Enforceable code provisions effective 1 January 2021

The Financial Sector Reform (Hayne Royal Commission Response) Bill 2020, the latest implementation of recommendations from the Hayne Final Report following the Banking Royal Commission, became law on 17 December 2020 (Act no 135 of 2020). The new Act includes changes to the Corporations Act 2001 (Cth) to strengthen the existing voluntary code of conduct framework by enabling ASIC to designate ‘enforceable code provisions’ in approved codes of conduct.

The Banking Code of Practice (BCOP), a form of ‘self-regulation’ for subscribing industry participants, sets out standards of practice and service in the Australian banking industry for individual and small business customers, and their guarantors – essentially ‘norms of conduct’. We anticipate ASIC and the Australian Banking Association will move promptly to designate certain provisions of the BCOP as enforceable code provisions once the amendments come into force on January 1, 2021. Relevant provisions, in line with Recommendation 1.16 of the Final Report, are likely to be those that govern the terms of the contract made or to be made between the bank and the customer or guarantor (ie, the promises that are made to customers and guarantors in the BCOP).

Assuming ASIC moves forward with this approach, this would represent a fundamental change to the operation and application of the BCOP in Australia to banking services. In his Final Report, Commissioner Hayne acknowledged various limitations and difficulties with the BCOP and other industry codes. Relevantly, this included uncertainty around which provisions of industry codes, such as BCOP, can be relied on, and enforced by, individuals. While there has been some judicial consideration of this point, such as by the Victorian Court of Appeal in National Australia Bank v Rose [2016] VSCA 169, where terms contained in earlier versions of the BCOP have been held to be incorporated into, and form part of, the contract between bank and customer or guarantor, these decisions were heavily informed by the specific factual circumstances of each case. Contravention of an enforceable code provision can now attract both civil penalties and/or other ASIC enforcement action.