Andrew Ham

One year on, we have decided to delve a little deeper into Metal Manufacturers v Morton, for its broader implications for voidable transactions, and the analysis by the High Court of the voidable transactions and pari passu regimes within the Corporations Act 2001 (Cth), and their relationship to the set-off provisions in section 553C

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Exemptions Exemptions (Actually a Modification) AML/CTF Act Modification #2 of 2024 - Australian Securities and Investments Commission Declaration This modification relates to personal information and protected material in ASIC v Bekier & Ors (NSD 1082/2022). It replaces AML/CTF Act Modification #1 of 2024 - Australian Securities and Investments Commission Declaration For the litigation aficionados below is a link to an interlocutory judgment of in ASIC v Bekier & Ors relating to the use of personal information and protected materials referenced in the Modification. https://lnkd.in/edTy4fCy

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Banking Code of Practice I never realised what a joke the Banking Code of Practice was until today. Westpac has been found to have engaged in a serious and systemic breach of paragraphs 14 and 36 of the Code when it closed its Tennant Creek, Northern Territory branch on 19 September 2022. The Code Committee found that: 20. The breach was systemic as it impacted all customers who normally conducted their banking at the branch. Westpac confirmed that when the branch closed, 3,398 customers were domiciled to the branch. 23. Though Westpac took some innovative steps to help support customers, such as its arrangement with the remaining major bank to return ATM cards, we consider the breaches are very serious in nature, for the following reasons: * The breaches posed a high risk of harm to customers – the members of the community who were most affected, or at risk of being most affected, by these breaches were those potentially experiencing vulnerability and were not equipped to handle the transition with no notice or assistance. * Westpac’s response was inadequate and slow, despite concerns being raised by the community and the BCCC. ...and the sanction? 25. In this instance, we have decided to apply a sanction to name Westpac and publish details of their non-compliance on our website and in our Annual Report. Given all the bad press Westpac has been receiving over the last 12 months, getting named in the BCCC Annual Report is hardly going to cause anybody at Westpac any sleepless nights. These are the sanctions the Committee can impose - The BCCC has discretion to determine what sanctions to apply after considering the seriousness of the breach. Sanctions available to the BCCC are: a) To require a Code subscriber to rectify or take corrective action on the breach identified b) To require a Code subscriber to undertake a compliance review of their remediation actions c) To formally warn a Code subscriber d) To require a Code subscriber to conduct a staff training program on the Code e) To name the Code subscriber in the BCCC annual report or website; and f) To report serious or systemic ongoing instances, where a Code subscriber has been non-compliant, to ASIC. I have worked on a couple of industry codes and one obvious sanction that is often included is to fine a member for non-compliance. For example under the Medicines Australia Code of Conduct fines of up to $300,000 can be imposed. Admittedly not a huge amount for a pharmaceutical company or a bank, but it at least has more of a sting that being named in the annual report or on a website of an organisation that most people have never heard of.

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The OAIC's concise statement on its Federal Court proceedings against Medibank was released this week. The Court's decision will provide important guidance on the information security requirements under APP 11.1, and also the penalties (and how they are calculated) for non-compliance. Read our Insights on the concise statement here: #privacylaw #ausprivacy #jws

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Since the ACMA began its increased enforcement actions, there has been a noticeable uptick in penalties issued.  In this article Hamish Fraser and Jenny Hwang consider what the law says in light of the ACMA’s primary focus on two key issues: ensuring that consent is obtained and providing a functional unsubscribe option. #AusLaw #Law #Spam #DataPrivacy #PrivacyLaw #ConsumerLaw https://lnkd.in/gvJMNzEG

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ASIC consultation Paper Yesterday, ASIC released its latest consultation paper concerning Info Sheet 225. With respect to the authors of this consultation paper, in my opinion this paper misses the main issue. Obviously, ASIC's raison d'etre is to protect markets and in particular the investor community. BUT at the same time ASIC should not obviate innovation. Digital asset development is rapid and new business structures are being developed which can cause angst with ASIC. I draw this out because the same old position is being put forward by this consultation paper. Para 26 basically puts forward the enforcement approach instead of working with new players. Most new entrants into the DeFi market are and will continue to be start-ups who do not have the resources to standup to ASIC. An alternative position could be an adaption of the approach implemented by the ATO. This is just an idea which would need further investigation, but which would involve the implementation of private rulings. Continuous reporting say on a monthly basis could be needed but that should be able to be automated. This enforcement approach is too expensive for innovated new market entities. It basically stifles innovation. ASIC should try better to work with and guide organisations instead of stonewalling new market players through litigation. The only people who are guaranteed a benefit from litigation are the lawyers for both sides. So I wonder how much of government resources including the cost of court staff are wasted on litigation. In the past ASIC has clearly stated that it does not provide legal advice, which is OK but surely, they can provide better guidance to new market players. Following the SEC and Gary Gensler approach is only going to do more harm to the future of DeFi in Australia. Singapore is rapidly moving further ahead of Australia in a Defi market. I will certainly be submitting a full reply to this consultation paper in due course.

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AML is finally officially coming for AU law firms... It's been talked about for years, but with the bill passed on 11 September, there is now a firm deadline for the introduction of these new controls around CDD, risk assessments and reporting. Verlata have been working with firms on their AML processes and reporting through our teams in NZ and UK for years now and are ready to help firms in AU to understand their obligations and how to prepare their intake processes to meet them. Please reach out if you have any questions, we're here to help. #AML #Verlata #Compliance #Risk #Intake https://lnkd.in/exGpnZhy

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What is not in the ASIC consultation paper released yesterday In addition to my previous post there are some other issues that the Government might want to consider. 1) why are DCEs/VASPs principally regulated for money laundering. Non-custodial wallets are a real and persistent threat in laundering money and contributing to financing terrorism. The travel rule currently focuses on DCEs/VASPs. If I possess a non-custodial hardware wallet and I wish to send to President elect Donald Trump some bitcoin then all I need is to ask him for a public key address to which he holds the corresponding private key and I can transfer to him any amount of digital assets without the need to involve a DCE/VASP. Now there is a very simple solution to this which is backward compatible so as to cover the many millions of hardware wallets already deployed. Any upgrade to the hardware wallets could include a functionality the requires the capturing a certain information in compliance with recommendation 16 (Travel rule). The devise will capture the information which can later be interrogated by law enforcement after appropriate judicial approval such as via a search warrant. 2) In the 1990's there were a number of reports dealing with the deployment of stored value cards. It was proposed that no issued card could hold more than a regulated amount ($500). Hardware wallets could in addition to controlling various private keys could also aggregate the value of crypto holdings and the firmware could be structured to limit the value in aggregate of crypto holdings. 3) The influx of stable coins as a means of consumer purchasing power is growing. Therefore it is now possible to purchase consumer items without the need to involve the conversion of the stable-coin into fiat in order to carry out the transaction. Point 2 above could be of assistance to the stable-coin issue. Just some thoughts. The above are not meant to be definitive solutions but simply to open some discussion of the relevant issues.

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The proposed changes to the TASA Code of Professional Conduct have been finalised and are now law. Kelvin Deer, director of the Australian Bookkeepers Association (ABA), offered this perspective: “Significant consultation time was invested with Treasury to force modifications to the proposed Code of Conduct changes”. The changes to Treasury’s Code Determination mean that they are more workable than was originally the case”. Importantly, a transitional measure was introduced, which means that smaller practitioners (under 100 employees) will not need to make changes until 30 June 2025. Find out more: https://lnkd.in/gr5kSm9M

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⚠ The overwhelming majority of our Australian review clients are NON-COMPLIANT on this regulatory requirement: Institutions must regularly monitor and review institutional compliance with the Code by conducting an annual review of the effectiveness of its processes regarding complaints and non-compliance (Section 2.1.9(iii) of the Australian Code for the Care and Use of Animals for Scientific Purposes. If you're managing an animal care and use program in Australia, you know the importance of effective compliance and the consequences of getting it wrong. But ensuring your processes are working as intended—without unnecessary stress or time-consuming hurdles—can be a real challenge. That’s why my newsletter subscribers get exclusive access to free tools and templates I’ve developed to tackle these exact pain points. Last week, I shared a practical template designed for conducting the annual review of the effectiveness of complaints and noncompliance processes. 👉 Ready to make compliance a little easier? Subscribe on our website to access the tools and get a head start on your compliance journey! https://lnkd.in/gdEQ3fkf

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Last month, we shared a post that focused on the proposed changes to the Australian Privacy Act that will require greater transparency about personal information handling practices by covered entities. The Government’s response was divided into the following sections – indicating a general ‘grouping’ of amendments: Bring the Privacy Act into the digital age Uplift protections Increase clarity and simplicity for entities and individuals Improve transparency and control Strengthen enforcement. We delved into what the changes relating to transparency and control will mean for Australian organisations in a recent post. You can read it here: https://buff.ly/4dELHLx

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Today (September 10), the Australian Securities and Investments Commission (ASIC) called on product issuers to review their distribution practices to ensure compliance with the design and distribution obligations (DDO) following findings of poor consumer questionnaires and limited due diligence. ASIC emphasized the need for better protection against financial harm caused by unsuitable products. Key Highlights: - ASIC’s report highlights inadequate monitoring of third-party distributors and poor consumer questionnaires among high-risk product issuers. - Recommendations include improving distributor selection, training, marketing, and monitoring consumer outcomes. - Since the introduction of DDO in 2021, ASIC has issued over 80 stop orders and taken action through civil proceedings to enforce compliance. ASIC remains focused on DDO compliance to safeguard consumers. For more updates on financial regulations and compliance, unlock cutting-edge legal intelligence with a free subscription to our platform — join us today. Visit https://lnkd.in/gZmkUPim to know more. #ASIC #DDO #FinancialCompliance #ConsumerProtection #ProductIssuers #GRI #FinancialServices

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We have issued our latest episode on open banking. There is a lot going on! We discuss what progress has been made in New Zealand in the absence of a consumer data right (CDR) regulation and where we are in the journey towards a CDR, with MBIE currently consulting on the scope of a designation in the banking (and electricity) sectors at the same time as the Customer and Product Data Bill moves through Select Committee. #openbanking #consumerdataright

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Well - it was a long time coming and after more than four years in the making, the first tranche of reforms of the Australian Privacy Act have been introduced into parliament. While the privacy world has not been expecting to see all of the “agreed” or “agreed in principle” reforms, expectations were high that we would see some of the fundamental and much needed reforms to the Privacy Act. The Bill certainly left us feeling like it’s the amuse bouche and hungry for more, with a relatively limited set of reforms being included. However, there are some interesting new provisions including a new statutory tort and criminal offence, and changes to enforcement and breach management powers. And, as with everything privacy and data, there may be some unintended consequences for APP entities. We will be publishing more analysis and insight over the next few days – sign up to our blog ‘A&O Shearman on data’ to find out more. Ross Phillipson Yik Yuen Chong Cara Burley A&O Shearman #APAC #privacy #cyber A&O Shearman | Preference Manager | International Law Firm with Global Reach | Login (aoshearman.com)

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💥New Deceptive Scams: Preying on Fraud Victims💥 A group claiming to be a team of lawyers is offering a service, saying they can help victims get back the money and assets they've been scammed out of... 💰 After a series of surveys, it turns out that most people say this is a scammer. 🚨 Click the following link to learn more about the whole situation: https://lnkd.in/gCwqTqUS #scam #ScamAlert #ScammerAlert #Beware #bewareofscammers #BewareofScams

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