In the media
APRA finalises prudential guidance on managing the
financial risks of climate change
APRA - 26 November 2021 - the APRA has released its final
prudential practice guide on climate change financial risks,
following consultation on the draft Prudential Practice Guide CPG
229 Climate Change Financial Risks (CPG 229) released in April this
year. More...
QSuper members file class action
MEDIA - 25 November 2021 - the class action alleges QSuper
failed to notify members of changes to its life insurance premiums
which resulted in financial loss for up to 140,000 members. More...
Don't penalise disengaged members: APRA
MEDIA - 25 November 2021 - members who are disengaged
should not be disadvantaged as a result, according to the
prudential regulator. More...
Introduction of Retirement Income Covenant bill
welcomed
ASFA - 25 November 2021 - the ASFA said the legislating of
a retirement income covenant is a significant step in encouraging
the further development of the retirement phase of superannuation
and should assist members to be able to make informed decisions in
retirement. Subject to the passage of the bill, the covenant will
take effect from 1 July 2022. More...
Retirement income covenant and corporate collective
investment vehicle bill a milestone for financial services
FSC - 25 November 2021 - the Financial Services Council
welcomes the introduction of legislation today to implement the
Corporate Collective Investment Vehicle and the Retirement Income
Covenant. More...
Review of the Australian Financial Complaints
Authority
TREASURY - 24 November 2021 - the Morrison Government has
today tabled the Review of the Australian Financial Complaints
Authority (AFCA) in Parliament, and welcomes its
findings that AFCA is operating effectively and meeting its
statutory requirements. More...
ASIC's focus in superannuation 2021-22
ASIC - 23 November 2021 - while
acknowledging the high volume of change in superannuation, ASIC, as
conduct regulator for superannuation, continues to expect trustees
to approach their regulatory obligations with responsibility,
accountability, and transparency. More...
Former Victorian financial adviser sentenced to jail for
obtaining financial advantage by deception
ASIC - 24 November 2021 - former financial adviser Ahmed
Saad, was sentenced to nine months' imprisonment for the first
count and one month's imprisonment for the second, to be served
concurrently, after being found to have facilitated unlawful early
access to superannuation. More...
APRA chooses engagement over retirement solution
guidance
MEDIA - 23 November 2021 - the prudential regulator will
not be issuing extensive or detailed guidance on retirement income
solutions in the short-term as it wants to give the industry time
to develop approaches. More...
AASB Issues proposed climate change standards framework
for discussion
AASB - 23 November 2021 - the Australian Accounting
Standards Board has released a proposed interim climate change
reporting standards framework for industry feedback. The AASB's
voluntary framework adopts the recommendations of the Taskforce on
Climate-related Financial Disclosures. More...
COVID-19 relief for SMSFs may require specialist
input
SMSF Association - 22 November 2021 - in the wake of the
COVID-19 pandemic and extended into the 2021-22 financial year have
highlighted the need for SMSF specialist advice. The Association
has highlighted five key areas of relief that SMSFs should factor
into this year's superannuation reporting. More...
Superannuation complaints on the decline: AFCA
MEDIA - 23 November 2021 - the complaints authority has
received over 5,000 superannuation-related complaints last
financial year and was able to close over 6,000 of its complaints.
More...
Advice complaints on a downward trend: AFCA
MEDIA - 22 November 2021 - already making up a fraction of
complaints, complaints about advisers have fallen 33 per cent in
the 2021/22 financial year so far, according to the Australian
Financial Complaints Authority. More...
New AUSTRAC financial crime guide
targets technology-facilitated abuse
AUSTRAC - 19 November 2021 - a new financial crime guide
will help businesses understand, identify and report
technology-facilitated abuse through financial transaction payment
text fields. AUSTRAC's Fintel Alliance has seen an increase in
the use of these fields to stalk, harass or threaten victims, in an
attempt to avoid law enforcement scrutiny (19 November 2021). More...
Super funds failing to communicate mergers to
members
MEDIA - 18 November 2021 - only one in five members of a
merged superannuation fund are aware there has been a change,
according to KPMG, indicating funds need to significantly improve
their communications to highlight the benefits. More...
ASIC consults on updates to relief for superannuation
calculators and retirement estimates
ASIC - 18 November 2021 - ASIC has today released
Consultation Paper 351 Superannuation forecasts: Update to relief
and guidance (CP 351) to seek stakeholder feedback on proposed
updates to relief and guidance for superannuation forecasting
tools. More...
AustralianSuper welcomes Portfolio Holdings Disclosure
regulations
MEDIA - 18 November 2021 - AustralianSuper has welcomed
the Government's new Portfolio Holdings Disclosure regulations
which remove the requirement for superannuation funds to disclose
commercially-sensitive valuations for unlisted assets. More...
ASIC consults on consumer remediation draft
guidance
ASIC - 17 November 2021 - ASIC today released a draft
updated and expanded regulatory guide to consult on the way
licensees should conduct remediations to return money owed to
consumers (17 November 2021). More...
Debt agreement administrator sued for
'threatening' conduct against debtors
ASIC - 17 November 2021 - ASIC is suing the group for
"misleading, threatening and coercive conduct" against
debtors who missed payments following a referral by the Australian
Financial Security Authority. More...
APRA imposes additional licence conditions on trustee of
Energy Industries Superannuation Scheme
APRA - 16 November 2021 - the APRA has imposed additional
licence conditions on Energy Industries Superannuation Pty Ltd, to
address concerns arising from APRA's investigation into
expenditure and governance matters at EISS that commenced in May
this year, as well as persistent underperformance. More...
AMP enters into enforceable undertaking with APRA
MEDIA - 16 November 2021 - AMP has confirmed its
superannuation trustees have entered into an enforceable
undertaking with the Australian Prudential Regulation Authority
(APRA) regarding "a number of historical
matters in its superannuation business". More...
In practice and courts
ASIC Updates
18/11/2021 CP 351 Superannuation forecasts:
Update to superannuation calculators and estimates relief
Attachment 1 to CP 351: Draft instrument
Attachment 2 to CP 351: Draft regulatory
guide
Sets out ASIC's proposals to amend our legislative instruments
on superannuation calculators and retirement estimates: See 21-309MR
17/11/2021 CP 350 Consumer remediation: Further
consultation; Attachment to CP 350: Draft regulatory guide (PDF
1.2 MB); REP 707 Response to submissions
on CP 335 Consumer remediation: Update to
RG 256
Draft updated and expanded regulatory guide to consult on
the way licensees should conduct remediations to return money owed
to consumers: See 21-307MR.
ASIC Consultation Paper 351 Superannuation forecasts:
Update to relief and guidance (CP 351)
to seek stakeholder feedback on proposed updates to relief
and guidance for superannuation forecasting tools.
ASIC intends to publish the updated instruments and guidance before
the existing relief in ASIC Class Order [CO 11/1227] sunsets on 1
April 2022. Submissions to CP 351 are due by 28 January 2022.
ASIC Industry funding: 2020-21 Cost Recovery Implementation
Statement (CRIS)
The statement details ASIC's estimated levies by
industry sector and subsector. ASIC released the draft CRIS in July
2021 (ASIC MR21-185) for industry feedback. The final
statement summarises the feedback we received. The actual levies
will be published in December 2021 and invoiced in January 2022
(November 2021). More...
ASIC Corporations (Amendment) Instrument 2021/381
Amends the ASIC Corporations (Auditor Independence) Instrument 2021/75 and ASIC Corporations (Parent Entity
Financial Statements) Instrument 2021/195 to change the repeal dates from April
2026 to April 2024.
APRA superannuation statistics for September 2021
23 November 2021 - Quarterly Superannuation Performance
publication and the Quarterly MySuper Statistics report for the
September 2021 quarter. Superannuation assets totalled $3.4
trillion at the end of the September 2021. This was a 17.5 per cent
increase in the value of total superannuation assets over the past
four quarters. More...
APRA discussions paper: Strengthening Financial
Resilience in Superannuation
APRA has issued a discussion paper seeking information
from superannuation trustees on their plans to maintain the
financial resilience needed to protect members' best financial
interests. Feedback on the issues covered in the discussion paper
is welcome from all industry stakeholders. Submissions close on 11
March 2022.The discussion paper is available on the APRA website
at: Strengthening Financial Resilience in
Superannuation (19 November 2021).
IASB proposes narrow-scope amendments to IAS 1
The International Accounting Standards Board
(IASB) has today proposed amendments to IAS 1
Presentation of Financial Statements to improve the information
companies provide about long-term debt with covenants. The Exposure
Draft Non-current Liabilities with Covenants is open for comment
until 21 March 2022 (19 November 2021). More...
AASB, AUASB and FRC issue joint position statement
The AASB has released Position Statement 1, which is a joint
statement with the FRC and AUASB, setting out the institutional
arrangements through which Extended External Reporting standards
are to be developed in Australia (19 November 2021). More...
AASB Invitation to Comment ITC 47 on the IASB Request
for Information on Post-implementation Review of IFRS 9 Financial
Instruments - Classification and Measurement
IFRS 9 specifies how an entity is required to classify and
measure financial assets and financial liabilities as well as some
contracts to buy or sell non-financial items. Reviews of the
impairment and hedge accounting requirements in IFRS 9 will follow
later. Comments to the AASB close on by 31 December 2021. More...
AASB Reminder: Exposure Draft ED 301: Classification of
Liabilities as Current or Non-current - Deferral of Effective
Date
The AASB is proposing to defer the effective date of
recently issued AASB 2020-1 Amendments to Australian
Accounting Standards - Classification of Liabilities as Current or
Non-current (March 2020) by one year to annual reporting periods
beginning on or after 1 January 2023 via ED 301 Classification of Liabilities as
Current or Non-current - Deferral of Effective
Date. More...
FASEA releases consultation - Financial Planners &
Advisers Code of Ethics 2019 - Standard 3
To guide stakeholders in interpreting and implementing the
Code, FASEA released guidance in October 2019, December 2019 and
further released the Financial Planner and Advisers Code of Ethics
2019 - Guide in October 2020.
The Consultation Paper on proposed options for amendment to
Standard 3 of the Financial Planners and Advisers Code of Ethics
2019 can be accessed here. All feedback and submissions can be
submitted through FASEA's consultation@fasea.gov.au until 1 December
2021. More...
Review of the Australian Financial Complaints Authority:
Final report
Treasury: 24 November 2021
The Review makes 14 recommendations, of which 13 are directed to
AFCA. The recommendations primarily focus on enhancements to
AFCA's transparency and to its decision-making processes. The
Review makes one recommendation directed to Government, which is to
remove the legislative requirement for authorised credit
representatives to be members of AFCA. The final report of the AFCA Review.
AFCA current matters
Business interruption insurance test cases
(Updated November 2021).
AFMA dubmissions
12 November 2021 ASIC Product Design and Distribution
Obligations
AFMA lodged a submission to ASIC regarding equity research in terms
of the ASIC Product Design. AFMA noted that there is a risk that
the research product may be captured when the sell-side analyst
changes their recommendation from "sell" or
"hold" to "buy" and increases their price
target as a result
FSC: Target Market Determination templates
The new Design Distribution and Obligations come into
effect on 5 October 2021, and require product issuers to develop
Target Market Determinations (TMDs) for the
products they issue to retail clients. For more information on the
reforms and the FSC's template TMDs and data standards. More...
AIST submissions
24 November 2021 - AIST Submission: Review of the Review of the
Workplace Gender Equality Act 2012
AIST strongly supports the objectives and solid data-driven
insights of WGEA to date and would like to see WGEA's role and
powers expanded to drive greater outcomes in gender equality.
AIST Legislation updates
Stay up to date with the status of legislation in
Australia's parliament
Superannuation Legislation update - 25 November
2021
Superannuation Legislation update - 18 November
2021
Cases
Stack v AMP Financial Planning Pty
Limited (No 2) [2021] FCA
1479
CORPORATIONS - representative proceeding - practice and
procedure - de-classing action - s 33N of the Federal Court of
Australia Act 1976 (Cth) - s 33N(1)(c) - whether representative
proceeding an efficient and effective means of dealing with claims
- commonality concerning claims under ss 961B, 961J, 961L and 965
of the Corporations Act 2001 (Cth) - nature of AMP authorised
representatives - relationship with AMP licensees - personal advice
- breach of fiduciary duty - sufficient commonality - balance
between individual issues and common issues - application
refused.
Australian Securities and Investments
Commission v Caddick [2021] FCA
1443
CORPORATIONS - application for declarations of
contravention by defendants of s 911A of the Corporations Act 2001
(Cth) (Corporations Act) - where defendants' contravening
conduct established - where utility in making declarations sought -
application to appoint interim receivers as receivers of the first
defendant's property pursuant to s 1101B of the Corporations
Act - whether Court has power to appoint receivers
CORPORATIONS - application by interim receivers for payment of
remuneration - where prior orders of the Court capped the interim
receivers' remuneration - where remuneration sought exceeds
capped amount - where substantial work had to be undertaken that
could not have been reasonably anticipated
Most recently, ASIC sought declarations that Ms Caddick and Maliver
contravened s 911A of the Corporations Act 2001 (Cth), which
requires a person carrying on a financial services business in this
jurisdiction to hold an Australian Financial Services Licence
(AFSL) covering the provision of the financial services , as well
as orders, among other things, for the appointment of receivers
over Ms Caddick's property pursuant to s 1101B of the
Corporations Act and for Maliver to be wound up pursuant to s
461(1)(k) of the Corporations Act.
Macalister, in the matter of an
application by Macalister [2021] FCA
1455
CORPORATIONS - application by undischarged bankrupts for
leave to manage corporation under s 206G(1) Corporations Act 2001
(Cth) - application for order that applicants not disqualified
persons under s 126J(1)(b) Superannuation Industry (Supervision)
Act 1993 (Cth) - business of corporation limited to acting as
trustee of self-managed superannuation fund of which applicants are
only members - weighing of relevant factors - no contradictor -
orders made subject to condition offered by applicants.
Edser v QSuper Board
[2021] FCA 1437
ADMINISTRATIVE LAW - appeal from Australian Financial
Complaints Authority determination - whether question of law -
whether Authority erred by misconstruing phrase 'not related
to' under relevant insurance terms
Constitution s 51(xiv); Acts Interpretation Act 1901 (Cth) s 25D;
Corporations Act 2001 (Cth) ss 1053, 1055, 1057
Insurance Contracts Act 1984 (Cth) ss 8, 9(2), 47; Superannuation
(State Public Sector) Act 1990 (Qld).
Stanwell Corporation Limited v LCM
Funding Pty Ltd [2021] FCA
1430
CORPORATIONS - cartel representative proceeding - bidding
strategies of Queensland electricity generators - managed
investment scheme - litigation funder - purpose of scheme - whether
two separate schemes - financial product - whether funding scheme
constitutes a financial product - s 764A(1)(m) of the Corporations
Act 2001 (Cth) - whether scheme an unregistered managed investment
scheme - s 9 of the Corporations Act - whether scheme
grand-fathered under the Corporations Regulations 2001 (Cth) - regs
5C.11.01, 7.1.04N, 10.38.01 - application of the Corporations
Amendment (Litigation Funding) Regulations 2020 (Cth) - doubts
concerning Brookfield Multiplex Ltd v International Litigation
Funding Partners Pte Ltd [2009] FCAFC 147; (2009) 180 FCR 11 -
reference to Full Court - reference refused - originating
application dismissed - utility of declarations sought under
cross-claim - cross-claim dismissed.
Legislation
Commonwealth
Corporations Amendment (Improving Outcomes
for Litigation Funding Participants) Bill
2021
Senate 25/11/2021 - implements the government's
response to the report of the Parliamentary Joint Committee on
Corporations and Financial Services' inquiry into litigation
funding and the regulation of the class action industry by amending
the Corporations Act 2001 to: Establish a new kind of managed
investment scheme called a class action litigation funding scheme;
and introduce additional requirements for the constitutions of
managed investment schemes that are class action litigation funding
schemes.
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.