In the media
Former financial adviser and Royal Commission witness,
Sam Henderson charged with dishonesty and defective disclosure
offences
Following an ASIC investigation, former Sydney financial
adviser Sam Maxwell Henderson has been charged with three counts of
dishonest conduct and two counts of giving a disclosure document
knowing it to be defective. The charges relate to alleged false
representations made by Mr Henderson that he had a Master of
Commerce (10 June 2020).
More...
Super information on superannuation
Services Australia has launched a series of podcasts to
help explain what the pandemic may mean for the receivers of
Centrelink payments. The first episode in this special series
focuses on early release of superannuation for people who may be
under financial distress due to coronavirus ( 08 June 2020).
More...
Westpac blames breaches of AUSTRAC guidelines on
"poor individual judgments"
Big Four bank Westpac has released the results of its
investigation into AUSTRAC's allegations of money laundering
and enabling child exploitation, saying there was no evidence of
intentional wrongdoing (04 June 2020).
More...
Major overhaul of AFSL system required to reflect new
era of professionalism in financial planning
The Financial Planning Association of Australia
(FPA) launched its five-year policy platform by
recommending a professional registration for individual financial
planners replace the current system that requires an Australian
Financial Services License (AFSL) to provide
advice (03 June 2020).
More...
Flexible governance structure needed
A recent SCT determination has acted as a reminder to
superannuation funds of their obligation to fully pursue insurance
claims on behalf of members. In unprecedented times like the
COVID-19 pandemic a governance structure that is flexible will
allow superannuation funds to respond better, according to a panel
( Conference of Major Superannuation Funds
(CMSF)(02 June 2020).
More...
Who is morally responsible for compensating early
release fraud?
A new survey has confirmed continuing industry fund
antipathy towards self-managed superannuation funds but less
certainty about how they should be regulated. Reports indicate that
scammers have been using shortcomings in the Government's MyGov
regime and that the Australian Taxation Office
(ATO) has, in some instances, signed off on early
release with respect to fraudulent claims (02 June 2020).
More...
Thousands of dollars disappear overnight as scammers use
myGov to steal super
Scammers are taking advantage of the Government's
early release superannuation scheme to steal money from
Australians' nest eggs, and loopholes in myGov security could
have something to do with it (01 June 2020).
More...
In practice and courts
APRA FAQ: treatment of the Minimum Transfer Amount limit
where the base currency is foreign-denominated
The APRA has published a frequently asked question (FAQ)
providing guidance to all APRA-regulated entities in determining
their requirements under CPS 226: Margining and Risk Mitigation for
Non-centrally Cleared Derivatives. The FAQ is available on the APRA
website at:
Margining and risk mitigation for non-centrally cleared derivatives
- frequently asked questions (01 June 2020).
ASFA: Guidelines for debt agreement administrators
We have made important temporary updates to the certified
duties of debt agreement administrators, regarding proposals to
vary debt agreements. These changes are currently in affect for six
months (until 30 September 2020). For more information see
Practitioners: COVID-19 and changes to debt agreements. For
updated general guidelines for practitioners, see
Practitioners: COVID-19 and updated advice from the
Inspector-General.
Cases
Australian Securities and Investments Commission v
Commonwealth Bank of Australia [2020] FCA
790
CORPORATIONS – financial services – financial
products – assessment of pecuniary penalty –
declarations of contraventions – financial packages for rural
customers – misleading representations – incorrect
charging of fees and interest on loans – underpaying interest
on savings – misleading or deceptive conduct –
contraventions of ss 12DA(1), 12DB(1)(e) and (g) and 12DI(3) of the
Australian Securities and Investments Commission Act 2001 (Cth)
– breaches of general obligation to comply with financial
services laws – failure to ensure that financial services
covered by AFSL were provided efficiently, honestly and fairly
– contraventions of ss 912A(1)(a) and (c) of the Corporations
Act 2001 (Cth) – orders made
Ross v Paea trading as Bombora Cafe
[2020] FCA 766
INDUSTRIAL LAW – where Applicant employed as cook by
First Respondent – where Applicant claims unpaid wages,
annual leave, taxation and superannuation under Fair Work Act 2009
(Cth)('the Act') – whether the Restaurant Industry
Award 2010 applies to First Respondent – whether First
Respondent is employer under s 47 of the Act – whether First
Respondent contravened the Act
SUPERANNUATION – whether employee can sue employer where
employer fails to make superannuation contributions to complying
fund – nature of compulsory superannuation laws as tax in
constitutional sense
BANKRUPTCY – where First Respondent has filed for bankruptcy
prior to Court reserving judgment – whether leave granted to
Applicant to proceed under s 58(3)(b) of the Bankruptcy Act 1966
(Cth) – where Court has already heard evidence in the case
– where trustee of bankrupt estate neither agrees nor objects
to leave being granted
PRACTICE AND PROCEDURE – where Applicant assisted by
unadmitted acquaintance who appears to have been holding himself
out as lawyer – whether judgment reasons should be referred
to Law Society of New South Wales
Rushton v Commonwealth Superannuation
Corporation [2020] FCA
777
PRACTICE AND PROCEDURE – appeal from a decision of
the Australian Financial Complaints Authority in relation to the
applicant's eligibility for a spouse pension – objection
to competency by the first respondent – interlocutory
application by the first respondent seeking summary dismissal, a
permanent stay or strike out of the originating application –
notice of appeal struck out – applicant given an opportunity
to file an amended notice of appeal. Superannuation Amendment (PSS
Trust Deed) Instrument 2018; Federal Court Rules 2011 (Cth), rr
1.32, 16.21, 26.01, 33.12, 33.34
Rachael Goldberg v The Advice Spot t/a The Advice
Spot [2020] FWC
2671
Application for a remedy for alleged unfair dismissal
– termination of employment – part time bookkeeper in
small financial/accounting firm – jurisdictional objections
– whether employer complied with Small Business Fair
Dismissal Code – whether applicant's dismissal a case of
genuine redundancy – applicant claimed real reasons for
dismissal were her second pregnancy and moving a family loan out of
the business – dismissed by email while overseas –
toxic and unbearable work environment – no notice of
redundancy – no consideration of alternative options –
evidence of applicant preferred over that of respondent –
insufficient financial evidence – dismissal was not a case of
genuine redundancy – daily meetings not consultation about
redundancy – Code not complied with – dismissal harsh,
unjust and unreasonable – reinstatement inappropriate –
compensation to be ordered – consultation likely to be a
short period – Sprigg Formula does not produce a fair result
in all the circumstances – compensation order of ten
weeks' pay, plus superannuation – matter concluded.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
