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Inside track: Superannuation, Funds Management & Financial Services

20 September 2021

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

Common ownership inquiry a ‘conspiracy theory’
MEDIA – 16 September 2021 – in a heated debate during the Parliamentary enquiry of common ownership of markets in Australia, the Association of Superannuation Funds of Australia has accused the committee of dealing in “conspiracy theories”.  More...

No instances of common ownership: AustralianSuper
MEDIA – 16 September 2021 – the industry superannuation fund said it did not believe its investment approach would lead to common ownership.  More...

Retirement Income Covenant a competitive advantage for trustees
MEDIA – 16 September 2021 – Treasury's Retirement Income Covenant allows trustees to address member acquisition and retention challenges, following the introduction of ‘stapling’ as part of the Your Future, Your Super reform.  More...

APRA reviewing super dividend policies
MEDIA – 14 September 2021 – the prudential regulator is investigating the dividend policies of superannuation funds – and it will look beyond those that failed the super performance test.  More...

Fund members to may bear RSE reporting obligation costs
hing to inhouse investment management and industry consolidation as being contributing factors, but that there is not enough research to suggest it will have an adverse effect on the market.  More...

ASIC enforcement update January to June 2021
ASIC – 09 September 2021 – ASIC has released its Enforcement Update for January to June 2021. Between January and June 2021, ASIC recorded the following enforcement outcomes that included: 70 people or entities removed or restricted from providing financial services or credit. ASIC commenced court action targeting misconduct in insurance, superannuation, markets, auditing and credit.  More...

Super disclosure regime to harm retirement outcomes
MEDIA – 09 September 2021 – disclosing the precise value of privately held assets will compromise super funds from being able to effectively implement investment strategies, according to the Australian Institute of Superannuation Trustees.  More...

CFSIL liable for misleading super members
MEDIA – 08 September 2021 – the Federal Court has found that it made false or misleading representations to members to avoid them moving to the MySuper product.  More...

Govt passes spousal super reform
MEDIA – 07 September 2021 – the legislation will improve visibility of superannuation assets in family law proceedings, allowing the Australian Taxation Office to release super information in family court upon request.  More...

Big super funds missing in action on ESG votes
ACCR – 07 September 2021 – despite a growing number of super funds claiming to incorporate ESG into their investment processes, the majority of super funds are still failing to support ESG proposals.  More...

ASIC publishes guidance on breach reporting
ASIC – 07 September 2021 – ASIC released regulatory guidance to help credit and Australian Financial Services licensees to meet new breach reporting obligations, set to commence on 1 October 2021 (07 September 2021).  More...

APRA releases latest biennial stakeholder survey
APRA – 07 September – the APRA’s 2021 Stakeholder Survey has found that APRA’s regulatory and supervisory approaches have positively impacted the banking, insurance and superannuation industries during COVID-19.  More...

Super merger plans super outcome
Government News – 07 September 2021 – new laws have been passed to support the merger of superannuation funds QSuper and Sunsuper, making the joint venture the second largest superannuation fund in the country.
Treasurer and Minister for Investment, Cameron Dick said the Superannuation (State Public Sector) (Scheme Amendment) Bill 2021 would support the proposed merger.  More...

Published – articles, papers, reports

Super Votes: How Australia's largest superannuation funds voted on ESG resolutions in 2020
ACCR Research: Released 02 September 2021
ACCR analysis of the disclosures and voting behaviour of Australia’s 50 largest superannuation funds on ESG shareholder resolutions.  More...

In practice and courts

ASIC Updates – 07 September 2021
RG 78 Breach reporting by AFS licensees and credit licensees (reissued)
NOTE: Superseded SRG 78 continues to apply with respect to certain breaches before 1 October 2021
INFO 259 Complying with the notify, investigate and remediate obligations (new)
REP 698 Response to submissions on CP 340 Breach reporting and related obligations
New regulatory guidance to help credit and Australian financial services (AFS) licensees meet new breach reporting obligations commencing 1 October 2021: See 21-235MR.

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 (AFS) 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
The APRA has published a set of additional frequently asked questions (FAQs) to provide further guidance to registrable superannuation entity licensees on the reporting standards for Phase 1 of the Superannuation Data Transformation project. The new FAQs are available on the APRA website at: Frequently Asked Questions – Superannuation Data Transformation (14 September 2021).

AFSA feedback on guidance resources
AFSA is seeking your feedback on proposals to improve the accessibility of our guidance resources for stakeholders including Inspector-General Practice Statements, Inspector-General Practice Directions, Official Receiver Practice Statements and Official Trustee Practice Statements. We have set up a consultation on AFSAsandpit and invite you to submit your feedback before 1 October (07 September 2021).

AFCA Current Matters
Sterling group investors (Updated September 2021).

Cases

Australian Securities and Investments Commission v Westpac Securities Administration Limited, in the matter of Westpac Securities Administration Limited [2021] FCA 1008
BANKING AND FINANCIAL INSTITUTIONS – enforcement and remedies – pecuniary penalties for contraventions of s 961K of the Corporations Act 2001 (Cth) – penalties sought by plaintiff not opposed by defendants – whether quantum of penalty appropriate
Each is and was at all relevant times the holder of an Australian financial services licence granted under s 913B of the Act – authorised to provide financial product advice, including in relation to superannuation products, which was general advice (within the meaning of s 766B(4) of the Act) but was not personal advice (within the meaning of s 766B(3) of the Act).

Sanderson, in the matter of Taylorsix Pty Ltd (in liq) [2021] FCA 1123
CORPORATIONS – application by liquidator under s 57 of the Federal Court of Australia Act 1976 (Cth) to be appointed receiver of trust assets – where corporate trustee is trustee of a self-managed superannuation fund – where trust deed removes the corporate trustee upon external administration of the company – where the company is a disqualified person under s 120(2)(e) of the Superannuation Industry (Supervision) Act 1993 (Cth) by reason of its winding up – where the corporate trustee has incurred liabilities in its role as trustee – where the liquidator has incurred remuneration and expenses in his efforts to locate the trust property in the absence of cooperation of the directors – where corporate trustee cannot realise its right to indemnity and exoneration as bare trustee – where there is some urgency to maintain and realise the trust property as they are located on properties owned by third parties and may be at risk of being relocated – where the liquidation is otherwise without funds – whether the circumstances warrant the making of an order – held: Application successful – orders also made requiring the liquidator to notify the Commissioner of Taxation and the Australian Prudential Regulation Authority of the application and the orders made.

Porter & Anor v Mulcahy & Co Accounting Services Pty Ltd & Ors [2021] VSC 572
CONTRACT – implied contract of retainer – novation – whether retainer of accountant by the plaintiffs or either of them – implied terms – good faith – duty not to disclose or use confidential information – duty not to make improper use of position to gain advantage or to cause detriment – APES 110 Code of Ethics for Professional Accountants – retainer by second plaintiff – breach – opportunity usurped by accountant for own benefit and third party incorporated for that purpose
EQUITY – fiduciary relationship – client and accountant not established category – relationship of trust and confidence – one plaintiff vulnerable – confidential information disclosed – accountant in position to affect interests of the client in a practical sense – scope of duty – breach
EQUITY – accessorial liability – knowing assistance – requisite degree of knowledge – fiduciary the directing mind of third party corporation – third party the alter ego of fiduciary – corporation knowingly assisted breach of fiduciary duty.

Legislation

Queensland

Superannuation (State Public Sector) (Scheme Administration) Amendment Bill 2021
01/09/2021 – this Act, other than part 2, divisions 1 and 2, commences on a day to be fixed by proclamation.
This part amends the Superannuation (State Public Sector) Act 1990.

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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