Financial Services & FinTech: 2023 Year in Review
As we approach the conclusion of yet another busy year, our national Financial Services and Fintech team reflects on 2023’s accomplishments, developments, and industry trends, and predicts what the coming year ahead may have in store.
‘Practicing in this sector is never dull. The regulatory landscape is constantly changing, and our clients are always actively engaged in enhancing their products and services and building their businesses. It’s been a privilege for us to play a role in contributing to the ongoing success of our clients in 2023.’
Shannon Adams – Practice Team leader
2023 has been another enormous year for regulatory reform in the Financial Services and Fintech space. Privacy remains a key focus for ASIC, and the release of the Privacy Act Review Report by the Attorney General presented 116 suggestions to modify the Privacy Act 1988 (Cth). Most of the suggestions were aimed at updating the Privacy Act to safeguard the privacy of Australians in the era of digital technology and against a background of a number of significant data breaches in 2022 and the increasing risk of scams. The Australian government responded to the Privacy Act Review Report and agreed with 38 proposals, expressed in-principal agreement with 68 proposals and noted 10 other proposals. Importantly, among the agreed proposals was the proposed introduction of new civil penalty provisions for privacy breaches, with varying penalties and extended coverage. Legislation for changes to the Privacy Act is expected to be developed in 2024 with further consultation on in-principal proposals.
We saw the commencement of public consultation on proposed reforms to Australia’s Anti-Money Laundering and Counter Terrorism Finance (AML/CTF) regime. The Consultation Paper – Modernising Australia’s anti-money laundering and counter-terrorism financing regime – explained that the aim is to simplify the existing regime and extend it to cover ‘tranche-two entities’ including lawyers, accountants, real estate agents, jewellers and trust and company service providers.
In June 2023, the Department of Industry, Science and Resources released a discussion paper that provided an overview of global approaches to the regulation of AI, which shows an increased focused on how AI should be regulated and the acknowledgment of its use in financial services and other industries.
In September 2023, the Attorney General’s Department announced the Australian Government’s response to the Final Report of the 2015 statutory review of the Personal Property Securities Act 2009 (Cth) (PPSA). The Government has developed a comprehensive reform package in response to recommendations made in the report, including amendments to the PPSA and PPS Regulations, aiming to achieve a clearer, more consistent and more accessible PPS framework. Public consultation on the Government’s response to the statutory review of the PPSA closed on 17 Nov 2023.
Changes to the unfair contract terms provisions in the Australian Consumer Law and the ASIC Act took effect on 9 November 2023. We have spent a great deal of time assisting our clients to prepare for those changes, and now we must all wait to see how the ACCC and ASIC go about enforcing the amended provisions.
Finally, the Treasury has commenced consultation on Digital Asset licensing with the release of the Regulating Digital Assets Platforms. The consultations closed on 1 December and the proposed framework will see digital currency exchanges falling under an Australian Financial Services Licensing regime with specific requirements for custody. Treasury has also proposed an ambitious expansion of ASIC’s jurisdiction under this licensing to cover “non-financial” “financialised” services.
The team welcomed powerhouse superannuation team, Lisa-Marie McKechnie (Partner) and Kathy Neilson (Partner) in our Sydney office and Kerry Jacobs (Senior Associate) in our Adelaide office. Luke Higgins (Lawyer), joined our Melbourne office working with Steven Pettigrove in Michael Bacina’s team.
The team were proud to celebrate the promotions of Mark Dehaini (Associate) and Tabitha Mackenzie (Associate) in July 2023.
Throughout the year, we continued to act for our clients in a number of transactions and developments, including:
People’s Choice Credit Union & Heritage Bank merger
Piper Alderman assisted People’s Choice Credit Union with various aspects of the merger, one of the largest ever between mutual ADIs, and we were delighted when the merger took effect on 1 March 2023. Heritage and People’s Choice Ltd is currently operating under two brands, but we’re looking forward to the exciting announcement of a new, consolidated brand in due course.
Various banks and credit unions
Piper Alderman has been actively involved in quite a number of projects involving the redesigning of products, processes and delivery systems to enhance product delivery and management and to provide better products and services to customers. Many of these projects have involved making better use of digital options, such as electronic delivery and execution of loan and security documents, and some have involved significant migrations of existing customers between products. Of course, it’s been essential to ensure that all regulatory and code obligations are appropriately addressed.
Piper Alderman is advising KordaMentha in connection with the administration of FTX Australia Pty Ltd (FTX Australia) and FTX Express Pty Ltd (FTX Express), the Australian arm of the FTX cryptocurrency exchange which collapsed in November 2022, making global headlines.
Piper Alderman acted for Digital Surge in relation to a restructure of the digital currency exchange following issues arising from the collapse of FTX. This restructure was the first deed of company arrangement for an Australian digital currency exchange and saw creditors receive 57c in the dollar swiftly and a pathway to a 100c in the dollar return is now in place.
Web3 Security Alliance / A16Z Crypto
Piper Alderman advised and assisted in discussions on the framework, working alongside US legal advisors. We prepared a unilateral agreement comprising a legal release, targeted at Web3 projects, which can adopt the agreement at inception or via a governance vote of token holders and seek to release ethical hackers from civil or criminal liability in connection with Whitehat operations.
Icebreaker Finance Pty Ltd
Piper Alderman advised Icebreaker in relation to its involvement in a decentralised lending protocol powered by blockchain technology. The client launched a liquidity pool on the Maple lending protocol to provide secured debt financing to public and private blue-chip bitcoin mining and digital asset infrastructure companies in North America, Canada and Australia.
Piper Alderman advised on the preparation of a Token Dealing Policy for BlockTrust. A token dealing policy is intended to address the risk of insider dealing and reputational harm by employees who may seek to trade digital assets (including NFTs) based on confidential information relating to a company’s clients.
Following one of our significant transactions, Shannon Adams received the following feedback:
“I want to extend my personal thanks to you, James [Dickson] and the whole PA team for everything you did to successfully get us to completion. As you’re well aware, there were many complex issues we had to consider and resolve over a long period. We really appreciated the effort, skill and problem solving approach you and the team demonstrated.”
Across our national Financial Services & FinTech practice team, we have received a number of individual and team accolades this year. We thank our clients and colleagues for their ongoing support.
The Legal 500 Asia-Pacific
In the 2023 edition of The Legal 500 Asia Pacific, Piper Alderman was recognised across 12 areas of law including Financial Services Regulatory. Partners in our team were highlighted as recommended lawyers for this category, including Shannon Adams, Michael Bacina, Andrea Beatty, James Dickson and Steven Pettigrove.
The Best Lawyers in Australia
In the 2024 edition of The Best Lawyers in Australia, 54 of our lawyers have been named a ‘Best Lawyer’ and 18 of our senior lawyers have been named in the ‘Ones to Watch’ list, including the following partners in our Financial Services and Fintech team:
- Shannon Adams– Banking and Finance Law, Corporate / Governance Practice
- Andrea Beatty– Financial Institutions, Privacy and Data Security Law, Regulatory Practice, Commercial Law
- Mark Gordon– Banking and Finance Law, Commercial Law, Corporate Law
Chambers & Partners
For a fifth consecutive year, Michael Bacina has been ranked in a small group of “Band 1” Fintech Lawyers in Australia, and Piper Alderman was ranked in the Asia-Pacific 2023 with Andrea Beatty ranked Band 3 in Financial Services Regulation.
We were also delighted to receive some very kind feedback from clients and contacts during the research process for the legal directories, including the following testimonials from The Legal 500 Asia Pacific: Australia, 2023 edition:
“Piper Alderman are able to provide very useful nuanced advice and legal work that addresses the latest market conditions and technology landscape very effectively. This is particularly valuable to us.”
“Where they particularly excel is their rare and impressive commercial savvy and understanding of the nuances and impacts of the latest technology trends, and how those apply to the business and legal environment.”
“I’ve worked with Piper Alderman on a broad range of matters – the team at Piper Alderman go above and beyond, and the quality of legal work is exceptional across the board.”
“Professional service. Very efficient and always seem to be available when I need them.”
“Partners are particularly accessible and involved in engagements.”
Training and Education
Our lawyers have presented at numerous conferences, seminars and workshops over the course of the year, and have conducted a number of webinars.
Our weekly ‘Blockchain Bites’ continued through 2023 with Michael Bacina and his team provided weekly insights into the Blockchain and Cryptoassets space – resulting in our clients taking advantage of regular, reliable and expert industry insights.
Michael Bacina provided notifiable data breach training to a number of Council’s and schools around Australia as part of our work with Total Cyber, helping them be ready for cyber security breaches and meeting their legal obligations. Michael also delivered 29 presentations including in New York at NFT NYC, Austin Texas at Consensus, in Australia at Legalwise, for Blockchain Australia and the Turnaround Management Association.
Andrea Beatty continued to conduct her CPD workshops, updating Australian Credit Licence (ACL) and Australian Financial Service Licence (AFSL) participants on their compliance obligations, current regulatory issues and other ‘need to know’ pieces of information for Responsible Managers and Representatives. This highly valuable series will continue both in-person and virtually throughout 2024.
- Superannuation’s Changing Regulatory Landscape;
- Fees and Costs Disclosure Under ASIC Regulatory Guide 97; and
- Fundamentals of superannuation guarantee obligations for employers.