Regulatory updates and industry trends

With financial services practice now more dynamic than ever, we help professionals to remain compliant and future ready at all times.

For information on relevant legislation and important information surrounding your licensing obligations please refer to ASIC’s Regulatory Index.

Please find below a selection of recent regulatory updates we have found informative.

FEP statement regarding Financial Service Training Package updates

In recent months, the federal Department of Education has signed off on changes to the Financial Services Training Package – the framework under which most financial services professionals attain their nationally recognised training.

As well as being heavily involved in the consultation process coordinated by PwC Skills for Australia, we have already updated several of our qualifications to the latest versions. This puts our clients in a position to offer their teams the most up-to-date and relevant learning and professional development.

Royal Commission and ASIC reforms implementation key dates

June 2021

Regulators expect Australian institutions to cease the use of LIBOR in new contracts before the end of 2021

4 June

Regulators in Australia are reiterating the importance of ensuring a timely transition away from the London Interbank Offered Rate (LIBOR). This requires ceasing the use of LIBOR in new contracts before the end of 2021. Continued reliance on LIBOR poses significant risks and disruptions to the stability and integrity of the financial system. Firms themselves may also face financial, conduct, litigation, and operational risks associated with inadequate preparation.

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APRA publishes Chair Wayne Byres’ Opening Statement to the Senate Economics Legislation Committee

2 June

APRA’s focus continues on driving superannuation trustees to improve outcomes for their members, through four key channels: enhanced data, greater transparency, a stronger prudential framework, and more intense supervision.

May 2021

APRA Executive Director, Superannuation Division, Suzanne Smith – Speech to the ASFA Spotlight on Risk & Compliance event

27 May

Suzanne Smith provided an APRA perspective on conduct, culture and “what good looks like”.  And what APRA wants to see in terms of conduct and culture, using the Risk Culture 10 Dimensions as a backdrop.

How can we help?

ASIC consults on updates to the ePayments Code

25 May

ASIC has released a consultation paper (CP 341) seeking feedback on proposed updates to the ePayments Code. Subscription to the Code is voluntary. However, the Government has accepted recommendations to mandate the Code.

APRA publishes Deputy Chair Helen Rowell’s latest speech on superannuation

19 May

APRA has published a speech delivered by Deputy Chair Helen Rowell to the AIST’s Conference of Major Superannuation Funds in Adelaide.

In “Winning the numbers game”, Mrs Rowell reflected on how superannuation’s growing importance to members and the economy made it essential that trustees continued to raise their standards and improve the outcomes they deliver for their members. One thing that won’t change is APRA’s commitment to improving outcomes for superannuation members. And with a range of legislative and regulatory reforms on the horizon to further lift industry transparency and accountability, trustees have no choice but make sure that they can clearly demonstrate – with robust evidence – how they have put their members’ interests at the very heart of every decision they take.

Governments continues push for retirement futures to look super

The superannuation sector breathed a sigh of relief, with the 2021-22 Federal Budget seeing changes to various thresholds and tests rather than significant reforms to the super system.

The Morrison government reiterated its commitment to the Your Future, Your Super agenda as well. Super funds have welcomed the government’s pledge to amend the criteria to be included in APRA’s annual superannuation performance test, improving the legislation’s prospects for passing in time for planned 1 July 2021 implementation.

ASIC quarterly update January to March 2021

6 May

During January to March 2021, ASIC continued to progress its work related to Government reforms that expanded ASIC’s role in superannuation to include conduct regulation. The report also covers ASIC’s use of new regulatory tools such as the product intervention power, and their preparation for new tools introduced by recent law reforms.

ASIC commences civil proceedings against Westpac for insider trading

5 May

ASIC has commenced proceedings in the Federal Court against Westpac Banking Corporation (Westpac) for insider trading, unconscionable conduct and breaches of its Australian financial services licensee obligations. ASIC is committed to improving market practices in the institutional and Fixed Income, Currency and Commodities (FICC) markets. This matter serves as an important reminder that the insider trading prohibitions apply equally across all financial markets.

Firms offering debt management services require credit licence to operate

5 May

ASIC has issued INFO 254 regarding new laws requiring providers of debt management services to hold an Australian credit licence with an authorisation to provide these services.

Debt management includes such activities as suggesting and/or helping a consumer to:

  • apply for a change to a credit contract for which the consumer is a debtor, including negotiating revised repayment arrangements or claiming financial hardship
  • apply for a postponement of enforcement proceedings
  • make a complaint or claim to a credit provider, AFCA, ASIC or the Information Commissioner
  • ‘repair’, ‘clean’ or ‘fix’ entries in their credit report that relate to a consumer credit contract.

Under transitional arrangements, anyone intending to provide debt management services from 1 July 2021 will need to have done the following by 30 June 2021:

  • applied for a credit licence (or variation to an existing licence) with a debt management authorisation or have arrangements in place to act as a representative of a provider that has applied for a credit licence to cover this activity, and
  • become a member of the Australian Financial Complaints Authority (AFCA).

Exemptions from the changes include debts under utilities contracts, business loans or consumer leases; financial counselling agencies that do not charge consumers fees for their services; and lawyers (in some permitted circumstances).

Existing Australian credit licence holders who are affected by these changes will also need to apply by 30 June 2021 to vary their licence to include a debt management authorisation.

How FEP can help:

April 2021

APRA publishes Chair Wayne Byres’ speech on climate, risk culture and cyber risk

28 April

In “Piloting a way forward”, Mr Byres outlines how APRA is once again broadening its supervisory focus, as the economy recovers, with a particular emphasis on the financial risks associated with climate change, cyber, and governance, risk culture, remuneration and accountability (GCRA).

“Of the three areas covered, cyber presents arguably the most difficult prudential threat: unlike GCRA or climate risk, it’s driven by malicious and adaptive adversaries who are intent on causing damage. Cyclones and bushfires can be devastating, but they’re not doing it on purpose.”

ASIC enforcement update July to December 2020

16 April

ASIC has released its enforcement update report for the period 1 July to 30 December 2020. ASIC’s enforcement update report also outlines the increased resourcing to build our capability to pursue court outcomes. Comparing the 2018 and 2020 calendar years, ASIC has recorded a 64% increase in civil penalty proceedings as well as a 36% increase in the number of criminal proceedings commenced.

ASIC cancels eight Australian credit licences

14 April

ASIC has cancelled or suspended eight Australian credit licences between 1 July 2020 to 31 December 2020 for failing to be a member of the Australian Financial Complaints Authority (AFCA). ASIC continues to work closely with AFCA to identify financial services licensees and credit licensees that are not complying with their obligations.

APRA releases consultation to enhance oversight of life reinsurance market

8 April

The Australian Prudential Regulation Authority (APRA) has released for consultation a package designed to address concerns regarding the increased use of offshore reinsurers by life insurers. These concerns are particularly heightened in relation to the group risk market, which plays an important role in Australia’s superannuation system.

APRA is seeking stakeholder feedback on the revised LPS 117 by 25 June 2021. The final standard is expected to be released by the end of 2021.

ASIC warns time is fast running out for insurance claims handling AFS licence applications 

8 April

Deputy Chair, Karen Chester said ‘Time is running out for firms to lodge their applications with ASIC. To date we’ve received fewer than 15 applications for the new claims handling and settling service. ‘We are concerned that firms are running the risk of not submitting a complete application in time to get the benefit of the legislated transition period. Firms need to submit an application no later than 7 May 2021. Failing to do so poses a real risk that these firms will have to stop providing claims handling and settling services after 30 June 2021.’

Since 1 January 2021, claims handling and settling is a financial service which requires a licence by 1 January 2022.

How can we help?

March 2021

Regulators target financial compliant reporting standards

31 March 2021

ASIC prosecuted three companies between 1 July 2020 to 31 December 2020 for failing to comply with their financial reporting obligations. Australian companies are required by law to lodge annual financial reports with ASIC within a specified period after the end of the financial year.

APRA has also taken action against Macquarie Bank over multiple breaches of prudential and reporting standards.

People in leadership roles in your organisation should stay across all regulatory obligations including on-time financial reporting. Check out our AFSL RM CPD, an essential update for responsible managers and governance, risk and compliance leaders.

Highlights from March ASIC Liaison Group meeting

18 March 2021

ASIC recently updated market intermediaries on its current strategic priorities. Focus areas included:

  • Operational resilience and cyber risk
  • Changing dynamics of retail markets
  • Surveillance of equity markets
  • Compliance with Design and Distribution Obligations for market intermediaries.

Key themes were:

  • Monitoring non-financial risks, particularly resilience of critical infrastructure, information security and cyber risks
  • Compliant marketing and selling of financial products
  • Fair and orderly market operations, including meeting conduct, disclosure and reporting requirements
  • Getting ready for enforcement of Design and Distribution Obligations (DDOs).

APRA agrees to court enforceable undertaking from Allianz Australia

9 March

The Australian Prudential Regulation Authority (APRA) has agreed to accept a court enforceable undertaking (CEU) from Allianz Australia Insurance Limited (Allianz) acknowledging its past risk and compliance weaknesses and committing to finish rectifying these serious issues. The CEU commits Allianz to completing a series of transformation programs that relate to risk maturity, compliance, conduct and culture in a timeframe agreed with APRA. Allianz has also undertaken to provide APRA with greater assurance that these programs are complete and operationally effective.

APRA urges life insurers and superannuation funds to address sustainability of insurance in superannuation

9 March

The Australian Prudential Regulation Authority (APRA) has seen a re-emergence of some concerning developments in group life insurance in superannuation in relation to premium volatility, availability and provision of data, and tender practices. APRA’s view is that these developments, if unaddressed, are likely to result in poor member outcomes, and adversely impact the availability and sustainability of life insurance through superannuation.

APRA expects registrable superannuation entity (RSE) licensees and life insurers to take note of the concerns and expectations set out in their letter, and take steps to address them.

ASIC commences civil penalty proceedings against CommSec and AUSIEX for systemic compliance failures

1 March

ASIC has commenced civil penalty proceedings in the Federal Court against Commonwealth Securities Limited (CommSec) and Australian Investment Exchange Limited (AUSIEX) for alleged breaches of the Market Integrity Rules, Corporations Act and ASIC Act (CommSec only) relating to systemic compliance failures in the delivery of financial services.

It is ASIC’s view that the number, breadth and duration of the conduct is significant and indicates the entities did not have adequate systems and processes in place to ensure compliance with their relevant obligations under their Australian Financial Services licence (AFS licence) and pursuant to the Market Integrity Rules.

February 2021

ASIC sues NAB for unconscionable conduct and misrepresentations over account fees

25 February

ASIC has commenced proceedings in the Federal Court against National Australia Bank Ltd, alleging that NAB charged fees for making certain periodic payments when it was not entitled to under the bank’s contracts with its customers.

ASIC sets five-year sunset date for litigation funding legislative instrument

23 February

ASIC has revised the duration of relief relating to litigation funding schemes. The primary instrument commenced on 22 August 2020 and provided exemptions from certain provisions in Chapters 5C and 7 of the Corporations Act 2001 for litigation funding schemes. The relief was provided to facilitate the implementation of the (then) new regulatory framework for litigation funding schemes.

APRA announces aggregate Committed Liquidity Facility available to ADIs from 1 April

19 February

The Australian Prudential Regulation Authority (APRA) has issued a letter to authorised deposit-taking institutions (ADIs) announcing updated aggregate amounts for the 2021 Committed Liquidity Facility (CLF) established between the Reserve Bank of Australia (RBA) and certain locally incorporated ADIs that are subject to the Liquidity Coverage Ratio (LCR).

The letter is available on the APRA website at: Aggregate Committed Liquidity Facility available to ADIs from 1 April.

CBA liable for overcharged interest – Royal Commission case study

16 February

The Federal Court has made declarations that the Commonwealth Bank of Australia (CBA) made false or misleading representations and engaged in misleading and deceptive conduct on 12,119 occasions when charging a rate of interest on business overdraft accounts substantially higher than what its customers were advised.

ASIC considers that CBA’s conduct in this matter, which was examined in detail during the Financial Services Royal Commission, resulted from inadequate systems and processes

APRA publishes Deputy Chair Helen Rowell’s speech to the Association of Superannuation Funds of Australia (ASFA) Conference

12 February

The Australian Prudential Regulation Authority (APRA) has published a speech by Deputy Chair Helen Rowell to the Association of Superannuation Funds of Australia (ASFA) Conference. In “Greater Expectations: increasing scrutiny of a maturing superannuation industry”, Mrs Rowell outlines APRA’s priorities and areas of focus for the year ahead. “Much has been achieved by the industry, and that should be acknowledged. But so too should the reality that many boards will need to make changes to achieve the standards and performance that APRA requires and the community expects.”

ASIC update: Compensation for financial advice related misconduct as at 31 Dec 2020

12 February

Six of Australia’s largest banking and financial services institutions have paid or offered a total of $1.24 billion in compensation, as at 31 December 2020, to customers who suffered loss or detriment because of fees for no service misconduct or non-compliant advice.

APRA releases its policy and supervision priorities for 2021

1 February

The Australian Prudential Regulation Authority (APRA) has released its policy and supervision priorities for the coming year. Consistent with APRA’s strategic objectives detailed in its Corporate Plan, a key focus is to further enhance the resilience and crisis readiness of Australia’s financial system.

January 2021

FEP’s submission on ASIC’s Consultation Paper 322

22 January 2021

Continuing to advocate for the industry facing regulatory and environmental challenges, FEP this week made a submission to ASIC on CP322. We applaud ASIC’s gesture to seek industry opinion on the matter of affordable advice to consumers. But our submission also voiced a need for rules around the providing of limited scope advice to be made less complex and clearer, especially with respect to simple retail life insurance products.

December 2020

APRA and ASIC issue letter to RSE licensees on Member Outcomes and Design and Distribution Obligations

15 December 2020

The Australian Prudential Regulation Authority (APRA) and the Australian Securities and Investments Commission (ASIC) have issued a letter to registrable superannuation entity (RSE) licensees in relation to Member Outcomes (MO) obligations and Design and Distribution Obligations (DDO), to assist in better understanding the interaction of their requirements.

ASIC releases review of school banking programs

15 December 2020

The review was undertaken to determine the benefits and risks of school banking programs. ASIC sought to identify why banks, schools and students engage with these programs, understand whether banks assess the impact of their programs on students’ savings habits, and analyse the long-term impact on children of marketing through these programs.

ASIC releases regulatory guide on product design and distribution obligations

RG 274 addresses demand from industry for ASIC guidance as they prepare for the obligations to take effect on 5 October 2021. This follows a two year transition period and a six month deferral of commencement provided by ASIC due to the impacts of COVID-19.

ASIC Acting Chair Karen Chester said ‘the design and distribution obligations are a game changer. They are designed to embed a consumer-centric approach and assist industry to deliver better outcomes for consumers while managing non-financial risks and avoiding costly remediation.’

APRA publishes Chair Wayne Byres’ speech on risk management

In his ‘Watching out for swans’ address to the 2020 Forum of the Risk Management Association, APRA’s Wayne Byres discusses the shift in regulatory thinking from strengthening financial systems to improving resilience. This brings renewed focus on institutional readiness to absorb and manage risks from high-impact, low probability “black swan” events that have appeared to increase in frequency in recent times.

“After all, if we’ve learnt anything over the past year, it’s to expect the unexpected!”

How is your organisation managing its technology and infrastructure, procedures and, most importantly, its people?

November 2020

ASIC releases draft information sheet for insurance claims handling

27 November 2020

ASIC has released a draft information sheet on insurance claims handling and settling.

Industry participants that will need to get an AFS licence for claims handling and settling or be authorised by another AFS licensee are:

  • insurers
  • insurance claims managers
  • tradespersons (referred to as ‘insurance fulfilment providers’) who can reject claims on behalf of an insurer
  • insurance brokers who handle claims on behalf of an insurer
  • financial advisers who handle claims on behalf of an insurer, and
  • people that carry on a business of representing people to pursue insurance claims for reward (referred to as ‘claimant intermediaries’).

Entities that already hold an AFS licence will need to apply for a variation to their licence so it covers the new financial service of claims handling and settling.

ASIC places stop order on Skyring Fixed Income Fund advertisements

20 November 2020

ASIC has placed a stop order on advertisements for the Skyring Fixed Income Fund. It prohibits Skyring from promoting or making statements that compare the fund to term deposits or offer a fixed return without proper risk warnings. This action follows an ASIC review of recent radio advertisements for the fund, which found the advertisements contained misleading or deceptive statements.

ASIC has repeatedly warned investors to be wary about advertising that compares fixed-term investment products to bank term deposits. In June 2020, it told seven responsible entities to correct their advertising in relation to a total of 13 funds.

ASIC releases consumer research on insurance in super

20 November 2020

ASIC has released independent research on the experiences of superannuation fund members who directly engaged with their fund about insurance held through superannuation. Superannuation trustees are encouraged to consider the issues raised in this report and how they might improve the experience of their members when they seek to engage about insurance.

APRA reduces CBA’s operational risk capital add-on by $500 million

20 November 2020

APRA imposed the capital add-on on CBA in May 2018 as part of its response to the Final Report of the Prudential Inquiry into the Commonwealth Bank of Australia. The Inquiry, which followed a series of incidents that damaged the bank’s public standing, concluded that “CBA’s continued financial success dulled the senses of the institution”, particularly in relation to the management of non-financial risks.

How are you managing your non-financial risk?

APRA publishes new FAQ for ADIs on loans covered by the Coronavirus SME Guarantee Scheme

19 November 2020

APRA has published the following frequently asked questions (FAQs) to provide authorised deposit-taking institutions (ADIs) with up-to-date guidance on supervisors’ expectations, during the period of disruption driven by COVID-19.

Keynote address by ASIC Acting Chair Karen Chester at the AFR Banking & Wealth Summit

18 November 2020

ASIC has released the keynote address delivered today by Acting Chair Karen Chester at the AFR Banking & Wealth Summit. “At ASIC we recognise that this is a time of a potential ‘new better’ for regulators and for business – where boards step in early and step up decisively to manage both financial and non-financial risk.”

ASIC releases latest data on buy now pay later industry

16 November 2020

ASIC has published a new report on the buy now pay later industry which has grown substantially since ASIC’s initial review.  Buy now pay later arrangements are clearly popular as a payment method. While working for the majority of users, some consumers are suffering harm. There are regulatory changes coming that will impact the industry, with the design and distribution obligations coming into effect in October 2021.

12 November 2020

Consumers and small businesses will be further protected under a package of legislation introduced into the Parliament today by the Morrison Government. This legislation is another major step forward in completing the implementation of the Hayne Royal Commission.

They impact insurance, superannuation, and regulators’ powers to make certain measures in industry codes enforceable.

Licensing and professional registration activities: 2020 update

11 November 2020

ASIC’s Licensing and professional registration activities: 2020 update (Report 671) highlights new requirements for licensees, prospective applicants and service providers, and the impact of the COVID-19 pandemic.

Treasury proposes changes to the Consumer Credit Reforms

5 November 2020

On the 25 September 2020, the Government announced a suite of changes to Australia’s consumer credit framework contained in the National Consumer Credit Protection Act 2009 aimed at reducing the time it takes for individuals and small business to access credit while maintaining strong protections for vulnerable consumers. One aspect of the reforms amends the existing responsible lending obligations by replacing what has become a “one-size-fits-all” approach to lending with a risk-based regime that allows lenders the flexibility to make decisions based on the characteristics of the borrower and the type of credit.

Treasury is also consulting on extending the Best Interests Duty to all credit assistance providers – not just mortgage brokers.

To ensure appropriate consumer protections remain in place, the best interests obligations already legislated for mortgage brokers [will be] extended to all credit assistance providers… A best interests duty and obligation to resolve conflicts of interest in the consumer’s favour [will] apply to all credit assistance providers.”

The measures will commence on 1 March 2021, subject to the passing of legislation.

October 2020

APRA publishes Chair Wayne Byres’ Opening Statement to the Senate Economics Legislation Committee

27 October 2020

The Australian Prudential Regulation Authority (APRA) has published Chair Wayne Byres’ Opening Statement to the Senate Economics Legislation Committee. A copy of Mr Byres’ statement is available on the APRA website at: Opening Statement to Senate Economics Legislation Committee – October 2020.

ASIC product intervention order strengthens CFD protections

22 October 2020

ASIC has made a product intervention order imposing conditions on the issue and distribution of contracts for difference (CFDs) to retail clients. ASIC’s order strengthens consumer protections by reducing CFD leverage available to retail clients and by targeting CFD product features and sales practices that amplify retail clients’ CFD losses. It also brings Australian practice into line with protections in force in comparable markets elsewhere.

APRA takes action against Bendigo and Adelaide Bank for breaching prudential standard on liquidity

The Australian Prudential Regulation Authority (APRA) has increased Bendigo and Adelaide Bank’s minimum liquidity requirement for failing to comply with APRA’s authorised deposit-taking institution (ADI) prudential standard on liquidity.  The breaches, while material, do not impact the overall soundness of Bendigo and Adelaide Bank’s current liquidity position. However, they raise questions over the bank’s past risk management practices, and ability to accurately calculate and report its liquidity ratios.. “In taking these actions, our priority is to ensure the underlying causes of the compliance failures are properly identified and addressed. It also sends a message to the wider banking industry that such breaches of our prudential standards are not acceptable, and APRA will respond in a commensurate manner, including applying penalties where appropriate.”  For more information on liquidity in banking, see:

ASIC updates information sheets on new protections under the unfair contract terms laws

In preparation for the unfair contract term protections applying to insurance contracts, ASIC is undertaking targeted supervisory work with industry.

The focus of ASIC’s supervisory work is on:

  • terms that allow an insurer to cash settle a claim based on the cost of repair to the insurer
  • terms that are an unnecessary barrier to a consumer lodging a claim
  • terms that reduce the cover offered where compliance with the preconditions is unfeasible; and
  • terms that use an outdated, and therefore inaccurate or restrictive, medical definition.

NAB ordered to pay $15 million for dealing with unlicensed home loan Introducers: Royal Commission case study

19 October

The Federal Court of Australia has today ordered National Australia Bank (NAB) pay a civil penalty in the amount of $15 million for contravening section 31(1) of the National Credit Act. ASIC’s investigation uncovered that NAB bankers overstepped the ‘spot and refer’ requirement by accepting information and documentation from the 25 unlicensed Introducers, including completed home loan applications, payslips, copies of customer identification documents and more.

ASIC letter to insurers, Lloyd’s coverholders and brokers

16 October 2020

ASIC has written to insurers, Lloyd’s coverholders and brokers about handling business interruption insurance claims arising from the COVID-19 pandemic.

The letter outlines:

  • ASIC’s work in relation to business interruption insurance policies held by small businesses
  • how general insurers, Lloyd’s coverholders and brokers should approach handling claims on these policies in light of COVID-19.

Read the letter (PDF 153 KB)

APRA begins roll-out of new Supervision Risk and Intensity Model

6 October 2020

The Australian Prudential Regulation Authority (APRA) has announced that it is commencing the roll-out of a new model for assessing the risks faced by banks, insurers and superannuation licensees. Copies of the letter, SRI Model Guide and revised supervision philosophy are available at: Transition to APRA’s new Supervision Risk and Intensity (SRI) Model.

September 2020

Government takes swipe at responsible lending obligations

25 September

The biggest reforms to consumer credit regulation in a decade loom, with ASIC set to be stripped of some of its responsible lending powers.

Key elements of the reforms include:

  • Removing most responsible lending obligations from the National Credit Act
  • Introducing heightened obligations for small amount credit contracts (SACCs) and consumer leases
  • Ensuring that authorised deposit-taking institutions (ADIs) will continue to comply with APRA’s lending standards
  • Applying key elements of APRA’s ADI lending standards to non-ADIs.
  • Requiring debt management firms to hold an Australian Credit Licence when they are paid to represent consumers in disputes with financial institutions
  • Removing the ambiguity regarding the application of consumer lending laws to small business lending.

A cornerstone of the reforms is replacing the current practice of ‘lender beware’ with a ‘borrower responsibility’ principle.

In announcing the changes, the government argued that current regulatory guidance was too prescriptive, making the credit application process an undesirably burdensome experience for lenders and borrowers alike. Subject to the passing of legislation, the reforms will commence from 1 March 2021.

AUSTRAC and Westpac agree to proposed $1.3 billion penalty

Westpac Group has been hit with a record fine in relation to the 23 million breaches of anti-money laundering and terrorism laws AUSTRAC took the major bank to court over late last year.

In reaching the agreement, Westpac also admitted to approximately 76,000 additional contraventions, which expand the original statement of claim.

While acknowledging the collaborative way the financial crime agency works with businesses, AUSTRAC CEO, Nicole Rose PSM, urged regulated entities to ensure that their assurance and oversight processes adequately supported them to:

  • meet their compliance and reporting obligations; and
  • facilitate such breaches not happening again in the future.

The Federal Court will now determine if the proposed $1.3 billion penalty is appropriate. If approved, the penalty order made will represent the largest ever civil penalty in Australian history, dwarfing the $700 million fine the Commonwealth Bank paid in 2018 after AUSTRAC found it had failed to report on 53,500 transactions.

Government ends pause on finalising clawback regulations

23 September

Following industry engagement and consultation, the government has released the final Regulations and Explanatory Statement for mortgage brokers focusing on the new clawback requirements and conflicted remuneration.

The Financial Sector Reform (Hayne Royal Commission Response – Protecting Consumers) (Mortgage Brokers) Regulations 2020 build on the draft regulations. While several changes were made regarding remuneration, material changes to the draft clawback provisions were not included.

With respect to clawback provisions, the regulations:

  • ban clawback arrangements if they apply for more than two years from the beginning of the credit contract
  • specify that the repayment obligation “must not require repayment of an amount greater than the benefit given to the licensee or representative”
  • emphasise that “the consumer must not be subject to an obligation to pay an amount as a result of an amount being required to be repaid under the repayment obligation”.

You can view the detail of the Regulations and Explanatory Statement on the Federal Register of Legislation.

APRA issues letter to ADIs following review of treatment of loans impacted by COVID-19

22 September

The Australian Prudential Regulation Authority (APRA) has issued a letter to authorised deposit-taking institutions (ADIs) following a review of ADIs’ comprehensive plans for the assessment and management of loans with repayment deferrals.

The letter is available on the APRA website at: Review of treatment of loans impacted by COVID-19.

ASIC tells fund managers to be ‘true to label’

22 September

A recent ASIC surveillance has found that fund managers must do more to ensure their products are ‘true to label’ – that the product name aligns with the underlying assets.

ASIC and IOSCO report on conflicts of interest within debt capital raising process

22 September

ASIC has issued Report 668 Allocations in debt capital market transactions (REP 668), outlining findings from ASIC’s surveillance of market practices in debt capital market (DCM) transactions and sets out better practice guidelines, including ASIC’s expectations that Australian Financial Service (AFS) licensees. ASIC’s report follows the 21 September 2020 release of the Final report on Conflicts of interest and associated conduct risks during the debt capital raising process (IOSCO Report) by the Board of the International Organization of Securities Commissions (IOSCO).

Advertising financial products and services: obligations and ASIC’s expectations

ASIC is reminding advertisers of financial services and products that compliance with legal obligations, specifically the prohibition of false or misleading representations, is paramount during this time of uncertainty.

Armed with a mix of traditional and innovative regtech monitoring tools, the corporate regulator is monitoring advertising of a wide range of products and services across a broad range of media, including social media.

ASIC is targeting advertisements that are misleading or deceptive or that help it to identify products or services which are unsuitable or inappropriate and may be seeking to exploit people in the current COVID-19 environment.

Licensees can refer to RG 234: Advertising financial products and services (including credit): good practice guidance or seek legal advice for clarification of how to produce compliant marketing and advertising.

APRA and ACCC sign updated Memorandum of Understanding

16 September 2020

APRA and ACCC have signed an updated Memorandum of Understanding (MoU) designed to foster closer collaboration between the two regulators. The new MoU commits both agencies to a broader model of engagement, with a greater emphasis on proactive information sharing and collaboration. The updated MoU is available on the APRA website at: Memoranda of understanding and letters of arrangement.

Court rulings support ASIC’s position on notice compliance and legal privilege

11 September 2020

Two recent Federal Court decisions support ASIC’s position on obligations to comply with ASIC Act notices and to clearly substantiate any claims for legal professional privilege.

APRA issues letter to ADIs in response to consultation on loans impacted by COVID-19

9 September 2020

The Australian Prudential Regulation Authority (APRA) has issued a letter to authorised deposit-taking institutions (ADIs) that outlines APRA’s response to its consultation on capital measures and reporting requirements for loans impacted by COVID-19.
The response letter, final prudential standard and final reporting standard are available on the APRA website at: Treatment of loans impacted by COVID-19.

August 2020

APRA publishes 2020-2024 Corporate Plan

31 August 2020

The Australian Prudential Regulation Authority (APRA) has published its 2020-2024 Corporate Plan, which has been updated to account for the substantial impact of the COVID-19 pandemic.

APRA’s Corporate Plan continues to be founded on delivering four key community outcomes over the planning horizon:

  • maintaining financial sector resilience;
  • improving outcomes for superannuation members;
  • transforming governance, culture, remuneration and accountability across all regulated institutions; and
  • improving cyber resilience across the financial system.

ASIC’s Corporate Plan 2020-2024

31 August 2020

ASIC has published its Corporate Plan for 2020-24, focusing on non-financial risk, consumer protection, DDO, predatory lending and superannuation.

  • promoting confident participation in the financial system to support long-term economic recovery
  • deterring poor behaviour and misconduct through the ‘Why not litigate?’ discipline and driving cultural change using all of our regulatory tools
  • improving entities’ management of key risks to prevent and mitigate harms to consumers and promote a healthy financial system and economic growth
  • addressing consumer harm as a result of elevated debt levels and hardship, with a focus on predatory lending
  • reducing poor product design and restricting misselling
  • reducing misconduct by company directors and professional service providers
  • delivering as a conduct regulator for superannuation.

ASIC issues guidance for Government’s enhanced regulatory sandbox

24 August 2020

ASIC has released guidance to assist innovative financial businesses test their products and services under the Government’s enhanced regulatory sandbox (ERS), scheduled to commence on 1 September 2020.

The ERS is a class waiver from licensing for certain financial services and credit activities. It allows for a longer testing period (of up to 24 months), and encompasses a broader range of financial services and credit activities and a wider range of businesses than the ASIC sandbox that was issued in December 2016.

ASIC manages transition to new regulatory regime for litigation funding schemes

21 August 2020

ASIC has made ASIC Corporations (Litigation Funding Schemes) Instrument 2020/787 (Instrument) to manage the transition to the new regulatory regime for litigation funding. From 22 August 2020, operators of litigation funding schemes will be required to hold an Australian financial services (AFS) licence and litigation funding schemes will generally be subject to the managed investment scheme (MIS) regime in Chapter 5C of the Corporations Act.

APRA publishes new frequently asked questions on MySuper Product Heatmap

21 August 2020

The Australian Prudential Regulation Authority (APRA) has published a new set of frequently asked questions (FAQs) concerning the release of the 2020 MySuper Product Heatmap in December 2020. The new FAQs are available on the APRA website at: MySuper Heatmap Frequently Asked Questions.

APRA to recommence prudential policy program and issuing of new licences

10 August 2020

The Australian Prudential Regulation Authority (APRA) announced it will recommence public consultations on select policy reforms and begin a phased resumption of the issuing of new licenses. The policy reforms that will be recommenced in 2020 through a process of public consultation are:

  • the cross-industry prudential standard for remuneration;
  • ADI capital reforms incorporating APRA’s unquestionably strong framework, Basel III and measures to improve transparency, comparability and flexibility;
  • insurance capital reforms to incorporate changes in the accounting framework (AASB 17); and
  • the prudential standard for insurance in superannuation, and updated guidance on the sole purpose test.

APRA publishes Chair Wayne Byres’ Opening Statement to the House of Representatives Standing Committee on Economics

5 August 2020

APRA is focusing on the core function of supervision at a time of heightened risk to the financial system. In doing so, their aim has been to help steer the industry through an unprecedented period, seeking a balance between regulatory flexibility and maintaining a prudent level of resilience. A safe, stable and resilient financial system is an absolutely critical foundation for fostering an economic recovery from COVID-19, Wayne Byres says.

July 2020

All the wonderful things internal dispute resolution should do

30 July 2020

ASIC has released updated requirements for how financial firms deal with consumer and small business complaints under their Internal Dispute Resolution (IDR) procedures. The publication of RG 271 Internal dispute resolution follows extensive consultation with consumer and industry representatives, and will be complemented by a legislative instrument that clarifies the enforceable IDR standards and requirements.

ASIC has given industry until 5 October 2021 to comply with the new IDR standards and requirements, at which time RG 165 Licensing: Internal and external dispute resolution will be withdrawn. Licensees should also remain on the look-out for consultation on the IDR data reporting regime, which was recommended by the Ramsay Review into dispute resolution and complaints framework and passed into legislation in 2018.

Westpac communicates update on Threshold Transaction Report filings

28 July 2020

Westpac has provided an update on a reporting issue related to Threshold Transaction Reports (TTRs), described in its 2020 Interim Financial Results on 4 May 2020. The TTR issues include approximately 175,000 transactions that were not reported to AUSTRAC and approximately 365,000 TTRs that were reported to AUSTRAC but may have contained incomplete or inaccurate information.

Westpac has a dedicated website covering its response to AUSTRAC’s civil proceedings, and has previously announced the setting of aside $900 million to cover the penalty it could face. The scandal has already unleashed a management shake-up in the country’s oldest bank, where the chair, CEO, and other senior executives have been replaced.

The fight for the right to data is won

1 July 2020

There were rounds of applause all around when Open Banking commenced on 1 July 2020. The big four banks are now required to share some customer data, including in relation to deposits, transaction accounts and credit and debit cards, with accredited third parties upon request by the customer. However, there are currently only two accredited data recipients able to receive this data from the big four banks: personal financing fintech Frollo, which boasts Volt Bank among its corporate partners, and customer-owned Regional Australia Bank.

Some institutions, though, are taking a direct to consumer route; Up, a subsidiary of Bendigo and Adelaide Bank, has announced the beta release of the Up API, with aspirations to support third party apps in the future.

Three years in the making, Open Banking is underpinned by four principles – being for and about the consumer, encouraging competition, creating business opportunities, and being efficient and fair for all. With the technical side of things now pretty much sorted, the big job ahead is educating consumers about why and how to get on board.

June 2020

Heat still on some superannuation funds

30 June 2020

APRA has published the first update to its MySuper Heatmap to reflect changes in superannuation fees and costs in the six months since the tool was launched. It found that fund administration fees have largely remained static or risen slightly. Further, the majority of funds that underperformed on fees and costs in the December 2019 Heatmap continued to have relatively high fees despite APRA having intensified its supervision of them.

On the plus side, more than 40 per cent of MySuper members have seen a reduction in fees over the reporting period. The prudential regulator advised that it had not yet updated the sections of the Heatmap focused on investment performance and sustainability because material changes in those areas were expected to take longer to manifest.

ASIC publishes new regulatory guidance for mortgage brokers

24 June 2020

ASIC has published regulatory guidance to assist in the application of the new best interests duty for mortgage brokers. From 1 January 2021, mortgage brokers will be required to act in the best interests of consumers and to prioritise consumers’ interests when providing credit assistance.

ASIC releases guidance on the administration of its product intervention power

17 June 2020

Following consultation, ASIC has released a new regulatory guide on the administration of its product intervention power, together with a report on that consultation

APRA publishes frequently asked question on standardised approach to credit risk-weighted assets

17 June 2020

APRA has published the following frequently asked questions (FAQs) to provide authorised deposit-taking institutions (ADIs) with up-to-date guidance on supervisors’ expectations, during the period of disruption driven by COVID-19.

Investment funds told to correct advertising and disclosure

15 June 2020

ASIC puts responsible entities (REs) of all managed investment schemes (MISs) ‘on notice’ that they must ensure their investment fund advertising provides clear, balanced and accurate information. This follows ASIC’s risk based surveillance  of advertising material, website disclosure and product disclosure statements from managed funds during the COVID-19 pandemic.

Societe Generale Securities Australia Pty Ltd accepts additional AFS license conditions

15 June 2020

ASIC has imposed additional conditions on the Australian financial services (AFS) licence of Societe Generale Securities Australia Pty Ltd (SGSAPL) to ensure compliance with client money regulations. The need for additional conditions arose after SGSAPL reported to ASIC that it had deposited client money into unauthorised bank accounts between December 2014 and September 2018. Client funds must be deposited with Australian authorised deposit-taking institutions or an account prescribed by client money regulations.

ASIC amends financial advice and capital raisings COVID 19 instruments

12 June 2020

ASIC has registered an amending instrument to specify an end date for three COVID-19 related instruments. ASIC had publicly stated that these relief measures were temporary and ASIC would repeal the instruments following the COVID-19 crisis. However, following feedback from the Senate Standing Committee for the Scrutiny of Delegated Legislation, ASIC has decided to amend these instruments to include specific end dates.

ASIC’s Interim Corporate Plan for 2020-21

11 June 2020

ASIC has published its Interim Corporate Plan, which sets out five priorities to tackle the challenges presented by the COVID-19 pandemic:

    • protecting consumers from harm at a time of heightened vulnerability
    • maintaining financial system resilience and stability
    • supporting Australian businesses to respond to the effects of COVID-19
    • continuing to identify, disrupt and take enforcement action against the most harmful conduct, and
    • continuing to build our organisational capacity in challenging times.

Major reforms to Australia’s foreign investment framework

5 June 2020

The Morrison Government is today announcing the most significant reforms to the Foreign Acquisitions and Takeovers Act 1975 since its introduction. These reforms will ensure that our foreign investment framework keeps pace with emerging risks and global developments, including similar changes to foreign investment regimes in comparable countries. The Government will release exposure draft legislation for consultation in July, with the reforms scheduled to commence on 1 January 2021.

Westpac releases findings into AUSTRAC Statement of Claim issues

4 June 2020

Westpac announced the results of its investigation into the Anti-Money Laundering and Counter-Terrorism Financing (AML/CTF) compliance issues, as well as releasing the Advisory Panel Report into Board Governance of AML/CTF Obligations and the Promontory Assurance letter on management’s accountability review.

May 2020

28 May 2020

The Government is making it easier for fintech businesses to trial new products by finalising regulations that will establish an enhanced regulatory sandbox. The sandbox creates a safe environment for fintech firms to test the viability of new products and services without first holding licences. Innovative firms now have 24 months to test their products with customers in the sandbox before obtaining a financial services licence or a credit licence from the Australian Securities and Investments Commission (ASIC). The enhanced sandbox will be available from 1 September 2020.

25 May 2020

Given the impact of the Coronavirus crisis and the uncertainty it continues to generate, it has been considerably more difficult for companies to release reliable forward-looking guidance to the market. Therefore, the Government will temporarily amend the Corporations Act 2001 (the Act) so that companies and officers’ will only be liable if there has been “knowledge, recklessness or negligence” with respect to updates on price sensitive information to the market.

22 May 2020

The Morrison Government is ensuring that litigation funders are subject to greater regulatory oversight by requiring them to hold an Australian Financial Services Licence (AFSL) and comply with the managed investment scheme regime. These changes complement the inquiry being undertaken by the Parliamentary Joint Committee on Corporations and Financial Services into litigation funding and the regulation of the class action industry which is due to report by 7 December 2020.

ASIC defers commencement of mortgage broker reforms and design and distribution obligations

8 May 2020

ASIC will defer the commencement date for the mortgage broker reforms until 1 January 2021. ASIC will defer the commencement date for the design and distribution obligations until 5 October 2021. The deferral of these reforms follows, and is consistent with, the Government’s announcement today to defer by six months the implementation of commitments associated with the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry as a result of the significant impacts of COVID-19.

8 May 2020

The Morrison Government has today announced a six month deferral to the implementation of commitments associated with the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry as a result of the significant impacts of the coronavirus.

The deferral will enable the financial services industry to focus their efforts on planning for the recovery and supporting their customers and their staff during this unprecedented time.

ASIC warns consumers: Investment advertising is not always ‘true to label’

ASIC warns consumers about investment advertising that compares fixed-term investment products to bank term deposits. A surge in such marketing of fixed-term investment products in recent months has prompted ASIC to caution consumers to take care making investment decisions based on such advertising. “Be wary of investments that claim to be ‘like’ a ‘term deposit’, ASIC Deputy Chair Karen Chester said.

Brush up on your RG234 obligations with our Marketing Financial Products short course.

APRA publishes frequently asked questions on loan repayment deferrals and residential mortgage lending

The Australian Prudential Regulation Authority (APRA) has published guidance for authorised deposit-taking institutions (ADIs) on supervisors’ expectations during the period of disruption driven by COVID-19.

The frequently asked questions (FAQs) cover the following topics:

  • The regulatory capital approach for loan repayment deferrals
  • Clarification of APRA’s guidance for serviceability assessments in Prudential Practice Guide APG 223 – Residential Mortgage Lending.

The FAQs will be updated periodically over coming months, and are available on the APRA website at: Banking COVID-19 frequently asked questions.

April 2020

APRA commences new data collection to assess temporary early release of superannuation scheme

Complementing the Government’s announcement that super members facing financial hardship during the COVID-19 pandemic could be eligible for early access to some of their funds from 20 April 2020, APRA launched a new data collection initiative.

Registrable superannuation entity (RSE) licensees have been asked to gather and submit a range of information, including the number and value of early release benefits paid to superannuation members and the processing times of those payments. The first Early Release Initiative (ERI) data collection was due on 29 April 2020 for information as at 26 April 2020, with RSEs to submit ERI data collection forms weekly until further notice.

Statistics reported by the Australian Financial Review indicate that at least 100,000 requests had been lodged by members of retail super funds in the first few days since the scheme commenced. Link Administration Services, which is processing withdrawal applications on behalf of more than two-dozen funds mainly from the industry super sector, had handled 280,000 requests – roughly 62 per cent of the overall applications made through the ATO at the time. Later analysis from the Association of Superannuation Funds of Australia (ASFA) suggested that around 855,000 payments totalling some $7.1 billion had been made from super funds to individuals by the end of April.

APRA intends to publish official data at both the industry and fund level, with the first report having been released on 4 May 2020.

Government looks to bend Super rules

Treasury recently closed consultation on “Improving flexibility of superannuation for older Australians”.

The exposure draft Bill and Regulations are intended to give effect to the measure: Superannuation – improving flexibility for older Australians announced in the 2019-20 Budget, which the Government is targeting becoming effective from 1 July 2020.

The amendments to the SIS Regulations and corresponding changes to the Retirement Savings Accounts Regulations will allow people aged 65 and 66 to make voluntary contributions without meeting the work test, and people aged 70 to 74 to receive spouse contributions.

ASIC enforcement update July to December 2019

ASIC has released REP 660 ASIC enforcement update July to December 2019.

As well as outlining key actions taken over the past six months to enforce the law and support its enforcement objectives, the report covers ASIC’s ongoing areas of focus, including a foreword from Deputy Chair Daniel Crennan QC discussing the Office of Enforcement’s strategy and priorities for 2019 to 2021.

ASIC commences proceedings against Youi Pty Ltd

ASIC has commenced proceedings in the Federal Court against Youi Pty Ltd (Youi) for alleged breaches of section 13 of the Insurance Contracts Act 1984, in relation to Youi’s duty of utmost good faith in handling a building and contents insurance claim made by a policyholder.

ASIC alleges that Youi, which was an Insurance Case Study detailed in Volume 2 of the Final Report of the Financial Services Royal Commission, failed to meet the standard imposed by the duty in handling the claim as it took nearly two years to settle. The policyholder first made an insurance claim in January 2017 following a severe hailstorm in their home town of Broken Hill in November 2016, but repairs to the home took until November 2018 to finally be completed.

With the Government recently consulting on Exposure Draft legislation to regulate insurance claims handling as a financial service, ASIC looks forward to the changes, if passed, enhancing its ability to promote fair, transparent and timely claims handling.

Betting over S&P/ASX 200 index highlights failures in controls

In mid-April ASIC intervened after betting agency Sportsbet launched a product earlier that month which enabled punters to bet each day on whether the S&P/ASX 200 Index would end the session higher or lower.

ASIC said the bets constituted binary option-style trades, a financial product Sportsbet was not licensed to offer and which the regulator had recently consulted on banning the sale of.

After Sportsbet suggested that having many staff operating under work-from-home arrangements posed challenges in implementing its control framework, ASIC reminded firms to ensure that their business continuity plans and alternative working facilitated them maintain robust monitoring and supervision controls to ensure financial services were provided efficiently, honestly and fairly.

ASIC grants relief to industry to provide affordable and timely financial advice during the COVID-19 pandemic

In the wake of the Government introducing measures to allow individuals facing particular financial hardship to access their superannuation early, ASIC announced temporary relief measures to assist industry in providing consumers with affordable and timely advice during the COVID-19 pandemic.

The relief measures relating to consumers’ early access to superannuation comprise:

  • allowing advice providers not to give a statement of advice (SOA) to clients when providing advice about early access to superannuation;
  • permitting registered tax agents to give advice to existing clients about early access to superannuation without needing to hold an Australian financial services (AFS) licence; and
  • issuing a temporary no-action position for superannuation trustees to expand the scope of personal advice that may be provided by, or on behalf of, the superannuation trustee as ‘intra-fund advice’.

Additionally, financial advisers were granted temporary relief to provide a Statement of Advice up to 30 business days after time-critical advice is given (instead of the usual 5 business days), and to provide a Record of Advice in place of an SOA to existing clients in certain circumstances.

Regulators release feedback on financial institutions’ preparation for LIBOR transition

In a joint media release, ASIC, APRA and the Reserve Bank of Australia announced that they had released feedback on responses received from selected major Australian financial institutions which were requested, via a ‘Dear CEO’ letter, to detail their current state of preparation for the end of London Interbank Offered Rate (LIBOR).

ASIC said it was vital that Australian institutions were aware of any business practices or systems that depend on LIBOR and were taking appropriate actions. Market participants are encouraged to assess the extent of their use of LIBOR and to start their transition to alternative rates.

Institutions are also being urged to communicate and highlight the potential impacts of LIBOR transition to their stakeholders, including end consumers, to raise awareness of the issues more broadly. LIBOR is set to be phased out globally by the end of 2021.

Fighting financial crime together – SMRs during the COVID-19 pandemic

AUSTRAC is warning reporting entities to be on the lookout for shifts in the risks that criminals may pose to the financial system and the community as a result of the COVID-19 pandemic. Areas of criminal exploitation identified by AUSTRAC where the financial system may be more vulnerable include:

  • Targeting of government assistance programs through fraudulent applications and phishing scams
  • Movement of large amounts of cash following the purchase or sale of illegal or stockpiled goods
  • Out of character purchases of precious metals and gold bullion
  • Exploitation of workers or trafficking of vulnerable persons in the community
  • An increase in the risk of online child exploitation following restrictions on travel
  • A rise in extremist views either against members of the community or the government.

Reporting entities are encouraged to monitor for new and emerging threats and to submit suspicious matter reports (SMRs) to AUSTRAC.

March 2020

APRA outlines changes in reporting obligations for ADIs and RFCs in response to COVID-19

The Australian Prudential Regulation Authority (APRA), along with the Reserve Bank of Australia (RBA) and Australian Bureau of Statistics (ABS) (the agencies), announced changes to the reporting obligations of ADIs and RFCs. These changes are intended to balance the need for entities to dedicate time and resources to maintaining their operations and supporting customers, against the increased need for timely, accurate data for use in the rapidly changing environment.

Monday 16 March 2020

As part of the Australian Government’s response to the novel coronavirus (COVID-19), ASIC has taken steps to ensure Australian equity markets remain resilient.

In addition to increasing volumes, Australia’s equity markets have seen exponential increases in the number of trades executed, with a particularly large increase in trades last Friday, 13 March. While there was no disruption to market operations on Friday, there was a significant backlog of work required to be undertaken over the weekend by the exchanges and trading participants. If the number of trades executed continues to increase, it will put strain on the processing and risk management capabilities of market infrastructure and market participants.

Westpac and AUSTRAC still progressing but still some way off settlement, court hears

The Sydney Morning Heald is reporting that AUSTRAC and Westpac are moving towards a settlement that includes some admissions by the bank over its alleged 23 million breaches of its obligations under AML/CTF legislation.

After the court ordered the regulator and Westpac to produce a partial statement of agreed facts and admissions, AUSTRAC pushed back on the grounds that various matters remained in dispute.

However, Chief Justice Allsop found in favour of Westpac counsel that there was a large body of underlying primary factual material that the bank and regulator could agree to, and gave notice that the parties should assume this case was on for a hearing during summer 2020-21.

AUSTRAC and Westpac have been in mediation for some time and that mediation remains ongoing, the SMH reports.

Treasury and the consultation factory

Document handlers at Treasury have been kept busy in recent months, with consultation open on several initiatives, including many arising from the Financial Services Royal Commission. Our top picks are:

  • Financial Services Royal Commission – Enhancing consumer protections and strengthening regulators – the grandaddy of recent consultations addressing all manner of matters covering breach reporting, enforceability of financial services industry codes, ongoing fee arrangements and disclosure of lack of independence, and the governance and selling of superannuation and insurance
  • Financial Accountability Regime (FAR) – the Government announced it would implement recommendations 3.9, 4.12, 6.6, 6.7 and 6.8 of the Financial Services Royal Commission to extend the Banking Executive Accountability Regime (BEAR) to all APRA regulated entities and provide joint administration to ASIC as the conduct regulator
  • Enhancements to Unfair Contract Term Protections – with the Government having undertaken a review of unfair contract term protections for small business contracts two years after they were first introduced in 2016, Treasury is seeking feedback on policy options to address issues identified by the UCT Review; and views on whether any enhanced UCT protections for small business contracts should also be extended to consumer and insurance contracts to ensure consistency in the wider operation of the protections.

ASIC sheds light on funeral expenses reform

ASIC has issued Information Sheet 243 Licensing requirements for providers of funeral expenses facilities for providers of funeral expenses facilities. Recent changes to the Corporations Regulations mean that entities who sell funeral expenses facilities will generally be required to hold an Australian financial services licence (and therefore meet associated obligations) from 1 April 2020.

The Financial Services Royal Commission had recommended that the exemption for funeral expenses policies from being a ‘financial product’ under the Corporations Act and the Corporations Regulations should be removed, after identifying harm to vulnerable consumers.

ASIC consults on proposals about advice fee consents and independence disclosure

ASIC has issued CP 329 Implementing the Royal Commission recommendations: Advice fee consents and independence disclosure. CP 329 seeks feedback on:

  • draft legislative instruments that deal with advice fee consents and independence disclosure; and
  • a proposal to issue more guidance in RG 245 Fee Disclosure Statements to help industry meet obligations around ongoing fee arrangements, including renewal notices and fee disclosure statements.

ASIC’s response complements action Treasury has undertaken, namely consulting on exposure draft legislation to implement Recommendations 2.1, 2.2 and 3.3 of the Royal Commission.

ASIC’s consultation on CP 329 closes 7 April 2020 in order to ensure that the form of the proposed ASIC instruments is settled ahead of the proposed 1 July 2020 commencement of the law reform. ASIC also anticipates making updates to RG 245 in mid-2020.

February 2020

APRA sets out policy and supervision priorities for 2020

APRA has set out its policy and supervision priorities for the next 12 to 18 months with an emphasis on fulfilling the four strategic goals of its Corporate Plan:

  • maintaining financial system resilience
  • improving outcomes for superannuation members
  • improving cyber-resilience in the financial sector
  • and transforming governance, culture, remuneration and accountability (GCRA) across all APRA-regulated institutions.

More specifically, its supervision priorities include using entity self-assessments to drive greater accountability and compliance, and encouraging underperforming superannuation funds to urgently improve member outcomes or exit the industry.

ASIC update on enforcement and regulatory work

ASIC has published the latest six monthly update on its enforcement and regulatory work since September 2019. The update covers ASIC’s implementation of the recommendations of the Financial Services Royal Commission (FSRC), progress on referrals and case studies arising from the FSRC, its enhanced supervision program and how it is using its new regulatory tools and powers to identify and address misconduct and poor consumer outcomes.

ASIC consults on draft guidance on the new best interests duty for mortgage brokers

ASIC commenced a four week consultation on draft guidance about the new best interests duty for mortgage brokers. The new obligations were legislated by Parliament in response to Recommendation 1.2 of the Financial Services Royal Commission.

Consistent with the legislation, the draft guidance outlined in CP 327 Implementing the Royal Commission recommendations: Mortgage brokers and the best interests duty is high-level and principles-based, but also incorporates practical examples. ASIC plans for the guidance to explain the obligations introduced by the Government, but not prescribe conduct or impose additional requirements.

With consultation having closed 20 March 2020, ASIC intends to publish final guidance before the obligations commence on 1 July 2020.

ASIC and APRA welcome law reform on superannuation regulator roles

ASIC and APRA have jointly welcomed the proposed legislative reforms increasing the role of ASIC in superannuation in line with recommendations from the Financial Services Royal Commission.

The reforms, circulated by Treasury for consultation on 31 January 2020, include expanding ASIC’s role as conduct regulator while retaining APRA’s important role as the prudential and member-outcomes regulator in superannuation.

The changes to ASIC’s role will be accompanied by an enhancement in the close co-operation and collaboration between the two regulators, already strengthened by updates to their Memorandum of Understanding undertaken in November last year.

It’s no fun reading super trustees’ PYSP communications

ASIC’s recent review of superannuation trustees’ communications about changes introduced through the Treasury Laws Amendment (Protecting Your Superannuation Package) Act 2019 (PYSP) has found that the material sent to members did not provide sufficient context for the reforms nor adequately explain what the changes meant for them.

The PYSP reforms were designed to benefit members with low superannuation balances (below $6,000) and those with accounts that have been inactive for 16 months. In REP 655, ASIC suggests that some communications used complex language, promoted a particular option that may not have been suitable for the member, or failed to include relevant information about the member’s existing superannuation arrangements that would have been helpful.

ASIC Commissioner Danielle Press urged super trustees to “take a member-centric approach to designing and delivering their PYSP communications. They must ask themselves: ‘Will this approach help my members make decisions in their interest?’”

AMP to pay $5.175 million penalty

The Federal Court has ordered AMP to pay a $5.175 million penalty after it found AMP failed to take reasonable steps to ensure its financial planners complied with the best interests duty and related obligations under the Corporations Act.

ASIC alleged that a number of AMP’s financial planners engaged in ‘rewriting conduct’, i.e. advice that results in the cancellation of the client’s existing insurance policies and the taking out of similar replacement policies by way of a new application rather than through a transfer. Through this practice, clients were exposed to a number of significant risks and the planners received higher commissions than they would have by simply transferring the policies.

While proceedings focused on the conduct of one particular planner, the court agreed with ASIC’s contention that with AMP having offered no evidence that it had ascertained the extent of breaches by other planners as requested by ASIC, the practice of rewriting conduct may have been more widespread.

January 2020

APRA sets out policy and supervision priorities for 2020

Thursday 30 January 2020

The Australian Prudential Regulation Authority (APRA) has set out its policy and supervision priorities for the next 12 to 18 months with an emphasis on fulfilling the four strategic goals of its Corporate Plan: maintaining financial system resilience; improving outcomes for superannuation members; improving cyber-resilience in the financial sector; and transforming governance, culture, remuneration and accountability (GCRA) across all APRA-regulated institutions.

APRA Chair Wayne Byres said it was essential that both APRA, and the industries it regulates, continue to adapt to changing circumstances and new challenges.

“As a risk-based and preventative regulator, APRA must continually reassess its priorities not just in response to past events, but also to risks and vulnerabilities that may be on the horizon”. Read more

November 2019

November 2019

ASIC wins appeal against Westpac subsidiaries

The Full Federal Court has ruled in ASIC’s favour, finding that in calls to 14 of 15 customers in two telephone campaigns conducted by members of Westpac’s Super Activation Team, the Westpac staff did provide them personal advice, in breach of the Australian financial services licences of two Westpac subsidiaries. The Full Court also found that by providing personal advice to their customers, the Westpac entities failed to comply with other financial services laws in the Corporations Act, including the ‘best interests duty’.

While not exactly the death knell for general advice, this case highlights some important issues for market intermediaries, such as how telesales are designed and closed, customer relationships of trust and what acting in ‘best interest’ means, ethical use of techniques such as social proofing, and the timing and nature of regulatory requirements such as general advice warnings and other disclosures. With implementation of Royal Commission recommendations well underway, design and distribution obligations being phased in, and long awaited review of RG 146 looming, the whole industry should keep an eagle eye on developments in this area.

ASIC gives guidance on companies’ whistleblower policies

ASIC has issued RG 270 Whistleblower policies to help companies establish policies that support and protect whistleblowers. The Regulatory Guide sets out the components that a whistleblower policy must include to comply with the law, and provides good practice guidance to assist companies develop and implement policies that are tailored to their operations.

As part of corporate sector whistleblower reforms, public companies, large proprietary companies, and proprietary companies that are trustees of registrable superannuation entities must have a whistleblower policy available to their officers and employees by 1 January 2020, supplementary to whistleblower protections in the Corporations Act that took effect for all companies from 1 July 2019.

ASIC action leads to CommInsure refunds for unfair life insurance telephone sales

Following concerns raised by ASIC about unfair telephone sales of life insurance, The Colonial Mutual Life Assurance Society Limited (trading as CommInsure) has conducted a remediation program expected to be finalised by the end of 2019. Refunds exceeding $12 million are to some 30,000 policyholders who were Commonwealth Bank customers between 2010 and 2014 and were sold a range of life insurance products via telemarketing calls by Aegon. CommInsure has also pleaded guilty to 87 counts of offering to sell insurance products in the course of unlawful, unsolicited telephone calls, contrary to s992A(3) of the Corporations Act – conduct colloquially known as ‘hawking’.

While CommInsure progressively ceased all outbound telemarketing of life insurance by December 2014, ASIC Deputy Chair Daniel Crennan QC commented on the conduct in question, saying “ASIC is concerned that the way in which these products were sold was manifestly unfair, with customers given insufficient information to make an informed decision”. ASIC identified concerning sales practices by CommInsure in its report released in August 2018, REP 587 The sale of direct life insurance.

REP 632 Disclosure: Why it shouldn’t be the default

A joint publication by ASIC and the Dutch Authority for Financial Markets has explored the effectiveness of disclosure and warnings in influencing consumer behaviour.

ASIC, in collaboration with its Dutch counterpart, spotlight the multiple cases where disclosure has been less effective than intended, ineffective or has actually backfired. The report identifies key limits of disclosure, supported by 33 case studies. A timely examination of this issue in the wake of the Financial Services Royal Commission and passing of design and distribution obligations legislation.

ASIC warns trustees on new rules for Putting Members’ Interests First

ASIC has called on superannuation trustees to improve the standard of communication to fund members about important reforms impacting member insurance arrangements. As a result of the recent Putting Members’ Interests First reforms, by 1 December 2019 superannuation trustees are required to write to members with a balance of less than $6,000. These members must be notified that their insurance cover may cease from 1 April 2020 unless they opt-in to continue this cover. By 1 April 2020, insurance is not to be provided to members who have an account balance less than $6,000 or for members under-25 years old, unless the member has elected in writing to take out or maintain insurance.

ASIC expects trustees to help their members understand the impact of the reforms on them and make good decisions by:

  • providing balanced and factual communications, that include appropriate context about the reforms, and
  • tailoring communications to the needs of their members.

Dirty money spotlight on estate agents

An afr story revisits the Financial Action Taskforce’s latest report on Australia, which found that Australia is falling short on some counts, particularly in relation to real estate agents, lawyers and accountants still being only partially regulated under current AML/CTF rules. Regulatory reform has been slow, considering it has been proposed since 2013. Meanwhile, New Zealand, UK, Canada, Singapore, Hong Kong, and Malaysia are among regions introducing laws to cover these sectors, currently classified as ‘designated non-financial businesses or professions’ under global AML/CTF standards.

AUSTRAC releases mutual banking sector risk assessment

AUSTRAC has urged Australia’s mutual banking sector to take note of its latest money laundering and terrorism financing risk assessment report specific to the sector. The financial crime watchdog finds that while the mutual banking sector has a high level of vulnerability to financial crime, particularly as a target for such fraudulent activity as identity theft and scams, tax evasion, and welfare fraud, the overall money laundering and terrorism financing risk is Medium.

European Securities and Markets Authority and ASIC to co-operate on benchmarks

The European Securities and Markets Authority (ESMA) and ASIC announced that they have signed a Memorandum of Understanding setting out cooperation arrangements in respect of Australian benchmarks. In July 2019, the European Commission recognised Australia’s legal and supervisory framework applicable to the administrators of certain financial benchmarks as equivalent to the corresponding requirements under EU Benchmarks Regulation, and deemed that those requirements are subject to effective supervision and enforcement.

The MoU signed will allow benchmarks declared significant by ASIC (BBSW, S&P/ASX 200, Bond Futures Settlement Price, CPI, and Cash Rate) to be used in the EU by EU-supervised entities.

ASIC’s Vision for a Fair, Strong and Efficient Financial System for all Australians

Keynote address by ASIC Commissioner Sean Hughes at the ARCA National Conference, Gold Coast, 14 November 2019

ASIC Commissioner, Sean Hughes, discussed the following at the Australian Retail Credit Association conference:

  • Why does responsible lending matter?
  • Why is ASIC updating its guidance, and why now?
  • What does an update to the guidance mean and what will it achieve?
  • Some misconceptions about responsible lending.

Read the full speech here.

October 2019

October 2019

ASIC runs ruler over non-financial risk

ASIC Chair James Shipton launched a report on director and officer oversight of non-financial risk at a recent Australian Institute of Company Directors event.

The report was a write-up of the first in a series of reviews via which ASIC’s Corporate Governance Taskforce will examine corporate governance practices. Consistent with its overall supervisory approach, ASIC says practical insight into what actually goes on inside companies facilitates the identifying of problems before they become breaches; and heightens engagement, assessment and feedback loops between regulated entities and ASIC.

Improving governance and accountability is one of ASIC’s seven key strategic priorities for the year ahead.

Why shouldn’t I, shouldn’t I be famous?

We can answer that. Being good is no longer good enough, with Treasury recently wrapping up consultation on beefing up ASIC’s licensing, banning and information gathering powers.

Most notably, the ‘good fame and character’ requirement for AFS licensees looks set to be replaced by the ongoing requirement that they be a ‘fit and proper person’ – a test that already applies to Australian Credit licensees and APRA-regulated institutions.

Changes will also expand the grounds on which ASIC can issue banning orders as well as their scope.

Soon your organisation will really need to be careful about why someone’s picture ends up in the paper.

Treasury homes in on mortgage pricing

The Federal Government has directed the ACCC to immediately commence an inquiry into home loan pricing. The ACCC is to investigate a wide range of issues, including:

  • the rates paid by new versus existing customers
  • how the cost of financing for banks affects their rate setting decisions
  • why RBA cuts aren’t always passed on in full
  • the information consumers use to choose their loan supplier
  • barriers to more consumers switching to cheaper home loans.

The inquiry comes a week after banks denied existing customers were paying a “loyalty tax” and will build on the ACCC’s Residential Mortgage Inquiry, which handed its final report in December 2018.

The ACCC is expected to produce a preliminary report by the end of March 2020, with a final report due 30 September 2020.

Non-major lenders can’t rest easy, though, with the House of Representatives standing committee on economics calling up a few to face questioning over their implementation of Financial Services Royal Commission recommendations at the end of November.

Lid closing on funeral expenses policies consultation

Treasury has released for consultation:

  • draft regulations to remove the exemption for funeral expenses policies from the definition of financial products for the purposes of the Corporations Act; and
  • draft legislation to ensure that it is clear that the consumer protection provisions of the ASIC Act apply to funeral expenses policies.

As a result, from 1 April 2020 funeral expenses policy providers could be subject to a variety of obligations including:

  • the requirement to hold an Australian financial services licence;
  • the general conduct obligation to act efficiently, honestly and fairly; and
  • anti-hawking provisions.

Consultation on the changes, which address recommendation 4.2 of the Financial Services Royal Commission, closes 18 October 2019.

Consumer watchdog sinks teeth into Banking Code amendments

The ACCC is ruminating on the Australian Banking Association’s Banking Code of Practice to ensure the revised Code will benefit low-income consumers and drought-affected farmers.

Among other measures, revisions aim to improve basic bank accounts and low or no-fee accounts by prohibiting informal overdrafts unless requested by the customer, and dishonour fees.

However, the ACCC contends that basic bank accounts could still be overdrawn without the customer’s agreement in some circumstances, with banks able to continue to charge interest on overdrawn amounts.

Therefore, it wants to strengthen the changes by imposing conditions that would:

  • not allow interest to be charged in these cases
  • require any such interest charges to be repaid to the customer.

ASIC points high beams on add-on financial products

ASIC is now consulting on its proposal to use its product intervention power to reform the sale of add-on insurance and warranty products by car yards.

ASIC wants to apply a deferred sales model and additional obligations to the offering of add-on insurance products and warranties where finance is also arranged for purchase of a motor vehicle.

Consultation on the measures, which would cover car dealers, finance brokers and salary packaging firms, closes 12 November 2019.

Question, tell me what you think about an SMSF

ASIC is urging consumers to properly evaluate whether an SMSF is appropriate for their circumstances.

While potential benefits might stem from using an SMSF, ASIC and Productivity Commission research finds that this strategy might not be suitable for people who want a simple superannuation solution, particularly those that have low financial literacy or limited time to manage their own financial affairs.

Recent ATO figures again reveal that total assets held in SMSFs remain larger than those in either industry or retail funds.

ASIC faces fight to curb alleged predatory lending

ASIC used its product intervention power to ban a model of lending whereby a short-term credit provider and its associate charge fees under separate contracts.

One of the affected entities, Cigno, immediately sought Federal Court review of ASIC’s decision, in a bid to have the Product Intervention Order Instrument quashed.

With retail OTC derivatives also in ASIC’s crosshairs, there’s further argy bargy to come as more industry sectors scrutinise the regulator’s exercising of its new powers.

Short bites

September 2019

September 2019

ASIC update on Royal Commission implementation 19-249 MR

Wednesday 11 September 2019

ASIC has provided its second update on its actions in response to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Royal Commission).

The Update outlines a number of measures across the organisation by which ASIC is implementing the seven priorities highlighted in its Corporate Plan 2019-23, one of which is to prioritise the recommendations and referrals from the Royal Commission.

ASIC suing mid-tier banks for use of unfair contract terms

True to a pledge that it’ll be less reticent to metaphorically don the wigs and robes going forward, ASIC has commenced proceedings in the Federal Court against Bank of Queensland and Bendigo and Adelaide Bank concerning unfair contract terms in small business contracts.

ASIC alleges that certain terms used by both institutions were unfair, as the terms:

  • cause a significant imbalance in the parties’ rights and obligations under the contract;
  • were not reasonably necessary to protect the banks’ legitimate interests; and
  • would cause detriment to the small businesses if the terms were relied on.

Responsible lending

ASIC has concluded its Responsible Lending hearings in Sydney and Melbourne. Areas that licensees commonly appeared to want new or revised guidance on included:

  • Evaluating serviceability, including classifying income and expenses; use of benchmarks; and the extent to which it can be assumed that a borrower does willingly and wilfully change their lifestyle post loan approval (see also ASIC’s response to Westpac case judgement)
  • What constitutes an assessment versus a recommendation, and the documenting of each.

Stay tuned for ASIC’s reply, particularly an updated RG 209 by the end of this year.

New whistleblower rules

ASIC has called for public input on its proposed guidance on companies’ new obligation to implement a whistleblower policy.

Public companies, large proprietary companies and corporate trustees of registrable superannuation entities must implement a whistleblower policy and make it available to their officers and employees by 1 January 2020.

This requirement was introduced as part of the reforms to the corporate sector whistleblower regime that commenced on 1 July 2019. Don’t hold your breath for too long; consultation is only open for another week until 18 September 2019.

Regulator intervention in retail OTC derivatives

ASIC is consulting on a proposal to use its new product intervention power to ban the sale of binary options to retail clients, and to apply restrictions on the sale of CFDs. While most measures align Australia with action taken by other jurisdictions, unique ones relating to real-time disclosures have served as hair-raising warnings to the sector. Comments close 1 October 2019.

Coincidentally, ASIC has released a related report, REP 626 Consumer harm from OTC binary options and CFDs.

Jury still out on financial advice and home loan experiences

ASIC has released consumer research, REP 627 Financial advice: What consumers really think, which focused on the overall use of financial advisers, motivators and barriers to seeking personal advice, and consumer attitudes towards the financial advice industry.

While Australians believe financial advisers can offer significant expertise on financial matters, ASIC’s research shows that many don’t seek advice because they are put off by assumed high costs, significant distrust of the industry, and a perception that financial advice is only for the wealthy.

This report was soon followed by REP 628 Looking for a mortgage, which sets out findings from research ASIC commissioned to better understand consumer experiences and expectations when taking out home loans.

Xinja wins duel for full banking licence

After seemingly slow starts and fierce operational decision-making over whether to get a full banking licence, take the interim restricted ADI route, or piggy-back ride on an existing bank, consumers should expect a flurry of product launches from neobanks soon.

With Volt graduating to a full licence in January 2019, and Judo and 86 400 being awarded theirs in recent months, Xinja earning its this month should see challenger banks racing each other to join the likes of Up and Douugh in offering new transaction accounts and loans to consumers and small business.

APRA closes consultation on proposed approach to product responsibility

In a consultation letter, APRA has outlined its proposed approach to implementing end-to-end product accountability under the Banking Executive Accountability Regime. The proposal aims to enhance customer experience and outcomes by addressing a Financial Services Royal Commission recommendation that ADIs should assume responsibility for all steps in the design, delivery and maintenance of all products offered to customers, and any necessary remediation of customers in respect of any of those products.

Consider APRA’s approach complementary to product governance provisions included in the design and distribution obligations that ASIC-licensed financial services organisations will soon be subject to.

Treasury consults on various dedicated and cross-industry measures

It’s been a busy month for Treasury’s inbox, with submissions likely flooding in as it consults on a number of topical issues, including:

  • Digital Platforms Inquiry
  • Mandatory Comprehensive Credit Reporting and Hardship Arrangements
  • Mortgage broker best interests duty and remuneration reforms
  • Regulation of mortgage brokers as financial advisers (which could create an environment in which a stronger case can be made for FEP to deliver a mortgage and finance broking qualification)
  • Reforms to the sale of add-on insurance products.


Here’s a refresher on other key matters, in case you didn’t find them all that gripping the first time around:

August 2019

August 2019

ASIC’s Corporate Plan 2019-2023

Wednesday 28 August 2019

ASIC’s Corporate Plan 2019-20 to 2022-23 sets out our change agenda and regulatory priorities. It explains how we will act strategically to address misconduct in the financial system and improve consumer outcomes.

The BEAR gets bigger

On 1 July, the Banking Executive Accountability Regime (BEAR) commenced for all medium and small authorised deposit-taking institutions, including banks, credit unions and building societies. The purpose of the BEAR is to drive a strong risk culture from the top down by ensuring directors and executives in ADIs are held appropriately accountable for their actions and decisions.

APRA strengthens rules to combat contagion risk within banking groups

20 August 2019

The Australian Prudential Regulation Authority (APRA) has released a strengthened prudential standard aimed at mitigating contagion risk within banking groups. The updated Prudential Standard APS 222 Associations with Related Entities (APS 222) will further reduce the risk of problems in one part of a corporate group having a detrimental impact on an authorised deposit-taking institution (ADI). The new APS 222 will come into effect from 1 January 2021. Copies of APRA’s Response Paper, the updated prudential standard and reporting standards are available at:

Financial Services Royal Commission Implementation Roadmap

On 19 August 2019, the Government released its Financial Services Royal Commission Implementation Roadmap setting out how it will deliver on its comprehensive response to the Royal Commission. The Roadmap provides timelines for implementing the Government response, giving clarity and certainty to consumers, industry and regulators.

Further consultation on Credit Licensing: Responsible lending conduct

ASIC has concluded its Sydney round of public hearings on responsible lending. The line-up included a mix of major banks, non-bank lenders, industry associations and ancillary service providers. Next stop Melbourne.

APRA fines Westpac for failing to meet legal reporting requirements

8 August 2019

APRA is reminding regulated entities to adhere to legal reporting requirements, with Westpac and two of its subsidiaries set to pay a hefty cumulative penalty for failing to report data by the required deadlines.

Consumer Data Right legislation has finally passed

1 August 2019

Financial services and other industries must now come together to make Open Banking implementation purposeful and beneficial for consumers. Under Open Banking, consumers will be able to access and safely transfer their banking data to trusted parties.

July 2019

July 2019


FASEA has been working with ACER to ensure the exam registration process is streamlined, accessible and effective and exam sitting opportunities are optimised.

APRA’s response to the Capability Review report

On 17 July 2019, the Australian Government released a Capability Review report examining APRA’s ability to continue to meet its mandate into the future.

Design and Distribution Obligations (DDO) and Product Intervention Powers (PIP) regime underway

The Treasury Laws Amendment (Design and Distribution Obligations and Product Intervention Powers) Act 2019 received Royal Assent on 5 April 2019. Generally, it applies to financial products and credit products that are issued and distributed to retail customers. Who could it affect in the short term, and what might it mean for your organisation?

Codes of practice

The new Banking Code of Practice came into on 1 July 2019. The Code is a set of enforceable standards that customers, small businesses, and their guarantors can expect from Australian banks.

BEAR and BEAR-like accountability regimes

BEAR provides an important new framework for promoting stronger accountability in the banking sector, but more than the BEAR alone is needed if financial institutions truly wish to demonstrate accountability.

Corporate Solutions

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