Welcome to the latest issue of the KHQ Super Alert. This week APRA and ASIC both reiterated their policy, supervision and enforcement priorities for 2023, and a Bill was introduced to Parliament to make changes to the register of financial advisers.
Treasury – Further draft legislation released in relation to moving ASIC Instruments into Corporations Act
On 16 February 2023, Treasury released for consultation further draft legislation to move matters from certain ASIC Instruments into the Corporations Act 2001 (Cth). It follows Treasury’s consultation last year dealing with an initial tranche of ASIC Instruments being moved into the Corporations Act (see our Super Alert of 26 August 2022).
The following pieces of draft legislation were released this week:
- Treasury Laws Amendment (Measures for Consultation) Bill 2023: Rationalisation of Ending ASIC Instruments (Tranche 2); and
- Treasury Laws Amendment (Measures for Consultation) Regulations 2023: Rationalisation of ending ASIC instruments (Tranche 2).
The regulations do not propose any changes relevant to the superannuation industry, but the Bill proposes to move section 6 of the ASIC Corporations (Superannuation and Schemes; Underlying Investments) Instrument 2016/378 into the Corporations Act. This is the relief given to trustees from the requirement to provide an FSG where the trustee deals in a financial product in the ordinary course of the operation of the fund.
Consultation will end on 16 March 2023.
Click here for details.
Parliament – Bill introduced to amend financial adviser registration
On 16 February 2023, the Treasury Laws Amendment (2023 Measures No. 1) Bill 2023 was introduced into the House of Representatives. According to the Explanatory Memorandum, the Bill proposes to (amongst other things) make technical amendments to the Corporations Act 2001 (Cth) to allow:
- ‘ASIC to approve applications from multiple licensees to register on the Financial Advisers Register the same relevant provider’; and
- ‘assisted decision-making to be used for any purpose for which ASIC may make decisions in the performance or exercise of ASIC’s functions or powers to register a relevant provider’ (assisted decision-making allows ASIC to use various computer applications in the decision process).
If passed, these amendments will commence on the day after the Bill receives Royal Assent.
Click here for details.
ASIC – ASIC to target greenwashing, DDO and corporate governance this year
On 15 February 2023, ASIC issued a media release warning businesses that it is expanding its enforcement focus areas in the coming year, identifying greenwashing (amongst others) as being an area of continuing focus.
ASIC Deputy Chair Sarah Court also noted that ‘corporate governance and directors’ duties, product design and distribution, and misleading statements involving sustainable finance practices’ are continuing strategic and enforcement priorities for ASIC.
Click here for details.
APRA – Speech to Senate Economics Legislation Committee reiterating policy and supervision priorities for 2023
On 15 February 2023, APRA released a speech given by its Chair, John Lonsdale, reiterating APRA’s policy and supervision priorities for 2023, including ‘strengthening operational resilience’, ‘bolstering cyber security’, ‘modernising the prudential architecture’, and ‘improving data collection’. Specifically for superannuation, Mr Lonsdale noted that APRA intends to review SPS 515 Strategic Planning and Member Outcomes ‘with the view of strengthening business planning practices and ensuring rigorous expenditure management’. The speech also highlighted the increase in data being published due to the Superannuation Data Transformation project.
See our Super Alerts dated 25 February 2022 and 2 September 2022 for further information on the SDT project.
Click here for details.
ATO – Updated dates released for superannuation projects
On 13 February 2023, the ATO issued an update outlining when it expects to finish developing advice and guidance on several superannuation issues.
The updated timeframes are:
- for the addendum to Taxation Ruling TR 2013/5 (Income tax: when a superannuation income stream commences and ceases) – mid 2023;
- for Final Law Administration Practice Statement (Exercising the Commissioner’s discretion where superannuation benefits are received in breach of legislative requirements) – mid 2023; and
- for the review of three Superannuation Guarantee Rulings (SGR 2005/1, SGR 2005/2 and 2009/1), two Taxation Rulings (TR 2005/16 and 2013/1) and one ATO Interpretive Decision (ATO ID 2014/28) ‘to reflect the direction provided in the High Court decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1’– late 2023.
Click here for details.
Parliament – Social and affordable housing package progressed
On 9 February 2023, the Senate referred three Bills to the Senate Economics Legislation Committee for inquiry and report. The Housing Australia Future Fund Bill 2023, National Housing Supply and Affordability Council Bill 2023, and Treasury Laws Amendment (Housing Measures No. 1) Bill 2023 seek to implement the Government’s budget announcements about investing in social and affordable housing and include references to investment by institutional investors such as superannuation funds.
The report is due by 22 March 2023.
Click here for details.
This alert was written by Kiara Leslie (Lawyer), Sanela Osmanovic (Senior Associate), and Natalie Cambrell (Director).
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