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Alan Darwin

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

The Federal Court of Australia has ordered wholesale licensee Lanterne Fund Services Pty Ltd (“Lanterne”) to pay a AUD 1.25 million penalty for failing to meet its obligations as an AFS licensee. This case is one of the first to litigate AFS obligations in the context of “license for hire” businesses. It provides some useful guidance to AFS licensees to work out what is a sustainable scale for authorizing Representatives for the business.

ASIC Corporations and Credit (Amendment) Instrument 2023/589 was registered on 17 October 2023 to amend ASIC Corporations and Credit (Breach Reporting – Reportable Situations) Instrument 2021/716. The amendments modify the current reportable situations regime applicable to Australian financial services licensees and Australian credit licensees and apply from 20 October 2023.

For the fourth time since its inception in September 2016, the Australian Securities and Investments Commission (ASIC) has extended the transitional relief period for Foreign Financial Services Providers (FFSPs) for a further 12 months until 31 March 2025. In its introduction of the ASIC Corporations (Amendment) Instrument 2023/588 on 4 August 2023, FFSPs have been offered a further extension on relief from the requirement to hold an Australian financial services license when providing certain financial services.

The Federal Court’s recent decision in Australian Securities and Investments Commission (ASIC) v Scholz (No 2) [2022] FCA 1542 has important implications for those who discuss financial products and services on social media platforms. Handed down on 20 December 2022, the Court’s judgment heralds a warning that social media ‘finfluencers’ may be considered to be carrying on a financial service business and thus are required to have an Australian Financial Services License.

The Australian Securities and Investments Commission has, again, extended the transitional relief period for Foreign Financial Services Providers for a further 12 months to 31 March 2024, through the introduction of the ASIC Corporations (Amendment) Instrument 2022/623 on 28 July 2022. ASIC has stated the Amendment Instrument was introduced to provide certainty for the industry given the lapsing of the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Bill 2022.

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.

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 (AFS) 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.

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.