Legality of the ePayments Code reducing consumer rights previously enjoyed under common law regarding mistaken payments
Dear Solicitor-General,
I request any advice or information either sought by or provided to the Government relating to the legality or fairness of the ePayments code regarding mistaken payments. I seek any information the Government has:
• establishing the Government investigated/evaluated the legality of the reduction in consumer rights created by the ePayments code regarding mistaken payments (which clearly sacrificed some of the consumer protections otherwise inherent in the common law approach)
• any legal advice sought or received in preparing the “ASIC Regulation Impact Statement - ePayments Code, September 2011”;
• any risk assessments or cost benefit analysis undertaken for assessing Option 1 versus Option 2 relating to mistaken payments in the "ASIC Regulation Impact Statement - ePayments Code, September 2011”;
• any subsequent reviews into the efficacy of the ePayment Code of 2011 - which ASIC was required to review every 5 years (therefore due 2016 and 2021) as per clause 244 of the "ASIC Regulation Impact Statement - ePayments Code, September 2011". Particularly with the growing emergence of Scam Fraud over this period.
The timeframes I seek are:
• the lead up to and during the update and rebranding of the EFT Code to the ePayments Code by ASIC in 2011; and
• the lead up to and during the reviews of the ePayments code which should have been undertaken in 2016 and 2021.
I would like the information requested to include the following:
• Any legal advice, background documents, risk assessments, business cases, cost/benefit analysis, reports, or briefings requested, for or by the Public Service or Government;
• Any briefs to the Government and/or Government Solicitors relating to this (including any Ministerial signed documents).
Exclusions:
1. Please do not provide documents that are duplicates wholly or in substance (eg emails to multiple stakeholders with the same content, reply emails).
2. Also, please redact any content that would require consultation with third parties.
Yours faithfully,
Harriet Spring
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OFFICIAL
Dear Harriet
Thank you for your request to the Solicitor-General, received via the Freedom of Information (FOI) team within the Attorney-General’s Department (the department) on 26 November 2024. The Solicitor-General has asked the department to respond on his behalf.
We note that the subject matter of your request, the ePayments code, is administered by the Australian Securities & Investments Commission (ASIC). The Solicitor-General is not generally involved in these matters. Considering this, we invite you to consider withdrawing your request to the Solicitor-General and to resubmit your request to ASIC instead.
Please let us know if we have misunderstood your request, or if you wish to submit a revised request for access to documents held by the Solicitor-General or the department.
Kind regards
Freedom of Information & Privacy
Attorney-General’s Department
Phone: (02) 6141 6666 | Email: [Solicitor-General request email]
OFFICIAL
-----Original Message-----
From: Harriet Spring <[FOI #12384 email]>
Sent: Tuesday, 26 November 2024 10:16 PM
To: AGD FOI Requests <[Solicitor-General request email]>
Subject: CM: APPLICANT TO FOI - FOI24/561 - Freedom of Information request - Legality of the ePayments Code reducing consumer rights previously enjoyed under common law regarding mistaken payments
CAUTION: This email originated from outside of the organisation. Do not follow guidance, click links, or open attachments unless you recognise the sender and know the content is safe.
Dear Solicitor-General,
I request any advice or information either sought by or provided to the Government relating to the legality or fairness of the ePayments code regarding mistaken payments. I seek any information the Government has:
• establishing the Government investigated/evaluated the legality of the reduction in consumer rights created by the ePayments code regarding mistaken payments (which clearly sacrificed some of the consumer protections otherwise inherent in the common law approach)
• any legal advice sought or received in preparing the “ASIC Regulation Impact Statement - ePayments Code, September 2011”;
• any risk assessments or cost benefit analysis undertaken for assessing Option 1 versus Option 2 relating to mistaken payments in the "ASIC Regulation Impact Statement - ePayments Code, September 2011”;
• any subsequent reviews into the efficacy of the ePayment Code of 2011 - which ASIC was required to review every 5 years (therefore due 2016 and 2021) as per clause 244 of the "ASIC Regulation Impact Statement - ePayments Code, September 2011". Particularly with the growing emergence of Scam Fraud over this period.
The timeframes I seek are:
• the lead up to and during the update and rebranding of the EFT Code to the ePayments Code by ASIC in 2011; and
• the lead up to and during the reviews of the ePayments code which should have been undertaken in 2016 and 2021.
I would like the information requested to include the following:
• Any legal advice, background documents, risk assessments, business cases, cost/benefit analysis, reports, or briefings requested, for or by the Public Service or Government; • Any briefs to the Government and/or Government Solicitors relating to this (including any Ministerial signed documents).
Exclusions:
1. Please do not provide documents that are duplicates wholly or in substance (eg emails to multiple stakeholders with the same content, reply emails).
2. Also, please redact any content that would require consultation with third parties.
Yours faithfully,
Harriet Spring
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OFFICIAL
Good afternoon
The purpose of this email is to advise you that your request has been
transferred from the Solicitor-General to the Australian Securities and
Investments Commission (ASIC).
The subject‐matter of the documents you have requested is more closely
connected with the functions of ASIC, as they are responsible for the
ePayments code. Therefore, your request has been transferred with
agreement, to ASIC under s 16(1)(b) of the FOI Act.
The transfer of your request does not affect the timeframe for completion.
You should therefore expect a decision from ASIC by Thursday 27 December
2024. However, the statutory period may be extended by a period of 30 days
if ASIC is required to consult third parties or for other reasons. ASIC
will advise you if this happens.
If you have any questions, please contact me on 02 6141 6666 or by return
email. Alternatively, you can contact the freedom of information section
at ASIC via [1][email address].
Kind regards
Freedom of Information & Privacy
Attorney-General’s Department
Phone: (02) 6141 6666 | Email: [Solicitor-General request email]
OFFICIAL
The Attorney-General’s Department may collect your personal information
where it is reasonably necessary for, or directly related to, our
functions, including those under the Freedom of Information Act 1982 (FOI
Act) and the Privacy Act 1988. We may collect your name, email address and
telephone number so that we can contact you about your request or privacy
complaint. If your request concerns accessing or correcting your personal
information, we will collect the minimum amount of evidence necessary to
verify your identity. We hold personal information in accordance with the
Privacy Act and our privacy policy. If you have an enquiry or complaint
about your privacy, please contact the Privacy Officer on 02 6141 6666 or
via e-mail [email address].
If you have received this email in error, please notify us immediately by
return email and delete all copies. If this email or any attachments have
been sent to you in error, that error does not constitute waiver of any
confidentiality, privilege or copyright in respect of information in the
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