As promised by the Government, ASIC has released its proposed design of a regulatory sandbox for fintech. It is to represent a “safe-place” in which businesses can test new products and services without immediately incurring all of the regulatory consequences of those activities. In this way, the proposal has the potential to allow fintech businesses to accelerate their development of innovative offerings in the Australian marketplace. Although ASIC’s sandbox only proposes to provide a safe-place in relation to the requirement to hold an AFS licence and does not extend to other potential regulation, it has more important features which distinguish it from equivalent overseas regimes.

Of course, it is critical that the sandbox is calibrated to strike the right balance between facilitating fintech opportunities and appropriate consumer protection mechanisms. ASIC has attempted to strike this balance through limiting the type and conditions of play in the sandbox. A summary of the features of ASIC’s sandbox proposal is in the table below.

Click here to view the table.

The usual option of making an individual application for relief is still available to fintech entities.

When ASIC launches the sandbox, Australia will join the likes of the United Kingdom in having a regulatory sandbox open for business (and we do not expect Singapore to be far behind, as they are preparing to release a consultation on the Singaporean sandbox proposal).The usual option of making an individual application for relief is still available to fintech entities.

ASIC's proposed sandbox compares favourably to the UK sandbox in several ways. First, ASIC’s sandbox is not subject to the restraints of EU law. Also, ASIC's proposal is on the premise that the terms and conditions of play will be set out up front. This contrasts with the UK sandbox where the FCA tailors a unique set of terms upon application for each business (although the FCA has published broad parameters for those terms). A key advantage of the ASIC proposal is that it will allow some fintech businesses to test certain product offerings prior to a detailed assessment by ASIC. This means that the ASIC sandbox does not have an element of the regulator being required to “pick winners” for participation in the sandbox. Accordingly, the ASIC sandbox may not have the disadvantage of being difficult to replicate across jurisdictions which would provide consistency benefits.

As there is a lot of technical detail behind the regulatory concepts described in this alert, we urge the fintech industry to work through the points carefully and consider making a submission to ASIC. If you would like more detailed insight on this, or any assistance with this process, please contact us. We would be absolutely delighted to speak to you.

ASIC’s consultation process for these proposals ends on 22 July.

Background

ASIC’s proposed sandbox relates to the requirement under Australian law to hold a licence – or find an exemption from doing so – if it carries on financial services business.

Generally (unless an exemption applies) you could be providing a financial service if you:

  1. provide financial product advice;
  2. deal in a financial product;
  3. make a market for a financial product;
  4. operate a registered managed investment scheme;
  5. provide a custodial or depository service; or
  6. provide traditional trustee company services.

Accordingly, this licensing requirement may be relevant to fintech businesses, for instance, with respect to digital advice, peer-to-peer lending services, blockchain payment systems and cognitive technologies.

In addition, a business that operates a financial market or a clearing and settlement facility in Australia may be required to hold a different sort of licence which is not covered by the sandbox. For instance, the sandbox will not be available to online trading platforms.

ASIC’s paper also proposes some additional guidance or flexibility with respect to the requirement in the application for an AFS licence to prove the business’s organisational competency through the expertise of a “responsible manager”. ASIC’s preferred approach is to implement a combination of these proposals along with the sandbox proposal.

More background on the introduction of a regulatory sandbox in Australia can be found here, here and here.