Welcome to the latest issue of the KHQ Super Alert. ASIC registered a number of instruments in relation to the new design and distribution obligations and director identification number regimes. APRA has also updated its list of frequently asked questions regarding the 2021 MySuper Product Heatmap.
APRA – MySuper Product Heatmap FAQs updated
On 6 October 2021, APRA published a new set of frequently asked questions in relation to the 2021 version of the MySuper Product Heatmap. According to APRA, the MySuper Product Heatmap will now also ‘provide indicators of trends in a trustee’s operations relevant to the sustainable delivery of member outcomes’.
The 2021 MySuper Product Heatmap is scheduled to be released in December 2021.
Legislation – Instrument in relation to Director Identification Numbers registered
On 5 October 2021, the Corporations (Director Identification Numbers—Transitional Application Period) Instrument 2021 (Instrument) was registered on the Federal Register of Legislation. This follows the registration of the Corporations Director Identification Number Data Standard 2021 earlier this year, discussed in our Super Alert of 23 April 2021.
While eligible officers (which include directors of a body corporate) are now required to have a Director Identification Number (DIN), the Instrument provides that an eligible officer who does not have a DIN will not have contravened:
- the Corporations Act 2001 (Cth), if they apply for a DIN before 30 November 2022; or
- the Corporations (Aboriginal and Torres Strait Islander) Act 2006, if they apply for a DIN before 30 November 2023.
The commencement date of the Instrument is 6 October 2021.
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Legislation – Instruments relating to DDO registered
On 1 October 2021, the ASIC Corporations (Design and Distribution Obligations Interim Measures) Instrument 2021/784 and the ASIC Corporations (Amendment) Instrument 2021/785 (Instruments) were registered on the Federal Register of Legislation. These Instruments amend the Corporations Act 2001 (Cth) to (amongst other things):
- ‘remove the requirement for persons who engage in retail product distribution conduct (distributors) to report to persons who make TMDs for products (issuers)whether a complaint has been received, including where nil complaints are received. However there remains a requirement for distributors to report to issuers the number of complaints they receive, to the extent they receive any during the reporting period’;
- ‘remove the requirement for distributors to report that information specified by the issuer in its target market determination (TMD) has not been acquired during the reporting period (i.e. where nil information is acquired), while retaining a requirement to report such information where it is acquired by distributors during the reporting period’; and
- amend ‘the meaning of “excluded conduct” in subsection 994A(1) to clarify that it includes giving … a Product Disclosure Statement (PDS) under Part 7.9 of the Act in the course of providing personal advice about a financial product’.
The commencement date of both Instruments is 5 October 2021.
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ATO – Updated guidance in relation to release authorities
On 30 September 2021, the ATO published updated guidance in relation to release authorities, although it is not clear from the source material what the specific updates are. A release authority is a document given by the ATO ‘to a super fund to authorise release of a member’s superannuation’ and contains instructions to be followed by the fund to ensure that it has released the member’s money in accordance with the release authority. The ATO has advised that funds which do not meet the release authority obligations ‘may incur a non-compliance penalty up to a maximum of 20 penalty units’.
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Parliament – Advisory report released in relation to the Security Legislation Amendment (Critical Infrastructure) Bill 2020
On 29 September 2021, the Parliamentary Joint Committee on Intelligence and Security issued its ‘Advisory report on the Security Legislation Amendment (Critical Infrastructure) Bill 2020 and Statutory Review of the Security of Critical Infrastructure Act 2018’. The Security Legislation Amendment (Critical Infrastructure) Bill 2020 (Bill) proposes to amend the Security of Critical Infrastructure Act 2018 (Act), and was discussed in our Super Alert of 13 November 2020.
The Bill proposes to insert section 12J into the Act, which introduces the definition of critical superannuation asset, defined as an asset that is ‘owned or operated by a registrable superannuation entity that … is critical to the security and reliability of the financial services and markets sector’. The proposed new provision also provides that ‘rules may prescribe:
- specified registrable superannuation entities that are critical to the security and reliability of the financial services and markets sector; or
- requirements for a registrable superannuation entity to be critical to the security and reliability of the financial services and markets sector’.
The Committee recommended that the Bill be split in two and the first part (which includes the ‘expanded critical infrastructure sectors and assets’) be ‘legislated in the shortest time possible’. A total of 14 recommendations were given by the Committee in relation to other parts of the Bill which do not have a direct impact on the superannuation industry.
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