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Inside track: Superannuation, Funds Management & Financial Services

10 August 2021

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

ASIC reviews the first round of super fund annual members’ meetings
ASIC – 06 August 2021 – ASIC has released findings about superannuation funds’ annual members’ meetings. The findings are based on a surveillance of the inaugural meetings.  More...

Super receives over 5,000 complaints in the last year
MEDIA – 03 August 2021 – the Australian Financial Complaints Authority has reminded members it is unable to deal with complaints about high superannuation fees but claim handling delays have been the public’s biggest concern.  More...

Millennium 3 ARs banned after charging fees-for-no-service
ASIC – 03 August 2021 – North Coast Financial Services’ director Timothy Parry and officer Damian Price have been banned by the corporate watchdog after they were found to have breached their duties.  More...

AFCA outlines latest efficiency measures
AFCA – 02 August 2021 – a pilot project aimed at identifying complaints without merit earlier in its process is among the initiatives the Australian Financial Complaints Authority (AFCA) has under way to support efficient and timely handling of the 70,000 complaints it receives annually.  More...

ASIC bans two advisers for five years
ASIC – 02 August 2021 – the two advisers used a website to attract clients to help them find lost super, but are not adequately trained or competent to provide financial services.  More...

Super funds to be probed on ASX ownership
Media – 02 August 2021 – a parliamentary inquiry will be looking into the implications of capital concentration and common ownership from banks, superannuation funds, investments funds, and hedge funds.  More...

Chasing at Windmills: Latest inquiry distracts funds from delivering in best financial interests of members
ASFA – 02 August 2021 – despite the paint not being dry on the “Your Future, Your Super” reforms (which commenced on 1 July) and the accompanying regulations now significantly overdue, the HOR Standing Committee is going to cast a critical eye on capital concentration – the very outcome the policies have sought to drive.  More...

AFCA praises advisers for compliance
As industry organisations face Parliament to argue against rising regulatory levies, the Australian Financial Complaints Authority has praised financial advisers for receiving only a slim number of complaints (30 July 2021).  More...

Joint bodies call for NALI ruling to be narrowed
MEDIA – 29 July 2021 – the Institute of Public Accountants, The Tax Institute and Chartered Accountants Australia and New Zealand have cautioned the ruling will have far-reaching consequences for the super sector and say it should be narrowed to the law’s original intent.  More...

BT, Asgard cop fee-for-no-service fines
MEDIA – 27 July 2021 – the Federal Court has handed down $3 million in fines to the two Westpac-owned wealth management brands in a case that hinged on their inappropriate deduction of advice fees from customer accounts. Justice Wheelahan said in his decision: “Financial services providers in the position of the defendants should not be able to take the benefits which arise from automated and offshore processes and systems.  More...

In practice and courts

Treasury Consultation: Retirement Income Covenant position paper
The covenant will codify the requirements and obligations for superannuation trustees to improve retirement outcomes for individuals, while enabling choice and competition in the retirement phase. The Government will consult further on exposure draft legislation later this year. Subject to the passage of legislation, this covenant will commence from 1 July 2022. The paper is available on the Treasury website, with consultation closing 6 August 2021.

Treasury Consultations
Exposure draft legislation to implement a further seven recommendations of the Banking, Superannuation and Financial Services Royal Commission. The legislation will establish the Compensation Scheme of Last Resort (recommendation 7.1) and the Financial Accountability Regime (recommendations 3.9, 4.12, 6.6, 6.7 and 6.8).
Financial Accountability Regime – July 2021
16 July 2021 – 13 August 2021
Financial Services Royal Commission – Compensation Scheme of Last Resort
16 July 2021 – 13 August 2021

ASIC INFO 90 Notifying members about superannuation transfers without consent
(updated: Issue date unchanged)
Minor technical updates to account for the Treasury Laws Amendment (Reuniting More Superannuation) Act 2021 by removing out-dated references and updating content for existing requirements (29 July 2021).

ASIC RG 221 Facilitating digital financial services disclosures
(updated: Issue date unchanged)
Minor updates at RG 221.12 and Table 3 to include written consent to fees under fee arrangements (28 July 2021).

ASIC CP 344 Remaking ASIC class order on when debentures can be called secured notes: [CO 12/1482]
Sets out ASIC’s proposals to remake Class Order [CO 12/1482] When debentures can be called secured notes, which is due to expire ('sunset') on 1 April 2022: See 21-156MR.

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.

ASIC Corporations (COVID-19–Advice-related Relief) Instrument 2021/268
Extends until 15 October 2021 the relief measure that allows financial advisers to provide a record of advice rather than a statement of advice to existing clients requiring financial advice due to the impact of the COVID-19 pandemic: See 21-072MR and FAQs.

ASIC consultation: Draft guidance for the hawking reforms
'ASIC’s guidance gives additional clarity on how the changes may affect commercial practices, systems and processes. All interested stakeholders have until 17 August to provide feedback on CP 346. ASIC will publish its final guidance in September 2021, ahead of the revised hawking prohibition commencing on 5 October 2021.  More...

ASIC Consultations: CP 340 Breach reporting and related obligations
This consultation paper set out our proposals for providing guidance to Australian financial services licensees and Australian credit licensees (credit licensees) on the breach reporting obligation that applies from 1 October 2021. The obligations require these licensees to notify, investigate and remediate breaches of the law in certain circumstances.  More...

ASIC Corporations, Superannuation and Credit (Amendment) Instrument 2020/99
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.

APRA letter on implementation of Your Future, Your Super reforms
The APRA has released a letter to all Registrable Superannuation Entity licensees on the implementation of Your Future, Your Super reforms, that came into effect on 1 July 2021. The letter sets out APRA’s expectations of RSE licensees in light of the new legislative requirements. The letter to industry is available on the APRA website at Implementation of Your Future, Your Super reforms

Cases

Australian Securities and Investments Commission v RI Advice Group Pty Ltd (No 2) [2021] FCA 877
CORPORATIONS LAW – financial services and markets – best interests obligations – responsibilities of holder of Australian financial services licence – obligation of licensee to take reasonable steps to ensure that its representatives comply with the best interests obligations – obligation of licensee to do all things necessary to ensure that the financial services covered by the licence are provided efficiently, honestly and fairly – whether the first defendant, a licensee, contravened these obligations.

Australian Securities and Investments Commission v MobiSuper Pty Ltd [2021] FCA 855
CORPORATIONS – application by Australian Securities and Investments Commission (ASIC) for declaration of contravention of s 912A of the Corporations Act 2001 (Cth) against third defendant – provision of financial services by way of issue of interests in superannuation fund – failure on part of third defendant to do all things necessary to ensure that the relevant financial services were provided efficiently, honestly and fairly – declaration of contravention made
PRACTICE AND PROCEDURE – ASIC and third defendant jointly proposing orders on the basis of agreed facts – general principles applicable where parties to regulatory proceedings propose orders by consent – no risk that orders sought would interfere with balance of proceedings against other defendants – proposed orders made substantially in terms sought
Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 29D, 29E, 34C
Superannuation (prudential standard) determination No. 3 of 2012, Prudential Standard SPS 231 Outsourcing.

Bonser v Commonwealth Superannuation Corporation [2021] FCA 847
ADMINISTRATIVE LAW – application for judicial review of a decision of the Commonwealth Superannuation Corporation (CSC) – invalidity classification – where parties have jointly promoted that the Court make a declaration that the decision of the CSC was invalid and of no effect – where grant of relief requires the exercise of judicial discretion – where evidence supports the joint submissions – orders made in terms sought
DEFENCE AND WAR – militar superannuation and invalidity benefits – Military Superannuation and Benefits Act 1991 (Cth) – application for judicial review of a decision of the Commonwealth Superannuation Corporation (CSC) – invalidity classification – where parties have jointly promoted that the Court make a declaration that the decision of the CSC was invalid and of no effect – where grant of relief requires the exercise of judicial discretion – where evidence supports the joint submissions – orders made in terms sought
Military Superannuation and Benefits Act 1991 (Cth).

Asteron Life & Superannuation Limited, in the Matter of Asteron Life & Superannuation Limited (No 2) [2021] FCA 880
INSURANCE – application for transfer of life insurance business – application for variation of dispensation orders due to COVID-19 restrictions.

Legislation

Commonwealth

Act Compilation

Superannuation Industry (Supervision) Act 1993
02/08/2021 – Act No. 78 of 1993 as amended

Regulations

Financial Sector Reform (Hayne Royal Commission Response) (Hawking of Financial Products) Regulations 2021
06/08/2021 – this instrument amends the Corporations Regulations 2001 to partially implement recommendations 3.4 and 4.1 of the Financial Services Royal Commission in relation to the hawking of financial products.

Treasury Laws Amendment (Your Future, Your Super–Addressing Underperformance in Superannuation) Regulations 2021
05/08/2021 – these regulations amend the Superannuation Industry (Supervision) Regulations 1994 to support the implementation of an annual superannuation performance test and comparison tool for superannuation products.

Superannuation Industry (Supervision) Amendment (Your Future, Your Super–Improving Accountability and Member Outcomes) Regulations 2021
05/08/2021 – this instrument amends the Superannuation Industry (Supervision) Regulations 1994 and supports amendments enacted by the Treasury Laws Amendment (Improving Accountability and Member Outcomes in Superannuation Measures No. 1) Act 2019.

Treasury Laws Amendment (Your Future, Your Super–Single Default Account) Regulations 2021
05/08/2021 – this instrument amends the Superannuation Guarantee (Administration) Regulations 2018 to support the single default account reforms in Schedule 1 to the Treasury Laws Amendment (Your Future, Your Super) Act 2021.

Financial Sector Reform (Hayne Royal Commission Response–Breach Reporting and Remediation) Regulations 2021
05/08/2021 – this instrument amends four instruments to support the breach reporting amendments in Schedule 11 to the Financial Sector Reform (Hayne Royal Commission Response) Act 2020.

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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