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

  • 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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  • Client Update: Full Federal Court speaks on competing class actions

    30 August 2018

    In the latest instalment in the attempts to deal with competing shareholder class actions, the Full Federal Court has ordered the transfer of four shareholder class actions against AMP to the Supreme Court of New South Wales, where a fifth class action is already pending. In doing so, the court gave the clearest indication yet that multiple class actions raising similar issues should not be permitted to proceed. It also acknowledged in more express terms than ever before that competing class actions are really all about the competing interests of class action promoters and not group members. Partner Jenny Campbell and Linklaters Associate Gert-Jan Hendrix report.

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  • Unravelled: Counsel Assisting the Royal Commission alleges significant superannuation misconduct

    27 August 2018

    The list of alleged breaches are divided into breaches of the SIS Act, the Corporations Act and the ASIC Act we consider each of these and what it might mean.

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  • Unravelled: Expert review into fees and costs disclosure - further changes ahead

    20 August 2018

    Many of you will be familiar with the long and tortured history of fees and costs disclosure regulation in Australia. The most recent set of issues can be traced back to 2014, when ASIC tried to address what it considered to be gaps in and inconsistent application of the former regime.

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  • Unravelled: Competing class actions - a problem in need of a solution

    20 August 2018

    As fertile ground for class actions, the Royal Commission has highlighted an ongoing problem with Australia's class action regime – there is no clear, consistent means for resolving competing class actions.

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  • Client Update: ASIC's allocations project - guidance from abroad

    13 August 2018

    ASIC is examining the allocations process in capital raising transactions. We report on ASIC's allocations project and the influences that the regulators in the UK and in Europe may have on the project.

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  • Client Update: Design and distribution of financial products - regulating 'retail product distribution conduct'

    30 July 2018

    The revised exposure draft Bill concerning design and distribution obligations for issuers and distributors of financial products, and new intervention powers for ASIC, includes some modest, yet mostly welcome, changes to the December 2017 exposure draft. Senior Regulatory Counsel Michael Mathieson reports.

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  • Unravelled: Update on the Royal Commission

    19 July 2018

    Have you been wondering what the Royal Commission will make of the numerous witness statements and vast amounts of other information collected from superannuation trustees in recent times? You will find out soon enough. But first, there are some curiosities from the Round Four hearings to consider – including a hint as to what the superannuation hearings will include.

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  • Unravelled: Where we are with superannuation retirement income changes

    19 July 2018

    The Government has slowly been changing the superannuation retirement income system, with the aim of increasing the range of retirement products available to Australians. A number of changes have already been implemented, and more are to come with the proposed 'Comprehensive Income Products for Retirement' (CIPRs) regime. We thought it was a good time to take stock and look ahead.

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  • Unravelled: Australian Financial Complaints Authority: a 'one-stop-shop' for financial dispute resolution

    19 July 2018

    The new Australian Financial Complaints Authority is to replace each of the Superannuation Complaints Tribunal, the Financial Ombudsman Service and the Credit and Investments Ombudsman in November 2018.

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  • Focus: VLRC takes first cut at class action reform

    22 June 2018

    The Victorian Law Reform Commission has completed its review of Victoria's class action regime, with a particular focus on the effect of litigation funding. The report calls for national regulation of litigation funding, lifting the ban on contingency fees both generally and in class actions (balanced with appropriate regulatory measures) and a greater supervisory role for the Victorian Supreme Court in the management of class actions. Managing Associate Kate Austin, Associate Kelly Roberts and Lawyer Katerina Dandanis discuss.

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  • Unravelled: What might the PC review into superannuation mean for fund investments?

    22 June 2018

    The Productivity Commission Draft Report into the Efficiency and Competitiveness of Australia's superannuation system, weighing in at a substantial 549 pages, contains a treasure trove of information on, and analysis of, a wide range of aspects of the industry.

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  • Unravelled: Update on the Royal Commission

    22 June 2018

    A lot has happened since our most recent update. The Royal Commission has published the submissions received from ASIC and industry participants on policy questions posed by Counsel Assisting at the end of the financial advice hearings. And the small business lending hearings have been held.

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  • Client Update: The end of the unit trust monopoly - tranche 1 of the revised CCIV bill

    15 June 2018

    On 13 June 2018, the Federal Government released the first tranche of the revised exposure draft legislation for the new corporate collective investment vehicle, one of the two forms of collective investment vehicle which it pledged to develop as part of the 2016-2017 budget. We are undertaking a comprehensive review of the draft for the purpose of preparing submissions to Treasury and will provide further updates in due course. In the meantime, Partner Penny Nikoloudis, Senior Overseas Practitioner James Kanabar and Associate Mai Go provide a high-level overview of the draft.

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  • Client Update: ASIC overhauls AFS licensing relief for foreign financial service providers

    5 June 2018

    The Australian Securities and Investments Commission has released its highly anticipated consultation paper on licensing relief for foreign financial services providers. The said new licensing regime will be broadly in line with that applied to other AFS licensees, but with relief from some provisions of the Australian Corporations Act and the imposition of certain additional tailored licence conditions. Partner Penny Nikoloudis, Senior Associate Jo Ottaway and Law Graduate Tom Lawson report.

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  • Allens insights: International Comparative Legal Guide to Project Finance 2018 - Australia

    25 May 2018

    Partners Ben Farnsworth and Michael Ryan outline the main trends and significant developments in Australian project finance. Among other factors, they discuss restrictions on foreign investment, bankruptcy and restructuring proceedings, tax, and political risk in relation to changes in law.

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  • Unravelled: 2018-19 Federal Budget - superannuation

    15 May 2018

    The 2018-19 Federal Budget has introduced a number of proposed superannuation-related changes, with a focus on protecting small balances, young members and existing retirees.

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  • Unravelled: Breach reporting by AFS licensees

    15 May 2018

    In the hurly burly of the Royal Commission’s recent hearings concerning financial advice, you may have missed some very important information about breach reporting by AFS licensees contained in the witness statement prepared by Mr Peter Kell, Deputy Chair of ASIC.

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  • Unravelled: Royal Commission update

    15 May 2018

    The hearings in the Financial Services Royal Commission have been compulsory viewing, not only for financial services industry participants and their regulators and professional service providers. The hearings have exposed wide-ranging actual or alleged wrongful conduct that has captured the attention of politicians, media and the general public.

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  • Focus: Federal Government's bold vision for data availability and use

    4 May 2018

    The Federal Government's response to the Productivity Commission's report on data availability and use, released this week, outlines a bold vision but has a surprising lack of detail, suggesting implementation is likely to be some way off. If legislation is introduced, the new regime will result in a fundamental change to the way Australian consumers, businesses and government agencies interact with and think about data. Partner Gavin Smith, Senior Associate Jessica Selby and Lawyer Claudia Hall predict the key impacts.

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