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Inside track: Superannuation, Funds Management & Financial Services

17 June 2019

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

APRA imposes new conditions on AMP’s super businesses
The Australian Prudential Regulation Authority (APRA) has imposed new conditions on AMP Limited’s superannuation businesses including board renewal and the removal of conflicts of interest (14 June 2019).  More...

ASIC uses conflicted remuneration powers against SMSF advisers
ASIC alleges that SMSF Club advised its clients to set up self-managed superannuation funds (SMSFs) then use their SMSFs to buy real property marketed by a real estate agent, Positive RealEstate Pty Ltd (12 June 2019).  More...

ASIC calculator changes a “big win” for super industry
The key takeaway of the change, according to Rice Warner, was that ASIC had confirmed the importance of maintaining living standards rather than purchasing power in retirement (11 June 2019).  More...

Commonwealth Financial Planning completes compliance with ASIC Court Enforceable Undertaking
Commonwealth Financial Planning (CFPL) has complied with the Court Enforceable Undertaking (CEU) entered into with ASIC in April 2018 regarding CFPL’s fees for no service conduct (11 June 2019).  More...

ASIC pursues court action against banned adviser
The Australian Securities and Investments Commission (ASIC) has reinforced its litigation approach, initiating legal action against a former Adelaide financial adviser who has already been permanently banned (11 June 2019).  More...

Life insurance risk for SMSF members in APRA funds
Association CEO John Maroney says: “We are worried that some SMSF members will lose their life insurance cover because they have not checked correspondence from their APRA fund or contributed to it. This could have a devastating impact on policy holders or their beneficiaries if their insurance cover is unknowingly terminated" (06 June 2019).  More...

Board and CEO salaries on the chopping block
The pay packages of senior officials in the finance sector has shrunk noticeably in 2019, following royal commission scrutiny, according to new Governance Institute figures (10 June 2019).  More...

Australians urged to check their insurance in super to understand impact of changes taking effect on 1 July
A new campaign aims to drive public education around the changes, which will see insurance cover through superannuation automatically switched off for inactive accounts on 1 July. A superannuation account will be considered inactive if the account holder or their employer haven’t made a contribution for the last 16 months (07 June 2019).  More...

ASFA:  More than half of Australians in the dark on important changes to superannuation taking effect on July 1
From July 1st, more than three million Australians may be affected when default insurance is switched off within superannuation accounts that have been inactive for 16 months. A new study, has found that more than half of Australians surveyed (53 per cent) are unaware of changes to the life insurance cover provided through superannuation, which will come into effect on July 1st (10 June 2019).  More...

AUSTRAC to level up enforcement
AUSTRAC has said it will be upping the ante and using more of its enforcement powers in the financial services sector, with Afterpay appearing to be the first firm under the pump. The fintech is looking at appointing a professional services firm to conduct a review of its design and operation of its compliance framework (07 June 2019).  More...

Class action to be launched against super fund
The proposed action will allege that Suncorp Super executed agreements to entrench fees that would otherwise have become unlawful or unenforceable. The action will be brought on behalf of members of Suncorp Super Funds to recover compensation for members whose accounts were impacted by charges used to pay conflicted remuneration to financial advisers from 1 July 2013 (07 June 2019).  More...

Super guarantee should rise: Rice Warner
While industry experts are contending over whether the government should be raising the superannuation guarantee, financial consultant Rice Warner has backed the legislated increase. The government has planned to raise the guarantee to 12 per cent from its current 9.5 per cent by July 2025 (07 June 2019).  More...

Super industry charged with greenwashing
Australian superannuation funds are failing to provide enough high-quality ethical and sustainability investment options, instead being susceptible to greenwashing, according to new survey of financial advisers (06 June 2019).  More...

ASIC amends relief conditions for superannuation and retirement calculators
ASIC has amended ASIC Corporations (Generic Calculators) instrument 2016/207 to ensure that estimates produced by superannuation and retirement calculators are adjusted for inflation. The new requirements will commence on 5 December 2019 to provide calculator providers with a transition period of six months (05 June 2019).  More...

Perth adviser permanently banned by ASIC
ASIC has permanently banned Perth-based adviser Phillip Emidio Bruni from providing financial services. ASIC reviewed meta data from Mr Bruni’s advice documents and found that in response to statutory notices, Mr Bruni had created replicas of statements of advice documents that he was required by law to create and retain but had not (05 June 2019).  More...

Royal Commission continues to sting with million dollar levy
The tail end of the Hayne Royal Commission continues to hit the finance industry with institutions set to pay 10 per cent more in order to fund the work of government bodies including APRA and ASIC (06 June 2019).  More...

In practice and courts

ASFA: Public awareness campaign: Time to Check
ASFA has been working with a number of members—insurers and fund trustees—as well as with the Financial Services Council to develop a public awareness campaign around PYS, which comes into effect on 1 July 2019.  More...

The industry has developed an informative website, to act as a useful resource in educating Australians on how to check whether they’ll be affected.

Note: From 1 July, 2019 the Government’s ‘Protecting Your Superannuation’ laws would remove automatic life insurance cover from members with an account that was inactive for 16 months or more. Among the changes, so-called "ghost accounts" will be transferred to the Australian Taxation Office if they haven't had any contributions for 16 months, or have a balance of less than $6,000.

Fees for commonly lodged documents
This information sheet summarises the statutory fees payable for the most commonly lodged documents. It also advises the lodgement periods, if applicable. Fees are determined by Regulations that include the Superannuation Auditor Registration Imposition Regulation 2012.These fees are not subject to GST.  More...

ASIC Regulatory Guide 167: Licensing: Discretionary
This guide is for Australian financial services (AFS) licensees and financial services providers.  It explains: our approach to applications for relief from compliance with Pts 7.6–7.8 (other than Divs 4 and 8 of Pt 7.6 and Div 8 of Pt 7.8) of the Corporations Act and how we use our powers to impose AFS licence conditions to support the AFS licensee obligations under the Corporations Act (05 June 2019).  More...

Note: ASIC has also updated the guidance in Regulatory Guide 167 Licensing: Discretionary Powers (RG 167) to reflect the amendments to the legislative instrument ASIC Corporations (Generic Calculators) Instrument 2016/207.

AASB: Conceptual Framework for Financial Reporting
New Conceptual Framework for Financial Reporting: A new Conceptual Framework has been issued for for-profit private sector entities that have public accountability and are required by legislation to comply with Australian Accounting Standards (06 June 2019).

AASB: Exposure Draft: Reference to the Conceptual Framework
ED 290 Reference to the Conceptual Framework proposes narrow-scope amendments to AASB 3 Business Combinations to update the reference to the Conceptual Framework for Financial Reporting without changing the accounting requirements for business combinations (06 June 2019).

AFCA consults on rule changes to identify financial firms in published determinations
AFCA has drafted changes to Rule A.14.5 that will enable us to identify financial firms in published determinations. This will apply to determinations issued after the changes take effect, subject to the changes being approved by ASIC. It is anticipated that the Rules will be released after 1 July 2019. Submissions close on 20 June 2019.  More...

Exposure Draft ED 289: Annual improvements to Australian Accounting Standards 2018–2020
ED 289 proposes to amend AASB 1 First-time Adoption of Australian Accounting Standards, AASB 9 Financial Instruments, AASB 16 Leases and AASB 141 Agriculture. Annual improvements are limited to changes that either clarify the wording in the Standard or correct relatively minor unintended consequences, oversights or conflicts between requirements in the Standards. Submit your comments to the AASB by 31 July 2019 via the AASB website.

ASFA Reminder: Recovering your unclaimed money
From the 27th June 2019 applications for unclaimed monies under s254 of the Bankruptcy Act can be made directly to Australian Financial Security Authority (AFSA) replacing the current Court application process.
An application form and further information about the new process will be published closer to the commencement date.  More...

IFAC: Global consultation on quality management for firms and engagements now open
The International Auditing and Assurance Standards Board (IAASB) seeks public comment by July 1, 2019 on three interrelated standards that address quality management. The proposals bring important changes to the way professional accountancy firms are expected to manage quality—for audits, reviews, and other assurance and related services engagements

IASB proposed amendments to IFRS 3 Business Combinations 
The amendments would update a reference to the Conceptual Framework for Financial Reporting without changing the accounting requirements for business combinations. IFRS 3 specifies how a company should account for the assets and liabilities it acquires when it obtains control of a business. View the Exposure Draft Reference to the Conceptual Framework here. Comments close 27 September.  More...

AFCA Current Matters

Digital Rebl Pty Ltd and Media Rebl Pty Ltd
Forex Capital Trading Pty Ltd
AGM Markets Pty Ltd
Berndale Capital Securities Pty Ltd
Bestjet Travel Pty Ltd (Bestjet)
Viewble Media and the Shoppers Network

Gazette - Superannuation Industry (Supervision) Act 1993

14/06/2019
Notice of Disqualification – Romeo Andary

03/06/2019
Notice of Disqualification - Sara Van Vliet; James Anson

Cases

Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Trade practices – Consumer protection – Unconscionable conduct – Where s 12CB(1) of Australian Securities and Investments Commission Act 2001 (Cth) relevantly prohibited "unconscionable" conduct in trade or commerce in connection with supply or possible supply of  financial services  – Where respondent provided "book-up" credit to Anangu customers of general store – Where book-up credit allowed deferral of whole or part of payment for goods subject to respondent retaining customer's debit card and personal identification number – Where respondent used debit card to withdraw whole or nearly whole of wages or Centrelink payments shortly after credited to prevent customers having practical opportunity to access monies – Where respondent applied part of withdrawn funds to reduce customer's indebtedness and made remainder available for provision of future goods and services – Where respondent's record-keeping inadequate and often illegible – Where customers vulnerable due to remoteness, limitations on education, impoverishment and low levels of financial literacy – Where book-up system "tied" Anangu customers to general store – Where customers had understanding of basic elements of book-up system – Where withdrawals authorised by customers – Where customers generally supportive of book-up and respondent's business – Where book-up protected customers from cultural practices requiring sharing of resources with certain categories of kin – Where book-up ameliorated effects of "boom and bust" cycle of expenditure and allowed purchase of food between pay days – Whether respondent's conduct unconscionable within meaning of s 12CB(1) of Act.

Tweed and Australian Securities and Investments Commission [2008] AATA 514
CORPORATIONS –  FINANCIAL SERVICES  AND MARKETS – banning order – whether power to make a banning order – whether not complied with a  financial services  law – whether director of corporation can fail to comply on the basis that it is the controlling mind of a corporation that has failed to comply – whether other circumstances in which director can fail to comply when corporation failed to comply – relevance of finding that director involved in corporation’s contravention – whether banning order would protect public from certain unsolicited off-market offers to purchase shares – purpose of banning order – decision set aside.

Australian Securities and Investments Commission v Vocation Limited (In Liquidation) [2019] FCA 807
CORPORATIONS – whether ASX announcement made by company relating to funding contracts and withholding of payments was misleading or deceptive or likely to mislead or deceive – whether company contravened s 1041H by making such announcement.
CORPORATIONS – whether completed due diligence questionnaire (DDQ) provided by company to proposed underwriter of proposed equity capital raising was misleading or deceptive or likely to mislead or deceive – whether company contravened s 1041H of the Act by providing DDQ to proposed underwriter.
Section 1041H of the Act relevantly provides that “a person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a  financial service , that is misleading or deceptive or is likely to mislead or deceive” (s 1041H(1)). Securities in a company such as Vocation constitute financial products for this purpose.

Koonara Management Pty Ltd v Rockliff (No 2) [2019] FCA 808
CORPORATIONS – cross-claim – unconscionable conduct – whether cross-respondents contravened s 12CA and s 12CB of the ASIC Act 1989 by statements in prospectus – whether cross-claimant was placed in a position of special disadvantage – whether, in all the circumstances, the cross-respondents engaged in unconscionable conduct in connection with the supply of financial services  – claim dismissed.

Between 1 July 2013 and 28 May 2015, the respondent trading as “National Warranty Company” issued financial products in the form of motor vehicle warranties pursuant to its Australian  financial services licence (AFSL) through the provision of product disclosure statements in accordance with Pts 7.6 and 7.9 of the Corporations Act 2001 (Cth) (the Act).

Deputy Commissioner of Taxation, in the matter of The Mai Family Pty Ltd (in liq) v The Mai Family Pty Ltd (in liq) [2019] FCA 865
CORPORATIONS — interlocutory application by a liquidator for directions or orders under s 90-15 of the Insolvency Practice Schedule (Corporations) in the Corporations Act 2001 (Cth), r 2.2(2) of the Federal Court (Corporations) Rules 2000 (Cth) and s 57(1) of the Federal Court of Australia Act 1976 (Cth) — whether it is appropriate to give a direction that it is appropriate for the defendant to resign from its position as trustee of a trust in circumstances where it is a “disqualified person” pursuant to s 120(2)(e) of the Superannuation Industry (Supervision) Act 1993 (Cth) — whether it is appropriate to appoint the liquidator as receiver and manager of the property of the trust — whether it is appropriate to order that the liquidator have certain powers as receiver and manager.

Ascic v Comcare [2019] FCA 819
WORKERS’ COMPENSATION – former Commonwealth employee – recognised depression and acute paranoid reaction to perceived stress in employment –  superannuation  pension – invalidity retirement – independent review of determinations as to compensation – consideration of the transitional provisions in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) in respect of a former employee’s incapacity payments – consideration of the application of ss 25 and 45 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth).
ADMINISTRATIVE LAW – application for judicial review of the decision of the Administrative Appeals Tribunal

McParland v Origin Oz Holdings T/a Nuline Glass& Ors [2019] FCCA 1534
INDUSTRIAL LAW – Contraventions of provisions of FWA – breach of contract of employment by original employer – transfer of employment – terms on which contract of employment transferred – termination of second employment – adverse action – whether adverse action causative of financial loss – whether compensation payable for distress, hurt and humiliation as a result of termination of employment – whether applicant had common law cause of action in tort or for breach of contract of employment for reasons unrelated to adverse action – pecuniary penalties to be imposed by reason of contraventions.
Contributions to a complying superannuation fund on behalf of the applicant - applicant’s former employer, contravened the provisions of s. 323(1) of the FWA by failing to pay all of the applicant’s base salary, car allowance, share allotment/transfer and superannuation  entitlements.

Legislation

Commonwealth

Regulation

ASIC Corporations (Amendment) Instrument 2019/514
04/06/2019 - This instrument amends ASIC Corporations (Generic Calculators) Instrument 2016/207 to provide superannuation and retirement calculator providers with the option of using an assumed inflation rate of 3.2% or an alternative assumed inflation rate, as long as certain disclosure requirements are satisfied. 

Gazetted

Annual Federal Courts and Tribunals Fee Increases from 1 July 2019
04/06/2019 - Pursuant to section 16 of the High Court of Australia (Fees) Regulations 2012, from 1 July 2019 the fee prescribed for each item of Schedule 1 to those Regulations will be the amount listed.

Queensland

Subordinate legislation as made – 14 June 2019
No 95 Superannuation (State Public Sector) Amendment of Deed Regulation 2019
No 96 Superannuation (State Public Sector) Amendment of Deed Regulation (No. 2) 2019

Contacts:
Melbourne
Chris Lovell, Chairman
T: +61 3 9321 9832
E: chris.lovell@holdingredlich.com

Paul Faure, Partner
T: 61 3 9321 9904
E: paul.faure@holdingredlich.com

Bill Glover, Partner 
T: 61 3 9321 9844
E: bill.glover@holdingredlich.com

Brisbane
Kylie Wilson, Partner
T: 61 7 3135 0514
E: kylie.wilson@holdingredlich.com

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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