Australian Financial Services Regulatory Update | Q3–Q4 2022
This edition of the Update covers:
- Recent legal and regulatory developments, including guidance to APRA-regulated entities following the cyber attacks on Medibank and Optus, the release of the inaugural Climate Vulnerability Assessment, the extension of the CDR to non-bank lenders, ASIC guidance on the effectiveness of target market determinations and the new reportable situations regime, and the extension of relief for foreign financial services providers;
- Recent financial services litigation, including civil penalty proceedings commenced by ASIC against Amex and Firstmac for alleged failure to comply with the design and distribution obligations and civil penalty proceedings commenced by AUSTRAC and ASIC against the Star Group and 11 of its directors and officers for alleged AML/CTF failures; and
- Other regulatory enforcement action, including ASIC's issuance of infringement notices to Vanguard for greenwashing and the appointment by AUSTRAC of an external auditor in relation to SportsBet and Bet365.
KEY LEGAL AND REGULATORY DEVELOPMENTS
Cyber Security
Update for APRA-Regulated Entities Following Medibank and Optus Data Breach
On 24 October 2022, following major cyber-attacks on Medibank Private Limited and Singtel Optus Pty Limited, the Australian Prudential Regulation Authority ("APRA") urged regulated entities employing online application and policy transaction processes to strengthen verification controls and increase vigilance on avenues of potential fraud, including the use of credit card information. APRA cites the cyber-attacks as evidence that malicious cyber activity continues to escalate and urges regulated entities to review their incident response plans and ensure the regular testing of those plans. APRA also expects senior management and the board to be in a position to respond to and mitigate harm. APRA's media release can be found here.
ESG
APRA Releases Results of Inaugural Climate Vulnerability Assessment
On 30 November 2022, APRA published the aggregated findings of its first Climate Vulnerability Assessment ("CVA") of Australia's five largest banks. Conducted over the past two years, the CVA involved modelling by the participating banks of the estimated future financial impact of climate change on their businesses, as well as how they might respond to the resulting physical and transition risks. APRA's key insights from the CVA include: (i) the climate scenario analysis showed that physical and transition risks would have a measurable impact on lending losses in the medium-to-long term, but the participating banks are likely to be able to absorb these losses; and (ii) climate risk impacts are likely to be more concentrated in specific regions (such as those exposed to more severe and prolonged physical risks) and industries (such as mining, manufacturing, transport and wholesale trade). The results of APRA's CVA can be found here.
Greenwashing to Remain a Priority for ASIC
On 9 August 2022, the Australian Securities and Investments Commission ("ASIC") released a statement reminding regulated entities, and in particular superannuation and investment funds, that greenwashing is a key regulatory focus for ASIC. ASIC's statement follows the release of ASIC Information Sheet 271 "How to avoid greenwashing when offering or promoting sustainability-related products" (INFO 271), which provides advice to help superannuation and investment funds comply with existing obligations to avoid greenwashing. ASIC expects companies to provide clear disclosures, and explain action plans and targets. ASIC also supports the International Sustainability Standards Board to produce global climate change disclosure standards. ASIC's statement can be found here.
APRA Publishes Findings of Latest Climate Risk Self-Assessment Survey
On 4 August 2022, APRA released its findings on a recent climate risk self-assessment survey conducted across banking, insurance and superannuation industries, completed by 64 medium to large institutions. The survey aimed to provide insight into how APRA-regulated entities are aligned with the Prudential Practice Guide CPG 229 "Climate Change Financial Risks", which provided guidance on managing financial risk and opportunities that may arise from climate change. APRA's key observations include: (i) four out of five boards oversee climate risk on a regular basis, while just under two-thirds of institutions (63%) have incorporated climate risk into their strategic planning process; (ii) almost 40% of institutions said climate-related events could have a material or moderate impact on their direct operations; (iii) nearly three-quarters of institutions (73%) said they had one or more climate-related targets in place; however, 23% of institutions do not have any metrics to measure and monitor climate risks; and (iv) more than two-thirds of institutions (68%) said they have publicly disclosed their approach to measuring and managing climate risks, with 90% of those aligning their disclosure to the Taskforce for Climate-related Financial Disclosures framework. APRA's media release can be found here.
Financial Markets
ASIC-RBA Joint Statement on ASX CHESS Replacement Program
On 17 November 2022, ASIC and the Reserve Bank of Australia ("RBA") issued a joint statement, following the Australian Securities Exchange's ("ASX") announcement that it will reassess all aspects of the Clearing House Electronic Sub-register System ("CHESS") replacement program and pause all current activities on the project while the ASX revisits the technology design. ASIC and the RBA recognise that this was a necessary decision that provides for the resolution of the issues identified in an independent review conducted by Accenture and the ASX's own internal assessment of the CHESS project. ASIC and the RBA expect that: (i) the current CHESS is supported and maintained to ensure its stability, resilience and longevity so that it can continue to service the market reliably; (ii) the ASX improves its program delivery capabilities; and (iii) the replacement program is brought back on track after the solution design has been completed so the ASX's commitment to deliver safe and reliable clearing and settlement infrastructure is fulfilled. The joint statement can be found here.
ASIC Reports on Practices in Wholesale Financial Markets
On 25 October 2022, ASIC released two reports on practices in wholesale financial markets, namely ASIC Report 741: "Conduct risk in wholesale fixed income markets" ("Report 741") and ASIC Report 742: "Managing Conflicts of interest in wholesale financial markets" ("Report 742"). Report 741 outlines key conduct risks in fixed income markets, including misleading or deceptive conduct, insider trading and market manipulation. It also summarises ASIC's observations of differences in the maturity of participants' management of these risks. In Report 742, ASIC reports on differing levels of sophistication in the management of conflicts of interest. Better practices involved proactive and systematic identification, mitigation and management of conflicts of interest. Poorer practices were ad hoc, manual and reflected a lack of prioritisation by participants. ASIC media release on Report 741 and Report 742 can be found here.
Consumer Protection
ASIC Surveillance of Marketing by Managed Funds
On 8 September 2022, ASIC reported that its recent surveillance of fund managers has found that more needs to be done by regulated entities to ensure that the investment performance representations in their funds' marketing materials are appropriate. Thirteen responsible entities or trustees of investment funds have voluntarily amended, or arranged for the investment manager to amend, their marketing materials and/or practices across 18 funds as a result of ASIC's ongoing surveillance into the marketing of managed fund performance and risks. ASIC's Deputy Chair Karen Chester indicated that ASIC is concerned that retail investors and unsophisticated wholesale investors are making decisions based on inaccurate fund performance data. ASIC expects regulated entities to be aware of the regulatory guidance about marketing of managed funds and other financial products. ASIC's media release can be found here.
Consumer Data Right Extended to Non-Bank Lenders
On 19 August 2022, Treasury released its final report on Consumer Data Right ("CDR")–Sectoral Assessment for Non-Bank Lending, which recommends the designation of the non‑bank lending sector for the CDR. It recommended designating generic and publicly available information about non‑bank lending products, information about a CDR customer (such as contact information) and information about the use of a non‑bank lending product. The government has released a draft designation document covering the scope of datasets and data holders proposed to be designated in the sector and is now seeking consultation before the final copy is made. Treasury's final report can be found here.
ASIC Issues Stop Orders in Response to Deficiencies in TMDs
On 28 July 2022, ASIC placed interim stop orders on three financial firms in response to deficiencies in the target market determination ("TMD") for their products. ASIC alleges that the firms did not appropriately identify the consumers they intended to target and did not have a TMD. The products may have been marketed and sold to retail investors where they were too risky or not appropriate. These actions are ASIC's first use of the stop order powers under the design and distribution obligations ("DDOs"), which took effect on 5 October 2021. ASIC's media release can be found here.
Superannuation
Superannuation Regulatory Update: What to Expect Over the Next Five Years
On 7 September 2022, ASIC Commissioner Danielle Press and APRA Member Margaret Cole spoke to the AIST Conference of Major Superannuation Funds about what superannuation funds should expect from ASIC over the next five years. The Commissioner highlighted three key areas for superannuation funds to focus on, namely: (i) capturing data to better understand Australia's financial future; (ii) gaining maturity in the sector; and (iii) considering trustee obligations relating to market integrity. The Commissioner's speech can be found here.
Superannuation Trustees Urged to Improve Effectiveness of TMDs
On 29 August 2022, ASIC called on superannuation trustees to review and improve the effectiveness of TMDs for superannuation products. Based on ASIC's surveillance, ASIC recommended that trustees clearly define target markets, make investment sub-markets more specific and set review triggers. These review triggers should set review periods and distribute complaint reporting to help trustees stay informed about their product. ASIC's media release can be found here.
Prudential Requirements
APRA Releases Final Reporting Standards on Updated Capital Framework for ADIs
On 10 August 2022, APRA released its final reporting standards to support the capital adequacy and credit risk capital requirements for authorised deposit-taking institutions ("ADIs"). The report responds to the consultation released in April 2022 about APRA's proposed reporting standards. The standards will operate alongside the new bank capital framework, which intends to align Australian standards to internationally agreed Basel III standards. APRA's media release can be found here.
APRA Proposes Reforms to the Prudential Standards Strategic Planning and Member Outcomes
On 1 August 2022, APRA released a Discussion Paper seeking feedback from industry on proposed changes to update APRA's prudential standard governing strategic planning and member outcomes in superannuation. Prudential Standard SPS 515 "Strategic Planning and Member Outcomes" ("SPS 515"), which came into effect early 2020, requires trustees to evaluate their performance in delivering outcomes to members and also consider whether they will continue delivering quality outcomes into the future, and address areas that need improvement. The pace of change in the industry and its regulatory and legislative settings, as well as APRA's observations of how the standard is operating, have prompted APRA to revisit the design of SPS 515. APRA has proposed updating SPS 515 to make it more effective and simpler for trustees to understand and implement, including to: (i) ensure trustees deliver measurable and quality outcomes to all members; (ii) increase board oversight of financial projections and closer monitoring of financial resources that better reflects their risk profile and nature of their business; and (iii) ensure timely action is taken to address areas of underperformance, including transferring members to better performing products or funds. Submissions on the Discussion Paper closed on 11 November 2022. APRA's media release can be found here.
APRA Consults on New Prudential Standard to Strengthen Operational Resilience
On 28 July 2022, APRA released a Discussion Paper and a proposed new cross-industry Prudential Standard CPS 230 Operational Risk Management to set minimum standards for managing operational risk in banking, insurance and superannuation. Operational risk is the financial loss or material disruption from inadequate or failed internal processes, actions by people or external drivers. The proposed standard includes requirements for the entity to maintain internal controls for operational risk, be prepared to continue delivery of critical operations during disruption and manage risks associated with the use of service providers, and will replace a number of prudential standards currently in place. Submissions closed on 21 October 2022. APRA expects to release the final CPS 230 early next year, to come into force from 1 January 2024. APRA's media release can be found here.
Licensing
ASIC Releases Guidance on 'Reportable Situations' Regime
On 10 August 2022, ASIC announced it will focus on improving the operation of the reportable situations regime which applies to Australian financial services licensees and credit licensees. ASIC acknowledges that the regime has led to a number of implementation challenges. However, ASIC believes that the lodgement of reports by licensees under the regime provides a critical source of intelligence to enable ASIC to identify emerging trends of non-compliance in the industry, and detect non-compliant behaviours earlier. ASIC will engage with industry on reporting practices to further understand any issues that are placing unnecessary compliance burden on industry, and will set clear expectations for compliance with the regime. ASIC's media release can be found here.
ASIC Releases Insights from 'Reportable Situations' Regime
On 27 October 2022, ASIC published Report 740 "Insights from the reportable situations regime: October 2021 to June 2022". The regime requires ASIC to annually publish information about reports that are lodged by licensees. ASIC commented that the numbers show, among other things, that: (i) a much smaller proportion of licensees have reported under the regime than anticipated (with only 6% of the licensee population lodging a report); (ii) licensees are still taking too long to identify and investigate some breaches; (iii) more work needs to be done to appropriately identify and report the root cause of breaches; and (iv) further improvements are needed to licensees' practices toward remediating impacted customers. The report notes that the most common category of root cause selected was staff negligence or error (60%), and also that staff negligence or error was the sole root cause category in 55% of reports where the licensee reported there had been previous similar breaches and/or there were multiple breaches grouped. This raises a concern that licensees may not be adequately identifying and addressing the underlying root causes for breaches, such as by determining the underlying reasons for repeated staff negligence or error, and ASIC proposes to provide guidance on selection of "staff negligence or error" as a root cause. ASIC's media release can be found here.
ASIC Extends Transitional Relief for Foreign Financial Services Providers
On 2 August 2022, ASIC extended to 31 March 2024 the transitional relief for foreign financial services providers from the requirement to hold an Australian financial services licence when providing financial services to Australian wholesale clients (sufficient equivalence relief that a provider was relying on prior to 1 April 2020, and limited connection relief). During the further 12-month extension period, ASIC will consider new applications for temporary licensing, and new standard or foreign Australian financial services licence applications. ASIC's media release can be found here.
Law Reform
Exposure Draft Reforms to Simplify the Corporations Act 2001 (Cth)
Between 24 August and 20 September 2022, Treasury sought consultation on draft legislation that intends to reduce the complexity of Australia's corporations and financial services laws by making these laws more adaptive, efficient and navigable. The draft legislation implements recommendations made by the Australian Law Reform Commission in Interim Report A of its Review of the Legislative Framework for Corporations and Financial Services Regulations ("Interim Report A") released in November 2021. Treasury's draft legislation, explanatory memorandum, explanatory statement and responding information are available here.
On 30 September 2022, the Australian Law Reform Commission's Interim Report B of its Review of the Legislative Framework for Corporations and Financial Services Regulations ("Interim Report B") was tabled in Parliament. Interim Report B sets out 11 law reform proposals which further develop a legislative model for corporations and financial services laws first introduced in Interim Report A. Submissions on Interim Report B closed on 30 November 2022. Interim Report A can be found here, and Interim Report B can be found here.
Governance
APRA Releases First Guide for Bank Board Directors
On 29 November 2022, APRA released its first handbook aimed at helping the directors of banks, credit unions and building societies to understand and comply with APRA's regulatory requirements. The handbook has been issued as part of APRA's multi-year initiative to modernise the prudential architecture. The handbook comprises overarching guidance for directors to assist boards in providing effective oversight of an ADI. This guidance is derived from APRA's Aid for Directors, which was originally published in 2014. It also includes a comprehensive list of material requirements and guidance for boards currently contained in APRA's prudential standards and prudential practice guides. APRA's handbook can be found here.
APRA Reports on Bank Risk Culture
On 10 November 2022, APRA released its findings on its risk culture survey of 18 ADIs conducted between October–December 2021. In general, APRA found that ADI executives were significantly more confident than the legal, risk and compliance functions about: (i) the effectiveness of their organisation's risk governance and controls; and (ii) how comfortable employees feel speaking up or admitting they made mistakes. APRA also found that clearly delineated risk management roles and responsibilities was an area where capability and practices could be improved. APRA's findings can be found here.
ASIC's Corporate Plan for 2022–2026 and Enforcement Priorities for 2023
On 22 August 2022, ASIC released its Corporate Plan which outlines its strategic priorities for the next four years. ASIC's priorities include: (i) reducing the risk of harm to consumers caused by poor product design and distribution; (ii) supporting market integrity through proactive supervision and enforcement of governance for sustainable finance; (iii) protecting consumers on making decisions for retirement; and (iv) focusing on the impacts of technology in financial markets and services with good cyber-risk practices. ASIC's Corporate Plan can be found here.
On 3 November 2022, ASIC also released its Enforcement Priorities for 2023. ASIC's specific areas of focus include investment scams, predatory lending practices, misleading conduct and poor governance in superannuation, greenwashing and director misconduct in connection with the collapse of property investment schemes. ASIC notes that while specific areas to target will change from year to year to keep up with shifting economic factors and the volatile risk environment, ASIC's five enduring priorities will remain: (i) misconduct damaging to market integrity, including insider trading, continuous disclosure failures and market manipulation; (ii) misconduct impacting First Nations people; (iii) misconduct involving a high risk of significant consumer harm, particularly conduct targeting financially vulnerable consumers; (iv) systemic compliance failures by large financial institutions resulting in widespread consumer harm; and (v) new or emerging conduct risks within the financial system. ASIC's Enforcement Priorities can be found here.
APRA's Corporate Plan for 2022–2023
On 8 August 2022, APRA published its updated Corporate Plan to reinforce the financial soundness of banking, insurance and superannuation industries over the next four years. The Corporate Plan intends to respond to the changing geopolitical tensions, inflationary pressures and rising interest rates as well as the impact of technology. To prepare for the upcoming challenges, APRA's Corporate Plan seeks to respond to the impact of new financial activities and participants, find solutions to large challenges such as financial risk due to climate change and superannuation retirement income products, and adopt latest regulatory tools and practices. APRA's media release can be found here.
Review of the Reserve Bank of Australia
On 20 July 2022, the Hon Dr Jim Chalmers MP announced a review of the Reserve Bank of Australia. The review, led by three independent experts, will consider the RBA's objectives, mandate, monetary, fiscal and macroprudential policy, governance, culture and operations. The final report of the review, with recommendations to Government, is due by March 2023. A copy of the announcement can be found here.
RECENT FINANCIAL SERVICES LITIGATION
ASIC Commences First Civil Penalty Proceedings for DDO Failures
On 6 December 2022, ASIC commenced proceedings in the Federal Court of Australia against American Express Australia Limited ("Amex") alleging breaches of the DDOs. This is ASIC's first civil penalty action taken against a product issuer under the DDO regime. ASIC alleges that there were deficiencies in the TMDs made by Amex in respect of two co-branded credit cards issued by Amex to retail consumers in David Jones stores. Further, ASIC alleges that: (i) Amex was aware that the cancellation rates for the co-branded cards were high, and significantly higher than cancellation rates for other credit cards; and (ii) Amex knew some consumers were confused about whether they had applied for a loyalty card or a credit card and that this was a circumstance that indicated the TMDs were not appropriate and required Amex to review the TMD and stop issuing the cards. ASIC claims that despite this, Amex continued to issue the credit cards until 5 July 2022. ASIC is seeking declarations and pecuniary penalties from the court. ASIC's media release can be found here.
Further, on 16 December 2022, ASIC commenced proceedings in the Federal Court of Australia against Firstmac Limited ("Firstmac"), a non-bank lender and investment manager of registered managed investment scheme High Livez, alleging breaches of the DDOs. This is ASIC's first civil penalty action taken against a product distributor under the DDO regime. ASIC alleges that in marketing and distributing High Livez to term deposit holders, Firstmac failed to take reasonable steps to ensure that the product was distributed in accordance with the TMD. Specifically, ASIC alleges that by adopting a cross-selling strategy of marketing and distributing High Livez to term deposit holders, there was a likelihood that those customers would be outside the High Livez target market, because unlike Firstmac's term deposits which were guaranteed by the Commonwealth Government in the amount up to $250,000 per account, High Livez was not a capital guaranteed product. The TMD indicated that customers seeking a capital guarantee were not in the target market. In addition, the investment timeframes for term deposits ranged from 30 days to two years, whereas the recommended investment timeframe for High Livez was a minimum of three years up to five years. The TMD indicated that customers seeking an investment timeframe of two years or less were not in the target market. ASIC is seeking declarations and pecuniary penalties from the court. ASIC's Originating Application and Concise Statement can be found here.
Civil Penalty Proceedings Commenced Against Star Entertainment Group Entities and 11 Current and Former Directors and Officers in Connection with AML/CTF Failures
On 30 November 2022, ASIC commenced civil penalty proceedings in the Federal Court of Australia against The Star Pty Limited and The Star Entertainment QLD Limited (the "Star Entities") for alleged serious and systemic non-compliance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ("AML/CTF Act"). The civil penalty proceedings follow an extensive enforcement investigation commenced in June 2021, throughout which the Australian Transaction Reports and Analysis Centre ("AUSTRAC") has been working with state and federal agencies with a regulatory interest in the Star Entities, including the NSW and Queensland gaming regulators and ASIC. AUSTRAC's allegations are extensive and include that the Star Entities (among other things): (i) failed to appropriately assess the AML/CTF risks they faced and to identify and respond to changes in risk over time; (ii) did not include in their AML/CTF programs appropriate risk-based systems and controls to mitigate and manage the risks to which the Star Entities were reasonably exposed; (iii) failed to establish an appropriate framework for board and senior management oversight of the AML/CTF programs; (iv) did not have a transaction monitoring program to monitor transactions and identify suspicious activity; and (v) did not conduct appropriate ongoing and enhanced customer due diligence on customers who presented higher money-laundering risks. AUSTRAC is seeking declarations of contravention and civil penalties. The proceedings against the Star Entities are only the fifth civil penalty proceedings commenced by AUSTRAC for contraventions of the AML/CTF Act. AUSTRAC's Originating Application and Concise Statement can be found here.
Further, on 13 December 2022, ASIC commenced civil penalty proceedings in the Federal Court of Australia against 11 current and former directors and officers of The Star Entertainment Group Limited ("Star Group") (including the former and current Chair of the Board, former Managing Director and CEO, former CFO, former Chief Casino Officer and former Company Secretary and Group General Counsel) for alleged breaches of their duties of care and diligence under s 180 of the Corporations Act. In respect of the current and former directors, ASIC alleges they breached their duties by: (i) failing to make inquiries into whether Star should be dealing with certain individuals with reported criminal links when considering the expansion of Star's relationship with those individuals; and (ii) failing to take steps to make further enquiries of management when presented with information about AML/CTF risks. In respect of the former officers (including the former Company Secretary and General Counsel), ASIC alleges they breached their duties by: (i) not adequately addressing the AML/CTF risks that arose from dealing with Asian gambling junket Suncity and its funder, as well as continuing to deal with them despite becoming aware of reports of criminal links; and (ii) not appropriately escalating AML/CTF issues to the board. ASIC is seeking declarations, pecuniary penalties and disqualification orders. ASIC's Originating Application and Concise Statement can be found here.
ASIC Commences Civil Penalty Proceedings for Unlicensed Issuance of Crypto Products
On 23 November 2022, ASIC commenced civil penalty proceedings in the Federal Court of Australia against Block Earner, a digital currency exchange, alleging it provided unlicensed financial services in relation to its crypto-asset based products and that it operated an unregistered managed investment scheme. Block Earner offered a range of fixed-yield earning products based on crypto-assets under the names USD Earner, Gold Earner and Crypto Earner (collectively, the "Earner Products"). ASIC alleges that the Earner Products were financial products that should have been licensed because the products were a managed investment scheme, a facility through which a person makes a financial investment and/or a derivative. ASIC's concise statement can be found here.
ASIC has also recently taken other action to protect investors from harms posed by crypto-asset offerings. On 25 October 2022, ASIC commenced civil penalty proceedings against BPS Financial Pty Ltd over allegedly misleading statements made in relation to its crypto asset Qoin. Further, on 17 October 2022, ASIC placed interim stop orders preventing Holon Investments Australia Limited from offering or distributing three funds to retail investors because of non-compliant target market determinations. Each of the funds is invested in a highly volatile crypto asset, and ASIC was concerned Holon has not appropriately considered the features and risks of the funds in determining their target markets.
OTHER REGULATORY ENFORCEMENT ACTION
ASIC Enforcement and Regulatory Update July to September 2022
On 12 December 2022, ASIC released its quarterly update outlining key enforcement actions for the third quarter of 2022. During the quarter, ASIC secured a $14.5 million civil penalty against AMP companies for charging superannuation members fees for no service and a $7 million civil penalty against a wealth management firm for breaches of their best-interest obligations. ASIC issued five DDO stop orders and made product intervention orders prohibiting the issue of short-term credit and continuing credit contracts to retail clients. ASIC continued to oversee remediation for consumers subject to harmful sales and retention practices, with more than $5.6 billion returned to an estimated seven million Australian consumers in the six years to September 2022. ASIC's update can be found here.
ASIC Issues Infringement Notices for Greenwashing
On 2 December 2022, ASIC issued three infringement notices to investment manager Vanguard Investments Australia Ltd ("Vanguard") in further action against alleged greenwashing. ASIC was concerned that Product Disclosure Statements for the Vanguard International Shares Select Exclusions Index Funds may have been liable to mislead the public by overstating an exclusion, otherwise known as an investment screen, claimed to prevent investment in companies involved in significant tobacco sales. ASIC's media release can be found here.
AUSTRAC Orders Audit of Sportsbet's and Bet365's Compliance with the AML/CTF Act
On 3 November 2022, AUSTRAC ordered the appointment of external auditors under s 162 of the AML/CTF Act to assess compliance of two corporate bookmakers, Sportsbet Pty Ltd ("Sportsbet") and Hillside (Australia New Media) Pty Limited ("Bet365"). The external auditors will assess Sportsbet and Bet365's compliance with (among other things): (i) adopting and maintaining an AML/CTF program that has appropriate risk-based systems and controls in place; (ii) undertaking an appropriate ML/TF risk assessment that considers the risk posed by their customer types, the types of designated services they provide and the methods by which they deliver those designated services; and (iii) ensuring Sportsbet and Bet365 have a framework through which their boards and senior management have ongoing oversight of their Part A programs. The outcome of the audits will inform AUSTRAC as to whether any further regulatory action is required. These actions are the result of an extensive supervisory campaign that assessed entities within the corporate bookmaker sector and follow the commencement of an investigation into Entain Group Pty Ltd (Ladbrokes) in September 2022. AUSTRAC's media release can be found here.
ASIC Enforcement and Regulatory Update April to June 2022
On 28 July 2022, ASIC released a quarterly update outlining key enforcement actions for the second quarter of 2022. During the quarter, ASIC: (i) took action in the Federal Court of Australia against entities where Australian consumers were allegedly misled or charged excess fees; (ii) took action against an entity for failing to adequately manage cyber risk; (iii) issued guidance and information to help industry comply with obligations; (iv) provided information to superannuation and investment funds on how to avoid greenwashing; (v) released guidance under the Better Advice Act; (vi) sought to improve industry's financial reporting and risk management; and (vii) set new reporting requirements for Australian financial services licensees. ASIC's update can be found here.
