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Alan Darwin

Alan is a special counsel in Baker McKenzie's Financial Services & Funds team in Sydney.

On 2 June 2022, ASIC published the updated ePayments Code which it states will strengthen and clarify a number of existing protections for consumers relating to various forms of electronic payments. The Code has generally been the benchmark for consumer protections for payments and transactions that were triggered within the world of online and mobile banking. It has been an added level of regulation for its subscribers which include most banks, credit unions and building societies in Australia.

On 5 May 2022, in a landmark Australian decision, the Federal Court found that RI Advice had breached its obligations as an Australian financial services licensee to act efficiently, honestly and fairly, as a result of its failure to have in place adequate risk management systems to manage cybersecurity risks. In handing down her judgment, Justice Rofe warned that “cybersecurity risk forms a significant risk connected with the conduct of the business and provision of financial services”. Her Honour noted that the declarations ordered in the matter should deter other AFS licensees from engaging in similar conduct.

As announced in March in the opening hours of Blockchain Week by Minister Jane Hume, the Government released a consultation paper which proposes a new regulatory and licensing regime for ‘crypto asset secondary service providers’. This followed a call by Senator Andrew Bragg earlier that day for crypto reforms to be consolidated into a comprehensive legislative package (including a ‘Digital Services Act’), The main regulatory framework tabled could fall outside the existing Australian Financial Services licensing regime and focuses on the ecosystem of those who offer custody, storage, brokering, exchange and dealing services or operate a market in crypto assets for retail clients.

There has been further progress towards a new Foreign Financial Services Providers (FFSPs) framework in Australia. The Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Bill 2022 (Bill) was introduced to Parliament on 17 February 2022. This bill is very similar to the exposure draft released for consultation in December, discussed here. The Bill continues to propose three key exemptions for FFSPs: the professional investor exemption, the comparable regulator exemption and the fit and proper person test exemption and although largely unchanged there are some important new requirements that we consider are important to highlight.

The Australian Government has released the Treasury Laws Amendment (Measures for Consultation) Bill 2021: Licensing Exemptions for Foreign Financial Service Providers (“Draft Legislation”), outlining the updated exemptions for certain foreign financial service providers (FFSPs) from the requirement to hold an Australian financial services license (AFSL). In particular, the Draft Legislation proposes three exemptions: the professional investor exemption, the comparable regulator exemption and the fit and proper person test exemption. Each of these exemptions has the objective of promoting diversified investment opportunities for Australian investors and attracting additional investment to Australian markets.