What is the annual compliance certificate?
Credit licensees are required to lodge with ASIC a compliance certificate on an annual basis: see s53 National Credit Act. ASIC is currently considering the form the certificate will take and will consult with industry on its form and content.
Why does the Chief Executive Officer (CEO) have to sign the annual compliance certificate? Can the compliance leader or another senior officer sign it?
The legislation is aimed at ensuring that compliance be addressed at the very highest level of the business. ASIC recognises that the CEO may need to act on the information and advice of key persons, depending on the size and complexity of the business.
Does a credit licence have to be renewed each year?
While the credit licence is not technically renewed each year, you must pay an annual fee when lodging the annual compliance certificate.
How will the fee for lodging the annual compliance certificate be calculated?
The National Consumer Credit Protection Regulations 2010 (National Credit Regulations) has a table of fee bands, based on the total amount of credit activity undertaken in the previous financial year. For guidance on calculating amounts, see the Explanatory Memorandum to the National Credit Regulations. ASIC will also issue guidance if needed. See Information Sheet 108 How much does a credit licence cost?(INFO 108).
See also Information Sheet 105 Dealing with consumers and credit (INFO 105).
When will the responsible lending provisions be introduced?
The introduction of the responsible lending provisions is staggered:
From 1 July 2010, credit providers and credit assistance providers that are not Australian deposit-taking institutions (ADIs) or registered financial corporations (RFCs) must comply with the high level general conduct obligations of responsible lending.
From 1 January 2011, all credit providers and credit assistance providers must comply with all the responsible lending obligations.
See the National Credit Regulations for a complete list of the responsible lending obligations. A list of RFCs is available from the Australian Prudential Regulation Authority (APRA) at www.apra.gov.au
What guidance is available on responsible lending?
ASIC has published Regulatory Guide 209 Credit licensing: Responsible lending conduct obligations(RG 209) about our expectations for meeting the responsible lending obligations in Chapter 3 of National Credit Act. It provides detailed guidance for industry on this aspect of the new credit regime.
How will responsible lending work in practice? RG 209 includes scenarios on how the responsible lending obligations might apply for a range of borrowers (e.g. self-employed borrowers, people consolidating loans, impulse buyers on weekends). While these scenarios illustrate our guidance on the responsible lending obligations, they are not intended to be exhaustive.
As a credit provider, can I rely on an assessment of the customer carried out by my broker?
The credit provider is required to make its own assessment. You cannot rely on a preliminary assessment by the broker. RG 209 provides more detail on the use by credit providers of material collected by a broker.
What should be covered in the compliance plan?
The compliance plan should cover how you will meet your credit obligations under the legislation. The content of your compliance plan depends on the nature, size and complexity of your business. A written plan serves to clarify the obligations that apply to your business, who in your business is responsible for monitoring compliance with those obligations, what steps will be taken to monitor compliance, and how often this will happen. It also provides a record of what has been done, so you can review your procedures and performance periodically.
Will ASIC be issuing guidance on compliance plans and suitable content?
ASIC has issued some guidance for small businesses, including tips for preparing compliance documents. See Information Sheet 97 Guidance for small credit businesses (INFO 97) However, it is impractical for ASIC to provide sample compliance plans given that businesses vary greatly in size and complexity. Each business will need to consider their individual requirements and procedures. We recommend that you speak to peak industry bodies if you need help developing a compliance plan.
What are the obligations in relation to conflicts of interest?
Credit licensees must ensure their customers are not disadvantaged by any conflicts of interest. You should make adequate arrangements to meet this obligation (e.g. with regard to remuneration or incentive structures). What this means will vary depending on the circumstances.
See Regulatory Guide 205 Credit licensing: General conduct obligations (RG 205) and the Explanatory Memorandum to the National Credit Act for examples of conflicts of interest and guidance on your obligations.
What registers will ASIC maintain for credit registration and licensing?
ASIC will maintain the following registers for credit registration and licensing:
Banned Persons (Credit)
What type of information will the registers include?
The details ASIC will maintain are prescribed in the National Credit Regulations. They include business addresses, business names (if any) and external dispute resolution (EDR) scheme membership.
How do I satisfy legal requirements to ensure I don’t appoint a credit representative who has been banned? For example, how often am I expected to check ASIC’s banned persons register?
See Information Sheet 109 Credit licensee offences: Prohibited dealings and unlawful authorisations (INFO 109).
Do I still need to comply with state regulations on credit, as well as the National Credit Act?
Some state-based legislation will remain. For example, because the Australian Government has not addressed interest rate caps in Phase 1 of the credit reforms, some states intend to keep their interest rate caps in place for the time being. The question of whether an interest rate cap is needed and, if so, what form it should take, will be comprehensively addressed under Phase 2 of the Australian Government’s Consumer Credit Action Plan.
What are the penalties for non-compliance with the credit obligations?
The legislation imposes criminal and civil penalties for unlicensed trading. The highest monetary penalty for an individual is $220,000. For a body corporate, partnership or multiple trustee, the highest monetary penalty is $1,100,000. If a person is convicted of an offence, the maximum term of imprisonment is two years.
Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice. Omission of any matter in this information sheet will not relieve a company or its officers from any penalty incurred by failing to comply with the statutory obligations of the National Credit Act.
You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases your particular circumstances must be taken into account when determining how the law applies to you.
This is Information Sheet 104 (INFO 104). Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.