Australia: Superannuation, Funds Management & Financial Services News – 6 June 2018

Last Updated: 9 June 2018
Article by Chris Lovell, Paul Faure and Bill Glover

Most Read Contributor in Australia, October 2018

In the media

Product dashboards 'essential', says KPMG
Super product dashboards should be a "priority" for ASIC given the findings in the Productivity Commission's draft report on superannuation, says KPMG (1 June 2018). More...

Some SMSFs are also underperformers
The Productivity Commission's (PC's) finding that many people have their superannuation in underperforming funds also extends to self-managed super funds (SMSFs), founder of SMSF Benchmarks, Nick Shugg (31 May 2018). More...

O'Dwyer emphasises jail terms for SG underpayments
An SMSF accountant has been charged with multiple counts of criminal conduct and fraud after misusing investor funds, and making false and misleading statements to investors. The Minister for Revenue and Financial Services, Kelly O'Dwyer has stressed the likelihood of jail terms for employers who fail to meet their superannuation guarantee (SG) obligations (31 May 2018). More...

ASIC gives disclosure relief during transition to AFCA
ASIC has announced it will give financial firms, including superannuation trustees, transitional relief until 1 July 2019 to allow them time to update mandatory disclosure documents and periodic statements with the contact details of the Australian Financial Complaints Authority (AFCA) (31 May 2018). More...

Government to pause fines for unpaid super
The government is proposing to grant employers a 12-month amnesty from the late fines associated with outstanding superannuation, on the proviso that they are fully paid within the period. The introduction of the Treasury Laws Amendment (2018 Superannuation Measures No. 1) Bill 2018 waives penalties dealt to employers for failing to pay superannuation owed to employees (31 May 2018). More...

APRA seeks further improvements from superannuation licensees to manage conflicts of interest
The Australian Prudential Regulation Authority (APRA) has called for greater focus by superannuation licensees on administering outsourcing arrangements with related parties to effectively manage conflicts of interest. View APRA's letter to RSE licensees on the related party thematic review here (29 May 2018). More...

Federal government cracks down on criminals' super
According to Minister for Revenue and Financial Services, Kelly O'Dwyer, the first proposal is for a new claw-back mechanism for "out of character" superannuation contributions made by criminals to shield their assets from use in compensating victims of their crimes (29 May 2018). More...

PC's super report delivers on Government's terms
Inadequate competition, governance and regulation have led to a situation in which many Australians are not achieving an optimal outcome from superannuation, including being signed up to underperforming funds, holding unintended multiple accounts and having their balances eroded by unsuitable insurance (29 May 2018). More...

ASFA urges caution on PC report
Any changes to Australia's superannuation system flowing from the Productivity Commission's latest draft report need to acknowledge the world-leading nature of the existing regime and the diverse needs of members, according to the Association of Superannuation Funds of Australia (ASFA) (29 May 2018). More...

Consumer interests best served by existing industrial-based default super system: AIST responds to Productivity Commission
The Australian Institute of Superannuation Trustees (AIST) has reiterated its support for an industrial-based default fund selection process, noting this model had a strong track record of protecting consumer interests and delivering superior returns (29 May 2018). More...

ISA calls for Fair Work panel's reconvening
Industry Super Australia (ISA) has called on the Government to immediately reconstitute the Fair Work Commission's expert panel to shortlist the best performing super funds, rejecting a suggestion from the Productivity Commission (PC) that another agency be created to do this work (29 May 2018). More...

AAT affirms permanent ban of former Easy Capital director
The Administrative Appeals Tribunal (AAT) has affirmed ASIC's decision to permanently ban Mr Yingjie Wang (also known as Jay Wang), a lawyer and accountant from Sydney, from providing financial services (28 May 2018). More...

Boosting financial capability across Australia
The Turnbull Government is establishing a new body to boost the advancement of financial capability across Australia. The new body, a not for profit public company, will administer grants and improve capabilities amongst Australians of financial products and services (28 May 2018). More...

Corporate watchdog wants to put staff in the nation's banks to clean up industry
After months of shocking revelations at the banking royal commission, the corporate watchdog ASIC wants more money from the Federal Government to supervise the industry (28 May 2018). More...

New proposals to improve compensation for victims of crime
The Turnbull Government is acting to ensure that the superannuation accounts of criminals cannot be used as a safe haven to protect their assets from the victims of their serious crimes. The Minister for Revenue and Financial Services, the Hon Kelly O'Dwyer MP, released for public consultation two draft proposals on access to superannuation. Stakeholders are invited to comment on the draft proposals, as set out in a consultation paper accessible from the Treasury website, by lodging a submission. Submissions are due by 15 June 2018. (28 May 2018). More...

Government commences consultation to clamp down on large cash payments
The Turnbull Government is committed to tackling the black economy and has issued a consultation paper inviting comment on its Budget announcement to introduce an economy-wide cash payment limit of $10,000 (25 May 2018). More...

Tackling non-payment of workers' superannuation
The Turnbull Government is continuing to take action to ensure Australian workers are paid the superannuation entitlements that they are owed. The Turnbull Government has introduced legislation to complement the sweeping superannuation guarantee (SG) integrity package already before Parliament by introducing a one-off, twelve month amnesty for historical underpayment of SG (24 May 2018). More...

Second and final phase of industry funding model - ASIC fees-for-services
The Turnbull Government is committed to ensuring that the ASIC has the resources and powers it needs to combat misconduct in Australia's financial services industry and promote trust and confidence in the financial sector. The Government has introduced into Parliament legislation on the second phase of the ASIC industry funding model – fees-for-service (24 May 2018). More...

Turnbull Government acts to further strengthen APRA
The Turnbull Government has introduced legislation that will bolster the ability of the Australian Prudential Regulation Authority (APRA) to ensure stability and accountability in our critical financial sector through the appointment of a second Deputy Chair (24 May 2018). More...

Governance Institute: Shareholders pivotal role in restoring trust and integrity in financial services
As the horror stories of unconscionable conduct continue to unfold in the third round of the Hayne Royal Commission, shareholders – institutional and retail – have a pivotal role to play in restoring trust and confidence in the financial services sector (24 May 2018). More...

APRA reviews its superannuation prudential framework
The Australian Prudential Regulation Authority (APRA) has begun a post-implementation review of the superannuation prudential framework introduced following the 2013 Stronger Super reforms (23 May 2018). More...

Internal auditors urged 'to lift their game' in raising red flags
ASX Corporate Governance Council chairman Elizabeth Johnstone calls on the internal auditing profession to lift its game to better weed out unethical or unlawful practices revealed in the financial services royal commission (22 May 2018). More...

Asset stewardship code unveiled by ACSI
The Australian Council of Superannuation Investors (ACSI) has launched a stewardship code that lays out principles for voting activity, company engagement and asset manager monitoring (18 May 2018). More...

Super board assessment a 'blind spot': APRA
Not all superannuation funds are adequately monitoring their directors' performance, an APRA review has found. In a letter addressed to registrable superannuation entities (RSEs), APRA released findings from its thematic review into board governance practices that assessed how RSEs were holding up against new prudential standards that were introduced in July 2013 (18 May 2018). More...

In practice and courts

APRA update on new accounting standards AASB 16 and AASB 17
(31 May 2018) More...

Applying the IASB's Revised Conceptual Framework and Solving the Reporting Entity and Special Purpose Financial Statement Problems
Hot Topic released –This Hot Topic provides an overview of the work the AASB has undertaken – including a series of research reports – with regard to the issues faced in introducing the IASB's revised Conceptual Framework for Financial Reporting into Australia, and improving the consistency, comparability and transparency of financial reports prepared in accordance with Australian Accounting Standards (23 May 2018). More...

ASIC CP 300 Approval and oversight of compliance schemes for financial advisers
The proposals in CP 300 Approval and oversight of compliance schemes for financial advisers are outlined here. ASIC is consulting for six weeks on the proposals in the paper and responses are invited by 28 June 2018. ASIC intends to release a regulatory guide setting out our final policy by the end of September 2018.

APRA: Review of the superannuation prudential framework
The aim of the review is to ensure the prudential and reporting standards, and related guidance, have achieved their objectives and continue to remain fit for purpose. To commence this review, APRA has released the first of a series of consultation papers on aspects of the prudential framework. APRA invites written submissions on all consultation papers by 26 September 2018. Copies of the consultation papers are available here (23 May 2018). More...

APRA superannuation statistics March 2018
The Australian Prudential Regulation Authority (APRA) has released its Quarterly Superannuation Performance publication and the Quarterly MySuper Statistics report for the March 2018 quarter (29 May 2018). More...

Australian Council of Superannuation Investors (ACSI) Australian Asset Owner Stewardship Code
The stewardship code sets out six principles which signatories must commit to on an 'if not, why not' basis. Signatories will be required to publish a 'Stewardship Statement' describing how they apply the principles, with a list of signatories maintained on the ACSI website (18 May 2018). More...

AIST Submissions
Protecting Your Super Package
AIST generally supports the package, but changes are needed to better meet members' best interests. The fee cap calculation needs review and sell spreads need to be included in the calculation of exit fees in order to prevent gaming (29 May 2018).

ASFA Submission
Submission to The Treasury - ASFA response to the exposure draft Treasury Laws Amendment (Protecting Superannuation) – Bill 2018 (Draft Bill) and the related draft Explanatory Materials (29 May 2018). More...
Submission to Australian Securities and Investments Commission (ASIC) - Response to the draft Cost Recovery Implementation Statement for ASIC's Fees-for-service regime (23 May 2018). More...

The regulatory capital framework - Impairment, provisioning and enforcing security: background paper 13
In response to a request from the royal commission, APRA has prepared this paper on the effect on an authorised deposit-taking institution's (ADI) Tier 1 capital, where a loan is classified as impaired, a provision is raised and enforcement action against the loan's security is taken (18 May 2018). More...

Retirement Income Covenant Position Paper: Consultation
The retirement phase of the superannuation system is currently under-developed and needs to be better aligned with the overall objective of the superannuation system of providing income in retirement to substitute or supplement the Age Pension. The new covenant will form the cornerstone of the new framework. It will be added to the Superannuation Industry (Supervision) Act 1993. The position paper is available here. Interested parties are encouraged to provide submissions on the proposed covenant principles by 15 June 2018.

ASIC CP 300 Approval and oversight of compliance schemes for financial advisers
The proposals in CP 300 Approval and oversight of compliance schemes for financial advisers are outlined here. ASIC is consulting for six weeks on the proposals in the paper and invite responses by 28 June 2018. ASIC intends to release a regulatory guide setting out our final policy by the end of September 2018.

Financial Adviser Standards and Ethics Authority (FASEA): draft guidance on education pathways for existing financial advisers
Under the professional standards reforms, existing financial advisers have until 1 January 2024 to meet the degree-equivalent requirements set by the Standards Authority. The draft guidance is available on the Standards Authority's website. Consultation will close on 29 June 2018. More...

Current Inquiries - Economics Legislation Committee
Consumer protection in the banking, insurance and financial sector
On 14 February 2018, the Senate granted an extension of time to report by 26 June 2018.

Gazette -Superannuation Industry (Supervision) Act 1993
Notice of Disqualification - Steven Larkin; Steven Noske (31 May 2018).
Notice of Disqualification - Anastasia Bonython; Gregory Prouse; Nui Harris (22 June 2018).

Cases

Hart and Commissioner of Taxation (Taxation) [2018] AATA 1267
SUPERANNUATION – self managed superannuation fund – whether breach by trustee of Trust Deed – whether breach by trustee of covenants – whether fit and proper person – disqualification – failure to lodge annual returns – breach of in-house asset rule – condition of release not met – breach of related entity provisions – acquisition of superannuation fund assets – arm's length investments – acquisition of real property – acquisition of shares in a foreign company – failure to comply with benefit payment standards – falsifying signatures on superannuation fund documents – payment of benefits due to terminal illness – loans and financial assistance to members – sole purpose test – forfeiture of benefit of members - Superannuation Industry (Supervision) Act 1993.

Cam & Bear Pty Ltd v McGoldrick [2018] NSWCA 110
NEGLIGENCE – breach of duty by auditor of self-managed superannuation fund – negligence in failing to identify and report doubts as to recoverability of assets described in financial statements as cash – primary judge erred in failing to have regard to the breadth of the appellant's case – breach of duty caused loss.
NEGLIGENCE – contributory negligence – appellant lacked financial sophistication – respondent auditor engaged to prevent the kind of loss that occurred – appellant's damages reduced by 10% for its contributory negligence.
NEGLIGENCE – proportionate liability – claim against superannuation fund's auditor – damages of appellant not reduced by reason of directors' concurrent liability to the appellant – the same acts of the directors resulted in the appellant's damages being reduced for its contributory negligence – to permit both reductions would result in a double deduction for the same acts.
NEGLIGENCE – proportionate liability – claim against superannuation fund's auditor – company which compiled the fund's financial statements not proved to be also liable to appellant – no evidence as to the basis on which the company was engaged.

Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751
CORPORATIONS – non-disclosure of rate set trading practice – misleading or deceptive conduct – false or misleading representations – contraventions of s.1041H of Corporations Act – contraventions of ss.12DA and 12DF of Australian Securities and Investments Commission Act 2001 (Cth) – unconscionable conduct – financial instruments referencing BBSW – non-disclosure of rate set trading practice to counterparties – unconscionable conduct within the meaning of the unwritten law – statutory unconscionability – contraventions of ss.12CA, 12CB and 12CC of Australian Securities and Investments Commission Act.
CORPORATIONS – financial services licence – licence obligations – whether financial services provided efficiently, honestly and fairly – conflict of interest – training of representatives – contraventions of s.912A(1) of Corporations Act.

Wang and Australian Securities and Investments Commission [2018] AATA 1405
CORPORATIONS ACT – banning order – permanent ban – where applicant involved in multiple business enterprises – applicant held position as director of multiple companies – Australian Financial Services Licence – whether applicant breached a financial services law – whether applicant was dishonest – whether applicant is of good fame and character – decision under review affirmed.
On 3 February 2017, a Delegate of the Respondent (ASIC) decided to permanently ban the Applicant (Mr Wang) from providing financial services under s.920A of the Corporations Act 2001 (Cth) (CA).
Section 920A(1) empowers ASIC to make a banning Order against a person. The Delegate found that each of s.920A(1)(d), (e) and (f) was satisfied in the case of Mr Wang.

Legislation

Commonwealth

Treasury Laws Amendment (Release of Superannuation on Compassionate Grounds) Regulations 2018
These regulations amend the Retirement Savings Accounts Regulations 1997 and Superannuation Industry (Supervision) Regulations 1994 to improve the integrity of the processes under which benefits are released on compassionate grounds by superannuation entities or retirement savings account providers to their members (30 May 2018).

Superannuation (PSS) Maximum Benefits (2018-2019) Determination 2018
This instrument sets new maximum benefits for the Public Sector Superannuation (PSS) scheme to apply for the financial year starting on 1 July 2018 (22 May 2018).

Superannuation (CSS) Productivity Contribution (2018-2019) Declaration 2018
This instrument sets the new productivity contribution rates to apply with effect from 1 July 2018 (22 May 2018).

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.

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