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 [email protected] 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 1479CORPORATIONS – 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 1443CORPORATIONS – 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 1455CORPORATIONS – 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 1437ADMINISTRATIVE 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 1430CORPORATIONS – 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 2021Senate 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.