ASIC ‘s Market Supervision Activity

ASIC today published its ninth report on the supervision and surveillance of Australian financial markets and market participants. The report highlights ASIC’s direct engagement with market participants to address concerns about market conduct.

During the relevant period, there were 19,375 Trade surveillance alerts alerts compared to 17,091 alerts in the previous period.

For example, using the improved functionality of ASIC’s new market surveillance system, Market Analysis and Intelligence (MAI), a persistent pinging strategy was identified in an ASX20 security trading in ASX Centre Point and Chi-X hidden public dark venues. Following intervention by ASIC, that behaviour has now ceased. Pinging is the practice of using the placement of very small orders to test if there is liquidity.

Using MAI, surveillance analysts also identified a recurrence of hacking of retail online share trading accounts. ASIC has worked closely with the firms involved to implement strategies to disrupt this activity.

Further, between July and December 2014, discussions with market participants led to the amendment of order execution methods and the review of trading algorithms on 26 occasions.

The report also highlighted the impact of the improved functionality of ASIC’s new market surveillance system, MAI. The system has allowed ASIC to conduct very sophisticated analysis in very short periods of time.

ASIC is concerned about the high proportion of general advice compared to personal advice, particularly by full-service brokers. They intend to focus more efforts on reviewing the provision of advice by market participants, whether it is being categorised correctly as personal or general advice, and whether the relevant obligations are complied with appropriately. This may include a focus on management oversight and adviser training.

ASIC’s compliance reviews have identified deficiencies with the provision of personal advice and the requirement to provide a clear, concise and effective Statement of Advice. For example, we identified market participants that had not provided sufficient information to clients regarding the basis on which the advice was given—suggesting that inadequate consideration may have been given to clients’ circumstances, goals and objectives.

Other future areas of focus for ASIC, include the Market Entity Compliance System, which will enhance the way market participants and operators interact with ASIC. Other aspects of market conduct that ASIC will be paying close attention to in the coming six-month period include a thematic review of crossing systems which will assess how crossing system operators are meeting their regulatory obligations, targeted compliance reviews of client money obligations, and further analysis into the handling of confidential information.

They are also currently reviewing analysts’ re-ratings for the last four years and comparing them to the timing of publicly-available information. This review may identify potential leakages of confidential information that we will need to further investigate.

Oil Price Falls And Monetary Policy

In a speech at Durham University Business School, MPC member Ian McCafferty considers the factors contributing to the recent fall in the oil price, the impact on inflation and its likely persistence and how, given this analysis, UK monetary policy should respond.

Ian argues that as with the oil price falls seen in 1985 and 1998, ‘there is merit in examining recent oil price developments, and the implications for the outlook for the oil market, through the prism of hog-cycle theory.’ As with the livestock markets hog cycle theory is based on, short term elasticity of oil supply is low but the longer-term elasticity substantially higher.  As a result the main adjustment to price falls comes from changes in investment plans which in turn impact productivity and supply in the longer term.

This analysis shows that ‘the lag in the supply response means that for a while, even after the initial price fall, supply continues to exceed demand, such that inventories continue to build.’ As the market balances and inventory levels fall back ‘the market tightens and prices begin to rise, encouraging supply to recover. But here too, there are noticeable lags – first, it will require a period of higher prices to encourage producers to commit to new investment, and geographical, geological and political issues mean that the lead time to new supply is relatively lengthy.’

Ian suggests that ‘we can expect oil production to ease in the second half of the year’ and for demand for oil to increase due to the net positive impact to global demand, estimated by Bank staff to stand at around 0.8%, which in turn will support greater demand for oil. ‘Overall, it is reasonable to assume that, by the end of 2015, supply and demand for oil will be coming back into balance, although inventories will remain high for a further period. This should translate into more stable yet still relatively low prices,’ though further out ‘prices might be expected to recover’.

The fall in oil prices, and their predicted persistence, has important implications for both the likely path of inflation and the appropriate response of monetary policy. While the immediate direct effect is clearly disinflationary, detracting ‘a bit more than half a percentage point from headline inflation for the rest of the year’ indirect effects could emerge in both directions. The fall in the oil price could generate inflationary pressure by boosting demand and with little effect on potential supply in the economy. Conversely, the risk of falling inflation expectations feeding through to lower wage settlements could create further disinflationary pressure.

‘How should monetary policy respond to such a sharp oil price shock?  As always in monetary policy, the answer depends on the source of the shock.’ As it is supply rather than demand that has ‘been the dominant factor behind the recent fall in the oil price… it should be treated primarily as a simple cost or price-level shock’. This would mean looking-through the temporary impact on inflation as the MPC has done previously when rising oil prices pushed inflation well above target.

‘But how temporary is temporary? Policymakers need to consider not just the source of the shock but also its persistence.’ In doing so they should, Ian suggests, refer to the ‘optimal policy rule’ which states that ‘looking through an undershoot of inflation, even a prolonged one, is more justified if the real economy is operating at or above full capacity’.

This, combined with the likely path for spare capacity set out in the Inflation Report and Ian’s view that ‘there may be less spare capacity left in the labour market’ than the MPC’s collective judgement, would suggest that it would be right to ‘look through’ the current low level of inflation.

This, however, is complicated by the potential for the persistent, depressing effect on annual inflation to constrain a growth in pay by causing inflation expectations to become de-anchored. ‘Judging the scale of this downside risk is difficult. Some measures of inflation expectations have fallen but others suggest that inflation expectations remain well-anchored, and there are no signs at present that anything approaching deflationary psychology is likely to take hold.’ Nonetheless, it is not a risk the MPC can dismiss, ‘at least while inflation remains close to zero’. This, Ian concludes, is why he decided not to vote for an increase in Bank Rate at the January and February policy meetings.

GDP Trend Down to 0.4% In December Quarter

The ABS data shows that in trend terms, GDP increased 0.4% in the December quarter 2014. This gives an annual read of 2.3% in trend terms. We need policy changes to get industry to invest and grow. we cannot rely on household expenditure and property speculation to do the job. This gives weight to lower interest rates further, but only if the property sector can be controlled first.

GDPDec2014Gross value added per hour worked in the market sector grew 0.1% and the Terms of trade fell 1.9%. In seasonally adjusted terms, GDP increased by 0.5% in the December quarter, giving an annual rate of 2.5%. The Terms of trade decreased 1.7%, and Real gross domestic income increased 0.2%.

In seasonally adjusted terms, the main contributors to the increase in expenditure on GDP were Net exports (0.7 percentage points) and Final consumption expenditure (0.6 percentage points). The main detractor was Changes in inventories (-0.6 percentage points).

In seasonally adjusted terms, the main contributors to GDP growth were Construction and Health care and social assistance each contributing 0.1 percentage points to the increase in GDP. The main detractor to growth in GDP was Professional, scientific and technical services (-0.1 percentage points).

The Reform Imperative

John Fraser, Secretary to the Treasury spoke today to the Committee for Economic Development of Australia (CEDA). The speech, “Australia’s Economic Policy Challenges” outlined some important priorities for economic reform, as well as setting out the background to the reform imperative.

Boosting productivity will require improvements across all markets – input markets such as the labour market, financial markets, and infrastructure markets as well as final goods and services markets. Failure to undertake necessary reforms in related markets will mean that the potential benefits of reform in any single market are not realised. The Government has commissioned a number of policy reviews that will recommend ways to enhance Australia’s economic prosperity. Making the most of these reform opportunities is essential, where three areas stand out as priorities for raising Australia’s productivity performance.

The first is tax reform.

Studies have consistently shown that tax reform offers one of the largest policy opportunities to increase incomes and living standards. And the fact is that the structure of our tax system today looks remarkably like it did back in the 1950s — but our economy looks very different. That may tell us something. Tax reform can promote strong investment and encourage workforce participation. Our company tax rate is high by international standards. In the context of far more mobile capital, high tax rates are dampening investment and productivity, while continuing personal income tax bracket creep would have negative impacts on workforce participation and incentives. An important criterion for a well-functioning tax system is fairness, where there are some contentious and important issues that need to be explored. For example, substantial tax assistance is provided to superannuation savings. We need to consider whether the level and distribution of these concessions remains appropriate. These are the types of issues that will be considered in the upcoming Tax White Paper.

A second priority is continuing to modernise the workplace relations system.

Workplace regulation has been progressively and substantially reformed in recent decades. Many of the fundamental reforms were undertaken in the 1980s and 1990s, in particular the shift from centralised wage fixing to enterprise bargaining. These reforms have delivered substantial benefits. But elements of our workplace relations system may need to change to fit the workplaces of our future. The Productivity Commission’s Inquiry into the Workplace Relations Framework to be delivered later this year will be an important opportunity to create a modern system that will support jobs, promote productivity and lift living standards. A more flexible workplace relations system that supports the economy will help Australia respond to the challenge of lifting productivity growth. The rise of Asia, the ageing of the population and the transition away from resource-led growth will require significant adjustment. It is especially important that workplace laws are not impeding workplace transformation.

A third priority area for structural reform is driving greater competition in goods and services markets.

Previous product market reforms, and those associated with the Hilmer review in the 1990s, pushed competition into non-tradable sectors like electricity, telecommunications and rail freight. These were important changes, contributing to a GDP increase of around 2½ percentage points over the course of that decade. The proposals in Ian Harper’s draft report released in late 2014 provide the opportunity to boost Australia’s productivity performance. The final report will be released in March. Ian Harper proposes that we apply competition law and a new set of competition principles to all purchasing activities of government such as health, education and aged care. Even small improvements here, where government has a large footprint and where Australia’s population will impose greater demands on health and aged care, can deliver big benefits over time. The importance of strengthening competition was also a theme of the Financial System Inquiry. The Inquiry concludes that competition and competitive markets are at the heart of the philosophy of the financial system and the primary means of supporting the system’s efficiency. We must ensure that our banking and financial system more generally are more competitive. The Inquiry also recognised that, as the financial system becomes increasingly sophisticated and innovative, the importance of receiving appropriate financial advice and access to appropriate and competitively priced products has increased.

These are challenging issues and will require the Commonwealth and the State governments to work together.

Groupthink Stems From The Council of Financial Regulators

Behind the scenes, it is the mysterious Council of Financial Regulators which is coordinating activity across the Reserve Bank, APRA, AISC and Treasury. This body, is the conductor of the regulatory orchestra, and although formed initially in 1998, it has only had an independent website since 2013.  It is the coordinating body for Australia’s main financial regulatory agencies. It is a non-statutory body whose role is to contribute to the efficiency and effectiveness of financial regulation and to promote stability of the Australian financial system. The Reserve Bank of Australia (RBA) chairs the Council and members include the Australian Prudential Regulation Authority (APRA), the Australian Securities and Investments Commission (ASIC), and The Treasury. The Council of Financial Regulators (CFR) comprises two representatives – the chief executive and a senior representative – from each of these four member agencies.

The CFR meets in person quarterly or more often if circumstances require it. The meetings are chaired by the RBA Governor, with secretariat support provided by the RBA. In the CFR, members share information, discuss regulatory issues and, if the need arises, coordinate responses to potential threats to financial stability. The CFR also advises Government on the adequacy of Australia’s financial regulatory arrangements. A formal charter was only adopted on 13 January 2014.

The Council of Financial Regulators (CFR) aims to facilitate cooperation and collaboration between the Reserve Bank of Australia, the Australian Prudential Regulation Authority (APRA), the Australian Securities and Investments Commission and The Treasury. Its ultimate objectives are to contribute to the efficiency and effectiveness of regulation and to promote stability of the Australian financial system.

The CFR provides a forum for:

  • identifying important issues and trends in the financial system, including those that may impinge upon overall financial stability;
  • ensuring the existence of appropriate coordination arrangements for responding to actual or potential instances of financial instability, and helping to resolve any issues where members’ responsibilities overlap; and
  • harmonising regulatory and reporting requirements, paying close attention to the need to keep regulatory costs to a minimum.

So, given the intended independence of the RBA, from Government, there is an important question to consider. How can this be seen to be true? More likely, we think there is significant potential for groupthink. In addition, no minutes of discussions are made public. We think its time for greater transparency and openness.

Sunlight is said to be the best of disinfectants; electric light the most efficient policeman” said U.S. Supreme Court Justice Louis Brandeis. We agree.

Reforms to the Bank of England’s Market Intelligence programme

Some central banks, including the Bank of England, have moved away from an era of ‘constructive ambiguity’ to greater openness and transparency. The RBA is less transparent, and the Australian Regulatory system is opaque and largely still done behind closed doors and quiet whispers. This is because they are too aligned to the major financial services incumbents, and are over focussed on financial stability. In particular the role and activity of the Council of Financial Regulators is completely opaque. So it is interesting to see where the Bank of England is headed.

The Bank of England today announced the outcome of a root-and-branch review of its Market Intelligence (MI) programme. In a speech at Warwick University, Minouche Shafik said the resulting changes – alongside progressive steps to make the Bank’s liquidity insurance framework more transparent – show clearly that the Bank is not just “open for business” but also “open about our business.”

MI is the ongoing process of discussion with financial market participants to identify insights relevant to policymaking.  The Bank’s Governors and Court of Directors endorsed all 11 recommendations stemming from the MI Review, which will make the gathering and use of MI more transparent, robust and effective.  The recommendations include:

  •  A MI Charter which explains clearly the terms of the Bank’s engagement with financial market participants, and its rationale for gathering MI;
  • A strengthened set of policies that govern MI gathering, supported by expanded training for staff; and
  • A new executive-level committee to oversee the MI programme, to ensure it retains the necessary flexibility, focus and relevance to the policy challenges of today and tomorrow.

The Bank of England also today published its formal response to the recommendations of Lord Grabiner, following the publication of his Foreign Exchange Market Investigation Report in November 2014. At the time, the Bank endorsed the recommendations – which covered documentation, education, and the need for greater clarity over the Bank’s market intelligence role – and committed to implementing them in full and as quickly as possible.

In today’s response, the Bank outlined the actions that have been, or are being, taken to fulfil the recommendations. They will result in stronger systems and controls around the Bank’s engagement with market participants.

In a speech on Thursday – Goodbye ambiguity, hello clarity – Bank of England Deputy Governor Minouche Shafik explains why this greater clarity around the Bank of England’s interactions with financial markets is essential.

Central banks, including the Bank of England, have moved away from an era of ‘constructive ambiguity’ to greater openness and transparency.  For example, the Bank now has a well-defined set of facilities for the provision of liquidity to the financial system that have evolved to meet changing needs. The Bank’s dialogue with markets dates back to 1786 but the days of men in top hats and fireside chats are now a distant memory. The Bank’s MI function is a highly professional network of staff covering 23 different markets and sectors, providing first-hand insights on short-term moves and long-term trends relevant to all the Bank’s policy functions.

In the speech, Minouche says:

“The ability of the Bank’s MI function to provide insights to senior policymakers over the past 8 years, as the first waves of the crisis rushed onto the Bank’s doorstep, and then as solutions flowed back out across the system, has been vital to our effectiveness”.

Welcoming the changes to the MI programme announced today, Minouche said:

“The Bank has been at the centre of one of the world’s major financial centres for hundreds of years. Today the Bank has a broader role than ever before. A clear understanding of the root causes of developments in financial markets must underpin the decisions we make about monetary policy and regulation of financial markets. Aligning our Market Intelligence function closely to the Bank’s mission, so that its purpose is clear and its approach is transparent, will ensure we continue to seize that opportunity”.

Bank Of England’s Research Agenda

The UK Regulator has announced a broader research agenda, recognising the complexities of the current financial environment. Mark Carney, Governor of the Bank of England spoke at the Launch Conference. His remarks summarise the rationale behind the major research themes. They are worth reading, not least because he highlights that the traditional view of macroeconomic policy is changing.

Transformation of the Bank of England

The central challenge of macroeconomic policymaking in the late 1970s and 1980s was the fight against inflation. In no small part due to my predecessors, particularly Lord King, we have today a regime for maintaining monetary stability that is both democratically legitimate and highly effective. It rests on clear remits, delegated by Parliament, sound governance arrangements to support independence, and effective transparency of policymaking. And it provides valuable lessons for the conduct of other policy functions.

Despite these successes, in both theory and practice, a healthy focus on price stability had become a dangerous distraction. The financial crisis was a powerful reminder that price stability is not sufficient for macroeconomic stability. It exposed the convenient fiction that finance is a veil. And we were taught that the dynamics of lending markets are as important as those of labour markets for our shared prosperity.

In response to these painful lessons, the Bank of England has been bestowed with enormous new responsibilities by Parliament. They now span monetary policy, macroprudential policy, and microprudential supervision. They include responsibility for the United Kingdom’s bank notes; its payments systems; oversight of financial markets infrastructure and resolving failed institutions. To help fulfill its mission the Bank has core roles in Europe, at the G20 and at the Financial Stability Board.

Having monetary, macroprudential, and microprudential policy under one roof makes gains from trade possible. It is our duty to exploit complementarities, synergies and economies of scope to maximise our impact by working together. To do so, we need research. And to some extent, research needs us.

The need for research

The way central banks have sought to achieve their objectives – the practice of central banking – has frequently moved ahead of the theory of central banking. Theory, in turn, subsequently catches up, and enriches and refines practice. The history of central banking is replete with examples. Tacit knowledge has often been more instrumental in determining policy outcomes than insights from formal research. Sometimes this works, as in Bagehot’s ‘dictum’ (to lend freely at a penalty rate against good collateral); and sometimes it doesn’t, as in Research has meant that some modes of operation, like Norman’s, have rightly fallen by the wayside. It has helped nuance others, like Bagehot’s. And it guides us as to which practices to retain, reinforce and enhance, and which should be discarded.

The practice of monetary policy in the Great Moderation is another example. It informed theorising and research on Inflation Targeting. And, in turn, through trial, error and refinement, research has helped inform policy with empirical insights and workhorse models.

In the theoretical space, this process led to Woodford’s dictum that in modern central banking very little else matters beyond expectations. In contrast, the practice of central banking in a messy real world where people use various heuristics, including rational inattention, has shown the limitations of such logical extremes.

Research showed how central bank transparency and accountability make essential contributions to policy effectiveness, in a way that is complementary to ensuring central banks have democratic legitimacy. That remains an important insight in the era of enlarged and empowered central banking.Practice moved ahead of theory; theory caught up and refined practice. And the effectiveness of policy improved as a result. The crisis has meant practice has once again leapt ahead of theory. During its depths, the lessons of history and insights from psychology were arguably more valuable than precisions of dynamic programming. Our workhorse models didn’t have financial sectors; meaning questions of financial stability were not even asked, let alone answered. A great deal of improvisation was required to avoid a second Great Depression. It is vital that we draw on the experience from the crisis to rethink the way we understand the economy, the financial system, and the institutions we supervise.

To do so, we need not only to study recent history more deeply but also to apply formal methods to refine our depictions of economic dynamics, as well as the policy tools we have to shape those dynamics in socially desirable ways. We need to catalyse thinking on new approaches towards policies that have assumed greater importance since the crisis from macroprudential policy to bank resolution.

At the Bank of England, our enhanced research function, including a new Research Hub, will bring together staff and thinking from across the institution creating a two-way flow between research and policy. It will seek to foster a shared understanding of the frontier of policy possibilities amongst colleagues and ensure that the insights gained in one policy arena can benefit others. But these efforts will not succeed if they are confined to the corridors of Threadneedle and Moorgate. The Bank recognises that we need to do more to reach out to the wider research community.

Policymaking can benefit tremendously from advances in all fields of economics and finance; from psychology to epidemiology; from computer science to law. That is why I am pleased to see such a diverse range of discussants and attendees at the conference today. In order to focus the conversations we are being clear about the key questions that interest us, as policymakers, the most. Let me now turn to those. Our One Bank Research Agenda is structured around five themes which span all aspects of central banking. The themes are broad. That reflects the diversity of our agenda. They focus on the interactions and intersections between policy areas. They emphasise new challenges and new directions, while recognising that familiar questions facing central banks remain no less important. Today’s conference is organised around them.

The first theme covers ‘policy frameworks and interactions’.
The re-emergence of macroprudential instruments as part of the policy armoury raises fundamental questions about the interaction of monetary policy, macroprudential policy, and microprudential policy. It is essential to improve our understanding of the relationship between credit cycles and systemic risks. Since credit market developments both affect and reflect potential growth in the broader economy, they – and macroprudential measures to influence them – require careful study by financial and monetary policymakers alike. The advent of a new, enhanced policy toolkit raises vital questions about the effectiveness of individual policy tools; their joint operation; and how they interact domestically and across borders.

The second theme covers ‘evaluating regulation, resolution, and market structures’.
The financial crisis precipitated a radical overhaul of the approach towards regulation, supervision and resolution. Regulatory policies have shifted from a near-exclusive focus on microprudential resilience to a more balanced emphasis on minimising systemic risk. In the whirlwind of essential change, there has been, however, relatively little assessment of the overall effect of reform on the financial system as a whole. Moreover, our understanding of the ‘system’ must extend well beyond the banking sector to encompass the whole of market-based finance. The interplay between the reform process and the changing nature of financial intermediation also raises fundamental questions about how incentives and market structures might evolve and what policy might need to do to keep up.

The third theme covers ‘Policy operationalization and implementation’.
The practice of central banking constantly underscores that implementation and communication of policy can be as important as its design.  During the crisis central banks around the world made extensive and imaginative use of their balance sheets in pursuit of their objectives. This extraordinary range of policy responses provides an unparalleled opportunity to take stock of what worked, and why. As Ben Bernanke observed “the trouble with QE is it works in practice, but it doesn’t work in theory.” Understanding better the transmission mechanisms of QE, and the extent to which they are state dependent, can provide enormous insights to its effectiveness as a policy tool specifically, as well as the formation of agents’ expectations and the functioning of financial markets more generally. Recent innovations have not been confined to new tools. As I noted previously, better communication and greater transparency has also made policy more effective. Transparency has taken centre stage as policymakers sought to restore confidence in the financial system, as they conducted and published stress test results to create more transparently resilient banks; and as they gave guidance to clarify their reaction functions. Recently, research informed the recommendations of the Warsh Review into what we could do to enhance monetary policy transparency here at the Bank of England. This research theme continues in that vein by asking what more might be done to enhance effective transparency in all areas of policy.

The fourth research theme covers ‘New data, methodologies and approaches’.
Increasing amounts of data – structured and unstructured, current and historical – are available on almost every aspect of the economy and the financial system. That holds great promise. Computing power has transformed our economies; it needs now to be harnessed to transform our understanding of them. Theoretical and methodological techniques continue to advance. In some cases that will mean measurement ahead of theory. That is one way to advance. In the short term, a black box could be better than none, and with time the patterns it reveals could prompt a greater understanding of the underlying forces. Recall that Kepler needed to uncover the empirics of planetary motion before Newton could conjure the theory of celestial mechanics. It is important to exploit developments in advanced analytics of large data sets to formulate better policy. They’ll improve our understanding of household and corporate behaviour, the macroeconomy and risks to the financial system. They need to be harnessed to enhance our forecasting and stress testing capabilities. To complement this theme, we will release historical data sets including detailed breakdowns of the Bank’s inflation expectations survey, our Agents’ company visit scores, and very long back-runs of key economic and financial variables. This is one of the ways we will look to increase the permeability of our research. We are seeking also new ways to visualise and analyse the increasingly rich information sets that are available.

The fifth and final research theme covers the ‘Response to fundamental changes’.
Fundamental technological and structural trends will have a significant bearing on economic dynamics. Although they are likely to play out over a period that is longer than the Bank’s typical policy horizon, these trends will have profound implications for central banks. They include changing demography, increasing longevity, inequality, climate change, the increasing importance of emerging economies and the development of digital currencies. By affecting a range of phenomena – from the evolution of real interest rates to risks to the financial sector to the future of money and banking itself – all of these trends have the potential to re-shape our policy challenges. We need research to set us on the front foot to face them.

Government Consulting On Foreign Investment Reform

The Government is seeking views on proposed reforms to strengthen Australia’s foreign investment framework, particularly around residential real estate and agriculture.  DFA welcomes this, as we know overseas investors are impacting the market, and evading current light touch regulation. The proposed reforms include:

  • increasing compliance and enforcement activities around foreign investment in residential real estate through the creation of a specialised investigative and enforcement area within the Australian Taxation Office; and
  • introducing new civil penalties and increased criminal penalties for foreign investors and third parties who breach the foreign investment rules.

Enforcement

The House Economics Committee report made a number of recommendations to improve data collection, compliance and enforcement activities around foreign investment in residential real estate. It recognised that while the Foreign Investment Review Board and Treasury were well placed to continue undertaking the upfront screening of residential real estate applications, its internal processes and lack of specialist investigative and enforcement staff have weakened the enforcement of the foreign investment rules.

The Government believes there would be benefits to creating a new specialist, dedicated compliance and enforcement area to support the functions of the Foreign Investment Review Board and Treasury Secretariat. Having considered a range of possible alternatives, the Government considers the Australian Taxation Office to be the best place to undertake this role, as it has staff with appropriate compliance and enforcement skills, sophisticated data-matching systems and experience in pursuing court action. This would involve the creation of a new unit within the Australian Taxation Office. The costs of administering this new function would be offset through the introduction of application fees on foreign investment proposals (see the section below on application fees).

The Australian Taxation Office (in consultation with Treasury and relevant agencies) would be tasked with using its sophisticated data matching systems to detect instances of potential non-compliance with the foreign investment rules, drawing on land titles data from the states and territories, its own taxpayer information, foreign investment approvals data and immigration movements data. Possible breaches would be followed up by compliance staff, with a range of penalties available to be applied as appropriate (see the section below on penalties).

The Government is also proposing to amend the Foreign Acquisitions and Takeovers Act 1975, the Taxation Administration Act 1953, an Instrument under the Migration Act 1958 and any other relevant legislation to ensure that data can easily be shared between agencies. The Foreign Acquisitions and Takeovers Act 1975 would also be amended to ensure that the Australian Taxation Office is able to issue statutory demands for information where it has reason to believe that a person has information about a matter that may breach the foreign investment rules.

Penalties

The Government is considering extending civil pecuniary penalties and infringement notices to business, commercial real estate and agricultural investment applications. While there is limited evidence to suggest non-compliance in these areas, civil pecuniary penalties and infringement notices will supplement the current criminal penalties and provide additional enforcement options should the need arise.

Civil pecuniary penalties could apply where a foreign person acquires a business or acquires rural land without approval. As with residential real estate the infringement notice regime could be tiered and could apply to more minor breaches, for example where a foreign investor voluntarily comes forward.

The penalty regime being considered for breaches of the rules around business, commercial real estate and agricultural investments are set out in the table below. The indicative new penalties would supplement the existing criminal penalties (currently, 500 penalty units ($85,000), imprisonment of two years or both) — with corporations subject to a multiplier of five.

Fees

Consideration is also being given to the introduction of an application fee on all foreign investment proposals, based on the type of investment.

  • Residential real estate properties less than $1 million – $5,000
  • Residential real estate properties equal to or greater than $1 million $10,000
  • Residential real estate properties equal to or greater than $2 million $20,000
  • Residential real estate properties equal to or greater than $3 million $30,000
    Residential real estate properties equal to or greater than $4 million $40,000
  • Residential real estate properties equal to or greater than $5 million $50,000;
  • then $10,000 incremental fee increase per additional $1 million in property value
  • Advanced off-the-plan certificates – Fee based on rates above and number of units sold to foreign purchasers

Currently, property developers can apply for an advanced off-the-plan certificate to sell new apartments in a development of 100 or more to foreign investors (the investor does not then need to obtain separate approval). These certificates are granted on the condition that the apartments are marketed in Australia, as well as overseas, to ensure that domestic buyers have the same opportunity to purchase the apartments. However, there are currently no penalties for breaching this condition.

The House Economics Committee report recommended a tightening of the rules around advanced off-the-plan certificates to ensure developers comply with their obligations to market properties to domestic buyers, including the introduction of penalties to deter non-compliance.

Recognising these concerns, the Government is proposing to strengthen enforcement options by subjecting developers to civil and criminal penalties under the Act in line with other offences (see the section above on penalties).

In addition, the Government is proposing to tighten the rules around the use of advanced off-the-plan certificates by limiting the value of all apartments that can be bought by a single foreign investor to $3 million in any single development. If foreign investors want to purchase apartments above this value, they would have to seek individual approval. This would reduce the scope for any criminal behaviour (such as money laundering) by ensuring that high wealth investors are subject to the upfront screening process.

The Government also intends to introduce a new $55 million screening threshold for foreign investment in Australian agribusiness, subject to public consultation on the definition of agribusiness.

The closing date for submissions is Friday, 20 March 2015.

UK PRA Sets Out How It Will Hold Senior Managers Accountable

The Prudential Regulation Authority (PRA) has today set out how it will hold senior managers in banks, building societies and designated investment firms to account if they do not take reasonable steps to prevent or stop breaches of regulatory requirements in their areas of responsibility.

In June 2013, the Parliamentary Commission for Banking Standards (PCBS) published its report “Changing Banking for Good” setting out recommendations for legislative and other action to improve professional standards and culture in the UK banking industry. This was followed by legislation in the Banking Reform Act 2013.

The Banking Reform Act introduced new powers which allow the PRA and Financial Conduct Authority (FCA) to impose regulatory sanctions on individual senior managers when a bank breaches a regulatory requirement if the senior manager responsible for the area where the breach occurred cannot demonstrate that they took reasonable steps to avoid or stop it.

The PRA has today published guidance for banks clarifying how it will exercise this new power; including examples of the kind of actions which may constitute reasonable preventive steps and how firms and individuals may evidence them.

The Banking Reform Act also creates a separate offence which could result in individual senior managers being held criminally liable for reckless decisions leading to the failure of a bank. This new criminal offence will, however, be subject to the usual standard of proof in criminal cases (‘beyond reasonable doubt’).

Andrew Bailey, Deputy Governor, Prudential Regulation, Bank of England and CEO of the PRA said

“Senior managers will be held individually accountable if the areas they are responsible for fail to meet our requirements. Our new accountability regime will hold all senior managers, including non-executive directors, to a clear standard of behaviour and we will take action where they fail to meet this.”

Insurers

In November 2014, the PRA consulted on a parallel accountability regime for the insurance sector. The Senior Insurance Managers’ Regime is aligned with the banking regime but it is not identical. The business model of insurers, the risks they pose to the PRA’s objectives and the legislative framework they operate under are different from banks.  Specifically, none of the potential criminal sanctions, nor the ‘presumption of responsibility’ in the banking regime, will apply to senior insurance managers.

The new regime also takes account of the need to introduce measures relating to governance and the fitness and propriety of individuals as part of Solvency II.

Non-executive directors (NEDs)

In November, the PRA indicated that it would issue a further consultation confirming how the PRA will apply the new Senior Managers’ Regime and Senior Insurance Managers’ Regime to NEDs in banks and insurers respectively.

The PRA has now confirmed that it will apply the Senior Managers’ Regime and Senior Insurance Managers’ Regime to the following NEDs:

  • Chairman;
  • Senior Independent Director;
  • Chair of the Risk Committee;
  • Chair of the Audit Committee; and
  • Chair of the Remuneration Committee.

The PRA’s Senior Managers’ Regime and Senior Insurance Managers’ Regime will therefore focus on those NEDs with specific responsibilities for areas or committees directly relevant to a firm’s safety and soundness. In addition to any collective responsibility they may have as members of the board, non-executives in scope of the Senior Managers’ Regime and Senior Insurance Managers’ Regime will be held individually accountable for their areas of responsibility. The PRA is also proposing to require firms to ensure that all board members are held to high standards of conduct.

The paper also includes details of the FCA’s approach to non-executive directors. Following the FCA’s decision to narrow the scope of its Senior Managers’ Regime to include a smaller group of NEDs, the PRA is also consulting on notification and assessment requirements for those NEDs who are not included in the regime. This will allow the UK to comply with its EU requirements to ensure the suitability of all members of a bank’s board.

Whistleblowing

The PCBS also recommended that banks put in place mechanisms to enable their employees to raise concerns internally, and that the PRA and FCA ensure these mechanisms are effective. The PRA and FCA have today set out a package of measures to formalise firms’ whistleblowing procedures. These proposals aim to ensure that all employees are encouraged to blow the whistle where they suspect misconduct, confident that their concerns will be considered and that there will be no personal repercussions.

ASIC issues stop order on pre-prospectus publications by Bitcoin Group Limited

ASIC has placed a stop order prohibiting Bitcoin Group Limited (a proposed Bitcoin ‘miner’ in Australia) from publishing any statements concerning its intention to make an initial public offering of its shares until the lodgement of a prospectus.

ASIC’s concerns relate to publications posted by the company via a social media application ‘Wechat’ seeking expressions of interest from potential investors to subscribe for shares if there is a proposed listing on the Australian Securities Exchange. The publications were made before Bitcoin Group Limited was registered as an Australian company by ASIC and before the lodgement of a formal disclosure document (e.g. a prospectus). ASIC’s understanding is that the company particularly targeted potential investors from the Chinese community.

ASIC Commissioner John Price said, ‘ASIC will often review pre-prospectus advertising or publicity to ensure legal requirements are being met. This is because any statements made about a potential offer may influence the investment decisions of consumers who will not have the benefit of all material information that would be included in a prospectus.’

‘ASIC expects companies to be fully aware of their obligations regarding advertising or publicity that occurs before making a regulated disclosure document available to investors. If they do not observe these requirements, then ASIC will take necessary action so that investment decisions are made in a confident and fully informed environment.’

ASIC has taken the step of issuing a media release given the publicity raised by Bitcoin Group in relation to their intention to list on the ASX. In normal circumstances, the issuing of a stop order is made public on our website and in reference to the fundraising documents lodged with ASIC. On this occasion, no documents have yet been lodged with ASIC so we have issued a media release outlining our concerns and subsequent action.

ASIC’s action relates just to this company rather than Bitcoin generally.