Part 2: Navigating the new frontier: Unpacking the new Scams Prevention Framework

SPF principle 1: Governance 

Regulated entities must develop and implement governance measures in the form of policies, procedures, metrics and targets to combat scams. Such governance measures are intended to be dynamic. Policies and procedures must be developed with reference to multiple factors such as the risk of scams faced by the entity, the consumer base it services, as well as any shift in scam activities.

Regulated entities must also:

• Review and certify their governance measures at least annually by a senior officer of the entity.
• Publish information about their measures to protect consumers from scams and the rights of those consumers in relation to scams (including about making complaints).
• Keep records of their governance arrangements for a least 6 years and give reports about its compliance as requested by the regulator.

Practical considerations:

• Do you have a good understanding of the areas in your chain of operations which may be susceptible to the risk of scams?
• Do you have appropriate frameworks to develop and maintain a scam specific policy?
• Do you have appropriate frameworks to support your annual certification process, such as processes covering risk identification and assessments, implementation of monitoring metrics, and review and uplift of relevant policies and procedures? 

SPF principle 2: Prevent 

Regulated entities must take reasonable steps to prevent scams, and proactivity is the key to demonstrating compliance with this principle. The draft legislation makes it clear that it is insufficient to merely act on relevant information relating to scams provided to the regulated entity.

Examples of reasonable steps includes identifying consumers who have a higher risk of being targeted by scams, providing warnings to at-risk consumers and making resources accessible to consumers to assist them to identify scams and to minimise the risk of harm from scams.

This principle is intended to stop scam activity from reaching or impacting consumers, as opposed to disrupting scam activity (see principles 3 and 5 below).

Practical Considerations:

• Do you conduct regular risk assessments and seek out information proactively from relevant sources on the emerging scam activities to inform your risk assessment and potential remediation activities to address any vulnerabilities on your service?
• Are there processes in place to identify which of your consumer base are at a higher risk of being scammed?
• Do you regularly monitor and analyse organisation and industry data for any trends to identify which cohort is more susceptible to scams and the latest tactics which scammers are using to target consumers? 
• Do you have clear protocols to guide what resources or warnings you provide to consumers which you categorise as higher risk? For instance:
  • Do you take into account any attributes of vulnerability, channels which these consumers are more likely to access (e.g. where they are less familiar with technology), and potential language barriers when making decisions with respect to these protocols?
  • Do you provide direct scam-related alerts to those consumers in plain language, which you update from time to time to alert them of the latest developments with respect to scams on your services or platforms, and what they can do to minimise the risk of harm?
• How often do you conduct staff training on emerging scam activity and the organisation’s processes to identify and respond to scams?   

SPF principle 3: Detect 

Regulated entities must take reasonable steps to detect scams. This includes actions to do the following as the scam is occurring or after it has occurred:

1. Detect scam activity through information from its internal mechanisms, or external to the organisation such as those from consumers or the regulator.
2. Identify, in a timely manner, which of its consumers are or could be affected by scams, and the nature of that impact (including both financial and non-financial harm or losses).

Where the regulated entity has “actionable scam intelligence” about a suspected scam, it must take reasonable steps to act on that intelligence to identify each consumer who is or could be impacted by the suspected scam.

Practical Considerations:

• Do you have effective proactive procedures to identify scams and consumer cohorts that are or have been affected by actual or suspected scams?
• How is the organisation approaching the detection of scams? For instance, is there whole-of-business coordination where different functions regularly share relevant information such as consumer complaints or intelligence, any spikes or trends in terms of irregularities in transactions, or more broadly market trends in terms of scam tactics?
• Are you investing sufficiently in advanced technology and resources to monitor complaints from consumers, and establish procedures to address to those complaints swiftly where scams have taken place or will take place? 

SPF principle 4: Report 

When a regulated entity has reasonable grounds to suspect that a communication, transaction or other activity on, or relating to, a regulated service of the entity is a scam, it must report this to the ACCC (in its capacity as the SPF general regulator) as soon as reasonably practicable (if no other time period is prescribed) containing specific information. It is contemplated that the information collected will generally only include information relating to the mechanism or identifier used for the scam activity, including bank account details that scammers instruct victims to transfer funds to, phone number used by scammers to get in touch with victims).

Similarly, the entity must provide a report about a scam to the ACCC if it so requests within a certain timeframe containing specific information (which could include de-identified demographic information about the impacted consumer, date and kind of scam, the loss or harm caused by the scam). The ACCC may disclose information about scams to other entities across the ecosystem to help disrupt the scam.

Practical Considerations:

• Do you have a defined framework and team to comply with these reporting obligations?  
• While the draft statute provides that complying with this principle will not represent a breach to the obligations to maintain a duty of confidence, are your contractual provisions sufficiently robust to cover these information sharing requirements?
• Where personal information (within the meaning of the Privacy Act 1988 (Cth)) is expected to be captured under these reporting obligations, or where you anticipate additional personal information being collected to meet these reporting obligations, how are you aligning your relevant policies and processes to ensure you are compliant with the applicable regimes?

SPF principle 5: Disrupt  

Regulated entities must take reasonable steps to disrupt scams and prevent losses from scams. Reasonable steps include actions to stop an actual or suspected scam from continuing or further impacting consumers, such as putting payments on hold to allow the regulated entity to alert the consumer, blocking phone numbers of bank accounts, or removing scam advertisements on websites.

Moreover, where a regulated entity has reasonable grounds to suspect that a communication, transaction or other activity on, or relating to, a regulated service of the entity is a scam:

• It must disclose sufficient information to its consumers to enable them to act in relation to the suspected scam and share the relevant intelligence with the ACCC.
• It is entitled to rely on a 28-day ‘safe harbour’ during its investigations whereby regulated entities will not be liable in a civil action or civil proceeding for taking certain actions to disrupt a suspected scam in specified circumstances, for example, if the disruptive action is reasonable and proportionate to the suspected scam, done in good faith and in compliance with the Framework.

Practical Considerations:

• Regulated entities will likely need to apply enhancements to consumer communications to swiftly disrupt a scam – do you have processes around consumer communications to determine what information needs to be shared with consumers? Do your communication protocols take into account how the impacted consumer generally uses your services and whether the communications should be sufficiently tailored to maximise engagement?
• How are you approaching the interface between this principle and your consumer complaints processes? Regulated entities may need to speed up the process of review for consumer complaints to be able to effectively disrupt an actual or suspected scam (such as introducing friction to bank transfers in high risk settings).
• Are your processes aligned with the specific requirements that need to be met to rely on the ‘safe harbour’ provisions?

SPF principle 6: Respond 

Regulated entities must have an accessible mechanism for their consumers to report scams. Entities may choose to set up a mechanism for consumers to report scams in a variety of ways, such as in-person, over the phone, or through an app or via its website.

Each entity must have an accessible and transparent internal dispute resolution mechanism for its consumers to lodge complaints about scams or the entity’s conduct in relation to scams and may choose to make available its complaints handling process on its website.

If the entity provides services which are regulated by the Framework, it must become a member of an authorised external dispute resolution (EDR) scheme for dealing with scam complaints. While more than one SPF EDR scheme may be authorised, the intention of the proposed legislation is to have a single EDR scheme for multiple regulated sectors to streamline the process.

Practical Considerations:

• The Australian Financial Complaints Authority (AFCA) charges regulated entities for all cases they manage based on a Fee Structure. The fees vary based on the matters in this Schedule, for example, whether they move to case management or require a decision. If AFCA is the EDR provider, this will result in additional costs to regulated entities.
• Where you are required to comply with additional requirements with respect to your IDR mechanisms (such as Australian Securities and Investments Commission (ASIC) RG 271), how are you approaching any overlapping or related requirements to ensure you are compliant with this principle as well as other requirements?