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
Please consider the environment before printing this document.
Information collected by ASIC may contain personal information. Please
refer to our [4]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.
This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.
References
Visible links
1. mailto:[email address]
2. mailto:[email address]
4. https://asic.gov.au/privacy/
Dear Deborah Mitchell,
Thankyou for your considered response. I would like to revise my request to the following:
I request any legal advice either sought by or provided to ASIC relating to the legality or fairness of the ePayments code regarding mistaken payments. I seek any information ASIC has regarding:
• investigations into/evaluations of the legality of the reduction in consumer rights created by the ePayments code regarding mistaken payments
• any legal advice sought or received by ASIC in preparing the “ASIC Regulation Impact Statement - ePayments Code, September 2011”;
• any risk assessments or cost benefit analysis undertaken by ASIC for assessing Option 1 versus Option 2 relating to mistaken payments in the "ASIC Regulation Impact Statement - ePayments Code, September 2011”
The timeframes I seek are:
• 2009 to 2011 when the "ASIC Regulation Impact Statement - ePayments Code, September 2011” was published ; and
• 2015-2016 and 2020 - 2021.
I would like the information requested to include the following:
• legal advice, risk assessments, cost/benefit analyses, reports, or briefings requested, for or by ASIC
Please note the following 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 sincerely,
Harriet Spring
Thank you for your email. I will be out of the office from Thursday 5
December 2024 until Monday 16 December 2024. Your email has not been
forwarded. For matters requiring urgent attention please contact
[ASIC request email].
Please consider the environment before printing this document.
Information collected by ASIC may contain personal information. Please
refer to our [1]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.
This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.
References
Visible links
1. https://asic.gov.au/privacy/
Dear Ms Spring,
Thank you for your email responding to the section 24AB notice regarding
the scope of your request. I am writing to seek your confirmation in
relation to the interpretation of the scope of your revised request and to
seek your agreement to an extension to the processing time of your
request.
Scope of revised request
Depending on the interpretation of your revised request received on 9
December 2024, its scope remains very broad. In the spirit of being able
to progress the processing of your request and for searches for relevant
documents to occur, I have interpreted the scope of your revised request
to mean that you are seeking:
For the periods 2009-2011, 2015-2016 and 2020-2021:
· Any legal advice received or evaluations made by ASIC of the
legality of the mistaken payment provisions in the ePayments Code.
· Any legal advice received by ASIC in relation to the “ASIC
Regulation Impact Statement – ePayments Code, September 2011”.
· Any risk assessments or cost benefit analysis undertaken by ASIC
for assessing Option 1 versus Option 2 relating to mistaken payments in
the “ASIC Regulation Impact Statement – ePayments Code, September 2011”.
Excluded from the scope of the request are:
1. Documents that are duplicates wholly or in substance (eg emails
to multiple stakeholders with the same content, reply emails).
2. Content that would require consultation with third parties.
Can you please confirm whether my interpretation of the scope of your
revised request is correct and if not please provide further information.
Timeframe for processing your request
The present due date of the decision in relation to your revised request
is 31 December 2024.
I have been working with relevant ASIC teams to help interpret the scope
of your request and undertake some initial searches to try and locate
documents that may fall within the scope of your request. The searches
for the relevant documents in relation to the 2008-2009 and 2015-2016
periods are likely to be complicated by changes to ASIC’s case management
and filing programmes used during those periods and their subsequent
retirement with the commencement of replacement systems.
Due to the complexity and potential volume of documents that may need to
be considered, together with the ongoing need to finalise the scope of
your request, my having been on personal leave between 5-13 December 2024
and the Christmas period close down between 25 December 2024 and 1 January
2025, I will not be in a position to issue a decision in relation to your
revised request by the due date.
I am therefore seeking your agreement pursuant to section 15AA of the FOI
Act to an extension of the timeframe in which a decision is required to be
provided by 30 days. This would make the due date for your revised
request, Thursday 30 January 2025. I will of course endeavour to finalise
your application and issue a decision as soon as possible.
Can you please confirm by email if you agree to this extension of time
under section 15AA of the FOI Act.
I appreciate that this is a very busy time of year and would be grateful
if you could please provide your response to this email as soon as
possible or by close of business on Friday 20 December 2024.
Please let me know if you would like to discuss.
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
Please consider the environment before printing this document.
Information collected by ASIC may contain personal information. Please
refer to our [3]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.
This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.
References
Visible links
1. mailto:[email address]
3. https://asic.gov.au/privacy/
Dear Deborah Mitchell,
I agree to the requested extension.
Yours sincerely,
Harriet Spring
Dear Ms Spring,
Thank you for your quick response to my email. I have advised the OAIC of the revised processing time of your request.
Can you please also confirm whether my interpretation of the scope of your revised request is correct and if not please provide further information.
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]
[email address]
Dear Deborah Mitchell,
Yes- your interpretation of my request is correct. Thankyou
Yours sincerely,
Harriet Spring
Dear Deborah Mitchell,
Yes, your interpretation is correct.
Yours sincerely,
Harriet Spring
Thank you for your email.
ASIC offices will be closed from Wednesday 25 December 2024 to Wednesday 1
January 2025 inclusive, re-opening on Thursday 2 January 2025.
We will respond to your email from Thursday 2 January 2025.
Please consider the environment before printing this document.
Information collected by ASIC may contain personal information. Please
refer to our [1]Privacy Policy for information about how we handle your
personal information, your rights to seek access to and correct
your personal information, and how to complain about breaches of your
privacy by ASIC.
This e-mail and any attachments are intended for the addressee(s) only and
may be confidential. They may contain legally privileged, copyright
material or personal and /or confidential information. You should not
read, copy, use or disclose the content without authorisation. If you have
received this email in error, please notify the sender as soon as
possible, delete the email and destroy any copies. This notice should not
be removed.
References
Visible links
1. https://asic.gov.au/privacy/