Australia: Superannuation, Funds Management & Financial Services News - 29 November 2017

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.

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