Type Subject matter Source Description

ASIC

ASIC Enforcement Review Taskforce

Treasury website

On 8 November 2017, the ASIC Enforcement Review Taskforce, which was established by the Government to review the adequacy of ASIC's enforcement regime, issued Position and Consultation Paper 8 - ASIC's Directions Powers.

According to summary published on the Treasury website, the Taskforce has identified a number of shortcomings with ASIC's existing powers to modify an Australian financial services licensee's ongoing systems and conduct after issuing an Australian Financial Services Licence. These shortcomings and the proposals to address them are set out in the paper for consultation.

The consultation period is open until 20 November 2017.

ATO

Unclaimed Superannuation Money Protocol

ATO website

On 8 November 2017, the ATO updated its guidelines in relation to how to correct a mistake on a previous unclaimed superannuation money (USM) statement.

According to the ATO the current process to lodge adjustments will end at 5:00pm on 30 November 2017.

The ATO has asked that the lodging of USM adjustments be suspended between 30 November and 11 December, with the new process beginning on 11 December 2017.

Case Law update Federal Court Appeal

Edwards v Commonwealth Superannuation Corporation [2017] FCAFC 173

On 31 October 2017, the Full Court of the Federal Court of Australia handed down its decision in Edwards v Commonwealth Superannuation Corporation [2017] FCAFC 173, dismissing an appeal from the Federal Court.

The appeal concerned a decision of the trustee of the Commonwealth Superannuation Scheme (Scheme) to pay a death benefit directly to two children of the deceased, rather than to Mr Edwards, who was the de facto spouse of the deceased and the legal guardian of the children. Mr Edwards complained about the trustee's decision to the Superannuation Complaints Tribunal. The Tribunal affirmed the trustee's decision on the basis that it was satisfied that the decision was fair and reasonable. Mr Edwards appealed the Tribunal's determination to the Federal Court, which dismissed the appeal.

Mr Edwards appealed the decision of the Federal Court to the Full Court of the Federal Court. Among other things, Mr Edwards argued that the rules of the Scheme, which provided that in certain circumstances a pension payable to a child could be paid to an "other person", required the pension be payable to him on the basis that only he fell within the category of "other person". The Full Court disagreed with Mr Edward's construction of the relevant clause, and determined that at the time the trustee made the decision to pay the relevant benefit to the children, it had power under the rules of the Scheme to do so and had taken into consideration all relevant facts and circumstances. The Full Court found no reason to depart from the decision made in the first instance. Accordingly, the appeal was dismissed.

Policy update Access to superannuation to compensate victims of crime

Transcript of interview

On 10 November 2017, in a radio interview, the Minister for Revenue and Financial Services, Kelly O'Dwyer, foreshadowed a Government review of the circumstances in which victims of crime could obtain access to the superannuation assets of the perpetrators.

Amongst other things, the Minister said that the review would "look at whether or not superannuation ought to remain protected in certain circumstances and…the Commonwealth is very open to changing the law in this regard so we will go out for comment".

ASIC Regulatory Guide 175 updated ASIC website

On 14 November 2017, ASIC issued a media release announcing updates to ASIC Regulatory Guide 175 Licensing: Financial product advisers - conduct and disclosure (RG 175).

According to the media release ASIC has updated RG 175 to 'include guidance that terms such as "independently owned", "non-aligned" and "non-institutionally owned" are restricted under the Corporations Act…[and that]…[f]inancial services providers can only use these terms if they meet the requirements set out set out in s923A of the Act, including that they do not receive commissions, volume-based payments, or other gifts or benefits, and operate without any conflicts of interest".

Further details and background are set out in the ASIC media release.