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

  • Unravelled: DDO and PYS - two cases of madness

    21 June 2019

    On 8 May, APRA released its answers to some 'frequently asked questions' about the Protecting Your Super changes. I would politely suggest that the questions asked and answered by APRA make up a fairly small subset of the questions that are, in fact, being asked (in some cases very frequently) about the PYS changes. Even so, I would like to say something about some of APRA's answers.

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  • Client Update: What's next for impact investing in Australia?

    11 June 2019

    The Australian impact investing market has grown considerably in recent years. This growth has largely been attributed to a surge of impact investments that focus on environmental, rather than social, outcomes, which is in contrast to global investor sentiment.

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  • Unravelled: APRA's guidance on the Protecting Your Super changes

    16 May 2019

    On 8 May, APRA released its answers to some 'frequently asked questions' about the Protecting Your Super changes. I would politely suggest that the questions asked and answered by APRA make up a fairly small subset of the questions that are, in fact, being asked (in some cases very frequently) about the PYS changes. Even so, I would like to say something about some of APRA's answers.

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  • Unravelled: Compensating superannuation members for 'fees for no advice'

    16 May 2019

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  • Client Update: APRA releases 'constructively tough' Enforcement Approach

    18 April 2019

    In the wake of the Financial Services Royal Commission (Royal Commission) and the introduction of the Banking Executive Accountability Regime (BEAR), APRA has undertaken a review of its enforcement strategy. The Enforcement Review Final Report (APRA Final Report) and an updated Enforcement Approach have now been released. While the new Enforcement Approach falls short of ASIC's 'why not litigate' approach, it suggests APRA will take a more active and 'constructively tough' approach to enforcement, supported by a new enforcement team.

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  • Unravelled: Trustees, start your reviewing! Super funds and the 'Member Outcomes Act': what needs doing, and when

    17 April 2019

    The Treasury Laws Amendment (Improving Accountability and Member Outcomes in Superannuation Measures No. 1) Bill 2019 was first introduced in the Senate in September 2017. One and a half years later, and with significant amendments, the Bill is now an Act, having passed both houses of Parliament and receiving Royal Assent on the same day, 5 April 2019.

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  • Unravelled: Design and distribution obligations - products caught (or excluded)

    17 April 2019

    Four and a half years after the FSI recommended a 'targeted and principles-based design and distribution obligation', the Design and Distribution Obligations and Product Intervention Powers Act 2019 (the Act) has recently received the Royal Asset. Although the design and distribution obligations will not commence for another two years, it is worth examining some of the financial products that will be caught (or excluded).

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  • Unravelled: AFCA: The first six months - and the year ahead

    17 April 2019

    The Australian Financial Complaints Authority (AFCA), the new 'one-stop-shop' for resolving financial complaints, has had a very busy first six months of operation.

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  • Unravelled: Considering Robo-advice

    17 April 2019

    The Australian Financial Complaints Authority (AFCA), the new 'one-stop-shop' for resolving financial complaints, has had a very busy first six months of operation.

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  • Client Update: ACCC releases draft Consumer Data Right Rules for consultation

    15 April 2019

    In preparation for the implementation of the first phase of the Consumer Data Right on 1 July 2019, the ACCC has released draft CDR Rules for consultation. The draft rules detail how the CDR will function across all designated sectors in practice, including how data is to be shared, the criteria for accreditation, dispute resolution requirements and privacy safeguards. They also contain rules that are specific to the banking sector. This article provides an overview of the draft rules, the key changes made since the release of the Rules Framework in October 2018 and the Rules Outline in December 2018 and the key issues left open for further consideration.

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  • Allens insights: Australia - Fund Finance 2019, 3rd Edition

    27 March 2019

    Fund financing activities in Australia remained strong in 2017, with particular focus on infrastructure, private equity funds and private debt funds, all of which took advantage of the additional liquidity and funding flexibility in this market.

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  • Contract Law Update 2018

    26 March 2019

    Our Contract Law Update has been summarising appellate contract law decisions since 2012. We are breaking with tradition this year and, for the first time, including a foreign judgment in this Update, which will tell you whether, according to the UK Supreme Court, it is possible for parties to prevent their written contracts being amended orally (and whether Australian courts agree). We also consider the doctrines of abandonment and frustration; explain the differences between novation and nomination, and between inferring and implying terms; and examine the latest judicial consideration on when loss of opportunity damages might be available.

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  • Unravelled: Superannuation - 'not a product to be sold'?

    18 March 2019

    In his typically blunt way, Commissioner Hayne declared: 'Superannuation is not a product to be sold'. As Mr Hodge QC was fond of saying, I would like to 'tease that out' a little.

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  • Unravelled: ASIC consultation on fees and costs disclosure reform following expert review

    18 March 2019

    It's been a long five years or so of amendments to, and consultation on, the fees and costs disclosure regime for superannuation and managed investments products. And industry might be forgiven for feeling a sense of déjà vu, with the release earlier this year of ASIC's consultation paper on the regime.

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  • Focus: ASIC's change of tone in action

    15 March 2019

    ASIC's 'why not litigate?' approach to enforcement activities and its change in tone confirm the new era of regulatory engagement has arrived. Partner Kim Reid, Senior Associate Natalie Oliver and Lawyer Micaela Bassford report

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  • Client Update: Protecting Your Superannuation Package - what you need to do, and when

    7 March 2019

    Recently passed legislation, part of a package of reforms designed to 'protect Australians' superannuation savings from undue erosion by fees and insurance premiums', introduces a series of important changes that will create challenging implementation timeframes for funds and administrators in the coming months. Partner Geoff Sanders and Lawyer Zoe Chapman report on the effects of the amendments, and what they mean for trustees of superannuation funds.

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  • Client Update: Amendments to include insurance claims handling in the definition of 'financial services'

    5 March 2019

    The Federal Government has released a consultation paper which takes action on Recommendation 4.8 of the Banking Royal Commission's Final Report. If implemented, the handling and settlement of insurance claims will become a 'financial service' under the Corporations Act 2001 (Cth) and will be subject to oversight by the Australian Securities and Investments Commission (ASIC). Even with careful and staged implementation, such a change would likely cause disruption, and require insurers and service providers to review their services and compliance with the newly imposed obligations. Partner Simun Soljo and Lawyer Virginia Wang report.

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  • Client Update: ASX Corporate Governance Principles and Recommendations: 4th edition - what do they mean for you?

    1 March 2019

    The 4th edition of the ASX Corporate Governance Principles and Recommendations focuses strongly on the link between culture, values and community expectations, consistent with the themes that emerged from the Royal Commission. Entities should start to take steps now to address the new and revised principles and recommendations. Partners Kate Towey, Robert Pick and Associate Isaac Wall report.

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  • Client Update: ACCC 2019 Enforcement Priorities

    28 February 2019

    A number of industries and issues are in the spotlight following release of the ACCC's 2019 Enforcement and Compliance Priorities by Chairman Rod Sims on 26 February.

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  • Client Update: Expanded ban on employer incentives for super - amendment passed in the Senate

    15 February 2019

    The Senate has passed amendments that will greatly expand the scope of the prohibition on trustees and their associates providing incentives to employers in section 68A of the Superannuation Industry (Supervision) Act 1993 (Cth). It will also make the section a civil penalty provision. The amendments will need to be passed by the House of Representatives to become law, but this appears to be imminent, and the expanded prohibition will apply from the day after the Royal Assent - meaning it could begin to apply as early as sometime next week. Trustees and their associates should urgently review how they currently interact with employer-sponsors and prospective employer-sponsors.

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  • Client Update: Hayne report - first impressions

    5 February 2019

    Commissioner Hayne's recommendations may initially seem somewhat modest - they do not undo vertical integration, impose limits on executive remuneration or ban bonuses and they do not recommend that directors prefer the interests of their customers. But, while it is true that the recommendations are not radical, there is much in the report that will mean some real changes for financial services companies, their Boards and their executives, as well as for their regulators and advisers. The Federal Government has said that it agrees with (or supports) all of the recommendations.

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  • Unravelled: Productivity Commission's report on superannuation - an odd mix of recommendations

    1 February 2019

    Before we are crushed by a heavy tome on Monday afternoon, I would like to say something about the recommendations in another heavy tome - the Productivity Commission's report on superannuation. The recommendations are an odd mix.

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  • Unravelled: The future age of AI

    1 February 2019

    We will be able to cease speculation on what is in or not in the Final Report of the Financial Services Royal Commission on Monday evening (or after whatever time it takes to read and digest!).

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  • Allens insights: The Kwinana Waste to Energy project and the waste-to-energy landscape in Australia

    8 January 2019

    After four years in the making, the first commercial waste-to-energy project in Australia has achieved financial close, but what opportunities and challenges lie in store for waste-to-energy in Australia?

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  • Unravelled: Comments invited on proposed retirement income product disclosure

    20 December 2018

    Treasury has released a consultation paper on a new proposed simple, standardised product disclosure document, as part of the Federal Government's framework for Comprehensive Income Products for Retirement. The proposed new disclosure document will sit alongside existing PDS requirements.

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  • Unravelled: What's ahead for home loans in 2019

    20 December 2018

    As we, and many others, have written over the course of this year, the Royal Commission will bring (and, in fact, already has brought) monumental changes both in how banks are regulated and to the actual laws that apply to them.

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  • Unravelled: Changes to the FSC Life Insurance Code of Practice

    20 December 2018

    Proposed changes to the FSC Life Insurance Code are afoot and the deadline for comments is fast approaching. The present review of the Code is designed to improve standards in product design, sales, underwriting, customer service, complaints and claim handling

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  • Client Update: Private equity under the spotlight - ASIC cracks down on offers of stub-equity in proprietary companies

    20 December 2018

    ASIC is clamping down on the use of an offer of stub-equity in a proprietary company as an alternative form of consideration in public control transactions. This, and recent developments in the Capilano scheme, shows that ASIC is now looking at stub-equity consideration structures more closely and, in certain circumstances, will be prepared to challenge transactions. Partners Guy Alexander and Tom Story and Managing Associate Noah Obradovic report on the implications.

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  • Client Update: ASIC extends transition period for fees and costs disclosures, and delays consultation paper to January 2019

    14 December 2018

    ASIC has extended the transition periods for certain fees and costs disclosure obligations applicable to superannuation funds and managed investment schemes by a further year, pending the release of its consultation paper on the regime. It has also delayed the expected release date for the consultation paper until January 2019. Senior Associate Stephanie Malon and Lawyer Katerina Dandanis report.

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  • Focus: A new enforcement landscape for Australian corporations in 2019 and beyond

    10 December 2018

    The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry Interim Report, and a raft of announcements at the federal level over the past 12 months, point clearly to a more robust enforcement environment for corporate Australia in 2019 and beyond. Partner Paul Nicols, Senior Overseas Practitioner Chris Kerrigan and Associate Samantha Naylor Brown report.

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  • Focus: Class action amounts to multiple claims under insurance policy

    3 December 2018

    The decision in a recent Supreme Court of New South Wales case, where indemnity was sought for costs incurred defending and settling a class action, highlights a potential gap in coverage under civil liability insurance policies. Partner Louise Jenkins, Senior Associate Julia Clemente and Lawyer Calypso Strauss report.

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  • Report: Class Action Risk 2018

    26 November 2018

    Class action risk continues to increase and is becoming more complex than ever before. Assessing this risk for your organisation is extraordinarily challenging and requires a broad-based perspective of the broader class actions landscape. To give that broader context, as well as practical guidance, our Class Actions team has prepared this guide to class action risk at the end of 2018.

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  • Focus: New APRA prudential standard raises bar for information security obligations and incident notification requirements

    15 November 2018

    As companies and regulators across the world grapple with ever-increasing cyber security threats, Australia's financial services regulator, APRA, has released the final form of a new prudential standard. It will require APRA-regulated entities to establish and maintain information security controls to protect customer data, and to notify APRA of information security incidents that have, or may have, a material effect on customers' interests. This will have significant implications both for regulated entities and for their boards of directors. Partners Gavin Smith and Simun Soljo and Lawyer James Higgins report.

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  • Unravelled: AFCA's powers and obligations - 'systemic issues'

    13 November 2018

    In his Interim Report, Commissioner Hayne rejected claims that misconduct in the financial services sector was the fault of 'a few bad apples' and did not raise 'broader or systemic concerns'. Commissioner Hayne's comments made me think about AFCA and what it can do (and must do) about 'systemic issues' identified in the course of handling complaints.

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  • Unravelled: The ins and out (goings) of responsible lending

    13 November 2018

    Very broadly speaking, current legislation relating to responsible lending says that a person must not recommend or make an 'unsuitable' loan to a consumer - an unsuitable loan being one that either does not meet the consumer's requirements and objectives, or imposes repayment obligations that they are unable to meet without substantial hardship.

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  • Client Update: Third tranche of draft CCIV legislation released

    18 October 2018

    Draft legislation intended to address some of the continuing gaps in the proposed corporate collective investment vehicle framework has been released, with submissions on it closing soon. Partner Marc Kemp and Associate Mai Go report.

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  • Pulse: Cyber security

    17 October 2018

    In this bulletin, we offer a practical guide for navigating cyber security risks in M&A transactions; examine the obstacles that data breach class actions face in Australia and lessons learned from high profile class actions overseas; explore the prevalence of data breaches in the healthcare sector; track the ongoing effects of Yahoo's 2014 data breach; and consider the debate at home and abroad about whether 'hacking back' against cyber criminals is a viable (and legal) option.

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  • Unravelled: Slater & Gordon begins its superannuation class actions

    11 October 2018

    In our article on competing class actions dated 20 August 2018, we made the fairly obvious observation that the Royal Commission would inevitably prove to be a hot bed for class actions. And in years to come, we will undoubtedly look back on the Royal Commission as a watershed moment in class action history, which, just like the GFC, spawned multiple large and long-running class actions.

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  • Unravelled: Efficiently, honestly and fairly - overarching and fundamental obligations?

    11 October 2018

    In his recent Interim Report into Misconduct in the Banking, Superannuation and Financial Services Industry, Commissioner Hayne makes a lot of the duties of an Australian financial services licensee and an Australian credit licensee to provide financial services or credit activities, as the case may be, efficiently, honestly and fairly.

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  • Linklaters Insights: China releases highly anticipated provisional Panda bond guidelines

    5 October 2018

    The People's Bank of China and the Ministry of Finance have recently released the highly anticipated preliminary Panda bond guidelines, which took effect immediately. According to the PBOC, the aggregate value of Panda bonds issued in China's Interbank Bond Market from 2005 to August 2018 is RMB178.16 billion (approximately US$25.94 billion). The Guidelines have been released in a move to encourage more foreign issuers (i.e. sovereigns, international development institutions, financial institutions and non-financial enterprises established outside China) to participate in CIBM.

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  • Client Update: ASIC extends by a further year licensing relief for foreign financial service providers

    3 October 2018

    The recent ASIC Corporations (Amendment) Instrument 2018/807 extends by a further year licensing relief for foreign financial service providers who carry on a financial services business in Australia without an Australian financial services licence. While it's another welcome licensing reprieve for such providers, it is likely to be short lived, as ASIC continues to consult on its proposals in Consultation Paper 301. Partner Penny Nikoloudis, Financial Services Counsel Jo Ottaway and Lawyer Tom Lawson report.

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  • Unravelled: Royal Commission: Round 1 - experiences with consumer lending practices

    2 October 2018

    In examining the topic of consumer lending, the Commission considered issues arising from the sale of credit products – including residential mortgages, car finance and credit cards - by reference to case studies involving the four major banks as well as Aussie Home Loans and Citi.

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  • Unravelled: Royal Commission: Round 2 - experiences with financial advice

    2 October 2018

    Although the Commissioner says that the Royal Commission is part of the executive and not the judiciary and that he is therefore not able to make any findings of law, he comes pretty close in his views in response to Round 2. And in some important respects, those views do not correspond with conventional views.

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  • Unravelled: Royal Commission: Round 3 - experiences with SME lending

    2 October 2018

    The third round of the Royal Commission's hearings concerned lending practices to small and medium enterprises (SMEs). The hearings considered a range of case studies.

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  • Unravelled: Royal Commission: Round 4 - experiences with financial service entities in regional and remote communities

    2 October 2018

    In the Interim Report, the Commissioner identifies four principal issues relating to agricultural lending.

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  • Client Update: Treasury proposes tougher penalties for corporate and financial sector misconduct

    26 September 2018

    The Federal Government has released exposure draft legislation for public consultation that, if enacted, will implement many of the recommendations of the ASIC Enforcement Review Taskforce to strengthen the penalty regime for corporate and financial sector misconduct. Partner Simun Soljo and Lawyer Roseanna Bricknell take a look at the proposed laws.

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  • Unravelled: Are CCIVS the beginning of the end for the Unit Trust's monopoly?

    19 September 2018

    Avid, or even occasional, readers of Unravelled over the past few years cannot have failed to notice the Federal Government's proposal to introduce two new forms of collective investment vehicle - each a shiny, tax-neutral alternative to the unit trust which (and note the heavy dose of self-interest here) will hopefully lead to a marked reduction in the sleepless nights and migraines resulting from the task of explaining the finer points of trust law to overseas counterparties and their advisers.

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  • Unravelled: Close and continuous monitoring - the new ASIC approach of embedding its officers in banks

    19 September 2018

    ASIC has recently announced a new supervisory approach that involves embedding ASIC officers in the four major banks and AMP. The initial media reporting on this approach suggested that it would involve embedding 'teams of up to 20 agents for weeks at a time to sit with bank staff, drop into meetings and trail the CEO, executives and directors to identify misconduct before it arises.'

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  • Focus: How ipso facto provisions (and exemptions) affect project finance - both good and bad news

    5 September 2018

    The new ipso facto regime applies to contracts entered into on or after 1 July 2018. It imposes a stay on the exercise of certain contractual rights in some insolvency regimes (administration and some receiverships and schemes of arrangement, but not liquidation). There are many exemptions from the regime, some of which will be relevant to project finance. Partner Scott McCoy, Senior Finance Counsel Diccon Loxton and Senior Associate Isabel Cropley discuss some of the issues.

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  • Client Update: Competition in electricity and financial services markets - common issues, common solutions?

    30 August 2018

    The level of competition in both the electricity and financial services sectors has been closely scrutinised by the Australian Competition and Consumer Commission and the Productivity Commission. While there are fundamental differences in market structures in both sectors, the respective commissions have identified common concerns and made common proposals to address those concerns.

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