Scams Prevention Framework Bill 2024 - 6 February 2025

6/2/25

Thank you, Deputy Speaker. Scams are a huge problem and absolutely need to be addressed in legislation. This bill is a good start but I don't think it goes far enough to consider the experience of the victim. But in the spirit of pragmatism I'll be supporting it. Some of the first constituent stories I heard after being elected were people in my community who had been victims of scams and it's such a significant issue that I have spoken about the issue of scams a number of times in parliament. In 2023, I told Lisa's story. Lisa lost $750,000 in a scam where she set up an account with the ING Bank, or she thought she did, only to discover the account was fake. I spoke about John who lost $2.7 million in an elaborate scam where he relied on a broker for his investments and it turned out the broker was actually a fake company. Last year in 2024, I told Tim's story. His mum lost $800,000 in a scam that resulted in a capital gains tax liability, even though she had been scammed out of the assets. And because this issue of scams was so important to my community, and to all Australians, I co-founded the parliamentary friends of scams protection, along with a member for Kooyong. So MPs and senators from across the floor could meet and try to find some better ways of addressing this growing problem. The magnitude of scam losses is hard to believe. Choice tells us that nine out of 10 people have come across what they suspected to be a scam in the last 12 months. In 2023, Australians lost an astonishing $2.74 billion to scammers. Now it has dropped a bit recently but that's nearly three times what it was in 2020. So in 2023 Australians lost more than $5,000 per minute. That's just the scams that were reported and the vast majority of scams are not actually reported. The ACCC says that investment scams were the highest loss category, followed by remote access scams and payment redirection scams. Traditional electronic bank transfers remain one of the most commonly reported means of payments to scammers, but social media scams are also apparently the most profitable. ASIC has found that banks only reimburse between 2 per cent and 5 per cent of customers affected by scams. So really a tiny proportion of the losses that are occurring. And right now there's no clear obligation on banks, telcos or social media platforms in relation to scams management. So that's all to say the introduction of a scams protection framework in parliament is essential. And I acknowledge the work done to date - the national anti-scam centre was set up in July 2023. And it has a mandate to disrupt scams before they reach consumers and that's starting to make impact. But as fast as we work to stop scams, the scammers keep innovating and the scams evolve even faster. So it can feel impossible to keep up. That brings me to the bill which is a welcome addition to the network of scam protections. But it could actually be better. What does it actually do? It introduces mandatory sector specific codes to protect Australians against scams. The framework will first apply to banks, telecommunication companies and digital platforms but the minister could consider adding additional sectors as the framework develops and as scams continue to evolve. Now this bill attempts to protect the vulnerable by creating obligations on those providers. And the bill sets out obligations for businesses that are providing services in one of those three regulated sectors to do a few things. To proactively take reasonable steps to detect, prevent and disrupt scams, to report to the ACCC about actionable scam intelligence and scam responses. And to establish internal dispute resolution processes and join an external dispute resolution scheme to resolve customer complaints for scams. If they don't comply they may face significant civil penalties. It also sets out the ACCC as the framework regulator, and individual sector regulators can be designated by the minister. The minister can make codes for each regulated sector. So there are some good things about this approach that I first want to talk about. We absolutely need the regulation. Some of the good things is we absolutely need a simple, clear regulatory framework that can be understood by both businesses and consumers. And it needs to be as clear as possible for business to implement measures and as simple as possible for consumers to access help. Some of these principles are addressed here and some have some work to be done.I agree with the government's approach to base the framework on principles. It's such a big problem and it's evolving every time. So we need a broad set of principles on how entities will work to protect consumers. Under the framework, regulated entities are required to publish policies about how they'll respond to scams in relation to the principles of governance, prevent, protect, report, disrupt, respond. And I think it's important to regulate this issue as a progressive problem. It will keep changing. Each entity must take reasonable steps to prevent, protect and disrupt scams. I also appreciate the single door approach to scams regulation. We need to make scams prevention as accessible as possible for consumers. AFCA has jurisdiction to deal with all scam disputes involving banks, telcos and digital platforms and it will hopefully reduce red tape and complexity. I do support the safe harbour provisions. The legislation allows for a 28-day safe harbour protection for regulated entities to take proportionate disruptive steps to respond to concerns. This may feel like a long time for consumers, but I support the advice of stakeholders that the objectives of the framework can only be achieved if regulated entities feel empowered to take strong and timely action to block activity that they suspect may be a scam but where they don't have sufficient information to be certain the activity is a scam. That safe harbour provision will help with that. But there are a number of things in the bill that concern me. Prevention is really important and we absolutely need to do that work. But this legislation should create a really clear path for victims if they're scammed. Scams will never be stamped out completely. And it needs to be obvious and clear for victims who have already experienced a loss, what they can do to get compensation. And so if concerns in three areas, around the compliance approach, the onerous dispute resolution mechanism, and also about the onus being on the victim. As drafted, this legislation is designed for businesses to take a minimum standard compliance approach. Rather than incentivising innovation to keep up with scammers who are always steps ahead and I think that's a problem. The dispute resolution mechanism is complicated, expensive and onerous on the consumer. So it requires the consumer to go through an internal dispute resolution process first with the regulated entity before external dispute resolution mechanism. The Australian Law Society said directing victims of scams to internal dispute resolution processes before they go external would result in a poor and frustrating experience for victims. But perhaps the most concerning part of the legislation in front of us is the onus of proof is very much on the consumer or the victim of the scam, rather than the organisation that allowed the scam to happen. A person who has had the money stolen from them, despite the requirements on the banks or telcos to stop it, is required to show the bank or telecommunication company or digital platform didn't do enough. The vulnerable victim has to take on the business to prove that the institution didn't meet the requirements. This seems to me very challenging for a consumer who has just suffered loss, which could be considerable, to then have to navigate the legal system to prove the scam is the fault of the bank telco or digital platform. Reversing the onus of proof so that the bank, telco or digital platform must show its reasonable steps would be a more consumer focused approach where there's significant asymmetry of information. The banks and telcos will know a whole lot more about what steps could be taken than the consumer has looking at it all from the outside. Where a scam could be avoided by multiple parties, that is avoided by multiple parties, that is a bank and a telco and a digital platform, the risk of the scam harm should be allocated to the party that can avoid the scam harm at least cost. in almost all circumstances, the parties best placed to eliminate or mitigate scam risk will be banking, telecommunications and digital platform companies. This is because first and foremost they have control over the architecture and design of their systems and processes. Another way of dealing with it would be a mandatory reimbursement model. Under the UK model, UK banks will be required to reimburse consumers up to a maximum of about $166,000, AUD unless the consumer acted with gross negligence. So if you've brought it on yourself and entirely because of your action, then there's no mandatory reimbursement. Otherwise, you will get reimbursed. Instead, Australian consumers will be able to obtain compensation via the AFCA or by exercising their private right of action for damages against regulated firms if and when they can establish a breach of those legal requirements. Australia has the opportunity within this framework to aim far higher and become a world leader in preventing and disrupting scams and responding to innocent people and families whose lives are markedly changed by scams. And having heard so many stories from consumers in my community, and considered how hard it can be to navigate the dispute resolution process, I don't think this proposed legislation puts the interests of the victims first and foremost. In conclusion, I really appreciate the minister's engagement with me personally on this issue and with the crossbench on the government's broad response to scamming. And I recognise the importance of introducing an overarching framework and proposed industry codes for banks, telcos and digital platforms. This is absolutely a great start. But it doesn't focus on the experience of the victim enough. In the context of a complicated and evolving space, while scammers continue to innovate, the framework still ensures the onus is on consumers to navigate that system and prove the bank, telco or digital platform failed them. Shifting the onus on to the companies with the information and the scale would create better incentives for companies to continue to innovate on how they prevent scams. But in the spirit of pragmatism, this framework is better than nothing and it's definitely an improvement on the existing approach. So I won't let the perfect be an enemy of the good. On that basis I will be supporting this legislation but there is a clear opportunity there, perhaps in the future to make this go further to protect Australians better.

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Amendments to Treasury Law Amendment (Mergers and Acquisitions Reform) Bill 2024 - 21 November 2024