This week’s Super Alert notes a range of developments including the ACCC’s Digital Platforms Report, ASIC’s guidance on section 68A and the Government’s introduction of legislation to ban grandfathering of conflicted remuneration.
ACCC Digital Platforms Report
On 26 July 2019, the ACCC released a wide-ranging report into digital platforms and made a large number of recommendations including in relation to privacy law. The recommendations, if adopted, would bring about changes to the Privacy Act with broad application, including suggestions to:
- Broaden the definition of ‘personal information’, to ensure that it is clear that the Privacy Act applies to digital identifiers like IP addresses and to information that might be inferred from data collected;
- Introduce more robust obligations about when consent is required from individuals and what qualifies as effective consent, including by ensuring that individuals cannot be ‘opted-in’ by default;
- Allow individuals to bring action directly for breaches of the Privacy Act, rather than relying solely on enforcement by the Office of the Australian Information Commissioner;
- Provide individuals with the right to request erasure of their information;
- Introduce a statutory tort for serious invasions of privacy; and
- Consider other aspects of the Privacy Act, including potentially removing exceptions for small businesses, employers and political parties, and strengthening laws to align with jurisdictions with robust privacy regimes, such as the European Union.
On 1 August 2019, the Government announced that ‘public consultation on all 23 recommendations of the Australian Competition and Consumer Commission’s (ACCC) Digital Platforms Report will commence’ and that ‘[t]he precise form of the reforms and a Government response to the report’s 23 recommendations will be informed by this consultation process’.
Government proposes to remove grandfathered commissions
On 30 July 2019, the Treasurer issued a media release announcing that the Government will introduce legislation ‘to ban the grandfathering of conflicted remuneration paid to financial advisers’ on 1 August.
According to the Treasurer, the Treasury Laws Amendment (Ending Grandfathered Conflicted Remuneration) Bill 2019 is the ‘Government’s response to the [Royal Commission] Final Report, to end the grandfathering of conflicted remuneration by 1 January 2021’.
The Bill will also include ‘a power to make regulations to establish a scheme, that will provide that those people paying conflicted remuneration rebate clients for any remuneration that would be paid after 1 January 2021’.
The Bill was in fact introduced into Parliament on 1 August 2019.
APRA releases updated plan in relation to data collection system
On 30 July 2019, APRA released a ‘substantially updated and expanded’ version of its Data Collection Solution Implementation Plan. As reported in our Super Alert of 5 April 2019, this plan relates to the rollout of APRA’s new data collection system which will replace the existing system.
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APRA releases biennial stakeholder survey
On 31 July 2019, APRA released its 2019 Stakeholder Survey Report. According to an associated media release from APRA, the Report shows that APRA’s ‘regulatory and supervisory approaches are having a positive impact on risk management and culture in the banking, insurance and superannuation industries’.
ASIC releases information sheet in relation to section 68A compliance
On 31 July 2019, ASIC released Information Sheet 241 in relation to the prohibition in section 68A of the SIS Act on influencing an employer’s fund choice. The information sheet explains:
- ‘the background to amendments to section 68A of the Superannuation Industry (Supervision) Act 1993 (SIS Act)
- the prohibition in section 68A against particular conduct by a trustee or its associates
- the exemptions from section 68A that are available in regulation 13.18A of the Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations)
- the penalties that apply for a breach of section 68A’.
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This alert was written by Natalie Cambrell, Partner, Damian Tarulli, Special Counsel and Sanela Osmanovic, Associate.
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