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Inside track: Superannuation, Funds Management & Financial Services

01 November 2021

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

Members should not be stapled to dud funds: AIST
MEDIA – 29 October 2021 – following the release of Choice super data, the Australian Institute of Superannuation Trustees is calling for the Government to amend legislation to prevent any member being stapled to an untested or persistently underperforming super product.  More...

Government meets legislative commitments in response to Hayne Royal Commission
TREASURY – 28 October 2021 – the Morrison Government has introduced legislation into Parliament to establish the Financial Accountability Regime and the Compensation Scheme of Last Resort.  More...

APRA shines light on choice super sector
APRA – 28 October 2021 – the APRA has published analysis of the performance of choice superannuation products ahead of releasing its first Choice Product Heatmap in late 2021, which will provide clear and comparable insights on the performance of choice products in the areas of investment returns, fees and costs, and sustainability.  More...

Choice products report 40 per cent higher admin fees than MySuper
MEDIA – 28 October 2021 – administration fees on Choice products are 40 per cent higher than for MySuper products, according to the regulator, with a $100,000 balance paying $391 per annum.  More...

APRA urges greater focus on improving governance and strategic planning in super
APRA – 26 October 2021 – the Australian Prudential Regulation Authority (APRA) has called on superannuation trustees to examine how they can improve their governance and strategic planning after releasing the findings of multiple reviews of industry business practices.  More...

$450 super threshold removed
MEDIA – 28 October 2021 – the Government has introduced a bill that aims to improve equity in the superannuation system, allow a larger amount of super to be removed for a first home deposit, and reduce the eligibility age to make downsizer contributions.  More...

Enhancing the super system and driving business investment
TREASURY – 27 October 2021 – the Morrison Government has introduced into Parliament the Treasury Laws Amendment (Enhancing superannuation outcomes for Australians and helping Australian businesses invest) Bill 2021.  More...

The RIC requires modular retirement products
MEDIA – 27 October 2021 – simple retirement solutions where members can flexibly change and adapt their investments will be necessary when superannuation trustees implement the Retirement Income Covenant.  More...

AFCA appoints super senior ombudsman
MEDIA – 26 October 2021 – Anne Maree Howley has been appointed as senior ombudsman for superannuation, among seven newly-created ombudsman roles.  More...

White Paper on modernising financial advice hits the right note
21 October 2021 – the SMSF Association welcomes the Financial Services Council’s White Paper on Financial Advice, saying it aligns with its goals of modernising financial advice and enhancing the professionalisation of the advice.  More...

AFCA to consult on approach to categorising complaints about financial advice and financial products
AFCA – 21 October 2021 – with the forthcoming release of the draft Compensation Scheme of Last Resort (CSLR) legislation and in our regular discussions with the advice sector, AFCA intends to provide additional clarity to the sector and consumers on how it currently deals with and categorises these complaints.  More...

Expanding intra-fund advice will improve member retirement outcomes
AIST – 20 October 2021 – expanding intra-fund advice will improve member retirement outcomes: AIST.  More...

Gender pension gap – a worldwide problem that must be addressed
AIST – 20 October 2021 – Governments and employers must do more to address the gender pay gap and other employment issues to improve retirement outcomes for women, the Australian Institute of Superannuation Trustees (AIST) said.  More...

AAT amends Spectrum ban
ASIC – 19 October 2021 – the Administrative Appeals Tribunal has broadened the corporate regulator’s decision to ban Spectrum Wealth director, Mark Schroeder, from providing financial services.  More...

APRA finalises guidance for new prudential standard on remuneration
APRA – 18 October 2021 – the APRA has published guidance to assist banks, insurers and superannuation licensees in meeting the requirements of the new prudential standard CPS 511 Remuneration.  More...

In practice and courts

ASIC Updates

ASIC Corporations (Amendment) Instrument 2021/381
Amends the ASIC Corporations (Auditor Independence) Instrument 2021/75 and ASIC Corporations (Parent Entity Financial Statements) Instrument 2021/195 to change the repeal dates from April 2026 to April 2024.

APRA finalises guidance for new prudential standard on remuneration
The APRA has published guidance to assist banks, insurers and superannuation licensees in meeting the requirements of the new prudential standard CPS 511 Remuneration (CPS 511), which comes into effect from 1 January 2023. The final Prudential Practice Guide CPG 511 Remuneration released will assist industry in complying with CPS 511 by setting out guidance and examples of better practice (18 October 2021).  More...

Findings from APRA’s superannuation thematic reviews
APRA: 26 October 2021
The findings of three thematic reviews undertaken over the past 12 months covering: Strategic and business planning; fund expenditure; and unlisted asset valuation practices. The information paper is available on APRA’s website at: Findings from APRA’s superannuation thematic reviews.

AFCA Current Matters
Business interruption insurance test cases (Updated October 2021)
Sterling group investors (Updated October 2021)

FSC: Target Market Determination templates
The new Design Distribution and Obligations come into effect on 5 October 2021, and require product issuers to develop Target Market Determinations (TMDs) for the products they issue to retail clients. For more information on the reforms and the FSC’s template TMDs and data standards.  More...

FSC Submissions
19 October 2021 FSC Submission Retirement Income Covenant Exposure Draft Legislation
19 October 2021 FSC Submission Treasury Consultation on Occupational Exclusions

Industry Superfunds Submissions – 13 October 2021
Review of occupational exclusions in default insurance offered through MySuper products

Cases

Re QSuper Board [2021] QSC 276
SUPERANNUATION  – PUBLIC SERVICE FUNDS – OTHER MATTERS – where the applicant board is a body corporate board created by the  Superannuation (State Public Sector) Act 1990  (Qld) – where the board administered a scheme established by a deed for the provision of  superannuation  benefits from a fund – where the board acted as the trustee for the fund – where the individual members of the board are themselves trustees by the same Act – where the deed can be amended by the board – where the board owed covenants to act in the best financial interests of its beneficiaries and prioritise those beneficiaries’ interests over others in the event of a conflict – where, due to amendments to relevant legislation, the breach of trustee covenants attracted increased civil penalties under the  Superannuation Industry (Supervision) Act 1993  (Cth) – where the same reforms prohibited the trustees from obtaining an indemnity or exemption from such liability from the trust fund – where the applicant proposed to amend the deed to allow it to remunerate itself from the trust fund to create a contingency fund that could be used to pay fines, penalties and similar liabilities arising from the new legislation – whether the board is justified in consenting to the proposed amendment
SUPERANNUATION  – PUBLIC SERVICE FUNDS – OTHER MATTERS – where s 96(2) of the Trusts Act 1973 (Qld) refers to “all persons interested in the application or such of them as the court thinks expedient” – where the fund has over 600,000 members – where the applicant notified each of the member associations that nominated board members about the application – where notifying all members of the fund would cost around $275,000.00 – whether wider notification of members is required
EVIDENCE – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – where the applicant relied upon legal advice, including the opinions of counsel, in the judicial advice application – where the applicant relied on commercially sensitive information in the judicial advice application – whether documents should be sealed on the court file or otherwise subject to redactions
Australian Prudential Regulation Authority Act 1998 (Cth), s 56; Corporations Act 2001 (Cth), ch 7, s 199A, s 766H
Trusts Act 1973 (Qld), s 96; Superannuation (State Public Sector) Act 1990 (Qld), s 2, s 3, s 4, s 12
Superannuation Industry (Supervision) Act 1993 (Cth), s 10, s 29E, s 52, s 52A, s 54B, s 54C, s 56, s 57

McCormick v Queensland Law Society Incorporated [2021] QCAT 343
PROFESSIONS AND TRADES – LAWYERS – PRACTISING CERTIFICATES – CANCELLATION AND SUSPENSION – where the applicant was a sole legal practitioner director of an incorporated legal practice – where the respondent refused to renew the applicant’s practising certificate – where the Tribunal has granted a stay of that refusal – where the applicant breached conditions of previous practising certificate – where the applicant failed to submit external examiner’s reports – where the applicant has a history of failing to communicate with the respondent – where the applicant failed to satisfactorily maintain trust accounts – where the applicant otherwise acted competently for clients – where there were no issues with the applicant’s honesty or integrity as a practitioner – where the applicant has demonstrated frank and honest insight into his conduct – whether the respondent made the correct and preferable decision – whether the applicant is a fit and proper person to hold a practising certificate
The second issue concerned the Applicant’s ongoing failure to comply with a request from the QLS that he provide certain tax and superannuation information.

Germain v Kelly [2021] SAET 206
Pecuniary penalties – Contravention of s 45 by not paying any superannuation contributions during a three-year hairdressing apprenticeship as required by the Award – Contravention of s 90 by not paying accrued annual leave at the end of the employment – Contravention of s 546 by not providing pay slips – No mitigating circumstances – Held: Total penalties imposed of $16,410.

Variation on the Commission's Own Motion-Hospitality Industry (General) Award 2020 [2021] FWC 6203
s.160 – application to vary a modern award to remove ambiguity or uncertainty or correct error
Variation on the Commission’s Own Motion – Hospitality Industry (General) Award 2020
[1] On 30 September 2021, AustralianSuper informed the Commission of the forthcoming merger of Club Plus  Superannuation Scheme (Club Plus Super) and AustralianSuper, expected to occur on 1 December 2021
[3] AustralianSuper has requested that the Commission exercise its power under s.160(2)(a) of the Fair Work Act 2009 (the Act) to vary the Award to remove an ambiguity or uncertainty arising from the merger.

Legislation

Commonwealth

Bills – 28 October 2021

Financial Accountability Regime Bill 2021
HR 28/10/2021 – the Financial Accountability Regime Bill 2021 introduces a new accountability regime for the banking, insurance and superannuation industries. Schedules 1 and 2 to the Bill make consequential amendments to relevant Acts to support the Financial Accountability Regime. 

Financial Sector Reform (Hayne Royal Commission Response No. 3) Bill 2021
HR 28/10/2021 – a Bill for an Act to deal with consequential amendments and transitional matters arising from the enactment of the Financial Accountability Regime Act 2021 and to establish the financial services compensation scheme of last resort
Note: The Financial Services Compensation Scheme of Last Resort Levy Bill 2021 and Financial Services Compensation Scheme of Last Resort Levy (Collection) Bill 2021 and Schedule 3 to the Financial Sector Reform (Hayne Royal Commission Response No. 3) Bill 2021 introduces the CSLR.

Financial Services Compensation Scheme of Last Resort Levy (Collection) Bill 2021
HR 28/10/2021 – a Bill for an Act to provide for the collection of levy imposed on persons relating to the AFCA scheme.

Financial Services Compensation Scheme of Last Resort Levy Bill 2021
HR 28/10/2021 – the levy framework creates a tax to be levied against relevant industry entities to fund the CSLR. The CSLR’s levy framework contains a primary funding mechanism (‘annual levies’), and if needed, a secondary funding mechanism (‘further levies’) if the annual levy collected is insufficient or likely to be insufficient to meet the initial estimate of costs, fees, and claims.

Treasury Laws Amendment (Enhancing Superannuation Outcomes For Australians and Helping Australian Businesses Invest) Bill 2021
HR 27/10/2021 – schedule 1 to the Bill amends the SGAA to remove the $450-a-month threshold before an employee’s salary or wages count towards the Superannuation Guarantee. Removing the $450-a-month threshold will expand the coverage of the Superannuation Guarantee to eligible employees earning salary or wages less than $450 in a calendar month from a single employer.

Protecting Pensioners from the Cashless Debit Card Bill 2021
25/10/2021 – the Protecting Pensioners from the Cashless Debit Card Bill 2021 (the Bill) will amend the Social Security (Administration) Act 1999 (the Act) to repeal law that allows the Government to compel social security recipients to use the Cashless Debit Card.

Superannuation Guarantee (Administration) Amendment Bill 2021
HR 19/10/2021 – amends the Superannuation Guarantee (Administration) Act 1992 – section 32R
32S Excluded occupations.

Regulations

Superannuation Guarantee (Administration) – Choice of Fund – Written Guidelines for the Reduction of an Increase in an Employer’s Individual Superannuation Guarantee Shortfall Determination 2021
22/10/2021 – this instrument repeals and replaces the Written Guidelines for the Reduction of an Increase in an Employer's Individual Superannuation Guarantee Shortfall under the Superannuation Guarantee (Administration) Act 1992 (09/06/2006) and determines where employers make contributions on behalf of employees for superannuation guarantee purposes that do not meet the “choice of fund” requirements the Commissioner of Taxation may reduce any shortfall or disregard any non-compliance either in whole or in part.

Superannuation Guarantee (Administration) – Stapled Fund – Guidelines for the Reduction of an Employer’s Individual Superannuation Guarantee Shortfall for Late Contributions Due to Non-acceptance by Notified Stapled Fund Determination 2021
22/10/2021 – this instrument sets out the guidelines the Commissioner of Taxation must have regard to in making a decision whether or not to reduce the amount of an employer's individual superannuation guarantee shortfall for an employee for a quarter under subsection 19(2F) of the Superannuation Guarantee (Administration) Act 1992.

ASIC Corporations (Amendment) Instrument 2021/848
Tabled Senate 18/10/2021 – this instrument amends the ASIC Corporations (COVID-19–Advice-related Relief) Instrument 2021/268 to give effect to two temporary relief measures that facilitate access to timely and affordable personal advice for existing clients of providing entities that is in connection with the adverse economic effects of COVID-19.

NSW

Regulations and other miscellaneous instruments
State Authorities Non-contributory Superannuation Amendment (Keolis Downer Northern Beaches Pty Ltd) Order 2021 (2021-634) – published LW 29 October 2021
State Authorities Non-contributory Superannuation Amendment Regulation 2021 (2021-635) – published LW 29 October 2021
State Authorities Superannuation Amendment (Keolis Downer Northern Beaches Pty Ltd) Order 2021 (2021-636) – published LW 29 October 2021

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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