Allens

Financial Services Regulation

We regularly publish articles on topical financial services (and related) matters. These publications contain commentary and analysis to help financial services providers and other industry professionals keep up-to-date with and have a better understanding of the complex and challenging issues in Australian financial services regulation.

The full list of our publications appears below. If you would like to be notified when we add new financial services publications to the site, please go to our subscription page to sign up for email alerts.

For more information, see also our Financial Services Regulation pages and, in particular, our Breaking News section which is updated regularly for current developments.

Financial Services Regulation Publications

  • Client Update: PPSA amendments for 'serial numbered goods'

    24 March 2014

    New legislation will amend the Personal Property Securities Act to remove the provision that deems leases of serial-numbered goods of more than 90 days to be a 'PPS lease'. These amendments will primarily benefit businesses in the leasing industry and will have a minimal, but positive, effect on financiers. Partner Andrew Boxall and Lawyer Daniel MacPherson report.

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  • Focus: CAMAC's 2014 discussion paper on managed investment schemes

    21 March 2014

    The Corporations and Markets Advisory Committee's discussion paper about the establishment and operation of managed investment schemes particularly examines governance, disclosure and regulatory issues. If the changes are implemented, it could profoundly affect these schemes. Partners Marc Kemp and Penny Nikoloudis and Lawyer Mark Boyagi outline the key changes suggested in the discussion paper.

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  • Client Update: FoFA Amendment Bill introduced into Parliament

    19 March 2014

    The Federal Government today introduced a Bill into Parliament to implement its proposed amendments to the Future of Financial Advice legislation. There are some significant differences between the Bill as introduced and the earlier exposure draft version released in January. The proposed reforms are intended to increase access to financial advice. There is a question as to whether the proposed reforms will achieve this and the effect they will have on the quality of advice. Senior Regulatory Counsel Michael Mathieson reports.

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  • Focus: Corporate responsibility and anti-corruption legislation in India

    10 February 2014

    In the past 12 months, the Indian Parliament has passed two important pieces of legislation relating to corporate social responsibility and the investigation of allegations of corruption made against public servants. Partner Rachel Nicolson, Senior Associate Dora Banyasz and Lawyer Harini Amarasinghe report.

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  • Focus: Anti-money laundering laws review announced

    8 January 2014

    A review of Australia's anti-money laundering and counter-terrorism financing laws will determine whether Australia can and should strengthen its response to money laundering and terrorism financing. Partner Rachel Nicolson and Lawyers Andrew Wilcock and Arlou Arteta report.

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  • Focus: ASIC releases long-awaited 'hedge fund' definition

    29 November 2013

    ASIC has now released its final policy on the new disclosure principles to apply to registered managed investment schemes classified as 'hedge funds'. ASIC's revised policy is intended to more appropriately refine the definition of 'hedge fund' to reduce the number of funds that might otherwise have triggered false positives. Partner Geoff Sanders and Senior Associate Janna Vynokur assess the impact of ASIC's final policy on the types of funds that will be captured by the 'hedge fund' definition.

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  • Audio: Cross-border cooperation among regulators

    25 October 2013

    Regulatory activity in Australia and globally is increasing, with a trend towards a new level of cooperation between overseas regulators. Partner Matthew McLennan, of Allens' Commercial Litigation & Dispute Resolution team, and Linklaters' Global Practice Head for Litigation Marc Harvey speak to BRR Media about the current situation and the trend towards companies commissioning their own internal investigations

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  • Focus: Threshold for successful prosecution of promoter penalty claims lowered

    11 September 2013

    In the first appeal court guidance on the proper construction of the promoter penalty provisions, the Full Federal Court has upheld an appeal by the Commissioner of Taxation regarding their application and, in doing so, lowered the threshold for a successful prosecution of a promoter penalty claim. Partner Tony Kuhn, Senior Associate Jonathan Joseph and Lawyer Sarah Gittus report.

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  • Audio: ASIC warns consumers on hybrids

    22 August 2013

    The Australian Securities & Investments Commission (ASIC) has released a report outlining a strengthening of rules relating to hybrids. Partners Robert Pick and Julian Donnan speak to BRR Media about ASIC's concerns regarding hybrids, and the implications for businesses.

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  • Linklaters Insights: UK Corporate Update

    5 July 2013

    In the latest UK Corporate Update, our Linklaters alliance partners look at: the European Council to examine proposals to widen non-financial disclosure requirements of large companies and groups to include country-by-country reporting; the EU Commission reaches agreement on Transparency Directive amendments; dematerialisation of shares; and an AGM mid-season review.

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  • Focus: FOFA Day One - Increased litigation risks for financial advisers?

    2 July 2013

    As of yesterday, compliance with the Future of Financial Advice reforms introduced in July 2012 became mandatory for financial advisers and associated Australian Financial Services licence holders. Partner Geoff Sanders, Senior Associates Jonathan Joseph and Andrew Murn and Legal Graduate Juliet Gunev consider some key litigation risks arising from the reforms.

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  • Client Update: National consumer credit reform - small business credit regulation deferred

    19 February 2013

    Proposals for regulation of small business credit have been deferred. Partner John Gallimore and Lawyer Andrew Shetliffe report on a recent Treasury announcement affecting the national consumer credit reform.

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  • Client Update: Regulations clear the way for litigation funding (again)

    6 February 2013

    In recent years, questions relating to the regulation of litigation funding have been the subject of a series of appeal court decisions. Are funding arrangements managed investment schemes? Do funders require an Australian Financial Services Licence? Are funders providers of credit? At various times, each of those questions has been answered in the affirmative. The Federal Government has, however, recently implemented new legislation that reverses that position. Partners Ross Drinnan and Jenny Campbell, and Senior Associate Georgia Steele comment on the latest development in the regulation of litigation funding.

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  • Client Update: National consumer credit reform - the latest instalment

    24 January 2013

    As part of its ongoing reform of consumer credit protection, the Federal Government has released for consultation draft amendments to national consumer credit legislation. Partner John Gallimore and Lawyer Andrew Shetliffe report on the changes that, if implemented, will have significant consequences for providers of credit to investors and small business as well as other participants in the credit industry.

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  • Linklaters Insights: US Treasury issues final determination respecting FX swaps

    28 November 2012

    On 16 November 2012, the US Treasury issued a final determination with respect to FX swaps and FX forwards under the Commodity Exchange Act, as amended by the Dodd-Frank Act. The Final Determination will become effective as soon as it is published in the Federal Register.

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  • Focus: Changes to merits review regime recommended

    18 October 2012

    The expert panel reviewing the merits review regime for electricity and gas regulatory decisions has recommended major changes that will, if implemented, have significant implications for regulated businesses. Partner Paul Kenny and Lawyer Ben Strate report.

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  • Audio: Appeal Court rejects unilateral amendments to MIS constitutions

    15 October 2012

    The Appeal Court of the Supreme Court of Victoria has handed down a decision with implications for the unilateral amendment of scheme constitutions by responsible entities. Partners Penny Nikoloudis and Marc Kemp of Allens' investment funds team spoke to BRR Media about the decision, as well as a recent ASIC consultation paper on the constitutions of managed investment schemes.

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  • Audio: ASIC electricity reforms off target

    26 July 2012

    ASIC has proposed changes to the financial requirements for companies trading in the electricity markets. Partner Grant Anderson spoke to BRR Media about the implications for companies if the changes were introduced

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  • Focus: The Future of Financial Advice reforms - what product issuers should know

    17 July 2012

    The Future of Financial Advice reforms are finally upon us and their impact beyond the personal advice sector may well be more significant than anticipated. Partner Marc Kemp and Senior Associates Frances Dunn, Larissa Macpherson and Simon Lewis discuss some aspects of the reform package that trustees of superannuation funds and responsible entities of retail managed investment schemes may need to consider.

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  • Client Update: Guidance for providers of financial services for carbon trading

    10 May 2012

    To help carbon market participants transition to the Australian financial services licensing regime, the Australian Securities and Investments Commission has established an early registration system, and has also released updated information on adviser training and financial requirements for those providing financial services in relation to carbon units and other kinds of regulated emissions units. Partner Grant Anderson and Senior Associate Justine Woodford report on these developments

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  • Focus: ASIC crackdown on use of the terms 'independent', 'impartial' and 'unbiased'

    7 May 2012

    The Australian Securities and Investments Commission has issued a warning to all financial services licensees, after a surveillance operation identified a number of insurance brokers and financial planners who were unlawfully using certain terms. Partner Dean Carrigan, Senior Associate Rhiannon Eagles and Lawyers Tanvir Ahmed and Stephen Lloyd report.

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  • Focus: Financial services licensing of carbon markets participants

    12 April 2012

    Recent amendments to the Corporations Regulations and guidance from the Australian Securities and Investments Commission establish the financial services licensing regime that will apply to carbon permits and derivatives over them from the commencement of the carbon pricing scheme. Partner Grant Anderson and Senior Associates Penelope Barclay and Simon Lewis report

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  • Focus: Further consultation on new disclosure rules for retail hedge funds

    16 March 2012

    As anticipated, the Australian Securities and Investments Commission has released a further consultation paper in response to submissions on the new disclosure rules for retail hedge funds and funds of hedge funds, and has released a draft regulatory guide. Partner Susan Burns, Senior Associate Marc Kemp and Lawyer Dora Chan look at the proposed benchmarks and disclosure requirements, and the difficulties that some of them may pose

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  • Focus: Impact of new US withholding and reporting requirements on Australian funds

    2 March 2012

    In an effort to combat tax evasion by United States taxpayers, new provisions have been incorporated into the US Internal Revenue Service Code that will require foreign financial institutions, and some non-financial foreign entities, to report information on their US investors or their substantial US owners to the US Internal Revenue Service, or face 30 per cent withholding tax on most US sourced income. Consultant Derek Heath and Senior Associate Amy Hoban report

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  • Focus: ASIC seeks better disclosure in remuneration reports

    2 March 2012

    The Australian Securities and Investments Commission has released the results of its review of remuneration reports for the last financial year. Partner Vijay Cugati and Senior Associate Kate Towey outline ASIC's views and discuss the key issues that companies that have received a first strike need to consider in anticipation of the 2012 annual general meeting

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  • Focus: ASIC issues guidance for the promotion and advertising of financial products and services

    27 February 2012

    ASIC has released guidance to assist promoters of financial products and services, as well as publishers of advertising for such promotions, in complying with their legal obligations to avoid making false or misleading statements or engaging in misleading or deceptive conduct. Partner Dean Carrigan, Senior Associate Simon Lewis and Lawyer Andrew Murn report

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  • Focus: Additional disclosure by infrastructure entities for retail investors

    2 February 2012

    In response to some highly publicised retail investor losses, the Australian Securities and Investments Commission has introduced new disclosure benchmarks and principles applying to listed and unlisted infrastructure entities. Partner Susan Burns and Senior Associate Marc Kemp examine the changes

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  • Focus: ASIC guidelines for advertising of financial products

    5 September 2011

    Promoters of financial products and services will be required to produce accurate and balanced advertisements for their products under new guidelines proposed by the Australian Securities and Investments Commission. Publishers will be required to refuse to run advertisements that do not meet these requirements. Partner Julian Donnan and Lawyer Mike Forster explain

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  • Focus: The Centro decision and the approval of financial statements

    29 June 2011

    This week's Federal Court decision in relation to ASIC's case against Centro's directors demonstrates how demanding a director's duties in approving financial statements are. In order to meet those demands, Boards may seek to change the ways in which financial information is presented to them and how they review it. Partners Matthew McLennan, John Morgan and Jeremy Low and Senior Associate Simon Lewis report

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  • Client Update: Chi-X granted new financial market operator licence

    6 May 2011

    The Australian Government has granted Chi-X Australia Pty Ltd a licence for the operation of a financial market for the trading of securities and certain financial products, in competition with the Australian Securities Exchange. Exchange market competition is aimed at promoting Australia as a financial services hub within the Asia region. Partner Robert Pick, Senior Associate Marc Kemp and Lawyer Scott Day discuss the introduction of Chi-X as an alternative market operator, the new Market Integrity Rules and the transition towards commencement of the Chi-X market

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  • Focus: Disclosure obligations of infrastructure entities to retail investors

    19 April 2011

    The Australian Securities and Investment Commission has released an additional consultation paper and a draft regulatory guide on disclosure obligations of infrastructure entities to retail investors, and is now seeking further submissions. Partners Andrew Mansour and Campbell Davidson and Lawyer Michael Tollman report

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  • Focus: New legislation will impact on covered bonds

    24 March 2011

    The Federal Government today released its exposure draft legislation relating to the issue by authorised deposit-taking institutions of covered bonds. Partners Matthew Allchurch and David Clifford outline the proposed legislative regime and comment on its implications

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  • Focus: New disclosure rules for retail hedge funds

    3 March 2011

    The Australian Securities and Investments Commission has released a consultation paper that outlines proposals to require detailed additional disclosures to be made by Australian retail hedge fund (and fund of hedge fund) product issuers. In this Focus, Partner Susan Burns and Senior Associates Marc Kemp and Geoff Sanders look at the scope of the proposals and the impact they may have on an industry already facing increased world-wide regulatory scrutiny in the wake of the global financial crisis

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  • Focus: The Australian Consumer Law: what you need to know now

    4 February 2011

    In 2010, there were a number of changes to the Trade Practices Act 1974 (Cth) as the Australian Consumer Law reforms were progressively implemented. With the final tranche coming into force on 1 January 2011, Partner Wendy Peter and Lawyer Rosannah Healy provide a summary of the key changes

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  • Client Update: ASIC update disclosure obligations

    22 September 2010

    Issuers and sellers of financial products should be aware of changes to the Australian Securities & Investments Commission's regulatory guide on product disclosure obligations. Partner Susan Burns and Senior Associates Marc Kemp and Janna Vynokur take a look at Regulatory Guide 168, which was revised following a review of a number of product disclosure statements

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  • Client Update: New ASX operating rules and re-branding

    3 September 2010

    The role of supervising financial markets has been transferred from ASX Limited to the Australian Securities and Investments Commission and, as a result, ASX Limited has undertaken a re-branding of the operating rules and various entities associated with it. Partner Warwick Painter, Lawyer Jonathan Lee and Law Graduate Rola Lin report

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  • Client Update: Octaviar in the High Court - The issues appear dead, buried and cremated

    1 September 2010

    This morning, the High Court unanimously rejected the appeal from the decision of the Queensland Court of Appeal and thus quashed the first instance decision in Octaviar which had thrown long-accepted practices into doubt. On a first reading, affected parties can now relax. Partners Diccon Loxton and Andrew Boxall and Lawyer Michael Wells report

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  • Client Update: Abridged PDS regime for some financial products

    31 August 2010

    The Australian Securities & Investments Commission hopes that excessive jargon and unnecessary information that hampers investors making informed investment decisions will be limited under new corporations regulations on certain product disclosure statements. Partner Anna Lenahan and Senior Associate Marc Kemp look at the changes that mean some superannuation products and margin loans, as well as interests in simple managed investment schemes, may only be issued under a product disclosure statement limited to a certain number of pages

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  • Focus: Personal property securities reforms and intellectual property

    30 August 2010

    The far-reaching personal property securities reform is due to come into force in May 2011 and companies with significant intellectual property assets will be affected by the sweeping changes the new legislation will bring to Australia's commercial law. Partners Diccon Loxton and Tim Golder, Special Counsel Rebecca Sadleir and Senior Associate Robyn Chatwood report on how the changes will affect IP owners

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  • Client Update: Developers and management rights schemes: meeting the AFS requirements

    21 July 2010

    Recently, Allens Arthur Robinson obtained for a client an ASIC exemption from the need to hold an Australian financial services licence for management rights schemes at an apartment complex. Partner Tony Davies and Senior Associate Bill Burton report on the exemption, which is thought to be the first of its kind

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  • Focus: APRA looks to update capital standards and group prudential supervision

    16 June 2010

    The Australian Prudential Regulation Authority recently released a discussion paper on updating capital standards for general insurers and life insurers. This followed another on proposals to extend the current prudential supervision framework to Level 3 conglomerate groups to protect individual entities from contagion risks associated with conglomerate group membership. These reflect two of the items on APRA's substantial policy agenda for the next few years. Partner Dean Carrigan, Senior Associate Claire Machin and Lawyer Andrew Lazzaro report

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  • Focus: Super fund trustee's denial of total and permanent invalidity claim upheld

    10 June 2010

    The Court of Appeal of Victoria has upheld a superannuation fund trustee's decision rejecting a member's claim for total and permanent invalidity benefit, and considered the principles the courts apply when reviewing a trustee's decision. Partner Michael Quinlan and Lawyer Catherine Zahra report.

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  • Focus: China adjusts foreign investment regime

    14 May 2010

    The State Council of the People's Republic of China has released Opinions on Further Improving the Utilization of Foreign Investment (No 9, 2010) which will have a significant impact on foreign investors. Partner Stuart Mengler and Senior Associate Frank Fan consider this release and its implications

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  • Focus: Retail corporate bonds: A resurrection?

    13 May 2010

    The Australian Securities and Investments Commission has announced a range of regulatory reforms designed to re-invigorate the retail corporate bond market in Australia and to increase the ease and efficiency with which ASX-listed issuers are able to issue corporate bonds to retail investors. Partners Robert Pick and Tom Story outline the changes and consider their likely impact

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  • Focus: Clarification of class action funding

    5 May 2010

    In response to a recent Federal Court decision that funded class actions were managed investment schemes as defined in the Corporations Act 2001, the Minister for Corporate Law, Chris Bowen MP, announced yesterday that the Federal Government is drafting regulations to clarify that funded class actions and similar arrangements are not managed investment schemes. Partner Alex Cuthbertson and Senior Associate Kylie Virtue report

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  • Focus: Federal Government's response to executive remuneration inquiry

    30 April 2010

    The Federal Government has released its response to the Productivity Commission's inquiry into executive remuneration in Australia. Partner Paul Quinn reports

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  • Focus: Trust law regime in Hong Kong - a time for change

    30 March 2010

    The Hong Kong Financial Services and Treasury Bureau last year launched a public consultation on the review of the Trustee Ordinance. Partner Matthew Barnard and Lawyer Angeline Wong examine the implications of the consultation's conclusions for the review's proposals, and report on the changes to be made to the Trustee Ordinance.

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  • Focus: Proposed EU directive affecting Australian and Asian fund managers

    25 March 2010

    Significant amendments to a proposed European Union Directive on Alternative Investment Fund Managers will have a major impact on Australian- and Asian-based funds and fund managers. Partner Robert Clarke, Senior Associate Marc Kemp and Lawyer Elizabeth Lee report

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  • Focus: Insurance Contracts Amendment Bill 2010

    23 March 2010

    On 18 March 2010 we reported that the Federal Government had introduced the Insurance Contracts Amendment Bill 2010 to Parliament. In addition to enhanced consumer protection, (which we discussed in our recent Client Update) the legislation sets out a number of significant changes to the Insurance Contracts Act 1984 (Cth) that are intended to correct perceived deficiencies and ambiguities in the Act. Partner Dean Carrigan, Senior Associate Abby Gill and Lawyer Jaime McKenzie report on the key reforms in the Bill

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  • Focus: Australian Consumer Law Bill passed by Parliament

    23 March 2010

    The Trade Practices Amendment (Australian Consumer Law) Bill 2009 was passed by both Houses of Parliament last week. The Bill, which is the first phase of the Australian Consumer Law, introduces an unfair contracts regime and additional enforcement remedies. The regime will commence on 1 July 2010 if it receives royal assent by that date; otherwise it will commence on a date to be fixed by proclamation or six months from royal assent. Partner Jacqueline Downes and Senior Associate Caterina Cavallaro report

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