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
15/11/2018
Notice of Disqualification - Andrew Antoniou
09/11/2018
Notice of Disqualification - Daniel Garland
08/11/2018
Notice of Disqualification - Philip B Richardson; Jacquelyn S Richardson; Noel Smyth; Tessa Steven
07/11/2018
Notice of Disqualification - Irene Haas
06/11/2018
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...

Cases

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.

Legislation

Commonwealth

Regulations

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.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions