1.15 — Enforceable code provisions

The law should be amended to provide:

  • that ASIC’s power to approve codes of conduct extends to codes relating to all APRAregulated institutions and ACL holders;
  • that industry codes of conduct approved by ASIC may include ‘enforceable code provisions’, which are provisions in respect of which a contravention will constitute a breach of the law;
  • that ASIC may take into consideration whether particular provisions of an industry code of conduct have been designated as ‘enforceable code provisions’ in determining whether to approve a code;
  • for remedies, modelled on those now set out in Part VI of the Competition and Consumer Act, for breach of an ‘enforceable code provision’; and
  • for the establishment and imposition of mandatory financial services industry codes.

Government Response

The Government agrees to amend the law to provide the Australian Securities and Investments Commission (ASIC) with additional powers to approve and enforce industry code provisions.

The Government will establish an approved codes regime that includes enforceable code provisions and implements the ASIC Enforcement Review recommendations.

The regime will provide that a breach of an enforceable code provision will constitute a breach of the law. The law will also be amended to provide for remedies that may follow from such a breach.

The Government continues to support and encourage industry to develop voluntary codes that go beyond the requirements in the law. The Commissioner notes the benefits of voluntary codes in harnessing the views and collective will of industry.