Australia: Inside track: Superannuation, Funds Management and Financial Services – media releases, in practice and in courts, cases and legislation.

Last Updated: 28 November 2018
Article by Chris Lovell, Paul Faure, Bill Glover and Kylie Wilson

Most Read Contributor in Australia, December 2018

In the media

Government announces $51m to pursue financial misconduct
The government made the announcement that more than $51 million would be given to pursue criminal prosecutions for financial misconduct. The Treasurer said the fund would be able to implement the findings of the commission and also act as a deterrent to misconduct in the financial services (16 November 2018). More...

Government bends to industry super funds
In a move that will please industry superannuation funds, the Federal Government has announced it will extend the so-called "superannuation outcomes test" to choice products, most of which exist within retail superannuation funds (15 November 2018). More...

FSC targets scale of under-performing industry fund defaults
In a submission guaranteed to enrage some industry superannuation funds, the FSC has used a submission to the Productivity Commission (PC) to utilise the PC's own analysis to point to the problem of underperforming not-for-profit funds ( 15 November 2018). More...

Super funds will determine 'dangerous occupations' carve-out
Superannuation funds themselves will be the ones who decide which members will be covered by the Government's so-called "dangerous occupations carve-out" to its new insurance inside superannuation rules (15 November 2018). More...

Call for compulsory annual reporting on adviser trails
Superannuation funds should be required by law to inform members if they are being subjected to the payment of trailing commissions to financial advisers, according to the nation's largest industry superannuation fund, AustralianSuper. The big fund also wants grandfathered commissions to be banned (15 November 2018). More...

New ASFA Board members announced
The Association of Superannuation Funds of Australia (ASFA) is pleased to welcome two new members who have been appointed to fill casual vacancies on the ASFA Board: Deanne Stewart, incoming Chief Executive Officer, First State Super as a public sector representative and John McMurtrie, Managing Director, Link Group as a service provider representative (14 November 2018). More...

FSC: Franking credit refunds benefit millions of Australian super fund members
A survey of large super funds by the Financial Services Council (FSC) has found it is likely that the largest group of people benefiting from franking credit refunds are ordinary Australians who are members of large super funds (13 November 2018). More...

Rice Warner counters Grattan super claims
Actuarial research house, Rice Warner has countered the latest Grattan Institute claims around superannuation and has argued that the superannuation guarantee (SG) should be raised to 12 per cent (13 November 2018). More...

APRA announces Terms of Reference for enforcement strategy review
APRA has announced Terms of Reference for a review of its enforcement strategy. The Review will be led by APRA Deputy Chair John Lonsdale, supported by APRA staff and external advisers as necessary (12 November 2018). More...

Senators support product design reform
A Treasury bill that would overhaul the way financial products including insurance are sold has been backed by the Senate Economics Legislation Committee (12 November 2018). More...

Life insurance industry begins rebuild with new consumer code
A radical overhaul of the code governing the conduct and practices of Australian life Insurers which belong to the Financial Services Council (FSC) has been released for public consultation. The draft FSC Life Insurance Code of Practice is designed to lift standards in product design, sales, underwriting, customer service, complaints and claims handling (12 November 2018). More...

Court orders penalties and other relief against Westpac for BBSW conduct
The Federal Court of Australia has ordered Westpac Banking Corporation (Westpac) pay a pecuniary penalty of $3.3 million. His Honour also found in his 24 May 2018 judgment that Westpac had inadequate procedures and training and contravened its financial services licensee obligations under s912A(1)(a), (c), (ca) and (f) of the Corporations Act 2001 (Cth)( 09 November 2018). More...

ASIC cancels AGM Markets licence for unconscionable conduct and unmanaged conflicts of interest
ASIC has cancelled the Australian financial services (AFS) licence of the retail OTC derivative issuer, AGM Markets. An ASIC investigation found AGM's financial services business involved core elements of unconscionability and unmanaged conflicts of interest and followed a business model that disregarded key conduct requirements (09 Novembe 2018). More...

Grattan undermines retirement aspirations of Australians
The Grattan Institute has launched an unprecedented attack on the retirement aspirations of ordinary Australians. In a wide ranging report they called for an increase in the retirement age to age 70, a 15% tax on retirement savings, and regulations that would potentially force people to sell their homes to fund retirement (07 November 2018). More...

12% super needed to deliver a dignified retirement for all working Australians
Moving to 12% superannuation is vital to ensure that all working Australians achieve a dignified standard of living in retirement, the Australian Institute of Superannuation Trustees (AIST) has said (07 November 2018). More...

Westpac admits it didn't take FoFA seriously
Westpac said while implementing the Future of Financial Advice reforms, it did not embed strong enough controls and record-keeping to police fee-for-no-service advice (07 November 2018). More...

Government change on death benefits gets thumbs up
The Federal Government's decision to change the law to ensure that death benefits that include life insurance proceeds are not subject to tax when rolled over to a new superannuation fund has been welcomed by the SMSF Association (05 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...

Government extends CIPRs deadline
The Government has also given superannuation funds more time to offer comprehensive income products in retirement (CIPRs) to 1 July, 2022 and has increased the threshold superannuation balance from $50,000 to $100,000 (01 November 2018). More...

In practice and courts

ASIC Consultation: Organisational competence requirements for advice licensees: Update to RG 105 (CP 305)
The proposals in Consultation Paper 305 are based on the existing draft guidance published by the Financial Adviser Standards and Ethics Authority (FASEA). Submissions for CP 305 are due by 6 December 2018, with an updated RG 105 setting out the new organisational competence requirements for advice licensees expected to be released in early 2019 (08 November 2018). More...

AFCA: Time for licensees to update ASIC with their AFCA membership details
AFCA members holding a financial services or credit licence must notify ASIC of their AFCA membership details by 30 November 2018. Credit licensees must also notify ASIC of the AFCA membership details of their authorised credit representatives who are AFCA members. Late fees will not apply if AFCA details are updated by 30 November. For AFCA members who were former FOS members, you should enter a commencement date of 1 May 2018 (06 November 2018).

Update your details on the ASIC portal:
AFS licensee portal: Here
Credit licensee portal: Here
Credit representatives who sub-authorise other credit representatives: Here

APRA proposed changes to the application of the capital adequacy framework for authorised deposit-taking institutions (ADIs)
The key features of the proposals include: for the four major banks – increasing Total Capital requirements by four to five percentage points of risk-weighted assets (see the illustrative example attached); and for other ADIs – likely no adjustment, although a small number may be required to maintain additional Total Capital depending on the outcome of resolution planning. APRA proposes that the increased requirements will take full effect from 2023 (08 November 2018). More...

Credit and financial services targeted at Australians at risk of financial hardship
Status: Submissions Closed: 09 November 2018. 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 due by 7 January 2019. More...

Credit and financial services targeted at Australians at risk of financial hardship
Status: Accepting Submissions Date Referred: 17 October 2018 Submissions Closed: 09 November 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...

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry: interim report
Note: This report covers policy related issues arising from the first four rounds of hearings. Additional topics, including superannuation and insurance, will be covered in the final report due by 1 February 2019.

ASFA Submissions
09 November 2018 - Submission to the Productivity Commission
ASFA response to the Supplementary Paper – Investment performance: Supplementary analysis
05 November 2018 - Submission to the House of Representatives Standing Committee on Economics - Inquiry into the implications of removing refundable franking credits. More...

SMSF Association Submissions
12 November 2018 SMSF Association submission on the Royal Commission into misconduct in the banking, superannuation a...
07 November 2018 SMSF Association submission regarding Design and Distribution Obligations
02 November 2018 SMSF Association submission on exemption from the work test for superannuation contributions

AIST Submissions
07 November 2018 Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Bill 2018 - Areas where the regulators are hamstrung by not having access to reports or disclosures (07 November 2018). More...

Gazette - Superannuation Industry (Supervision) Act 1993
Notice of Disqualification - Andrew Antoniou
Notice of Disqualification - Daniel Garland
Notice of Disqualification - Philip B Richardson; Jacquelyn S Richardson; Noel Smyth; Tessa Steven
Notice of Disqualification - Irene Haas
Notice of Disqualification - Raphael Sztrochlic; Jas Huyhn; Terence Kwan; Saleem Shiekh; Lien Vuong; Andrew Houston

Address to the Association of Superannuation Funds of Australia (ASFA) Conference, Adelaide
Speech, The Hon Stuart Robert MP, 14 November 2018. More...

The impact of wage theft on Queensland's workers and economy
Edward Cavanough, Esther Rajadurai; The McKell Institute: 12 November 2018
This report aims to quantify the likely impact of wage theft on Queensland workers and the Queensland economy, in both the form of regular-wage theft and the non-payment of superannuation guarantee contributions. More...

Conflicts of interest and disclosure
Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry - This research paper argues that any proposed policy action to manage conflicts of interest should ideally undergo further testing in the field in which it will be implemented to assess the likely real-world impact (07 November 2018). More...

A secret weapon in the fight against financial misconduct: sectoral collective bargaining
Jim Stanford; Centre for Future Work - Consumer education, self-regulation by banks, and even stronger enforcement efforts by government regulators all have failed to curb incidents of financial misconduct and unethical behaviour. This submission provides a possible solution that has so far been overlooked - sector-wide collective bargaining to establish uniform, ethical (05 November 2018). More...


Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701
CORPORATIONS – Pecuniary penalty – declarations of contraventions – compliance program – bank bill market – trading in prime bank bills – Bank Bill Swap Reference rate (BBSW) – bank accepted bill futures – interest rate swaps – cross-currency swaps – market manipulation – artificial price in traded BBSW referenced products – financial market – false or misleading appearance in a market – false or misleading appearance with respect to price for trading – unconscionable conduct – financial instruments referencing BBSW – non-disclosure of rate set trading practice to counterparties – statutory unconscionability – contraventions of the then s 12CC of Australian Securities and Investments Commission Act 2001 (Cth) – penalty imposed – declarations and other orders made.
On each of the dates set out in Annexure A, the Defendant (Westpac), in trade or commerce, engaged in conduct in connection with the possible acquisition or supply, or acquisition or supply, of financial services , which was unconscionable in all the circumstances

SAS Trustee Corporation v Miles [2018] HCA 55
Superannuation and pensions – Police pension – Disabled member of police force – Entitlement to additional allowance – Where respondent certified by appellant as incapable of personally exercising functions of police officer due to specified infirmities determined by Commissioner of Police to have been caused by being hurt on duty – Where respondent received annual superannuation allowance as disabled member of police force – Where s 10(1A)(b)(ii) of Police Regulation (Superannuation) Act 1906 (NSW) provided that annual superannuation allowance might increase by additional amount commensurate with member's incapacity for work outside police force – Where respondent sought additional amount by reason of supervening infirmity increasing respondent's incapacity for work outside police force – Where supervening infirmity increasing respondent's incapacity for work outside police force not subject of certification by appellant or determination by Commissioner of Police – Whether respondent entitled to additional amount of annual superannuation allowance.
Statutes – Interpretation – Principles – Context – Cognate terms – Choice between textually available constructions – Where cognate terms "incapable", "incapacity" and "totally incapacitated" appearing in Act – Where alternative textual constructions as to whether infirmity increasing incapacity for work outside police force required to be caused by being hurt on duty – Whether cognate terms to be construed as bearing same meaning.
Police Regulation (Superannuation) Act 1906 (NSW), ss 1, 1A, 3, 4, 5, 5A, 7, 8, 10, 10B, 14, 21.
Superannuation Administration Act 1996 (NSW), s 57.




ASIC Corporations (Amendment) Instrument 2018/1028
12/11/2018 - This instrument amends ASIC Class Order [CO 13/763] to reinstate the exemptions previously granted to investor directed portfolio services (IDPS) operators from Division 8 of Part 7.8, and Part 7.9, in relation to a financial product that is an interest in a managed investment scheme arising out of participation in the IDPS.

ASIC Corporations (Amendment) Instrument 2018/752
12/11/2018 - This instrument amends the ASIC Corporations (Non-cash Payment Facilities) Instrument 2016/211 to continue the effect of the relief by removing the provision for a three-year cessation date in section 3.

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