Gadens Regulatory Recap – 29 May 2024

This edition of the Gadens Regulatory Recap highlights recent developments from ASIC, APRA, AFCA, ATO, AUSTRAC, OAIC, ACCC, Treasury and the RBA, including various enforcement actions taken by the regulators. 

Federal Budget 

1. Federal Government Budget: The Federal Government announced the 2024-25 Federal Budget on 14 May 2024, setting the Government’s key policy agenda for the remainder of their term. 

Headline economic figures included a projected:^[1]

• $9.3 billion surplus in FY 2023-24, followed by deficits of $28.3 billion in FY 2024-25 and $42.8 billion in FY 2025-26, which will likely lead to continued spending restraint considering an ongoing structural deficit; 
• real GDP growth of 2% in FY 2024-25, and 2.25% in 2025-26; and 
• drop in inflation from 3.5% in FY 2023-24 to 2.75% in FY 2024-25 and FY 2025-26, followed by a rise to 3.5% in the two years after this. 

Most policy announcements are beyond the scope of this publication. These include revised ‘Stage 3’ tax cuts for 13.6 million taxpayers, household and small business energy bill relief, $2.2 billion over five years from 2023-24 to deliver aged care reforms, and a $22.7 billion “Future Made in Australia” fund to drive private sector investment through the move to net zero.^[2]

Notably, the Federal Government looks set to: 

• strengthen the foreign resident Capital Gains Tax (CGT) scheme by bringing new asset classes within the scope of CGT, and requiring foreign residents disposing of certain interests exceeding $20 million in value to notify the ATO prior to the transaction occurring; 
• delay the previously announced expansion of Pt IVA of the Income Tax Assessment Act 1936 (Cth) (an expansion that would have captured certain schemes resulting in reduced Australian tax paid by accessing lower withholding tax rates on income paid to foreign residents);[3]
• strengthen the ATO’s power to combat fraud, including by extending funding for compliance programs (an announcement that largely focuses on individual taxpayers, but nonetheless signals a focus on enhanced regulation by the ATO);  
• deliver $67.5 million over four years from FY 2024-25 (and $8.6 million per year ongoing) to combat scams through a Scams Code Framework and associated mandatory industry codes (led by ACCC, ASIC and ACMA), initially targeting telecommunications, banks and digital platform services;  
• create a ‘single front door’ to streamline major investors’ engagement with the Federal Government, following consultation led by a Treasury taskforce; and 
• remove certain “nuisance” tariffs to boost trade productivity. 

Although these announcements are yet to be legislated, they signal that a crackdown on compliance (particularly regarding foreign entities’ tax obligations and scams) may be on the way. 

ASIC   

2. ASIC’s priorities in a changing regulatory environment: ASIC Commissioner, Alan Kirkland, set out ASIC’s priorities in a changing regulatory environment during his speech at the Australian Finance Industry Association Risk Summit 2024 on 22 May 2024. ASIC’s priorities for this year include: 

• high-cost credit and predatory lending practices to consumers and small business; 
• misconduct relating to used car financing to vulnerable consumers; 
• misconduct affecting First Nations people; and 
• misconduct involving a high risk of significant consumer harm.  

Mr Kirkland highlighted that cost of living pressures, climate changes and rapid technological changes were all factors affecting consumers and the way they interact with the financial services market. 

Technology has benefitted the financial services market greatly but also resulted in harm. Australians lost $2.74 billion to scams in 2023, including $1.3 billion to investment scams. Mr Kirkland noted the increased use of deepfake videos of well-known individuals promoting scam online trading platforms as an example of technology enabling a greater scale of loss due to scams – despite scams having been around forever.

3. ASIC report – Australians need better hardship support from their lenders: In a recent report published 20 May 2024, ASIC has set out their findings from their review of 10 large home lenders.  

Under section 72 of the National Credit Code, contained in schedule 1 of the National Consumer Credit Protection Act 2009 (Cth), consumers can notify their lender that they are or will be unable to meet their credit obligations. The lender must then consider varying the customer’s credit contract and inform them of the decision within specified timeframes. 

The report found that approximately 1 in 3 Australians who applied for financial assistance dropped out of the application process at least once. Even after consumers were granted financial assistance, approximately 40% fell into arrears right after the assistance period ended.  

ASIC Chair Joe Longo cited that ASIC will be targeting lenders moving forward and that where appropriate, they would “not hesitate” to take enforcement action to protect consumers. 

4. ASIC issues information for unlicensed entities making unsolicited contact with consumers: On 15 May 2024, ASIC published Information Sheet 282 which sets out how financial services laws apply to unlicensed entities that refer consumers to third parties for the provision of financial advice. 

If you are in the business of dealing by arranging financial advice or giving general or personal advice to consumers, you are required to hold an Australian Financial Services (AFS) Licence. Carrying on a financial business without a valid AFS licence is an offence under the Corporations Act 2001 (Cth) (Corporations Act) unless you are authorised as a representative of an AFS licensee, or a valid exception applies. This is a criminal offence under sections 911A and 1311(1) which carry the following penalties:  

• for individuals: a maximum of five years imprisonment and/or a fine of up to 600 penalty units; and 
• for corporations: up to 6,000 penalty units. 

There are also civil penalties that apply for contravening section 911A for carrying on a financial services business without a valid Australian financial services licence: 

• for individuals: the greater of 5,000 penalty units, or three times the benefit obtained and detriment avoided because of the contravention; and 
• for a body corporate: the greater of 50,000 penalty units, or three times the benefit obtained and detriment avoided because of the contravention, or 10% of annual turnover (capped at 2.5 million penalty units). 

The information sheet is also relevant to AFS licensees and financial advisers that receive customer information through unsolicited contact and sets out relevant requirements: 

• under the law; 
• when making unsolicited contact; and 
• when making digital contact.  

5. ASIC welcomes Ministerial determination to progress competition in clearing and settlement reforms: ASIC has welcomed the Government’s action to progress implementation of rules for competition in clearing and settlement.  

The Assistant Treasurer, the Hon. Stephen Jones MP, recently made the Corporations and Competition (CS Services) Instrument 2024, which empowers ASIC to make rules on clearing and settlement services relating to cash equities.  

ASIC outlined its commitment to using its new powers on a timely basis to facilitate outcomes that are consistent with those expected in a competitive market. A key feature of this will be the implementation of the 2017 Council of Financial Regulators Regulatory Expectations for Conduct in Operating Cash Equity Clearing and Settlement Services in Australia (Regulatory Expectations) as enforceable obligations.

The Regulatory Expectations are intended to support the long-term interests of the Australian market by: 

• ensuring that ASX remains responsive to users’ evolving needs, including in relation to its governance framework; and 
• providing access to its cash equity CS services on a transparent and non-discriminatory basis with terms and conditions, including pricing, that are fair and reasonable. 

ASIC intends to consult on draft CS Services rules in July 2024 to deliver these outcomes. 

6. ASIC announces 30 June 2024 focus areas and expanded program to support financial reporting and audit quality: ASIC has outlined its focus areas and an expanded program to increase the integrity and quality of financial reporting and auditing in Australia. The program targets listed companies and other entities of public interest, including superannuation funds.  

The enduring focus areas identified by ASIC, including asset values, adequacy of provisions, subsequent events, and disclosures will apply to all reporting periods.  

Directors should prepare for proposed mandatory climate reporting reforms discussed in Gadens’ recent article. Additionally, entities with significant climate-related risks should voluntarily report in line with Taskforce on Climate-related Financial Disclosures (TCFD) recommendations, ensuring transparency and accuracy. ASIC is closely monitoring voluntary climate-related financial disclosures to inform future compliance efforts.  

Additionally, ASIC will review auditors’ compliance with ethical and independence standards, assessing adherence to the Corporations Act and Australian Auditing Standards. Audit firms were mandated to evaluate their implementation of quality requirements under the ASQM1 framework by December 15, 2023. ASIC urges firms to adopt comprehensive action plans to address root causes and enhance compliance. 

7. ASIC Select Committee Statement on Adopting Artificial Intelligence in the Financial system: The ASIC Select Committee on Adopting Artificial Intelligence held a Symposium on 21 May 2024. The Symposium was held to discuss how artificial intelligence (AI) is changing regulation and the way regulators go about their work and to identify the conditions necessary for effective regulation of AI.  

The goals set out by ASIC with respect to AI moving forward include:  

• assisting businesses to use AI tools in a safe and responsible manner;  
• engaging with industry, other agencies and international peers to identify risks and improve practices around AI;  
• encouraging conversations around AI; and 
• leading a digitally enabled and data-informed regulator by 2030 (which includes the commencement of a digital transformation program).  

ASIC has stated that AI will continue to be a key priority for the future. 

8. ASIC Enforcement Activities: ASIC has engaged in a range of enforcement activities over the course of the last fortnight. 

ASIC has banned a former financial adviser from providing financial services for a period of three years on the basis of findings that the adviser had breached various financial services laws by failing to act in the best interests of clients, failing to provide appropriate advice, not prioritising the interests of his clients, and providing misleading or deceptive disclosure statements to clients.  

Another financial adviser has been permanently banned by ASIC from providing financial services, performing any function involved in the carrying on of a financial services business, and from controlling an entity carrying on a financial services business after findings that the adviser dishonestly attempted to induce clients to transfer superannuation balances into a bank account he controlled by making statements that were false and misleading. Both former advisers have the right to appeal ASIC’s decisions to the Administrative Appeals Tribunal.

ASIC cancelled the AFSL of an organisation as it failed to prepare and lodge required financials, as well as concerns that it is likely to contravene obligations as an AFSL holder in the future. ASIC cancelled the AFSL of another organisation after determining that it did not comply with financial services laws, did not take reasonable steps to ensure that representatives complied with financial services laws, did not take steps to ensure that financial services were provided efficiently, honestly and fairly, is likely to contravene its obligations under section 912A(1) of the Corporations Act, and is not a fit and proper person in accordance with section 913BA(1) of the Corporations Act.

ASIC announced that it has issued restrictions on a number of companies from issuing reduced-content prospectuses for 12 months after failing to comply with various obligations, including the lodgement of financial and other reports. As a result, the companies will be required to issue full prospectuses to attract funds from retail investors and cannot issue a reduced-content prospectus under section 713 of the Corporations Act.  

On 24 May 2024, the Federal Court found that Cigno Australia Pty Ltd (Cigno) and BSF Solutions Pty Ltd (BSF) engaged in credit activity without the required Australian Credit Licence and charged customers prohibited fees. Findings were also made against the sole directors of each respective company. The matter is listed for a further case management hearing on 21 June 2024 for consideration of various matters, including civil penalties. While Justice Jackson did not necessarily agree with ASIC’s contention that the directors necessarily knew the fees charged to investors were for the provision of credit, it was concluded that both directors “knew the essential primary facts” which led to the conclusion that the charges were made for the provision of credit, and it was therefore “not necessary to allege that they also knew that those primary facts led to. The Regulatory Recap has previously considered ASIC’s case against Cigno and BSF here.  

APRA  

9. APRA’s Therese McCarthy Hockey confirms APRA has the tools it needs to deal with Gen AI at AFIA Risk Summit 2024: In a speech to the 2024 AFIA Risk Summit, APRA member Therese McCarthy Hockey outlined APRA’s view of the benefits and risks related to the proliferation of generative artificial intelligence in the financial services sector.  

The speech outlined the key benefits that AI and automation will bring, with the Australian Government report noting that AI and automation could add between an additional $170 billion to $600 billion a year to Australia’s GDP by 2030. The financial services industry, one so reliant on ingesting and analysing huge swaths of data, is already emerging as a major investor in the new technology. The greater efficiency and reduced costs should deliver lower fees to customers and higher profit boosts for investors. AI will also detect patterns in data imperceptible to humans, promoting better decision making, and freeing people up to focus on high level tasks. 

But despite these benefits, McCarthy Hockey outlined the key risks with the new technologies. Just as AI may promote better decision making, AI could worsen decision making or spark financial crises if it malfunctions or is applied inappropriately. AI has potential to commit crimes, scams and undermine financial stability. Many companies have expressed concern about the spread of deepfake videos and convincing disinformation. And at an ethical level, there is the potential for algorithms to develop biases that unfairly discriminate against groups of people or exclude them from financial services.  

McCarthy Hockey outlined that APRA has adequate regulations in place to deal with generative AI. The prudential standards do not refer to AI specifically, but are high-level, principles-based and technology neutral so they can apply broadly.  

For companies looking to harness AI, McCarthy Hockey emphasised the importance of firm board oversight, robust technology platforms, accountability and strong risk management. It is also crucial for businesses to have adequate guardrails in place to prevent unacceptable costs to the community. 

In conclusion, despite AI’s undoubted benefits, APRA’s stance is that those benefits should not compromise safety and responsibility, and entities under its supervision should ensure AI operates with sufficient human oversight and control. 

AFCA  

10. AFCA endorses ASIC’s call for lenders to improve their approach to supporting customers experiencing hardship: AFCA has endorsed ASIC’s call for lenders to do better on hardship support following the release of a report which reviewed 10 large home lenders. ASIC’s report is summarised in paragraph 3 above.  

David Locke, Chief Ombudsman and Chief Executive Officer of AFCA commented:  

This is in line with what we are seeing in complaints about financial difficulty and requests for hardship assistance. We are concerned about rising complaints involving financial difficulty and barriers in receiving hardship assistance. As challenging economic conditions continue, we urge all lenders to engage with customers to ensure they receive genuine, individual consideration in response to their requests for help. 

In 2023, AFCA found that it had 25% more complaints of financial hardship than in 2022. AFCA also observed a trend of complaints regarding lenders providing “cookie cutter” responses that did not consider individual financial circumstances. AFCA further noted that lenders have recently issued default notices to customers who have existing repayment arrangements. AFCA will continue to monitor trends.  

AUSTRAC  

11. AUSTRAC and SkyCity propose $67 million penalty for AML/CTF contraventions: On 17 May 2024, SkyCity Adelaide Pty Ltd (SkyCity) and AUSTRAC filed joint submissions in the Federal Court proposing that SkyCity pay a $67 million penalty relating to SkyCity’s contravention of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act).  

As part of the proposed settlement, SkyCity has admitted to contraventions of the AML/CTF Act, including that:

• it did not carry out appropriate ongoing due diligence in relation to higher risk customers and those utilising higher risk channels, in breach of section 36; and 
• its AML/CTF programs did not meet the requirements of the AML/CTF Act and the applicable rules, in breach of section 81.

Justice Lee will consider the proposed settlement between the parties on 7 June 2024. 

OAIC 

12. Upcoming changes to the Information Commissioner review procedure: The OAIC’s updated Information Commissioner review procedure will commence 1 July 2024. 

The key updates to the procedure include:

• an obligation on respondents to engage (or attempt to engage) with the applicant during the Information Commissioner review, with a view to resolve or narrow matters; 
• an obligation on applicants and respondents to send each other their submissions at the same time as the submissions are sent to the OAIC; and
• procedures for certain types of Information Commissioner reviews, including reviews of deemed access refusal decisions, and access refusal decisions made on the basis that documents cannot be found or do not exist.

13. OAIC updates privacy guidance on Consumer Data Right to reflect latest version of the CDR rules on outsourcing: The OAIC recently published updated guidance on the privacy obligations of outsourced service providers (OSP) and the principals of those OSPs under a Consumer Data Right (CDR) outsourcing arrangement. In particular, OSPs that are engaged by an accredited person, CDR representative, or other OSP must be aware of the following (each of which are explained in the guidance): 

• CDR outsourcing agreement must be in writing and meet the minimum requirements; 
• CDR data collection obligations; 
• CDR data holding, use and disclosure obligations (including Privacy Safeguards 4, 6, 7, 8 and 9, and the deletion and de-identification obligations of the OSP principal); 
• information security obligations; 
• CDR data deletion and access obligations; and 
• adjusted collection obligations of OSPs that are also accredited persons under the CDR system. 

Further to the above, an accredited OSP chain principal (which is the initial OSP at the top of a chain of CDR outsourcing arrangements) must also be aware of a range of additional issues when dealing with the OSPs it engages (both directly and indirectly): 

• monitoring obligations; 
• exposure to liability down the OSP chain; 
• disclosing direct and indirect OSPs in the OSP principal’s CDR policy; 
• additional disclosures that need to be made to consumers when seeking their consent; 
• disclosures of CDR data to OSPs; and
• accreditation of an OSP principal (in relation to the extent of work that can be provided by an engaged OSP).

14. Privacy Commissioner Carly Kind keynote address for the Biometrics Institute Asia-Pacific (BIAP) Conference: Australia’s Privacy Commissioner, Carly Kind, addressed BIAP on 22 May 2024 about the risk of biometrics and how biometric technologies can be used consistently with the Privacy Act 1988 (Cth) (Privacy Act). Commissioner Kind stated that facial recognition and other automatic biometric identification technologies should only be used when it is reasonably necessary for, and when the risks to privacy are proportional to, the specific function or activity. It was also hinted that the OAIC would release an update about Bunnings and Kmart’s use of facial recognition technology in the next few months. 

The proposed reforms around consent management, and data deletion and retention, are something the biometrics sector will need to consider carefully. This is due to biometric templates and information, which are used for automated biometric verification or biometric identification, being sensitive information under the Privacy Act. 

Commissioner Kind noted that a higher standard will be applied to biometric information between now and the introduction of the Privacy Act reforms with the passage of the Digital ID Bill last week. The additional privacy safeguards under the new legislation will operate on top of the general protections of the Privacy Act (or the equivalent State or Territory privacy law). Such safeguards will place additional restrictions on the collection, use, disclosure, storage and destruction of biometric information by accredited entities. 

15. Privacy Commissioner Carly Kind radio interview – ABC RN Breakfast: On 8 May 2024, Patricia Karvelas of ABC RN Breakfast interviewed Commissioner Kind. Commissioner Kind noted the need to overhaul Australia’s privacy laws, especially given the law fails to cover most small businesses and lacks robust data protection standards. The upcoming reforms, including the “fair and reasonable” test for data processing, stronger protections for children, new individual rights in relation to privacy and the de-indexing from search engines, will provide Australians with better control and agency over their personal data. 

Commissioner Kind also emphasised the importance of holding major technology companies accountable and cited the EU GDPR as an example of effective privacy regulation. Commissioner Kind welcomed initiatives like Google’s new tool for managing personal information in search results as positive steps towards better privacy practices, aligning with upcoming legislative changes. More information on the upcoming Privacy Act reforms can be found here. 

ACCC 

16. National Anti-Scam Centre Investment Scam Fusion Cell releases its first report: The National Anti-Scam Centre has published its report on findings of the Investment Scam Fusion Cell, led jointly by the ACCC and ASIC, and with the cooperation of 43 organisations, and targeted towards investment scams. The Investment Scam Fusion Cell, which commenced operations in August 2023 and concluded in February 2024, was specifically aimed at identifying investment scam campaigns, blocking any identified ‘enablers’, and identifying barriers to scam prevention and disruption. 

The report details key activities of the Investment Scam Fusion Cell as including:

• the creation of direct referral processes for taking down scam advertisements, and videos, resulting in over 1,000 such pieces of content being removed from digital platforms; 
• the takedown of over 220 investment scam websites; and 
• 113 attempted calls to confirmed scam phone numbers were diverted to recorded warnings, which potentially saved losses from term deposit and imposter bond scams.

The report also details various improvements in scam prevention that resulted from the work of the Investment Scam Fusion Cell as including:

• the creation of tools for individuals to report scam advertisements on social media and internet search platforms; 
• expansion of recorded warnings to further telecommunication providers; 
• development of technology to automate referral of relevant reports to Scamwatch for ASIC’s investment scam website capability; 
• the proposal of a three-month data sharing trial for investment scam payments; and 
• the creation of a handbook of disruption strategies to identify and target artificial intelligence trading platform scams. 

Treasury 

17. Council on Federal Financial Relations releases Statement on Vanderstock & Anor v State of Victoria: Following the recent High Court decision in Vanderstock & Anor v State of Victoria [2023] HCA 30 where the Court ruled that Victoria’s electric vehicle charge was unconstitutional, the Council on Federal Financial Relations announced that it continues to discuss the implications and will consider similar actions to the Franchise Fees Windfall Tax (Collection) Act 1977 (Cth) if required.  

The media release confirms that ‘states and territories are also working independently and collaboratively towards ensuring revenue streams are secure, efficient and equitable’.  

18. Treasury releases ‘report of the independent review of the changes to continuous disclosure laws’: Authored by Dr Kevin Lewis, the independent review of the changes to continuous disclosure laws made by the Treasury Laws Amendment (2021 Measures No.1) Act 2021 (Cth) (the amendments) was officially tabled in both Houses of Parliament on 14 May 2024.  

Under Chapter 6CA of the Corporations Act, disclosing entities that are listed on an Australian securities market or entities that have raised capital or undertaken a takeover or a scheme of arrangement in Australia are required to disclose information that a reasonable person would expect to have a material effect on the price or value of the entity’s securities on a continual basis and in a timely manner. 

The major findings of the review are as follows:  

• the two-year period prescribed by section 1683B of the Corporations Act is not long enough to draw meaningful evidence-based conclusions about the findings of the review; 
• the 2021 amendments have had and continue to have negative impacts on ASIC’s enforcement abilities; and 
• the amendments do not appear to have had an impact on the number and type of continuous disclosure class actions against disclosing entities. 

In response to these findings, the review also set out several key recommendations, summarised below: 

• the Government should amend the Corporations Act to remove the 2021 requirement that ASIC need to prove for a breach of continuous disclosure laws in civil penalty proceedings that this disclosure was knowing, reckless and negligent; 
• the Government should retain the requirement for a private litigant to prove in civil compensation proceedings for a breach of continuous disclosure laws that the disclosing entity acted knowingly, recklessly or negligently; and 
• the Government should consider the findings made about the 2021 Amendments in Treasury’s consultation paper Climate-related financial disclosure (June 2023) and if any action needs to be taken. 

RBA  

19. RBA publishes research discussion paper on ‘Demand in the Repo Market: Indirect Perspectives from Open Market Operations from 2006 to 2020’: Banks need liquidity – readily available cash – to meet their payment obligations and remain viable. It is therefore critical to ensure an adequate supply of liquidity in the financial system. 

In Australia, repurchase obligations are traded bilaterally “over the counter” between parties, rather than on an exchange. Therefore, it is difficult to obtain quotes of executable prices, trading volumes, and related data that are representative of the market to determine overall liquidity.  

To help observe the overall demand in the repo market, this study used data on open market operations from 2006 to 2020 to derive a demand curve for liquidity and determine trends for the period.

The key takeaway from this study was that liquidity demand increases in periods of heightened uncertainty in financial markets, and an increase in liquidity supply can flatten the demand curve. 

Throughout the period of the study, the RBA also found the following trends: 

• prior to 2008, the demand for liquidity was relatively stable and the spread between the repo rate and the bench rate was small; 
• during the GFC, precautionary demand rose and so rates increased relative to the OIS rate; 
• after the crisis, demand receded and so rates lowered, and market conditions stayed calm until around 2016; 
• from 2016 to 2019, demand for Australian dollars in the international currency market increased and the spread between the repo rate and its benchmark rose; and
• during the outbreak of the pandemic in 2020, the RBA increased the supply of cash to unprecedented levels and so the demand curve flattened.

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 Authored by: 

Caroline Ord, Partner 
Sinead Lynch, Partner 
Kate Mills, Partner 
Michael Kenny, Partner 
Daniel Maroske, Partner 
Kelly Griffiths, Partner 
Matthew Bode, Partner 
Anna Fanelli, Senior Associate
Clare Smith, Associate
Tehlyn Murray, Associate
Chris Girardi, Lawyer 
Ray Huang, Lawyer
Lucy Hardyman, Lawyer 
Wen Wong, Lawyer 
Matt Schwab, Lawyer 
Jin Lim, Lawyer
Bronte Anderson, Lawyer

[1] See Commonwealth, Budget 2024-25: Budget Strategy and Outlook, Budget Paper No. 1 (14 May 2024) https://budget.gov.au/content/bp1/download/bp1_2024-25.pdf.
[2] See Commonwealth, Budget 2024-25: Budget Measures, Budget Paper No 2 (14 May 2024) https://budget.gov.au/content/bp2/download/bp2_2024-25.pdf.
[3] Australian Government, Tax integrity – expanding the general anti-avoidance rule in the income tax law (9 May 2023) Australian Taxation Office.