In the media
ASIC takes court action to enforce enforceable
undertaking
The Australian Securities and Investments Commission
(ASIC) has taken the unusual step of pursuing
civil proceedings in the Federal Court to enforce the terms of an
enforceable undertaking on a Gold Coast-based self-managed
superannuation fund accountant (23 November 2020). More...
AIST questions Retirement Income Review case to halt
super increase as women and low income earners will suffer
The Australian Institute of Superannuation Trustees
(AIST) has welcomed release of the Retirement
Income Review, while urging the government to stick to the
scheduled increase of the superannuation guarantee (20 November
2020). More...
Government action needed to avoid lower retirement
living standards
The release of the 2020 Mercer CFA Institute Global
Pension Index, which saw Australia's super system record a drop
in ranking across two key categories, highlights the need for new
policy measures and a commitment from the Government to the
legislated timeline to increase the super compulsory rate to 12 per
cent (20 November 2020). More...
AFCA Member Forums: two years of operations, future of
membership experience
Acting Chief Ombudsman and CEO Justin Untersteiner told
AFCA members the ombudsman had received more than 153,000
complaints in its first 24 months, resolving around 135,000
disputes and awarding more than $474.5 million in compensation and
refunds to consumers and small businesses (20 November 2020).
More...
ASFA: Superannuation delivers for Australia
The Association of Superannuation Funds of Australia
(ASFA) has welcomed the release of the Retirement Income Review,
which found Australia's retirement income system is effective,
sound and its costs are broadly sustainable leaving it well-placed
to deal with economic volatility and the challenge of an ageing
society (20 November 2020). More...
Govt's RIR welcomed but opposing views on key
issues
Employers, including small businesses, should be made to
report more detailed superannuation guarantee (SG) information to
the Australian Taxation Office (ATO) more frequently, according to
the Australian Institute of Superannuation Trustees (AIST)(20
November 2020). More...
ASIC consults on reference checking and information
sharing protocol
ASIC released a consultation paper seeking feedback on a
new reference checking and information sharing protocol for
financial advisers and mortgage brokers. Mandating reference
checking for financial advisers and mortgage brokers was a
recommendation of the Financial Services Royal Commission (Royal
Commission)(19 November 2020). More...
ASFA: 700,000 Australians reunited with over $1 billion
of lost and unclaimed super
ASFA estimates 700,000 Australians stand to receive a
payment as a result of the latest round of consolidating lost and
small inactive superannuation account balances. Each April and
October super funds send lost and small inactive accounts to the
ATO as part of a process of reuniting accounts with account holders
(19 November 2020). More...
Hume flags continuing hard line on super defaults
The Federal Government has reinforced its hardline
approach to superannuation fund performance and fees with the
Assistant Minister for Superannuation, Financial Services and
Financial Technology, Senator Jane Hume, claiming inefficiencies
have resulted in Australians paying $30 billion a year in super
fees (17 November 2020). More...
ASIC affordable advice paper opportunity to address
limited licence regime
The SMSF Association has welcomed the Australian
Securities and Investments Commission's consultation paper on
affordable advice and said the self-managed superannuation fund
advisers being able to provide limited advice was a key issue (17
November 2020). More...
ASIC consults on promoting access to affordable advice
for consumers
ASIC has issued Consultation Paper 332 Promoting access to
affordable advice for consumers (CP 332).A particular focus of this
paper is on promoting access to quality 'limited advice'(17
November 2020). More...
In practice and courts
ASIC Papers open for public comment
CP 333 Implementing the Royal Commission recommendations: Reference
checking and information sharing
Released 19 November 2020. Comments
close 29 January 2021.
Seeks feedback on ASIC's proposed approach to implementing
aspects of the law reform arising from Royal Commission
Recommendations 1.6 and 2.7. relating to the reference checking and
information sharing protocol for financial advisers and mortgage
broker. More...
CP 332 Promoting access to affordable advice for
consumers
Released 17 November 2020. Comments close 18 January
2021.
Seeks information from financial advice industry participants and
other stakeholders on impediments to the delivery of good-quality
affordable personal advice, particularly access to quality
'limited advice': see here. More...
ASIC regulatory documents
20/11/2020 RG 36 Licensing: Financial product advice
and dealing (updated)
20/11/2020 REP 673 Consumer engagement in insurance
in super
Presents findings from research exploring the experiences of
superannuation fund members, who were not using a financial adviser
and directly contacted their fund to make enquiries about or make
changes to their insurance arrangements: see 20-293MR
APRA superannuation statistics for September 2020
The APRA has released its Quarterly Superannuation
Performance publication and the Quarterly MySuper Statistics report
for the September 2020 quarter (24 November 2020). More...
APRA weekly data on the superannuation early release
scheme
The APRA has published the latest industry-level and
fund-level data on the temporary early release of superannuation
scheme. The Early Release Initiative statistics for applications
received between 20 April - 15 November 2020 are available on the
APRA website at: COVID-19 Early Release Scheme (23 November 2020).
More...
APRA reminder: superannuation licensees on
upcoming legislative obligations
Registrable superannuation entity (RSE) licensees are
reminded of two key regulatory requirements - to undertake a
Business Performance Review by 31 December 2020, and an outcomes
assessment by 28 February 2021. View the letter here.
ASFA research and papers
November 2020 Superannuation and Australians' expectations:
Polling Project, ASFA
Retirement income review final report
Treasury: 20 November 2020
The Review was recommended by the Productivity Commission in its
report Superannuation: Assessing Efficiency and Competitiveness and
comes 27 years after the establishment of compulsory
superannuation. The Final Report makes a number of key observations
with respect to each of the system's three pillars
outlined here.
ASIC Corporations, Superannuation and Credit (Amendment)
Instrument
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. More...
Consultation: AFCA Rules changes ahead of Superannuation
Complaints Tribunal ceasing operations
As part of transition arrangements in relation to the
Superannuation Complaints Tribunal (SCT) ceasing operations after
31 December 2020, the Australian AFCA submissions on proposed
changes to its Rules closed on 16 October 2020. The consultation
paper, draft amendments to the Rules and draft amendments to the
Operational Guidelines are available on the AFCA website here.
Cases
Blazejczyk and Australian Securities
and Investments Commission [2020] AATA
4352
PROFESSIONAL SERVICES - financial services - banning
order - where Applicant prohibited from provision of any
financial services for five years - where Applicant accepted
banning and prohibition period but sought to limit scope of banning
to "personal advice" to "retail clients" -
whether limited or permissive banning order appropriate -
reviewable decision affirmed
D H Flinders Pty Ltd v Australian
Financial Complaints Authority
Limited [2020] NSWSC
1690
Declaration to be made that AFCA has no contractual authority,
jurisdiction or power to determine the complaints made against the
plaintiff by the second and fourth defendants
CORPORATIONS - financial services - external dispute
resolution scheme - proper construction of tripartite contract
constituted by AFCA rules between financial services
licensee, AFCA and complainant - whether AFCA had authority,
jurisdiction or power to determine complaint - where complaint
about conduct of licensee's representative - whether complaint
arose from provision of a financial service by the
licensee to the complainant - whether licensee a financial firm for
the purpose of the AFCA rules
CORPORATIONS - financial services - external dispute
resolution scheme - whether AFCA had dealt with complaint in a
procedurally fair and impartial manner
In the matter of HPack Investments Pty
Ltd [2020] NSWSC 1638
Current freezing orders to be extended until further order.
Plaintiff to bring in short minutes of order to give effect to this
judgment within one business day.
CIVIL PROCEDURE - Interim preservation - Freezing orders - Against
third parties - Jurisdiction to make freezing order - Discretion
whether to make freezing order - Winding up application against
company that is trustee of self-managed superannuation
fund - Where assets had been transferred to beneficiaries and
associated entities - Asset transfers occurring without discharging
tax liabilities - Where assets now held by beneficiaries and
associated entities appear less than quantum transferred - Where
evidence led raises risk of continued dissipation of assets without
reserving funds to meet judgment - Where liquidator if appointed
has prospective claims against beneficiaries and associated
entities.
Corporations Act 2001 (Cth), ss 180, 588FDA, 588FG, 1317S; Practice
Note SC Gen 14
Superannuation Industry (Supervision) Act 1993 (Cth), ss
120(2)(e), 126K
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.
