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Australia provides a fintech-friendly regulatory landscape to encourage innovative financial and credit services and products in the Australian market. However, Australia also imposes clear and strict legal obligations on any persons providing financial and credit services. This is due to the significant harm unfair, unconscionable or deceptive financial and credit services can have on Australian consumers. Several Australian regulators oversee financial and credit service providers, like fintech businesses. This article explores the roles and functions of three key regulators that your fintech business may deal with. We discuss the Australian Securities and Investment Commission (ASIC), Australian Transaction Reports and Analysis Centre (AUSTRAC) and the Office of the Australian Information Commissioner (OAIC).
After proving your startup’s success in your home country, you may be thinking about the next step for growth — expanding overseas.
This free guide aims to introduce startup founders to the Australian startup market.
The Australian Securities and Investment Commission (ASIC) aims to protect the interests of Australian consumers and investors. Likewise, ASIC ensures the financial market operates efficiently, fairly, and transparently to build confidence in the Australian financial market.
The table outlines situations when your fintech business will deal with ASIC.
|Company registration||ASIC overseas company registration and related activities your fintech business will need to engage in to become an Australian company.|
|Financial services||ASIC regulates all persons that are in the business of providing financial services or dealing with financial products. It manages the Australian financial services licence (AFSL) regime to this extent. The AFSL is necessary when a person provides financial services or deals with financial products. Financial products are defined broadly under the regime and include securities, derivatives, interests in managed investment schemes and non-cash payment facilities. Therefore, if your fintech business is engaging in financial services or financial products, you will need to apply for an AFSL and be regulated by ASIC.|
|Consumer credit activities||Under the Australian consumer credit regime, ASIC regulates all consumer credit activities that fall within the National Credit Code (NCC) scope. Credit activities covered by NCC include providing credit under a credit contract, benefitting from mortgages or guarantees relating to a credit contract, and acting as an intermediary between a credit provider and a consumer. NCC does not cover credit provided for commercial use. If your fintech business provides the regulated credit activities described above, you will need to obtain an Australian credit licence and be regulated by ASIC.|
|Design and distribution obligations||If your fintech business is involved in the issuance or distribution of financial products, you will need to comply with the design and distribution obligations (DDO) and be regulated by ASIC. These obligations require all issuers and distributors of financial products to take a consumer-centric approach when issuing and distributing financial products to ensure those products are suited to the target customer.|
|Enforcement actions||ASIC can take action against your fintech business if you engage in any regulated activity and do not comply with the applicable obligations.|
Enhanced Regulatory Sandbox
ASIC offers a licence exemption program called Enhanced Regulatory Sandbox. Under this program, fintech businesses can test their financial or credit services for up to two years without obtaining an AFSL or ACL. If you are in the early stages of your fintech business and want to test your financial or credit service and product in Australia, you may consider joining the program.
Australian Transaction Reports and Analysis Centre will regulate your fintech business if the Australian anti-money laundering and counter-terrorism financing (AML/CTF) law apply to your business. The AML/CTF law applies to any person providing ‘designated services’, including a range of financial and banking services, among others.
The Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) lists all designated services in Australia. Your fintech business must carefully consider if any of your services are a designated service. If so, you must comply with the regulatory obligations imposed by AUSTRAC, including:
- registering as a designated service provider with AUSTRAC;
- preparing and maintaining an AML/CTF Program outlining how your business will comply with the AML/CTF obligations; and
- reporting any suspicious activities to AUSTRAC.
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Office of the Australian Information Commissioner
The Office of the Australian Information Commissioner (OAIC) may regulate your fintech business if it has an annual turnover of over $3 million and handles your customer’s personal information or provides a designated service. The OAIC monitors the Australian market to ensure government agencies and organisations with an annual turnover of over $3 million comply with privacy laws. The privacy law prescribes how to collect, retain, use, and destroy people’s personal information.
Your fintech business may deal with various Australian regulators in your operation in Australia. Three Australian regulators you are likely to deal with are ASIC, AUSTRAC and OAIC. ASIC regulates all providers of financial and consumer credit services in Australia, among others. AUSTRAC will regulate your fintech business if the AML/CTF law applies to your business. Lastly, OAIC will regulate you if your business handles the personal information of your customers and has an annual turnover over $3 million or otherwise provides a designated service.
For assistance engaging with any Australian regulators, our experienced fintech lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Financial technology, or fintech, encompasses new technologies that significantly enhance how businesses deliver financial services. Technologies such as crowdfunding, peer-to-peer lending, mobile payments and digital currencies have disrupted different financial services like mobile payment services, money transfers, loans and fundraising.
Your fintech business may deal with various regulatory bodies, including ASIC, AUSTRAC and OAIC. Fintech startups should take note of their obligations and regulatory requirements when operating in Australia.
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