In the media
ASIC allows certain AFS licensees to use lease assets to
satisfy their licence financial requirements
ASIC – 29 April 2021 – These changes will
allow certain AFS licensees to include, where the licensee is a
lessee, a right-of-use asset in the calculation of their net
tangible assets and, where the right-of-use asset is a current
asset, adjusted surplus liquid funds and surplus liquid funds.
More...
ASIC bans former Aus Unity AR over MySuper
opt-outs
MEDIA – 29 April 2021 – Former authorised
representative for Australian Unity, Christopher Chan, has been
banned for five years by the ASIC for misleading clients about
MySuper opt-outs. The ASIC review of Chan's emails found that
he advised clients to opt out of MySuper, claiming that the MySuper
product had higher fees than the fees on their existing
superannuation balances.
More...
AIST calls Senate Committee to reject YFYS bill
MEDIA – 29 April 2021 – Some of the
worst-performing super products have been carved out of the
performance test putting consumers at risk of being stapled to a
dud fund, according to the Australian Institute of Superannuation
Trustees.
More...
Your Future, Your Super reforms
TREASURY – 28 April 2021 – The Morrison
Government has released for consultation exposure draft regulations
underpinning Treasury Laws Amendment (Your Future, Your Super) Bill
2021.
More...
Super performance test to include admin fees
MEDIA – 28 April 2021 – Super Consumers'
director, Xavier O'Halloran, said these reforms will
significantly boost the outcomes for consumers, but there remains
work to be done on the Your Future, Your Super package. Currently,
not all investment options face scrutiny, this needs to change and
be enshrined in legislation.
More...
Changes to superannuation performance benchmark a
welcome move
ASFA – 28 April 2021 – The changes to the
proposed superannuation performance benchmark announced by the
Government recognise the important role that investment in unlisted
assets and infrastructure plays in superannuation returns. The
changes announced have the potential to mitigate investment
distortions foreshadowed by the industry when the benchmark was
first announced.
More...
Treasury points to 21 MySuper under-performers
MEDIA - 26 April 2021 – 21 out of 77 MySuper
products are regarded as underperforming, according to the Federal
Treasury. Under the current system, the members holding those
accounts receive no notification that they are in an
underperforming fund, and there is no trusted source of information
for them to make their own informed judgements.
More...
Climate could be the next great risk to global finance
and the regulator is demanding...not much
MEDIA – 25 April 2021 – Australia's key
financial system watchdog has issued new guidance on how
institutions should handle climate risks, but is requiring them to
do precisely nothing.
More...
ASIC breach guidance unlikely to allay licensee
concerns
ASIC – 23 April 2021 – The Australian
Securities and Investments Commission has left licensees in little
doubt that their breach reporting workload is about to be
significantly increased notwithstanding industry warnings about the
impact of a regulatory tsunami (23 April 2021).
More...
ASIC consults on draft guidance on breach reporting
reforms
ASIC – 23 April 2021 – ASIC has issued
Consultation Paper 340, seeking stakeholder feedback on proposed
updates to its draft guidance on upcoming breach reporting reforms
(22 April 2021).
More...
'Spirit of intent' focus of compliance
guidance
MEDIA – 22 April 2021 – The Financial Services
Council is arguing for more industry self-regulation, describing
Trowbridge as the "gold standard". The ASIC has said
there will be a focus on the spirit of policy, rather than a strict
understanding on requirements when it comes to defining upcoming
compliance regulations.
More...
Adviser takes ASIC levy complaint to Commonwealth
Ombudsman
A veteran self-licensed financial adviser has sought
hardship relief from the tripling of the Australian Securities and
Investments Commission levy, outlining his complaints in a formal
letter to the Commonwealth Ombudsman (21 April 2021).
More...
ASIC only allowed to ban advisers under new disciplinary
regime
The proposed Financial Services and Credit Panel will
determine whether to impose an administrative sanction,
infringement notice, both, or not to take action (21 April 2021).
More...
In practice and courts
ATO Alerts
29 April 2021 –
Consultation is now open for the new Regulator Performance
Guide
Consultation is now open to the public on the Australian
Government's new Regulator Performance Guide. You can submit
your feedback until Friday 21 May 2021.
28 April 2021 –
Rollovers
Find out about rolling member benefits between super funds using
the SuperStream standard
27 April 2021 –
Sufficient and appropriate audit evidence to support the acceptance
of downsizer contributions
As part of the annual SMSF audit, approved SMSF auditors must check
for certain evidence if a member has made a downsizer contribution
during the income year.
20 April 2021 –
Extending transitional compliance approach to non-arm's length
expenditure – SMSF auditor obligations
SMSF auditors do not need to modify Part A of the SMSF IAR where
the compliance approach for non-arm's length expenditure
applies for the 2021-22 income year.
19 April 2021 –
Super contribution caps will increase from 1 July 2021
Indexation of the super contribution caps means that concessional
and non-concessional caps will increase from 1 July 2021. Read
about what it might mean for your members.
ASIC Corporations (Amendment) Instrument 2021/230
; ASIC Corporations (Licence Conditions—Treatment of
Lease Assets) Instrument 2021/229
;
RG 166 Licensing: Financial
requirements (reissued);
PF 209 Australian financial services
licence conditions (reissued)
REP 689 Response to submissions on CP
336 Financial requirements: Treatment of lease assets
ASIC has made changes to the financial requirements for
some types of AFS licensees in relation to the treatment of leased
assets. These changes will allow certain AFS licensees to include,
where the licensee is a lessee, a right-of-use asset in the
calculation of their net tangible assets and, where the
right-of-use asset is a current asset, adjusted surplus liquid
funds and surplus liquid funds (29 April 2021).
ASIC has amended Class Orders:
[CO
12/752] Financial requirements for retail OTC derivative
issuers
[CO
13/760] Financial requirements for responsible entities and
operators of investor directed portfolio services, and
[CO
13/761] Financial requirements for custodial or depository
service providers,
to allow an AFS licensee to include a right-of-use asset in its
calculation of net tangible assets: See
21-088MR (29 April 2021).
ASIC Corporations (COVID-19 – Advice-related
Relief) Instrument 2021/268
Extends until 15 October 2021 the relief measure that allows
financial advisers to provide a record of advice rather than a
statement of advice to existing clients requiring financial advice
due to the impact of the COVID-19 pandemic: See
21-072MR and
FAQs.
ASIC
INFO 253 Claims handling and settling:
How to comply with your AFS licence obligations
Assists firms who provide insurance claims handling and
settling services to prepare and submit their AFS licence
applications as soon as possible after 1 January 2021, and by no
later than 7 May 2021: see
21-067MR.
ASIC Consultations: CP 340 Breach reporting and related
obligations
Released 22 April 2021; Comments close 3 June 2021.
This consultation paper sets out our proposals for providing
guidance to Australian financial services licensees and Australian
credit licensees (credit licensees) on the breach reporting
obligation that applies from 1 October 2021. The obligations
require these licensees to notify, investigate and remediate
breaches of the law in certain circumstances.
More...
ASIC Corporations, Superannuation and Credit (Amendment)
Instrument 2020/99
Amends the ASIC Corporations and Credit (Internal Dispute
Resolution— Transitional) Instrument 2019/965
to preserve ASIC's existing internal dispute resolution policy
in relation to complaints received by financial firms before 5
October 2021.
APRA publishes FAQs on the Superannuation Data
Transformation Phase 1 reporting standards
The APRA has published a set of frequently asked questions
(FAQs) for registrable superannuation entity
(RSE) licensees about the Reporting Standards for
Phase 1 of the Superannuation Data Transformation. The FAQs clarify
issues raised by RSE licensees relevant to meeting reporting
obligations. The FAQs are available on the APRA website at
Frequently Asked Questions - Superannuation Data Transformation
(23 April 2021).
APRA draft Prudential Practice Guide CPG 229 Climate
Change Financial Risks (CPG 229)
The guide is designed to assist APRA-regulated entities in
managing climate-related risks and opportunities as part of their
existing risk management and governance frameworks. APRA is seeking
stakeholder feedback on the draft CPG 229 by 31 July 2021. The
draft CPG 229 and supporting resource links are available on the
APRA website at:
Consultation on draft Prudential Practice Guide on Climate Change
Financial Risks.
APRA draft taxonomy artefacts to assist superannuation
entities prepare for APRA Connect
APRA has released the response paper and 10 final
reporting standards for the first phase of its multi-year
Superannuation Data Transformation. The Response Paper and
finalised reporting standards are available at:
Consultation on APRA's Superannuation Data Transformation.
These new collections will be reported through APRA
Connect. Final versions of these documents will be available
before the external test environment is released to entities in
June 2021. The draft artefacts include the data dictionary,
validations, reporting taxonomy and XSD (to validate files).
Your Future, Your Super draft regulations released
The Government has released for consultation exposure
draft regulations underpinning Treasury Laws Amendment (Your
Future, Your Super) Bill 2021. Consultation will be for four weeks
and close on 25 May 2021. The draft regulations can be found
Your Future, Your Super Regulations and associated
measures.
Cases
MetLife Insurance Ltd v Hart
[2021] FCA 410
SUPERANNUATION – decision of Superannuation
Complaints Tribunal setting aside "constructive
rejection" of claim – where Tribunal failed to address
the correct questions as to whether a rejection had occurred
– where Tribunal failed to apply deed of cessation of cover
in relation to historic TPD claim – where Tribunal failed to
correctly apply definition of TPD in context of cessation of policy
cover – matter remitted to Tribunal for further
consideration.
Merchant and Commissioner of Taxation
[2021] AATA 915
SUPERANNUATION – Self Managed Superannuation Fund
– responsible officers of corporate trustee –
Applicants disqualified from acting as trustee or responsible
officers of a trust – Applicants applied for adjournment
pending separate taxation review – adjournment refused.
Australian Securities and Investments Commission v M101
Nominees Pty Ltd (No 3) [2021] FCA
354
CORPORATIONS – financial products offered by first
defendant and entities associated with second defendant –
whether certain entities provided financial services or financial
products without a financial services licence – whether
financial products offered by entities associated with second
defendant had similar features and are "inherently
problematic" or "fatally flawed" – whether new
investors' funds were used to repay redemptions promised to old
investors – whether offering of certain financial products
entailed misleading and deceptive conduct – whether certain
entities provided financial services to a "retail client"
without complying with requirements in Chapter 7 of the
Corporations Act 2001 (Cth) – whether certain financial
products launched by second defendant to circumvent orders of this
Court in proceeding VID 228 of 2020
CORPORATIONS – whether second defendant was "directing
mind and will" of the relevant corporate entities –
whether second defendant involved in contraventions under s 79 of
the Corporations Act 2001 (Cth) and s 12GBCL of the Australian
Securities and Investments Commission Act 2001 (Cth)
CORPORATIONS – final relief – injunctions –
whether jurisdiction enlivened under ss 1101B and 1324 of the
Corporations Act 2001 (Cth) – jurisdiction enlivened
CORPORATIONS – final relief – whether orders should be
made permanently restraining second defendant from engaging in
certain activities in relation to financial products
Held: Orders made restraining second defendant from engaging in
certain activities for a period of 20 years.
Legislation
Commonwealth
Act Compilation
Superannuation
(Unclaimed Money and Lost Members) Act
1999
21/04/2021 - Act No. 127 of 1999 as amended
Regulations
ASIC
Corporations (Amendment) Instrument 2021/230
28/04/2021 - This instrument amends three Australian
Securities and Investments Commission Class Orders to allow an
Australian financial services licensee to include a right-of-use
asset in its calculation of net tangible assets.
ASIC
Corporations (Amendment) Instrument 2021/315
27/04/2021 - This instrument extends temporary measures
aimed at facilitating financial reporting by unlisted and listed
entities whose reporting processes take additional time due to
current remote work arrangements, travel restrictions and other
impacts of COVID-19. The temporary measures are intended to allow
listed and unlisted entities up to one additional month to complete
financial reports and have those reports audited in compliance with
the financial reporting and audit requirements of the Corporations
Act 2001.
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.
