In the media
Calls for APRA, ASIC to answer to mega regulator to end
the banking scandals
The corporate and prudential regulators have become
culturally and intellectually captured by the banks and should be
made to answer to a UK-style financial oversight committee, a
forthcoming Federal Law Review paper argues (21 October 2018).
More...
Australians are now paying a massive $32 billion a year
in super fund fees
The latest numbers show Australians are still being hit by
increasingly painful costs to have their retirement savings looked
after. The fees paid to superannuation funds have risen by 10% over
the last year to $32 billion, according to data from Rainmaker
Information (18 October 2018).
More...
New financial ombudsman reveals strategy ahead of
launch
AFCA, the new dispute resolution body which brings
together the Financial Ombudsman Service, the Credit and
Investments Ombudsman, and the Superannuation Complaints Tribunal,
have unveiled its strategy and new brand ahead of being open to
taking complaints from consumers and small business on 1 November
2018 (18 October 2018).
More...
ASIC cancels AFS licence of retail OTC derivative issuer
Direct FX Trading Pty Ltd* for serious compliance failures
Direct FX was in breach of multiple conditions of its AFS
licence, which are aimed at protecting investors from the higher
operational and credit risks posed by the retail OTC derivative
sector. Direct FX ignored key conditions of the notice of
suspension by continuing to open new trading positions and failed
to comply with its client money reporting obligations whilst
suspended (18 October 2018).
More...
ASIC cancels AFS licence of Red Summit
ASIC has cancelled the Australian financial services
(AFS) licence of WA-based Red Summit Trading
Partners Pty Ltd (Red Summit), after it was found
that the licensee was not carrying on its financial services
business due to staffing changes (17 October 2018).
More...
ASIC action on compliance breaches with fees disclosure
and renewal notices
ASIC is announcing a review of compliance with
requirements for Fee Disclosure Statements and Renewal Notices in
the financial advice sector. ASIC's ongoing work on fee for no
service failings in the advice industry has highlighted the
importance of FDSs and Renewal Notices (12 October 2018).
More...
ANZ fires 200 staff for misconduct
The big four bank has revealed that a number of senior
executives are included in up to 200 staff whose employment has
been terminated as a direct result of misconduct (12 October 2018).
More...
Good culture 'can't be left to regulators
alone': APRA
In a speech at the Financial Services Institute of
Australasia (FINSIA) Summit, APRA chairman Wayne
Byres acknowledged regulatory initiative in the pipeline –
accountability statements, remuneration restrictions, strengthened
governance requirements, greater attention to organisational
culture, and more forceful enforcement – will drive change
(12 October 2018).
More...
Super funds baulk at operational risk reserving
Major superannuation funds have questioned why they should
have to retain at least 0.25 per cent of their funds under
management to meet Australian Prudential Regulation Authority
(APRA) operational risk financial requirements
(ORFR) (11 October 2018).
More...
ASIC tidies up FASEA regime
The Australian Securities and Investments Commission
(ASIC) has tidied up a number of legislative and
regulatory anomalies contained within the legislation covering the
Financial Adviser Standards and Ethics Authority regime (10 October
2018).
More...
More...
APRA told not to act ahead of RC/PC findings
The APRA should postpone finalising its
post-implementation review of the new superannuation prudential
framework until after the Royal Commission and the findings of the
Productivity Commission (PC), according to the
Australian Institute of Superannuation Trustees
(AIST) (9 October 2018).
More...
In practice and courts
Credit and financial services targeted at Australians at
risk of financial hardship
On 17 October 2018, the Senate referred an inquiry into
the Credit and financial services targeted at Australians at risk
of financial hardship to the Senate Economics References Committee
for inquiry and report by 22 February 2019. Submissions Close: 09
November 2018.
More...
Reminder: the Australian Financial Complaints
Authority
AFCA is the new one-stop-shop for financial complaints,
and will replace the Superannuation Complaints Tribunal
(SCT), the Financial Ombudsman Service and the
Credit and Investments Ombudsman. SCT set to continue accepting
complaints until 31 October 2018. AFCA will commence accepting
complaints on 1 November 2018.
ASIC Corporations (Professional
Standards—Transitional) Instrument 2018/894 and the
explanatory statement
The instrument makes changes to the reporting dates for a
number of disclosure obligations in the transition to the new
financial adviser professional standards reforms. The reporting
changes will simplify licensees' notification obligations and
enable ASIC to implement the required systems changes more
effectively. These changes do not affect advisers' and
licensees' substantive obligations under the professional
standards reforms (10 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...
Should superannuation funds do more direct
lending?
Stephen Anthony; Industry Super Australia
In the right circumstances, superannuation funds could provide
capital for growth to SME's and business more generally,
complementing more traditional capital sources such as banks,
according to this discussion paper (02 October 2018). More...
Reforms to strengthen penalties for corporate and
financial sector misconduct – Draft Legislation
The Government consultation on draft legislation to
strengthen penalties for corporate and financial sector misconduct
has now been completed. The proposed changes would double maximum
imprisonment penalties and significantly increase financial
penalties for some of the most serious 'white-collar'
criminal offences. More...
Parliamentary Joint Committee on Corporations and
Financial Services: Opening Statement
Opening statement by James Shipton, Chair, Australian
Securities and Investments Commission, Parliamentary Joint
Committee on Corporations and Financial Services (19 October 2018).
More...
Gazette - Superannuation Industry
(Supervision) Act 1993
18/10/2018
Notice of Disqualification - Linda Caines
17/10/2018
Notice of Disqualification - Corie Derrick
16/10/2018
Notice of Disqualification - Tubs M Reti
15/10/2018
Notice of Disqualification - Scott C Darcy
Cases
Folmer v VicSuper Pty Ltd & Anor
[2018] NSWSC 1503
INSURANCE — TPD insurance — Plaintiff was
member of superannuation fund — Trustee of fund (first
Defendant) effected Group policy insurance — Insurance policy
with Insurer (second Defendant) — Insurance providing
benefits upon total and permanent disablement of member —
Plaintiff claims she is totally and permanently disabled after
being off work for six months — Trustee declined the
Plaintiff's claim — Duty on a trustee of a superannuation
fund in determining a claim for a total and permanent disablement
benefit — Whether Trustee breached obligations to Insured
— Plaintiff not pursuing claim against Trustee by end of the
hearing, accepting claim against Trustee to be dismissed.
INSURANCE — Where contract of insurance — Where
Plaintiff claimed that she had suffered total and permanent
disablement — Whether totally and permanently disabled
benefit payable if Insured proved to the satisfaction of Insurer
that she was so incapacitated as to be 'unable ever again to
work for reward in any business, occupation, or regular duties for
which she is reasonably qualified by education, training or
experience' — Where insurer denied claim on the basis the
claim did not satisfy the definition of TPD — Whether Insurer
acted reasonably in considering the claim — Utmost good faith
— Whether Insurer breached duty of utmost good faith and fair
dealing — Whether Plaintiff totally and permanently disabled
within the meaning of the relevant insurance policy —
Plaintiff challenges decisions of the Insurer.
INSURANCE — Standard of review adopted by Court —
Whether Insurer could reasonably have reached the conclusions it
did on the evidence available to it — Whether opinion open to
Insurer acting reasonably and fairly on the material before it
— Whether Plaintiff was totally and permanently disabled at
the assessment date.
Civil Procedure Act 2005 (NSW); Life Insurance Act
1995 (Cth); Superannuation Industry (Supervision) Act
1993 (Cth)
Susan Buswell v TAL Life Limited
[2018] NSWSC 1507
INSURANCE – construction of policy – income
protection insurance – whether sum given in settlement of a
claim for damages for psychological injury constituted Other
Disability Income for purposes of policy – where Other
Disability Income was deducted from monthly benefits –
whether settlement sum was income or capital – whether
settlement sum was a benefit under workers' compensation
legislation. First State Superannuation Scheme.
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.