RegTracker 19 December 2022

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By Mark Bland, Partner, Stephen Putnins, Partner, Matthew Farnsworth, Partner, Geoffrey McCarthy, Special Counsel, Sheridan Handley, Senior Associate, Emma Higgs, Senior Associate, Vijay Adithya, Lawyer, Amiinah Dulull, Lawyer and Sam Morris, Compliance Consultant

Key developments

Recent data breaches have also prompted the Government to appoint an Expert Advisory Board as it develops Australia’s new Cyber Security Strategy. Legislation to increase penalty unit amounts generally and specifically increase penalties for breaches of the Privacy Act underline the importance of this area which is also subject to enforcement by the OIAC.  Cyber incidents may also involve regulatory action by AUSTRAC, ASIC and, for APRA regulated bodies, also APRA.

Superannuation performance continues to be a key focus area, with APRA publishing the December 2022 MySuper Heatmap results. The results identify a number of underperforming products which is likely to prompt further regulatory scrutiny.

ASIC continues its focus on compliance with design and distribution obligations continues. Multiple stop orders for defective target market determinations were recently issued and this is expected to continue next year.

It has also been an active period for AUSTRAC. The financial crime regulator accepted an enforceable undertaking from ING bank and commenced civil proceedings against the Star Entertainment Group entities and SkyCity. AUSTRAC also issued guidance on applying customer identification to persons with diverse circumstances such as flood victims, victim of domestic violence and persons in remote locations.

Looking Back

21 November – ASIC issues interim stop orders on MPG Funds Management Limited’s property trusts.

21 November – ASIC released the Reportable Situations Application Programming Interface (API) for submitting reports under the breach reporting regime.

22 November APRA releases superannuation statistics for September 2022.

22 November – APRA registers SPS 530 Investment Governance.

23 November Senator Bragg moves motion to reject Assistant Treasurer’s public immunity claim in response to a Senate otherwise resolves order to produce documents.

23 November Treasury Laws Amendment (Modernising Business Communications and Other Measures) Bill 2022 introduced in the House of Representatives.

23 November ASIC sues Block Earner for unlicensed conduct over crypto-asset based products.

24 November AUSTRAC accepts enforceable undertaking from ING Bank.

24 November Treasury Laws Amendment (Modernising Business Communications and other Measures) Bill 2022 [Provisions] referred to the Economics Legislation Committee.

24 November – Treasury Laws Amendment (2022 Measures No.4) Bill 2022 referred to the Economics Legislation Committee

24 NovemberASIC updates guidance on ETP naming conventions.

24 November – APRA General Manager of Governance, Culture, Remuneration and Accountability delivered a speech to the Financial Services Assurance Forum.

24 November – RBA issues Media Release after Payments System Board Meeting.

25 NovemberASIC placed interim stop orders on Perpetual Investment Management Limited (Perpetual) for non-compliant TMDs of two retail funds.

28 NovemberSubmissions for Exposure Draft Legislation Treasury Laws Amendment (Measures for Consultation) Bill 2022: sustainability standards open.

28 NovemberTreasury laws Amendment (2022 Measures No. 3) Bill 2022 was amended to remove Faith-based performance test before being passed through Senate.

28 November – APRA published a media release on interim response to Medibank data breach.

28 November – APRA Deputy Chair makes opening remarks to the AIST Chairs Forum

28 November – RBA released final incident report regarding RBA technology outage on 12 October.

28 November – ASIC registered the ASIC Corporations (Financial Services Guides) Instrument 2022/910 to give relief to certain authorised representatives that provide claims handling and settling services.

29 NovemberASIC’s proceeding against Commonwealth Bank for misleading conduct over monthly access fees dismissed.

29 November – APRA published an information paper for Authorised deposit-taking institutions: guide for directors.

30 NovemberDirector Identification Number Deadline for directors appointed by 31 October 2021 to apply but note proposed exemptions.

30 NovemberAUSTRAC announced that it had commenced civil penalty proceedings in the Federal Court of Australia against The Star Entertainment alleging serious and systemic AML/CTF non-compliance.

30 November – APRA publishes aggregate findings of its first Climate Vulnerability Assessment (CVA) of Australia’s 5 largest banks.

30 November ASIC calls for greater focus on material business risk disclosure in annual reports.

30 November Treasury Laws Amendment (2022 Measures No.4) Bill 2022 passed the House.

1 December – Australian Bureau of Statistics released report on managed funds in Australia.

1 December – APRA released Prudential Standard CPS 190 Recovery and Exit Planning.

1 December – APRA released a response paper addressing feedback on its direction for data collections consultation, published in March 2022.

1 December – APRA published Executive Director Policy and Advice Division Renée Roberts Speech to Australian Securitisation Conference 2022.

1 December – The Financial Sector Reform Bill 2022 passed but with the provisions for the Compensation Scheme removed.

2 December ASIC announced it had placed interim stop orders on APS Savings Limited.

2 DecemberASIC announced it has placed interim stop orders on three Australian Fiduciaries Limited funds.

2 December – ASIC announced it had issued infringement notices to Vanguard for greenwashing relating to sale of tobacco.

2 December – ASIC places interim stop orders on three Australian Fiduciaries Limited Funds.

5 December ASIC commenced civil penalty proceedings against American Express Australia in the first court case alleging breaches in the Design and Distribution Obligations.

5 December Treasury Laws Amendment (2022 Measures No.3) Act 2022, received Royal Assent including provisions extending the Minister’s power to modify laws where appropriate because of COVID-19.

5 December – Prudential Standard SPS 310 Audit and Related Matters was registered.

5 December – ASIC published the Opening Statement by ASIC Chair Joseph Longo at the on Corporations and Financial Services.

5 December Foreign Acquisitions and Takeovers Fees Imposition Amendment Bill 2022 received Royal Assent introducing indexation amendments).

5 December – ASIC registered new version of CPS 226, commencing on 1 January 2023.

6 December – ASIC Corporations (Short Selling) Amendment Instrument 2022/968 registered.

7 DecemberASIC issued action against Provide Capital alleging failure to produce documents without reasonable excuse.

7 December – APRA released an update on the Prudential Standard SPS 310 Audit and Related Matters.

7 December – AUSTRAC announced that it had commenced civil penalty proceedings in the Federal Court against SkyCity Adelaide breaches of AML/CTF laws.

8 December – ASIC commenced proceedings against OnePath Life, alleging utmost good faith breach during claims handling.

8 December – ASIC publishes Information Sheet 274: Tips for giving self-managed superannuation fund advice.

8 December – The Australian Securities and Investments Commission (Financial Services and Credit Panels—Remuneration) Instrument 2022 was registered.

8 December Minister Jones spoke about superannuation including IDR for superannuation trustees.

8 December – Minister O’Neil announced that the Government appointed an Expert Advisory Board as it develops Australia’s new Cyber Security Strategy.

8 December – ASIC released the November 2022 financial adviser exam results.

9 December – APRA released the notes from the Strategic Data Transformation Strategic Forum (SDTSF) held on 22 November 2022.

9 December – ASIC published a media release ‘Superannuation trustees on notice to uplift complaints handling’, and published Report 751 Disputes and deficiencies: A review of complaints handling by superannuation trustees.

9 December – AUSTRAC issued guidance to ensure greater access to financial services.

9 December – Corporations Amendment (Litigation Funding) Regulations 2022 registered.

12 December – Treasury Laws Amendment (2022 Measures No. 2) Bill 2022 to allow downsizer contributions for persons over 55 received Royal Assent.

12 December – Treasury published a Climate-related financial disclosure Consultation Paper for comment by 17 February 2023.

12 December – ASIC published a media release calling on life insurers to review the accuracy of their systems and controls for claims calculations and payments.

12 December – ASIC published its enforcement and regulatory update for July to September 2022.

12 December – Former Statewide Super executives charged with dishonesty offences.

12 December – The Government introduced the Treasury Laws Amendment (Measures for Consultation) Bill 2022: ALRC Financial Services Interim Report Recommendations.

12 DecemberCrimes Amendment (Penalty Unit) Bill 2022 received Royal Assent raising Commonwealth penalty unit to $275.

14 December – Government announced plans for modernising Australia’s financial system.

14 December – Treasury announces strategic plan for the payments system: consultation paper with comments due by 6 February 2023.

14 December – RBA Governor Philip Lowe delivers speech titled ‘An Efficient, Competitive and Safe Payments System’.

14 December – ASIC announced that Benjamin Heath Cooper has been sentenced for conspiring to manipulate Quantum shares.

14 December – APRA released the Annual fund-level superannuation statistics for 2022.

15 December – Australian Business Registry Services to commence compliance activity on director ID requirements.

15 December – ASIC and RBA provide further regulatory response about the ASX CHESS replacement program.

15 December – ASIC commenced civil penalty proceedings against Finder Wallet Pty Ltd alleging unlicensed conduct and inadequate risk disclosure, regarding a product named ‘Finder Earn’.

15 December – ASIC announced it had commenced civil penalty action in the Federal Court against Firstmac Ltd for alleged breaches of the design and distribution obligations.  15 December – The ATO completed updates on their website, Superannuation Information; ATO Super Contributions Page, Superannuation Changes to Industry Roadmap and ATO Super Lodgement Page.

15 DecemberAPRA published 2022 MySuper Heatmap and announced that the updated Choice Heatmap would be released in early 2023.

16 December – The Corporations Amendment (Registration of Relevant Providers) Regulations 2022 was registered. providing a six-month delay to the requirement  to register financial advisers with ASIC.

16 December – ASIC announced civil penalty action for breaches of DDO in the Federal Court against Firstmac Ltd

16 December – ASIC published that a person was sentenced for superannuation fraud.

16 December – The Australian Government announced reforms to Australia’s system of administrative review.

16 December– ASIC banned 2 Gold Coast based financial service providers and cancels the AFS licence of National Advice Solution.

Looking Ahead

31 December – Board of Taxation review into taxation of digital assets and transactions in Australia due.

31 December – Expiry of ASIC Class Order [CO 11/1227] relief for providers of retirement estimates as it replaced by new relief.

31 December – The Independent Review of ACCUs report and recommendations expected to be provided to government.

1 January 2023 SPS 530 scheduled to commence.

15 January 2023 – Consultations close for Treasury Laws Amendment (Measures for Consultation) Bill 2022: ALRC Financial Services Interim Report Recommendations.

31 January 2023 – Submissions close for Senate Economics Legislation Committee Inquiry into Modernising Business Communications Bill.

6 February 2023 Responses due to the Strategic Plan for the Payments System: Consultation Paper.

17 February 2023 – Comments on Climate-related financial disclosure Consultation Paper close.

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