In the media
Dubai and Australia seal agreement on fintech
cooperation
ASIC – 23 November 2017 - The Dubai Financial
Services Authority (DFSA) and ASIC today signed a
Cooperation Agreement which provides a framework for
cooperation to support and understand financial innovation in each
jurisdiction.
More...
ASIC takes action against unlicensed financial services
companies
ASIC – 23 November 2017 - ASIC obtained orders in
the Queensland Supreme Court against Sport & Events Promotions
Pty Ltd and Prize Promotions Pty Ltd, who were found to be in
breach of the Corporations Act by carrying on a business of dealing
in financial products in Australia without holding the required
Australian financial services (AFS) licence.
More...
ASIC granted injunctions against Superfunded
MEDIA – 23 November 2017 - Sarah Jane Busteed has
been charged after dishonestly obtaining a financial advantage by
deception in relation to SMSF property investments. The ASIC has
obtained injunctions against Perth-based Superfunded, its sole
director and its shareholder from the Federal Court, as it
commenced proceedings against all three.
More...
AFMA releases 2017 Australian Financial Markets
Report
AFMA – 23 November 2017 - The Australian Financial
Markets Association (AFMA) has released the 2017
Australian Financial Markets Report, its annual review of
Australia's over-the-counter and exchange-traded financial
markets. More...
ASIC industry funding model consultation on regulatory
fees-for-service activities
TREASURY – 22 November 2017 - Consistent with the
commitment ensuring that ASIC has the resources and powers it needs
to combat misconduct in Australia's financial services
industry, the Government has today released a consultation paper on
the next phase of the ASIC industry funding model – the
introduction of ASIC fees-for-service.
More...
ASIC delivers on commitment to help limited AFS
licensees understand their obligations
ASIC - 22 November 2017 – The Australian Securities
and Investments Commission (ASIC) has released new
webpage guidance and information sheets to help limited Australian
Financial Services (AFS) licensees and their
representatives understand their key obligations.
More...
Super bills fail to address underperforming bank-owned
funds
ISA – 21 November 2017 - Despite the persistent
underperformance of bank-owned super funds, the Coalition
Government is targeting Australia's high-performing,
not-for-profit industry super funds in three bills before
parliament.
More...
How planners will sit in judgement on planners
MEDIA – 17 November 2017 The Victorian Supreme
Court has prevented a law firm from proceeding with a proposed
class action against IOOF in relation to allegations that it
breached its obligations or engaged in misconduct. It has been
confirmed that the financial planners appointed to the ASIC
Financial Services and Credit Panel will be expected to sit in
judgement and help determine banning orders against their fellow
planners.
More...
ASIC releases guidance for the Financial Services and
Credit Panel
ASIC – 16 November 2017 ASIC has released
regulatory guidance on the newly established Financial Services and
Credit Panel (FSCP), which covers the types of
matters to be referred to sitting panels of the FSCP and the
hearing procedures and decisions of these panels.
More...
ISA accuses Government of ideological attack
ISA – 16 November 2017 - Industry Super Australia
(ISA) has attacked the Federal Government's
superannuation reforms, accusing the Government of pursuing an
ideological attack on industry funds and unions rather than
responding to the industry's problems.
More...
ASFA encourages maximising tax returns through
super
MEDIA – 14 November 2017 - Although the retention
of LISC would benefit women's retirement, an alternative flat
tax rebate will benefit low income earners more, Rice Warner
believes. The Association of Superannuation Funds of Australia
(ASFA) has urged Australians to invest their tax
returns in super, saying that taking advantage of compound interest
and tax deductions will reward them in their retirement.
More...
ASIC confirms 'independence' definitions
MEDIA – 21 November 2017 - The corporate regulator
has affirmed its position on changes to section 923A of the
Corporations Act, which will restrict the terms financial
advisers can use to describe their businesses. In a statement
released today, ASIC confirmed it would be updating its regulatory
guidance to restrict the use of terms implying independence to only
those advisers meeting the regulator's new
definition of 'independent' (14 November 2017).
More...
ASIC confirms restricted use of 'independently
owned' in financial services
ASIC - 14 November 2017 - ASIC has updated its regulatory
guidance to confirm restrictions that were announced in June 2017
on the use of terminology that implies independence. The guidance
in RG 175 on s923A reflects ASIC's announcement in 17-206MR
ASIC clarifies its position on the use of independently owned under
s923A.
More...
Former Principal of Sherwin Financial Planners sentenced
to 10 years imprisonment for fraud
ASIC - 14 November 2017 - The former Principal of Sherwin
Financial Planners Pty Ltd and Chairman of Wickham Securities Ltd,
Bradley Thomas Sherwin, was sentenced in the Brisbane District
Court today to a total of 10 years imprisonment on 25 charges,
brought by the Commonwealth Director of Public Prosecutions
following an ASIC investigation arising out of the collapse of his
financial planning business.
More...
In practice and courts
ASIC industry funding model consultation: regulatory
fees-for-service activities
The consultation paper released looks at the recovery of
ASIC regulatory costs that are directly attributable to a single,
identifiable, entity. This is referred to as
'fees-for-service'. This is the final aspect of the ASIC
Industry Funding Model and will commence from 1 July 2018. Fees
associated with registry activities are excluded from the scope of
this proposal. Comments on the consultation paper close 15 December
2017 (22 November 2017). More...
APRA superannuation statistics September 2017
APRA has released superannuation statistics for
September 2017 (21 November 2017). More...
CIO News - Issue 4 – 21 November 2017
Topics in this issue: Annual Report on Operations
2016/17; Systemic issues update - Q1 2017/18; Review of CIO Dispute
Resolution Conference 2017; Complaint statistics first quarter
2017/18; Reconciliation Action Plan. More...
ASIC guidance for the Financial Services and Credit
Panel
Regulatory Guide 263 Financial Services and Credit
Panel (RG 263) sets out the principles and processes of the
FSCP. It covers the types of matters to be referred to sitting
panels of the FSCP and the hearing procedures and decisions of
these panels. RG 263 should be read in conjunction with regulatory
guides and information sheets published on administrative
decision-making processes and how these will administer the
financial services provisions of the Corporations Act 2001
and the National Consumer Credit Protection Act 2009 (16
November 2017).
ASIC updated Guide released: RG 175 Licensing: Financial
product advisers – conduct and disclosure
The updated
Regulatory Guide 175 Licensing: Financial product
advisers – conduct and disclosure (RG
175), includes guidance that terms such as
'independently owned', 'non-aligned' and
'non-institutionally owned' are restricted under the
Corporations Act (the Act). Financial services
providers can only use these terms if they meet the requirements
set out in s923A of the Act, including that they do not receive
commissions, volume-based payments, or other gifts or benefits, and
operate without any conflicts of interest (14 November 2017).
Consultation Paper: Terms of reference, governance and
funding arrangements for the Australian Financial Complaints
Authority (AFCA)
Feedback from the Consultation Paper will provide the
basis of Dr Edey's advice to the Minister on the authorisation
of AFCA, including any conditions that should be imposed on
authorisation. The Consultation paper is available on the Treasury
website. Interested stakeholders are invited to comment.
ASFA Submissions
21 November 2017 – Submission to The Treasury -
Response to consultation paper: Establishment of the Australian
Financial Complaints Authority.
More...
FPA Submissions
Establishment of Australian Financial Complaints Authority:
Treasury - 21 November 2017.
Cases
Australian
Securities and Investments Commission v National Australia Bank
Limited [2017]
FCA 1338
CORPORATIONS LAW – banking – financial
services – failure to deal with financial products in an
efficient, honest and fair manner – attempts to manipulate
the Bank Bill Swap Reference Rate by Prime Banks –
unconscionable conduct – contravention of financial services
laws pursuant to Australian Securities and Investments
Commission Act 2001 (Cth) ss 12CB, 12CC.
BANKING AND FINANCIAL INSTITUTIONS –penalties –
contravention of financial services laws –penalty imposed
pursuant to s 12GBA Australian Securities and Investments
Commission Act 2001 (Cth) – general and specific
deterrence - Australian Securities and Investments Commission
Act 2001 (Cth) ss 12BA, 12BAB, 12CC, 12CB, 12GBA, 93AA;
Banking Act 1959 (Cth) s 11AF.
Australian
Securities and Investments Commission v Westpac Banking
Corporation [2017]
FCA 1331
PRACTICE AND PROCEDURE – corporations and
securities – financial markets – prime bank bills
– bank bill swap reference rate (BBSW)
– alleged financial market manipulation concerning artificial
prices – ss 1041A and 1041B of the Corporations Act
2001 (Cth) – application to amend originating process
and statement of claim – application allowed.
Law Society of New South Wales v Mattila
[2017] NSWCATOD 166
PROFESSIONS AND TRADES - Solicitor - Professional
Disciplinary Proceedings – alleged professional misconduct -
failure to comply with fiscal obligations - failure to account for
trust monies - breach of section 255 of the Legal Profession
Act 2004 - Failure to make compulsory superannuation
contributions for employees - misappropriation of trust funds-
nature of professional misconduct at common law-findings of
professional misconduct confirmed for 5 out of 6 grounds.
Pleadings- alleged duplicity of pleading- finding that there was
no duplicity of pleading.
Legislation
Commonwealth
Bills
Treasury Laws Amendment (Improving Accountability and Member
Outcomes in Superannuation Measures No. 1) Bill 2017
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. Progress – Senate - Second
reading debate 16 November 2017.
Superannuation Laws Amendment (Strengthening Trustee Arrangements)
Bill 2017
Amends the Superannuation Industry (Supervision)
Act 1993 to require registrable superannuation
(RSE) licensees to have at least one-third
independent directors and for the Chair of the Board of directors
to be one of these independent directors; and Governance of
Australian Government Superannuation Schemes Act 2011 to
enable the trustee board of the Commonwealth Superannuation
Corporation to comply with the new independence requirements.
Progress – Senate - Second reading debate 16 November
2017.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.