I hold an AFS licence and/or Australian credit licence – what do I need to do?

Most licensees have registered on the ASIC Regulatory Portal as part of their annual industry funding obligations.

If you are an AFS/Australian credit licensee with an existing ASIC Regulatory Portal account, from 1 October 2021, two new 'transactions' will be available to you in the portal.

These transactions allow AFS licensees and Australian credit licensees to notify ASIC of ‘reportable situations’ obligations under Div 3 of Pt 7.6 of the Corporations Act 2001 (Corporations Act) and Div 5 of Pt 2-2 of the National Consumer Credit Protection Act 2009 (National Credit Act).

What information am I required to provide to ASIC as part of a reportable situation?

Two new 'transactions' will be available to you in the portal. Conditional logic in the transactions will generate only relevant questions depending on the nature and type of reportable situation being lodged. We will require minimal free text information and will not require additional attachments.

The 'wireframes' for the two new forms can be accessed below. These wireframes contain all of the questions that appear in the forms together with the conditional logic that will be applied.

• Reportable situation by licensee (PDF 1.6 MB)
• Reportable situation by another licensee (PDF 767 KB)

Does ASIC expect an increase in the volume of reporting as a result of the reforms?

Yes.  ASIC expects a significant increase in the volume of breach reports.  This is consistent with the legislative intent to expand the types of situations that must be reported to us, for example:

• the extension of the breach reporting regime to credit licensees;
• the deemed ‘significance’ provisions; and
• the obligation to report investigations into possible breaches that continue for more than 30 days.

Will the Regulatory Portal have bulk/batch upload capability?

Yes, ASIC has released the Reportable Situations Application Programming Interface (API), which provides a machine-to-machine interface solution to submit reportable situation transactions. Further information is available at Application Programming Interface (API) for Reportable Situations.

Licensees can also report multiple instances of relatable reportable situations in one transaction in either the web form or the API. For more information see RG 78.112- RG 78.117 Breach Reporting by AFS licensees and credit licensees.

Will ASIC be providing guidance on what some terms mean (for example, the meaning of 'investigation' and 'recklessness'?)

These are new terms under the reforms that are coming into effect from 1 October 2021.  We have provided some guidance and included some examples to illustrate the requirements in RG 78 Breach reporting by AFS licensees and credit licensees.

When does ASIC’s obligation to publish data from breach reporting commence?

As part of the reforms, ASIC has a statutory obligation to publish information about reports lodged with ASIC each financial year, with reports to be published on our website within 4 months after the end of the financial year. This applies in relation to financial years on or after 30 June 2022. It is likely that a separate project will be established to identify our approach to this obligation.

What is the ASIC Regulatory Portal?

The ASIC Regulatory Portal will become your central access to ASIC's growing suite of digital regulatory services.

The portal will also feature:

• a record of previously drafted and/or submitted reportable situations transactions
• the ability to track the status of submitted reportable situation transactions reports
• the ability to correspond with ASIC online about submitted reportable situations

Where do I go if I need help registering for or using the portal?

The ASIC Regulatory Portal help page has resources to help you get up to speed with using the portal. These include step-by-step user guides, FAQs and videos to help you – from registering your account to connecting your registration and inviting trusted representatives to act on your behalf

Can I group similar core obligations into one notification?

Where there are multiple reportable situations arising from a single, specific root cause, you may be able to notify us of these multiple reportable situations in one report and meet your reporting obligations under the law. Licensees must exercise judgement on what is appropriate to group together in these circumstances.

Can I submit one report regarding multiple licensees in the group?

If you are reporting a reportable situation on behalf of one or more related entities, and provided that the conduct arises from a single, specific root cause, there is an opportunity in the reportable situation form to identify and list the relevant licensees and their licence number. The related entities do not need to separately report to us. Similarly, if you are reporting for both a credit and AFS licensee, this can be specified in the form and two separate reports are not required.

Transitional Breach reports

The previous reporting provisions will continue to apply to AFS licensees where the previous breach reporting obligation (as in force immediately before 1 October 2021):

1. is breached or is likely to be breached before 1 October 2021; and
2. before 1 October 2021, the licensee knows that the obligation has been breached or is likely to be breached.

For more information see RG 78.17- RG 78.22 Breach Reporting by AFS licensees and credit licensees.

Are there any changes to the regulatory portal?

Yes, ASIC has made changes to the way that licensees submit reportable situations with ASIC. To view details on how to submit reportable situations with ASIC in the regulatory portal see our guidance on 'how to submit a reportable situation'.

ASIC has also created a new status in the regulatory portal called 'Event Status'. This event status will show you what steps are remaining before the event is completed.

These include:

Draft – No transactions have been submitted yet for the reportable situation event.

Investigation incomplete – Your responses in the latest transaction submitted for the reportable situation event indicate that your investigation is not yet complete. You will need to notify ASIC once the investigation is complete. Note that you should submit updates on this reportable situation event when there are material changes, for example, providing updates to estimates reported in previous submissions and providing updates where additional instances of similar or related reportable situations have arisen from the same root cause.

Remediation and rectification incomplete – Your responses in the latest transaction submitted for the reportable situation event indicate that you are compensating or intend to compensate clients who have suffered a financial loss because of the reportable situation and one of the following applies:

• you are rectifying the breach or intend to rectify the breach; or
• you are taking measures or intend to take measures to address your inability to comply with the core obligation.

You will need to notify ASIC once the remediation and/or rectification is complete.

Remediation incomplete – Your responses in the latest transaction submitted for the reportable situation event indicate that you are compensating or intend to compensate clients who have suffered a financial loss because of the reportable situation. You will need to notify ASIC once the remediation is complete.

Rectification incomplete – Your responses in the latest transaction submitted for the reportable situation event indicate that:

• you are rectifying the breach or intend to rectify the breach; or
• you are taking measures or intend to take measures to address your inability to comply with the core obligation.

You will need to notify ASIC once the rectification is complete.

Complete – Your responses in the latest transaction submitted for the reportable situation event indicate that you no longer need to submit any further transactions about this reportable situation event. You therefore cannot launch a new transaction for the event.

If the event status for a reportable situation event is anything but ‘Complete’ after you have submitted a transaction, it is expected that in due course, you will submit one or more further transaction for that event until the event status changes to ‘Complete’.

What is a corporate collective investment vehicle and what are the reporting requirements?

A corporate collective investment vehicle (CCIV) is an investment structure that is a company limited by shares and is a separate legal entity. It must have at least one sub-fund that has its own assets and liabilities. Further information regarding CCIV’s can be found at Corporate collective investment vehicles.

An AFS licensee must be appointed as a corporate director of the CCIV and that licensee will be responsible for lodging reportable situations to ASIC. There are new questions in the reportable situation form about the CCIV where you are reporting as the corporate director.

More information

• Regulatory Guide 78 Breach reporting by AFS licensees and credit licensees (RG 78)
• Financial services homepage

Still have a question?

You can send questions about this change to: feedback.breach@asic.gov.au