Australia: Inside track: superannuation, funds management and financial services – media releases, in practice and in courts, cases and legislation.

Last Updated: 14 November 2018
Article by Chris Lovell, Paul Faure, Bill Glover and Kylie Wilson

Most Read Contributor in Australia, December 2018

In the media

Government should legislate if it wants mandatory code
If the Government wishes the Insurance in Superannuation Voluntary Code of Practice to become mandatory it has the ability to legislate the outcome, according to the Association of Superannuation Funds of Australia (ASFA) (01 November 2018). More...

Industry must take more responsibility: APRA
The Australian Prudential Regulation Authority has released its submission to the Hayne royal commission interim report and has told the industry to take more responsibility. APRA intends to strengthen the prudential standards to focus not only on policies and frameworks, but their implementation in practice and the outcomes achieved (01 November 2018). More...

ASIC 2017-18 Annual Report
ASIC has published its Annual Report for 2017-18. The report is a record of ASIC's activities and performance for the previous financial year. ASIC 2017-18 Annual Report can be found here (31 October 2018). More...

Retirement income covenant and ensuring a fair and effective superannuation system
The Government is amending the law to maintain the capped defined benefit treatment of market linked pensions under the transfer balance cap where they have been rolled over as a result of a successor fund transfer. The law will also be amended to ensure that death benefits that include life insurance proceeds are not subject to tax when they are rolled over to a new superannuation fund (31 October 2018). More...

Rice Warner points to PC misinterpretations
Actuarial research house, Rice Warner has claimed the Productivity Commission (PC) has misinterpreted Rice Warner's findings with respect to the impacts of removing insurance inside superannuation on the Age Pension (30 October 2018). More...

Self-managed superannuation funds auditor enforcement actions
ASIC has deregistered, suspended or imposed conditions on 101 self-managed superannuation funds (SMSF) auditors for audit quality and independence issues or on fit and proper person criteria since the registration of SMSF auditors began in 2013. Since 1 July 2013, the Superannuation Industry (Supervision) Act 1993 (SIS Act) requires all auditors of SMSFs to be registered with ASIC (26 October 2018). More...

Financial firms yet to join Australian Financial Complaints Authority must act immediately
More than 35,000 financial firms required to join the Australian Financial Complaints Authority (AFCA) have now joined the scheme. There are more than 300 licensed financial firms who are still to join, and most of these are credit licensees who were previously members of the Credit and Investments Ombudsman (25 October 2018). More...

Legislating stronger penalties for white collar crime
The Coalition Government has introduced legislation into Parliament to significantly strengthen criminal and civil penalties for corporate and financial sector misconduct. The legislation will bring our penalties closer to those in other leading jurisdictions and further protect Australian consumers from white collar crime. Criminal penalties are set to double (24 October 2018). More...

Frydenberg urges tougher ASIC approach
The Federal Treasurer, Josh Frydenberg has made it clear he wants the Australian Securities and Investments Commission (ASIC) to adopt a tougher approach to the financial services industry, including more litigation (23 October 2018). More...

In practice and courts

ASIC: penalties for white collar crime
The new the bill significantly increases maximum penalties for both criminal and civil wrongdoing. As the legislation includes changes to the Corporations Act, its introduction requires the agreement of at least three states or two states and one territory. The Government is actively seeking this agreement. The new maximum criminal penalties are tabled here (21 October 2018). More...

Royal Commission Update
The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was established by the Government in December 2017, with the first of seven public hearings held in March 2018, and the final round to be held in November 2018. More...

AUSTRAC: Draft amendments to Chapter 11 of the AML/CTF Rules
Chapter 11 specifies the reporting and lodgment periods applicable to the compliance reporting obligation in section 47 of the Anti-Money Laundering and Counter-Terrorism Financing Act (AML/CTF Act). The draft amendments to Chapter 11 exempt reporting entities who in 2018 ceased, and did not recommence, to provide a designated service. The consultation period closes on 22 November 2018. Access the draft amendments here (26 October 2018).

Cases

Bullivant v Australian Meat Industry Superannuation Pty Ltd [2018] FCA 1588
SUPERANNUATION – Whether error of law in the determination of the Superannuation Complaints Tribunal (Tribunal) under the Superannuation (Resolution of Complaints) Act 1993 (Cth) – approach of the Tribunal to the determination of whether the trustee's decision was unfair or unreasonable – whether lack of procedural fairness on the part of the trustee of itself made the trustee's decision unfair or unreasonable – whether error of law on the ground of no evidence in the statement of the Tribunal that there was no evidence that the applicant had an expectation of future financial support from the deceased – whether error of law in the Tribunal not deciding whether the applicant had repaid a debt to the deceased – whether the Tribunal gave determinative effect to the deceased's will – whether error of law in that respect – whether Court should make findings of fact that the applicant had an expectation of future financial support from the deceased and that the applicant was the only party with an expectation of future financial support – appropriate orders – whether Court should order that the entirety of the death benefit be paid to the applicant – appropriate costs order where submitting appearances.
Superannuation Industry (Supervision) Act 1993 (Cth) s 10.
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 37, 46

Legislation

Commonwealth

Bills

Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill 2018
HR 2nd reading moved 24/10/2018 - This Bill amends the Corporations Act, ASIC Act, Credit Act and Insurance Contracts Act to introduce a stronger penalty framework in response to a number of recommendations from the ASIC Enforcement Review Taskforce report . The amendments made by this Bill will deter misconduct and improve community confidence in the corporate and financial sector.

Regulations

Legislation (Deferral of Sunsetting—Superannuation (Unclaimed Money and Lost Members) Regulations) Certificate 2018
30/10/2018 - This instrument defers the sunsetting date of the Superannuation (Unclaimed Money and Lost Members) Regulations 1999 from 1 April 2019 to 1 April 2020.

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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