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Maged Girgis is one of the country's most respected financial services lawyers with more than 19 years’ experience as a specialist superannuation funds advisor.
Mag advises the full spectrum of financial services industry participants across all legal, regulatory and taxation issues. He acts for corporate, industry, public offer and public sector superannuation funds as well as employers, administrators, trustee companies, life insurers and investment managers.
Some of Mag’s long-standing clients include Allianz, AMP, Asteron/Promina, BT, First State Super, Hannover Life Re, IBM, ING/Onepath, Media Super, Perpetual, and NSW State Super Scheme.
Mag also brings invaluable industry experience to his specialist practice. Prior to joining the firm, he spent time as an in-house counsel for a large superannuation and life insurance provider.
Mag is a regular presenter at leading industry conferences and a Fellow of the Association of Superannuation Funds of Australia. Mag is also a member of the Law Council of Australia Superannuation Committee.
In this Alert, Sarah Barker (Special Counsel) and Maged Girgis (Partner) discuss a number of notable regulatory investigations in Europe and the United States, and consider what they suggest for the direction of corporate regulation – and litigation – in Australia.
The trend towards divestment of stand-alone derivative portfolios, primarily as a result of increasing capital charges being required for some derivative positions, has opened up an opportunity for non-prudentially regulated entities – such as managed funds – to invest directly in this asset class.
There is momentum behind the recognition of financial risks and opportunities associated with climate change and environmental, social and governance (ESG) factors in over the horizon investment decisions. This is driven not only by ethical shareholder groups but increasingly on the international scene by leading institutions who are proactively engaging with the associated valuation, risk management and disclosure issues. These changes shape debate around the investment of client funds in Australia (where there is no member-direction) and could be the tipping point that mainstream trustees and portfolio managers would be ill-advised to ignore.
A recent case filing in the US illustrates the importance of fund trustees and their directors remaining informed, proactive and engaged on the issues that may materially impact on portfolio risk management and strategy.
Recent publicity surrounding the exclusion or divestiture of stocks in carbon-intensive industries shows that leading investors are reviewing the financial risks (and opportunities) associated with climate change. However, with debate on climate change often pitched around ideological poles, many superannuation fund trustees are struggling to translate these developments into prudent governance practice, consistent with their statutory and general law duties. This article looks beyond the political debate to consider what recent developments on climate change mean for the legal obligations of fund trustees, and the implications for boardroom practice. In doing so, they note that focus on the outcomes of investment (or divestment) decisions may have obscured the key legal issue – that of diligent process.
While many reforms recommended in the final report of the Financial Systems Inquiry can be implemented by Government, others require action by regulators or industry participants.
The Australian financial services industry is undergoing significant reform aimed at improving the trust and confidence of Australian retail investors in the financial planning sector. The reforms are the Australian Government's response to the Parliamentary Joint Committee on Corporations and Financial Services' Inquiry into financial products and services in Australia.
Minter Ellison supports regular reviews of Australia’s financial system. The Wallis inquiry, the Henry review, and the Johnson report each provided the context for discussion and constructive change aimed at reshaping the financial services sector for the benefit of Australians while factoring in the interests of the global investment community. We therefore welcome the Financial System Inquiry (FSI) and the opportunity to offer detailed insights and recommendations to the Inquiry via this written submission.
Partner Chris Brown told a roundtable on the Financial System Inquiry (FSI) that David Murray, who is undertaking the inquiry for the Federal Government, must consider the risk of a failure within the SMSF sector and what can be done to avoid it.
According to partner Maged Girgis, who heads our Superannuation practice, the shift of default superannuation funds into the MySuper regime will expose a number of systemic risks with only about 10 per cent of MySuper products likely to survive in the long term.
The federal government today released a discussion paper seeking feedback on measures to improve super fund governance, finish outstanding Stronger Super transparency measures and enhance competition in the default super market.
On 27 November 2013 ASIC released its updated Information Sheet 155: Complying with requirements for superannuation products and simple managed investment schemes (INFO 155) The updated INFO 155 follows an ASIC industry review of shorter PDSs issued since the commencement of the shorter PDS regime in June 2012 and provides some useful comments as to how ASIC interprets and intends to regulate some of the more technical requirements and lodgement protocols of this regime.
The government has released the draft Terms of Reference for the Financial System Inquiry and announced that it will be headed by David Murray, former CEO of the Commonwealth Bank. The Inquiry has one year to deal with a very large agenda covering all aspects of the Australian financial system.
While the majority of the Stronger Super reforms have now commenced, a number of changes are due to come into effect at the end of 2013. With this date now rapidly approaching, we wanted to provide you with the tools for a Stronger Super 'health check' to make ensure sure you are prepared to start the new year in strong form.
On 6 November 2013 the government announced its position on 92 previously announced but unlegislated tax and superannuation measures. The announcement provides a timetable and process to implement (or abandon) previously announced reforms and will provide greater certainty for the business sector on the fate of some important tax measures.
Minter Ellison is at the forefront of developments in the complex, dynamic and highly regulated financial services sector. Our financial services team members are active participants in key services industry associations, contributing to the policy debate and providing input on regulatory change. Here, some of our leading practitioners analyse and comment on the latest tranche of regulations, proposed reforms and reports that are laying the foundations for a stronger financial services sector in Australia.
The announcement of the Australian Federal Budget on 14 May 2013 by the Treasurer, Wayne Swan did not contain any new changes to the taxation of superannuation, but did confirm a number of changes announced before the Budget (and in last year's Budget), ending pre-Budget speculation. There have been many recent announcements and reforms in this area. A 'state of play' summary has been prepared to provide a snap-shot of the current rules for taxing superannuation contributions.
On 9 May 2013 the Australian Prudential Regulation Authority released draft Prudential Standard CPS 220 – Risk Management, draft updated Prudential Standard CPS 510 – Governance and accompanying Discussion Paper – Harmonising Cross-Industry Risk Management Requirements, for public consultation. The standards affect ADIs and life and general insurers. APRA has proposed the cross-industry standards as part of its broader harmonisation and consolidation process, which has already seen the implementation of harmonised prudential standards on outsourcing, business continuity management, governance and fitness and propriety. However, in addition to harmonisation, the standards also include significant new risk management governance requirements.
As part of the federal government's 'Stronger Super' package of reforms, new portfolio holdings disclosure obligations will be imposed on trustees of registrable superannuation entities (RSEs). The federal government has now released draft regulations which set out the manner in which portfolio holdings will need to be disclosed.
On 26 April 2013 Treasury released the Government response to the Parliamentary Joint Committee on Corporations and Financial Services report on the collapse of Trio Capital and to the Richard St. John report on Compensation arrangements for consumers of financial services. Although preliminary, the response gives a clear signal to industry regarding the shape of future developments in financial services regulation.
As part of the federal government's 'Stronger Super' package of reforms, from 1 July 2013 new portfolio holdings disclosure obligations will be imposed on trustees of registrable superannuation entities and other parties investing or holding superannuation monies.
On 15 February 2013 the New Zealand Financial Markets Authority (NZFMA) announced its review of the Financial Advisers (Australian Licensees) Exemption Notice 2011 (Exemption Notice), due to expire on 30 June 2013 (the Announcement).
The Government has registered the third tranche of the FOFA regulations, with some significant changes. For your information we have summarised the key changes. A copy of the regulations and the explanatory statement is attached.
ASIC has released a new consultation paper in relation to the Future of Financial Advice (FOFA) legislation. This paper focuses on approval of codes of conduct for the exemption to the opt-in requirement for ongoing fee arrangements. Consultation paper 191 (CP 191) invites public feedback with submissions due by 4 December 2012. At the same time, the Financial Planning Association (FPA) has released a consultation paper on changes to its code which in part seek to address the opt-in requirement.
In determining that a litigation funding agreement between International Litigation Partners Pte (ILP) and Chameleon Mining NL (receivers and managers appointed) (Chameleon) is a credit facility under Chapter 7 of the Corporations Act 2001 (Cth) (Corporations Act), the High Court has taken a very broad interpretation of 'credit facility', which could, in turn, bring the regulatory treatment of a number of financial instruments, including swaps and other derivatives, into doubt.
ASIC has released a consultation paper on the conflicted remuneration provisions under the Future of Financial Advice (FOFA) legislation. Consultation Paper 189 (CP 189) invites public feedback with submissions due by 9 November 2012.
The Government has also finally released grandfathering regulations for payments by platforms. It has also indicated that it will not be making the draft grandfathering regulation released in May 2012.
On 16 July 2009, the Australian and New Zealand Governments entered into the Trans-Tasman Retirement Savings Portability Arrangement (Arrangement).
The Arrangement was stated as having the intention of enhancing a seamless trans-Tasman labour market by providing the ability for retirement savings to be transferred between an Australian complying superannuation fund and a New Zealand KiwiSaver scheme, with minimal compliance and administration costs. The Arrangement is subject to a number of restrictions, as outlined in the Arrangement document.
On 27 August 2012, the Financial Services Council released its "Superannuation Governance Policy" (FSC Standard) which sets out proposed new binding requirements on FSC members that hold an RSE licence to operate public offer funds.
Recently, the Australian Securities and Investments Commission released Report 291: Custodial and Depository services in Australia, which sets out ASIC's views on 'good practice' for responsible entities, platform operators, brokers and custodians on a range of issues relevant to custody of assets. It also signals other matters that ASIC intends to consult on with a view to updating its current guidance. Shortly prior to the release of ASIC's Report, the European Commission released its proposal for amending Directive 2009/65/EC on the remuneration policies of management companies and depositary functions relevant to undertakings for collective investment in transferable securities We summarise the issues and proposals raised in ASIC's Report and the EC's proposal in this update.
The House of Representatives today passed the Government amendments relating to the commencement of the FOFA legislation, which defer the application of key provisions until 1 July 2013 unless a licensee or issuer notifies ASIC that they wish to comply earlier (Application Day). The Bills are now ready for Royal assent by the Governor-General to become law.
ASIC has issued guidance to assist issuers of superannuation products and simple managed investment schemes comply with the shorter product disclosure statement (PDS) regime. The shorter PDS regime commences fully on 22 June 2012 and is designed to make PDSs shorter and simpler, and help consumers compare financial products more easily. Issuers of new products have been required to comply with the regime since 22 June 2011 and other product issuers have been able to voluntarily opt-in.
The FOFA Bills have today passed the Senate with the Government's changes to delay commencement of the main provisions to 1 July 2013 unless the licensee or product issuer elects to comply early. These changes are in the same form as the Exposure Drafts released in April with technical amendments shown in the attached version of the amendments. The main change is to require ASIC to publish names of those electing to comply early on its website along with a statement that the FOFA obligations and prohibitions apply to them from the nominated date. The amended Bills will now need to be returned to the House of Representatives before they can become law to enable the House to agree to the amendments made in the Senate.
The Australian Government has released draft regulations under the yet-to-be-passed Future of Financial Advice (FOFA) legislation. The regulations have been released in two tranches, and cover:
The report by Mr Richard St John into compensation arrangements for consumers of financial services, released on 8 May 2012, has recommended the consideration of key reforms which could have a significant impact on the financial sector. We analyse the report and discuss its key recommendations and their implications for licensees, product issuers and consumers.
Minter Ellison's Anthony Oxley and Tony Dhar provide comment on ASIC's new regulatory guidance in relation to advertising financial products and advice services.
Partners Richard Batten, Maged Girgis, Mark Standen and Chris Brown briefed a financial services roundtable yesterday about the Federal Government's FOFA legislation.
Partner Richard Batten told Investor Daily that there would be no benefit from further delaying the introduction of the Federal Government's Future of Financial Advice (FOFA) legislation.
Following a review of the platforms sector conducted in 2011, the Australian Securities and Investments Commission (ASIC) has released a Consultation Paper proposing a number of changes to its investor directed portfolio service (IDPS) policy.
The Parliamentary Joint Committee on Corporations and Financial Services (PJC) released its report on the Future of Financial Advice (FOFA) on 29 February 2012 confirming that the 'vast majority' of FOFA provisions should commence on 1 July 2012. The PJC does, however, embrace ASIC's proposal to adopt a facilitative approach to enforcement during the first 12 months, but only where breaches are inadvertent and the result of systems issues. It also embraced the view that ASIC adopt a facilitative approach to enforcement during the first 12 months, demonstrating a measure of accommodation to industry participants where breaches are inadvertent and the result of systems issues. We discuss the key PJC recommendations and summarise the Coalition recommendations in this Alert.
On 13 October 2011, The Australian Government tabled part of the first tranche of the Future of Financial Advice (FOFA) legislation in the House of Representatives. A number of changes have been made to the Exposure Draft which was released on 29 August 2011, including the removal of the best interests duty provisions. A further draft of these provisions is expected to be released for public consultation in the near future.
On Wednesday 28 September, the federal government released the second tranche of draft legislation (including an Explanatory Memorandum) designed to give effect to its Future of Financial Advice (FOFA) reforms. The draft Bill addresses conflicted remuneration (including product commissions, volume payments and 'soft dollar' payments). Surprisingly, long-awaited provisions dealing with the 'grandfathering' of existing commission arrangements have been left out of the draft legislation. In this Alert, we will briefly consider the main provisions of the draft Bill, and what their impact is likely to be. The deadline for submissions to Treasury on the draft Bill is 19 October 2011.
Yesterday, the Australian Government released its Stronger Super Information Package. The Assistant Treasurer, The Hon Bill Shorten MP stated that he expects the Stronger Super legislation to be released in tranches over the next 9 months, with consultation to be undertaken on each tranche. The first tranche dealing with MySuper is expected to be released within a month.
The Australian Government has released for consultation the Exposure Draft of the first tranche of the long-awaited Future of Financial Advice legislation. It covers the best interests duty, a new client priority duty, the opt-in requirements and enhancements to ASIC powers. There are also a few surprises — including the replacement of section 945A 'know your client' with some very prescriptive requirements for complying with the best interests duty. Submissions are due on 16 September 2011.
On the first anniversary, almost to the day, of the release of the Future of Financial Advice reforms (FOFA), the Australian Government has announced the outcome of consultations on its proposals.
Specialist superannuation partner Maged Girgis said a case being heard by the High Court had the potential to undermine the Australian Government's entire retirement income policy of the past 19 years.
Both married couples and, in most Australian States and Territories, defacto couples (including same sex couples) who separate are able to divide superannuation entitlements as part of the overall property settlement. This regime has had significant impact on the Australian superannuation industry.
Australia's new 'Superannuation Safety' regime commenced on 1 July 2004, with a two-year transition for all existing trustees to apply for a new RSE licence and to register their funds. The new regime involves not only a new licensing requirement, but also standards for responsible officers and directors of trustees, adequate resources, outsourcing and risk management.