Allens

Banks & Financial Institutions

Our experienced Banking & Financial Services legal team regularly publishes articles and updates – the full list of publications appears below. These publications provide a snapshot of the latest legislation, court cases, policy changes and contentious issues. If you'd like to be notified when we add new publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

For publications in other legal areas see our recent publications page.

Banks & Financial Institutions Publications

  • Report: 2017 Private Equity mid-year briefing

    18 July 2017

    The first half of 2017 has been one of the most active buy out periods for private equity in Australia since the financial crisis. With fundraising conditions remaining positive, plenty of committed capital needing to be invested and the announcement of a number of large and high profile transactions involving financial sponsors, we believe that PE activity will remain robust for the remainder of the year.

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  • Client Update: Grizzly times ahead for banks

    14 July 2017

    A consultation paper on the BEAR has been released, confirming the Federal Government’s intention to impose an executive accountability regime on banks and their subsidiaries that follows important elements of current international accountability regimes. You have three weeks to provide your comments to the Government. Partner Michelle Levy, Senior Associate Sarah Burgemeister and Associate Katie Gardiner report.

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  • Client Update: Excessive payment surcharging reforms

    11 July 2017

    As of 1 September 2017, merchants will be prohibited from charging excessive payment surcharges for certain payment methods. Under the new rules, businesses can only pass on to customers what it costs them to process a payment. The Allens Competition team have put together a brief overview of the changes and what businesses should do to prepare for the new regime.

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  • Unravelled: UK's ASIC's report on member experience of superannuation - ASIC continues to set a high bar

    6 July 2017

    ASIC Report 529: Member experience of superannuation, released just a day before the Productivity Commission officially sets its sights on assessing the state of the superannuation system, serves as a timely reminder of the ever-increasing expectations of the conduct and disclosure practices of superannuation trustees.

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  • Unravelled: UK's Financial Conduct Authority report into asset management: guidance for future direction

    6 July 2017

    ASIC often looks to overseas regulators for inspiration. So when a particularly influential regulator publishes a comprehensive report about a large segment of its regulated population, including possible new areas for regulation, it can pay to take note because it may be a guide to the future direction of Australian regulation.

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  • Unravelled: Raising capital, raising standards: managing conflicts of interest in sell-side research and corporate advisory

    6 July 2017

    ASIC continues its mission to enhance the regulation of Australia's equity markets, with its recent publication of Consultation Paper 290 on managing conflicts of interest when dealing with sell-side research and corporate advisory. The proposed amendments will primarily target investment banks and corporate advisers in the IPO and capital raising process.

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  • Client Update: ASIC sell-side research consultation and proposed regulatory guidance

    4 July 2017

    ASIC's new regulatory guidance focuses on managing conflicts of interest and material, non-public information when providing sell-side research. As well as providing extensive guidance on managing conflicts of interest during the capital raising process, ASIC provides its views on payment of discretionary fees, and the funding and structure of the research arm of banks, as well as foreshadowing a further view on allocation policies. Partner Julian Donnan and Senior Associate Addison Ma report.

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  • Client Update: Australia's foreign investment regime - regulatory burden reduced

    3 July 2017

    Significant changes to Australia’s foreign investment regime came into effect on 1 July 2017, intended to address concerns regarding this regime raised since its introduction in December 2015. The amendments reduce the regulatory burden in a number of key ways and will impact a range of foreign investors in Australia. Partner Wendy Rae and Senior Associate Nick Kefalianos report on how these significant changes will affect you.

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  • Unravelled: 2017 Budget: increased scrutiny on competition in the financial system

    7 June 2017

    The financial services sector has been under scrutiny for some time with many different voices clamouring for further regulation or inquiries in a sector that is already highly regulated. The recent Federal Budget included a number of measures focused on the state of competition in the financial system, and provided a road map for a significant amount of activity over the next few years. Partner Carolyn Oddie reports.

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  • Unravelled: Can super really help housing affordability (and I have not asked should it)?

    7 June 2017

    The 2017 Budget included proposals intended to 'reduce pressure on housing affordability'. Two of them use the superannuation system to do so: the 'First Home Super Saver Scheme' and the 'Reducing Barriers to Downsizing' proposal. Partner Michelle Levy examines the schemes in more detail.

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  • Unravelled: Banks set to grin and BEAR new measures to improve individual accountability

    7 June 2017

    As part of its ongoing efforts to improve the domestic banking sector's accountability, the Federal Government recently announced a series of measures to join the ongoing global push seeking to improve measures for individual accountability for misconduct. The proposed Banking Executives Accountability Regime (BEAR) seeks to ensure that banks, and their senior management, are held accountable when they fail to meet expectations. Senior Associate Sarah Burgemeister reports.

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  • Focus: A class divide? The Boart Longyear creditors' scheme

    29 May 2017

    The NSW Court of Appeal has considered whether different groups of secured creditors should be placed into separate classes for the purposes of voting on a proposed creditors’ scheme of arrangement. Partners Christopher Prestwich and Tom Highnam report. 

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  • Client Update: Amendments to PPS lease law - what you need to know

    22 May 2017

    Legislation has come into force that will amend the Personal Property Securities regime. The amendments are designed to reduce the PPSA's impact on the equipment hiring industry. Previously hirers' equipment leases and bailment arrangements of an indefinite term, or short term leases of a year or more were deemed to be PPS leases, and security interests. If they were not perfected by registration, the owner of the equipment could lose priority, and could lose the equipment altogether if the lessee or bailee became insolvent. Many hirers were caught inadvertently. Now, those arrangements will only be caught if they are initially for two years or more, or the lessee or bailee ends up holding the equipment for two years or more. Partners Nicholas Creed and Ben Farnsworth explain.

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  • Focus: Anti-money laundering and counter-terrorism financing: Key questions for boards and executives in 2017

    16 May 2017

    Australian boards and senior executives are expected to maintain oversight of risk and compliance issues including bribery, sanctions, human rights and anti-money laundering. In-house counsel perform a central role in supporting this oversight and maintaining compliance. In the fourth of a five-part series, Partner Peter Haig and Associates Andrew Shetliffe and Glyn Ayres look at the key questions that Australian boards and senior executives should be asking about anti-money laundering and counter-terrorism financing in 2017.

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  • Client Update: Environmental bond and mine rehabilitation reform in Queensland

    15 May 2017

    Major reforms to environmental bonds and rehabilitation requirements are proposed in two discussion papers released by the Queensland Government. All mining sector operators should understand how the reforms will impact their current and proposed operations. Partner Bill McCredie and Senior Associate Gobind Kalsi report.

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  • Client Update: 2017 Budget: increased scrutiny on competition and accountability in the financial system

    10 May 2017

    Treasurer Scott Morrison this week announced that he has tasked the Productivity Commission to review the state of competition in Australia's financial system. The Budget has also included other measures focused on competition in the financial sector, including funding to establish a dedicated ACCC unit to undertake regular inquiries into specific financial system competition issues, an ACCC inquiry into residential mortgage pricing, and an open banking regime. The Government has also announced the introduction of a Banking Executive Accountability Regime. These measures follow a series of recent reviews and inquiries into the financial services industry. Partner Carolyn Oddie and Senior Associate Lisa Lucak report.

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  • Unravelled: CIPRs - some interesting findings

    5 May 2017

    We recently hosted some workshops in Sydney and Melbourne to discuss the proposed CIPR framework. The outcomes of those workshops were interesting - in some respects surprising - and this article provides a brief report.

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  • Unravelled: Recent decision on FoFA advice provisions - ASIC v NSG

    5 May 2017

    The recent case of ASIC v NSG Services Pty Ltd considers the FoFA best interests and appropriate advice provisions, as well as obligations of licensees. While the facts of the case provide an extreme example of how advisers and licensees can fail to comply with these duties, it also provides some useful judicial commentary on the provisions.

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  • Unravelled: Reporting significant breaches - or something that may (or may not) be a breach?

    5 May 2017

    The Taskforce established by Treasury to consider ASIC's enforcement powers released its first consultation paper a few weeks ago on breach reporting. We examine the most significant of the Taskforce's 12 'preliminary positions'.

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  • Focus: Anti-bribery laws and deferred prosecution agreements

    20 April 2017

    The Australian Government is, via two new consultations, proposing wide-ranging reforms to tackle the challenges that it faces in detecting, and prosecuting, serious corporate crime. Through proposed amendments to foreign bribery laws and the introduction of a Deferred Prosecution Agreement regime, the Federal Government is seeking to remove obstacles to prosecuting foreign bribery and increase the incentives for companies to self-report this and other misconduct. Partners Rachel Nicolson and Peter Haig, Senior Associates Christopher Kerrigan and James Campbell, and Lawyer Malak Johnson report.

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  • Client Update: Lessons from Singapore's new collective investment vehicle

    13 April 2017

    The Monetary Authority of Singapore recently sought public consultation on the features of its proposed new vehicle for collective investment, the Singapore Variable Capital Company. Partners Marc Kemp and Charles Armitage, and Senior Overseas Practitioner James Kanabar review the key elements of the new vehicle and consider the lessons which might be gleaned in relation to the introduction of a new Australian corporate vehicle for collective investment, announced by the Federal Government as part of the 2016-17 budget and scheduled (perhaps somewhat optimistically) to be introduced by 1 July.

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  • Client Update: Ipso facto clauses, safe harbour for directors - our comments on the draft exposure legislation

    10 April 2017

    The Federal Government has released draft exposure legislation designed to facilitate company reconstructions. Senior Finance Counsel Diccon Loxton, Senior Associate Alicia Salvo and Associate Frances Navarro-Towan discuss some of the implications and issues. 

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  • Allens insights: Not worth the paper they're not written on?

    8 April 2017

    There are significant commercial benefits in executing documents electronically, and Allens has adopted e-signature (using DocuSign) as a service to clients. Allens Senior Finance Counsel, Diccon Loxton, has written an article in two parts that examines the efficacy of e-signatures, and concludes that they are effective, including under s127 of the Corporations Act 2001 and (in various circumstances) deeds.

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  • Unravelled: ASIC's report on financial advice

    7 April 2017

    ASIC has recently released a report about its work with the big four banks and AMP on adviser misconduct. The report is essentially an update on the progress of ASIC's Wealth Management Project, and mostly contains information we already know. The most interesting part deals with the results of ASIC's review of adviser audit processes by the banks and AMP. They indicate that internal audits are not identifying compliance issues.

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  • Unravelled: A step closer to industry funding of ASIC

    7 April 2017

    Last week, the Federal Government moved another step closer to implementing an industry funding model for the recovery of ASIC's costs, by introducing the ASIC Supervisory Cost Recovery Levy Bill 2017 (as well as two related Bills) into Parliament. These Bills implement the recommendations of the Financial Services Inquiry and the Senate Economics Committee that ASIC be industry funded, and follows a number of rounds of industry consultation on exposure drafts and proposal papers.

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  • Focus: Parliament passes diverted profits tax legislation

    31 March 2017

    Legislation to implement a diverted profits tax has passed the Federal Parliament. From 1 July 2017, the tax may potentially apply to the diversion of profits offshore through arrangements between related parties. Targeted at large multinational groups, the diverted profits tax is a fusion of anti-avoidance and transfer pricing rules. Partner Toby Knight and Senior Associate Scott Lang discuss the final form of the legislation and the steps multinational groups should take to prepare for its implementation.

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  • Client Update: Productivity Commission's proposed alternate default models for superannuation

    30 March 2017

    In the latest (and undoubtedly most significant) of its reports into the design of default superannuation arrangements in Australia, the Productivity Commission yesterday released its Draft Report in relation to Superannuation: Alternative Default Models. Partner Geoff Sanders of the Allens Superannuation team reports on how the Draft Report moves the Commission's thinking forward in relation to how default contributions might be allocated to superannuation products in the years to come.

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  • Client Update: Treasury consultation paper flags changes to stapled structures

    28 March 2017

    Stapled structures have been used as an investment platform in the property and infrastructure sectors for decades, and more recently have been deployed into renewable energy, agriculture and other areas. Through the issue of its Taxpayer Alert on stapled structures on 31 January 2017, the ATO indicated that it had serious tax integrity concerns with the proliferation of stapled structures. The Commonwealth Treasury has now revealed that it has also been concerned at the increasing impact of stapled structures on the corporate tax base by releasing a Consultation Paper calling for submissions on potential policy options in relation to stapled structures, the taxation of real property investments and the recharacterisation of trading income. Partner Martin Fry and Senior Associate Igor Golshtein report.

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  • Paper: 25 years of class actions

    27 March 2017

    Class action risk is changing. A new wave of entrepreneurialism by plaintiff lawyers and litigation funders has substantially changed class action dynamics in recent times. The 25th anniversary of the class action regime is a good opportunity to reflect on whether, in the light of those and other developments, the regime is still serving its objectives.

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  • Focus: Crowd sourced equity funding to gain traction with new legislation

    23 March 2017

    After a difficult journey, both Houses have passed the Corporations Amendment (Crowd-sourced Funding) Bill 2016 - introducing a new funding avenue for Australian startups and an opportunity for retail investors to access equity in emerging companies. Managing Associate Valeska Bloch, Senior Associate Tom Griffin, Summer Clerk Katherine Tsatsaklas and Applied Legal Technology Head Paralegal Hope Williams report.

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  • Client Update: Innovative Superannuation Income Streams - at last

    21 March 2017

    Earlier today, Treasury released exposure draft regulations for 'Innovative Superannuation Income Streams'. They set out income stream standards that will be relevant for products such as deferred annuities and group self-annuitised products. The Allens Superannuation team reports.

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  • Focus: Sanctions: The 5 questions your board and executives should be asking in 2017

    16 March 2017

    Australian boards and senior executives are expected to maintain oversight of risk and compliance issues including bribery, sanctions, human rights and anti-money laundering. In-house counsel perform a central role in supporting this oversight and maintaining compliance. In the second of a five-part series, Partners Rachel Nicolson and Peter Haig, Senior Associate Christopher Holland and Lawyer Malak Johnson look at the key questions that Australian boards and senior executives should be asking themselves about sanctions in 2017.

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  • Contract Law Update 2016

    15 March 2017

    When is a person bound by their e-signature? When does a breach of contract constitute a repudiation of that contract? When does an exchange of correspondence give rise to a binding contract? What is the latest on penalties? These were some of the contract law issues considered by appellate courts during the past year. In this update, we review the most important contract law decisions by Australian appellate courts in the past 12 months and consider their significance for the development of Australian contract law.

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  • Unravelled: Clearing the way for social impact investing

    10 March 2017

    The Commonwealth Treasury is seeking feedback on how to kickstart social impact investment in Australia.

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  • Unravelled: Consumer protection in the banking, insurance and financial sector

    10 March 2017

    The Senate Economics References Committee is conducting an inquiry into the regulatory framework for the protection of consumers in the banking, insurance and financial services sector.

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  • Focus: Anti-bribery & corruption: Key questions for boards and executives

    6 March 2017

    Australian boards and senior executives are expected to maintain oversight of risk and compliance issues including bribery, sanctions, human rights and anti-money laundering. In-house counsel perform a central role in supporting this oversight and maintaining compliance. In the first of a five-part series, Partners Rachel Nicolson and Peter Haig, Senior Associate Tim Farhall and Lawyer Shamistha Selvaratnam look at the key questions that Australian boards and senior executives should be asking themselves about anti-bribery regulation and compliance practice in 2017.

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  • Allens insights: Australia - Fund Finance 2017, 1st Edition

    24 February 2017

    Fund financing facilities have continued to flourish in Australia, providing sponsors, general partners and trustees with additional funding flexibility and liquidity. Allens Partner Tom Highnam, Managing Associate Rita Pang, and Associate Victoria Johns provide an overview of the funds sector, current funding options and structuring, the prevalence of sovereign wealth funds and what new developments may be expected over the next twelve months.

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  • Focus: Forge-ing ahead - the treatment of fixtures under the PPSA

    21 February 2017

    The Court of Appeal has confirmed that under the Personal Property Securities Act 2009 (Cth) 'fixtures' are to be understood in the same way as at general law and the same common law test applies to determining whether goods affixed to land have become fixtures (ie part of the land). In unanimously upholding a 2016 decision of the Supreme Court of New South Wales, the appeal decision serves as yet another remainder of the importance of registering security interests on the Personal Property Securities Register, including those arising under equipment leases. Partner Kim Reid, Senior Associate Przemek Kucharski and Associate Jonathon New, who acted for the successful party in this matter, report.

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  • Client Update: Take care! Court confirms the devil in the details for PPSA registrations

    10 February 2017

    In a recent case a leasing company lost $23 million worth of leased equipment because it had registered the lease against the lessee company's ABN rather than its ACN – involving just two extra digits. The equipment vested in the lessee company when it went into voluntary administration. The court upheld the constitutional validity of the provision under which this occurred. Senior Finance Counsel Diccon Loxton and Partners Karla Fraser and Renee Boundy report on the case: Alleasing Pty Ltd v Onesteel Manufacturing Pty Ltd (Admins Apptd) [2017] NSW SC 21, a decision of the New South Wales Supreme Court.

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  • Allens insights: Trends over the past year in the Australian projects and infrastructure sectors

    8 February 2017

    A substantial pipeline of both private and public infrastructure projects has attracted a variety of local and offshore project finance providers wishing to gain exposure to returns from these attractive Australian investment opportunities. Allens Partners Nick Adkins, Scott McCoy and Rob Watt look at how this is unfolding, the increase in non-bank lenders competing for projects, the various funding models at play, and the opportunities available in the near future.

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  • Unravelled: English High Court provides important guidance on approach to LIBOR mis-selling claims

    7 February 2017

    The English High Court has handed down its judgment on the first major case following the global regulatory investigations into alleged LIBOR manipulation.

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  • Unravelled: Retail banking remuneration review

    7 February 2017

    The Australian Bankers' Association last year commissioned Stephen Sedgwick to undertake a review of remuneration in retail banking.

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  • Unravelled: Improving external dispute resolution schemes - rather odd recommendations

    7 February 2017

    It is difficult to describe the interim recommendations of the Expert Panel reviewing the 'financial system external dispute resolution and complaints framework' as anything other than odd.

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  • Unravelled: Mandatory margining

    7 February 2017

    Late last year, APRA released the implementation schedule for its long-awaited Prudential Standard CPS 226 Margining and risk mitigation for non-centrally cleared derivatives.

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  • Client Update: ASIC announces fintech licensing exemptions

    19 December 2016

    As part of its implementation of the 'regulatory sandbox' for fintech companies, ASIC is providing relief for certain fintech businesses from the obligation to hold an Australian financial services or Australian credit licence. Relief may be available for up to 12 months and may be useful to businesses in what ASIC refers to as the 'testing' stage of their development. ASIC has also made some changes to the responsible manager requirements for licensees, which may be particularly useful to 'robo advice' providers. Managing Associate Simun Soljo and Associate Jonathan Gardner report.

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  • Client Update: A framework for CIPRs or just more work for super trustees?

    16 December 2016

    Yesterday, Treasury released a paper seeking feedback on a framework for Comprehensive Income Products for Retirement (CIPRs). It will permit trustees to offer members on a 'soft default' basis 'mass-customised, composite retirement income products' and, to encourage trustees to do what some might think they can already do, trustees will have no liability to a member who sues them because the CIPR was not in the best interests of the member. It is all most surprising, and for trustees it is a whole new kettle of fish. CIPRs are meant to be available from 1 July 2018, but there is a long way between the cup and the sip as they say and we suspect much of it won't make it into law. The Allens superannuation team reports.

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  • Client Update: Product design and distribution rules

    13 December 2016

    On 13 December 2016, Treasury released a paper seeking feedback on the proposed financial product design and distribution obligations, and proposed product intervention powers for ASIC. The proposals are intended to 'create new accountability obligations' for product issuers and distributors. On one view, it is a brave new world, on another, it is just more of the same. Which it turns out to be, we think, will depend on what product issuers make of it and what ASIC does with it. Industry has until March 2017 to make submissions on the detail, it is unlikely that more substantial objections to the policies will be successful. The Financial Services Regulation team report.

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  • Unravelled: Budget superannuation changes passed

    9 December 2016

    The Government's main changes to superannuation have been passed by Parliament. We look at what this means for the superannuation industry (and for you).

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  • Unravelled: Seeking judicial advice on whether to seek judicial advice

    9 December 2016

    For more than 150 years trustees have been able to obtain advice from courts on matters affecting the management or administration of trust property and on matters respecting the interpretation of trust deeds. Trustees would usually only seek such advice, however, if they had doubts about a proposed course of action.

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  • Unravelled: Insourcing investment management in super - challenges and opportunities for in-house teams

    9 December 2016

    With the release of an ASFA Best Practice Paper on insourcing investment management, we look at some of the challenges and opportunities for in-house legal teams that come with the seemingly inexorable move in the superannuation industry towards insourcing investment management functions.

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