Legality of the ePayments Code reducing consumer rights previously enjoyed under common law regarding mistaken payments
Dear Australian Securities and Investments Commission,
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
Dear Ms Spring,
Thank you for your FOI request outlined below, received by ASIC on 26
November 2024 (our reference FOI 280-2024).
The 30-day statutory time period for processing your request commenced on
the day after the day on which your request was received (section 15(5) of
the FOI Act). The due date to issue a decision on your request is
therefore 26 December 2024.
The period of 30 days may be extended if we need to consult third parties
or for other reasons. We will advise you if this happens.
Please note that information released under the FOI Act may later be
published online on the ASIC disclosure log, subject to certain
exceptions. For example, personal or business information will not be
published where this would be unreasonable.
Please do not hesitate to contact me should you have any questions.
Kind regards
Deborah Mitchell
Senior Lawyer - Freedom of Information
Legal Services
Australian Securities and Investments Commission
Level 20, 240 Queen Street, Brisbane, 4000
Tel: [mobile number]
[1][email address]
[2]ASIC logo
Dear Ms Spring,
Please find attached a consultation notice issued pursuant to section 24AB
of the FOI Act.
I will be out of the office from 5 December 2024 until 16 December 2024.
During that time, please respond directly to [1][email address] if
you have any questions or wish to provide your response to the notice.
Kind Regards
Deborah Mitchell
Senior Lawyer - Freedom of Information
Legal Services
Australian Securities and Investments Commission
Level 20, 240 Queen Street, Brisbane, 4000
Tel: [mobile number]
[2][email address]
[3]ASIC logo
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