This week’s blog covers ASIC’s evolving approach to DDO, AUSTRAC’s newest enforceable undertaking and developments in the banking sector abroad.
Lots happening this week with ASIC’s RACQ action, the Senate hearing on crypto and multiple tweaks to ASIC’s DDO / PIP power.
Crypto regulation (Treasury): the Treasury has released its consultation paper onCrypto asset secondary service providers: Licensing and custody requirements(Consultation Paper) raising 32 consultation questions in relation to crypto licensing and custody requirements…
CDR Extension (Treasury): In January 2022, the Government announced that the Consumer Data Right (CDR) would expand to Open Finance as the next sector to be assessed. A massive step for the financial services industry, phase 1 of Open Finance will include the assessment and designation of the non-bank lending sector…
Youpla Group (ASIC): Very unusual. Following the liquidation of one funeral fund, ASIC has written to the directors of Youpla Group to ask them to take immediate and public action to address concerns about the financial viability of ACBF 1, ACBF Plan and ACBF Community. Youpla manages four entities that…
Statutory unconscionable conduct (ACCC): inAustralian Competition and Consumer Commission v Quantum Housing Group Pty Ltd[2021] FCAFC 40the Full Federal Court upheld an appeal by the ACCC and declared that Quantum had engaged in an unconscionable system of conduct in its dealings with investors regarding…
BEAR / Westpac (APRA):the prudential regulator has closed its investigation into possible breaches of theBanking Act 1959(Cth), including the Banking Executive Accountability Regime, by Westpac. APRAcommenced the investigation in December 2019to examine prudential concerns arising from allegations by AUSTRAC…
Competing class actions (High Court):competing class actions are one of the notable issues which accompany the rise in litigation funding and correlated increase in class actions i.e. the asset class. Morabito identified that, of the 122 shareholder class actions filed in Australia since 1992, 59 were competing or related class…
BNPL CODE (AFIA):theCode of Practicefor the Buy Now Pay Later (BNPL) sector has come into effect. The Code contains 9 key commitments to customers, including that BNPL providers will be fair, honest and ethical in dealings. Combined with their voluntary sign up to AFCA, it is a significant commitment to self regulation…
Immunity policy (ASIC): power and information. ASIC has received plenty of the former in the past 2 years, and now it is focusing on the latter. It hasreleased a policywhich sets out information on applications for immunity from civil penalty or criminal proceedings for a contravention of a provision in Part 7.10 of theCorporations Act 2001(Cth)…
Regulatory deferrals (Legislation):theCoronavirus Economic Response Package Omnibus Bill 2020(Cth) has been passed. Relevantly, s. 1362A allows the Minister by legislative instrument to exempt classes of persons from the operation of specified provisions of theCorporations Act 2001(Cth) or the regulations, or modify…
Insolvent trading (Legislation):in response to COVID-19, the Morrison Government has lifted the threshold on statutory demands (which are used to commence winding up actions against companies) from $2,000 to $20,000 and businesses will have 6 months instead of 21 days to respond to them…
ASIC v. King(Corporations Act):the corporate regulator has won its case inAustralian Securities and Investments Commission v King[2020] HCA 4, which clarified who is a company officer potentially liable for penalties under theCorporations Act 2001(Cth). ASIC brought a civil penalty case against MFS Investment Management Ltd…
Corporate criminal reform (ALRC):the big news this week,the ALRC has discarded its thought bubble of making an executive officer criminally liable where they were in a position to influence the conduct of a corporation in relation to an offence, and they cannot prove that they took reasonable measures to prevent that…
Best interests(ASIC):ASIC has released aconsultation paper CP 327 on the new best interests duty for mortgage brokers which is open until 20 March 2020. You can read more on the best interests duty, and ancillary changes e.g. prohibition on giving / receiving conflicted remuneration, in thispast ARWW briefingorhere…
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