Thinking | 28 June 2021

Superannuation trustee service: non-public offer trustees secure level playing field

By Anne MacNamara, Adrian Verdnik and Charlie Renney

ASIC has granted non-public offer superannuation trustees the same dealing authorisation relief as is currently available to public offer superannuation trustees.

ASIC has registered ASIC Corporations (Amendment) Instrument 2021/550 (Amending Instrument), which will exempt both public‑offer and non‑public offer superannuation trustees from having to obtain a dealing authorisation under an Australian financial services licence (AFSL) to deal in financial products (other than an interest in the entity itself) in the ordinary course of operating a registerable superannuation entity.

Previously, this relief was only available to public offer superannuation trustees under the ASIC Corporations (Superannuation and Schemes: Underlying Investments) Instrument 2016/378 (Primary Instrument). The extension of the relief available under the Primary Instrument to non-public offer superannuation trustees by the Amending Instrument comes in response to the approaching 1 July 2021 deadline, by which time all trustees of registerable superannuation entities must hold an AFSL with an authorisation to deal in superannuation interests and to provide a superannuation trustee service.

The requirement for non-public offer superannuation trustees to hold an AFSL comes following the implementation of the Financial Sector Reform (Hayne Royal Commission Response) (Regulation of Superannuation) Regulations 2020, which repeal the exemption currently available to non-public offer superannuation trustees from having to hold an AFSL under Regulation 7.6.01(1)(a) of the Corporations Regulations 2001 (Cth), with effect from 1 July 2021. Without the relief granted under the Amending Instrument, non-public offer superannuation trustees would be prohibited from dealing in fund assets.

The relief available under the Amending Instrument will apply to all superannuation trustees for a period of 18 months until 31 December 2022. The 18-month window is designed to allow ASIC to monitor and consult on the operation of the relief available under the Amending Instrument having regard to the new financial service of providing a superannuation trustee service. ASIC has stated that, following the outcome of this review period, the relief available under the Amending Instrument may be removed or continued subject to possible conditions.

There are no positive steps that need to be taken by public offer superannuation trustees currently relying on the Primary Instrument, as such entities are automatically covered by the Amending Instrument. Similarly, the relief applies automatically to non-public offer superannuation trustees.

For our comments on the superannuation trustee service authorisation, see our previous article: Superannuation trustee service: a new financial service for RSE licensees.

Contact

Anne MacNamara

Anne is a leading superannuation and financial services lawyer with deep knowledge and understanding of the superannuation and financial...

Adrian Verdnik

Adrian’s financial services law practice covers superannuation, managed funds, insurance, and financial advice. His work includes both advisory and...

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