The long awaited final report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was released on 4 February 2019. Since the report's release there have been many responses published including from APRA and ASIC as well as exposure drafts from Treasury of legislation aimed at implementing certain recommendations of the report.
ASIC will shortly be able to pursue harsher civil penalties and criminal sanctions against companies and their officers who have breached corporate financial services law after the passing of The Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill 2018.
New whistleblowing legislation has passed the parliament and will require certain Australian businesses to have a whistleblower policy. The expanded regime will commence on 1 July 2019.
A reminder to businesses that AUSTRAC annual compliance reports are due by 31 March 2019.
More information on these developments, as well as other industry news, can be found below.
ASX releases updated Corporate Governance Principles and Recommendations
On 27 February 2019 the ASX Corporate Governance Council released an updated version of its Corporate Governance Principles and Recommendations. The updated guidance will take effect in respect of each listed entity’s first full financial year commencing on or after 1 January 2020. Under Listing Rule 4.10.3, ASX listed entities are required to benchmark their corporate governance practices against the Council’s recommendations and, where they do not conform, to disclose that fact and the reasons why.
More information can be found here.
Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry
Commissioner Kenneth Hayne’s final report in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was released to the public on Monday, 4 February 2019 and there have been a number of responses released by ASIC, APRA and industry. The final report can be found here.
- ASIC released an update to the findings in the Royal Commission noting that there are 12 recommendations where the Government’s response requires action by ASIC, without the need for legislative change. ASIC is committed to fully implementing each of these. The attached table provides an outline of ASIC’s planned actions. ASIC’s response can be found here.
- APRA’s update on implementation of the Royal Commission recommendations can be located here. APRA’s corporate plan to implement the Royal Commission recommendations can be found here.
- Separate exposure drafts of legislation designed to cease grandfathered conflicted remuneration were released by both Government and Labor on Friday 22 February 2018. More information can be found here.
Harsher penalties to be pursued by ASIC after laws passed by senate
ASIC will shortly be able to pursue harsher civil penalties and criminal sanctions against banks, their executives and others who have breached corporate financial services law, after a significant bill was passed by both houses on 19 February 2019.
The Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill 2018 implements recommendations of the ASIC Enforcement Review Taskforce by amending the Corporations Act 2001, ASIC Act 2001 as well as the National Consumer Credit Protection Act 2009 and Insurance Contracts Act 1994. It strengthens existing penalties and introduces new penalties for those who have breached the corporate laws of Australia designed to protect its citizens. Key changes include:
- new and increased civil penalty provisions for both individuals and corporations;
- the current penalty notice regime has been replaced with ASIC now able to issue infringement notices;
- a number of new criminal offences; and
- a new definition of dishonesty adopting the single limbed objective test.
More information about the bill can be found here.
ASIC welcomes new Whistleblower protections
In February 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 was passed by both houses of parliament.
The Bill contains an updated whistleblower protection regime and among other provisions will require certain Australian businesses to have a whistleblower policy. The expanded regime will commence on 1 July 2019. Public companies and large proprietary companies will then have six months to implement compliant whistleblowing policy and procedures.
Treasury Department releases an Issues Paper on Initial Coin Offerings
Treasury has released an issues paper on Initial Coin Offerings (ICOs). The paper forms part of Treasury’s broader review into ICOs and considers the opportunities and risks in relation to ICOs. The paper also sets out how ICOs are regulated in Australia as opposed to other jurisdictions, and queries whether adjustments should be made in Australia.
More information can be found here.
ASIC’s information sheet on preparing for Brexit
On 8 February 2019 ASIC released an information sheet on preparing for Brexit having carefully monitored developments in the UK and liaising closely with the UK Financial Conduct Authority, the Bank of England and regulated stakeholders to identify and plan for Brexit impacts. The information sheet can be found here.
Asia Region Funds Passport ASIC Legislative Instrument
On 31 January 2019 ASIC released ASIC Corporations (Asia Region Funds Passport) Instrument 2019/75.
The Instrument relates to the protection of confidential information which is lodged with ASIC pursuant to an application for registration as an Australian passport fund or a notice of intention to offer interests in a foreign passport fund.
ASIC releases update on global Financial Innovation Network
On 14 February 2019, ASIC released an update on the Global Financial Innovation Network (GFIN), which is a network of 29 international regulators. Following consultation, the GFIN finalised its terms of reference and confirmed that its three primary functions will be:
- to act as a network of regulators to collaborate and share experience of innovation in respective markets, including emerging technologies and business models, and to provide accessible regulatory contact information for firms;
- to provide a forum for joint regtech work and collaborative knowledge sharing/lessons learned; and
- to provide firms with an environment in which to trial cross-border solutions.
Code of Ethics and Final Exam standards released for financial advisers
On 6 February 2019 the Financial Adviser Standards and Ethics Authority (FASEA) released the legislative instrument and explanatory statement for the new examination standard that applies to financial advisers. The exam is one of four standards that apply to new advisers from 1 January 2019.
More information and the legislative instrument for the Final Examination Standard can be found here.
On 11 February 2019 FASEA released the legislative instrument and explanatory statement for the Code of Ethics Standard. All new and existing financial advisers will be required to comply with the Code of Ethics from 1 January 2020.
Following consultation, FASEA clarified aspects of the Code, including the values underlying the Code, and amending standards around conflicts, the best interests of the client, the effects of advice on the client and adviser record-keeping.
More information and the legislative instrument for the Ethics Standard can be found here.
ASIC responds to submissions on short selling consultation
On 30 January 2019, ASIC released Report 608: Response to submissions on CP 299 Short selling: Naked short selling relief, position reporting amendments and sunsetting class orders (REP 608). REP 608 highlights the key issues that arose in responses to ASIC’s previous consultation on:
- legislative relief for ETF market makers;
- relief for short selling relating to corporate actions and IPOs;
- changing the time short positions are calculated; and
- remaking instruments due to sunset.
ASIC stated that the responses received were generally supportive of its proposals to combine all short selling relief into one instrument and to extend current legislative relief that were due to expire.
More information, including a copy of CP 299, can be found here.
Treasury consults on "Protecting your superannuation" package
The Government has released for public consultation exposure draft regulations and explanatory material to implement the Government’s ‘Protecting Your Superannuation’ package which was announced in the 2018-19 Budget.
The regulatory reforms are designed to protect Australian’s superannuation savings from undue erosion by fees and insurance premiums.
The exposure draft materials can be located here.
AUSTRAC annual compliance reports due March 31
A reminder to businesses that AUSTRAC annual compliance reports are due by 31 March 2019. More information can be found here.