By Mark Bland, Partner, Stephen Putnins, Partner, Matthew Farnsworth, Partner, Geoffrey McCarthy, Special Counsel, Sheridan Handley, Senior Associate, Emma Higgs, Senior Associate, Vijay Adithya, Lawyer, Amiinah Dulull, Lawyer and Sam Morris, Consultant

Key developments

The reintroduction of the FAR Bill is a further step towards the implementation of a very significant and far reaching reform which will require significant preparation.  In preparing accountability statements, the regulated may wish to look at what has been published by APRA and ASIC for executive directors.

Consultation proceeds on the publication of the Quality of Advice Review.  The proposals raise significant concerns including by the removal of the current best interests safe harbour, the requirement to provide reasons for recommendations years into the future as a substitute for an SoA, deregulating general advice, when the division with personal advice is often tested, making models that rely on not considering the personal circumstances of the client in the advice but only the targeting like online systems, newsletters from superannuation targetting retirees and stockbroking advice impracticable and more.  It remains to be seen what the eventual reception by Government will be in face of concerns from consumer representatives and significant transitional costs.

The output from the first interim report of the ALRC as shown in various miscellaneous simplifications to the law, is underwhelming. Constant updates to laws is a source of complexity as well as their wording, and one may wonder if the amendments proposed will pay off.  The potential disallowance of regulations affecting notices of annual superannuation fund member meetings which could result in an on again off again set of rules increases complexity and underlies the importance of using ARGOS to stay up to date.

Regulatory actions continue with APRA implementing transparency initiatives and modernising its own approach while consulting on resilience.  ASIC has a current focus on TMDs and misleading promotions but appears to recognise that the breach reporting regime may be problematic.

Last Month

23 August – Treasury released a consultation paper to seek industry’s views on financial adviser professional standards.

23 August – The Federal Productivity Commission released its second interim report of its 5-year productivity inquiry into the role that data and digital tools can play in Australia’s continued growth.

23 August – ASIC Chair Joseph Longo delivered a speech to the Committee for Economic Development of Australia addressing ASIC’s priorities.

23 August – APRA has released its Quarterly Superannuation Performance publication for the June 2022 quarter.

24 August – ASIC released an update on compensation paid for financial advice related misconduct, as at 30 June 2022.

24 August – APRA and ASIC released the public notes on the Superannuation CEO Roundtable held on Friday 12 August 2022.

24 August – RBA’s Head of Domestic Markets delivered a speech at the Credit Law Conference on climate change risks in the financial system.

24 August – The Government released exposure draft materials for consultation implementing the ALRC ‘s first recommendations.

24 August – The Government released exposure draft materials for consultation to bring certain ASIC instruments into the law.

24 August – The Cyber Security Industry Advisory Committee published a media release for launching its Annual Report 2022.

24 August – In collaboration with Beyond Blue, ASIC commissioned research to examine the relationship between financial wellbeing and mental health.

25 August – Government has tabled in Parliament the Effectiveness and Capability Review of the ASIC undertaken by the FRAA.

25 August – ASIC published a media release welcoming FRAA’s report on its effectiveness and capability.

25 August – RBA published a media release providing an update on the Payments System Board meeting.

26 August – ATO published an update on advice under development on super including non-arm’s length expenditure incurred by complying superannuation funds.

26 August – The Federal Court Federal Court delivered its judgment, ordering MobiSuper Pty Limited and ZIB Financial Pty Limited to pay combined penalties of $250,000 for failures surrounding promotion of the Fund.

29 August – ASIC published a media release urging superannuation trustees to improve effectiveness of target market determinations.

29 August – Exposure drafts of the Treasury Laws Amendment (Modernising Business Communications) Bill 2022: Virtual hearings and examinations, explanatory memorandum and an explanatory statement were published by the Treasury for consultation.

29 August – The Proposal Paper for the Quality of Advice Review was published.

29 August – ATO updated their “How we resolve LPP claims” page.

29 August – APRA published a response paper to consultation on Phase 2 of the Superannuation Data Transformation project updating the sequencing and timeline of consultation topics.

30 August – APRA published Deputy Chair Helen Rowell’s speech to Risk Australia conference.

30 August – AUSTRAC ordered the appointment of an external auditor to assess Gold Corporation’s compliance with the AML/CTF Rules.

31 August – APRA published the 2022 MySuper performance test results.

31 August – ASIC published a media release warning brokers regarding high-risk offers to retail investors.

1 September – Australian Bureau of Statistics published the June 2022 quarter statistics for Australian Managed Funds.

1 September – ASIC updated its guidance for existing financial advisers who have not passed the exam and their licensees.

2 September – The Superannuation Industry (Supervision) Amendment (Annual Members’ Meetings Notices) Regulations 2022 were registered.

2 September – Treasury is consulting on draft Corporations Amendment (Litigation Funding) Regulations 2022.

2 September – Treasury is consulting on Miscellaneous amendments to Treasury portfolio laws 2022 Exposure Draft.

5 September – ASIC published a media release stating it had extended its product intervention order banning the issue and distribution of binary options to retail clients until 1 October 2031, registered the necessary instrument and published Report 736 Response to submissions on CP 362 Extension of the binary options product intervention order.

5 September – ASIC registered ASIC Corporations (Amendment) Instrument 2022/775 which amends the ASIC Corporations (Derivative Transaction Reporting Exemption) Instrument 2015/844.

6 September – The Treasury published the exposure draft of the Treasury Laws Amendment (Measures for Consultation) Bill 2022: Taxation treatment of digital currency and a draft explanatory memorandum.

6 September – APRA published a media release that it begun consulting on CPG 190 Financial Contingency Planning and CPG 900 Resolution Planning, the guidance that will accompany its two new prudential standards on financial contingency and resolution planning.

6 September – ASIC published a media release stating that it banned Melbourne based director of Sterling & Freeman Advisory Pty Ltd for five years.

6 September – A notice was given of a motion by Senator Pocock for the disallowance of the Superannuation Industry (Supervision) Amendment (Annual Members’ Meetings Notices) Regulations 2022 on 15 September 2022.

6 September –Treasury consulted on exposure drafts to clarify that crypto is not taxed as a foreign currency.

7 September – The Treasury Laws Amendment (2022 Measures No. 2) Bill 2022 changing the age limit for downsizer contributions was debated in the House of Representatives.

7 September – The ASIC Market Integrity Rules (Securities Markets) Determination 2022/787 and associated repeal instrument were registered.

7 September – Treasury released the consultation paper for the Your Future, Your Super review.

7 September – The Hon Stephen Jones MP delivered a speech at the AIST Conference and announced that the Government is very focused on the superannuation portfolio.

7 September – APRA published Chair Wayne Byres gave a speech to RMA Australia.

7 September – APRA published Member Margaret Cole’s speech to the AIST Conference of Major Superannuation Funds.

7 September – ASIC Commissioner Danielle Press delivered a speech to the AIST Conference of Major Superannuation Funds.

7 September – ASIC Corporations (Financial Requirements for Issuers of Retail OTC Derivatives) Instrument 2022/705 and associated repeal instrument were registered.

7 September – ASIC published a media release in regard to ABN AMRO Clearing Sydney Pty Ltd paying the $222,000 infringement notice given by the Markets Disciplinary Panel.

7 September – Senator White moved the disallowance of AML/CTF Rules Amendment Instrument 2021 (No. 2).

8 September – Legislation introduced in the House of Representatives included:

• Financial Accountability Regime Bill 2022;
• Financial Sector Reform Act 2022 including provisions for the Compensation Scheme of Last Resort;
• Financial Services Compensation Scheme of Last Resort Levy Act 2022;
• Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2022;
• Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2022; and
• Treasury Laws Amendment (2022 Measures No. 3) Bill 2022 addressing faith based superannuation.

8 September – The ATO published Commissioner Chris Jordan, AO speech ‘why tax ‘can’t ‘just happen’ without you’, stating the ATO’s Executive group endorsed a new digital strategy.

8 September – Treasury published exposure draft regulations for the Compensation Scheme of Last Resort.

8 September – Extension for annual reporting provided by registration of ASIC Corporations (Amendment) Instrument 2022/719.

8 September – ASIC published a media release on surveillance of managed funds investment performance representations.

9 September – Amendments to Annual Members’ Meetings Notice regulations commence.

12 September – Exposure draft of FAR Minister Rules released by Treasury for consultation.

12 September – Treasury released the exposure draft Superannuation Industry (Supervision) Amendment (Annual performance assessments – Faith-based products) Regulations 2022 and ES.

12 September – APRA published the information paper Modernising the prudential architecture.

13 September – ASIC announced that it had placed interim stop orders on the offer and distribution of two managed funds directly to retail investors in response to deficiencies in the funds’ target market determinations.

13 September – APRA registered Australian Prudential Regulation Authority (confidentiality) determination No. 3 of 2022.

14 September – Exposure Draft Legislation for franked distributions and capital raising published.

15 September – Full Federal Court overturned 20-year ban against James Mawhinney and reinstates interim injunctions.

16 September – Submissions close for responses on the Government’s consultation paper seeking industry’s views financial adviser professional standards.

Upcoming

20 September – Submissions closed for comments on the Government’s exposure draft amendments to reduce the complexity of Australia’s corporations and financial services law and improve its navigability including to bring ASIC instruments into the Act or Regulations..

23 September – Submissions to the consultation paper in relation to the Quality of Advice Review closes.

26 September – Submissions on Exposure drafts on Virtual hearings and examinations consultation are due.

23 September – Parliamentary sitting for both Houses.

26-28 September – Parliamentary sitting for both Houses.

30 September – Financial advisers must have passed the financial adviser examination based on Minister’s announcement rather than 1 January 2022 under previous requirements.

30 September – ASIC Corporations (Disclosure Fees and Costs) Instrument 2019/1070 (new RG 97) applies to all PDS given on or after this date.

30 September – Submissions on Exposure drafts on Litigation Funding Schemes consultation are due.

30 September – Comments due to Treasury on exposure draft miscellaneous amendments to Treasury portfolio laws 2022.

30 September – ATO scheduled to complete informal consultation on corporate collective investment vehicles tax administration.

30 September – Due date for ALRC Interim Report 2 focusing on regulatory design and the hierarchy of primary law provisions, regulations, class orders and standards.