Super Alert – 22 December 2022: appeal re AFCA determination to proceed; Corporations Regulations amended; financial advisor registration requirement delayed


Posted By and on 22/12/22 at 2:23 PM

Welcome to the last issue of the KHQ Super Alert for 2022. Happily, it has been a quiet week in the lead up to the holiday break, with two instruments being registered on the Federal Register of Legislation and the Federal Court handing down its reasons for allowing an appeal of an AFCA determination to proceed.  We will take a break from the Super Alerts over January. Season’s greetings to all our clients and industry colleagues, and best wishes for the New Year!

Regulations – Corporations Regulations amended

On 19 December 2022, the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Regulations 2022 (Regulations) were registered on the Federal Register of Legislation. These Regulations make amendments to the Corporations Regulations 2001 ‘that are consequential to the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023’ (Treasury Laws Amendment Act) (which is currently a Bill sitting in the House of Representatives – see our Super Alert of 25 November 2022).

The Regulations:

  • implement ‘recommendations and other suggested improvements identified by the Australian Law Reform Commission (ALRC) in Interim Report A of its Review of the Legislative Framework for Corporations and Financial Services Regulation’; and
  • ‘clarify the meaning of several defined terms, remove redundant definitions, and make broad improvements in relation to the use of definitions’.

The Explanatory Statement explains that these Regulations have been made before the Treasury Laws Amendment Act is passed because the ‘Corporations Act [does] not specify any conditions that need to be met before the power to make the Regulations may be exercised’. These Regulations commence when the Treasury Laws Amendment Act commences; if that Act does not commence, then these Regulations do not commence.

Click here for details.

Federal Court – Determination in relation to competency of superannuation complaint appeal

On 19 December 2022, the Federal Court handed down its decision in Rauchle v Q-Super Board [2022] FCA 1537. The decision allows an appeal of an AFCA determination to proceed. In this case, the relevant trustee had determined that the member was permanently and partially disabled (PPD) but not totally and permanently disabled (TPD). AFCA had upheld the trustee’s decision. The member appealed to the Federal Court. The trustee objected to the appeal on the basis that the appeal was incompetent as it did not state any questions of law.

The Court determined that ‘the nature of the application currently before the Court…[was] not a final determination of a question of law’ and that ‘[n]o aspect of the consideration of this application involves consideration, or an assessment, of the likely outcome at a hearing’. The Court ultimately found that the ‘amended notice of appeal does state questions of law from the AFCA determination’ and allowed the appeal to proceed, determining that the ‘appeal will not be dismissed for want of competency’. It is worth noting that his Honour stated that ‘[c]ascading questions can be posed provided they reveal a question of law’ and that the questions may be questions ‘of mixed fact and law’.

Click here for details.

Regulations – Financial adviser registration requirement delayed

On 16 December 2022, the Corporations Amendment (Registration of Relevant Providers) Regulations 2022 (Regulations) were registered on the Federal Register of Legislation. As announced by the Assistant Treasurer and Minister for Financial Services, the Hon Stephen Jones MP, (see our Super Alert of 4 November 2022), these Regulations amend the Corporations Regulations 2001 to delay, for six months, the requirement for financial advisers to be registered on the Financial Advisers Register.

Click here for details.

This alert was written by Kiara Leslie (Lawyer), Sanela Osmanovic (Senior Associate), and Natalie Cambrell (Director).

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KHQ Lawyers - Sanela Osmanovic

Sanela Osmanovic Senior Associate

Sanela is a Senior Associate in our Superannuation & Financial Services team, and has a broad range of experience working with a range of superannuation fund trustees... Read More

KHQ Lawyers - Natalie Cambrell

Natalie Cambrell Director

Natalie leads our Superannuation & Financial Services team. With more than 25 years’ experience, she has an enviable reputation for her in-depth knowledge in these highly regulated and complex... Read More