Australian regulators weekly wrap — Monday, 31 January 2022

Keeping on top of the latest financial services regulatory & compliance trends?

Investing time in your professional development within a rapidly changing financial services industry is challenging. To meet that challenge, the Australian regulators weekly wrap is designed to keep you at forefront of your practice by quickly setting out the top 5 developments from the past week, analysis and practical considerations for the future.

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1. Electronic surveillance laws (Home Affairs): the Government has released the Reform of Australia’s electronic surveillance framework discussion paper. The discussion paper seeks early views to inform the development of a new framework, and provides an overview of how the Government proposes to reform Australia’s electronic surveillance legislative framework. The protection of, and access to, private information and data by law enforcement is governed by a range of legislation. The reform project aims to repeal the TIA Act, SD Act and relevant parts of the ASIO Act, and replace the current patchwork of laws with a single, streamlined and technology neutral Act. The discussion paper is broken up into four areas of focus for the Government. Part 1: Who can access information under the new framework?; Part 2: What information can be accessed?; Part 3: How can information be accessed? Part 4: When will information be accessed? Submissions close on 11 February for what in my view is a very sensible project. The current has really struggled to keep pace, and it shows in the number of amendments made and the hodgepodge of application legislation….
2. Corporate criminal liability (ALRC): The ALRC’s eighth recommendation in its Corporate Criminal Responsibility Report was that ‘the Australian Government should introduce offences that criminalise contraventions of prescribed civil penalty provisions that constitute a system of conduct or pattern of behaviour by a corporation’. The ALRC recommended the enactment of this system of conduct offence in specific regulatory contexts as an adjunct to ordinary criminal offences (such offences being applied to corporations through methods of attribution). Now we are starting to see some excellent papers from Walpole and Corrigan, both at the ALRC, on how this could occur. The article is here — my top read for the week — wherein the authors argue that: “…the enactment of a novel type of offence tailored to corporations, and targeting corporate systems of conduct and patterns of behaviour, would enhance the law’s ability to respond to contemporary corporate misconduct”. Provided it is properly calibrated, and the ALRC stays away from using the BEAR/FAR framework to attribute criminality (its original thought bubble), I agree.
3. Scammers (ACCC): the ACCC has released an updated ‘The Little Black Book of Scams’ for consumers and small businesses to learn about scams including: the most common scams to watch out for; the different ways scammers can contact you; the tools scammers use to trick you; the warning signs; how to protect yourself, and where you can find help. An excellent resource by the ACCC, I think the general admonitions at the back on the ‘anatomy of a scam’ are particularly well done.
4. Business introduction (ASIC): ASIC is seeking feedback on proposed changes to the relief for business introduction services. [CO 02/273] Business introduction and matching services, gave conditional relief from the fundraising, financial product disclosure, hawking and advertising requirements in the Corporations Act 2001 that would apply to a person making or calling attention to offers of securities or interests in a registered managed investment scheme through a business introduction service. That relief is due to expire on 1 April 2022. Consultation Paper 357 Remaking relief for business introduction services: ASIC Instrument 2017/186 (CP 357) includes proposals to: extend the relief for interests in managed investment schemes to 1 April 2025; amend the relief to update and clarify that the design and distribution obligations apply to business introduction services; allow the relief for Ch 6D securities to expire, and require persons who rely or cease to rely on the relief from 1 April 2022 to provide notice to ASIC.
5. US digital currency (US): the US Federal Reserve Board has released a discussion paper titled Money and Payments: The U.S. Dollar in the Age of Digital Transformation examining the pros and cons of a potential U.S. central bank digital currency. The Federal Reserve has stated that the Discussion Paper does not favour a particular policy outcome. Rather, the Federal Reserve hopes to begin a dialogue about whether and how to implement a CBDC. We are ahead of our US cousins, thanks for Senator Bragg’s excellent report (see recommendations here). Now to see them put into action though!

Thought for the future: there is a lot happening this in terms of regulatory developments, as January 2022 has demonstrated. This resource here — updated twice a week — is a good update / calendar service for busy risk, compliance and legal professionals to make sure their planning is complete.