Australia

Topic: Investigations

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Privilege and internal investigations

Conducting investigations into allegations of regulatory breaches, fraud or corruption can present serious legal and commercial risk if privilege cannot be asserted over the findings of those investigations. That risk may be compounded if boards choose to conduct such investigations in-house, often with compliance managers or in-house counsel reporting the findings of those investigations directly … Continue Reading

Super fraud – APRA releases guidance on prevention and response

On 10 June 2015, the Australian Prudential Regulation Authority (APRA) released the final version of its Superannuation Prudential Practice Guide SPG 223 – Fraud Risk Management (SPG 223) following consultation with industry conducted in October 2014. As with other prudential practice guides released by APRA, SPG 223 is a non-binding document which sets out APRA’s … Continue Reading

Regulatory disruption

Technology led innovation can cause much indigestion for conduct and prudential regulators as they try to find the right regulatory pigeion hole for innovators in their regimes that were not built to handle such innovation.  It is this disruptive impact of innovation that is shaping the regulation of tomorrow. Numerous conduct regulators around the world have acknowledged that a mandatory … Continue Reading

Innovation and Disruption

Financial Institution Symposium  Technology-led innovation has the potential to truly disrupt existing business models and distribution channels in the financial services industry. In Australia and more broadly, we have seen start-ups build innovative payment systems, peer-to-peer lending platforms, crypto-currencies, robo-advice and automated investment management. However, the large institutions are well capitalised, have large customer bases … Continue Reading

Court finds unconscionable conduct in sale of CCI

Recent enforcement action by ASIC against collapsed payday lender, the Cash Store Pty Ltd (TCS), has put the sale of consumer credit insurance (CCI) into sharp focus. On 19 February 2015, the Federal Court awarded penalties against TCS and its loan funder, Assistive Finance Australia Pty Ltd (AFA) of almost $19 million. It found that … Continue Reading

Enforceable undertakings – ASIC to make experts’ findings available to the public

On 19 February 2015, we reported on ASIC enforcement actions in the second half of 2014. ASIC has since updated its regulatory guidance on enforceable undertakings (RG 100).  The updated guidance will apply to enforceable undertakings accepted by ASIC from 9 March 2015. The changes made to the guidance centre primarily around the engagement of experts … Continue Reading

Australia’s bribery and corruption regulator flexing its powers: a ‘wake-up call’ to company directors

For the second time ever, the Australian Federal Police have laid bribery and corruption charges against directors of an Australian company. Unlike their regulator counterparts in the US and UK, the AFP have until now, been very reluctant to exercise their anti-bribery powers, but with a reported further 14 active foreign bribery investigations at the moment … Continue Reading

ASIC enforcement actions Q4 2014: is an increase in penalties on the cards?

ASIC has recently released its quarterly enforcement report detailing enforcement outcomes between 1 July 2014 and 31 December 2014.  The report addresses the range of criminal and civil action taken by the regulator, and highlights action taken against companies and directors resulting in criminal charges which were most significant during the period. In addition, significant … Continue Reading

CFTC staff extends no-action relief – allows four foreign clearing organizations to continue clearing swaps for US persons

On December 18, 2014, the Commodity Futures Trading Commission’s (“CFTC’s”) Division of Clearing and Risk (“DCR”) issued extensions of previously granted “No-Action” relief to four foreign clearing organizations. The relief allows these foreign clearing organizations to continue to clear swaps for certain United States persons (“U.S. persons”) without being registered as a derivatives clearing organization … Continue Reading

FSI Consumer Protection Recommendation 21: A targeted and principles-based product design and distribution obligation

The FSI shares concerns raised by ASIC that consumers are buying products that do not match their needs. The existing regulatory framework relies heavily on disclosure, financial advice and financial literacy. However, disclosure can be ineffective for a number of reasons, such as complexity of documents and misaligned interests. The FSI also considers that current … Continue Reading

Product governance and a proactive, interventionist regulator: the consumer protection recommendations of the Financial Systems Inquiry

The release of the final report of the Financial Systems Inquiry (FSI) brings us a step closer to a significant shift in conduct regulation in Australia.  As we have previously reported, Australia seems set to join a UK and European trend away from regulation driven by disclosure  towards an approach where product providers bear the responsibility … Continue Reading

The Murray Inquiry – Technology and cybersecurity

As with the Murray Inquiry’s Interim Report, the Final Report highlights cyber security and technology related fraud risks as an emerging trend for the financial services industry that presents many challenges. At the forefront of the risks that arise is the rapid pace of technological change that is occurring within the financial system and how … Continue Reading

The Murray Inquiry – Corporate Administration and Bankruptcy

The Murray Report  accepts that “Australia’s external administration provisions are generally working well and do not require wholesale revision”. ASIC is to retain its supervision of corporate insolvency with recommendations that it be better resourced and “should devote more attention to industry supervision including more proactively identifying and weeding-out misconduct”. This approach is consistent with … Continue Reading

ASIC releases six-monthly enforcement report: 256 enforcement outcomes and plenty more in the pipeline

ASIC, which is Australia’s corporate, markets and financial services regulator, has over the last six months achieved a bumper 256 enforcement outcomes designed to protect consumers and enhance the fairness and efficiency of the financial markets.  These enforcement outcomes included criminal, civil and administrative actions in addition to negotiated outcomes such as enforceable undertakings. While … Continue Reading
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