ASIC has released updates to Regulatory Guide 78 Breach reporting by AFS licensees and credit licensees (RG 78) to clarify aspects of the existing guidance and provide new guidance in response to operational issues that have arisen since the implementation of the regime on 1 October 2021.

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ASIC is also making changes to the prescribed form for lodging reportable situations (accessed using the Regulatory Portal). These changes will be implemented on 5 May 2023 and will clarify how some questions should be answered and point licensees to the guidance available in RG 78.

The updates to RG 78 include:

• clarifying the circumstances in which licensees may group multiple reportable situations into one report to ASIC: The guidance recognises that reports may be grouped if the root cause is staff negligence or human error; it also clarifies that if there are multiple reportable situations attributable to human error by different staff members, licensees should be satisfied that there is no broader failure or other relevant root cause;
• new guidance on the information to include when licensees describe a reportable situation;
• new guidance for licensees on ASIC’s expectations when licensees are providing updates related to a reported breach: the guidance sets out the types of matters that should be updated. It also introduces an expectation that licensees should provide updates at least every six months;
• new guidance to clarify what constitutes a ‘similar’ reportable situation: the new guidance sets out ASIC’s expectations on what is ‘similar’ when answering the question ‘Have any similar reportable situations previously occurred?’ ASIC’s proposed default six-year lookback period has not been adopted;
• new guidance to help licensees calculate the number of clients affected;
• new guidance on the process for withdrawing a submitted report to ASIC: the new guidance clarifies the circumstances in which a report may be withdrawn or corrected.

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Author: David Jacobson
Principal, Bright Corporate Law
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The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.