RegTracker 22 November 2022

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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, Compliance Consultant

Key developments

A high level of oversight of regulators continues, with the FRAA seeking submissions on APRA’s supervision and resolution and three Parliamentary enquiries underway into ASIC’s performance and a government review about ASIC’s funding model.

Breach reporting remains a key focus with ASIC and OIAC reporting disappointing and inconsistent levels of apparent compliance.  Penalties are likely to be increasingly sought by the regulators. ARGOS Breach Consult can help streamline your checks on ASIC reporting.

APRA’s focus on transitioning out underperforming funds continues including in new proposed guidance on preparing for transfers, and holding reserves to facilitate transfers as well as preventing operational risk events.

The announced funding for the overdue review of regulation of managed investment schemes is long overdue with issues remaining from the Turnbull Review in 2001.

Last Month

19 October – APRA published Chair Wayne Byres Speech to FINSIA ‘In Conversation with Wayne Byres’ event.

20 October – APRA published its Annual Report for the 2021-22 financial year.

20 October – APRA published the first Quarterly Superannuation Industry Publication.

21 October – ASIC published its 2021-22 Cost Recovery Implementation Statement.

21 October – APRA published new FAQs on Phase 1 of the SDT.

21 OctoberASIC issues stop order on TMD for Westlawn Income Fund.

24 October – APRA published its roadmap to review the prudential framework for groups.

24 October – FAR Bill, FSR Bill, CSLR Levy Bill, CSLR Collection Bill Senate Economics Legislation Committee report published.

24 October – APRA published a media release in the wake of the Medibank data breach, cautioning all APRA-regulated entities to ensure that information security controls are in place.

24 October – AISC sues BPS Financial for alleged misleading statements and unlicensed conduct in relation to a non-cash payment facility involving a crypto asset called ‘Qoin’.

25 October – CommSec and AUSIEX ordered to pay over $27 million for systemic compliance failures.

25 October – AISC reports on practices in wholesale financial markets.

25 October – Treasurer delivers Federal Budget including funding for a review of regulation of managed investment schemes.

25 October – Motion put that the Superannuation Industry (Supervision) Amendment (Annual Members’ Meetings Notices) Regulations 2022 be disallowed failed.

25 October – ASIC Deputy Chair Karen Chester delivered a speech at the Carbon Market Institute’s 9th Australasian Emissions Reduction Summit.

26 October – APRA released its findings from insurance risk management review.

26 OctoberASIC appealed the decision to ASIC v Commonwealth Bank of Australia [2022] FCA 1149.

26 October – The Government registered the Corporations (Relevant Providers Degrees, Qualifications and Courses Standard) Amendment (2022 Measures No. 2) Determination 2022.

27 OctoberThe Senate agreed to a motion to refer matters concerning ASIC’s capacity and capabilities to the Economics References Committee for inquiry and report by the last sitting day in June 2024.

27 October – ASIC published Report 740, Insights from the reportable situations regime: October 2021 to June 2022.

27 October – The Senate agreed to a motion to refer matters concerning ASIC’s capacity and capabilities to the Economics References Committee for inquiry and report by the last sitting day in June 2024.

27 October – The Venture Capital Tax Concessions Review was tabled in the House of Representatives.

27 October – The Treasury Annual Report 2021-22 was published.

27 October – ASIC published a media release on its first action for ‘greenwashing’ against Tlou Energy Limited, a listed energy company.

27 October – The amendments to the performance test for faith based products in the Treasury Laws Amendment (2022 Measures No. 3) Bill 2022 was passed by the House of Representatives.

27 October – The Full Court of the Federal Court judgment clarified that AFCA only has the authority to determine a ‘complaint relating to superannuation’ that falls within the ambit of

28 October – AUSTRAC published a new Financial Crime Guide ‘Preventing Trade-Based Money Laundering in Australia’.

28 October – Treasurer announced a number of appointments to the board of APRA.

28 October – APRA Deputy Chair Helen Rowell delivered a speech at the inaugural Australian Sustainable Finance Summit.

28 OctoberPJC announced that it had commenced an inquiry into the capacity and capability of ASIC to undertake proportionate investigation and enforcement action arising from reports of alleged misconduct.

31 October – ASIC welcomes ASX’s latest industry consultation on improving market resilience. Submissions close on 9 December 2022.

1 November – Assistant Treasurer and Minister for Financial Services announced a six-month delay to the requirement to register financial advisers with ASIC.

1 November – APRA releases expectations on capital calls for banks and insurers.

2 November – APRA published a speech by APRA Deputy Chair Helen Rowell to the Insurance Council of Australia’s 2022 Annual Conference.

3 November – ATO published its corporate tax transparency report for the 2020–21 income year.

3 November – ASIC published the opening statement by ASIC Chair Joe Longo at the ASIC Annual Forum.

3 November – ASIC published its Enforcement Priorities for 2023 and introductory remarks by ASIC Deputy Chair Sarah Court at the ASIC Annual Forum.

3 November – FRAA released a consultation paper on the effectiveness and capability review of APRA, focusing on superannuation.

3 November – APRA published a media release about its imposition of additional licence conditions on Insignia Financial Ltd trustees.

3 November – ASIC published introductory remarks by ASIC Deputy Chair Sarah Court at the ASIC Annual Forum.

3 November – AUSTRAC released draft updated guidance for consultation on enhanced customer due diligence and employee due diligence and training. Submissions close on 15 December 2022.

7 November – The Government published a Consultation Paper, ‘Multinational tax integrity: Public Beneficial Ownership Register’

7 NovemberAPRA commenced consultation on amendments to reporting standards under the SDT.

7 November – ASIC published a media release after Federal Court found that NAB engaged in unconscionable conduct over account fees.

7 November – Council of Financial Regulators and ATO Report to Government: Leverage and Risk in the Superannuation System.

8 NovemberSpeech by Stephen Jones MP at AFR Wealth and Super Summit in Sydney.

9 NovemberASIC placed interim stop orders on share offers from Finnia Income Limited and Neldner Road Vintners Limited in response to deficiencies in their TMDs.

9 NovemberThe Privacy Legislation Amendment (Enforcement and Other Measures) Bill 2022 passed the House.

9 NovemberASIC appears before Senate Economics Legislation Committee (Senate Estimates).

9 NovemberAPRA appears before Senate Economics Legislation Committee (Senate Estimates).

9 NovemberCrimes Amendment (Penalty Unit) Bill 2022 introduced, increasing the value of the Commonwealth penalty unit from $222 to $275 from 1 January 2023.

9 November – The Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 received Royal Assent including the unfair contracts amendments to later commence.

9 November – NSW Supreme Court upholds client legal privilege in Komlotex Pty Ltd v AMP Ltd.

10 November – The ASIC (Supervisory Cost Recovery Levy–Annual Determination) Instrument 2022/890 and ASIC (Supervisory Cost Recovery Levy–Regulatory Costs) Instrument 2022/889 were registered.

10 NovemberConsultation commences on APRA’s discussion paper on superannuation transfer planning.

10 November – The Office of the Australian Information Commissioner published the Notifiable data breaches report January to June 2022.

10 November – NSW Supreme Court made a decision concerning change of trustee and the Crimes Act.

11 November – ACCC released its fifth interim report on its inquiry into digital platform services.

14 November – APRA consults on minimum capital requirements for purchased payment facilities providers.

14 November – APRA released a discussion paper on Financial resources for risk events in superannuation. Submissions due on 17 March 2023.

14 November – ASIC registered ASIC Corporations (Amendment) Instrument 2022/0940 extending various categories of relief for registered schemes to CCIVs.

15 November – The ASIC Market Integrity Rules (Securities Markets) NSXA and SSX Markets (Operators and Participants) Class Waiver 2022/881 was registered.

15 November– ATO consults on proposed DIN exemption for corporate directors and certain persons who ceased to be a director by 30 November 2023. Comments due by 9 December 2022.

17 November – RBA and ASIC issue a joint letter to ASX about clearing arrangement in light of delays to ASX updates.

17 November –APRA consults on a new draft Prudential Practice Guide SPG 530 Investment Governance (SPG 530).

17 November – Senate Economics Committee reports on Treasury Laws Amendment (2022 Measures No. 3) Bill 2022 with faith based performance test and covid amendments.

18 November – Treasurer announces appointment of Emma Herd to FRC.

21 November – ASIC publishes new APIs for breach reporting.

21 November – ASIC issues interim stop orders on MPG Funds Management Limited’s property trusts.

Upcoming

21-24 November – Parliamentary sitting for both Houses.

22 NovemberConsultations on Issues Paper: ‘Review of Australia’s Modern Slavery Act 2018’ close.

22 November – House of Representatives scheduled to debate penalty unit increase.

22 November – Senate scheduled to debate Treasury Laws Amendment (2022 Measures No. 3) Bill 2022 (with faith based performance test and Covid powers) and Treasury Laws Amendment (2022 Measures No. 2) Bill 2022 (with downsizer extension).

23 November – Senate scheduled to debate the Bills for FAR and CSLR.

28-30 November 1 December – Parliamentary sitting for both Houses.

30 NovemberDirector Identification Number Deadline for directors appointed by 31 October 2021 to apply but note proposed exemptions.

30 NovemberConsultation closes for APRA’s Information Paper – Modernising the prudential architecture.

30 November – Submissions for the Interim Report B of the ALRC on corporations law design are due.

30 NovemberSubmissions on the Parliamentary Joint Committee on Corporations and Financial Services’ review on Australia’s corporate insolvency laws are due.

2 DecemberConsultation close on APRA phase 1 reporting amendments.

6 DecemberConsultation close – Comments due on CPG 190 Financial Contingency Planning and CPG 900 Resolution Planning.

9 December – Responses to ASX’s second market resilience consultation paper due.

15 DecemberSubmissions close for APRA effectiveness and capability review conducted by FRAA.

15 December – Submissions close for AUSTRAC updated guidance for consultation on enhanced customer due diligence and employee due diligence and training.

16 December – Review of Quality of Financial Advice due date.

31 December – Board of Taxation review into taxation of digital assets and transactions in Australia due.

31 December – Expiry of ASIC Class Order [CO 11/1227] relief for providers of retirement estimates.

31 December – The Independent Review of ACCUs report and recommendations expected to be provided to government.

1 January – Scheduled commencement of revised SPS 530 Investment Governance.

1 January – New requirements apply to qualified tax relevant providers for financial years starting from this date.

1 January – Tax (Financial) Advice Service must only be provided by or on behalf of registered tax agents or qualified tax relevant providers.

1 January – ASIC’s relevant provider register must be updated with status for qualified tax (financial relevant) providers

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