Australian Regulators Weekly Wrap — Monday, 15 November 2021

15 November 2021
Liam Hennessy, Partner, Brisbane

Keeping on top of the latest financial services regulatory and compliance trends?

Investing time in your professional development within a rapidly changing financial services industry is challenging. To meet that challenge, the Australian Regulators Weekly Wrap is designed to keep you at the forefront of your practice by quickly setting out the top five developments from the past week, analysis and practical considerations for the future.

  1. Climate change (APRA/RBA): the prudential regulator and RBA have published a joint statement on the actions they are taking to ensure financial institutions and the financial system are prepared to respond to the financial risks of climate change. The main ones are: 1) integrating climate-related risks into financial stability monitoring and micro-supervision e.g. APRA is leading a bottom-up supervisory climate vulnerability assessment exercise with the five largest Australian banks under its supervision; 2) analysing the effect of climate-related risks on the macroeconomy and financial stability e.g. the RBA will conduct analysis to monitor the implications of climate change and related mitigation policies for the economy; 3) building awareness and intellectual capacity and encouraging knowledge sharing — both APRA and the RBA will continue to draw attention to the financial stability and macroeconomic consequences of climate change, including through speeches and by publishing analytical work on climate change; and 4) integrating sustainability factors into their own operations. You can read the statement here.
  2. Financial services / climate change (UK): last week we covered the fact that the UK is enshrining in legislation the requirement for major companies to disclose climate related actions which is a major development. From then, the UK’s Chancellor has announced that the UK will be the world’s first net zero financial centre. Over $130 trillion — 40% of the world’s financial assets — will now be aligned with the climate goals in the Paris Agreement, thanks to climate commitments from financial services firms. The Chancellor set out new requirements for UK financial institutions and listed companies to publish net zero transition plans that detail how they will adapt and decarbonise as the UK moves towards to a net zero economy by 2050. Further, he outlined new UK climate finance projects funded from the UK’s international climate finance commitment to help developing countries to fund green growth and adapt to the changing climate. Some excellent global leadership from the UK here.
  3. Records of advice (ASIC): ASIC has released an information sheet on records of advice (ROA) and three ROA examples to provide clarity to financial advisers and advice licensees on their obligations when using ROAs to provide personal advice to retail clients. An ROA is a simple record that confirms the advice provided by an advice licensee or an adviser. The ROA is quite similar to a Statement of Advice (SOA) but shorter and less formal. It is often given to existing clients to confirm changes to, or implementation of, advice that has been provided in a previous SOA. Advisers can use an ROA instead of giving a client an SOA in four separate advice situations: 1) further advice when an SOA has previously been provided; 2) no buy or sell product advice; 3) small investment advice i.e. under $15K; and 4) COVID-19 advice under the transitional rules approved by ASIC. You can see one of the examples in relation to an annotated life insurance product here, which I think is a really great initiative by ASIC and really useful. Bravo!
  4. ESG (IFRS): the IFRS Foundation is a not-for-profit, public interest organisation established to develop a single set of high-quality, understandable, enforceable and globally accepted accounting and sustainability disclosure standards — IFRS Standards — and to promote and facilitate adoption of the standards. The IFRS Foundation Trustees announced the creation of a new standard-setting board — the International Sustainability Standards Board (ISSB). The ISSB is designed to meet investors’ increasing demands for good quality, transparent, reliable and comparable reporting by companies on climate and other environmental, social and governance (ESG) matters. The intention is for the ISSB to deliver a comprehensive global baseline of sustainability-related disclosure standards that set out information about companies’ sustainability-related risks and opportunities. Together with the COP26 climate disclosures being legislated, it is a positive development.
  5. Clearview AI (OAIC): OAIC and the UK’s Information Commissioner’s Office opened a joint investigation into the personal information handling practices of Clearview AI Inc in July 2020. The investigation focused on the company’s use of data scraped from the internet and the use of biometrics for facial recognition. The joint investigation — which is an increasing phenomenon — was conducted in accordance with the Australian Privacy Act 1988 and the UK Data Protection Act 2018. It was also conducted under the Global Privacy Assembly’s Global Cross Border Enforcement Cooperation Arrangement and the MOU between the OAIC and ICO. OAIC found that Clearview breached privacy law, and ordered it to stop collecting images from websites and destroy data collected in Australia. Clearview’s actions fell “well short of Australians’ expectations” and carried “significant risk of harm to individuals, including vulnerable groups such as children and victims of crime, whose images can be searched on Clearview AI’s database”, Information Commissioner Angelene Falk said. From reading the facts of the case, Clearview are fortunate we do not have our new privacy laws in place yet otherwise there would be serious fines to contend with…

Thought for the future: it feels good reading about the changes to reporting for climate change and ESG matters, and the strengthening of the privacy laws next year — both are matters which have been socially important for many years and were due an upgrade in terms of meaningful regulation. Expect more to come in 2022, and a cross-stitching with current regimes e.g. FAR and breach reporting.

Published on Australian Regulators Weekly Wrap

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Authored by:

Liam Hennessy, Partner

Get in touch with the Gadens team to discuss any regulation and compliance issues.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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