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Inside track: Superannuation, Funds Management & Financial Services

25 February 2019

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

Critical need for super objective to be legislated
It is imperative that Government puts the process of legislating the objective of superannuation back on the agenda in 2019. By legislating the objective of superannuation, it would help drive effective policy and the role of all superannuation funds, industry, retail and SMSFs, especially in anticipation of these legislative recommendations (21 February 2019).  More... 

ASIC welcomes new whistleblowing laws
ASIC has welcomed the passing of the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018, approved by Parliament late on 19 February 2019. The reforms significantly improve the protections available for whistleblowers who report company misconduct. The reforms are outlined here (21 February 2019). 

SMSFs, super industry need access to better data
There was an urgent need for better data, not only for the self-managed super fund (SMSF) sector but right across the superannuation industry, SMSF Association Chair Professor Deborah Ralston told the Association’s 2019 National Conference (20 February 2019).  More... 

Protecting members from unnecessary insurance in superannuation
The Coalition Government will introduce legislation into the Parliament to protect Australians from paying premiums for insurance they don’t want, need or even know they have. The Treasury Laws Amendment (Putting Members' Interests First) Bill 2019 will require insurance in superannuation for under 25 year olds and members with low balance accounts to only be offered on an opt-in basis from 1 October 2019 (20 February 2019).  More...  

Labor to introduce royal commission bills
Labor is set to introduce three private member bills into Parliament that will implement key recommendations of the royal commission. Despite there not being more sitting weeks, the opposition party has given notice of intention behind three bills that deal with commissions, consumer protections and strengthening AFCA (20 February 2019).  More... 

AFCA to accept legacy financial complaints from 1 July 2019
The Australian Financial Complaints Authority (AFCA) warmly welcomes the Government’s announcement to extend AFCA’s remit to review eligible financial complaints dating back to 1 January 2008 (20 February 2019).  More...  

AMP assess Superannuation bill’s impact
AMP has completed an assessment of the impact of the federal government’s Treasury Laws amendment bill and said it would have a multimillion-dollar impact. From 2020 though there would be an annualised impact of up to $30 million after tax, with most of the impact to be felt by wealth management businesses (19 February 2019).  More...  

New whistleblower laws praised by regulator
The Government passes new legislation that requires all public companies and superfunds to have a whistleblower policy from 1 July 2019.The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018, approved by Parliament late on 19 February 2019, improves the protections available for whistleblowers who report company misconduct (19 February 2019).  More... 

Government statement: Government taking action on all 76 recommendations
The Coalition Government is getting on with the job of implementing the recommendations of the Royal Commission in a number of important areas, passing legislation through the Senate to significantly increase criminal and civil penalties for corporate and financial sector misconduct and announced an immediate review of financial counselling services (18 February 2019).  More...  

ASIC to appeal Westpac subsidiaries Federal Court decision
ASIC has made an appeal with the Federal Court against two Westpac subsidiaries, calling into question the decision regarding whether the firms failed to adhere to the best interests duty. ASIC deputy chair Daniel Crennan said the dividing line between personal and general advice is one of the most important provisions within the Financial Services Laws (18 February 2019). More... 

New laws to amplify ASIC's penalty powers
Corporate regulator ASIC will soon be able to deal harsher civil penalties and criminal sanctions to corporate criminals, after a significant bill passed the Senate. The new legislation increased maximum prison penalties for the most serious offences, including breaches to director’s duties, false or misleading disclosure, and dishonest conduct, to 15 years (16 February 2019).  More...  

ASIC threatens maximum jail terms of 15 years and steeper fines for convicted white-collar criminals
The corporate watchdog has put white-collar criminals on notice with a raft of tough new proposed penalties, including potential maximum jail terms of fifteen years. Companies could also face a capped fine of $525 million per civil violation, where violations could be three times the benefit gained or ten per cent of annual turnover (15 February 2019).  More...  

Taking action on the Banking, Superannuation & Financial Services Royal Commission
The Coalition Government has passed legislation through the Senate that acts on two of Commissioner Hayne’s recommendations and will enhance accountability of superannuation funds and strengthen protections for consumers (15 February 2019).  More...  

Amended legislation will keep more people in super system
The Australian Institute of Superannuation Trustees (AIST), has welcomed the passage of the Protecting Your Super package, noting that important amendments would protect members from unintended consequences of the new legislation (15 February 2019).  More... 

ASIC consults on responsible lending update
ASIC has issued a consultation paper to update its guidance on responsible lending in the wake of the royal commission. The review will consider whether the guidance remains effective and identify changes that need to be made to the guidance to help credit licence holders better understand ASIC expectations (15 February 2019).  More... 

New unpaid super laws fall short: ISA
Industry Super Australia has commended parliament for passing legislation introducing potential jail time for bosses who fail to pay workers’ superannuation, although the body has said that the government has not taken enough action with more is required fix the problem at its source (14 February 2019).  More... 

Securing workers’ fair share of super
The Morrison Government is protecting the rights of Australian workers to their superannuation. Legislation which passed the Parliament, it gives the Australian Taxation Office (ATO) the information and tools it needs to identify and prosecute employers who are not paying super for their employees (12 February 2019).  More... 

ISA demands new super legislation
Industry Super Australia (ISA) has urged Parliament to pass the Protecting Your Super Bill along with other legislative changes to protect workers’ superannuation savings, with the concern that their savings are being eroded by chronic underperformance, multiple accounts and for-profit fund fee-gouging (12 February 2019).  More... 

Taking action on the Banking, Superannuation & Financial Services Royal Commission Recommendation 6.13: Regular Capability Reviews
The expert panel that will lead a capability review of the Australian Prudential Regulation Authority (APRA) will comprise Chair Graeme Samuel AC, Diane Smith-Gander and Grant Spencer (11 February 2019).  More...  

In practice and courts

AFCA Current Matters – February 2019
Berndale Capital Securities Pty Ltd
Bestjet Travel Pty Ltd (Bestjet)
Viewble Media and The Shoppers Network

ASIC update on implementation of Royal Commission recommendations
ASIC has provided an update on its planned actions responding to the Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Royal Commission) (19 February 2019).  More...  

IASB Updates
The issue covers IFRS for SMEs® Standard—review and update; Management Commentary; Primary Financial Statements; Amendments to IFRS 17 Insurance Contracts and IBOR Reform and the Effects on Financial Reporting (February 2019).  More... 

ASFA Submissions
Submission to The Treasury - ASFA response to Consultation Paper: Review of the early release of superannuation benefits (19 February 2019).  More... 

APRA update on implementation of Royal Commission recommendations
APRA intends to incorporate further information about the activity and timeframes associated with implementing the recommendations in future public announcements. The first of these will be APRA’s Policy Agenda for 2019, which is scheduled to be published later this month. The table with APRA's plans in relation to specific recommendations contained in the Final Report of the Royal Commission can be found here (11 February 2019).  More...


Qantas Superannuation Limited v McAulay [2019] FCA 109
SUPERANNUATION – where trustee of regulated superannuation fund offset estimated future disability support pension (DSP) payments against the Total and Permanent Disablement (TPD) benefit payable to the member – where effect of offsetting DSP was to reduce the TPD payable to nil but member paid withdrawal benefit – where appeal on a question of law from decision of the Superannuation Complaints Tribunal setting aside the trustee’s decision as unfair and unreasonable – consideration of what is meant by unfair and unreasonable in s 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) – consideration of principles governing construction of superannuation trusts – whether DSP is “income” for the purposes of the Superannuation Plan – consideration of the different purposes of the provision of a disability benefit and a TPD benefit under the Superannuation Plan – whether the trustee’s construction of the offsetting provision means that the member loses the benefit of membership contrary to the prescribed statutory purposes of the regulated superannuation fund – whether Tribunal erred in reading down the offsetting provision in the Superannuation Plan by reference to the ejusdem generis principle – appeal allowed.
PRACTICE AND PROCEDURE – application under rule 33.29 of the Federal Court Rules 2011 (Cth) to rely upon further evidence on the appeal – where further evidence sought to be relied upon as evidence of circumstances surrounding the amendment of the relevant rule in the Superannuation Plan – where documents evidence only the trustee’s subjective intention – application dismissed.




Treasury Laws Amendment (Putting Members’ Interests First) Bill 2019
HRs Second reading moved 20/02/2019 - This Bill contains amendments to the SIS Act to protect individuals’ retirement savings from erosion, ultimately increasing Australians’ superannuation balances. Date of effect: 1 October 2019. Proposal announced: This Bill partially implements the Protecting Your Super Package announced in the 2018-19 Budget.

Treasury Laws Amendment (Improving Accountability and Member Outcomes in Superannuation Measures No. 1) Bill 2019
HR Introduced and read a first time 18/02/2019 -  Introduced with the Superannuation Laws Amendment (Strengthening Trustee Arrangements) Bill 2017, the bill amends the: Superannuation Industry (Supervision) Act 1993 to: require trustees to assess on an annual basis whether the outcomes that are being delivered by MySuper products are promoting the financial interests of MySuper members; allow the Australian Prudential Regulation Authority (APRA) to refuse, or cancel, an authority to offer a MySuper product if it has a reason to believe the registrable superannuation entity (RSE) licensee may fail to comply with its obligations; impose civil and criminal penalties on directors of RSE licensees who fail to execute their responsibilities to act in the best interests of members, or who use their position to further their own interests to the detriment of members; enable APRA to refuse authority for a change in ownership or control where it has concerns about the person seeking ownership or control, give a direction to a person to relinquish control of a RSE licensee and remove or suspend an RSE licensee where it is subject to the control of its owner; align APRA’s directions powers in relation to the superannuation industry with its broader directions powers in the banking and insurance industries; and require RSE licensees to hold annual members’ meetings; Corporations Act 2001 and Superannuation Industry (Supervision) Act 1993 to require superannuation funds to disclose on a semi-annual basis investments that they hold directly or through associated entities and initial investments into non-associated entities; Financial Sector (Collection of Data) Act 2001 to provide APRA with the ability to obtain information on expenses incurred by RSE and RSE licensees in managing or operating the RSE; and Australian Prudential Regulation Authority Act 1998 to make consequential amendments.

Treasury Laws Amendment (Protecting Your Superannuation Package) Bill 2018
Finally passed both Houses 18/02/2019 - Amends the: Superannuation Industry (Supervision) Act 1993 to: prevent trustees of superannuation funds from charging certain fees and costs exceeding 3 per cent of the balance of a MySuper or choice product annually where the balance of the account is below $6000; and prevent trustees from providing opt out insurance to new members aged under 25 years, members with balances below $6000 and members with inactive MySuper or choice accounts, unless a member has directed otherwise; and Superannuation (Unclaimed Money and Lost Members) Act 1999 to: require the transfer of all superannuation savings with a balance below $6000 to the Commissioner of Taxation if an account related to a MySuper or choice product has been inactive for a continuous period of 13 months; and enable the commissioner to consolidate amounts that have been paid as unclaimed money, inactive low-balance accounts and lost member accounts into an active superannuation account where the reunited balance would be greater than $6000; and Income Tax Assessment Act 1997 and Taxation Administration Act 1953 to make consequential amendments.

Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018
Finally passed both houses 19/02/2019 -  Amends the: Corporations Act 2001 to consolidate and broaden the existing protections and remedies for corporate and financial sector whistleblowers; Taxation Administration Act 1953 to create a whistleblower protection regime for disclosures of information by individuals regarding breaches of the tax laws or misconduct relating to an entity’s tax affairs; and Banking Act 1959, Insurance Act 1973, Life Insurance Act 1995 and Superannuation Industry (Supervision) Act 1993 to make consequential amendments.

Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill 2018
Senate 14/02/2019 – 3rd reading -  Implements recommendations of the ASIC Enforcement Review Taskforce by amending the Corporations Act 2001, ASIC Act 2001 as well as the National Consumer Credit Protection Act 2009 and Insurance Contracts Act 1994. It strengthens existing penalties and introduces new penalties for those who have breached the corporate laws of Australia designed to protect its citizens.


Financial Planners and Advisers Code of Ethics 2019
13/02/2019 - This instrument is the Code of Ethics for relevant providers (financial planners and advisers), made by the Financial Adviser Standards and Ethics Authority, the standards body under section 921X of the Corporations Act 2001. Under section 921E of the Act, all relevant providers must comply with the Code of Ethics.

Corporations (Relevant Providers Exams Standard) Determination 2019
12/02/2019 - This instrument approves the exam that a person must pass to meet the second of the education and training standards under section 921B of the Corporations Act 2001 (see subsection 921B(3) of the Act).

Chris Lovell, Chairman
T: +61 3 9321 9832

Paul Faure, Partner
T: 61 3 9321 9904

Bill Glover, Partner 
T: 61 3 9321 9844

Kylie Wilson, Partner
T: 61 7 3135 0514

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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