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Inside track: Superannuation, Funds Management & Financial Services

06 November 2019

#Superannuation, Funds Management & Financial Services

Inside track: Superannuation, Funds Management & Financial Services

In the media

Consumers ripped off by banks, credit card companies and insurance companies claw back $185m
The Australian Financial Complaints Authority is receiving an average 200 complaints per day from Australian consumers (01 November 2019).  More... 

$185 million in compensation awarded to consumers in AFCA's first 12 months
The Australian Financial Complaints Authority is today celebrating 12 months since it opened its doors as the nation’s one-stop-shop for complaints about financial firms (01 November 2019).  More... 

Australian Government to review retirement income system
The Australian Government has established of an independent review of the retirement income system so as to ensure Australians are well-supported during their retirement. The Review will examine the means tested age pension, compulsory superannuation and voluntary savings, including home ownership, and consider the role of each in supporting Australians in their retirement (31 October 2019 ).   More... 

ASIC takes civil penalty action against RI Advice and former Melbourne financial adviser, John Doyle: Royal Commission case study
ASIC alleges RI Advice knew, or should have known, that there was substantial risk Mr Doyle was not complying with his obligations under the law and was repeatedly recommending structured products to his clients, bypassing compliance processes (30 October 2019).  More... 

ASIC warns trustees on new rules for putting members’ interests first
ASIC has called on superannuation trustees to improve the standard of communication to fund members about important reforms impacting member insurance arrangements (30 October 2019).  More... 

ASIC extends relief for portfolio holdings disclosure
ASIC has amended ASIC Class Order [CO 14/443] to provide legal certainty about the first reporting day for portfolio holdings disclosure, given the regulations setting out the required disclosures have not yet been made (29 October 2019).   More... 

FSC media release FSC releases guide to help stop elder financial abuse
The Financial Services Council (FSC) Guide on the Prevention of Elder Financial Abuse (The Guide) was launched today signalling an important step by the financial services sector towards ending the financial abuse of older Australians (29 October 2019).  More... 

ASIC wins appeal against Westpac companies
In a fresh blow to Westpac, the Federal Court delivered the corporate regulator a win in its appeal against a previous ruling on Westpac's telephone campaigns. The corporate regulator claimed that the two Westpac companies had breached their FoFA-stipulated best interest duty by advising rollovers to Westpac-related super funds without a proper comparison of options, as required by law (28 October 2019).  More... 

ASIC imposes additional licence conditions on IOOF Investment Services Ltd to improve governance and conflicts management
ASIC has imposed additional licence conditions (relating to the governance, structure and compliance arrangements) on the Australian financial services (AFS) licence of IOOF Investment Services Ltd (IISL) as part of an application by IISL to vary its licence (28 October 2019).  More... 

Unclaimed money and lost members regulations
AIST welcomes the release of the draft regulations ensuring the ongoing operation of the lost and unclaimed money regime for certain superannuation products. AIST raised concerns that there is insufficient clarity in the Regulations on how members that have previously made a severe hardship claim should be treated by an RSE licensee and has called for more guidance in this area (25 October 2019).  More... 

Update to Code of Ethics guidance release
Further to the recent (18 October 2019) release of FG002 Guidance to the Code of Ethics, the Financial Adviser Standards and Ethics Authority wishes to confirm the first consultation with designated representatives of consumer, professional, education and other industry groups commence November 12, 2019 (24 October 2019).  More...

Strong consumer response to ‘protecting your super’ changes
Commenting on the survey results, ASFA Deputy CEO and Chief Policy Officer, Glen McCrea said, the high opt-in rate shows the value that people place on having insurance as part of their superannuation, and that Australians take these insurance changes seriously. The paper, released today, also looks at the potential impact of the upcoming Putting Members’ Interests First (PMIF) changes which will take effect on 1 April, 2020 (21 October 2019).  More... 

New accounting rule 'gives more transparency': EY
More financial details over how an insurer performed can be expected when the International Accounting Standards Board’s new IFRS 17 rule kicks in, according to global audit firm EY (21 October 2019).   More... 

The age of disclosure is over
Financial services product disclosure laws have failed to protect consumers as intended, a study by the Australian Securities and Investments Commission (ASIC) has found. Insurance featured in several of the 33 case studies that ASIC examined in the joint report with the Dutch Authority for the Financial Markets (21 October 2019). More... 

In practice and courts

ASIC Class Order [CO 14/443] Reporting dates
The amendments made to CO 14/443 defer the first reporting day to 31 December 2020. This will allow further time for Government to develop and make the regulations. It also provides industry with certainty about the commencement date and time to finalise their reporting processes and disclosures.  More... 

Implementing the protecting your super changes and putting members’ interests first
Ross Clare Director of Research, ASFA: released 21 October 2019
Based on the responses from the survey, an estimated three million accounts in total were liable to lose insurance cover on 1 July as a result of the changes. There was an average opt-in rate for insurance cover of just over 16 per cent of those affected.  More...

AIST policy news - 30 October 2019
30 October 2019 - ASIC warns on insurance communications | APRA data | life expectancy on the rise & more.  More...

FASEA Code of Ethics and Guide reminder
The Code of Ethics that is applicable to the conduct of all advisers who provide financial services to retail clients. Compliance with the Code which comprises five (5) values and twelve (12) Standards will come into effect on 1 January 2020. To assist stakeholders in understanding, interpreting and applying the Code, FASEA is releasing a Code of Ethics guide.  More... 

FASEA
FASEA have announced that registrations are now closed, 31 May 2019 for financial advisers to notify their intention to sit the FASEA exam. What you need to know (October 2019).  More... 

IFRS compilation of 2019 agenda decisions has been published
The IFRS Foundation’s first biannual Compilation of Agenda Decisions brings together agenda decisions published by the IFRS Interpretations Committee from January to September, 2019. Future compilations will be published twice a year (April and October). You can view them here (23 October 2019). 

IFRS: Interest-rate benchmarks amendments
Amendments issued focus on the accounting effects of uncertainty in the period leading up to the reform. The amendments come into effect from 1 January 2020 but companies may choose to apply them earlier. Interest Rate Benchmark Reform, which amends IFRS 9, IAS 39 and IFRS 7, can be accessed here (subscription required). A project summary, providing further information about the Board’s work in relation to IBOR reform, is also available. 

ASIC consultation: foreign financial services providers relief proposals
ASIC has extended to 31 March 2020 licensing relief for foreign financial services providers (FFSPs) to allow them to provide certain financial services to Australian wholesale clients without needing to hold an Australian financial services licence.   More... 

Proposed amendment to Chapter 11 of the AML/CTF Rules (Compliance Report – reporting and lodgment periods)
AUSTRAC has released proposed amendments to Chapter 11 of the AML/CTF Rules for public consultation.
The proposed amendments remove references to the 2018 reporting and lodgment periods and sets those periods for 2019 and each successive year. The consultation period for these amendments is open until 12 November 2019.   More... 

APRA: Consultation on directions for integrating AASB 17 into the capital and reporting frameworks for insurers - Round 1
The September 2019 consultation outlines APRA’s proposed directions for integrating AASB 17 into the prudential capital and reporting frameworks for insurers, and an update on the policy development timeline. APRA is also requesting information from all insurance entities on their preparedness for AASB 17.   Submissions will be received until 22 November 2019.  More... 

AASB Invitation to Comment
ITC 40 Financial Instruments with Characteristics of Equity – The International Accounting Standards Board has recently published Discussion Paper DP/2018/1 Financial Instruments with Characteristics of Equity. Submissions to the IASB are were by 7 January 2019.  More...

ATO: Proposed Superannuation Guarantee amnesty
The proposed Superannuation Guarantee (SG) Amnesty (the proposed amnesty) and re-introduced the associated legislation into Parliament. Until the proposed amnesty law is enacted by Parliament, ATO  will continue to apply the existing law to the SGC statements you lodge. For more information see here

Gazette - Superannuation Industry (Supervision) Act 1993

31/10/2019
Notice of Disqualification - Melita Doneva, Zoran Donev

29/10/2019
Notice of Disqualification - Warren McKean; Andrew Mururi; Tecla Mururi; Raeleen M Logan; Nicholas Alexander Logan; Simone Frankeni

25/10/2019
Notice of Disqualification - Sharlene Seiuli

Cases

TPT Patrol Pty Ltd as trustee for Amies Superannuation Fund v Myer Holdings Limited [2019] FCA 1747
CORPORATIONS – representative proceeding – listed securities – continuous disclosure obligations – ASX listing rule 3.1 – failure to disclose material information to market – forecast of net profit after tax – absence of reasonable grounds – failure to correct forecast – concept of “information” under listing rules – concept of “awareness” under listing rules – contravention of s 674 of Corporations Act 2001 (Cth) – misleading or deceptive conduct relating to securities – contravention of s 1041H of Corporations Act – availability of market based or indirect causation theory – loss and damage. 

Angela Cecila Theresa Frigger and Hartmut Frigger in their capacities as trustees of the Frigger Superannuation Fund v Mervyn Johnathon Kitay in his Capacity as Liquidator of Computer Accounting & Tax Pty Ltd (In Liquidation) [No 15] [2019] WASC 384
Practice and procedure - Where action stayed due to plaintiffs' bankruptcy - Whether new plaintiff can be substituted
Hartmut Hubert Josef Frigger and Angela Cecilia Theresa Frigger bring this action in their personal capacities and, as the second plaintiff, in their capacity as trustees of the Frigger  Superannuation  Fund.
Pursuant to s 126J(1)(b) of the  Superannuation Industry (Supervision) Act 1993  (Cth), each of the Applicants is not a disqualified person in relation to the Company and the Frigger Super Fund.[1]

Australian Securities and Investment Commission v Westpac Securities Administration Limited [2019] FCAFC 187
CORPORATIONS – where Westpac conducted campaign to encourage customers to roll over funds held in external  superannuation  accounts into their existing Westpac accounts – whether Westpac’s campaign involved the provision of a “recommendation” or “statement of opinion” amounting to “financial product advice” – whether Westpac’s campaign involved the provision of “personal advice” or “general advice” within the meaning of s 766B of the Corporations Act 2001 (Cth) (the Act) – where primary judge found that Westpac provided general financial product advice – “personal advice” was given because a reasonable person might expect the callers to have considered the objectives of the customers in making the recommendation to accept the rollover service – consequent contraventions of ss 912A(1)(b) and (c), 946A, 961B(1) and 961K(1) of the Act – appeal allowed
CORPORATIONS – whether Westpac failed to do all things necessary to ensure financial services provided “efficiently, honestly and fairly” – where primary judge found contraventions of s 912A(1)(a) of the Act – Westpac did not act efficiently, honestly, or fairly in conducting a campaign with the aim of getting its customers to make a decision after the provision of only “general advice” where that decision could only prudently be made having regard to information personal to the customers and the  superannuation  accounts – whether, if Westpac had been found to have given only “general advice”, an alternative case on s 912A(1)(a) was run before the primary judge – no alternative case articulated because the case before the primary judge was predicated on the likelihood or fact of “personal advice” – cross-appeal dismissed

GYBW and Commissioner of Taxation (Taxation) [2019] AATA 4262
TAXATION – complying  superannuation  fund – taxation of  superannuation  entities – dividends from a company – whether a non-arm’s length relationship exists – where dividends paid according to shares held but whether transition of acquisition was non-arm’s length – whether the value of the shares was nil or nominal – future cash flows – penalties – failure to take reasonable care – safe harbour provisions – voluntary disclosure – shortfall interest
The written advice from the law firm dated some 10 months later, 28 March 2012, was in evidence before the Tribunal.[13] The advice is expressed to concern whether the acquisition of shares by the trustee of Mr D’s self-managed  superannuation  fund complied with the laws governing  superannuation  and, in particular, the  Superannuation Industry (Supervision) Act 1993 .

Frigger, in the matter of an application by Frigger [2019] FCA 1730
CORPORATIONS - application for leave to manage corporation under s 206G(1) Corporations Act 2001 (Cth) - application for order that applicants not disqualified persons under s 126J(1)(b) Superannuation Industry (Supervision) Act 1993 (Cth) - discussion of circumstances giving rise to applicants' disqualification - factors in favour of granting application - possible risk of corporation being drawn into substantial volume of litigation - application granted subject to condition
Bankruptcy Act 1966 (Cth) s 149; Corporations Act 2001 (Cth) ss 201B, 206A, 206B, 206G, 206GAB, Part 2D.6

Legislation

Commonwealth

Treasury Laws Amendment (Ending Grandfathered Conflicted Remuneration) Act 2019
29/10/2019 - Act No. 87 of 2019  

Treasury Laws Amendment (2019 Tax Integrity and Other Measures No. 1) Act 2019
31/10/2019 - Act No. 95 of 2019 - Schedule 7—Salary sacrifice integrity  - Superannuation Guarantee (Administration) Act 1992

Treasury Laws Amendment (2019 Measures No. 2) Bill 2019
Assent Act no: 94  Year: 2019 28 October 2019 - Amendments include: Income Tax Assessment Act 1997 to extend the concessional tax treatment for genuine redundancy and early retirement scheme payments made to individuals who are 65 years or older provided the dismissal or retirement occurs before they reach pension age; Superannuation (Unclaimed Money and Lost Members) Act 1999 to enable the Commissioner of Taxation to pay interest on amounts held by the commissioner that are proactively reunified with a person’s active superannuation account; and Superannuation (Unclaimed Money and Lost Members) Regulations 1999 to prescribe the rate of interest payable on inactive low balance accounts and amounts proactively reunified by the commissioner.

Regulation

Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulations 2019
22/10/2019 - These regulations amend the Australian Securities and Investments Commission Regulations 2001, the Competition and Consumer Regulations 2010 and the Corporations Regulations 2001 to update the list of prescribed professional schemes that have capped civil liability for misleading and deceptive conduct under the Australian Securities and Investments Commission Act 2001, the Competition and Consumer Act 2010 and the Corporations Act 2001 to provide consistency across Commonwealth and State and Territory laws.

NSW

Regulations and other miscellaneous instruments
Referable Debt Order (2019-528) — published LW 1 November 2019

Victoria

Acts
Superannuation Legislation Amendment Act 2019
Act Number: 36/2019 Date of assent: 22 October 2019

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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