DANIELS BENGTSSON Pty Limited Implications of New National

DANIELS BENGTSSON Pty Limited Implications of New National Consumer Credit Regime on your business

Today’s objectives � who needs to apply for an Australian Credit licence? � are there any other options? � what needs to be done to apply for an Australian Credit licence? Daniels Bengtsson Pty Limited

Question � what industries do you, the participants, represent? Daniels Bengtsson Pty Limited

New regulatory context � Commonwealth take over of consumer credit Ø replacing State & Territory regimes Ø National Consumer Credit Protection Act , called the Credit Act � comprehensive licensing regime for all businesses engaged in credit activities � ASIC the single, national regulator Daniels Bengtsson Pty Limited

National licensing regime � persons engaging in credit activities – Ø initial registration with ASIC Ø subsequent grant of Australian Credit licence � entry standards for registration & licensing � registered persons and licensees to meet ongoing standards of conduct � gives ASIC the power to suspend or cancel a licence or registration, or to ban an individual from engaging in credit activities Daniels Bengtsson Pty Limited

Impact on business � main group affected Ø industry participants – detailed under ‘credit activities’ � main impact – Ø those who only conduct business in States or Territories where there is currently no licensing or registration scheme � costs – Ø one-off - applying for a licence Ø complying with ongoing licence obligations Daniels Bengtsson Pty Limited

Timetable pre 1 July 2010 credit activities ü register between 1 April & 30 June ü licence between 1 July & 31 December post 1 July credit activities ü licence before you start engaging in the credit activity Daniels Bengtsson Pty Limited

Timetable pre 1 July 2010 credit activities ü register between 1 April & 30 June ü licence between 1 July & 31 December post 1 July credit activities ü licence before you start engaging in the credit activity Daniels Bengtsson Pty Limited

Consequences a person continuing to engage in credit activities from 1 July 2010 without being registered X cease engaging in credit activities until the credit provider obtains an ACL a registered credit provider X cease engaging in credit continuing credit activities from activities until the credit 1 January 2011 without being provider obtains an ACL licensed Daniels Bengtsson Pty Limited

Prohibition on business � must not carry on credit activities unless – Ø the credit activity is authorised – § in the person’s Australian Credit Licence § in transitional registration before licensing Ø an individual is – § a credit representative of a licensee/registered person § a director or employee of a licensee/registered person Ø activity or person exempt under the regs Daniels Bengtsson Pty Limited

Credit activities – 1 st category � credit providers under credit contracts Ø performing obligations, or exercising rights, of a credit provider under a credit contract � providers of consumer leases � performing obligations or exercising rights in respect of credit contracts or mortgages & guarantees in relation to credit contracts Daniels Bengtsson Pty Limited

Activities tied to NCC � ‘credit activities’ involves credit contracts, leases, mortgages and guarantees where the National Credit Code applies to the provision of the credit Daniels Bengtsson Pty Limited

The credit NCC applies to … � debtor a natural person or strata corporation � credit provided wholly or predominantly for Ø personal, domestic or household purposes Ø to purchase, renovate or improve residential property for investment Ø to refinance credit provided in relation to above Daniels Bengtsson Pty Limited

The lease NCC applies to … � goods are hired wholly or predominantly for personal, domestic or household purposes � a charge is or may be made for the hiring of the goods & the charge, together with any other amount payable under the consumer lease, exceeds the cash price of the goods. Daniels Bengtsson Pty Limited

Timing of credit activity � continue to be a credit provider or lessor for as long as you continue to be a party to the contract – Ø collecting money due Ø enforcing contracts � obligation to stay licensed continues for the life of the contract Ø implication for businesses that go into ‘run off’ ie no new lending after 1 July Daniels Bengtsson Pty Limited

Assignees � assignees of credit providers, lessors. mortgagees or beneficiaries of guarantees must be licensed because they – Ø collect money Ø enforce contracts, mortgages or guarantees Daniels Bengtsson Pty Limited

Credit activities – 2 nd category � persons providing credit service – Ø finance brokers and other intermediaries where they have a role in securing credit for a consumer Ø persons who assist consumers in relation to a particular credit contract with a particular credit provider Daniels Bengtsson Pty Limited

Credit assistance – ‘suggest’ § apply for a provision of credit in respect of a particular credit contract with a particular credit you suggest that the consumer … § apply for an increase to the credit limit of a particular credit contract with a particular credit provider § remain in their current credit contract or lease Daniels Bengtsson Pty Limited

Credit assistance – ‘assist’ you assist the consumer to … § apply for a provision of credit in respect of a particular credit contract with a particular credit § apply for an increase to the credit limit of a particular credit contract with a particular credit provider Daniels Bengtsson Pty Limited

Dealing directly or indirectly … � you are providing credit assistance regardless of whether you are dealing directly with the consumer or with the consumer’s agent Ø for example, you are assisting an elderly parent to apply for a credit contract, but are dealing with their children [Explanatory Memorandum § 1. 24] Daniels Bengtsson Pty Limited

Assistance not arranging � it is enough to suggest Ø entry into a credit contract or lease Ø applying for a credit limit Ø staying in a particular credit contract without actually arranging the contract Ø assistance is less than ‘arranging’ Daniels Bengtsson Pty Limited

Acting as intermediary � regulates every person who may be an intermediary between consumer & credit provider ‘Innovations in credit product design and delivery now mean that a consumer may pass through a number of hands between the first person they deal with and the lender, and may be uncertain as to the roles or functions of all these different parties. It is intended that the licensing requirements will apply to all these persons. ’ Daniels Bengtsson Pty Limited

Extent of intermediation � very wide – Ø does not require conduct in relation to a particular credit contract or credit provider Ø does not require direct or indirect contact with the consumer Ø for example, acting as an intermediary by preparing or passing on information but with the object, wholly or partly, of securing the provision of credit or a lease [Explanatory Memorandum § 1. 29] Daniels Bengtsson Pty Limited

Other prohibitions � A person will commit an offence where – Ø they hold out that they are authorised Ø they hold out or advertise that they can engage in credit activities Ø they demand or receive a fee from a consumer in relation to a credit activity, when they are unlicensed in relation to that credit activity Daniels Bengtsson Pty Limited

Conducting business with unlicensed person licensee cannot essential licensees conduct business understand who they with another person are doing business who is engaging in a with – credit activity but § what is their status – licensed or exempt not licensed to do so under the regulations – § civil penalty – 2, 000 penalty units § criminal penalty – 200 penalty units + 2 years imprisonment Daniels Bengtsson Pty Limited

Question for participants � conducting business with 3 rd parties – can you list some of the 3 rd parties you deal with when you are engaging in credit activities? Daniels Bengtsson Pty Limited

Exemptions � the regulations deal with exemptions in 3 ways Ø by exempting persons when engaging in certain credit activities Ø by exempting activities Daniels Bengtsson Pty Limited

Exempt persons - 1 Bankruptcy Act 1966 official receiver or trustee, registered debt agreement administrator receiver, receiver and manager, provisional liquidator, or liquidator a State or Territory Public Trustee administrator of a body corporate deceased’s personal representative deceased licensee’s personal representative but only for 6 months a public or local government body or authority, constituted under Commonwealth, State or Territory legislation Daniels Bengtsson Pty Limited

Exempt persons - 2 State-based registrations under – the Finance Brokers Control Act 1975 (WA the Credit (Administration) Act 1984 (WA) the Consumer Credit (Administration) Act 1996 (ACT) financial counselling service body providing benefits to members charities providing credit services to low income people Daniels Bengtsson Pty Limited

Exempt persons - 3 lawyers tax agents but note § excluded from exemption – activity of tax agent providing a consumer with a certificate or assessment as to whether the consumer can meet their financial obligations under the contract: Reg 24(5) performers of some statutory obligations – § Privacy Act 1988 § Anti-Money Laundering and Counter-Terrorism Financing Act 2006 Daniels Bengtsson Pty Limited

Exempt related body corporate � a related body corporate of a licensee Ø on behalf of that licensee Ø only because its employees and directors are engaging in credit activities on behalf of the licensee Ø the credit activities are not § being a credit provider under a credit contract § being in the business of providing consumer credit § being a lessor under a consumer lease § being in the business of providing consumer leases Daniels Bengtsson Pty Limited

Exempt debt collectors only when acting for a licensee - § to demand receive payments from borrowers or guarantors under credit contracts or consumer leases § to enforce rights in relation to taking possession of property secured by a mortgage, or goods hired under a consumer lease only if – § licensed under State/Territory legislation § only if authorised in writing by a licensee to engage in the activity only until 10 March 2011 Daniels Bengtsson Pty Limited

Exempt ‘repo’ agents the activities are – acting for a licensee who is a – § § credit provider lessor mortgagee person who is the beneficiary of a guarantee § selling, storing or transporting property of a debtor, lessor, mortgagor or guarantor § giving or sending statutory notices or documents to a debtor, lessee, mortgagor or guarantor Daniels Bengtsson Pty Limited

Exempt point of sale credit services the credit provider a linked credit provider is a licensee the consumer enters into the contract wholly or predominantly for the purposes of payment for the goods of services supplied by the supplier does not apply to land Daniels Bengtsson Pty Limited

Exempt activity – making document available § § example – Milo runs a retail business by arrangement with a licence, brochures inviting consumers to apply for a particular credit card are made available to Milo’s customers the licensee has prepared the Milo refers customer’s inquiries to a phone number in the brochure. § § Milo’s conduct is exempt if – consumers are advised of the licensee’s’ licence number a reasonable person would assume that the licensee (eg Amex, Visa, Mastercard) was the lender in respect of the credit card Daniels Bengtsson Pty Limited

Exempt activity – internet referral § § § example – Milo supplies goods through a website which advertises a link to a credit cards provider Milo has specified the form and content of the advertisement includes a statement that inquiries should be addressed to the credit cards provider with contact details § § Milo’s conduct is exempt if – consumers are advised of the licensee’s’ licence number a reasonable person would assume that the licensee (eg Amex, Visa, Mastercard) was the lender in respect of the credit card Daniels Bengtsson Pty Limited

Exempt activity – information provider inquirer wants information about – § § the cost, or an estimate of the likely cost, of a credit contract or a consumer lease terms and conditions of a credit contract or a consumer lease activity exempt if – § provider has information about a number of licensees but gives the inquirer information about only one licensee Daniels Bengtsson Pty Limited

Exempt ‘clerks & cashiers’ � the activity is done in the course of work of a kind ordinarily done by clerks or cashiers Daniels Bengtsson Pty Limited

Exempt referral activity � the persons acts as an intermediary by giving the consumer contact information about a licensee or their representative � the person must disclose if they may receive a payment or potential financial benefit Ø similar to the FSR ‘clerks & cashiers’ exemption Daniels Bengtsson Pty Limited

The Australian Credit Licence � ASIC must grant licence to a Credit Union � licensed credit activities must match as closely as possible what the Credit Union applied for � ASIC will issue Australian credit licence numbers Daniels Bengtsson Pty Limited

Using Australian credit licence number � commences 1 November 2011 � regulations will specify the circumstances when you must cite the Australian credit licence number � will be the same number as a Credit Union’s Australian Financial Services licence number Ø eg Australian Financial Services & Credit Licence No 1234567 Daniels Bengtsson Pty Limited

Credit representative � alternative to licensing � ensure that your business model is appropriate � ensure that you address the risk of cancellation of the arrangement by the authorising licensee Daniels Bengtsson Pty Limited

SAI Global’s Upcoming Risk Programs � Transitioning to the New Risk Management Standard – AS/NZS ISO 31000: 2009 (1 Day) � Introduction to Risk Management – AS/NZS IOS 31000: 2009 (1 Day) � Integrated Risk & Compliance Management (2 Days)

Access SAI Global’s Latest Training Calendar � Interactive Electronic Version – visit www. saiglobal. com/training � Request Hard Copy by emailing us at training. marketing@saiglobal. com Or � Request an in-house quote for training at your premises, by emailing inhouse@saiglobal. com or via the ‘Request a Quote’ link on our website

Further Questions? � For any further questions you may have please email us at training. marketing@saiglobal. com or call us on 1300 727 444.