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Inside track: Superannuation, Funds Management & Financial Services

18 October 2021

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

ASIC extends temporary financial advice COVID-19 relief measures
MEDIA – 14 October 2021 – the record of advice relief measure is extended to April 2022, as well as the “time critical” relief measure that gave financial advisers additional time to give their clients an SoA.  More...

ASIC further extends temporary financial advice relief measures in COVID-19 instrument
ASIC – 14 October 2021 – ASIC announced that it will further extend temporary relief measures designed to help the financial advice industry provide consumers with affordable and timely advice during the COVID-19 pandemic. The relief will now end on 15 April 2022.  More...

Investment governance frameworks must evolve as super funds grow
MEDIA – 12 October 2021 – with some superannuation funds projected to grow by 200 per cent to 300 per cent by 2030, super funds will need to address key challenges in their investment governance arrangements, according to KPMG.  More...

FSC to ban occupational exclusions in default group life insurance in superannuation
FSC – 11 October 2021 – the FSC has announced it will be introducing an enforceable FSC Standard to prohibit the use of exclusions and restrictive disability definitions because a member is employed in a high-risk occupation. It will apply to all default group life insurance in superannuation amongst FSC members. Submissions to the FSC’s consultation process are available here.  More...

ASIC commences proceedings against superannuation trustee Diversa Trustees Limited
ASIC – 11 October 2021 – ASIC has commenced civil penalty proceedings in the Federal Court against Diversa Trustees Limited (Diversa).This is the second case taken by ASIC against a professional trustee for conduct by outsourced service providers.  More...

Super complaints on the decline
MEDIA – 07 October 2021 – AustralianSuper has been the most complained-about super fund in FY21, according to the Australian Financial Complaints Authority, but overall the sector has seen a reduction of complaints from the previous year.  More...

PYS and PMIF lead super complaints
MEDIA – 07 October 2021 – over 5,000 superannuation product complaints were received by the Australian Financial Complaints Authority last financial year, half of which are related to impacts of the Protecting Your Super and Putting Member’s Interests First legislations.  More...

Govt makes CDR changes
MEDIA – 06 October 2021 – the Federal Government has made amendments to the consumer data right (CDR) rules to support increased participation in the new regime. The changes followed consult during July which: Empowered consumers to share their data easily and securely with certain trusted professional advisers, including their accountant, tax agent, financial counsellor, financial adviser or mortgage broker.  More...

New rules to support participation in Australia’s Consumer Data Right
TREASURY – 05 October 2021 – the Morrison Government has made amendments to the Consumer Data Right Rules (version 3 of the rules) that will support increased participation in the Consumer Data Right by businesses and empower consumers to get the value of their data through a broad range of service offerings.  More...

FSC: Capital concentration and competition policy – serious issue or tilting at windmills?
FSC – 05 October 2021 – the House of Representatives Standing Committee on Economics is currently holding an inquiry into the implications of common ownership and capital concentration in Australia.  More...

Leading the development of solutions to reduce compliance burdens – one of the biggest differences industry bodies can make
FSC – 05 October 2021 – the FSC has made no secret of the need to reduce the regulatory burden on the financial services industry, particularly financial advice, in its advocacy to Government and regulators.  More...

ASFA targets commitments for net-zero by 2050
ASFA – 05 October 2021 – the association is seeking feedback on the direction of its climate change strategy with the aim of mitigating climate change risk in portfolios, following the release of a discussion paper.  More...,

Half of employers not aware of YFYS rules
MEDIA – 05 October 2021 – over half of employers are not aware of the Your Future, Your Super and ‘stapling’ legislative changes and there is room for super funds to improve on amplifying value and sharpening communication with members, according to a report.  More...

Additional Banking, Superannuation and Financial Services Royal Commission reforms take effect
TREASURY – 01 October 2021 – consumers and small businesses will benefit from additional protections with the commencement of a further nine recommendations of the Banking, Superannuation & Financial Services Royal Commission and the Design and Distribution Obligations from October 2021.  More...

Still issues with single disciplinary body legislation
MEDIA – 30 September 2021 – the Financial Services and Credit Panel will only convene for serious issues, but there are still issues with the single disciplinary body legislation according to the Association of Financial Advisers.  More...

In practice and courts

Consultation: Better Advice Bill – exposure draft regulations
The Better Advice Bill establishes a single disciplinary body and new registration system for financial advisers, including tax (financial) advisers. The exposure draft regulations and legislative instrument will implement key elements to support the operation of the Better Advice Bill. The Exposure Draft Regulations and Legislative Instruments are available on the Treasury website. Submissions are invited by 15 October 2021 and can be sent to SDBconsultation@treasury.gov.au.

ASIC Updates

13/10/2021 ASIC Corporations (Amendment) Instrument 2021/848 and INFO 262 FAQs: COVID-19 information for advice licensees and financial advisers
Extends 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: See 21-269MR Amended: Instrument 2021/268.

08/10/2021 – updated – issue date unchanged
RG 21 How ASIC charges fees for relief applications; RG 51 Applications for relief; RG 234 Advertising financial products and services (including credit): Good practice guidance; RG 275 The deferred sales model for add-on insurance; INFO 82 Apply for relief; INFO 198 Extended warranties.

01/10/2021 - ASIC Corporations (Design and Distribution Obligations Interim Measures) Instrument 2021/784; ASIC Corporations (Amendment) Instrument 2021/785; INFO 264 FAQs: Design and distribution obligations for advice licensees and financial advisers (reissued 6/10/2021)
Provides interim relief so that advice licensees and financial advisers are no longer required to report to issuers if they have received nil complaints during the reporting period (ahead of the Australian Government’s stated policy intent to make this change in the legislation)
Amended: Class Order [CO 14/1262]; ASIC Instrument 2015/682.

INFO 213 Marketplace lending (peer-to-peer lending) products (reissued); INFO 229 Limited AFS licensees: Complying with your licensing obligations (reissued); INFO 250 Giving AFS and credit licensees information about their representatives (reissued)
Updated to reflect the new requirement for AFS and credit licensee to submit reportable situations (previously 'breach reports') to ASIC via the ASIC Regulatory Portal commencing 1 October 2021: See Reportable situations for AFS and credit licensees.

RG 38 The hawking prohibition (reissued); REP 701 Response to submissions on CP 346 The hawking prohibition:
Update to RG 38; ASIC Corporations (Amendment and Repeal) Instrument 2021/799
Updated to reflect reforms to the anti-hawking regime under the Financial Sector Reform (Hayne Royal Commission Response) Act 2020, commencing 5 October 2021: See 21-257MR and 21-213MR.

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...

APRA publishes additional FAQs on the Superannuation Data Transformation Phase 1 reporting standards
APRA has made an update to FAQ 1.02 to clarify the next reporting period due date for Reporting Standard SRS 705.1 Investment Performance and Objectives. The FAQs are available on the APRA website at: Frequently Asked Questions – Superannuation Data Transformation.
APRA has also published a Change Log for the SDT APRA Connect artefacts. The APRA Connect artefacts and Change Log are available on the APRA website at: APRA Connect Taxonomy Artefacts (08 October 2021).

APRA publishes new FAQs on the 2021 MySuper Product Heatmap
The APRA has released a new set of frequently asked questions (FAQs) on the upcoming 2021 MySuper Product Heatmap, which is due to be released in December 2021. The FAQs are available on the APRA website at: MySuper Heatmap Frequently Asked Questions (06 October 2021).

AASB Consultations
The following AASB documents are open for comment:
ED 309 Disclosure Requirements in Australian Accounting Standards – A Pilot Approach (comments due by 15 October 2021). Please have your say and send your comments to the AASB via the AASB website.

AFCA Datacube updated with latest complaint statistics
The Australian Financial Complaints Authority (AFCA) has updated its online comparative reporting tool, the AFCA Datacube, to include information about financial complaints lodged from 1 July 2020 to 30 June 2021 (07 October 2021).  More...

AFCA 2020–21 Annual Review
The 2020–21 AFCA Annual Review is now available (07 October 2021).  More...

AFCA updates processes to align with ASIC Regulatory Guide 271
AFCA has updated its process map and Operational Guidelines to reflect the changes outlined in ASIC RG 271 (new timelines and requirements). See the process map here. See AFCA’s Operational Guidelines here (01 October 2021).  More...

 AFCA updates Operational Guidelines
The changes include: Aligning AFCA’s processes with ASIC Regulatory Guide 271 Internal Dispute Resolution (RG 271), which comes into effect on 5 October 2021 and Updating guidelines regarding the death benefit decision objection process, removing the requirement that an objection must be in writing. The new Operational Guidelines, as well as previous versions, can be read here.  More...

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 Consultations
11 October 2021 Occupational Exclusions Consultation Paper

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

AIST Legislation updates
Stay up to date with the status of legislation in Australia's parliament
Legislation update – 07 October 2021
Legislation update – 13 October 2021

AIST Newsletters

Superannuation Policy News – 14 October 2021
Action needed to ensure workers in high-risk occupations maintain insurance cover; ASIC extends Covid financial advice relief; FAQs on super data transformation; CEOs urged to review whistleblower policies; Changes to cyber reporting regime flagged; APRA to benchmark funds on risk culture; ATO to acquire AUSTRAC records for 9 million Australians; AIST’s weekly update on the status of legislation.  More...

Superannuation Policy News – 7 October 2021
APRA releases details on MySuper heatmap timeline; Welcome fall in super complaints to AFCA; ASIC releases legislative instruments relating to DDO; Amendments to Consumer Data Right rules; Critical infrastructure update; Hearings for the Common Ownership inquiry to resume next week; Call for stronger compensation scheme; AIST’s weekly update on the status of legislation.  More...

Cases

Schroeder and Australian Securities and Investments Commission [2021] AATA 3519
CORPORATIONS – banning order – where applicant banned from providing financial services for a period of six years – where scope of Tribunal review changed as a result of legislative amendments – whether applicant should be banned from providing financial services on the basis that he is not a ‘fit and proper person’ – whether other grounds for a banning order in s 920A of the Corporations Act 2001 (Cth) enlivened – decision under review varied.

Australian Securities and Investments Commission v Membo Finance Pty Limited [2021] FCA 1166
CORPORATIONS – application by the respondents seeking to strike out parts of the applicant’s further concise statement pursuant to r 16.21 of the Federal Court Rules 2011 (Cth) (the Rules) – application by the respondents, in the alternative, for an order that the applicant provide the “usual particulars” of the further concise statement pursuant to r 16.45 of the Rules – where applicant seeks relief under the National Consumer Credit Protection Act 2009 (Cth) and the Federal Court of Australia Act 1976 (Cth).

Australian Securities and Investments Commission v RI Advice Group Pty Ltd [2021] FCA 1193
PRACTICE AND PROCEDURE – application to strike out parts of Further Amended Statement of Claim (FASOC) – whether parts of FASOC are ambiguous, likely to cause prejudice, embarrassment or delay, or fail to disclose a reasonable cause of action
Corporations Act 2001 (Cth); Federal Court of Australia Act 1976 (Cth); Federal Court Rules 2011 (Cth)
6 In this proceeding ASIC seeks declarations, pecuniary penalties and various compliance orders against RI Advice for alleged contraventions of s 912A(1) of the Corporations Act 2001 (Cth) (the Act). RI Advice describes ASIC’s case as a ‘novel’ claim as it relates to the cybersecurity obligations of a financial services provider required under s 912A(1) of the Act. ASIC relies solely on s 912A(1) of the Act.

Asteron Life & Superannuation Limited, in the matter of Asteron Life & Superannuation Limited (No 3) [2021] FCA 1148
INSURANCE – life insurance – scheme for transfer of life insurance business – application to Court for confirmation of scheme pursuant to s 193 of the Life Insurance Act 1995 (Cth) (Act) – principles applicable to confirmation of scheme of transfer
INSURANCE – application pursuant to s 191(5) of the Act to dispense with the requirement to comply with s 191(2)(c) – principles applicable to dispensation. Corporations Act 2001 (Cth); Financial Sector (Shareholdings) Act 1998 (Cth); Insurance Acquisitions and Takeovers Act 1991 (Cth).

Boland v SAS Trustee Corporation [2021] NSWDC 545
INTERLOCUTORY MOTION – Motion for dismissal of proceedings for abuse of process pursuant to UCPR 36.14 – Consideration of principles applicable – Dismissal not appropriate where matters of fact and law are debateable JURISDICTION – Application of section 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) to a former police officer – Status of previous decision of the Industrial Court in Court Session in Berrick Boland v SAS Trustee Corporation in light of SAS Trustee Corporation v Rossetti holding that the Industrial Relations Commission in Court Session lacked jurisdiction – Whether the previous decision of the Industrial Relations Court in Court Session in respect of s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) precluded the District Court from hearing a further application under s 21 of the Police Regulation (Superannuation) Act 1906 (NSW) by reason of issue estoppel and res judicata STATUTORY INTERPRETATION – Application of s 48 of the Interpretation Act 1987 (NSW) to s 10 B (2) Police Regulation (Superannuation) Act 1906 (NSW).

Legislation

Commonwealth

Regulations

ASIC Corporations (Amendment) Instrument 2021/848
13/10/2021 – 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.

Competition and Consumer (Consumer Data Right) Amendment Rules (No. 1) 2021
05/10/2021 – this instrument amends the Competition and Consumer (Consumer Data Right) Rules 2020 to facilitate greater participation in the Consumer Data Right (CDR) regime by participants and consumers, provide greater control and choice to consumers in sharing their data, promote innovation of CDR offerings including intermediary services, and enable services to be more effectively and efficiently provided to customers.

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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