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Tony Dhar is a funds and financial services law specialist. He has extensive experience acting for leading Australian and global fund managers, institutions and government bodies. Tony advises a broad range of industry participants including issuers and distributors of retail wealth management products, institutional and government funds, trustee companies, debt and notes issuers and listed investment companies. He also advises prudentially regulated businesses such as superannuation trustees, insurers and specialised financial institutions. 25 years in practice, his transactional expertise spans fund formation, investments and restructures, A-REIT listings, capital raisings, demutualisations and business sales and transfers. He provides strategic advice on product development, fund structuring and investments, regulatory and governance matters, responsible entity and trustee duties. He also regularly advises clients on disclosure, financial services licensing and exemptions, member approval processes, deed interpretation and amendment, anti-money laundering and statutory approvals under FIRB, Financial Sector Shareholding and Insurance Act requirements. His clients include such leading organisations as Australian United Investment Company, Capital International, Goldman Sachs & Partners Australia, Hertz, Interactive Data, Lazard, MyState Financial, Neuberger Berman, Southern Finance, and The Trust Company. Tony has worked as an international lawyer in Singapore, and is a regular speaker and author on Corporations Act and funds management topics.
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.
MinterEllison is acting as Australian counsel on the largest-ever industrial property deal in Australia
The rules have been released that govern the new Significant Investor Visa (SIV) regime and introduce the Premium Investor Visa (PIV) regime. The new rules came into effect on 1 July 2015.
MinterEllison has won an FT Innovative Lawyers Award for our technology-driven solutions to help clients manage their businesses.
Austrade and the Department of Immigration and Border Protection (DIBP) have announced the new framework for complying investments for significant investor visa (SIV) and premium investor visa (PIV) applications to take effect on 1 July 2015.
The ASX has amended its Operating Rules to enhance disclosure requirements and facilitate the expansion of non-conventional exchange traded funds (ETFs), such as synthetic products and foreign collective investments, on ASX AQUA. Current and prospective issuers of ETFs and Managed Funds on ASX AQUA need to understand the new requirements and ensure compliance with them.
Significant Investor Visa (Subclass 188) nominations (and invitations to lodge a formal application) will be temporarily suspended from 24 April 2015 until 30 June 2015, the Department of Immigration and Border Protection (DIBP) has announced.
Austrade and the Department of Immigration and Border Protection (DIBP) are developing a new framework for the Significant Investor Program (SIV) visa, including a new Premium Investor Visa (PIV) category).
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 has been "Highly Commended" for its innovation in corporate strategy by the Financial Times, which this week launched its inaugural FT Asia Pacific Innovative Lawyers Report.
The Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2014 (No.3) (Cth) came into force on 1 June 2014, requiring reporting entities to make changes to their AML/CTF programs and customer due diligence procedures. The new rules follow extensive consultation by the Australian Transaction Reports and Analysis Centre.
On 28 April 2014, Australia entered into an Intergovernmental Agreement with the United States of America to improve international tax compliance and implement the US Foreign Account Tax Compliance Act. Exposure draft legislation has also been released by the Australian Treasury which will give domestic effect to our obligations under the IGA.
The Tax Agent Services Act 2009 (TASA) has been amended, heralding significant changes to the way financial planners are regulated. Financial planners will need to understand the boundaries between providing purely financial product advice and a tax (financial) advice service, and to determine whether they need to register with the Tax Practitioners Board (TPB) as Registered (Tax) Financial Advisers from 1 July 2014.
The Corporations and Markets Advisory Committee (CAMAC) has released a broad discussion paper to review the establishment and management of schemes, which opens up all aspects of the legislative structure. This is a continuation of the review which produced the CAMAC July 2012 Report, and may provide a useful indication of the issues that the Financial System Inquiry will consider in relation to managed investment schemes.
ASIC issued Class Order [CO 13/1621] on 7 January 2014 to exempt responsible entities (REs) from the application form requirements of section 1016A.
Congratulations to b2cloud, the developer of Minter Ellison's innovative BoardTrac app, on being named in the top 20 in Deloitte's Fast 500 Asia-Pacific list of the fastest growing companies in 2013.
The Australian Transaction Reports and Analysis Centre and the Commonwealth Attorney-General's Department, has released an Issues Paper as part of the 'seven-year post-implementation review' of Australia's Anti-Money Laundering and Counter-Terrorism Financing legislative and regulatory regime. Stakeholders are invited to provide input into the overall operation of the AML/CTF Act and to identify areas of deficiency or possible enhancement.
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.
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.
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.
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.
The Australian Securities and Investments Commission (ASIC) has released class order relief for AQUA market exchange traded funds (ETFs) as proposed and described in its consultation paper (CP196) released in December 2012.
In a move that will be welcomed by the managed funds industry, the Australian Securities and Investments Commission (ASIC) has narrowed the definition of 'hedge fund' in Class Order 12/749 with effect from 3 October 2013. ASIC has also amended and re-issued Regulatory Guide 240 – Hedge Funds: Improving Disclosure (RG 240) to reflect the changed definition.
AUSTRAC, in association with the Commonwealth Attorney-General's Department, has released a discussion paper that sets out proposed amendments to the Anti-Money Laundering and Counter-Terrorism Financing customer due diligence regime. The proposed changes are a response to the revision of international AML/CTF CDD standards by the Financial Action Task Force, and consider whether the Australian AML/CTF regime could benefit from the adoption of the revised FATF standards.
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.
A number of FSA regulated investment managers and advisers who provide financial services to wholesale clients in Australia rely upon on the exemption from the requirement to hold an Australian financial services licence (AFSL) pursuant to Class Order 03/1099 (Class Order).
The Australian Securities and Investments Commission (ASIC) is proposing to amend the Class Order so that the change in the UK regulator from the Financial Services Authority (FSA) to the Financial Conduct Authority (FCA) will not of itself trigger any notification requirement to ASIC by these providers (having regard to the notification requirement contained in the Class Order).
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.
The Australian Securities & Investments Commission has released ASIC Consultation Paper 194 setting out proposed financial requirements for custodians, responsible entities holding scheme assets, IDPS providers and wholesale trustees.
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.
ASIC has revisited the long standing guidance contained in Regulatory Guide 134: Managed investments: Constitutions and released Consultation Paper 188: Managed investments: Constitutions – Updates to RG 134.
The Australian Securities and Investments Commission (ASIC) has released a report (298) on its review of the adequacy of risk management systems adopted by responsible entities (REs) of registered managed investment schemes.
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.
Following discussions and consultation with the industry, the Corporations and Markets Advisory Committee (CAMAC) has published its report on Managed Investment Schemes providing recommendations to the Government on various matters concerning the regulation of managed investment schemes under Chapter 5C of the Corporations Act.
This alert outlines some of the key proposals recommended by the CAMAC.
On Tuesday 31 July, ASIC released enhanced financial requirements for Australian financial service licensees who issue over-the-counter (OTC) derivatives to retail clients. ASIC had found that poorly resourced issuers of retail OTC derivatives are less likely to carry out adequate supervisory measures and therefore more likely to have compliance breaches. The enhanced requirements are in response to ASIC's May 2011 consultation paper and have been introduced to ensure that licensees have adequate financial resources to better manage their operational risk. The new requirements commence on 31 January 2013.
The Australian Securities and Investments Commission (ASIC) has announced the outcomes of its recent review of responsible entities which addresses registered managed investment schemes in the unlisted property sector.
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.
FMA and the Australian Securities & Investments Commission (ASIC) released yesterday mutual recognition arrangements for the financial adviser industry. These will come into effect on 6 July 2012. The regime will facilitate both Australian and New Zealand financial advisers to provide services in each other's countries based on the qualifications and experience they have gained in their home jurisdictions.
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 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.
The Australian Securities and Investments Commission (ASIC) has released Report 282 Regulation of exchange traded funds which explains its position on various regulatory aspects of exchange traded funds (ETFs) and outlines the key areas it will focus on as the rapidly growing ETF market continues to develop in Australia.
Australia's carbon pricing mechanism which was introduced by the Clean Energy Legislative Package, will commence on 1 July 2012. Emissions units recognised under the Clean Energy Legislative Package will be considered as financial products under the Corporations Act from that date.
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.
A second exposure draft of legislation to introduce an Investment Manager Regime (IMR) to Australia was released by the Minister for Financial Services and Superannuation, the Hon Bill Shorten MP on 7 March 2012. In this Australian Tax Brief we summarise the key objectives of the IMR and analyse some of the core requirements – including what is an IMR foreign fund and what IMR income is not subject to Australian tax.
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.
ASIC has issued revised financial requirements for responsible entities of managed investment schemes. The new provisions become operative on 1 November 2012 for both existing and new responsible entities.
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.
The Supreme Court has rejected the application of the Premium Income Fund case interpretation of section 601GC(1)(b) of the Corporations Act 2001 (Cth) (Corporations Act) and confirmed that the responsible entity had the power to make issue price amendments to scheme constitutions without unitholder approval. In doing so, the Court also provided some valuable guidance regarding a responsible entity's fiduciary duties to act in the best interests of members.
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.
Australian tax reforms for foreign funds
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.
ASIC is proposing to overhaul prospectus disclosure by requiring disclosure on specific topics and restricting the use of photographs in a prospectus. On 12 April 2011, ASIC issued 'Consultation Paper 155: Prospectus disclosure: Improving disclosure for retail investors' together with a draft regulatory guide (together, 'CP 155') for industry consultation.
AUSTRAC recently released its supervision, enforcement and intelligence strategies for 2011 and beyond, providing an indication to industry of its regulatory focus in the coming years.
Integrated AML is an essential aid for in-house legal teams, compliance officers and risk managers. It is designed to help organisations to understand and comply with their obligations under the Australian anti-money laundering regime. Integrated AML brings together the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and related rules, regulations, explanatory materials, guidance notes, policies and AUSTRAC material in a single easy-to-use package.