We look at the recent updates to RG 51 and RG 108 by ASIC that focus on simplifying guidance and clarifying the appropriate circumstances for applications for regulatory relief and no-action letters.
Key Takeaways
ASIC’s updates to RG 51 and RG 108 signal a shift towards more pragmatic, negotiated regulatory outcomes, moving away from the post-Royal Commission ‘why not litigate’ approach.
Applicants for regulatory relief are no longer required to submit a cost-benefit analysis, reducing the administrative burden.
ASIC has centralised overlapping guidance across RG 21, RG 57, and RG 208 to create a streamlined application process for both relief and no-action letters.
The revised RG 108 clarifies that no-action letters are not a substitute for formal relief and outlines clearer assessment factors to guide more targeted applications.
A shift in regulatory policy
On 17 February 2025, ASIC published updates to Regulatory Guides (RG) 51 ‘Applications for Relief’ and 108 ‘No-action letters’.
This revision and regulatory clarification reflects a general emerging trend in regulatory policy to move away from ASIC’s ‘why not litigate’ approach post 2018 Banking Royal Commission, and to consider potential alternative negotiated regulatory outcomes.
In 2021, ASIC released an amended RG 100 ‘Court Enforceable Undertakings’ which outlined its intention to undertake more efficient investigations through the utilisation of a full portfolio or toolkit of enforcement options. This included a reintroduction of Court Enforceable Undertakings (CEUs) into ASIC’s enforcement apparatus, allowing a more proactive system of engagement with ASIC. This was intended to create an increasingly pragmatic approach to regulatory action and a greater scope for alternative enforcement and relief processes, post 2018.
The updates to RG 51 and RG 108 are intended to centralise relevant information and streamline the application process for a no-action letter and regulatory relief.
The timing of the revisions appears to acknowledge the desire of ASIC to reaffirm alternative regulatory options. There is a willingness by ASIC to engage in the negotiation of alternative outcomes in contrast to commencing litigation, if the relevant regulatory guides affirm that no action and/ or regulatory relief is integral to ASIC’s regulatory response.
Amended guidance for Applications for Relief and No-action Letters
RG 51 provides guidance for applicants and advisers making an application for regulatory relief in particular:
to emphasise that an Applicant for regulatory relief may have a right to seek review of an ASIC decision by the Administrative Review Tribunal (presumably ASIC is seeking to make Applicants aware of their right of review and to encourage the utilisation of the relief application system, where necessary).
it eliminates the requirement for Applicants to provide a cost-benefit analysis in their relief application submissions.
to incorporate the relevant guidance from RG 21 ‘How ASIC charges fees for relief applications’, RG 208 ‘How ASIC charges fees for credit relief applications’ and RG 57 ‘Notification of rights of review’.
Ultimately, these changes are aimed at enhancing the accessibility for Applicants and AFS licensees to make an application for relief, by providing more streamlined options for alternative negotiated regulatory outcomes..
No-action Letters
RG 108 provides guidance for Applicants and AFS licensees applying for a no-action letter, including the application process and the factors which ASIC will consider when determining these requests. This RG has been updated to:
include a reference to relevant conduct in RG 51 for an Applicant to consider when requesting a no-action letter. The RG outlines the limitations of no-action letters, notably they are not relief, and provides guidance as to when relief is more appropriate, that is, ASIC is unlikely to issue a no-action letter where regulatory relief would be more appropriate.
to clarify the factors relevant to ASIC’s consideration of a no-action application, presumably in an effort to facilitate the preparation of more articulate applications and to improve the potential for approval of an application by ASIC .
revised content requirements for individual no-action and no-action class requests to avoid repetition and ambiguity.
In our view these updates facilitate a more accessible and clearer regulatory process in applying for no-action letters and encourage the utilisation of regulatory alternatives.
Conclusion
The revisions to the regulatory guidance appear to be a reflection of ASIC’s enforcement trend to consider negotiated regulatory options. This suggests that financial services providers and participants should consider the broader regulatory toolkit available to ASIC including no action, specific and class relief and enforceable undertakings when assessing compliance of its commercial arrangements, services, products and operations with the financial services regulatory framework.
For further information please contact Michael Bracken in our Financial Services team.
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