Read our CCIV Guide for the latest insights on the new regime

01.12.2021

Publication

Financial Services Thinking – Issue 19

Our final edition of Financial Services Thinking for the year highlights ASIC’s industry funding levies for 2020-21 and the recent Federal Court decision ordering La Trobe Financial to pay a $750,000 penalty for false and misleading marketing.

We also share a Hot Tip about preparing for the new CCIV regime.


Treasury

Director identification numbers

The ATO has released two draft legislative instruments in relation to the Director Identification Number (DIN) data standard and disclosure framework. The Director Identification Number Laws (Application) Data Standard outlines the information that may be requested, collected, and stored by the ATO, while the Director Identification Number Laws (Other Government Bodies) Disclosure Framework prescribes the ability for the ATO to disclose collected information to other government bodies.

The draft instruments are open for consultation until 8 December 2021.


ASIC

2020-21 industry funding levies finalised

ASIC has confirmed industry funding levies for 2020-21 with the release of its finalised Cost Recovery Implementation Statement (CRIS).

The finalised levy figures largely reflect those outlined in the draft CRIS issued in July 2021. The key difference relevant to our clients is the reduction to licensees who provide personal advice to retail clients on relevant financial products (ie financial products other than basic banking products, general insurance products, consumer credit insurance, or a combination of any of those products). Following stakeholder submissions, ASIC reduced the actual levy to nearly a third of the proposed variable adviser rate.  Partner Elliott Stumm explains the details here.

ASIC is expected to issue regulatory levy invoices in January 2022. Payment of levy invoices is due in March. We encourage you to contact us if you have any queries or concerns about your levy invoice.

Crackdown on fund marketing

The recent Federal Court decision in ASIC’s proceedings against La Trobe Financial has broad implications for advertising across the financial services industry, particularly the frequent use of disclaimers to convey finer product details or terms such as ‘stable’ to describe funds holding asset classes other than fixed interest investments and cash.  Litigation partner Selina Nutley explains the background and $750,000 penalty here.

We have followed this case closely given the ramifications for the industry.  Contact us for help understanding the impact of this decision on fund marketing.

Enforcement and court enforceable undertakings

ASIC has released Information Sheet 151 ASIC’s approach to enforcement (INFO 251) and RG 100 Court enforceable undertakings (RG 100) with updated guidance on its approach to accepting court enforceable undertakings, as well as its approach to enforcement and response to breaches.

Draft consultation for licensees

ASIC recently released a draft updated and expanded regulatory guide about consumer remediation for AFS licensees, Australian credit licensees, and retirement savings account providers.

The regulatory guide provides ASIC’s guidance on conducting remediations where consumers have suffered loss as a result of misconduct or other failures during the provision of financial services or credit activities.

Consultation closes 11 February 2022.

Consultation on Financial Planners and Advisers Code of Ethics 2019

FASEA recently announced it is considering amending the wording of standard 3 of the Financial Planners & Advisers Code of Ethics 2019, to better reflect the intent of the standard as explained in the Financial Planner and Advisers Code of Ethics 2019 Guide. The intent of standard 3 is that ‘advisers must not advise, refer or act in any other manner where they have a conflict of interest or duty that is contrary to the client’s best interests’. FASEA has sought consultation on the following options:

  • incorporating the intention as stated in the guide into the wording of the standard
  • adopting wording which is aligned with Commissioner Hayne’s findings following the Financial Services Royal Commission, or
  • retaining the existing wording.

Consultations close on 1 December 2021.

New guidance on crypto-assets

At last, ASIC has released information for product issuers and market operators about how they can meet their regulatory obligations in relation to crypto-assets. Partner Elliott Stumm recently outlined this new guidance provided by ASIC.

While the information released by ASIC provides some guidance to REs as to how they can meet their obligations in relation to crypto-assets, it is important REs are familiar with the nature of crypto-assets before they launch funds to enable their investor base to gain exposure to this increasingly visible asset class. It is also important REs ensure they have the processes, procedures, and infrastructure in place to ensure they meet their obligations before launching a fund.

We can help you understand the requirements and regulatory obligations in relation to crypto-assets in the funds management space. Contact our team for more information.


Hot Tip!

Are you up to date with CCIV?

With the Corporate Collective Investment Vehicle (CCIV) Bill now introduced into Commonwealth Parliament fund managers need to understand how CCIVs will be used plus the regulatory and policy requirements of the new framework. Our latest article by partner Langton Clarke explains the features of the CCIV regime and some of its benefits and drawbacks.

Reach out to our lawyers who can answer your questions about the CCIV regime and help you commence planning. Please contact us if you need assistance with preparing a CCIV product.


Authors

Emma Donaghue

Emma Donaghue

Partner

Elliott Stumm

Elliott Stumm

Partner

Contact McMahon Clarke

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