Publication
Tips on how an effective IP settlement can be a winning strategy
Litigating intellectual property disputes, including patent, trademark, copyright, industrial design and trade secret rights, can be complex and time-consuming.
Australia | Publication | March 2021
The month of February 2021 has seen continued momentum for a raft of changes affecting financial services providers from various industries. APRA has released its new policies and priorities for 2021, which have a particular focus on the impacts of COVID-19 and seek to strengthen the financial services sector in dealing with future crises. The ‘Your Future, Your Super’ Bill has been introduced to Parliament which proposes significant superannuation regulatory reform. A key High Court decision has clarified the scope of personal financial product advice as distinct from general advice, and the Insurance Council of Australia has brought a second test case for business interruption insurance before the Federal Court.
On 1 February 2021, APRA released its policy and supervision priorities for 2021. Presented within an Information Paper, APRA has emphasised that it will continue to support the recovery from the impacts of COVID-19 over the next 12 to 18 months and seek to strengthen the financial system’s robustness against future potential crises. APRA’s key policy priorities include:
In relation to supervision activities, APRA’s priorities include:
A copy of APRA’s policy and supervision priorities for 2021 can be found here.
On 2 February, the Australian Finance & Technology Centre Advisory Group released a report into Australia as a financial and technology centre commissioned by Senator Bragg in August 2020. The report argues that Australia’s technology and financial sectors are sophisticated but too heavily focused domestically. Some of the recommendations of the report include:
The full report and recommendations can be found here.
On 3 February 2021, the High Court of Australia handed down its widely anticipated judgment on Westpac’s appeal against ASIC concerning the interpretation of personal financial product advice (Westpac Securities Administration Ltd v Australian Securities and Investments Commission [2021] HCA 3).
The Court unanimously dismissed the appeal, clarifying the difference between general advice and the broad definition of ‘personal advice’ under section 766B(3)(b) of the Corporations Act 2001 (Cth), echoing consumer protection objectives. Verbal general advice disclaimers given by Westpac were deemed inadequate in the circumstances, since they created an impression that, as an advisor, Westpac had considered the client’s needs, objectives and financial situation.
In addition, given that Westpac’s ‘free’ rollover service did not indicate that ‘general’ or non-tailored advice was being provided, the Court held that there existed a presumption that the advisor has considered the client’s circumstances, particularly where it is the advisor that initiates contact. In finding that Westpac gave personal advice, the decision further highlights that, despite its broad definition, personal advice is not synonymous with comprehensive advice.
On 17 February 2021, The Treasury Laws Amendment (Your Future, Your Super) Bill 2021 (the Bill) was introduced into the House of Representatives on 17 February, and referred to the Senate Economics Committee (the Committee).
Some of the key reforms proposed in the Bill include:
The Committee’s report is due by 22 April 2021. The Bill’s explanatory memorandum can be accessed here.
On 24 February 2021, ASIC released its immunity policy for certain contraventions of provisions of the Corporations Act. Under this policy, an individual who has engaged with others to manipulate the market, commit insider trading or engage in dishonest conduct when operating a financial services business can, in certain circumstances, seek immunity from both civil penalty and criminal proceedings. The policy is only available to individuals, and not corporations.
Under the policy, immunity will only be available to the first individual who satisfies the immunity criteria and reports the misconduct to ASIC prior to the commencement of an investigation into the conduct. The purpose of the immunity policy is to promote cooperation with ASIC and to enhance ASIC’s ability to identify and take enforcement action against complex markets and financial services contraventions. The policy will be reviewed every two years.
A copy of ASIC’ immunity policy can be found here.
On 25 February 2021, Financial Sector Reform (Hayne Royal Commission Response No. 2) Bill 2020 was passed in the Senate. This package implements a further four recommendations of the Financial Services Royal Commission to improve consumer protections.
The Bill amends the Corporations Act to require financial services providers that receive fees (fee recipients) under an ongoing fee arrangement to:
Schedule 2 to the Bill amends the Corporations Act to require a providing entity (a financial services licensee or authorised representative) to give a written disclosure of lack of independence where they are authorised to provide personal advice to a retail client.
Finally, Schedule 3 to the Bill amends the Superannuation Industry (Supervision) Act increase the visibility of advice fees for all superannuation products and prohibit the charging of ongoing advice fees from MySuper products.
A second business interruption test case has been launched by the Insurance Council of Australia in the Federal Court of Australia. Compared to the first test case, which only considered the interpretation of a specific exclusion referring to the repealed Quarantine Act 1908 (Cth), the second test case considers a wider suite of substantial issues. The claimants include a dry cleaner, travel agency, stage clothing and costume store, gym, dental practice, property landlord, beauty salon and bar and restaurant businesses. The claims are also geographically spread out with businesses located in Townsville, Brisbane, Sydney, Wollongong, Melbourne and Adelaide.
The issues to be considered include:
ASIC has released a draft regulatory guide on implementing the deferred sales model for add-on insurance products together with Consultation Paper 339. The legislation which commences on 5 October 2021 introduces a deferral period of four days during which an add-on insurance product cannot be sold. More information on the deferred sales model and other upcoming reforms can be found on our Insurance Regulatory Hub.
Consultation is open until 23 April 2021. The draft regulatory guide includes information on ASIC’s proposed approach for applying an exemption from the deferred sales model. The consultation also invites feedback on ASIC’s proposal on the content, form and communication of information that must be given to customers to start the deferral period.
Publication
Litigating intellectual property disputes, including patent, trademark, copyright, industrial design and trade secret rights, can be complex and time-consuming.
Subscribe and stay up to date with the latest legal news, information and events . . .
© Norton Rose Fulbright LLP 2023