COVID-19 (Coronavirus) Financial Services Regulatory Response as at 28 April 2020

Parliament to resume on 12 May

The Prime Minister has confirmed that Parliament will sit on 12, 13 and 14 May and there will likely be further sitting weeks before the end of June.

Parliament will deal with its previous legislative program (which includes the Financial Services Royal Commission Response Bill), together with any necessary COVID-19 bills, including legislation dealing with the COVIDSafe app privacy issues.

COVIDSafe app

The Commonwealth Government has released its COVIDSafe app to facilitate contact tracing, together with details of its privacy policy and protections.

Legislation will be introduced into Parliament in May to implement privacy protections for personal information collected by the app.

In the meantime the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 is intended to protect people’s privacy and restrict access to information from the app.

State and territory health authorities can access the information for contact tracing only. The only other access will be by the COVIDSafe Administrator to ensure the proper functioning, integrity and security of COVIDSafe, including to delete your registration information at your request. It will be a criminal offence to use any app data in any other way. The COVIDSafe app cannot be used to enforce quarantine or isolation restrictions, or any other laws.

The Office of the Australian Information Commissioner will have independent oversight of personal information handling by the app and the National COVIDSafe Data Store.

Safe Workplace Principles

National Cabinet has approved a series of “safe workplace principles” to guide the development of industry-specific rules to minimise the risk of coronavirus outbreaks among employees.

The principles include:

  • To keep our workplaces healthy and safe, businesses must, in consultation with workers, and their representatives, assess the way they work to identify, understand and quantify risks and to implement and review control measures to address those risks.
  • As COVID-19 restrictions are gradually relaxed, businesses, workers and other duty holders must work together to adapt and promote safe work practices, consistent with advice from health authorities, to ensure their workplaces are ready for the social distancing and exemplary hygiene measures that will be an important part of the transition.
  • Businesses and workers must actively control against the transmission of COVID-19 while at work, consistent with the latest advice from the Australian Health Protection Principal Committee, including considering the application of a hierarchy of appropriate controls where relevant.
  • Businesses and workers must prepare for the possibility that there will be cases of COVID-19 in the workplace and be ready to respond immediately, appropriately, effectively and efficiently, and consistent with advice from health authorities.
  • Existing state and territory jurisdiction of WHS compliance and enforcement remains critical. While acknowledging individual variations across WHS laws mean approaches in different parts of the country may vary, to ensure business and worker confidence, a commitment to a consistent national approach is key, including a commitment to communicating what constitutes best practice in prevention, mitigation and response to the risks presented by COVID-19.

Consumer Data Right temporary exemptions and amended draft Rules

The ACCC has announced that three-month exemptions have been granted to financial services providers required to share product reference data (information about a bank’s rates, fees and features of banking products) by 1 July 2020, due to the impact of the COVID-19 pandemic.

The temporary exemptions under the Consumer Data Right, until 1 October, will apply to non-major ADIs, including non-major banks, building societies and credit unions, and extend to non-primary brand products offered by the major banks.

The major banks have been sharing product reference data since July 2019.

A revised draft of the Consumer Data Right Rules has also been published by the ACCC.

The proposed amendments to the Rules include clarifications on the types of accounts in scope for sharing consumer banking data and new rules on the function of the Accreditation Register and Registrar as well as rules relating to the use of the Consumer Data Right logo.

The proposed amendments will come into effect from July 2020.

Australian Border Force Guidance on Modern Slavery Act

The Australian Border Force has issued guidance and hypothetical case studies explaining how reporting entities under the Modern Slavery Act 2018 can address the impact of COVID‑19 in their modern slavery statements.

The time for providing Modern Slavery Statements has not changed: the first statement under the Act must be submitted by 30 June 2020 (for calendar-year-reporting entities) or 31 December 2020 (for financial-year-reporting entities). Background.

The Australian Border Force encourages entities to consider how the impacts of COVID-19 may increase the vulnerability of workers in their global operations and supply chains to modern slavery, including in Australia. It says factory shutdowns, order cancellations, workforce reductions, and sudden changes to supply chain structures can disproportionately affect some workers and increase their exposure to modern slavery and other forms of exploitation.

Temporary changes to witnessing of documents remotely

The full implementation of electronic transactions has long been restricted by legal requirements for persons signing any document that requires a witness to do so in the physical presence of the witness.

A significant (but temporary) change as a result of COVID-19 social distancing requirements is that New South Wales and Queensland are relaxing that rule.

New South Wales
The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) was made on 22 April 2020 to allow witnessing of documents to take place by audiovisual link including video conferencing (eg Zoom and Skype).

Documents covered include: 
(a) a will,
(b) a power of attorney or an enduring power of attorney,
(c) a deed or agreement,
(d) an enduring guardianship appointment,
(e) an affidavit, including an annexure or exhibit to the affidavit,
(f) a statutory declaration.

A person witnessing the signing of a document by audiovisual link must—
(a) observe the person signing the document (the signatory) sign the
document in real-time, and
(b) attest or otherwise confirm the signature was witnessed by signing the
document or a copy of the document, and
(c) be reasonably satisfied the document the witness signs is the same
document, or a copy of the document signed by the signatory, and
(d) endorse the document, or the copy of the document, with a statement—
(i) specifying the method used to witness the signature of the signatory, and
(ii) that the document was witnessed in accordance with the Regulation.

The witness may—
(a) sign a counterpart of the document as soon as practicable after
witnessing the signing of the document, or
(b) if the signatory scans and sends a copy of the signed document
electronically—countersign the document as soon as practicable after
witnessing the signing of the document.

The regulations will expire within 6 months.

Queensland Parliament has passed the COVID-19 Emergency Response Act 2020 which amongst other things allows the Government to make regulations where an Act permits or requires the signing or witnessing of a document.

The Queensland Attorney-General’s media release of 23 April 2020 states that “Modified arrangements could include allowing meetings to be held or inspections carried out using audiovisual technology for example. The making of documents such as wills, general powers of attorney, enduring powers of attorney, advance health directives, statutory declarations, deeds and many other types of documents are also available under the modified arrangements.”

No regulation has been published yet.

The Act is due to expire on 31 December 2020.

ASIC issues temporary debit cards exemptions

ASIC has registered the ASIC Corporations (COVID-19 – Distribution of Debit Cards) Instrument 2020/401 which provides exemptions and modifications in relation to the hawking and product disclosure requirements in the Corporations Act 2001 in relation to issuing basic deposit products, linked non-cash payment facilities and debit cards due to adverse implications on consumers without debit cards, including vulnerable and elderly consumers, due to COVID-19.

The changes to the hawking requirements allow authorised deposit-taking institutions (ADIs) to offer debit cards to eligible account holders through unsolicited meetings at a bank’s place of business or through unsolicited telephone calls.

The changes to the product disclosure requirements allow the ADIs to comply in relation to basic deposit products, linked non-cash payment facilities and debit cards by providing the information they typically provide no later than when the consumer receives the debit card.

The exemptions cease to apply on 30 September 2020.

ASIC’s expectations of general and life insurers

ASIC has written to general and life insurers saying it expects insurers to handle insurance claims with utmost good faith and to deal with complaints genuinely, promptly, fairly, and consistently.

ASIC says insurers should be flexible in dealing with consumers’ specific circumstances. Where consumers are no longer able to pay premiums due to reduced income, insurers should consider how they can best respond to this issue in order to help consumers continue to maintain key insurance coverage. This might include, where appropriate and reasonable, measures including premium ‘holidays’, deferrals, or reductions for a reasonable period of time.

ASIC also expects insurers to communicate proactively, clearly, and accurately with consumers about their insurance cover, recognising the rapidly changing situation they are facing.

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David Jacobson

Author: David Jacobson
Principal, Bright Corporate Law
About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.

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