Welcome to HSF FSR Australia Notes – 2023 Wrapped!

It has been another big year of regulatory change and enforcement action in the Australian financial services market, with DDO, unfair contract terms and breach reporting attracting a lot of attention and discussion among industry and the regulators.

In our 2023 Wrapped, we take a look at our top 5 'most read' articles from 2023.


ASIC doubles down – DDO pressure points

Our top article discusses 'DDO pressure points'. To date, ASIC has primarily focused on product design and target market determinations, but in 2024 and beyond, will focus on broader product and distribution governance under the DDO regime. In particular, ASIC has started issuing statutory notices and asking questions as part of a thematic review into how issuers and distributors are complying with their reasonable steps obligations.

In this article, we focus on some of our predictions and the key pressure points in DDO compliance as ASIC shifts its focus.


State of Play: ASIC gives breach reporting relief

In this article, we explore relief given by ASIC in October 2023 from the obligation to report "minor breaches" of the misleading or deceptive conduct prohibitions under Chapter 7 of the Corporations Act.


Fair game: Unfair contract terms in superannuation?

Here, we consider where the unfair contract terms regime may apply in a superannuation context, in particular, contracts such as, or contained within, product disclosure statements. While superannuation operates in accordance with the Superannuation Industry (Supervision) Act 1993 (Cth) and general trust law, it is still possible for a superannuation product to give rise to contractual relationships that exist concurrently with the trust relationship.


Financial Accountability Regime: HSF makes submission on Regulator Rules

In July 2023, ASIC and APRA released key materials for consultation, to support the implementation of the Financial Accountability Regime by the financial services industry. This included the proposed Regulator Rules and the 'Key Functions' descriptions for ADIs. Our team has made a formal submission on this consultation.

You can find a copy of our full submission here.


FSR GPS: When is an incorrect misstatement not misleading or deceptive?

We highlight in this article some key principles that can help licensees identify when an immaterial misstatement may not constitute misleading or deceptive conduct.

The aim of this article is to highlight scenarios where licensees may be over-reporting incidents that may not give rise to an actual contravention of financial services law.

What's on the 2024 horizon?

We expect DDO, unfair contract terms and breach reporting to remain core regulatory priorities over the next 12 months, as ASIC ramps up its enforcement agenda. Misleading or deceptive conduct will also continue to be a focus as the industry continues to grapple with what is reportable to ASIC.

But beyond this, we are already seeing the industry shifting focus towards the Financial Accountability Regime, protection against scams, climate reporting and opportunities arising from the Quality of Advice reforms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.