The Australian Government has introduced the enhanced regulatory sandbox. The enhanced regulatory sandbox (ERS) exemption allows natural persons and businesses to test certain innovative financial services or credit activities without first obtaining an Australian financial services (AFS) licence or Australian credit licence (credit licence). The ERS exemption aims to facilitate financial innovation in Australia and is available from 1 September 2020.
The enhanced regulatory sandbox supersedes the previous regulatory sandbox administered by ASIC. It allows testing of a broader range of financial services and credit activities for a longer duration (up to 24 months). We have provided a comparison between the ASIC sandbox and the enhanced regulatory sandbox (PDF 131 KB).
You must meet eligibility criteria to test in the enhanced regulatory sandbox, including satisfying two new tests – the net public benefit test and the innovation test. There are also limitations on what financial services and products you can provide, and what credit activities you can engage in. There is a $10,000 individual limit on the value of certain financial services that you can provide to retail clients, and an aggregate $5 million total exposure limit for all financial services provided to and credit activities engaged in with all your clients.
If you intend to use the enhanced regulatory sandbox, you must first complete and lodge a prescribed form with ASIC. Which form you use depends on whether you plan to test a financial service or credit activity:
If we confirm that your notification satisfies the minimum requirements, you can conduct testing under the ERS exemption as long as you meet a number of ongoing conditions. These conditions include:
complying with specified disclosure and conduct requirements
membership of the Australian Financial Complaints Authority (AFCA), and
ordinarily, holding adequate professional indemnity (PI) insurance if providing financial services to retail clients or engaging in credit activities.
Even if you can rely on the ERS exemption, you will still be required to comply with other applicable laws. For example:
prohibitions against misleading or deceptive conduct or unconscionable conduct (these prohibitions are administered by ASIC)
design and distribution obligations (which commence from 5 October 2021) if you issue financial products or credit facilities or make sale offers that require you to give clients a Product Disclosure Statement (PDS) (these obligations are administered by ASIC), and
anti-money laundering or privacy requirements (these requirements are administered by other regulators).
This information sheet (INFO 248) provides guidance for those who wish to rely on the ERS exemption. It explains:
The purpose of the sandbox is to allow testing of innovative services and products.
Under the ERS exemption, you must:
only provide certain types of financial services and products
only engage in certain types of credit activities
not exceed the relevant exposure limits for clients
only test your product or service for 24 months or less, and
comply with any make-good orders we issue.
You can only test eligible financial services in relation to eligible financial products. You can provide the following services to wholesale and retail clients:
financial product advice (personal and general)
dealing by issuing, varying or disposing of a non-cash payment facility (only)
dealing in (other than by issuing) eligible financial products, and
a crowd-funding service.
In relation to insurance products, you can act as an agent or a principal.
You can provide eligible financial services in relation to the eligible financial products listed in Table 1. The type of client (i.e. wholesale or retail) will determine the types of financial product for which you can provide financial services.
Table 1: Eligible financial products for which you can provide eligible financial services
Type of client
Eligible financial products
Wholesale clients
You can provide eligible financial services in relation to all financial products, except for derivatives and margin lending facilities.
Retail clients
You can provide eligible financial services in relation to the following products:
deposit-taking facilities issued by an authorised deposit-taking institution (ADI) regulated by the Australian Prudential Regulation Authority (APRA)
non-cash payment facilities issued by an APRA-regulated ADI
general insurance products issued by an APRA-authorised general insurer, except for consumer credit insurance products
life insurance products issued by an APRA-authorised life insurer
superannuation products issued by an APRA-regulated superannuation fund
interests in simple managed investment schemes
Note: A simple managed investment scheme is a registered scheme that invests at least 80% of its assets in a bank account where funds can be withdrawn within three months, or in arrangements where the investments can be realised at market value within 10 days – see regulation 1.0.02 of the Corporations Regulations 2001 (Corporations Regulations).
Commonwealth debentures, stocks or bonds
domestic or international securities that are listed on the official list of a prescribed financial market or an approved foreign market, and
fully-paid ordinary shares if providing securities as part of a crowd-funding service.
Note: The Corporations Regulations specify that crowd-funding service providers may offer securities that are specified in regulations made for the purposes of section 738G(1)(c) of the Corporations Act 2001 (Corporations Act). Regulation 6D.3A.01 currently specifies fully paid ordinary shares.
Retail client exposure limits for certain eligible financial products
Each of your retail clients may commit a maximum of $10,000 in certain financial products as the result of eligible financial services provided under your current or previous ERS exemptions.
The financial products that this limit applies to includes:
interests in simple managed investment schemes
Commonwealth debentures, stocks and bonds
securities listed on approved domestic or overseas markets
securities offered under a crowd-funding service, and
non-cash payment facilities issued by you.
Under the ERS exemption, you can test eligible credit activities. You can provide credit contracts, and credit services that relate to a credit contract (or proposed credit contract), as long as:
the term of the contract does not exceed four years
the credit limit of the contract is more than $2,000 and less than $25,000
the contract is not a reverse mortgage or a small amount credit contract, and
the contract is not secured by a charge or lien over a consumer's household property that is covered by regulation 6.03(2) of the Bankruptcy Regulations 1996.
A $5 million aggregate client exposure limit applies across all:
financial services and products you provide and credit activities you engage in
your clients (including retail clients, wholesale clients and credit consumers)
your related entities, and
your current and past uses of the ERS exemption.
The $5 million total exposure limit is calculated by adding together all amounts:
clients commit for all the financial products you provide financial services for under the ERS exemption
clients commit in gross written premiums for general insurance and life risk insurance products you provide financial services for under the ERS exemption
clients contribute to superannuation products you provide financial services for under the ERS exemption, and
of the value of credit contracts that clients enter into as a result of your eligible credit activities.
We expect you to monitor all limits that apply to you under the ERS exemption. You must ensure you do not exceed any relevant limits.
If you breach any of these limits, you will not be able to rely on the ERS exemption.
How to determine if you are an eligible person who is able to rely on the ERS exemption
You can qualify for the enhanced regulatory sandbox if you:
are an eligible person, and
lodge a valid notification with ASIC (see How to apply for the ERS exemption). The notification must show that you meet certain requirements.
An 'eligible person' is a body corporate or a natural person that satisfies certain requirements.
We have provided more detail about who is an 'eligible person' in Table 2.
Person
Criteria
Body corporate
To be an eligible person, you must:
not currently be authorised by an AFS licence or credit licence to provide the same financial services or products, or engage in the same credit activities, that you are proposing to test
not currently be an authorised representative of an AFS licensee, or a credit representative of a credit licensee, for the provision of the same financial services or products, or engaging in the same credit activities, that you are proposing to test
not be a related body corporate of a person who is in one of the above two categories
not have previously been approved for an ERS exemption to test the same financial service or product or credit activity
not have a related body corporate previously granted an ERS exemption to test the same financial service for that same financial product, or the same credit activity
not be an operator of a financial market
not be an operator of a clearing and settlement (CS) facility, and
if you are a foreign company, be registered under Division 2 of Part 5B.2 of the Corporations Act.
Natural person
To be an eligible person, you must:
be an Australian citizen or permanent resident
not currently be authorised by an AFS licence or credit licence to provide the same financial services or products, or engage in the same credit activities, that you are proposing to test
not currently be an authorised representative or a credit representative for the provision of the same financial services or products, or engaging in the same credit activities, that you are proposing to test, and
not have previously been approved for an ERS exemption to test the same service or product.
How to apply for the ERS exemption
If you want to rely on the ERS exemption, you must first lodge a valid notification form with ASIC. Which form you use depends on whether you plan to test a financial service or credit activity:
Note 1: You may subsequently wish to test eligible financial products and services or credit activities not covered in your first test. If you have not exhausted your total $5 million exposure limit, you can submit a new notification to ASIC for the proposed new test.You must complete the form with all of the information requested in the prescribed format. We may decide not to approve you relying on the ERS exemption if we are not satisfied that the notification complies with the ERS Regulations.
The form requires you to provide information on:
the probity, fitness and propriety of you, your officers, your controllers, the officers of your controllers and your significant decision makers
the net public benefit test – you must adequately explain why exempting each eligible financial service, financial product or credit activity will result, or be likely to result, in a benefit to the public. The benefit must outweigh any detriment to the public that will result, or be likely to result, from exempting that service, and
the innovation test – you must adequately explain why each eligible financial service, financial product or credit activity is considered either new or a new adaptation or improvement of another service.
Some of the questions we ask in relation to the net public benefit and innovation tests are listed in Table 3.
Relevant test
Examples of questions
Net public benefit test
Explain whether your proposed financial service or credit activity address a current problem for consumers or the Australian market. If so, what is the problem and how is it addressed?
Explain whether, and how, your proposed financial service or credit activity:
increases Australian consumer choice
reduces cost
provides better user experience, or
provides enhanced efficiency.
What are the main risks that your proposed service poses to Australian consumers? How will you manage and control each of those risks?
How will you manage the risk to existing clients or credit consumers if at the end of the exemption you had not obtained a licence or authorisation?
Innovation test
Explain whether, and why, you consider your proposed financial service or credit activity is new or different to what is available in the Australian market.
Describe what comparable services or activities to your proposed financial service or credit activity are already available in the Australian market (if any).
An officer will need to certify that all information you have provided in the notification is correct, complete and accurate. Additionally, each of your officers, controllers and significant decision makers will need to provide information on their fitness and propriety and attest to the information supplied about them.
For fitness and propriety, you must provide scanned copies of a national criminal history check (also called a police check) and a bankruptcy check, both no more than 12 months old. These checks can take time to obtain, so you must apply for them early.
Note: It is an offence to provide false or misleading information to ASIC.
You must lodge a notification that is complete (i.e. provides all requested information and documents) and unambiguous.
It is your responsibility to satisfy ASIC that you meet the net public benefit and innovation tests.
In practice, we will rely on the information you provide in the notification. We will not ordinarily seek further information from you about your notification during its assessment.
We have 30 calendar days to assess your notification. We intend to write to you within this period to advise whether you are or are not able to rely on the ERS exemption. We will give you a statement of reasons if you cannot rely on the exemption.
If we do not respond within the 30-day period, then the exemption is taken to start on the 31st day after the date you lodged your notification with ASIC.
Public register
We will also publish an informal public register of businesses who are using or have used the ERS exemption to test their financial services or credit activities.
The conditions that apply under the ERS exemption
If you are relying on the ERS exemption, you must comply with the conditions set out in Table 4.
Number
Condition
1
Before providing an exempt financial service or engaging in an exempt credit activity, you must clearly and prominently notify all clients or credit consumers that:
you are not authorised by an AFS licence or credit licence to provide the service
you are not an authorised representative or credit representative for the provision of the service or engaging in the credit activity
you are providing the service and/or engaging in the credit activity under an exemption provided by the Corporations (FinTech Sandbox Australian Financial Services Licence Exemption) Regulations 2020 and/or the National Consumer Credit Protection (FinTech Sandbox Australian Credit Licence Exemption) Regulations 2020 (as applicable)
some of the normal protections associated with receiving services from an AFS licensee or credit licensee will not apply, and
you will notify the client in writing if any of the events referred to in Condition 3 (which you must list) happen.
Examples of ways you can notify your clients include on your website and in any client agreements or other contractual documents.
2
Before providing an exempt financial service, you must provide all retail clients with:
your name and contact details
information on any remuneration (including commissions) to which you can become entitled as a result of providing the financial service
information on any associations or relationships between you and any of your related bodies corporate or the issuers of any financial products that might reasonably be capable of influencing the client in relation to the provision of the financial service, and
information on the dispute resolution systems available to the client. You must include information on how to access those systems and how long they will be available (e.g. you must specify that the external dispute resolution body is AFCA and provide their phone and email contact details).
Note: This condition does not apply to eligible persons engaging in an exempt credit activity.
3
You must notify each client or credit consumer you are providing an exempt financial service to, or engaging in an exempt credit activity with, if any of the following events happens:
you have ceased to carry on a financial services or credit business
you have become a Chapter 5 body corporate or, under a foreign law, you have started to be in a similar position to a Chapter 5 body corporate
you have become bankrupt or have applied to take the benefit of any law for the relief of bankrupt or insolvent debtors
you have compounded with your creditors, or have made an assignment of your remuneration for the benefit of your creditors
you have become authorised by an AFS licence to provide the financial service and/or become authorised by a credit licence to engage in the credit activity (as applicable)
you have become an authorised representative for the provision of the financial service and/or become a credit representative for engaging in the credit activity
you have ceased to rely on the exemption provided under the Corporations (FinTech Sandbox Australian Financial Services Licence Exemption) Regulations 2020 and/or the National Consumer Credit Protection (FinTech Sandbox Australian Credit Licence Exemption) Regulations 2020 (as applicable)
the financial service you provide, a financial product to which it relates and/or the credit activity you engage in has materially changed, and
you are no longer offering the financial service, a financial product to which it relates, and/or the credit activity you engage in to new clients or credit consumers.
You must notify clients or credit consumers in writing within 10 business days of the event happening.
4
You must notify ASIC if any of the events referred to in Condition 3 (other than those related to becoming an AFS licensee, credit licensee, authorised representative or credit representative) happen. You must notify ASIC in writing within 10 business days of the event happening.
5
You must establish and maintain dispute resolution arrangements. This includes:
an internal dispute resolution procedure that:
complies with the standards and requirements made or approved for the purposes of section 912A(2) of the Corporations Act and/or section 47(1)(h)(i) the National Consumer Credit Protection Act 2009 (National Credit Act) (as applicable), and
covers complaints retail clients make against you about the provision of the financial service and/or credit consumers make against you about engaging in the credit activity, and
membership of the AFCA scheme for the purposes of dealing with complaints retail clients make against you about the provision of the financial service and/or credit consumers make against you about engaging in the credit activity.
6
You must establish and maintain adequate arrangements for compensating retail clients or credit consumers for loss or damage suffered because you or your representatives have breached:
the Corporations Act or the National Credit Act, or
these conditions.
These compensation arrangements must:
include holding adequate PI insurance, or
Note: We consider that, to be adequate, a PI insurance policy must have a limit of at least $1 million for any one claim and in the aggregate. To comply with Condition 7, you must also continue these compensation arrangements for a period of 12 months after the end of the exemption period. This would generally involve obtaining run-off cover for the 12-month period.
be approved by ASIC in writing as adequate.
Note:
It can take several weeks or longer to obtain PI insurance, so you must start organising it early. If you don't have it in place at the time you lodge your notification, we will still assess your notification. However, you are requested to provide ASIC subsequently with evidence of having obtained PI insurance (e.g. a certificate of currency).
You must not operate your proposed business without PI insurance. If you do, you will breach the conditions of your ERS exemption. We may decide to cancel your ability to rely on the ERS exemption.
Further information on adequate compensation arrangements, including on PI insurance and alternative arrangements that may be approved by ASIC, can be found in our guidance for AFS and credit licensees. See Regulatory Guide 126 Compensation and insurance arrangements for AFS licensees (RG 126) and Regulatory Guide 210 Compensation and insurance arrangements for credit licensees (RG 210).
7
For at least 12 months after the end of the exemption period for the financial service or credit activity, you must continue:
the AFCA membership referred to in Condition 5, and
the compensation arrangements referred to in Condition 6.
8
If you provide an eligible financial service, you must comply with the following obligations:
Statement of Advice (SOA) – If you provide personal advice to a retail client, you must give each client an SOA in accordance with Subdivisions C and D of Division 3 of Part 7.7 of the Corporations Act. You must provide the SOA:
in relation to that personal advice, and
as if you were an AFS licensee.
Client money obligations – You must comply with Divisions 2 and 3 of Part 7.8 of the Corporations Act as if you were an AFS licensee.
Financial product disclosure – You must comply with Division 2 of Part 7.9 of the Corporations Act:
in relation to the financial service, and
as if you were an AFS licensee (for any financial products related to the financial service).
Note: Under direct application of the law, if you are a financial product issuer or make sale offers requiring a PDS to be given to clients, you must make a target market determination under the design and distribution obligations (which commence from 5 October 2021).
9
If you engage in an eligible credit activity, you must comply with:
the responsible lending obligations under Chapter 3 of the Credit Act as if you were a credit licensee
the special rules for short-term contracts provided for in section 124A and Part 3-2C of the Credit Act, as if you were a credit licensee
the limits on the fees and charges under Division 4A of Part 2 and Division 3 of Part 4 of the National Credit Code, as if you were a credit provider, and
the unfair contract terms rules in Subdivision BA of Division 2 of Part 2 of the Australian Securities and Investments Act 2001 (ASIC Act), as if the relevant contract for the credit activity were a consumer contract (within the meaning of section 12BF(3) of that Act).
Note: If you issue credit contracts, you will be required to make a target market determination under the design and distribution obligations (which commence from 5 October 2021).
10
If we give you a make-good order, you must:
comply with the order within 30 days, starting on the day after you were given the order, and
lodge a notice with ASIC stating that you have complied with the order. The notice must be in the prescribed form. You must lodge the notice within the 30-day compliance period.
Note:
We may issue you with a make-good order if we decide that your provision of a financial service or engagement in a credit activity has resulted, or is likely to result, in significant detriment to clients or credit consumers. Our order may require you to make changes to the eligible financial service or credit activity, including requiring you to engage in specified conduct or to cease engaging in specified conduct.
Before issuing a make-good order, we will consult the affected parties, including you. ASIC decisions on make-good orders are subject to review by the Administrative Review Tribunal (ART).
Length of the exemption period and what to do when it ends
The ERS exemption applies to you for a maximum of 24 months for each eligible service you provide for a particular product.
If you are able to rely on the ERS exemption, the exemption period commences on the 31st day after you lodge the notification with ASIC.
The exemption period cannot be extended, paused or reset. It applies for each exemption notification we approve.
Before the end of the exemption period, you must decide whether you will cease operations or apply for a licence or authorisation. In both cases, you must make arrangements to ensure your existing clients or credit consumers do not experience detriment or discontinuity of service.
If you decide to apply for a licence or authorisation, you must apply adequately in advance of the end of your testing period to allow ASIC enough time to decide on your application before the end of your exemption period. We recommend you allow six to nine months.
The exemption period can end earlier than 24 months: see the situations set out in Table 5.
Table 5: Situations when the exemption period can end early
Situation
More details
Automatic cessation
The exemption will cease automatically if you breach any of the conditions attached to your exemption or to another exemption you have. This includes if you breach:
the conditions on the types of financial services you can provide and credit activities you can engage in
the individual $10,000 retail client exposure limit that applies to investments in certain eligible financial products, and
the $5 million total exposure limit for all clients and financial services and credit activities.
The ERS exemption will also cease automatically if you become licensed or authorised to provide the same financial services or products, or engage in the same credit activities, that you are testing.
ASIC cancellation
The ERS exemption will cease if we determine that you can no longer rely on the exemption for any of several reasons. ASIC decisions are subject to review by the ART.
We will cease your ERS exemption if we find that:
you have failed to satisfy any of the conditions attached to the exemption
the service is not innovative
you have not satisfied the fitness and propriety requirements
you have failed to act efficiently, honestly and fairly
the current ERS exemption is an attempt to continue or recommence an exemption that was previously obtained by another person
you have failed to comply with the best interest obligations
the provision of the service has resulted in significant detriment to one or more persons, and/or
we have cancelled a previous exemption.
Notice of cancellation by you
The exemption will cease if you lodge with ASIC a written notice to that effect. The cancellation takes effect on the day specified in the notice. You must not specify a day before you lodge the notice with ASIC.
If you rely on the ERS exemption, please provide us with a short report within two months after the end of the exemption period.
The report should set out details of your experience while testing your financial service or credit activity. Please provide information such as:
the number of clients or credit consumers taking up, or making use of, the financial services or credit activities during the exemption period
general information about the client or credit consumer demographic (e.g. age and location)
the number and nature of complaints you received and handled
the number and nature of complaints you escalated to AFCA
a description of the issues you identified or faced during the exemption period, and how you resolved those issues
the regulatory requirements you identified as barriers to viability, and
revenue and expense information (e.g. financial report information).
We will not publicly release the details provided as part of your report, unless it is necessary (e.g. if Parliament requires release) or in the public interest for us to do so (e.g. in response to a freedom of interest request). The information provided will help us review the operation and effectiveness of the ERS exemption. It will also help us identify key risks and issues faced by testing businesses and consumers.
Alternatives to the ERS exemption
There are other alternatives to test your business without relying on the ERS exemption. You may wish to consider the exemptions available under legislation and the exemptions provided by ASIC.
Acting on behalf of an existing licensee
As an alternative to obtaining an AFS or credit licence, you may be able to provide financial services or engage in credit activities on behalf of a licensee as that licensee's representative. That licensee must have an authorisation to provide the financial services or credit activities that you intended to provide.
This option is only available to you if you are providing financial services or engaging in credit activities on behalf of the licensee. It is not suitable if you intend to provide the services or engage in the credit activities on your own behalf as a principal.
Products and services that do not require a licence
Some products are not subject to the licensing requirements in the financial services or consumer credit laws. For example:
a foreign exchange contract that settles immediately is not regulated under the Corporations Act
some electronic funds transfers, where there is no standing arrangement between the client and the person sending the funds, are not regulated under the Corporations Act
Note: See regulation 7.1.07G of the Corporations Regulations.
payment products where payments can only be made to one person are not regulated under the Corporations Act, and
credit provided to businesses, or for business purposes, is not regulated under the National Credit Act.
As a result, if you wished to provide these products, or services relating to these products, you might not need a licence from ASIC. However, the consumer protection laws in Division 2 of Part 2 of the ASIC Act still apply.
ASIC has statutory powers to exempt a person (or class of persons) from the requirement to hold:
an AFS licence under the Corporations Act, and
a credit licence under the National Credit Act.
ASIC also has relief powers to:
provide exemptions from the licensing requirements for products or services (or classes of products or services), and
modify some of the laws we administer.
Our policy on granting relief is set out in Regulatory Guide 51 Applications for relief (RG 51).
For example, we have given relief from the requirement to hold a licence when providing:
financial services in relation to 'low value' non-cash payment products, where the maximum balance on any one product is $1,000 and the maximum aggregate balance on all facilities in the class is $10 million (see Regulatory Guide 185 Non-cash payment facilities (RG 185) and ASIC Corporations (Non-cash Payment Facilities) Instrument 2016/211)
financial services in relation to mortgage offset accounts (see Superseded Class Order [SCO 03/1048] Mortgage offset accounts), and
Many of these exemptions are subject to certain conditions. These conditions are intended to promote good outcomes and reduce the risk of consumer harm.
More information on other exemptions is available in our existing guidance. We encourage you to review:
Section D of Regulatory Guide 121 Doing financial services business in Australia (RG 121)
Section E of Regulatory Guide 36 Licensing: Financial product advice and dealing (RG 36), and
Section D of Regulatory Guide 203 Do I need a credit licence? (RG 203)
If you are ineligible for the ERS exemption and wish to explore the alternative option of applying for a financial services or credit licence, see the following ASIC web pages:
Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice. We encourage you to seek your own professional advice to find out how the applicable laws apply to you, as it is your responsibility to determine your obligations.
You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases, your particular circumstances must be taken into account when determining how the law applies to you.
Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.
This information sheet was issued in October 2024.
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