The Early Release Initiative statistics for applications received between 20 April - 15 November 2020 are available on the APRA website at: COVID-19 Early Release Scheme (23 November 2020).  More...

APRA reminder:  superannuation licensees on upcoming legislative obligations
Registrable superannuation entity (RSE) licensees are reminded of two key regulatory requirements - to undertake a Business Performance Review by 31 December 2020, and an outcomes assessment by 28 February 2021. View the letter here

ASFA research and papers
November 2020 Superannuation and Australians' expectations: Polling Project, ASFA

Retirement income review final report
Treasury: 20 November 2020
The Review was recommended by the Productivity Commission in its report Superannuation: Assessing Efficiency and Competitiveness and comes 27 years after the establishment of compulsory superannuation. The Final Report makes a number of key observations with respect to each of the system’s three pillars outlined here

ASIC Corporations, Superannuation and Credit (Amendment) Instrument
Amends the ASIC Corporations and Credit (Internal Dispute Resolution— Transitional) Instrument 2019/965 to preserve ASIC's existing internal dispute resolution policy in relation to complaints received by financial firms before 5 October 2021.  More...

Consultation: AFCA Rules changes ahead of Superannuation Complaints Tribunal ceasing operations
As part of transition arrangements in relation to the Superannuation Complaints Tribunal (SCT) ceasing operations after 31 December 2020, the Australian AFCA submissions on proposed changes to its Rules closed on 16 October 2020. The consultation paper, draft amendments to the Rules and draft amendments to the Operational Guidelines are available on the AFCA website here

Cases

Blazejczyk and Australian Securities and Investments Commission [2020] AATA 4352
PROFESSIONAL SERVICES –  financial services  – banning order – where Applicant prohibited from provision of any  financial services  for five years – where Applicant accepted banning and prohibition period but sought to limit scope of banning to “personal advice” to “retail clients” – whether limited or permissive banning order appropriate – reviewable decision affirmed

D H Flinders Pty Ltd v Australian Financial Complaints Authority Limited [2020] NSWSC 1690
Declaration to be made that AFCA has no contractual authority, jurisdiction or power to determine the complaints made against the plaintiff by the second and fourth defendants
CORPORATIONS –  financial services  – external dispute resolution scheme – proper construction of tripartite contract constituted by AFCA rules between  financial services  licensee, AFCA and complainant – whether AFCA had authority, jurisdiction or power to determine complaint – where complaint about conduct of licensee’s representative – whether complaint arose from provision of a  financial service  by the licensee to the complainant – whether licensee a financial firm for the purpose of the AFCA rules
CORPORATIONS –  financial services  – external dispute resolution scheme – whether AFCA had dealt with complaint in a procedurally fair and impartial manner

In the matter of HPack Investments Pty Ltd [2020] NSWSC 1638
Current freezing orders to be extended until further order. Plaintiff to bring in short minutes of order to give effect to this judgment within one business day.
CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties — Jurisdiction to make freezing order — Discretion whether to make freezing order — Winding up application against company that is trustee of self-managed  superannuation  fund — Where assets had been transferred to beneficiaries and associated entities — Asset transfers occurring without discharging tax liabilities — Where assets now held by beneficiaries and associated entities appear less than quantum transferred — Where evidence led raises risk of continued dissipation of assets without reserving funds to meet judgment — Where liquidator if appointed has prospective claims against beneficiaries and associated entities.
Corporations Act 2001 (Cth), ss 180, 588FDA, 588FG, 1317S; Practice Note SC Gen 14
Superannuation Industry (Supervision) Act 1993  (Cth), ss 120(2)(e), 126K

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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