Australia: Superannuation, Funds Management & Financial Services News - 12 December 2017

Last Updated: 19 December 2017
Article by Chris Lovell, Paul Faure and Bill Glover

Most Read Contributor in Australia, August 2018

In the media

Government to review rules for early release of superannuation, including victims of crime compensation
TREASURY – 8 December 2017 - The Turnbull Government has announced that Treasury will review the current rules governing early release of superannuation on grounds of severe financial hardship and compassionate grounds. It will also review whether, and the circumstances in which, superannuation assets should be available to pay compensation or restitution to victims of crime. More...

ASIC calls on preparers to focus on financial report quality and new requirements
ASIC - 08 December 2017 - ASIC has called on companies to focus on giving information for users of financial reports that is useful and meaningful, and to address the impact of major new accounting requirements. The new requirements for revenue recognition and financial instrument valuation apply from the year that starts from 31 December 2017. More...

ASIC cancels AFS licence of Michael James Haley
ASIC - 08 December 2017 - The Australian Securities and Investments Commission (ASIC) has cancelled the Australian Financial Services (AFS) licence of Michael James Haley after finding he has ceased to carry on a financial services business. More...

APRA welcomes finalisation of Basel III bank capital framework
APRA - 08 December 2017 - The APRA today welcomed the announcement that the Basel Committee on Banking Supervision had finalised the Basel III bank capital framework. Key elements of the final framework include changes to the standardised approach to credit risk capital for real estate, restrictions on modelled risk estimates by banks using the internal ratings-based (IRB) approach to credit risk capital, and the removal of provisions for banks to use internal models to determine their operational risk capital requirements. More...

ASIC permanently bans directors of Found Financial for dishonest and deceptive conduct
ASIC – 06 December 2017 - The Australian Securities and Investments Commission (ASIC) has permanently banned Matthew Manson Wallis and Rochelle Roanna Manoharan from providing financial services. Mr Wallis and Ms Manoharan falsified the insurance applications to maximise the amount of up-front commission received by Found Financial. More...

ASIC permanently bans Victorian insurance product referrer
ASIC – 06 December 2017 - Following an ASIC investigation, Ms Tracey Joanne Burnell, 57, of Victoria, has been permanently banned from providing financial services. ASIC previously banned Ms Burnell in May 2011 for a period of three years for providing financial services on behalf of P&C when neither she nor P&C were licensed or authorised. More...

Flawed super Bills must be even-handed
ISA – 05 December 2017 - Industry Super Australia (ISA) has consistently stated that industry super funds support a 'Member Outcomes' Test and increased disclosure and enhanced trustee obligations, but that such requirements must result in the same obligations and disclosure outcomes regardless of the type of investment option applied to. More...

Merrill Lynch Equities (Australia) Ltd pays $140,000 in infringement notice penalty
ASIC – 04 December 2017 - Merrill Lynch Equities (Australia) Limited (MLEA) has paid a total penalty of $140,000 to comply with an infringement notice given to it by the Markets Disciplinary Panel (the MDP) MLEA's compliance with the infringement notice is not an admission of guilt or liability and MLEA is not taken to have contravened subsection 798H(1) of the Corporations Act 2001. More...

Banking royal commission could be a superannuation sting that backfires
MEDIA – 04 December 2017 - Rather than merely cast a torchlight into the dark recesses of the banking world, the inquiry has also been told to delve into superannuation; an area where the banks for years have been at war with not-for-profit industry super funds. According to the draft terms of reference, it can examine any fund that employs "members' retirement savings for any purpose that does not meet community standards or expectations or is otherwise not in the best interest of members" (04 December 2017). More...

ASIC focuses on super inducements to employers
MEDIA – 05 December 2017 - The Productivity Commission's review of fees and returns in the superannuation sector is expected to result in more investment manager scrutiny. ASIC has signalled that it will act against superannuation funds which provide inappropriate inducements to employers and has served notice of its intent to super fund trustees. More...

Government's superannuation bill 'precisely the wrong model'
MEDIA – 04 December 2017 - One of the nation's leading authorities on super is accusing the bank-run funds of "looting" workers' retirement savings for profit and says it is bizarre the Government is targeting industry funds, as Parliament gets set to debate a bill to change superannuation industry governance this week. More...

Royal Commission Terms of Reference are appropriate, says O'Dwyer
TREASURY – 02 December 2017 - Criticism that superannuation and insurance should not have been included in the Royal Commission into the Financial Services sector is misguided and unwarranted, according to the Minister for Revenue and Financial Services Kelly O'Dwyer (02 December 2017). More...

Super system 2.0
FSC – 01 December 2017 - A keynote address at the FSC's inaugural Retirement Income Products Conference by Challenger Chair Jeremy Cooper revealed that the current superannuation system was "not up to task" and "designed with a lifespan of 75 years in mind". More...

ASIC bans Victorian financial adviser for three years
ASIC – 01 December 2017 - The Australian Securities and Investments Commission (ASIC) has banned financial adviser Julie Hamilton from providing financial services for three years for failing to act in her clients' best interests. More...

ASIC bans Bell Potter Securities Ltd trader Damien Rodr from providing financial services
ASIC – 01 December 2017 - ASIC has banned Mr Damien Rodr, of Sydney, from providing financial services under s920A of the Corporations Act following an ASIC investigation into trading in the shares of DirectMoney Ltd ('DirectMoney'; ASX code: DM1). More...

Industry associations merge
MEDIA – 01 December 2017 - Two superannuation associations are joining forces to actively engage in thought leadership, shape policy and drive the industry forward. Industry Funds Forum (IFF) has now become part of the Australian Institute of Superannuation Trustees (AIST). More...

CIO: One-stop shop should now be shelved
CIO – 01 December 2017 - CEO and Ombudsman of the Credit and Investments Ombudsman (CIO), has welcomed the Prime Minister's belated announcement to establish a Royal Commission into financial services. The Prime Minister's announcement is also an implicit acknowledgement that its proposed one-stop shop – the Australian Financial Complaints Authority (AFCA) – is not fit for purpose because it cannot address past, or prevent future, financial scandals. More...

ASFA disappointed in Royal Commission scope
MEDIA – 01 December 2017 - The Association of Superannuation Funds of Australia (ASFA) is disappointed the Royal Commission into banks and financial services has included the $2.5 trillion super system. More...

Appointment of Royal Commissioner
ASIC – 01 December 2017 - The Turnbull Government will, having consulted His Excellency, recommend the Governor General appoint former High Court Judge the Honourable Kenneth Madison Hayne AC as Royal Commissioner into Misconduct in the Banking, Superannuation and Financial Services Industry. More...

Royal Commission – Banks and Financial Services
TREASURY – 30 November 2017 - The Turnbull Government will establish a Royal Commission into the alleged misconduct of Australia's banks and other financial services entities. All Australians have the right to be treated honestly and fairly in their dealings with banking, superannuation and financial services providers. More...

Royal Commission must focus on banking misconduct and not get distracted: AIST
AIST – 30 November 2017 - AIST has welcomed today's announcement of a Royal Commission into the alleged misconduct of the banking sector, but warned that broadening the scope to include superannuation was an unnecessary measure and a waste of taxpayer money. More...

PM backflips on banking royal commission after big four finally concede
MEDIA – 30 November 2017 - Malcolm Turnbull announces a royal commission into the banking sector, after sustained pressure from within his own Government and an admission by Australia's big four banks that an inquiry is necessary to restore public faith in the financial system. More...

ABA: the Royal Commission
ABA – 30 November 2017 - Australia's banks have welcomed the Prime Minister's decision to take action and provide certainty to the Banking industry to the benefit of the national economy and all Australians. Banks will fully co-operate with the Royal Commission. More...

Superannuation fears regulatory strangle: ASFA
MEDIA – 29 November 2017 - The greatest threat to Australia's $2.5 trillion superannuation system is regulatory overreach and strangulation in red tape. More...

In practice and courts

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry
The Inquiry will consider the conduct of banks, insurers, financial services providers and superannuation funds (not including self-managed superannuation funds). The proposed terms of reference will form the basis of the Letters Patent, terms of which will be recommended to His Excellency, pursuant to the Royal Commissions Act 1902. More... More...

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry: draft terms of reference
Attorney-General's Department (Australia); Government of Australia: 01 December 2017
This document presents the Draft Terms of Reference for the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. More...

ASIC report: Overview of licensing and professional registration applications: July 2016 to June 2017
The report, released on 30 November, provides an overview of ASIC's activity and oversight in relation to applications for Australian financial services licences (ASFL), Australian credit licences (ACL), liquidator registration, company auditor and approved SMSF auditor registration. More...

ASIC report: Cyber resilience of firms in Australia's financial markets
The report, released on 30 November, collates and analyses the results of self-assessments from over 100 stockbrokers, investment banks, market operators, post-trade infrastructure providers and credit rating agencies. More...

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. Submissions on this consultation closed on 20 November 2017.

ASFA Submissions
30 November 2017 - Submission to Australian Securities and Investment Commission (ASIC) - Response to 2018 National Financial Literacy Strategy discussion paper. More...

Gazette - Superannuation Industry (Supervision) Act 1993
04/12/2017: Notice of Disqualification - Richard Demark; Kim Ottone
30/11/2017: Walter K Norway; Ms Victoria Lax; Robert Cammarano; Delilah Idropico; Kirsty Freeman; Warwick Freeman
29/11/2017: Notice of Disqualification - George Charalambakis; Athena Charalambakis; Michael James, Rachel James; Salvatore Francesco Raffaele
28/11/2017: Notice of Disqualification - Sheree Smith; Steven Smith

Cases

Mercer Superannuation (Australia) Limited v Billinghurst [2017] FCAFC 201
SUPERANNUATION – decision of Superannuation Complaints Tribunal setting aside decision of Trustee and remitting it for reconsideration – calculation of lump sum value of defined benefit pension – where Trustee adopted a valuation based on calculations of Plan Actuary who had advised the employer – where employer had communicated its views to the Trustee as to the methodology to be employed in its calculations – whether Trustee's decision was fair and reasonable in the circumstances – Trustee required to prioritise interests of beneficiaries where conflict arose – appeal dismissed. Superannuation Industry (Supervision Act) 1993 (Cth); Superannuation (Resolution of Complaints) Act 1993 (Cth).

Williams v Mercer Superannuation (Australia) Ltd [2017] QDC 289
The plaintiff's claim is dismissed.
EQUITY – TRUSTS AND TRUSTEES – PROCEEDINGS BETWEEN TRUSTEES AND BENEFICIARIES OR THIRD PARTIES – where the plaintiff was a member of a superannuation scheme administered by the defendant – where the plaintiff claimed that she had suffered total and permanent disablement – where the plaintiff alleged the trustee breached duties to consider relevant information and make relevant inquiries – whether the insurer owed those duties.
CONTRACT – INSURANCE CONTRACT – BREACH – where contract of insurance – where plaintiff claimed that she had suffered total and permanent disablement – where insurer denied claim – whether insurer acted reasonably in considering the claim – whether the plaintiffs ability to perform intermittent or casual or part-time work was relevant – where insurer's reasons omitted reference to relevant documents – whether insurer failed to consider those documents – whether the insurer's reasons were adequate – whether the insurer should have considered a further medical of which it had notice – whether the denial of the claim was unreasonable on the material.
CONTRACT – INSURANCE CONTRACT – BREACH – ROLE OF THE COURT – if the insurer breached its duty to act reasonably in considering the plaintiff's claim – whether the court should remit the matter to the insurer or determine whether the plaintiff is totally and permanently disabled.
CONTRACT – INSURANCE CONTRACT – where the plaintiff performed a return-to-work program for her husband as a requirement of WorkCover – whether the plaintiff satisfied the six-month waiting period in the insurance contract.
CONTRACT – INSURANCE CONTRACT – where the plaintiff's position was made redundant and for that reason her employment was terminated – whether the plaintiff satisfied the six month waiting period in the insurance contract – whether the plaintiff's absence was through injury or illness.

Legislation

Commonwealth

Bills

Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 1) Bill 2017
Introduced with the First Home Super Saver Tax Bill 2017 to establish the First Home Super Saver Scheme, the bill amends: 10 Acts to enable first home savers to make voluntary contributions into the superannuation system and to withdraw those contributions and associated earnings for the purposes of purchasing their first home; and the Income Tax Assessment Act 1997 and Taxation Administration Act 1953 to allow an individual aged 65 years or over to use the proceeds of one sale of their main residence to make contributions (downsizer contributions) of up to $300,000 to their superannuation. House of Representatives: Third reading agreed to 05/12/2017 House of Representatives; Message from Senate reported 06/12/2017,

First Home Super Saver Tax Bill 2017
Introduced with the Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 1) Bill 2017 to establish the First Home Super Saver Scheme, the bill imposes a first home super saver tax on individuals who have not entered into a contract to purchase or construct their first home or recontributed the required amount into superannuation. Senate Committee of the Whole debate 05/12/2017; Third reading agreed to 05/12/2017; Finally passed both Houses 05/12/2017.

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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