{"id":"F2021L00043","name":"ASIC Corporations (Approval of Variation of March 2020 Banking Code of Practice) Instrument 2021/11","slug":"asic-corporations-approval-of-variation-of-march-2020-banking-code-of-practice-instrument-2021-11","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":440750,"registerId":"F2021L00043-fast-fetch-1775956277432","compilationNumber":null,"startDate":"2026-04-12","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"ASIC Corporations (Approval of Variation of March 2020 Banking Code of Practice) Instrument 2021/11","content":"---\nmeta-content-style-type: text/css\nmeta-content-type: application/xhtml+xml; charset=utf-8\n---\n\n![Commonwealth Coat of Arms and ASIC logo](image.001.png)\n\nASIC Corporations (Approval of Variation of March 2020 Banking Code of Practice) Instrument 2021/11\n\nI, Joanna Bird, delegate of the Australian Securities and Investments Commission, make the following legislative instrument.\n\n \n\nDate    07 January 2021\n\n \n\n \n\nJoanna Bird\n\n \n\n\nContents\n\n[Part 1—Preliminary](#_Toc60656719)\n\n[1 Name of legislative instrument](#_Toc60656720)\n\n[2 Commencement](#_Toc60656721)\n\n[3 Authority](#_Toc60656722)\n\n[4 Definitions](#_Toc60656723)\n\n[Part 2—Approval of variation](#_Toc60656724)\n\n[5 Approval of variations of the March 2020 Banking Code of Practice](#_Toc60656725)\n\n[Schedule 1—Variations to the March 2020 Banking Code of Practice](#_Toc60656726)\n\n \n\nPart 1—Preliminary\n\n1 Name of legislative instrument\n\nThis is the ASIC Corporations (Approval of Variation of March 2020 Banking Code of Practice) Instrument 2021/11.\n\n2 Commencement\n\nThis instrument commences on the day after it is registered on the Federal Register of Legislation.\n\nNote: The register may be accessed at [www.legislation.gov.au](http://www.legislation.gov.au).\n\n3 Authority\n\nThis instrument is made under subsection 1101AA(1) of the Corporations Act 2001 (Act).\n\n4 Definitions\n\nIn this instrument:\n\nMarch 2020 Banking Code of Practice means the Banking Code of Practice, published on 12 December 2019 by the Australian Banking Association Incorporated (ABN 60 117 262 978).\n\nNote 1: The March 2020 Banking Code of Practice is taken to be approved under section 1101A of the Act by operation of section 1672 of the Act.\n\nNote 2: The March 2020 Banking Code of Practice, under its terms, took effect from 1 March 2020.\n\nPart 2—Approval of variation\n\n5 Approval of variations of the March 2020 Banking Code of Practice\n\n(1) Variation of the March 2020 Banking Code of Practice by making the amendments that are specified in the items in the Schedule to this instrument (regardless of their formatting) is approved.\n\n(2) The approval in subsection (1) applies:\n\n(a) in relation to item 1 in the Schedule to this instrument—on and from the day this instrument commences; and\n\n(b) in relation to items 2 to 5 in the Schedule to this instrument—on and from 1 March 2021; and\n\n(c)   in relation to item 6 in the Schedule to this instrument—on and from 5 October 2021.\n\n \n\n\nSchedule 1—Variations to the March 2020 Banking Code of Practice\n\n1 Table of contents\n\nBefore the table of contents, insert the following:\n\n \n\n \n\nCOVID-19 SPECIAL NOTE\n\n \n\nCOVID-19 has changed the way we live, work and conduct business\n\nAdded to The Banking Code in June 2020\n\nThis Special Note is part of the Banking Code of Practice (1 March 2020 Release) and applies in relation to the coronavirus known as COVID-19.\n\nThis Special Note commences on 1 July 2020 and applies until 1 September 2021 in relation to banking services and guarantees during that time.\n\nCOVID-19 has changed the way we live, work and conduct business.\n\nIt continues to have a significant impact on the Australian economy. The financial sector has a key role to play in supporting our customers and helping build a bridge to recovery.\n\nLike the key Government and regulatory agencies, the banking industry acknowledges the importance of the continued flow of credit to affected customers and industries in the current environment.\n\nWe note that the Council of Financial Regulators, which includes the Australian Treasury, The Reserve Bank of Australia, the Australian Securities and Investments Commission (ASIC), and the Australian Prudential Regulation Authority (APRA), have committed to take account of the circumstances in which lenders are currently operating when administering their respective laws and regulations.\n\nOther agencies with an important role in enforcing this Code, such as the Australian Financial Complaints Authority (AFCA), and the Banking Code Compliance Committee (BCCC), have issued similar statements recognising the effect of COVID-19 on the industry.\n\nIn this environment, and in keeping with the commitments made by the agencies outlined above, it is important that banks have regard to both their obligations under this Code and the broader critical need to preserve and restore the functioning of the economy when making decisions on the provision of banking services during this period. \n\nThese extraordinary circumstances may affect our internal resources and capacity, and the types of problems confronting our customers.\n\nConsequently, the effects of COVID-19 may mean we are unable to fully comply with strict timing requirements for notices and communications under the Code.\n\nWhile this special note applies, where we do not meet, but have made good faith efforts to comply with, the timing requirements in following paragraphs, we do not breach the Code: 101(b)&(c), 102, 148, 164, 205, and 206.\n\nThe substantive obligations in those paragraphs, along with all other requirements in other parts of this Code, continue to apply as usual.\n\nDuring the period for which this Special Note operates:\n\n1.             On acknowledging your complaint, we will advise you of the possibility of delays to the usual required notifications during the complaints process.\n\n2.                 Despite anything in this Special Note, we will inform you, within 45 days of your complaint (or such other time as specified for the relevant dispute in ASIC’s Regulatory Guide 165), of your rights to apply for external dispute resolution if we have not resolved your complaint.\n\nThe effects of COVID-19 may also be relevant to our obligations under the Code when considering providing new or increased loans to your small business.\n\nThese effects include the inherent difficulties in making predictions for matters such as the pace of economic recovery, and in assessing your ability to service such loans.\n\nIn these circumstances, our obligation to engage with you in a fair, reasonable and ethical manner, and to exercise the care and skill of a diligent and prudent banker, will necessarily be informed by these matters and the effects of COVID-19 generally.\n\n 2 Chapter 1 (definition of “Banking service”)\n\nOmit the definition, substitute:\n\n \n\n“Banking service”\n\n \n\nBanking service means any financial service or product provided by us in Australia to you:\n\na) whether supplied directly or through an intermediary; and\n\nb)  if provided by another party and distributed by us, extends only to the distribution or supply, and not to the service or product itself.\n\n \n\nExamples of banking services the Code applies to:\n\n•  bank accounts and term deposits;\n\n•  credit cards, debit cards, prepaid cards;\n\n•  home loan, personal loans, bill facilities, overdrafts– in the Code these are included in the definition of “loans”;\n\n•  consumer credit insurance;\n\n•  payment services; and\n\n•  foreign currency exchange services.\n\n \n\nHowever, banking services the Code does not apply to include:\n\n•  shares, bonds and other securities that we issue; and\n\n•  financial products and financial services for the purposes of Chapter 7 of the Corporations Act 2001, if you are a ‘wholesale client’ rather than a ‘retail client’ (unless you are a wholesale client only because of section 761G(7)(b)).  \n\n3 Chapter 1 (definition of “small business”)\n\nOmit the definition, substitute:\n\n \n\nWhat is a “small business”?\n\nA business is a “small business” if at the time it obtains the banking service all of the following apply:\n\na)  it had an annual turnover of less than $10 million in the previous financial year*; and\n\nb)  it has fewer than 100 full-time equivalent employees*; and\n\nc)  it has less than $3 million total debt to all credit providers — including:\n\ni)  any undrawn amounts under existing loans;\n\nii)  any loan being applied for; and\n\niii)  the debt of all its related entities that are businesses.\n\nHowever, a business is not a “small business” if it is a company listed on the Australian Stock Exchange, a government entity, or an Australian Financial Services Licensee that is authorised under its licence to operate registered managed investment schemes as a responsible entity or to provide custodial and depository services.\n\n* Note: If the business is part of a group of bodies corporate (see s. 50 Corporations Act), paragraphs (a) and (b) are assessed on the basis of the group.\n\n4 Paragraph 163\n\nOmit the paragraph, substitute:\n\n \n\n163. However, we may still deal with you directly in the following situations:\n\na)  if you ask us to;\n\nb)   if we have made reasonable attempts to contact, or deal with, your financial counsellor or representative but we are unsuccessful; or\n\nc)   if your representative is not a financial counsellor, and\n\ni)  we reasonably believe the representative is not acting in your best interests; or\n\nii)   it is otherwise reasonable to do so in the circumstances.\n\nIf we decide to deal with you directly under (b), or (c), we will tell you, and will suggest other free alternatives that may be available to you.\n\n5 Definitions (after the definition of “Enforcement proceedings”)\n\nInsert:\n\n “Financial Counsellor” means a financial counselling agency (including an organisation or individual) entitled to the benefit of an exemption under either the ASIC Corporations (Financial Counselling Agencies) Instrument 2017/792 or ASIC Credit (Financial Counselling Agencies) Instrument 2017/793.\n\n6 Paragraphs 204 to 206 (including the heading)\n\nOmit the paragraphs (including the heading), substitute:\n\n \n\nTimeframes for handling your complaint\n\n \n\n204.  If we resolve your complaint to your satisfaction, or have given you an explanation and/or apology when we can take no further action to reasonably address your complaint, within five business days, we do not need to provide you with a written response as outlined in paragraph 203, unless you ask us.\n\n \n\nThis paragraph does not apply to a complaint relating to hardship, a declined insurance claim or the value of an insurance claim.\n\n \n\n206.  If we are unable to resolve your complaint within 30 days (or within 21 days if it involves a hardship notice, default notice or request to postpone enforcement), we will:\n\na)  tell you the reasons for the delay;\n\nb)  tell you the date by which you can reasonably expect to hear the outcome of our investigation; and\n\nc)  give you monthly updates on the progress;\n\nd)  tell you about your right to complain to AFCA if you are dissatisfied; and\n\ne)  provide you with contact details for AFCA.\n\n \n\nHowever, for complaints involving hardship notices or postponement of enforcement, exceptions apply to the 21 day timeframe if we do not have sufficient information to make a decision or we reach an agreement with you. If we require further information from you then we will request it within 21 days of receiving the complaint.\n\n \n","sortOrder":0}],"analysis":{"flash_summary":{"complexity_score":4,"scope_assessment":{"changed":true,"description":"The instrument changes the Code’s scope by redefining what counts as a \"banking service\" (clarifying distribution‑only roles) and by setting a new, multi‑criteria test for \"small business\" (turnover < $10m, <100 FTE, and total debt < $3m) (Schedule items 2–3). It also temporarily relaxes strict timing breach exposure for specified paragraphs during the COVID period (Schedule item 1) and alters complaints and representative‑interaction procedures (Schedule items 4 and 6). Practically, banks bear the compliance and record‑keeping costs of the new timeframes and discretion; some customers will gain or lose Code coverage depending on the new thresholds and definitions (see s 5(2) for commencement timing)."},"complexity_factors":["Multiple staged commencement dates for different amendments (see s 5(2))","Temporary COVID‑19 Special Note with limited operation period and carve‑outs affecting timing obligations (Schedule item 1)","Amendment of core definitions (\"Banking service\" and \"small business\") that change eligibility and scope; small business now has turnover, employee and total‑debt thresholds including related entities (Schedule items 2–3)","New procedural discretion allowing banks to deal directly with customers in specified circumstances (replacement paragraph 163) introduces fact‑dependent judgment calls","Revised complaint timeframes and reporting duties (replacement paragraphs 204 and 206) create new operational requirements for case management and customer communications","Insertion of a cross‑referenced definition for \"Financial Counsellor\" that depends on other ASIC instruments (Schedule item 5)","Provision approving amendments \"regardless of their formatting\" (s 5(1)) increases legal certainty but requires careful textual application","Interplay with existing Corporations Act provisions and external bodies (AFCA, ASIC Regulatory Guide 165) requires cross‑referencing for compliance"],"plain_english_summary":"This instrument approves targeted amendments to the March 2020 Banking Code of Practice. It adds a temporary COVID‑19 Special Note, revises key definitions (including “banking service” and “small business”), adds a “financial counsellor” definition, and changes complaint‑handling and representative‑interaction rules.\n\nThe changes affect banks and their retail and small‑business customers by altering who qualifies for Code protections, loosening some strict timing breach consequences during the COVID period, and changing banks’ compliance and dispute‑handling duties."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"},"kimi_summary":{"content_quality":"ok","complexity_score":3,"scope_assessment":{"changed":false,"description":"The instrument remains tightly focused on its original purpose: approving specific variations to the Banking Code of Practice. The variations themselves are discrete amendments (COVID-19 flexibility, definitional clarifications, complaint handling tweaks) that don't expand the instrument's scope beyond administrative approval of Code changes."},"complexity_factors":["Short instrument (6 pages) with straightforward structure","Only 4 defined terms in the instrument itself, though it modifies definitions in the underlying Code","Simple conditional logic—staggered commencement dates for different items (immediate, 1 March 2021, 5 October 2021)","Cross-references to external documents (the March 2020 Banking Code of Practice, ASIC exemption instruments, Corporations Act sections) but these are clearly identified","No nested exceptions or recursive definitions within the instrument itself","Substantive complexity is imported from the underlying Banking Code rather than generated by this instrument"],"plain_english_summary":"This instrument approves six amendments to the March 2020 Banking Code of Practice, adding a time-limited COVID-19 flexibility note, widening \"banking service\" to include intermediaries (while excluding wholesale products and securities), tightening the \"small business\" debt threshold from $5m to $3m, clarifying treatment of customer representatives, defining \"financial counsellor\" by ASIC references, and streamlining complaint timeframes.\n\nIt affects customers of major Australian banks—particularly small businesses and those using representatives—and matters because banks are bound by the Code and can be sanctioned for non‑compliance."}},"importantCases":[],"_links":{"self":"/api/acts/asic-corporations-approval-of-variation-of-march-2020-banking-code-of-practice-instrument-2021-11","history":"/api/acts/asic-corporations-approval-of-variation-of-march-2020-banking-code-of-practice-instrument-2021-11/history","analysis":"/api/acts/asic-corporations-approval-of-variation-of-march-2020-banking-code-of-practice-instrument-2021-11/analysis","conflicts":"/api/acts/asic-corporations-approval-of-variation-of-march-2020-banking-code-of-practice-instrument-2021-11/conflicts","importantCases":"/api/acts/asic-corporations-approval-of-variation-of-march-2020-banking-code-of-practice-instrument-2021-11/important-cases","documents":"/api/acts/asic-corporations-approval-of-variation-of-march-2020-banking-code-of-practice-instrument-2021-11/documents"}}