Tag Archives: #regulation

Crypto Regulation in Australia

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You wait ages for a bus, then several come along at the same time. The past week has seen three major developments in Australia regarding the regulation of cryptocurrencies, digital assets and the industry in which they operate.

First, there was the Final Report of the Senate Select Committee on Australia as a Technological and Financial Centre. Among other things, the Committee has recommended a specific regulatory framework for Digital Currency Exchanges, a formal custody regime for digital assets, a classification (or “token mapping exercise”) for the various types of digital assets, and a legal framework to recognize Decentralised Autonomous Organisations as a form or company structure.

Second, AUSTRAC issued a Statement on De-banking, that urges banks and financial institutions to take a case-by-case approach when reviewing potential risks associated with clients engaged in Blockchain and cryptocurrencies. Rather than applying a blanket ban or refusal to deal with Blockchain and crypto businesses, banks and other providers should exercise more discretion, and adopt workable and practical solutions to meet their risk management and KYC/AML obligations. Echoing the overarching theme of the Senate Select Committee, AUSTRAC recognises that de-banking crypto risks stifling innovation, and/or forcing crypto businesses to resort to less than ideal alternative service providers.

Third, ASIC released its Response to submissions made under the recent consultation on Crypto-assets as underlying assets for ETPs (aka Report 705 on CP 343). While there is some overlap with the scope and terms of reference of the Senate Select Committee, ASIC maintains its position that it does not want to be responsible for developing policy on regulating digital assets (that’s the role of Government); while at the same time stating in very clear terms how it believes cryptocurrencies should or shouldn’t be classified (and regulated). For example, ASIC did not accept the view of many respondents that crypto-assets which are not deemed financial products should be treated as commodities. In part, because there is no definition of “commodity” in the Corporations Act; but also because the discussion has been more about market operators, rather than the specific nature of the assets themselves.

Meanwhile, ASIC remains very prescriptive about the criteria for approving certain cryptocurrencies as the underlying assets for exchange traded products (ETPs) – including criteria which received push back from the industry as being too restrictive or inflexible. On the other hand, ASIC does appear to accept that if crypto-assets cannot be defined as financial products (or commodities), then a distinct category is required. This is the case that has often been put forward by the industry, namely the need to define instruments commonly known as utility tokens. To its credit, ASIC has made a fair stab at coming up with a workable definition of crypto-asset as:

“a digital representation of value or rights (including rights to property), the ownership of which is evidenced cryptographically and that is held and transferred electronically by:
(a) a type of distributed ledger technology; or
(b) another distributed cryptographically verifiable data structure.”

While the overall tone of these developments is encouraging, they still reveal a need for greater consistency (and inter-agency co-ordination), and the lack of a well-articulated policy on this fast-growing FinTech sector.

Next week: Is crypto finally going mainstream?

 

Australia’s Blockchain Roadmap

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The Australian Government recently published its National Blockchain Roadmap – less than 12 months after announcing this initiative. While it’s an admirable development (and generally, to be encouraged), it feels largely aspirational and tends towards the more theoretical rather than the practical or concrete.

First, it references the US Department of Homeland Security, to define the use case for Blockchain. According to these criteria, if a project or application displays three of the four following requirements, then Blockchain technology may offer a suitable solution:

  • data redundancy
  • information transparency
  • data immutability
  • a consensus mechanism

In a recent podcast for The Crypto Conversation, Bram Cohen, the inventor of the BitTorrent peer-to-peer file sharing protocol, defined the primary use case for Blockchain as a “secure decentralized/distributed database”. On the one hand, he describes this as a “total oxymoron; on the other, he acknowledges that Blockchain provides a solution to the twin problems of having to have trusted third parties to verify transactions, and preventing double-spend on the network. This solution lies in having to have consensus on the state of the database.

Second, the Roadmap speaks of adopting a “principles based but technology-neutral” approach when it comes to policy, regulation and standards. Experience tells us that striking a balance between encouraging innovation and regulating a new technology is never easy. Take the example of VOIP: at the time, this new technology (itself built on the newish technology of the internet) was threatened by incumbent telephone companies and existing communications legislation. If the monopolistic telcos had managed to get their way, maybe the Post Office would then have wanted to start charging us for sending e-mails?

With social media (another internet-enabled technology), we continue to see considerable tension as to how such platforms should be regulated in relation to news, broadcasting, publishing, political advertising, copyright, financial services and privacy. In the music and film industries, content owners have attempted to own and control the means of production, manufacture and distribution, not just the content – hence the format wars of the past in videotape, compact discs and digital file protocols. (A recurring theme within  Blockchain commentary is the need for cross-chain interoperability.)

Third, the Roadmap mentions the Government support for Standards Australia in leading the ISO’s Technical Committee 307 on Blockchain and DLT Standards. While such support is to be welcomed, the technology is outpacing both regulation and standards. TC 307 only published its First Technical Report on Smart Contracts in September 2019 – three years after its creation. In other areas, regulation is still trying to catch up with the technology that enables Initial Coin Offerings, Security Token Offerings and Decentralized Autonomous Organizations.

If the ICO phenomenon of 2016-18 demonstrated anything, it revealed that within traditional corporate and market structures, companies no longer have a monopoly on financial capital (issuance was largely subscribed via crowdfunding and informal syndication); human capital (ICO teams were largely self-forming, self-sufficient and self-directed); or networks and markets (decentralized, peer-to-peer and trustless became catch words of the ICO movement). Extend this to DAOs, and the very existence of, and need for traditional boards and shareholders gets called into question.

Fourth, the Roadmap makes reference to some existing government-related projects and initiatives in the area of Blockchain and cryptocurrencies. One is the Digital Transformation Agency’s “Trusted Digital Identity Framework”; another is AUSTRAC’s “Digital Currency Exchange” regulation and registration framework. With the former, a more universal commercial and government solution lies in self-sovereign identity – for example, if I have achieved a 100 point identity check with Bank A, then surely I should be able to “passport” that same ID verification to Bank B, without having to go through a whole new 100 point process? And with the latter, as far as I have been able to ascertain, AUSTRAC does not publish a list of those digital currency exchanges that have registered, and exchanges are not required to publish their registration number on their websites.

Fifth, the need for relevant training is evident from the Roadmap. However, as we know from computer coding and software engineering courses, students often end up learning “yesterday’s language”, rather than acquiring flexible and adaptable coding skills and core building blocks in software development. It’s equally evident that many of today’s developers are increasingly self-taught, especially in Blockchain and related technologies – largely because it is a new and rapidly-evolving landscape.

Finally, the Roadmap has identified three “showcase” examples of where Blockchain can deliver significant outcomes. One is in agricultural supply chains (to track the provenance of wine exports), one is in education and training (to enable trusted credentialing), and one is in financial services (to streamline KYC checks). I think that while each of these is of interest, they are probably just scratching the surface of what is possible.

Next week: Brexit Blues (Part II)

 

Culture Washing

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Banks, Parliament, Cricket Australia, Political Parties, religious bodies, the ABC – the list of national institutions that have come under fire for failed governance and even worse behaviour continues to grow. Commentators are blaming a lack of “culture” within these organisations.

Some Boards end up washing their dirty laundry in public….. Image Source: Max Pixel

Already we are seeing a “culture” movement, which will inevitably lead to “culture washing”, akin to “green washing”, and other examples of lip service being paid to stakeholder issues.

Just this past week, the interim report of the Banking Royal Commission prompted the Federal Treasurer to say that banks need a “culture of enforcement and a culture of compliance”. I can already imagine the “culture checklists” and the “culture assessment” surveys and feedback forms….

There are consulting firms building “culture risk” assessment tools. There may even be some empirical evidence to suggest that companies with better employee engagement and “culture” can generate better share price performance. Even the AICD is getting in on the act with its upcoming directors’ update on how boards can gain “insights on culture”, and how to set the “tone from the top”.

(Actually, all any director needs to do to monitor the “culture” of their organisations is to track social media and sites such as Glassdoor, Whirlpool, Product Review, etc..)

But corporate and organisational “culture” is organic, and cannot be built by design. It is a combination of strong leadership and core values that everyone in the organisation is willing to commit to and adhere to. It also means ensuring that everyone knows what is expected of them, and the consequences of failing to meet those standards are clear.

As for employee engagement surveys, one of my colleagues likes to say, “The only question to ask is: ‘Would you recommend this organisation as a place to work, and if not, why not?’” Another colleague regularly says to his own teams, “If this is no longer a fun place to work, then let me know”.

Next week: Why don’t we feel well off?

 

Banks under the spotlight (again)

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About 6 months ago, I posted a blog on the current state of banking and financial services. It was published before the proceedings at the Royal Commission got underway, and since then we have heard a litany of complaints of malpractice and other inappropriate behaviour by some of our major financial institutions. We have also seen the publication of the Prudential Report into the CBA, commissioned by APRA. But despite the horror stories, is anyone really surprised by either of these findings?

Image: Jacob Edward; Source: Flickr; Some Rights Reserved

Some have suggested that our banking culture is largely to blame – but to me, that is somewhat simplistic, since I don’t think that the culture within our banks is so very different to that of other large companies or statutory corporations. (But I will explore this topic in a future blog.)

We have a love-hate relationship with our financial institutions, especially the 4-pillar banks. The latter have continued to be regarded as some of the most stable, profitable and prudent banks in the world – they are probably among the top 30 banks globally based on their credit ratings. Moreover, during the GFC, it was largely agreed that, despite their participation in complex financial products such as mortgage-backed securities, collateralized debt obligations and credit-default swaps, the big 4 banks helped to prevent a total meltdown in the local capital markets because they had reasonably strong balance sheets, and they worked closely with the RBA to avert the full effects of the GFC.

In fact, so enamoured are we of our banks that, despite the Royal Commission, the banks will not face significant regulatory reforms. One economist at a major fund manager I spoke to suggested that even an in-coming Labor Government would have to confine itself to some sort of bank tax. Anything that would undermine the 4-pillar policy (such as increased competition, rationalisation or foreign ownership) would likely be seen as unacceptable in the current political environment. In addition, since the financial sector makes up such a significant part of the market capitalization of the Australian stock market, most voters hold shares in the banks, either as direct or discretionary investments, or through their superannuation fund. Impacting the financial performance of the banks will have a knock-on effect for customers and shareholders alike.

Despite the relative strength of Australia’s financial services regulatory regime, it’s clear that part of the blame for the current malaise lies with the regulators themselves. None of the transgressions complained of at the Royal Commission or uncovered by APRA’s report on CBA suggest that new regulation is needed (unless we are talking about structural reforms…) In the wake of the GFC, and in line with global banking standards, banks have had to adjust the levels of risk-weighted capital they hold, and meet more onerous compliance costs – as well as rein in riskier lending practices. Yet, it feels like the regulators have not been as vigilant or as pro-active as they might have been – or there is such a “checklist” mentality towards compliance and risk management that banks and their regulators have lost sight of the substance of the law, not just the form.

Having read the APRA report on the CBA, there are a number of issues which need to be addressed, as I suspect that they are replicated (in whole or in part) among the other major banks:

  • All of the incidents covered by the APRA report occurred since the GFC – so, maybe increased compliance obligations are not the answer to these problems, but better supervision and enforcement?
  • Technology is only mentioned about a dozen times in the report – and technology was placed very low in the organizational framework for CBA’s Better Risk Outcomes Program (BROP) – yet banks are increasingly becoming technology businesses
  • Decision-making was seen as being too slow and too reactive, in part due to a collegiate and collaborative environment (surely, the signs of a positive culture?)
  • I would suggest there was a lack of external or independent input at the executive and even board level, and an over-reliance on in-house technical experts – especially in the areas of IT and risk
  • Further, the typical silo structures within large, complex organisations like banks, are the result of an over-emphasis on products and processes, rather than on customers and outcomes. To quote the APRA Report:

“…too many handoffs between silos and layers, with accountability often not clear enough and agreements hard to reach…”

  • Equally, a lack of delegation (especially to front line and customer facing staff) only compounds the lack of empowerment, accountability and transparent decision-making

Despite the strength of the 4-pillar banks and the market share they command, they face disruption and disintermediation from digital platforms, Blockchain technology, decentralized applications, P2P solutions and challenger brands. In fact, banks will increasingly become the digital custodians of our financial data – we will end up paying them to manage our data (rather than simply charging us transaction fees). Banks will also need to restructure their products and services around our personal financial needs and obligations according to our stage of life and other circumstances (rather than simply selling us products), along the lines of:

  • Essential – housing, living, education, health, retirement
  • Mandatory – superannuation, taxes
  • Discretionary – investments, holidays, luxuries

That way, banks will also have a much better “whole of client” view of their customers, rather than the current product bias.

Next week: Culture Washing