financial Services

Financial Services Professional Practice, Legislation and Codes of Practice

Learning Guide V3.2 © AAMC Training Group 39

Section 2 Industry guidelines, procedures and

legislation

There are many areas of law that govern the business activities of

financial services providers. Regulations are constantly being updated

and consequently changing. Financial service providers, including

financial institutions and intermediaries are expected to be up to date at

all times. With the advent of internet-based information it is now much

easier to access information which in the past would not have been

readily available. Therefore there is no longer any excuse for anyone to

be unaware of their obligations.

This section deals with the regulatory framework, which affects the

practices of the financial services industry and governs the business

activities of professionals who work within this industry. This framework

has been established by a number of federal and state legislations and

statutes. It also examines the roles and responsibilities of various

statutory and industry bodies which participate in financial services and

their impact on the business activities...

The following table provides some websites for specific legislations and

codes of practice, that you may wish to access.

Regulation, legislation

or code

Source Websites

Anti-discrimination legislation Australian Government www.ag.gov.au

National Consumer Credit Code Australian Securities and Investment Commission

www.asic.gov.au

Privacy Act The Office of the Federal

Privacy Commissioner

www.oaic.gov.au

Competition and Consumer Act 2010

ACCC www.accc.gov.au

Corporations Act Australian Government www.comlaw.gov.au

Financial Services Regulation Australian Securities and Investment Commission

www.asic.gov.au

Taxation Law Australian Taxation Office www.ato.gov.au

Australian Accounting Standards Australian Accounting Standards Board

www.aasb.gov.au

Superannuation Industry (Supervision) (SIS) Act

APRA www.apra.gov.au

Code of Banking Practice 2003 Australian Bankers Association www.bankers.asn.au

MFAA Code of Conduct MFAA www.mfaa.com.au

FBAA Code of Conduct FBAA www.fbaa.com.au

CAFBA Code of Conduct CAFBA www.cafba.com.au

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Key components of the compliance framework

The Australian legal framework impacts on the finance industry at

different levels through Parliament, government offices, the courts,

professional bodies and businesses themselves, and is known as the

'compliance framework'. The compliance framework operates in five tiers:

 Legal

 Regulatory

 Judicial

 Professional

 Business.

The compliance (regulatory) framework

The regulatory framework is the system of legislation, common law and

government oversight for the financial services industry. It comprises

two parts:

 The Respective Federal or State Parliament

 The corresponding regulators.

Regulators at the federal level include the following:

 Australian Securities and Investment Commission (ASIC)

 Australian Prudential Regulatory Authority (APRA)

 Reserve Bank of Australia (RBA)

 Australian Securities Exchange (ASX).

 Australian Transactions and Reports Analysis Centre (AUSTRAC)

 The Privacy Commissioner

 Foreign Investment Review Board (FIRB)

 The Australian Human Rights Commission (AHRC)

 Australian Competition and Consumer Commission (ACCC)

 The Royal Commission into Misconduct in the Banking, Superannuation

and Financial Services Industry

 The Financial Adviser Standards and Ethics Authority Limited (FASEA)

We have already covered these in some detail in the previous section.

Regulatory bodies have a wide range of tasks related to a wide range of

issues. These tasks cover the governance and the implementation of the

requirements of the acts and regulations. Some provide guidelines for

practice. For example, ASIC publishes a large and growing number of

regulatory guides. Many also investigate breaches of the regulations and

unlawful activities, and prosecute offenders accordingly.

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The judicial tier of compliance

The judicial tier of compliance is enforced through the courts at Federal

and State levels. There are also two levels of activity:

 Government regulator prosecutions for breaches of the respective laws

and regulations

 Civil lawsuits in which aggrieved clients seek restitution.

In the case of civil lawsuits court decisions become established as

precedents. Such precedents become standards for practice.

Common law

Common law is often referred to as ‘judge-made law’ or ‘case law’. This

reflects the fact that common law has been established over many years

by the accumulation of judgments made in Australian and other relevant

courts. In making judgments, judges will look to precedents from case

law history.

In Australia, there are two systems of court: State and Federal.

State: While each state has a slightly unique hierarchy most contain

three levels of court. The most junior court is the ‘magistrates’ court’

which deals with less serious cases but is also the court within which a

decision is made as to whether more serious cases should proceed to

more senior courts. The ‘middle tier’ of state courts is known variously

as a ‘county’ or ‘district court’. It deals with more serious cases than the

magistrate’s court. The top level of state courts is the ‘supreme court’.

This court hears serious trials and also hears appeals against decisions

in any of the three levels of court.

Federal: Australia has a system of federal courts. These courts are

usually designed to deal with matters that are not covered by state

courts. In addition, the Australian high court can hear appeals from any

other court (state or federal) in Australia.

Trust law

A trust is a legal entity which exists to allow a separation between the

ownership of an asset and the benefits of the asset. In a trust, the

assets are owned by a trustee, and the benefits flow to beneficiaries.

Trusts are complex legal structures.

Legal advice should always be sought regarding the implementation or

use of a trust.

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The settlor

This is the person(s) who creates the trust. Grantor(s) is a common

synonym.

The appointer

This is the person who can appoint a new trustee or remove an existing

one. This person is usually mentioned in the trust deed.

The protector

A protector may be appointed in an express, inter vivos trust, as a

person who has some control over the trustee- usually including a power

to dismiss the trustee and appoint another.

The trustee

The trustee is the legal owner of the assets of the trust. The trustee also

manages these assets. The trust deed dictates how the assets should be

managed, and how income of the trust should be distributed. There is

often more than one trustee.

The beneficiary

Beneficiaries are persons to whom benefits of the trust are owed. These

benefits can be either income distributions (that is, money generated by

the trust while it retains ownership of its assets) or capital distributions

(that is, money generated by the trust upon the sale of assets). The

trust deed dictates how benefits accrue to beneficiaries.

In managed investing, investors who buy units purchase the right to

become a beneficiary of the trust. They are conventionally referred to as

“unit holders” rather than beneficiaries.

Types of trusts

There are several types of trusts which will be explored in section 2 of

this course. The most common type of trust is a discretionary family

trust. Other types include:

 Unit

 Testamentary

 Hybrid

 Business

 Spendthrift

 Special disability

 Family lineage

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Negligence and duty of care

The law of negligence is of particular importance to all providers of

professional advice.

The law of negligence essentially states that those qualified to offer credit

(finance brokers, lenders) or investment advice (financial planners),

‘Advisers’ have a duty to ensure that any advice or information they

provide, is given with appropriate care. This is known as a ‘duty of care’.

It is highly important that the advice or information given is accurate and

that there are reasonable grounds for providing the advice.

Whether the advice was ‘reasonable’ is assessed from the client’s point

of view. The ‘reasonableness test’ assumes that the adviser has taken

all necessary steps to ascertain a comprehensive understanding of the

client’s situation. Advisers who fail to take sufficient steps in this regard

breach this duty. Breaches may leave advisers liable to be sued.

The duty of care is greatest for someone ‘holding themselves out’ (that is,

advertising or describing themselves) as a professional provider of advice.

Duty of care is owed to anyone who can “reasonably” be regarded as

likely to use the information. In most cases this will be the client, but it

may also be their immediate family or business partners if advice is

being offered regarding a business requirements.

Particular care needs to be taken when placing advice or information

into the public domain (for example, advertising). In this case, a duty of

care could be owed to anyone who can reasonably be foreseen to have

access to the advice or information.

To sue an adviser under the laws of negligence, a client needs to have

suffered some loss as a result of acting on the advice or information

given to them. ASIC may also take disciplinary action.

Contract law

A contract is an agreement between two parties. When two parties make

an agreement, they are obliged to perform all actions under the

agreement. In commercial arrangements, the agreement is usually that

one party will provide a good or service and the other will provide money.

However, money does not need to be involved for a contract to exist.

Contractual obligations must be met. The only way in which the terms of

a contract can be altered is with the agreement of both parties. When

two parties agree to alter a contract, they are in effect establishing a

new contract.

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In order to be considered to be a contract, an agreement must have the

following components:

 An offer – one party must offer to enter into a contract with the other

 An acceptance – the other party must accept the offer

 Legal capacity – both parties must be legally allowed to enter into a

contract (for example, both must be of legal age)

 Lack of ‘vitiating’ circumstances – vitiating circumstances are those

which would mean that one party did not have a real choice of entering

in to the contract (for example, if a person is told they must enter into

a contract, under pain of some penalty, then the contract may be

voided

 Consideration – consideration is the (partial or complete) performance

of an obligation under a contract. Once one party has provided some

consideration (for example, paying a fee in advance), then they are

entitled to enforce their rights under the contract.

Contrary to popular opinion, contracts do not necessarily require that

the parties sign a document. Contracts can be formed in the absence of

a signed document.

Many of the commercial implications of contract law have been

consolidated into the Competition and Consumer Act 2010.

In particular, Section 51 contains certain rules which all commercial

operators in Australia are obliged to follow.

These rules include many of the traditional elements of the common law

of contract. These rules were brought into legislation to allow for a wider

range of penalties to be applied, and to allow governments to become

involved when the act is breached. Typically, only the parties to the

contract can sue for breach of that contract. By legislating, the

government takes on the right to also lay charges in situations where

the law is breached.

Activity 3 – Contracts

What is a contract and what are its components?

Check the model answers section

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The professional tier of compliance

The professional tier of compliance is exercised through the various

professional bodies which have been established within financial services.

Some are industry specific whilst others provide a much broader coverage.

These professional associations include, but are not limited to:

 The Stockbrokers Association of Australia (SAA)

 The Investment and Financial Services Association (IFSA)

 The Australian Financial Markets Association (AFMA)

 The Association of Financial Advisers (AFA)

 The Financial Planning Association of Australia (FPA), the peak

professional bodies for Australia’s financial planners

 The National Insurance Brokers Association (NIBA), which represents

the interests of the insurance broking sector in Australia.

 The Australasian Compliance Institute (ACI)

The professional bodies for the mortgage and finance industries are the

Mortgage Finance Association of Australia (MFAA), the Finance Brokers

Association of Australia (FBAA) and The Commercial and Asset Finance

Association of Australia (CAFBA) peak bodies for Australia’s finance and

mortgage brokers.

Professional associations work in consultation with all the other levels of

compliance to set and defend standards of practice that are based on

the requirements of the law and the regulations. Consequently they can

be very influential in lobbying respective governments and regulators

with regard to the forming of laws, the framing of regulations and the

decisions of the courts.

Professional Associations contribute significantly as Industry Associations

establishing ethical work standards which are exercised through their

respective codes of conduct.

The Corporations Act 2001

The Corporations Act is the principal legislation regulating companies in

Australia. It regulates matters such as the formation and operation of

companies, duties of officers, takeovers and fundraising. It also makes

provision in relation to financial products and services.

Misconduct in the Banking, Superannuation and Financial

Services Industry

A Royal Commission was established on 14 December 2017 to consider

the conduct of banks, insurers, financial services providers and

superannuation funds (not including self-managed superannuation

funds). All Australians have the right to be treated honestly and fairly in

their dealings with the financial services industry).

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The Financial Services Reform Act 2001

The Financial Services Reform Act 2001 (FSRA) was created to improve the

regulation of the financial services industry. The Act made extensive

changes to the existing Corporations Act 2001 and profoundly affects the

activities of all financial advisers/planners in the provision of advice and

anyone who is involved with what in the act defines as “financial products”.

Key sections relating to the definitions of financial products, financial

investments, financial risk, financial service and financial product advice

are found in Chapter 7 of the Act. The main object of this chapter is to

promote:

 Confident and informed decision making by consumers of financial

products and services while facilitating efficiency, flexibility and

innovation in the provision of those products and services

 Fairness, honesty and professionalism by those who provide financial

services; Fair, orderly and transparent markets for financial products

 The reduction of systemic risk and the provision of fair and effective

services by clearing and settlement facilities.

This is referred to as Financial Services Regulation (FSR).

FSR is important for finance brokers to understand due to the comparative

role of a financial planner (adviser) and relative regulation framework.

Licensing

In Australia, financial investment and insurance advice can only be

provided by the holder of an Australian Financial Services Licence

(AFSL). This requirement is detailed in Section.911A (1) of the

Corporations Act 2001, which states:

“… (a) person who carries on a financial services business in this

jurisdiction must hold an Australian financial services licence covering

the provision of the financial services.”

There are some exceptions to this requirement, most of which are very

limited and specific. The main exception is where the individual is

engaged as the representative of a licence holder.

Who needs to be licensed?

It is illegal to provide financial services to retail clients in Australia

without an Australian Financial Services Licence. Section766A of the

Corporations Act 2001 defines a financial service as follows:

 Providing financial product advice (see section 766B); or

 Dealing in a financial product (see section 766C); or

 Making a market for a financial product (see section 766D); or

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 Operating a registered scheme; or

 Providing a custodial or depository service (see section 766E); or

 Engage in conduct of a kind prescribed by regulations made for the

purposes of this paragraph.

A person doing one or more of these things is providing a financial

service, and must be licensed. Note that the definition includes the

provision of financial product advice.

Section 763A of the Corporations Act 2001 defines a financial product as

a facility through which, or through the acquisition of which, a person

does one or more of the following:

 Makes a financial investment (see section 763B);

 Manages financial risk (see section 763C);

 Makes non-cash payments (see section 763D).

Note that this definition involves facilities through which a person makes

a financial investment (for example, the purchase of units in a managed

fund, or the purchase of a share) or through which a person manages

risk (for example, the purchase of an insurance product or the purchase

of certain types of derivatives).

You may be surprised to learn that certain facilities are not classified as

financial products, at least for the purposes of the Corporations Act.

Within finance and investment, property is perhaps the main class of

product which is not defined as a financial product. Similarly, credit

facilities such as mortgages are not classed as financial products for the

purposes of the provision of financial services by licensed (AFSL)

advisers. Credit facilities are covered under the NCCP Legislation and

Australian Credit Licensing (ACL).

What is financial advice?

Financial product advice as a recommendation or a statement of opinion,

or a report of either of those things, that:

 Is intended to influence a person or persons in making a decision in

relation to a particular financial product or class of financial products, or

 An interest in a particular financial product or class of financial

products; or

 Could reasonably be regarded as being intended to have such an

influence.

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ASIC RG 175 describes two broad types of financial advice:

 Personal advice is any advice that takes into account the recipient’s

personal circumstances. This does not mean all of a client’s

circumstances – if just one aspect is considered, then the advice may

well be classed as personal.

 General advice is advice that is not personal. That is, it is still

intended (or could reasonably be regarded as being intended) to

influence decision making, but it has not taken into account the

recipient’s personal circumstances. General advice should always be

issued with a warning.

Depending what type of advice is being given, the licensee or their

representative must meet certain conditions. The following table shows

the conditions which must be met for each type of advice. The table has

been adapted from RG175.

Obligation Personal

Advice

General

Advice

Provision of Financial Services Guide Yes Yes

Provide General Advice Warning No Yes

Prepare and provide suitable personal advice Yes No

If applicable, warn client that personal advice is based on incomplete personal information

Yes N/A

Provide a Statement of Advice Yes No

As outlined in the table, advisers must meet different conditions

depending on whether their advice is personal or general. Specifically, if

advice is personal, then it must be provided within a formal statement of

advice, and must be based on at least some specific research.

In addition to the above descriptions, RG 175 suggests that advisers use

the following series of questions to decide whether advice is personal or

general:

 Was an offer to provide personal advice made (such as, through a

Financial Services Guide)?

 Is there an existing client-adviser relationship in which personal advice

is given?

 Did the client request personal advice?

 Did the adviser request personal information from the client?

 Was the advice directed towards an identifiable or named client?

 Did the advice contain a General Advice Warning?

 Does the advice appear to be personal in nature?

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Where an adviser is providing personal advice, it is imperative that they

collect sufficient information from their clients to support this advice.

Who provides the advice?

A financial adviser may be the licensee of and AFSL or an authorised

representative of a licensee.

When an individual or company acts as an authorised representative of

an AFSL holder, in the strict legal sense it is actually the AFSL holder

who provides the advice. This means that the AFSL holder is responsible

for this advice. This is the case even when the representative is acting

outside of the confines of its authority.

Disclosure required by an AFSL holder

The provision of information to clients is collectively referred to as

‘disclosure.’ The disclosure requirements for financial advisers are

detailed in ASIC RG 168. RG 168 nominates three specific documents

that must be provided to clients. These are:

 A Financial Services Guide which provides a comprehensive description

of services offered by an adviser.

 A Statement of Advice – details the personal advice given in a written

contract

 A Product Disclosure Statement – details information regarding the

specific products being offered to the client

Future of Financial Advice

The FOFA legislation commenced on 1 July 2012. The legislation

amended the Corporations Act and introduced:

 A prospective ban on conflicted remuneration structures including

commissions and volume based payments, in relation to the distribution

of and advice about a range of retail investment products.

 A duty for financial advisers to act in the best interests of their clients,

subject to a 'reasonable steps' qualification, and place the best interests

of their clients ahead of their own when providing personal advice to

retail clients. There is a safe harbour which advice providers can rely on

to show they have met the best interest’s duty.

 An opt-in obligation that requires advice providers to renew their

clients' agreement to ongoing fees every two years.

 An annual fee disclosure statement requirement.

 Enhanced powers for ASIC.

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On 19 March 2014 the Australian Government introduced the

Corporations Amendment (Streamlining of Future Financial Advice) Bill

2014 (the Bill) into Parliament that outlined the following changes to the

FOFA reforms:

 removal of the 'catch-all' element of the 'safe harbour' for the best

interests duty and further amendments to the best interests duty to

facilitate scaled advice

 removal of the requirement for fee disclosure statements to be sent to

pre-1st July 2013 clients

 removal of the opt-in obligation for ongoing fee arrangements entered

into after the commencement of the Amendment Regulations, and

 exempting general advice from conflicted remuneration in some

circumstances.

Professional standards for financial advisers –

reforms

The Corporations Amendment (Professional Standards of Financial

Advisers) Act 2017 commenced on 15 March 2017. It introduced several

measures in the Corporations Act 2001 (Corporations Act) to raise the

education, training and ethical standards of financial advisers providing

personal advice to retail clients on more complex financial products.

Under the new requirements, all relevant providers must:

 have a relevant bachelor or higher degree, or equivalent qualification

 pass an exam

 meet continuing professional development (CPD) requirements each

year

 complete a year of supervised work and training (professional year) –

although this will not apply for individuals who are already relevant

providers before 1 January 2019

 comply with a code of ethics and be covered by a compliance scheme

that monitors and enforces compliance with the code of ethics.

The Financial Adviser Standards and Ethics Authority Limited

(FASEA) was established on 11 April 2017 to set the education, training

and ethical standards of financial advisers, licensed under Australian

law. From 1 January 2019, only relevant providers who meet these

standards can call themselves a 'financial adviser' or 'financial planner'

or similar terms Transitional arrangements apply to 'existing providers'.

Refer to www.fasea.gov.au, for further information.

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National Consumer Credit Protection Act 2009

(NCCPA)

Recent reforms to consumer credit law have resulted in a single national

consumer credit regime governed by National Consumer Credit

Protection Act 2009 (Cth) (NCCP) which includes the National Credit

Code (NCC) as Schedule 1 to the Act. The NCC replaces previous state-

based consumer credit codes and the Uniform Consumer Credit Code

(UCCC) and it continues to apply to the conduct of Australian credit

licence holders. ASIC is responsible for administering the NCCP.

The NCC applies to credit contracts entered into on or after 1 July 2010

where:

 the lender is in the business of providing credit

 a charge is made for providing the credit

 the debtor is a natural person or strata corporation

 the credit is provided:

 for personal, domestic or household purposes, or

 to purchase, renovate or improve residential property for

investment purposes, or to refinance credit previously provided

for this purpose.

The NCC does not apply to certain loans, including: low cost short term

credit (less than 62 days), insurance premiums paid by instalments, bill

facilities and staff loans.

The Act includes:

 a comprehensive national licensing regime, which imposes entry

standards for registration and licensing for persons involved in credit

activities and gives ASIC the power to refuse applications, or suspend,

cancel or ban entities who fail to meet legislated standards;

 responsible conduct obligations, which establishes standards of

professional conduct for lenders, particularly the key obligation to

ensure that consumers are not provided with “unsuitable” credit

contracts or leases;

 a civil penalty and consumer remedy framework that aims to

improve consumer protection by setting out sanctions and remedies,

including civil and monetary penalties;

 a three-tiered dispute resolution process for credit issues that

allows a consumer access to (1) the credit service provider’s internal

dispute resolution process, (2) the ASIC-approved External Dispute

Resolution Scheme, and (3) all relevant Commonwealth, State and

Territory courts; and

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 The National Credit Code (in Schedule 1 of the National Consumer

Credit Protection Act 2009) which contains requirements in relation to

the entry into, terms and enforcement of credit contracts and consumer

leases.

The Act also gave the Australian Securities and Investments Commission

(ASIC) the responsibility to oversee the regulation of consumer credit

and finance broking.

The NCCP licensing regime

Licensing under the NCCP is modelled on FSR, which has licensees

(Australian Financial Services License or AFSL) and authorised

representatives. The credit licensing regime also has licences (Australian

Credit Licence or ACL) and authorised credit representatives (ACR or CR).

The NCCP requires people to be licensed who engage in the following credit

activities:

 provide credit under a consumer credit contract or consumer lease;

 benefit from mortgages or guarantees relating to a credit contract;

 exercising the rights or performing the obligations of a credit provider,

lessor, mortgagee or beneficiary of a guarantee;

 assisting or suggesting a consumer apply for a credit contract or

consumer lease or an increase to a credit limit;

 acting as an intermediary to secure provision of a credit contract or

consumer lease for a consumer; and

 providing other prescribed credit activities.

There are two broad categories of people engaged in credit activities who

need to be licensed;

 Credit providers (lenders and lessors);

 Providers of credit assistance, including intermediaries (such as; finance

brokers, aggregator, mortgage managers)

Provision of credit assistance

You are providing credit assistance to a consumer if, by dealing directly

with a consumer or consumer’s agent in the course of, or as part of, or

incidentally to a business carried on in Australia, you suggest that a

consumer or assist the consumer to:

 apply for a particular credit contract or consumer lease with a particular

credit provider or lessor;

 apply for an increase to their credit limit on a particular contract;

 or you make a suggestion to a consumer that they consider borrowing

in order to finance a residential investment property, but not referring

to a particular credit provider or product would not be “credit

assistance”.

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However, if you suggested that the client approach a particular credit

provider about a specific product, this would be offering credit

assistance even if you are not arranging or helping with the credit

application.

What credit contract and consumer leases are covered by

the National Credit Code?

In order to for an individual to determine if they need to be licensed they

first need to determine if the credit activities they are engaging in are

covered by the code.

The National Credit Code applies only to credit that is:

 provided to a natural person or strata corporation (i.e.; consumer)

 provided wholly or predominantly for:

 personal, household or domestic purposes; or

 residential property investment

 charged for or may be charged for, by the credit provider; and

 provided in the course of carrying on a business of providing

credit in Australia or as part of, or incidental to, any other

business of the credit provider carried on in this jurisdiction.

What is a credit contract?

The contract under which credit is /or may be provided and is covered by

the National Credit Code. Common types of credit include; personal loans,

credit cards, small-amount loans, housing loans (including residential

investments properties), and contracts for the sale of goods or land by

instalments.

What is a consumer lease?

A consumer lease is a contract for the hire of goods that is entered into

by a natural person or strata corporation (i.e.; a consumer). For a

consumer lease to be regulated under the code:

 the goods must be wholly or predominantly used for personal, domestic

or household purposes;

 the fees and charges payable under the consumer lease must exceed

the cash price for the goods

 the lessor must hire out the goods in the course of carrying on hiring

business in Australia, or as part of, or incidentally to, any other

business of the credit provider or lessor carried on in Australia; and

 the borrower must not have the right or obligation to purchase the

goods.

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There are a list of credit and consumer leases and providers of client

advice that are excluded from regulation. This information may be found

by accessing - RG203 Do I need a credit licence.

Applying for and varying an Australian credit licence (ACL)

RG204 explains how to make an application for a credit licence using the

online application and the information required to do so. The person

applying for the licence must be a ‘fit and proper’ person, which means

that they should possess the knowledge skills and experience, are of

good character and have no other conflicts of interest, such as poor

credit or a criminal history.

Licence applicants must be able to demonstrate in their application, that

they can comply with these general conduct obligations. These

obligations cover:

 broad compliance obligations – engaging in credit activities, efficiently,

honestly and fairly and complying with conditions of the licence and

relevant laws

 internal systems – ensuring adequate risk management, conflicts of

interest processes and effective disputes resolutions processes

 people involved in the business – must comply with credit legislation,

are competent to engage in credit activities and are adequately trained

There are a number of questions that will be asked in relation to the

above points as part of the application process along with supporting

evidence and documentation including;

 a written plan (business plan) that documents arrangements and

systems;

 the arrangements, or proposed arrangements that specify how often

compliance with procedures are monitored and reported on; and

 people internal to the business who will be responsible for ongoing

monitoring and reporting.

Financial requirements are also part of initial compliance requirements

of the licensee. Financial resource requirements will vary according to

the nature, scale and complexity of the credit activities the individual

and/or business engage in. ASIC require a licensee to:

(a) ensure access to sufficient financial resources to meet debts when

they become due and payable;

(b) have systems to plan and monitor cash flows in order to ensure

sufficient funds to adequately meet licence obligations; and

(c) have a system to demonstrate financial resources are being

monitored on a regular basis.

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Compensation and insurance arrangements for credit

licensees

The primary way to comply with having adequate arrangements in place

for compensating consumers is to have professional indemnity insurance

(PI insurance).

ASIC administer compensation requirements with the objective of

reducing the risk that credit licensees cannot meet claims for

compensation, due to insufficient financial resources.

Whether a PI insurance policy for credit licensees is adequate depends

on the amount and scope of cover and the relevant terms and conditions

of that policy

Who does not need to be licensed?

Representative of a licensed principal do not need to hold a licence to

engage in credit activities on their behalf. The main categories are:

 employees and directors of the licensee or of a related body corporate

of the licensee; and

 credit representatives authorised by the licensee

Responsible Managers

Responsible Managers must be nominated under the ACL. This can be

more than one person. This person is responsible for ensuring the

obligations under the licence are met and maintained. However,

ultimately the licensee is responsible for their own licence. The

Responsible Manager may be the licensee.

ASIC expect responsible managers to be directors with a governance

rather than management role (e.g. non- executive directors) or

company secretaries. Responsible Managers are required to meet the

competency standards to comply with licence requirements as detailed

in RG206.

Fit and proper person test

For each person identified as a responsible manager, additional

information is required to demonstrate that they have adequate

knowledge, qualification and experience to be competent to engage in

credit activities and be authorised.

ASIC also expect measures for monitoring and supervision will include

carrying out appropriate background checks before appointing new

responsible managers. These checks include referee reports, searches of

ASIC’s register of banned and disqualified persons bankruptcy and criminal

history checks.

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Credit Representatives

Credit representatives (CR or ACR) must be authorised in writing by the

licensee. The authorisation can cover some or all of the credit activities that

are covered by the licensee’s credit licence. Credit representatives may be

authorised by more than one licensee, if all licensee’s consent.

The relationship between licensees and credit representatives is depicted

in the following diagram.

If a licensee is intending to authorise a credit representative they

should:

 Undertake background checks on that representative.

 Ensure that they are adequately trained to engage in credit activities.

 Ensure that they have current external dispute resolution (EDR)

scheme membership before the authorisation is given.

 Provide written consent to the appointment

 Ensure they have adequate systems and procedures in place to monitor

and supervise their representatives.

Licensee

Credit Representative (corporation)

Other representative (employee or director)

Credit Representative (natural person)

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1. PROCESS IMPLICATION

Background

checks

These checks could include referee reports, searches of our register of banned and

disqualified persons, and police checks

Training requirements

Credit licensees must determine the appropriate training for their credit representatives on appointment and while they continue to act as representatives, to comply with their obligation to ensure that their representatives are adequately trained and competent to engage in the credit activities. If industry standards exist for sectors of the credit

industry or for specific products, we expect that licensees will ensure their representatives are trained at least to the level of the industry standard. Credit representatives who provide mortgage broking services must:  have at least a Certificate IV in Financial Services (Finance/Mortgage Broking) by 30

June 2014, and  undertake 20 hours of continuing professional development each year

Membership to an EDR scheme

If the credit representative does not have EDR scheme membership at the time of authorisation the authorisation has no effect. The same would apply where they cease EDR membership.

Written consent A licensee must give written notice to any person they authorise as a credit representative. A licensee must also give its written consent to enable a body corporate credit representative to sub-authorise a natural person to engage in credit activities on

behalf of the licensee. Both the credit representative and the licensee should retain a copy of the consent for their records.

Monitoring and supervising

Licensees have a continuous obligation to monitor and supervise their representatives to ensure that they are adequately trained and competent to act as their credit representative and are complying with the credit legislation. This can be done by keeping track of your representatives –who they are, their roles, if they are acting

within the scope of what they have been authorised to do, and if they understand their compliance arrangements. In turn, as the credit licensee, you should monitor your representatives’ compliance and respond if they have compliance failures.

When authorising a credit representative the following needs to be

undertaken:

 A notice of authorisation to the representative, in writing, from licensee

– (there is no prescribed form)

 The credit activities to be undertaken must be specified in the written

authorisation (could be all, or only some, of the activities the licensee is

authorised to do), and

 ASIC must be notified of the authorisation.

When notifying ASIC the following must be undertaken:

 Credit Representative appointments must be notified to ASIC within 15

business days

 Notice will need to be in the approved form (Form CL30)

 Notice will need to specify:

 Name and business address of Credit Representative

 Date of appointment

 Activities authorised

 EDR Scheme

 Details of any other licensee the Credit Representative represents.

ASIC will then allocate a unique Credit Representative number and

notify this to the Credit Representative and the appointer.

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Credit licensees have an obligation to take reasonable steps to ensure

their representatives comply with the credit legislation and are liable for

the conduct of their representatives.

General conduct obligations

A licensee or authorised representative will need to ensure they are

adhering to general conduct obligations imposed by the requirements of

their ACL as follows:

 Compliance with the credit legislation and the conditions of their licence

 That licensees have arrangements for compensating persons for loss or

damage suffered because of breaches of the relevant obligations under

the code by the licensee or its representatives

 That clients are not disadvantaged by any conflicts of interest that arise

wholly or partly in relation to credit activities engaged in by the

registrant or their representatives

 That internal systems and resources are adequate, and they are

documented, to properly operate as a credit business, and

 That credit activities are engaged in efficiently, honestly and fairly.

This licensing requirement also applies to conduct engaged in before

entering into a contract with a consumer.

ASIC policy on the general conduct obligations of credit licensees and

their representatives is set out in Regulatory Guide 205 Credit licensing:

General conduct obligations.

A licensee may need to give information to ASIC at certain times, for

example:

 If there are changes to any of the details set out in the Australian Credit

Register

 If the Credit Licensee authorises a credit representative to engage in

credit activities on their behalf, and

 If directed to give ASIC a written statement or obtain an audit report

about credit activities.

A licensee must also maintain financial records that correctly record and

explain the transactions and financial position of their business of

engaging in credit activities, and comply with requirements in relation to

the keeping and location of those records.

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Where ASIC asks for an audit report about credit activities, the auditor

must be provided with:

 Access to financial records and other credit books, and

 Any assistance and explanations in relation to the report.

The NCCP also requires credit licensees to have a written plan detailing

the arrangements and systems that are in place to ensure compliance

with their obligations. The plan should include details of who is

responsible for compliance, the time frames involved and associated

record-keeping and reporting. Important compliance measures which

should also be included are:

 Compliance risks and their treatment, and

 Identification and treatment of compliance breaches.

Having adequate technological and human resources is crucial to a

licensee’s ability to demonstrate they have the capacity to carry on a credit

business in full compliance with the law and to supervise representatives.

Failure to have enough resources may create an unacceptable risk that

may not comply with all of the obligations as a credit licensee.

Compliance

Compliance can be promoted by:

 Practical checklists for the major day-to-day tasks that set out steps

that must be taken and timeframes for taking those steps

 Ensuring that staff read the written plans of compliance arrangements

before they start to engage in credit activities

 Running an induction program for all new staff, which includes training

on what your obligations are and your arrangements for complying with

them

 Running internal training sessions on an ongoing basis to ensure staff

are kept up-to-date with obligations and compliance arrangements,

particularly when changes have been made, and

 Testing whether employees understand your obligations and

compliance arrangements, and ask them whether they think the

arrangements are appropriate or could be improved.

The compliance plan can be used to complete a compliance certificate

which must be lodged with ASIC annually.

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Conflicts of interest

All credit licensees have a general conduct obligation to have adequate

arrangements in place to ensure that clients are not disadvantaged by

any conflict of interest.

Whether arrangements are ‘adequate’ will depend on the particular

circumstances in each case. For example, if a lender pays a higher rate

of commission for achieving certain volumes of sales, the licensee would

need to adopt adequate arrangements to ensure that borrowers are not

disadvantaged by the possible conflict of interest that arises.

These arrangements would need to ensure that staff or representatives

of the licensee are not favouring the achievement of volume targets

over the interests of the client. Such arrangements could include

compliance procedures designed to ensure that the representative does

not suggest a loan that is unsuitable for the borrower just because of

the incentive offered.

It is generally expected that when providing credit assistance in relation to

third party loans, representatives will have a suitably comprehensive

product list. ASIC also expects that this list will be thoroughly researched

and reasonably representative of the products available in the market.

For example, a mortgage broker has reviewed the home loan market and

has a comprehensive list of the products on which he/she can advise and

arrange which is well researched so that it is representative of the credit

market available to its clients. The broker can offer borrowers access to

products that will be competitive in price, although not necessarily the

cheapest available. The list needs to be sufficiently comprehensive to

ensure that the broker has made adequate arrangements.

Competence and training

Credit licensees have an obligation to ensure organisational competence to

engage in credit activities. ASIC assesses compliance with this obligation by

looking at the qualifications and experience of the people who manage a

credit business, and the people working within the business providing

support to compliance and/or third party services to clients. Setting

minimum qualifications and experience requirements for all key people

in the credit industry ensures that all providers of credit and credit

assistance activities have a minimum level of knowledge. Knowledge

should cover learning to ensure individuals can adequately perform their

role, act with duty of care, maintain currency of required regulations,

and ensure appropriate practice standards and understanding of

products and services.

ASIC RG206 outlines the minimum standards for credit providers and

credit assistance providers.

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Responsible Managers must have at least two years relevant

problem-free experience and either:

 A credit industry qualification to at least the Certificate IV level; or

 Another general relevant higher level qualification e.g. a Diploma of

Finance/Mortgage Broking Management or a university degree in a

financial discipline e.g. economics, commerce, business, accounting or

equivalent.

Representative Training

It is expected that the licensee ensure representatives are adequately

trained and competent to engage in the credit activities authorised by

the credit licence. Where industry training standards exist for particular

sectors of the credit industry or specific products, ASIC expect the

licensee will ensure that representatives are trained at least to the level

of the industry standard. In the case of third-party home loan credit

assistance providers, this is at least a Certificate IV in Finance and

Mortgage Broking.

Continued Professional Development

Responsible managers and credit representatives also need to undertake

a minimum of 20 hours of continuing professional development (CPD)

per year in relevant credit-related educational activities. However, the

related associations and or licensees (aggregators) may demand more

hours to be completed, as part of their own standards.

The CPD should include both product and industry developments related

to credit, and also compliance training in relation to new regulatory

requirements of the credit regime.

The following activities may be counted towards CPD:

 Attendance at relevant professional seminars or conferences

 Preparation time for presenting at relevant professional seminars or

conferences

 Publication of journal articles relevant to the credit industry

 Viewing DVDs of recent (within the last year) professional seminars or

conferences (up to a maximum of 10 hours per year), and

 Completion of online courses, tutorials and/or quizzes on recent (within

the last year) regulatory, technical or professional developments in the

industry.

Where industry training standards exist for particular sectors of the credit

industry or specific products, representatives must be trained at least to

the level of the industry standard. For example, there are specific industry

accreditations for specialist products such as; equity release products.

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Financial obligations

The senior person designated to be responsible for financial obligations

is known as the ‘financial manager’.

The minimum financial resource requirements include:

 Access to sufficient financial resources to be able to meet all debts as,

and when, they become due and payable

 Management of cash flows to ensure they are sufficient

 Adequate financial resources to provide the credit services covered by

the licence and to carry out supervisory arrangements, and

 Keep written records that demonstrate that financial resources are

being monitored on a regular basis

Responsible lending conduct obligations

What are the responsible lending conduct obligations?

Regulatory guide 209 (RG209), contains ASIC guidelines covering

responsible lending obligations for credit licensees. These conduct

obligations apply to credit providers (i.e. lenders, such as banks, credit

unions, small amount lenders and finance companies), lessors under

consumer leases and credit assistance providers (e.g. mortgage and

finance brokers). The primary obligation is to conduct an assessment

that the credit contract or consumer lease is ‘not unsuitable’ for the

consumer. For more information the ASIC website is a useful source of

information at https://asic.gov.au

Who do the responsible lending conduct obligations

apply to?

These obligations apply to most holders of Australian credit licences

(credit licensees) and credit representatives. This includes:

 credit providers and lessors, including assignees

 credit assistance providers, like mortgage and finance brokers, but also

including:

 product designers

 mortgage managers, and

 franchisees

 credit representatives, including some franchisees, and

 debt collectors.

A product designer is a credit licensee who is not the credit provider or

lessor but, under a written agreement with the credit provider or lessor,

largely controls the terms on which the credit contract or lease is

designed and altered.

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A mortgage manager is a credit licensee who manages credit

contracts or leases on behalf of a credit provider or lessor (or their

agent) under the mortgage manager’s brand.

A franchisee can engage in credit activities either as a credit

representative of its franchisor or under its own licence.

A credit assistance provider may also be involved in meeting the

disclosure obligations as the agent of another person (e.g. a credit

representative may provide a quote on behalf of a credit licensee).

If "credit assistance" is provided, the responsible lending obligation must

be complied with even if the consumer does not enter into the credit

contract or consumer lease. This will also require records being retained

and documented even if the "credit assistance" is not related to assisting

a consumer to apply for credit.

Example

You are approached by a consumer who is making enquiries regarding a

debt consolidation loan and some additional borrowings for a holiday.

After you conduct a review, you realise that the consumer could possibly

be placed under ‘substantial hardship’ to meet their commitments, so

you decline the application.

You called the consumer and discussed with them that you are unable to

assist at this time and recommend that it is best in the current

circumstances to remain in their existing contract, pay down their debts

a little more and you will review matters again in six months. At the

point you offer a "suggestion" in fact advice to the consumer you are

now offering "credit assistance" and as such this conversation will need

to be documented and retained for compliance and audit purposes.

What factors constitute a person entering into a credit

activity?

Here is a typical list of what constitutes a person engaging in a credit

activity:

 Entering into a Credit Contract;

 Entering into a Consumer Lease;

 Providing Credit Service - you will provide a credit service if you either

provide credit assistance to a consumer or you act as an intermediary

(see Section 7 of the National Credit Act for further guidance);

 Entering into a Mortgage; or

 Agreeing to Guarantee a mortgage, credit contract or consumer lease.

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Compliance to responsible lending conduct obligations

ASIC expects credit licensees to establish their own compliance

processes depending on the businesses model, product type and credit

activities that the licensee undertakes or offers.

Remember, that without appropriate processes in place, it will be very

difficult for a licensee to prove that he is complying with his responsible

lending obligations (see Regulatory Guide RG209.38 - 209.45 for further

guidance).

The following image visualises the different steps that a regulated entity

must take to ensure compliance under the responsible lending conduct

obligations.

Making reasonable enquiries

The main objectives of the responsible lending conduct obligations are to

ensure that a licensee or credit representative does not suggest, assist

with or provide an “unsuitable” credit contract or consumer lease to a

consumer. Knowing a consumer’s current needs and payment capacity

can help a credit provider, licensee or credit representative determine

the suitability of the proposed contract (refer to Regulatory Guide-RG

209.12 for further detail).

The regulation states that before providing a service or assisting a

consumer, credit assistance providers, credit providers and lessors need to:

1. Make “reasonable enquiries” about the consumer’s requirements,

needs, and intended purposes in relation to the proposed credit

contract or consumer lease;

2. Make “reasonable enquiries” about the consumer’s current financial

status, specifically his capacity to meet future payment obligations

without significant difficulty

3. Take “reasonable steps” to verify the information obtained during the

first two steps.

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Having consumers fill out a standard Fact Find Questionnaire assists to:

 Determine the consumer's needs;

 Determine the consumer's priorities;

 Determine the consumer's requirements; and

 Verify the consumer's repayment capacity, as well as their income,

expenses and financial situation.

The obligation to make reasonable enquiries is scalable, which means

that the type and scope of information required from a consumer will

depend on the particular business model and type of services provided.

Simply put, credit licensees, credit representatives and providers will

need to decide what type of questions need to be asked and the extent

of required verification, in order to meet their responsible lending

conduct obligations.

How to apply scalability in conducting enquiries?

Factors are relevant to scalability include, but are not limited to:

 the potential impact of a credit contract on the consumer– if the

consumer is more likely to face serious hardship in case of an

unsuitable credit contract, more in-depth enquiries are likely necessary,

e.g. even small loans can cause serious financial difficulties for low-

income consumers

 the scope and complexity of the credit contract – if the credit

contract has complicated terms, more in-depth enquiries are likely

needed;

 the consumer’s capacity to understand the credit contract – if

the consumer appears to have difficulties understanding the credit

contract (the consumer does not speak English or has difficulty

articulating), seems confused or conflicted about their objectives, or if

there is an obvious mismatch between the consumer’s objectives and

the proposed credit contract, more extensive enquiries about the

consumer’s requirements and objectives should be conducted;

 on the other hand, if the consumer is an existing customer of a

credit provider and already has information on file, less extensive

enquiries and verification may be necessary.

Examples of reasonable enquiries

Reasonable enquiries about the consumer’s requirements and objectives

could include, but are not limited to:

 the purpose,

 timeframe, and

 credit amount

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If the credit contract is required to purchase a specific item, the

enquiries can also include an examination regarding the term of the loan

corresponding to the useful lifespan of the asset, the nature of the credit

requested, and the consumer’s declared objectives.

On the other hand, examples of reasonable enquiries about the

consumer’s financial situation could include, but are not limited to:

 the current amount and source of the consumer’s income,

 the consumer’s fixed and variable expenses,

 the consumer’s age, number of dependants, nature and value of assets

and liabilities,

 credit history and any reasonably foreseeable changes in the

consumer’s financial circumstances.

Reasonable steps to verify information or the consumer’s financial

situation could include for example, obtaining credit reports, bank

account statements showing income deposits, payslips, employment

letters, pay summaries, tax assessment notices, recent income tax

returns and business activity statements.

Again, remember that the extent and process of verification can vary

from one case to another and will ultimately depend on the specific

circumstances of each client.

Verifying consumer information

Similar to acquiring financial information from the customer, verifying

the said information is typically a scalable activity. What amounts to

reasonable verification, will depend on the information and resources

available as well as the facts and circumstances of each case.

After making enquiries and gathering information from the consumer,

credit providers, licensees and credit representatives need to test the

reliability and validity of the information provided. Some methods to

verify consumer information include:

 Double-checking relevant documents such as credit reports, payslips,

bank statements, or tax returns

 With the consumer’s permission, enquiring and cross-checking

information with the consumer’s employer and/or accountant

 Further enquiries depending on the circumstances of the case

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Factors to consider in verifying information

There are several factors credit providers, licensee and credit

representatives should consider when verifying information supplied by

the consumer:

 Simple verification of financial status/income details may be easily

accessible using certain documents (e.g. amount of deposited salary,

schedule of regular payments, etc.). However, ASIC warns not to rely

solely on this information, as this may be insufficient in providing a

clear, comprehensive picture of the consumer’s financial situation.

 Implementation of processes to ensure the reliability of information

collected from third parties. Again, this information should not be solely

relied upon.

 Benchmarks or automated systems to check the reliability of

information. Again, take note that these tools and benchmarks cannot

substitute the lender’s obligation to make reasonable enquiries.

Moreover, all automated systems and benchmarking tools should be

checked and updated regularly to ensure accuracy and relevance (see

RG 209.105 for more details).

Example of some required supporting documents, document type and

verification to be completed.

Document Type Information that should be verified

Drivers licence Identification Name, address, date of birth, photo match

Payslip Income Annual salary, frequency, employer details, overtime

Bank statement

Savings/ contribution

Name, address, consistency of deposits/salaries

Producing preliminary or final assessments

The primary responsibility of credit providers, licensees and credit

assistance providers is to conduct an assessment examining whether or

not the proposed contract is “unsuitable” and likely to cause significant

financial difficulty for the borrower.

Remember that credit licensees need to make enquiries and verifications

before starting the assessment process.

 If you are a credit assistance provider, you need to make a preliminary

assessment proving that a proposed credit contract or consumer lease

is not unsuitable within 90 days before providing any sort of credit

assistance to a consumer.

 On the other hand, if you are a credit provider or a lessor, you need to

make a “final assessment” proving that a credit contract or consumer

lease is ‘not unsuitable’ for the consumer before entering into a credit

contract or consumer lease, increasing the credit limit on a credit

contract, or making an unconditional representation about the

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consumer’s eligibility. Credit providers need to make the final

assessment within 90 days before the contract is entered. If the credit

is intended for buying property with a secured mortgage, final

assessments need to be provided within 120 days before the start of

the credit contract.

The key concept is that credit licensees must not enter into a credit

contract or consumer lease with a consumer, suggest a credit contract

or assist a consumer in applying for credit if the credit contract or

consumer lease is unsuitable for the consumer.

What types of information are included in preliminary and final

assessments?

 Requirements and objectives;

 Product description and recommendation as well as the basis on which

the recommendation was made;

 Funding position and disclosure of remuneration;

 Credit contract or consumer lease agreement features and benefits;

 Product comparisons; and

 The borrowing capacity summary.

Which credit contracts or consumer leases are considered

“unsuitable”?

While ASIC did not set a specific definition of what “unsuitable” credit

contracts or consumer leases mean, it is generally understood to refer to

wrong or bad contracts that will cause substantial difficulties for the

consumer.

A loan contract/lease is considered unsuitable, if at the time the

assessment is made, it is likely that:

 The consumer will either be unable to pay for financial obligations under

the contract, or will only be able to do so with serious difficulty; or

 The proposed contract or lease does not meet the consumer’s

objectives or requirements.

Both the NCCP and RG 209 do not have a clear-cut definition of what

“substantial hardship” means. However, RG 209 lists several factors to

consider when determining the possibility of substantial hardship

resulting from an unsuitable credit contract.

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These factors include, but are not limited to:

 The amount of surplus cash left to the consumer after deducting regular

living expenses, plus the additional repayments required by the

proposed credit contract

 The consumer’s source of income

 The reliability and consistency of a consumer’s income

 A consumer’s existing debts and other obligations

 The likelihood of a consumer selling major assets (car, house, etc.) in

order to repay loans

The NCCP also specifies two circumstances where it is assumed that a

credit contract will indeed cause significant hardship, unless further

enquiries prove otherwise:

 If the consumer needs to sell his primary place of residence in order to

pay the loan (see NCCPA sections 118(3), 123(3), 124(3), 131(3),

133(3), 142(3), 146(3), 147(3), 154(3) and 156(3) for more details);

or

 If the contract is a small amount credit contract and

 The consumer already borrowed and defaulted payments for

another small-amount credit contract

 The consumer has already availed of two or more small amount

credit contracts at least 90 days before the assessment of the

new proposed contract

It is also possible to help determine the possibility of “substantial

hardship” arising from an “unsuitable” loan through the use of

benchmarks, such as the Henderson Poverty Index (HPI) or Household

Expenditure Measure (HEM). The use of benchmarks is not a

replacement for making enquiries about a particular consumer’s current

income and expenses, nor a replacement for an assessment based on

that consumer’s verified income and expenses.

Presumptions of significant hardship can be debunked with enough

contrary evidence arising from reasonable enquiries. For example, a

consumer may be willing to make reasonable changes to their lifestyle

(such as cutting back on non-essential expenses) so as to allow them to

repay loans without significant hardship. In this case, a proposed credit

contract can be seen as “suitable”.

Example:

An example of a potentially unsuitable credit contract would be when a consumer has to sell

his principal place of residence in order to repay the loan. Losing the primary place of

residence is considered equal to significant hardship, unless the consumer proves otherwise

(i.e. he has other places of residence and will not be rendered homeless).

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This example shows the need to consider all circumstances of this

particular case to ensure that the proposed credit contract or lease will not

result in significant hardship. Credit providers need to consider

conversations they have had with a consumer about how a proposed credit

contract is likely to affect their living expenses and overall financial status.

Providing the consumer with relevant documents

How do I provide written assessments?

If a consumer requests a copy of the preliminary or final assessment,

credit licensees, providers and credit assistance providers must give the

consumer a written copy of the assessment within the prescribed

timeframes and free of charge (see Sections s120 and 143 of the

National Credit Act for further guidance). Assessments can be handed to

the consumer in person, or if the consumer agrees, can be sent via

electronic means or in an electronic format.

Written assessments should:

 help consumers understand that the credit contract has been assessed

as ‘not unsuitable’ for them; and

 demonstrate the credit provider’s compliance with the responsible

lending obligations.

ASIC does not require lessors to disclose sensitive lending criteria used

to assess the suitability of the contract. Only general information and

definitions regarding ‘requirements and objectives’, ‘capacity to repay’

and ‘reasonable enquiries’ are needed in a written assessment.

The prescribed timeframe for providing written assessments depends on

when the client’s request is made.

If you are a:

Request filed WITHIN two (2)

years from the start of the contract

Request filed AFTER two (2)

years from the start of the contract

Credit provider (lender) or lessor

Written assessments should be given within 7 business days

Written assessments should be given within 21 business days

Assignee of a credit provider

Written assessments should be given within 15 business days

Written assessments should be given within 25 business days

Credit assistance

provider (lender)

Written assessments should be given

within 7 business days

Written assessments should be given

within 21 business days

Are there exemptions in providing written assessments?

In particular cases, yes. You are exempted from the obligation to

provide a written assessment if:

 You are a credit provider and the transaction does not proceed; or

 You are a credit assistance provider and you do not provide credit

assistance to a consumer. For example, if you advise a consumer to

enter into a contract and he eventually decides not to do it, he can still

request a copy of your preliminary assessment.

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What are the other documentary requirements and obligations?

In accordance with the provisions of NCCPA and RG 209, credit

providers, lessors, credit assistance providers and credit representatives

are required to provide certain documents to consumers at particular

stages of the credit process. You must give the consumers these

documents to ensure that they have access to information to help them:

 Make decisions about dealing with you;

 Understand their rights if they do deal with you; and

 Understand the contracts that they are being offered.

The following table summarises the different types of disclosure documents

you may need to give, depending on what type of entity you are.

If you are a:

You need to provide…

Credit guide

Quote

Credit or lease proposal disclosure

document

Written preliminary assessment or final

assessment

Key facts sheet for standard home

loan

Key facts sheet for a credit card

contract

Equity projections and reverse mortgage info

statement

Credit provider (lender), assignee or lessor

YES N/A N/A YES, final assessment

YES YES YES

Credit assistance provider (lender)

YES YES YES YES, preliminary assessment

N/A N/A YES

Credit representative (lender)

YES N/A N/A N/A N/A N/A N/A

Debt collector (if a licensee or credit rep)

YES N/A N/A N/A N/A N/A N/A

Note: a credit quote only needs to be provided by a credit assistance provider where they are charging a

fee for their services

Which disclosure documents must I give to consumers?

Depending on what you do and how you do it, you may need to provide

some of the following documents to consumers. These documents will

be explained in more detail later in this module.

Credit guide

A credit guide provides preliminary information about the licensee and

the credit representative to a consumer. When the consumer should be

provided a credit guide will depend on the type of entity and the credit

activities they engage in, but will generally be provided before they

engage in credit activities with the consumer.

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Fact find or client’s needs review

This document captures a consumer’s personal information, goals,

objectives and financial information required prior to making any

recommendations. Whilst it is not mandatory, it is best practice to

gather client information in a systematic way, in order to meet

responsible lending obligations.

Quote

A quote tells the consumer the estimated cost for the advice and

services. Many licensees and credit representatives do not charge a ‘fee

for service’. The consumer must have accepted the quote by signing and

dating the quote and must be provided a copy of the accepted quote.

Credit or lease proposal disclosure document

A proposal document sets out the costs to the consumer of using your

services, including any commissions you may receive. You are required

to provide a proposal document at the same time you provide credit

assistance to a consumer.

Preliminary assessment or final assessment

If requested by the consumer:

 Credit assistance providers must give the consumer a copy of the

preliminary assessment free of charge; and

 Credit providers and lessors must give the consumer a copy of the

final assessment free of charge.

Key facts sheet for standard home loans:

 If a credit provider has a website on which consumers can enquire

about, or apply for, a standard home loan, the consumer must be able

to generate a key facts sheet using the website; or

 If a consumer otherwise requests a "Key Facts" sheet for a standard

home loan, the credit provider must give the consumer a key facts

sheet.

Note: See Section s1AC, 133AD of the National Credit Act for further

guidance.

Key facts sheet for a credit card contract

Credit providers. The application form for a credit card contract

must include a key facts sheet (see Sections s114 (1) and 137 of the

National Credit Act for further guidance).

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For reverse mortgages—equity projections and reverse

mortgage information statement

Before giving a preliminary assessment or a ‘final’ assessment in

connection with a reverse mortgage, a credit provider or credit

assistance provider must:

 show to the consumer in person—or give the consumer by mail, email

or another form of written or electronic communication agreed to by

the consumer—projections that relate to the value of the dwelling or

land that may become reverse mortgaged property, and the

consumer’s indebtedness, over time, if the consumer were to enter into

a reverse mortgage;

 give the consumer a printed copy of the projections; and

 give the consumer a reverse mortgage information statement.

The projections must be made using the reverse mortgage calculator on

ASIC’s MoneySmart website (www.moneysmart.gov.au), and in

accordance with ASIC’s instructions for making projections that are

included in the calculator. If the credit provider or credit assistance

provider has a website that provides information about reverse

mortgages, they must make a reverse mortgage information statement

available through the website: s133DC. If a consumer otherwise asks for

a reverse mortgage information statement, the credit provider or credit

assistance provider must give them this document.

Exemptions from providing disclosure documents

The following table provides an overview of instances where regulated

entities under the National Consumer Credit Act do not need to provide

credit disclosure documents.

If you are a: You do not need to provide a: If

Credit provider or lessor Credit guide A guide has been provided in the last 12 months and the licensee’s External Disputes Resolution (EDR)

scheme details have not changed

All credit assistance providers

Credit guide A guide has been provided in the last 12 months and the EDR scheme details have not changed

Quote It is indicated in your credit guide or proposal document that you do not intend to charge fees or no fees have been charged

Product designer (credit assistance provider)

Credit guide The credit provider or lessor has disclosed your relationship with them in their credit guide

Credit assistance provider with shared responsibility (ADI franchisees or

branded arrangements)

Written assessment If you already gave the credit provider details of the consumer and information that will allow him to make an assessment

Proposal document The consumer does not have to pay a fee or charge.

For credit card contracts, if the information on commissions has already been provided within 15 days

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Credit representative Credit guide A guide has been provided in the last 12 months and the EDR scheme details have not changed

Franchisee (credit representative)

Credit guide

You are authorised by a credit licensee, or their representative You are a franchisee, or an employee or director of a franchisee, under a franchisee agreement The credit guide of the licensee explains that the

licensee takes responsibility for credit activities

Debt collectors (licensee or credit representative

Credit guide

A guide has been provided in the last 12 months and the EDR scheme details have not changed and you have already given the consumer a credit guide as a credit assistance provider or a credit representative. The credit guide relates to the same credit contract

that you are authorised by the credit provider or lessor to collect payments for.

Seniors Equity Release

There are a small range of seniors equity release products offered, the

most common being a Reverse Mortgage. A reverse mortgage is a loan

facility whereby a homeowner can borrow money against the value of

his or her home. Loans can be a lump sum, a regular income stream, a

credit line, or a combination. While interest is charged like any other

loan, no repayment is required (both principal amount and interest) until

the borrower dies, sells the house, repays the debt in full or moves into

an aged care facility.

While there is no income rate required to qualify for a reverse mortgage,

this type of loan comes with several risks that need to be considered,

such as:

 Higher interest rates

 The loan amount increases quickly due to compound interest

 Reverse mortgage can negatively affect pension eligibility

 The income you receive is often much lower than the capital

appreciation of your house

The Australian government introduced statutory ‘negative equity protection’

(i.e. the total debt must not exceed the market value of a borrower’s

house) on 18 September 2012. ASIC monitor these products closely and

place additional responsible lending obligations on credit providers who

offer reverse mortgages, so as to ensure consumer protection.

Additional responsible lending requirements for Reverse Mortgages were

imposed by ASIC in November 2014. The additional requirements must

be taken into consideration when making reasonable enquiries and

verifications (e.g. you are required to make the following enquiries

about the consumer's future needs)

 The possible need for aged care accommodation; and

 Whether the consumer prefers to leave equity in the dwelling or land to

the consumer’s estate

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In the circumstances of a particular consumer, it may be reasonable to

also make inquiries about other possible future needs.

This additional requirement does not limit the types of inquiries that it

may be reasonable to make about a particular consumer’s broader

requirements and objectives in relation to the credit contract.

This additional requirement was imposed to ‘require credit licensees to

discuss with reverse mortgage applicants, not just the short term effects

of the reverse mortgage, but also how the loan may affect the

borrower’s options as they age, or impact the amount of equity they can

leave to their estates’: see the Explanatory Statement to the National

Consumer Credit Protection Amendment Regulation 2013

Before giving a "preliminary assessment" or a "final" assessment in

connection with a Reverse Mortgage. You must show the consumer in

person - or give the consumer by mail, email or another form of written

or electronic communication agreed to by the consumer, the following

details and information:

 Give the consumer a printed copy of the "Equity" projections that relate

to the value of the dwelling or land that may become a reverse

mortgaged property. Using the reverse mortgage calculator on ASIC's

MoneySmart website (www.moneysmart.gov.au) and in accordance

with ASIC's instructions for making projections that are included in the

calculator;

 Give the consumer a "Reverse Mortgage Information statement" of the

consumer's indebtedness, over time, if the consumer were to enter into

a reverse mortgage (refer statement s133DB of the National Credit

Act);

Note: If a consumer otherwise asks for a reverse mortgage information

statement, the credit provider or credit assistance provider must give

them this document (refer statement s133DD of the National Credit Act).

Small Amount Credit Contracts

How does the Credit Code impact on Small Amount Credit

Contracts?

Definitions

A "Small Amount Credit Contract" (SACC) is defined as “loans that are

for $2,000 or less, and are for a term of between 16 days and one year”.

A "Medium Amount Credit Contract" (MACC) are “loans of $2,001 to

$5,000 for terms of at least 16 days but not more than two years”.

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There are additional requirements that must be taken into consideration

when making reasonable enquiries and verifications for small

amount credit contracts. This includes:

 A minimum requirement, which can be "scaled down", to obtain

account statements to verify the consumer's financial situation.

Additional responsible lending requirements for small amount credit

contracts were imposed because of the particular risks to consumers

that can result from using these kinds of credit contracts.

In particular, there are risks that the repeated or continued use of credit

provided through this form of credit contract will result in consumers

entering into multiple contracts where the overall level of indebtedness

increases over time so that:

(a) an increasing proportion of the consumer’s income will need to be

used to meet the repayments; and

(b) the capacity of the consumer to use the credit to improve their

standard of living is diminished.

Inquiries and verifications that must be made for small

amount credit contracts

There are additional statutory provisions that apply such as; limits on

circumstances where small amount credit contracts can be entered into,

charges that can be made and specify particular steps that must be

taken to verify the consumer’s financial situation.

To be satisfied that the provisions would not be contravened if the

consumer enters into a small amount credit contract, you will need to:

(a) make inquiries about whether the consumer is currently in default

under an existing small amount credit contract, or has been a debtor

under two or more small amount credit contracts in the 90-day

period before the assessment (because of the presumption of

substantial hardship in these circumstances:

(b) make inquiries about the source and amount of the consumer’s

gross income (because of the prohibition on entering into small

amount credit contracts where a consumer receives at least half of

their gross income from Centrelink and repayments would exceed a

specified proportion of their gross income.

(c) verify the consumer’s financial situation by obtaining and considering

recent bank account statements; and

(d) make inquiries about whether the credit obtained will be used to

repay another small amount credit contract (because of the

restriction on the fees that can be charged for a small amount credit

contract where it is used to refinance any amount provided under

another small amount credit contract

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Source of income

A credit licensee must not enter into, or offer to enter into, a small

amount credit contract with a consumer who will be the debtor under

the contract if:

(a) the consumer receives at least 50% of their gross income as

payments through Centrelink; and

(b) the repayments in a payment cycle would exceed 20% of the

consumer’s gross income.

This additional requirement was imposed to mitigate ‘the risk of

borrowers who are dependent on Government benefits for their income

entering into a debt cycle, where the amount of repayments relative to

their income results in an ongoing need for credit’

In light of this requirement, ASIC would expect credit providers and

credit assistance providers to make reasonable inquiries and

verifications about:

(a) the source of the consumer’s income; and

(b) if the consumer’s income includes Centrelink payments, the

proportion of the consumer’s gross income constituted by those

payments.

If the repayments are less than 20% of the consumer’s gross income,

you still need to make reasonable inquiries and verifications to enable

you to determine whether the consumer would have the capacity to

meet their payment obligations, or could only do so with substantial

hardship, in accordance with your usual obligations.

Account statements

If you propose to enter into a small amount credit contract with a

consumer, or provide credit assistance to a consumer—by suggesting that

they apply for a small amount credit contract or by assisting them to

apply for a small amount credit contract—and the consumer holds (alone

or jointly with another person) an account into which the consumer’s

income is paid, your steps to verify the financial situation of the consumer

must include obtaining and considering account statements that cover at

least the immediately preceding period of 90 days. You need to obtain

statements for all of the consumer’s accounts. You should check with the

consumer whether they hold more than one account.

You are required not only to obtain the account statements but to

consider the information contained in the statements and make further

enquiry where there are any concerns.

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Consumer Leases

How does the Credit Code impact on Consumer Leases?

Statements of Account

Lessors are required to issue:

 A statement of account periodically, unless the lease is the subject of

enforcement proceedings during the statement period;

 An end of lease statement at least 90 days prior to the end of a fixed

term lease; and

 At the request of the lessee, provide a statement within 14 days, which

includes the following details:

 Any amounts credited to the lessee;

 Any amounts owing; and

 When the amounts are due, and payable.

Changes to Consumers Leases by Agreement

Should any changes be made to the terms of an existing lease, the

lessor must within a 30 day period of agreeing to those changes notify

the lessee in writing the details of the changes setting out the

particulars of the change and the revised terms

Termination of a Consumer Lease

The following requirements apply where a ‘termination’ of a lease occurs:

 Termination by consumer before receipt of the goods; or

 Termination by consumer after receipt of goods.

Statement of amount payable

A "statement of amount payable must be given by the lessor within 7

days of receiving a written request from a lessee to terminate the lease.

The statement of amount payable must provide the following statements

of effect notices:

 That "the amount payable in order to terminate the lease may change

according to the date on which it is paid";

 That the lessee has no right to own the goods if the lease is terminated;

and

 That the lessee must return the goods to the lessor by a specific date.

Disputed accounts

There may be occasions whereby a lessee disputes their liability under a

consumer lease. Where this occurs the lessor will need to provide in

writing, a notice detailing how the liability has arisen.

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In the instance where a statement of account has been issued to the

lessee, the lessee must give notice of the dispute they have with the

lessor within 30 days from receipt of the statement of account on which

the amount or part of the amount in dispute is first shown.

Enforcement proceedings

To enforce proceedings it is a requirement for:

 Lessors to provide a ‘one off’ notice to be given the first time a direct

debit default occurs; and

 Lessors must also give a notice within 14 days when a default occurs

unless the default has been rectified within that time.

Default notices

Enforcement proceeding cannot commence unless a default notice is

issued. Upon issue of a default notice:

 The lessor must give the lessee 30 days within which to remedy the

default;

 The notice must also contain information regarding their rights pursuant

to hardship, postponement and making an application to the court.

Here are a list of circumstances where a default notice is not required to

be issued before enforcement proceedings are commenced or wait the

prescribed 30 days period:

 The lessor was induced by fraud into entering into the lease;

 The lessor has made reasonable attempts to locate the lessee but

without success;

 Court authorises enforcement proceedings;

 The lessor believes the lessee will dispose of the goods contrary to the

terms of the lease; or

 The lessee becomes insolvent.

Postponement of enforcement action

The lessee can request a postponement of enforcement action, whereby

the lessor will need to reply within 21 days of receiving the request in

writing confirming or not the postponement and then wait a further 14

days before commencing enforcement action. Circumstances may occur

where a lessor does not agree to a postponement; in that event they

must provide the lessee details of their external disputes resolution

scheme and outline what rights they have in this regard.

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Enforcement action

Enforcement proceedings are defined as:

 Commencing court proceedings;

 Taking possession of property; or

 Taking any other action to enforce a mortgage.

It is also important that prior to any enforcement action the lessor will

need to ensure that the lessee has been informed of their rights under

these new provisions. These rights available to the lessee must to be

outlined in any default notice issued where the lessor intends to

repossess the goods and terminate the lease.

Unconditional representation rules

Credit providers and lessors have an obligation to assess unsuitability

before making an unconditional representation about a consumer’s

eligibility to enter into a credit contract or consumer lease, or to increase a

credit limit on a credit contract.

This means that the responsible lending obligations do not just apply to

new credit contracts and consumer leases—the obligations also apply

when you are considering whether to increase a credit limit under an

existing credit contract (if you are a credit provider) or when you are

providing credit assistance in relation to an existing credit contract or

consumer lease by suggesting that the consumer remains in the

contract, suggest or assisting that the consumer applies for an increased

credit limit. If credit assistance is provided, the responsible lending

obligations must be complied with even if the consumer does not

subsequently enter into the credit contract or consumer lease.

Financial hardships

Financial hardship refers to the inability to settle repayments on existing

loans when they are due. There are often two main reasons for financial

hardship:

 The consumer could afford to pay the loan when it was obtained but a

change in circumstances (extended illness, unemployment, etc.) has

made it difficult for him to do so at present; or

 The loan offered was unsuitable for the consumer from the beginning,

and should not have been entered into.

If a consumer falls into the second category, he or she should seek legal

advice immediately.

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If a consumer is in financial hardship, Section 72 of the National Credit

Code (which is Schedule 1 of the National Credit Act) allows him or her to

request a change to the terms of their credit contract on the grounds of

financial hardship. This is called a ‘hardship variation’.

Take note that while the responsible lending provisions will not apply to

hardship variations unless additional credit is provided (which would be

highly unlikely in the vast majority of cases) or existing obligations are

refinanced (creating a new contract instead of varying the existing

contract), credit providers should still examine a consumer’s capacity to

meet revised payment obligations.

Hardship provisions - Consumer Credit Contracts and

Consumer Leases

On 1 March 2013, reforms to the National Credit Act amended the

obligations in s72 of the National Credit Code. These changes to the

legislation have been made in relation to hardship provision and the

following details are a summary of the obligations credit providers have

when a hardship application is made:

 The limit of $500,000 was removed for those who wish to request

hardship assistance. There is now no ceiling on that amount. This

provision applies to both the credit contracts and consumer leases;

 Dealing with consumers who have hardship in making repayments also

applies to small amount lenders;

 A further change now allows for hardship assistance to be made either

orally or in writing. This means the debtor is giving notice to the lender

of their inability to meet their obligations under the contract or lease

and request to change the credit contract or consumer lease conditions

due to hardship; and

 There is a provision that within 21 days of receiving a hardship notice

the lender may request specific information, which the debtor must

provide, and this also can be either orally or in writing. This information

is used to assist the lender to:

 Determine whether the consumer is able to meet their current

contractual obligations;

 Determine whether the contract or lease should be changed

under hardship provisions;

 Determine where a change to the contract or lease is made by

the lender; and

 Determine whether this will assist the debtor to meet their

obligations under the varied agreement.

Note: There is no requirement for a credit provider or lessor to vary the

credit contract or consumer lease in the event that they do not believe

there are reasonable grounds of hardship. Reasonable grounds may

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include sickness or unemployment. But, the credit provider must also

take into account that are they able to make the amended repayment

structure as the purpose of a hardship application is to receive relief and

not experience ongoing substantial hardship during that period.

If the credit provider chooses not to vary the contract or lease they

must provide to the borrower requesting hardship in writing the basis for

rejecting this request and the reasons why they have not decided not to

approve the hardship request variation. It is also a requirement of the

lender in this communication to provide information as to the name and

contact details of the approved external dispute resolution scheme.

They will need to further explain in the letter the consumer’s rights

under this scheme. Where a hardship application is in the process of

being heard by the external disputes resolution scheme no enforcement

action can be taken.

The credit provider has specific obligations and must provide this notice:

 within 21 days where no additional information was required; or

 28 days where information was required but the borrower has not

provided any; and

 21 days after receiving the specified information for determining

whether a change is warranted or not.

Should the credit provider agree to vary a contract or lease in respect of

hardship they must provide notice in writing within 30 days to the

consumer the particulars of the change in terms of the contract or lease.

In a practical application applying these changes may include:

 Extending the period of the contract and reducing each of the regular

payments. This is useful for anticipated long-term situations. In this

case the arrears resulting from the lower repayments would be added

to the loan;

 Postponing a repayment for a specified period. (This is useful when the

financial difficulty is anticipated to be short-term);

 A combination of the above; or

 Where no repayments are made for an extended period, the term of

the loan is extended to accommodate the arrears that have

accumulated.

How does a borrower stand in regard to their Credit Rating?

By obtaining a hardship variation to the loan means the lender has

made a variation to the terms of the loan and as such the borrower is

not in default. The credit reporting agency they use will not be notified

of the arrears prior to the hardship variation being accepted.

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Effect of hardship notice on enforcement

The NCCP (section 89) requires a credit provider to issue a "default

notice" prior to recovery action on a debt. When a hardship provision is

in place specific conditions apply, and there is a requirement when a

default notice can be issued either before or after a hardship notice is

given.

For example:

 In the 4 months before the current hardship notice is given to the

consumer and where they have not been given another hardship

notice; or

 In that 4 month period the consumer has been given one or more

hardship notices. But, you have reasonable grounds to believe the

current hardship notice differs materially from the previous hardship

notices.

Credit providers cannot commence enforcement proceedings unless they

have given in writing a response to the current hardship notice stating

that they have not agreed to vary the contract or lease. Secondly they

must inform the borrower that the period of 14 days starting from the

date the response was given, has expired.

There is a requirement also for credit providers to allow 30 days for a

borrower to remedy a default.

In effect, there is a prohibition on beginning enforcement action while a

hardship application is being heard and for 14 days after responding to a

postponement of enforcement application.

The Sedgwick Review

On the 19th of April 2017, Stephen Sedgwick AO published the Final Report

of his Independent Review of product sales commissions and product based

payments in retail banking in Australia (Review), funded by the Australian

Bankers' Association (ABA). It made 21 recommendations to the banks

around remuneration – three of which involved the third party channel.

Combined industry forum

In response to the ASIC Report and the third party recommendations of

the Sedgwick Review, and following consultations with Government, the

mortgage broking industry established the CIF to drive better customer

outcomes through improved governance and remuneration practices in

finance broking. This forum was tasked to achieve these outcomes

through the development of a package of industry led measures to

directly address the ASIC Report proposals, taking into account the third

party recommendations of the Sedgwick Review.

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The forum consists of a mix of industry bodies, associations, aggregators

and brokers working towards addressing and finding solutions for the key

proposals made by ASIC relating to the finance broking industry.

The Sedgwick Review also made similar recommendations to that

contained in the ASIC Report, however in Sedgwick’s case they were

framed at tackling the “significant risks of mis-selling” attached to current

arrangements to remunerate Mortgage Brokers.

These proposals are as follows:

1. Changing the standard commission model to reduce the risk of poor

customer outcomes [Sedgwick recommendation 18]

2. Moving away from bonus commissions and bonus payments which

increase the risk of poor customer outcomes [Sedgwick

recommendations 16. a) and 16. c)]

3. Moving away from soft dollar benefits which increase the risk of poor

customer outcomes and can undermine competition Specific areas

considered:

 Tiered servicing (Broker Clubs)

 Conferences/Professional development events

 Entertainment and Hospitality [Sedgwick recommendation 16. b)]

4. Clearer disclosure of ownership structures within the home loan

market to improve competition.

5. Establishing a new public reporting regime of customer outcomes

and competition in the home loan market [Sedgwick

recommendation 19]

6. The industry needs to improve the governance and oversight of

brokers by lenders and aggregators [Sedgwick recommendation 17]

Conclusion

A range of changes have been introduced into legislation to refine the

delivery of credit to consumers. In particular better defined regulations

have been introduced to standardise the delivery of credit to consumers.

For more information we recommend you review the legislative changes

at http://www.asic.gov.au

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Consumer protection and ASIC penalties

The NCCP allows for borrowers to be protected in a range of ways, which

can take the form of:

 Criminal penalties for licensee misconduct which can include possible

imprisonment for those who lend contrary to the responsible lending

requirements

 Civil penalties for licensee misconduct which enable ASIC to seek heavy

fines into the Hundreds of Thousands for an individual and in excess of

$1 million for a corporation.

 Infringement notices (fines) so that ASIC can act quickly to penalise

certain breaches of the law

 Consumer remedies, such as compensation, which allow borrowers to

seek redress for their loss and damage from a licensee

 ASIC can seek an adverse publicity order against a person who has

contravened or committed an offence against the NCCP. Under a

publicity order, a court may require a person to disclose certain

information in a specified way and to publish the information at their

own expense

 Loss of fees, charges, interest, commissions, interest payments and

other monetary benefits or profits resulting from contracts while acting

unlicensed or engaging in unlawful credit activity.

(NOTE: Penalty amounts vary from time to time with amendments to

the Legislation)

Dispute resolution

There is a three-tiered dispute resolution system for consumer credit

issues, making it easier and less costly for borrowers to resolve

disputes. The system consists of access to:

 The licensee’s internal dispute resolution process (IDR)

 An ASIC-approved external dispute resolution (EDR) scheme

 The Federal Court, Federal Magistrates Court and the courts of the

States and Territories.

Internal Dispute Resolution (IDR)

All those operating under a financial services or credit licence must have

IDR procedures that:

 Cover the majority of complaints clients make

 Adopt the definition of ‘complaint’ in complaints handling standard as

ISO 10002-2006

 Satisfy the guiding principles of section 4 of as ISO 10002-2006 and the

following sections of as ISO 10002-2006:

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 Section 5.1—commitment

 Section 6.4—resources

 Section 8.1—collection of information (which requires financial

service providers to record complaints data) and

 Section 8.2—analysis and evaluation of complaints

 Provide a final response within 45 days

 Appropriately document IDR procedures.

In particular, an IDR scheme must follow the regulations of Regulatory

Guide 165 ‘Licensing: Internal and external dispute resolution’. This

requires that a final response must be given writing within 45 days of

receipt of a complaint, advising the complainant of:

 Either the outcome of the complaint, or where there is a delay, the

reasons for the delay

 The right to complain through EDR

 The name and contact details of the relevant EDR scheme.

A body corporate can sub-authorise credit representatives who are

employees or directors of the body corporate, without them having to

hold membership of an EDR scheme in their own right.

Importantly, where a credit representative acts outside the scope of

their authority, the lender will still be responsible for its representative’s

actions. Furthermore, where there is more than one credit licensee

involved in the conduct, the credit licensee is jointly and severally liable

with the other credit licensees for the representative.

External Dispute Resolution (EDR) Framework

EDR Schemes provide borrowers with an independent, informal and no

cost alternative to going to court. EDR Scheme members (licensees and

credit representatives) are bound by a decision of an EDR Scheme.

Borrowers retain their right to access the courts following a decision or

outcome by an EDR Scheme.

All credit providers and third party credit providers (ACL’s/ACR’s) must:

 Have appropriate links between their IDR procedures and EDR scheme

(including a system for informing complainants about the availability of

EDR and how to access it)

 Maintain the EDR scheme reports regarding:

 Systemic issues and serious misconduct

 General complaints information, and

 Information about complaints received and closed, with an indication of

the outcome against each scheme member in their annual report

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 Covers the vast majority of types of complaints in the relevant industry

(or industries)

 Operates a minimum compensation cap that is consistent with the

nature, extent and value of borrower transactions in the relevant

industry or industries.

Australian Financial Complaints Authority (AFCA)

On 9 May 2017, based on the findings and recommendations of the

Review of external dispute resolution and complaints arrangements in

the financial system (the Ramsay Review), the government endorsed

the establishment of a single scheme to deal with all financial disputes

(including superannuation disputes), combining and streamlining the

existing three external dispute resolution (EDR) schemes into the new

Australian Financial Complaints Authority (AFCA).

The purpose of AFCA is to ‘one stop shop’ dispute resolution body to

ensure that consumers and small businesses have access to free, fast

and binding dispute resolution.

On 14 September 2017, the bill Treasury Laws Amendment (Putting

Consumers First—Establishment of the Australian Financial Complaints

Authority) Bill 2017 was introduced to set out standards that AFCA must

meet:

 to provide additional powers to enable AFCA to effectively resolve

superannuation disputes

 to give Australian Securities and Investments Commission (ASIC)

certain regulatory powers, including the power to issue general

directions and approve material changes to the AFCA scheme.

Activity 4 - External Dispute Resolution Service

(EDRS)

What message does AFCA recommend to be made available for

customers on your website and disclosure documents?

Check the model answers section

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Court remedies

Under AFCA, consumers also have access to streamlined court

procedures for ‘small claims’ actions they have started in a magistrate’s

court, local court or the Federal Magistrates Court. Features include;

 Being available for claims of awards up to $20,000 or such higher

amount as is prescribed in regulations

 A presumption that consumers will not have legal representation. This

provides that the state tribunal practices of self-representation will be

retained and legal costs for borrowers minimised, and

 Informal legal procedures where the court will not be bound by formal

rules of evidence and may act without regard to legal forms and

technicalities, easing the difficulty for consumers in using the legal

system.

Remedies to protect consumers are an important element of the NCCP as

they enable them to take direct action against a licensee or credit

representative who breaches the law and causes them loss or damage.

These actions can provide sufficient deterrent against breaches of the law.

Such remedies are considered an important way of influencing and curbing

market behaviour.

Any compensation to a consumer or an order in relation to loss or damage

can be mitigated (including limiting the amount of compensation) if the

consumer has made false or misleading representations in order to obtain

the credit. This is to take into account what is practically just in the

circumstances.

Consumers will normally not incur costs for applications for hardship

variation or seeking to postpone an enforcement proceeding. This will

prevent cost being a disincentive to consumers seeking court remedies.

Advertising

Advertising the availability of credit is prohibited unless the advertisement

complies with certain requirements. Other than your ACL number and rules

around interest rate advertising, ASIC provide good practice guidelines for

all areas of advertising. It is important to note that an advertisement for a

credit product does not need to include an interest rate, but must do so if

the advertisement states the amount of any repayment.

The NCCP also contains measures aimed at restricting door-to-door

canvassing. These measures prohibit a lender from visiting a residence for

the purpose of inducing a person to apply for, or obtain credit, except by

prior arrangement with the person who normally resides there.

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It is important to note that this restriction does not apply where the person

is visiting a residence to offer goods or services for sale where credit is

available to finance the sale. Refer to ASIC RG234 for further information.

Comparison rates

A comparison rate reflects the total cost of credit arising from interest

charges and other fees and charges. The objective is to help borrowers

identify the true cost of credit, which allows for a much easier

comparison between loan products.

Under the NCCP, mandatory comparison rate schedules which were

provided to clients were abolished. However, they are mandatory in

promotional materials that advertise an interest rate and must represent

the typical amount and term offered.

The comparison rate formula must include:

 The amount of the loan

 The term of the loan

 The repayment frequency

 The interest rate and

 The fees and charges connected with the loan, except for:

 Government charges, such as stamp duty (depending on State) or

mortgage registration fees

 Fees and charges which may, or may not, be charged, because they

depend on some event which may, or may not, occur e.g. fees for early

repayment or redraw fees

 Fees and charges which are not ascertainable at the time the

comparison rate is provided.

For example if a lender advertises an interest rate of 5.49% its comparison

rate might be 5.75%. Where the fee cannot be determined, at the time the

comparison rate is published, a reasonable estimate should be used. The

comparison rate only allows comparison based on cost, and will not include

other factors that may make a loan more attractive, such as access to fee

free accounts or flexible repayments arrangements.

Advertised comparison rates must include:

 The name of the consumer credit product, the amount and term of

credit to which each comparison rate applies

 Whether the loan is secured or unsecured

 A prescribed warning about the accuracy of the comparison rate

 Identifying the comparison rate as a comparison rate

 Not disclosing a comparison rate less prominently than any advertised

annual percentage rate or repayment amount.

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Loan offset accounts

If a loan is linked to a loan offset account, the obligation to disclose

information is more difficult because the lender will not know whether,

or to what extent, the balance in the offset account will be maintained

throughout the term of the loan.

Therefore, a lender is allowed to assume that the contract is not linked

to the offset arrangement for the purpose of complying with disclosure

obligations, even when it is. This has the effect that total interest may

be less than quoted.

Credit provided as a consumer lease

The regulation largely replicates the requirements of lenders, licensees

and credit representatives in regard consumer leases.

However, there are separate disclosure requirements because:

 Lessees can mistakenly believe that they have an ability to buy the

goods when they do not

 The amount paid under the lease may be considerable (that is,

equivalent to that paid under a credit contract) but the lessee has no

right to the goods when the lease ends

 A level playing field is necessary for lenders who provide consumer

credit and those that finance goods through consumer leases.

A consumer lease must disclose the following matters where

ascertainable:

 A description of the goods

 The amount of any charges payable (including government charges)

 The amount of each rental payment

 The number of payments required

 Details as to when the payments are due.

 Information as to when the lease may be terminated and a statement

of liabilities (if any) on termination.

These measures replicate similar conditions in the NCCP and include:

 Restrictions on requiring that insurance be taken out or arranged by the

lender or supplier

 Restrictions on financing insurance premiums under a credit contract

 Limits on commissions paid by an insurer

 Automatic termination of an insurance contract where the credit

contract is terminated.

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Credit guides, contracts and other disclosure

documents in more detail

Under the responsible lending obligations the following types of

disclosure documents need to be provided, depending on the type of

credit activity:

 Credit guide (before you provide credit assistance or enter into a

consumer loan or lease)

 A written quote with information about the maximum amount payable

in relation to credit assistance and other services

 A preliminary assessment of whether a loan or consumer lease is

suitable for the consumer

 A credit proposal disclosure document or lease proposal disclosure

document.

Credit representatives of Licensees will have their own unique identifying

number (their credit representative number). If a person is required to

give a credit guide as a credit representative of a Licensee, they will

need to include this number in the credit guide.

Credit guides (credit service providers)

The purpose of the credit guide is to provide the consumer with key

information early so they are informed and aware of necessary matters

before deciding to use the services of the credit service provider.

It includes contact information including the ACL number, and disclosure of

key conduct obligations of the credit service provider and key rights of the

borrower (such as the requirement not to suggest or assist with unsuitable

loans, the borrower’s right to request a copy of the preliminary assessment

and access to information about procedures for resolving disputes).

The guide must also include information about the possible nature and

size of fees and charges that the borrower may incur if they use the

credit service provider. This should include the basis on which the

borrower would pay, such as an hourly rate or the percentage of the

amount of credit secured.

In addition, the guide also includes information about the six lenders

with whom the credit service provider conducts the most business, and

must also set out an overview of the commission arrangements from the

lenders with whom they deal for providing credit assistance.

This disclosure may set out that the commission is a certain rate or a

range of rates and trailing commission of a certain rate or range of rates

upon the successful securing of the loan.

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For example:

 The reasonable estimate of the amounts may, for example, be set out

in percentage or dollars (for example, per $1,000 of credit secured)

 The information about the method for working out these amounts may,

for example, state that it is a flat rate or relates to a volume of sales.

The following table documents when credit guides are to be provided to

consumers.

Licensee credit

assister

As soon as practicable after it becomes apparent to the licensee

that it is likely to provide credit assistance to a consumer in relation to a credit contract (or lease)

Licensee credit provider/lessor

As soon as practicable after it becomes apparent to the licensee that it is likely to enter a credit contract (or lease) with a consumer who will be the debtor under the contract (or lessee under the lease)

Assignee As soon as practicable after it has been assigned any rights or obligations of a credit provider under a credit contract

Credit rep (CR) When a credit representative of a licensee gives a consumer the licensee’s credit guide when acting on behalf of the licensee, the credit representative must at the same time give the consumer

the credit representative’s credit guide

Debt collector As soon as practicable after it becomes authorised by a credit provider to collect, on the credit provider’s behalf, repayments made by a debtor under a credit contract

Credit quotes (credit service provider)

If the finance broker is going to charge the client a fee for the credit

assistance that is to be provided, the consumer must be given a quote.

The quote advises the consumer of the maximum cost to them and

includes all costs that the consumer will be likely to incur either out of

their own pocket or disbursed from the credit.

The quote must advise the consumer of whether or not the costs will be

incurred irrespective of whether the credit is successfully secured.

The quote must be signed (or otherwise accepted) and dated by the

consumer and then a copy of the accepted quote must be provided to

the consumer before the credit assistance is provided.

Specifically, the quote must set out in writing (or given in an appropriate

manner for the circumstances such as by email):

 Information about the services that the quote covers, such as the scope

of the credit assistance to be provided and any other services that will

incur a cost to be paid

 The maximum amount payable in relation to the credit assistance

detailing:

 In dollars, the maximum fee payable by the consumer for using

the credit assistance

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 In dollars, the maximum of any other charges for providing the

credit assistance that will be passed on to the consumer (for

example postage or photocopying)

 Whether the amount is payable if the loan is not approved or the credit

limit is not increased.

The credit service provider must neither request nor demand payment of

the quoted amount prior to providing the credit assistance nor demand

payment of an amount that exceeds the maximum amount set out in

the quote.

Credit Proposal Disclosure (Credit service provider)

Credit proposal disclosures must be provided at the same time as

providing credit assistance and should contain the following:

 Information about commissions, including a reasonable estimate of the

total amount of any commissions.

 Fees and charges

 A reasonable estimate of fees or charges the consumer is liable to pay.

Where fees or charges are disbursed from the credit being applied for,

an estimate of the net amount of credit that will be available to the

consumer after those payments are made, must be included.

The following is an example of fees and commissions that would be

disclosed to a client:

Scenario:

Bob Blanks, a real estate agent, has referred Joe Bloggs who wishes to apply for a loan of $400,000 to

buy a home. The Credit Representative, John Jones, has an agreement with Bob to pay him $280

(including GST) referral fee on a successful loan application.

John has also quoted a fee to Joe to recommend and apply for a loan on his behalf for $600.00

(including GST) (in most cases non-refundable).

Other fees include the valuation fee that is estimated at $300.00, $700.00 for legal fees and a loan

application fee of $500.00.

The Credit Representative’s Licensee receives from the lender an up-front commission of 0.50% +

GST of the loan amount and a monthly trail commission of 0.2% + GST on the outstanding loan

balance. An agreement will be in place between the Licence holder (Principal) and the Credit

Representative (Contractor/Employee) to proportionately share the commissions.

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Fees and commissions

Credit representative fees payable to us for the

provision of broking service

Our service fee is $600.00 (including GST)

Fees payable to third parties

Fees or charges paid by us to third parties $280.00 (including GST). Referral Fee.

Estimate of commission to be received by us. This commission is payable to us

for assisting you to obtain finance.

0.50% of the principal finance amount (plus GST) shortly after the finance is provided. We estimate this one-off payment to be $2200.00 (incl. GST)

0.2% per annum of your outstanding loan amount owing payable monthly (plus GST). We estimate the monthly payment to be $73.33 (incl. GST)

Commission will be paid by The commission will be paid by the lender documented above to the licensee. The licensee will then pay some or all of the commission to the credit representative.

Other benefits From time to time we receive benefits in the form of conferences and training sessions provided by the licensee, financiers, or others. The value of these

benefits cannot be ascertained.

Estimate of total fees and charges payable to the

financier in relation to applying for the finance. These fees are payable by you.

Loan application/Establishment fees 500.00

Valuation fees 300.00

Legal/Documentation/Settlement fees 700.00

Lenders mortgage insurance premium 0.00

Other 0.00

Total 1500.00

These figures above are estimates only and the final figures will be shown in your credit contract or lease. Some or all of these fees may be paid from the finance proceeds. These fees are payable only once. We are not aware of any other fees or charges payable to anyone else in relation to the application for finance, but the financier may impose some additional requirements. [IF ANY FEES ARE DEFINITELY TO BE PAID FROM THE CREDIT OBTAINED, SPECIFY A REASONABLE ESTIMATE

OF THE AMOUNT OF CREDIT LEFT AFTER PAYING THOSE AMOUNTS AND ANY FEES TO THE BROKER.]

Referral fee

The credit representative has paid or will pay a referral fee of $280 (including GST) to Bob Blanks – Blank Accounting for referring you to us. In addition, we receive referrals from a broad range of sources. For example, we may pay fees to call centre companies, real estate agents, accountants, or lawyers for referring you to us. These referral fees are generally small amounts and accord with usual business practice.

These are not fees payable by you.

Licensee’s Credit Contract (Credit provider)

Licensee credit contracts must include:

 The lender’s name

 The amount of credit, with specific disclosure requirements related to

whether the amount of credit is ascertainable

 The annual percentage rate under the contract

 Calculation of interest charges and total interest charges

 Repayment details

 Credit fees and charges

 Changes affecting interest and credit charges

 Statement of accounts

 Default rate

 Enforcement expenses

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 Details of any mortgage or guarantee

 Commissions

 Insurance financed by the contract

 Procedures for resolving disputes with a consumer.

Credit contracts should also include a description of key obligations of

the lender (which relate to the requirement not to provide consumers

with an unsuitable loan and the consumer’s right to request a copy of

the lender’s assessment that the loan is not unsuitable for the

consumer).

You can recreate/print the following checklist which can be attached to

every client file and should be used to confirm that NCCP compliance

requirements have been met.

Client: ................................................................................................................................

Representative’s name: ......................................................................................................

Service provided: ...............................................................................................................

(e.g. suggesting or assisting a consumer to apply for a particular credit contract [name of contract])

Is the representative authorised to provide this service? Tick Yes/No

Description of major

requirements Yes No If no, why not? N/A Date

Have you made reasonable enquiries about the consumer’s requirements and objectives in relation to the credit contract? National Credit Act, s117(1)(a)

Have you made reasonable enquiries about

the consumer’s financial situation? National Credit Act, s117(1)(b)

Have you taken reasonable steps to verify the consumer’s financial situation? [List steps]

National Credit Act, s117(1)(c)

Have you made a preliminary assessment of whether the credit contract will be unsuitable for the consumer, taking into

account:  the consumer’s requirements and

objectives, and  the consumer’s financial situation?

National Credit Act, s116(1)

Has the consumer asked for a copy of the preliminary assessment?

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Statements of account

The information to be contained in a statement of account includes:

 The period which the statement covers

 Opening and closing balances

 Credit provided during the statement period

 Identity of supplier

 Interest charges

 Fees and charges debited during the statement period

 Payments to or from account

 Amounts payable by debtor

 Insurance payments

 Any alterations.

Guarantees

The Code applies to a guarantee if:

(a) it guarantees obligations under a credit contract; and

(b) the guarantor guarantees a natural person or a strata corporation

The NCCP contains a number of measures aimed at enabling guarantors to

make an informed decision about guaranteeing a loan and making sure that

they understand and agree to the nature and extent of their obligations.

Before the guarantee is signed, the lender must give the prospective

guarantor a copy of the loan and a statutory information statement

explaining their rights and obligations.

This must include a “warning box” where the required warning to

prospective guarantors is printed. A warning box is specifically described

in the law as there are various features of the contract of guarantee that

result in the guarantor being in a vulnerable position. There is usually no

direct benefit accruing to the guarantor from the contract, but the costs to

the guarantor may be very high if things go wrong.

The warning box format is required to be used to enhance the clarity of

the information provided, and the box is required to be placed

immediately above the place where the guarantor is to sign to increase

the likelihood that the guarantor will notice and read the information.

Failure to do so makes the guarantee un-enforceable.

The NCCP does not preclude the obligations under the Code of Banking

Practice which specifies the rights of bank customers specifically in

regards to guarantees.

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This already includes the obligation on banks to provide a prominent

notice to a proposed guarantor, and before taking a guarantee:

 To seek independent legal and financial advice on the effect of the

guarantee

 The right to refuse to enter into the guarantee

 That there are financial risks involved

 That there are rights to limit a guarantor’s liability

 That guarantor’s have a right to request additional information about

the facility they are being asked to guarantee.

A sample Warning Box is shown below and contains the relevant

warnings as per: NCCP Regulations 2010 Schedule 1.

IMPORTANT BEFORE YOU SIGN THINGS YOU MUST KNOW

READ THIS GUARANTEE

AND THE CREDIT CONTRACT DOCUMENT

Understand that, by signing this guarantee, you may

become personally responsible instead of, or as well as, the debtor to pay the amounts which the debtor owes and the reasonable expenses of the credit

You should read the information statement: "THINGS YOU SHOULD

KNOW ABOUT GUARANTEES"

If the debtor does not pay you must pay. This could mean you lose everything you own including your home.

You should obtain independent legal advice

You may be able to withdraw from this guarantee or limit your liability. Ask your legal adviser about this before you sign this guarantee.

You should also obtain

independent financial advice

You are not bound by a change to the credit contract,

or by a new credit contract, that increases your liabilities under the guarantee unless you have agreed in writing and have been given written particulars of the change or a copy of the new credit contract document

You should make you own enquiries about credit worthiness, financial position

and honesty of the debtor

Default notices

In accordance with Clause 88 of the NCCP, a lender is required to give a

default notice before commencing enforcement proceedings. The default

notice must include certain information, including:

 The debtor’s right to make a hardship application or - negotiate any

postponement of enforcement proceedings with the lender

 Specifying a period for remedying the default

 Specifying the date after which enforcement proceedings may begin

 Specifying information about the lender’s approved external dispute

resolution scheme and the debtor’s rights under the scheme

 Specifying the debt may be included in a credit-reporting agency’s

credit information file. If the debt remains overdue for 60 days or more.

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Insurance

Australia's insurance market can be divided into roughly three

components: life insurance, general insurance and health insurance.

These markets are fairly distinct, with larger insurers focusing on only

one type, although in recent times several of these companies have

broadened their scope into more general financial services, and have

faced competition from banks and subsidiaries of foreign financial

conglomerates. With services such as disability insurance, income

protection and even funeral insurance, these insurance giants are

stepping in to fill the gap where people may have otherwise been in

need of a personal or signature loan from their financial institution.

There are many companies offering insurance policies in the Australian

market, but several are in fact underwritten by a limited number of insurers

operating under many brand names. These are known as ‘underwriters’.

Providers such as Coles, Woolworths, Australia Post, Myer, RACV, NRMA,

among others, sell insurance products of these underwriters under their

own brand name. Such companies at times describe themselves as

insurance companies or as providers of financial services, but are better

described as insurance retailers or insurance brokers. Such companies are

generally not exposed to any insurance risks, but receive a commission

(generally 10-20%) on the sale of these insurance products.

Life insurance

Life insurance relates to insurance that covers “the person”’. Life insurance

is a lump sum payment paid to an individual or their beneficiaries in the

event of death or upon being diagnosed with a terminal illness. However,

there are a range of personal insurances that may cover various incidents

or illness and they may be paid as a supplement for income also. The

purpose of life insurance is to provide beneficiaries with financial security.

Life insurers sell independent policies direct to consumers or via an

intermediary such as a broker or financial planner. The most common

policy sold is life insurance within superannuation investment products.

Life insurance premiums paid by a superannuation fund are tax deductible

by the fund from assessable income; while the same premium if paid

directly by the individual member may not be tax deductible.

The following are some main types of life insurance and how they work;

 Life cover - also known as 'term life insurance' or 'death cover', pays a

set amount of money when you die. The money will go to the people

you nominate as beneficiaries on your policy.

 Total and permanent disability (TPD) cover - pays a lump sum to

help with rehabilitation and living costs if you are totally and

permanently disabled. TPD is often sold with life cover.

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 Trauma cover - provides cover if you are diagnosed with a certain

illness has a significant impact on your life, such as cancer or a stroke.

It is sometimes called 'critical illness cover' or 'recovery insurance'.

 Income protection - replaces some of your income if you are unable

to work due to injury or sickness.

 Accidental death cover - pays a set benefit if you die because of an

accident (not from an illness or disease)

 Critical illness - otherwise known as critical illness cover or a dread

disease policy, is an insurance product in which the insurer is

contracted to typically make a lump sum cash payment if the

policyholder is diagnosed with one of the specific illnesses on a

predetermined list

General insurance

General insurance products sold in the Australian market can roughly be

divided into two classes:

 Liability insurance such as compulsory third party (CTP) motor

insurance, worker's compensation, professional indemnity insurance

and public liability insurance, business insurance;

 Property insurance such as home and contents insurance, travel

insurance, and comprehensive motor vehicle insurance

Provisions applying to statutorily mandated or regulated schemes, such as

CTP and workers’ compensation, may differ considerably between states.

Products vary between companies, and consumers should always read

their Product Disclosure Statement (PDS) before they purchase cover.

Consumers should always purchase cover appropriate to their level of

risk.

General insurers sell independent policies direct to consumers or via an

intermediary such as an insurance broker, finance broker or financial

planner. These insurance policies may also be sold via asset suppliers

such as vehicle and equipment sellers or lessors. The insurances offered

often offered at point of sale to ensure the asset is covered before

leaving the sellers/lessors premises.

Health insurance

Health insurance is a type of insurance that helps cover the cost of

medical and surgical expenses.

The Australian Government provides a basic universal health cover

through the Medicare scheme. Medicare is funded by a 2% Medicare

levy paid by most taxpayers.

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Individuals and families can take out additional health insurance for

services not covered by Medicare or for services provided in private

hospitals. The Australian taxation system penalises higher income

earners who do not take out private health insurance, with a Medicare

Levy Surcharge of 1% to 1.5% being payable by those who do not take

out private health insurance.

There are two main types of health insurance:

 Hospital cover – commonly covers the partial or full cost in-hospital

treatment, and hospital costs such as accommodation and surgery. It is

desirable for those that choose to use private hospital services and/or

require immediate treatment that is not otherwise deemed as an

emergency.

 Extras Cover - Ancillary or extras cover provides benefits for non-

medical health services such as dental, optical, physiotherapy, and

chiropractic treatment.

This insurance is generally not sold via brokers or financial planners.

Duty of Care

It is good practice for Finance brokers to ask the client questions in relation

to their life and general insurance needs when completing a fact find. This

ensures that the client has considered the possibility of increased risk now

that they own an asset that could be potentially damaged, or that their

partner may need to continue to repay, should they fall ill or pass away.

Other types of loan/lease related insurances

Lenders Mortgage Insurance

Lenders Mortgage Insurance (LMI) is insurance that a lender takes out

to insure itself against the risk of not recovering the full loan balance

should the borrower be unable to meet their loan payments. It is

generally paid by the borrower when they don’t have 20% deposit plus

costs to put towards the purchase of a residential property. Thus, the

loan to value of the asset ratio (LVR) is above 80%. LMI provides

greater access to home ownership, particularly for low income, low

equity or higher-risk borrowers who might otherwise have difficulty

obtaining a home loan. By using LMI, lenders are able to pass on this

risk to a mortgage insurer, which enables the lender to offer the same

loan amount but with less of a deposit. This in turn may lower the cost

of a loan, on the basis that lenders may elect not to charge a higher

interest rate. It also allows property investors to gear at a higher

amount but often the cost of LMI outweighs the taxation benefits and

thus they elect to borrow less as a result.

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Lenders mortgage insurance protects a lender against financial loss if

the borrower defaults on their home loan and the property is

subsequently repossessed and sold. The insurance covers the amount

left to pay on the loan, if the amount recouped from the sale of the

property is not enough to pay off the loan in full to the lender.

The LMI premium is payable at settlement by the lender, but usually

passed on by the lender as a cost to the borrower. The cost varies

depending on the lender, how much is borrowed and the size of the

deposit. The premium may be able to be included as part of the loan

amount or paid upfront on settlement. The lender will advise the finance

broker or borrower of the premium amount on formal approval.

However, it is good practice for a brokers to ensure they have a good

idea of the LMI premiums so that they may advise the borrower in the

costings. It is also good practice to slightly overestimate the LMI if

unsure whether it may be slightly more. On refinancing, LMI may be

payable again. It isn’t possible to transfer an LMI policy to another

lender. However, LMI may be partially refundable if the loan is

terminated early (usually the first year or two only). Each lender can

provide details of its own refund arrangements.

If you, the borrower, have problems and cannot meet your loan

repayments and no other resolution is found, your property may need to be

sold to cover the outstanding loan amount. In this situation, sometimes the

house is sold for less than the amount owing. The LMI insurer may pay

your lender an amount in accordance with the LMI policy, and may then

ask you, the borrower, to repay this sum directly to it.

Loan protection insurance (consumer credit insurance)

Mortgage insurance, also known as home loan insurance or consumer

credit insurance, is a product that protects the borrower from the risk of

default. It can be taken out on both residential and commercial

properties and is also available for owner-occupied and investment

property loans.

Mortgage insurance is designed to cover your mortgage repayments in the

event of your passing, the diagnosis of a critical illness, or if you are totally

and permanently disabled. Your bank might also offer you redundancy

cover if you hold both mortgage and income protection policies.

Consumer Credit Insurance

Consumer credit insurance (CCI) is insurance that covers you if

something happens that affects your capacity to meet the payments on

your loans, leases and other credit. CCI usually covers situations of

unemployment, illness, involvement in an accident, and death.

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Your lender may offer you the opportunity to take out CCI at the time

they approve your loan, and the premium may be included in the

amount you borrow. Beware, as it is expensive and usually of little or no

value. CCI insurance will usually only cover your loan repayments for a

period of three months following job loss.

You can visit the https://www.moneysmart.gov.au/insurance/consumer-

credit-insurance

if this link doesn’t work go to www.moneysmart.gov.au and research

credit insurance.

Car lease protection insurance

Car lease protection insurance can pay out in circumstances such as

involuntary employment, death or total loss of car in an accident. The

exact benefits paid out depend on the terms of your policy, the terms of

your lease and the situation at hand.

Lease protection for unemployment: For example, if you lose your

job and can’t make repayments you might have the choice of keeping

the car, selling it or handing it back to the dealer.

 If you choose to keep the car, the insurance policy can help you keep

up with payments until you find a job.

 If you choose to hand it back or sell it, your policy might pay the total

amount left owing, minus the market price of the car.

If you opt to keep the car, the repayments required by your policy may

vary. For example, one policy might make you pay one-thirtieth of the

minimum monthly repayment for up to 120 days, while another policy

might pay out a single lump sum.

Lease protection for death or vehicle loss: In the event of death,

policies may pay out the remaining amount owed on the lease. In a total

loss situation where the car is written off after an accident, your policy

might pay benefits equal to the difference between your car insurance

payout and the amount left owing on the lease.

Car lease policies can vary widely, and these are just some of the terms

you may encounter. For example, involuntary employment is the focus

of many policies, but not all options will include death cover. Reading

your policy closely is key to understanding the type of cover it offers.

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Car gap insurance in action

Car gap insurance is simple in principle. If you have a car loan or have

purchased a car under finance and have an accident resulting in a total

loss, gap insurance will cover the difference between the amount your

car insurance pays and the amount you owe the lender or car dealer.

This amount will typically be the market value of the car at the time of

the accident plus the amount left owing on your car loan.

The exception is if you have an agreed value car insurance policy, in

which case your car insurance will pay that amount instead of the

market value at the time of the accident.

Gap insurance can be particularly important when you consider the

effect depreciation has on the value of a car.

Gap insurance might be more worthwhile in some situations. For

example, if you need a car for work and end up with an outstanding

debt after an accident, you could find it much harder to get the financing

needed for a replacement vehicle.

However, the usefulness depends on the terms of the policy, and you need

to pay close attention to the terms and conditions. Your gap insurance

policy will not pay out if your car insurance doesn’t, and you will also need

to meet the terms and conditions of the car gap insurance policy.

For gap insurance in particular, look at the following:

 Payout conditions. Gap insurance policies will typically only pay out in

the event of a successful total loss claim. If your car insurance policy,

for any reason, does not pay the full sum insured, then your gap

insurance will not apply.

 Loan conditions. Gap insurance is essentially insurance for your car loan

and may have conditions. For example, if the loan has a very high

interest rate, the insurer may reserve the right not to pay a claim. Your

gap insurance provider might not pay out in the following situations:

 The loan has poor terms, for example if the loan is more than

110% of the car’s market value.

 The residual or balloon payment is more than 50% of the

purchase price or the market value of the car at the time of

purchase.

Gap insurance has limits on how much the policy will pay out. It’s a

good idea to make sure the limit on your gap insurance is enough to

cover the difference between the amount remaining on the loan and the

amount insured by your car insurance.

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Australian Consumer Law – Unfair contract

terms and personal property securities

Financial services professionals also need to be familiar with two

important pieces of legislation:

 Australian Consumer Law

 Personal Property Securities

Duty of disclosure

Customers must be informed of their duty of disclosure before they

enter into a contract.

The duty of disclosure requires the licensee and/or credit representative

to inform the client that:

 They must be honest when answering the questions on the application

 They must tell the lender anything known to them, and which a

reasonable person in the circumstances would include in answer to the

questions on the application

 The answers given will be used by the lender to decide whether or not

to approve the loan/lease, and also when lender’s mortgage insurance

is required, to provide that information to the insurer

 The applicant is answering the questions in this way for both

themselves, and anyone else involved in the application e.g. marital

partner.

If they do not answer the questions in this way, the lender may refuse

the application.

When extending, varying, or replacing their mortgage contract your

customer does not have to disclose a matter that:

 Diminishes the risk to be undertaken by the lender, or

 Is of common knowledge.

Unconscionable conduct

Unconscionable conduct refers to exploiting the weaknesses customers

when selling them credit or financial products for example, selling a

product to a customer who does not understand the nature of the

product because they are under the influence of alcohol, are suffering a

mental infirmity, or have difficulty with the English language.

It is unethical and illegal for a stronger party to proceed with a

transaction, even if they have the consent of a weaker party.

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Financial services providers, licensees and credit representatives must

therefore ensure that clients fully understand the terms of the loan and the

consequences of defaulting on a loan, especially where security is taken.

This becomes even more important in situations where a guarantee is

taken. Practitioners must, therefore, keep comprehensive notes of all

interactions with their clients that provide evidence that their clients were

properly listened to and that no overt or covert manipulation or coercion

was used.

It is important practice to pay particular attention to the relationship

between borrowers and guarantors. A special disability may be

constituted where one party has undue influence over the other party

such as a spouse seeking to use his or her partner as a guarantor. A

similar situation may exist when a child asks a parent to guarantee a

loan. In these situations, the parties should be strongly counselled to

obtain independent legal advice.

Harassment and coercion

Harassment and coercion are more severe forms of unconscionable

conduct. This type of behaviour refers to the use of harsh, or aggressive

language, or physical intimidation to obtain an outcome.

The Competition and Consumer Act 2010 (Australian Consumer Law)

contains a general conduct provision prohibiting the use of physical force

or undue harassment or coercion in connection with the supply of goods

or services or the payment for goods or services. This provision is

mirrored in the state and territory fair trading legislation.

Misleading and deceptive conduct

Misleading and Deceptive Conduct includes telling lies about the product,

omitting information, or telling half-truths. By definition in the Competition

and Consumer Act 2010 , it refers to any statement, action, advertising,

pictorial image, displays, brochures, silence or any conduct that is

misleading or likely to mislead or deceive clients or potential clients. Within

the scope of this definition it is not necessary to show that a person has

actually been misled or deceived. All that is necessary is to show that any

conduct has the capacity or tendency to do so. It is also necessary to prove

intention to mislead or deceive.

In order to reduce the chance of being misleading or deceptive:

 Do not make exaggerated claims about a credit product

 Use plain English in your oral and written communications

 Avoid the use of jargon

 Tell the whole truth about the product

 If authorised to provide general or personal advice, do not quote

opinions unless genuinely held at the time you give them.

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False representation

False representation refers to untrue statements in connection with the

supply or promotion of goods or services. The Competition and

Consumer Act specifically prohibits false claims about:

 The quality, style, model or history of a good or service

 Whether the goods are new

 The sponsorship, performance characteristics, accessories, benefits and

uses of goods and services

 The availability of repair facilities or spare parts

 The place of origin of a good (for example, where it was made or

assembled)

 A buyer's need for the goods or services

 Any exclusions on the goods and services

 Inaccurate or misleading price comparisons (for example 'was' and

'now' prices)

 Representing that an advertised price is the total price that you will

have to pay when in fact it is not

 Advertising goods and services at a specific price when it is, or should

have been aware, that it would not be able to supply enough of the

good at the price for a reasonable amount of time - this is called bait

advertising.

Exclusive dealings (or third line forcing)

This refers to situations where a supplier restricts a client’s freedom to

deal with others.

For example, exclusive dealing is said to occur if a bank approves a loan

on the condition that the client moves all accounts to that bank. It is not

exclusive dealing for a bank to approve a loan on the condition the client

opens accounts with the bank, but only if it stops the client from also

having accounts elsewhere.

Another example is supplying a product or service or offering a benefit

on condition that a client acquires a different product or service from a

designated third party. This is known as “third line forcing”. An example

of such conduct is where a finance broker promises the client to get

his/her loan approved if he/she uses a particular builder to build his/her

house.

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Penalties

Orders the court can impose include fines and compensation. For

breaches of the restrictive Competition and Consumer Act 2010 the

penalties can be very high.

Fine amounts can be very severe and will vary from time to time with

amendments to legislation.

However it is fair to say that penalties for individuals can be very high

(into the hundreds of thousands) and can be in the millions for

corporations. Penalties may be applied cumulatively for each breach.

If the conduct has badly affected borrowers the orders for compensation

can be greater than the fines and criminal prosecution.

The Australian Consumer Law

On 1 January 2011 the Australian Consumer Law (ACL) commenced.

The ACL includes:

 a national unfair contract terms law covering standard form consumer

and small business contracts;

 a national law guaranteeing consumer rights when buying goods and

services;

 a national product safety law and enforcement system;

 a national law for unsolicited consumer agreements covering door-to-

door sales and telephone sales;

 simple national rules for lay-by agreements; and

 penalties, enforcement powers and consumer redress options

Activity 5 – Misleading representation

The ACCC website also publishes a list of examples of misleading

representations. You can review these examples at

http://www.accc.gov.au/consumers/misleading-claims-

advertising/false-or-misleading-claims

Compile a list of at least three examples of misleading

representations.

Check the model answers section

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The ACL applies nationally and in all States and Territories, and to all

Australian businesses. For transactions that occurred prior to 1 January

2011, the previous national, State and Territory consumer laws continue

to apply.

In June 2015 consumer affairs ministers agreed that Consumer Affairs

Australia and New Zealand (CAANZ) conducted a review of the

Australian Consumer Law.

The Terms of Reference outlined that the review would consider the

effectiveness of the current law and whether the law was sufficiently

flexible to address new and emerging issues. This was the first broad

review of Australia’s national consumer law since it commenced on 1

January 2011.

The review concluded in March 2017 with CAANZ providing consumer

affairs ministers with a Final Report. The report was published on 19

April 2017.

Door-to-door Trading

What is door-to-door trading? Basically, door-to-door trading is where the

seller, as part of his business practice, calls at your home or tries to sell

you goods or services when they are away from their place of business.

Reminder

The National Consumer Credit Protection Act (NCCP) has Australia wide

jurisdiction and ensures that when marketing regulated loans, a credit

representative or licensee cannot:

 Make false or misleading statements.

 Harass a potential customer to sign a loan contract. (This includes

repeated telephone calls or calls outside reasonable business hours)

 Visit a person’s place of residence to try to persuade that person to

obtain credit unless by prior arrangement. This means that they cannot

cold call door to door. If a meeting at a client’s home is required, prior

consent must be made with all parties who will be involved in the loan.

Failure to comply with the above requirements will result in a breach of

the NCCP, which can result in significant penalties.

When can a seller call on you?

Unless the salesperson has an appointment, he or she may call only

during certain times. These calling times differ between states and

territories, you will need to research where you live.

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Unfair contract terms

Australian Consumer law offers protections to consumers against unfair

contract terms and covers;

 Unfair contract terms law covering standard form contracts

 national product safety law and enforcement system

 Guaranteeing consumer rights when buying goods and services, which

replaces existing laws on conditions and warranties

 Common enforcement powers for Australia’s consumer agencies,

including substantiation notices, infringement notices and public

warning notices

 Civil penalties for breaches of the Australian Consumer Law, including

civil pecuniary penalties and disqualification orders

 Powers for courts to order redress for consumers affected by breaches

of the law.

An important feature of the legislation is that it provides consumers who

are not a party to an action with the ability to be granted redress. This

means that a court can determine that a class of people who are

impacted by unfair contract terms (or indeed other sections of the TPA

or ASIC Act) can be granted relief.

For example, if a fee in a single consumer’s contract is declared unfair,

then all consumers charged that fee may be entitled to a refund. It will

therefore be important for lenders to ensure that credit contract terms

are fair, as well as clear, concise and transparent.

Activity 6 – Unfair Contract Terms

The ACCC website also publishes information about unfair contract

terms for businesses. You can review this information at:

http://www.accc.gov.au/consumers/contracts-agreements/unfair-

contract-terms

What is regarded to be unfair?

Check the model answers section

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Personal property securities

Personal property

Under the law (Personal Property Securities Act 2009), personal

property is defined as:

Personal property NOT

goods (including crops and livestock) Land

motor vehicles Building

Planes Fixture

Boats Direct water rights

intellectual property (copyright, patents, designs)

government-issued licences or rights

bank accounts and debts (sometimes known as receivables)

most transactions with a pawnbroker

shares and other financial property

private non-government commercial licenses

serial-numbered property

Serial-number property on the one hand is a particular class of personal

property described in the registration by the serial number only. This

includes the following:

 Motor vehicles

 Aircraft

 Watercraft

 Some intellectual property rights:

 designs

 trademarks

 patents or plant varieties

Security interest is interest in personal property which comes from its

transaction and may be paid in:

 the form of money

 performance of an obligation

 a fixed charge

 a floating charge

 a chattel mortgage

 a conditional sale agreement (including an agreement to sell subject to

retention of title)

 a hire purchase agreement

 a pledge

 a trust receipt

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 a consignment (whether or not a commercial consignment)

 a lease of goods (whether or not a PPS lease)

 an assignment

 a transfer of title

 a flawed asset arrangement

 the interest of a transferee under a transfer of an account or chattel

paper

 the interest of a consignor who delivers goods to a consignee under a

commercial consignment

 the interest of a lessor or bailor of goods under a PPS lease.

Personal property securities register

These interests can be viewed in the PPSR or the Personal Property

Securities Register. It is a noticeboard that makes it easier for financiers not

only to decide whether or not to lend, but also to register using a single

national register. The secured party's goods or assets, in turn, are protected.

Interests can be used as collateral. The business or individual

(customer, debtor, buyer, lessee, consignee or borrower) who offers the

collateral as security is called the grantor because they grant the

security interest over the collateral to the secured party. In most

circumstances the secured party must—in writing and within 10 business

days after receiving the request—supply information about the debt,

confirm the collateral secured, and provide a copy of the security

agreement. They are entitled to charge a reasonable cost for providing

the copy and other information. If the secured party thinks that the fee

is excessive, they can apply to the court for the fee to be reviewed.

Anyone wanting to know about security interests can search the

register. The most common reasons for searching are:

 buyer searching to make sure the goods they are looking to buy do not

have finance owing against them

 liquidator or bankruptcy trustee searching for existing security

interests, because they affect other creditors in the

liquidation/bankruptcy

 business or financier, searching a potential customer as part of their

due diligence process.

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The Personal Property Securities Act 2009

The Personal Property Securities Act 2009 (Commonwealth) created a

nationally uniform set of rules for the registration and enforcement of

security interests in personal property. This introduction of the personal

property securities regulatory regime provided a greater certainty for

both lenders and borrowers:

 lowers the risk for lenders

 improve the efficiency of financing against personal property

 increases competition among providers of finance

 increases the availability and lower the cost of finance for people and

businesses wanting to use personal property as security, in particular

small and medium sized businesses

The Personal Property Securities Amendment (PPS Leases) Bill 2017

enjoins the following:

 leases of an indefinite term will not be deemed to be PPS leases unless

and until they run for a period of more than two years

 security interests that are created prior will receive certain protections

Australian Privacy Act 1988

The Privacy Act 1988 (Privacy Act) regulates how personal information is

handled. The Privacy Act defines personal information as:

…information or an opinion, whether true or not, and whether recorded

in a material form or not, about an identified individual, or an individual

who is reasonably identifiable.

The Privacy Act 1988 is designed, as it relates to lending, to control the

collection, storage and use of credit information of individuals.

Australian Privacy Principles

The thirteen Australian Privacy Principles consist of the following:

1. Open and transparent management of personal information

2. Anonymity and pseudonymity

3. Collection of solicited personal information

4. Dealing with unsolicited personal information

5. Notification of the collection of personal information

6. Use of disclosure of personal information

7. Direct marketing

8. Cross border disclosure of personal information

9. Adoption, use or disclosure of government related identifiers

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10. Quality of personal information

11. Security of personal information

12. Access to personal information

13. Correction of personal information

APP 1 — Open and transparent management of personal

information

1.1 The object of this principle is to ensure that APP entities manage

personal information in an open and transparent way.

Compliance with the Australian Privacy Principles etc.

1.2 An APP entity must take such steps as are reasonable in the

circumstances to implement practices, procedures and systems

relating to the entity’s functions or activities that:

(a) will ensure that the entity complies with the Australian Privacy

Principles and a registered APP code (if any) that binds the entity;

and

(b) will enable the entity to deal with enquiries or complaints from

individuals about the entity’s compliance with the Australian

Privacy Principles or such a code.

APP Privacy policy

1.3 An APP entity must have a clearly expressed and up to date policy

(the APP privacy policy) about the management of personal

information by the entity.

1.4 Without limiting subclause 1.3, the APP privacy policy of the APP

entity must contain the following information:

(a) the kinds of personal information that the entity collects and

holds;

(b) how the entity collects and holds personal information;

(c) the purposes for which the entity collects, holds, uses and

discloses personal information;

(d) how an individual may access personal information about the

individual that is held by the entity and seek the correction of

such information;

(e) how an individual may complain about a breach of the Australian

Privacy Principles, or a registered APP code (if any) that binds the

entity, and how the entity will deal with such a complaint;

(f) whether the entity is likely to disclose personal information to

overseas recipients;

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(g) if the entity is likely to disclose personal information to overseas

recipients—the countries in which such recipients are likely to be

located if it is practicable to specify those countries in the policy.

Availability of APP privacy policy etc.

1.5 An APP entity must take such steps as are reasonable in the

circumstances to make its APP privacy policy available:

(a) free of charge; and

(b) in such form as is appropriate.

Note: An APP entity will usually make its APP privacy policy available

on the entity’s website

1.6 If a person or body requests a copy of the APP privacy policy of an

APP entity in a particular form, the entity must take such steps as are

reasonable in the circumstances to give the person or body a copy in

that form.

APP 2 — Anonymity and pseudonymity

Individuals must have the option of not identifying themselves, or of

using a pseudonym, when dealing with an APP entity in relation to a

particular matter.

2.2 Subclause 2.1 does not apply if, in relation to that matter:

(a) the APP entity is required or authorised by or under an Australian

law, or a court/tribunal order, to deal with individuals who have

identified themselves; or

(b) it is impracticable for the APP entity to deal with individuals who

have not identified themselves or who have used a pseudonym.

APP 3 — Collection of solicited personal information

Personal information other than sensitive information:

3.1 If an APP entity is an agency, the entity must not collect personal

information (other than sensitive information) unless the information

is reasonably necessary for, or directly related to, one or more of the

entity’s functions or activities.

3.2 If an APP entity is an organisation, the entity must not collect

personal information (other than sensitive information) unless the

information is reasonably necessary for one or more of the entity’s

functions or activities.

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Sensitive information

3.3 An APP entity must not collect sensitive information about an

individual unless:

(a) the individual consents to the collection of the information and:

i. if the entity is an agency—the information is reasonably

necessary for, or directly related to, one or more of the entity’s

functions or activities; or

ii. if the entity is an organisation—the information is reasonably

necessary for one or more of the entity’s functions or

activities; or

(b) subclause 3.4 applies in relation to the information.

3.4 This subclause applies in relation to sensitive information about an

individual if:

(a) the collection of the information is required or authorised by or

under an Australian law or a court/tribunal order; or

(b) a permitted general situation exists in relation to the collection of

the information by the APP entity; or

(c) the APP entity is an organisation and a permitted health situation

exists in relation to the collection of the information by the entity;

or

(d) the APP entity is an enforcement body and the entity reasonably

believes that:

i. if the entity is the Immigration Department—the collection of

the information is reasonably necessary for, or directly related

to, one or more enforcement related activities conducted by,

or on behalf of, the entity; or

ii. otherwise—the collection of the information is reasonably

necessary for, or directly related to, one or more of the

entity’s functions or activities; or

(e) the APP entity is a non-profit organisation and both of the

following apply:

i. the information relates to the activities of the organisation;

ii. the information relates solely to the members of the

organisation, or to individuals who have regular contact with

the organisation in connection with its activities.

For permitted health situation, see section 16B.

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Means of collection

3.5 An APP entity must collect personal information only by lawful and

fair means.

3.6 An APP entity must collect personal information about an individual

only from the individual unless:

(a) if the entity is an agency:

i. the individual consents to the collection of the information

from someone other than the individual; or

ii. the entity is required or authorised by or under an

Australian law, or a court/tribunal order, to collect the

information from someone other than the individual; or

(b) it is unreasonable or impracticable to do so.

Solicited personal information

3.7 This principle applies to the collection of personal information that is

solicited by an APP entity.

APP 4 — Dealing with unsolicited personal information

4.1 If:

(a) an APP entity receives personal information; and

(b) the entity did not solicit the information;

the entity must, within a reasonable period after receiving the

information, determine whether or not the entity could have collected

the information under Australian Privacy Principle 3 if the entity had

solicited the information.

4.2 The APP entity may use or disclose the personal information for the

purposes of making the determination under subclause 4.1.

4.3 If:

(a) the APP entity determines that the entity could not have collected

the personal information; and

(b) the information is not contained in a Commonwealth record;

the entity must, as soon as practicable but only if it is lawful and

reasonable to do so, destroy the information or ensure that the

information is de-identified.

4.4 If subclause 4.3 does not apply in relation to the personal

information, Australian Privacy Principles 5 to 13 apply in relation to

the information as if the entity had collected the information under

Australian Privacy Principle 3.

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APP 5 — Notification of the collection of personal

information

5.1 At or before the time or, if that is not practicable, as soon as

practicable after, an APP entity collects personal information about an

individual, the entity must take such steps (if any) as are reasonable

in the circumstances:

(a) to notify the individual of such matters referred to in subclause

5.2 as are reasonable in the circumstances; or

(b) to otherwise ensure that the individual is aware of any such

matters.

5.2 The matters for the purposes of subclause 5.1 are as follows:

(a) the identity and contact details of the APP entity;

(b) if:

i. the APP entity collects the personal information from someone

other than the individual; or

ii. the individual may not be aware that the APP entity has

collected the personal information; the fact that the entity so

collects, or has collected, the information and the

circumstances of that collection;

(c) if the collection of the personal information is required or

authorised by or under an Australian law or a court/tribunal

order—the fact that the collection is so required or authorised

(including the name of the Australian law, or details of the court/

tribunal order, that requires or authorises the collection);

(d) the purposes for which the APP entity collects the personal

information;

(e) the main consequences (if any) for the individual if all or some of

the personal information is not collected by the APP entity;

(f) any other APP entity, body or person, or the types of any other

APP entities, bodies or persons, to which the APP entity usually

discloses personal information of the kind collected by the entity;

(g) that the APP privacy policy of the APP entity contains information

about how the individual may access the personal information

about the individual that is held by the entity and seek the

correction of such information;

(h) that the APP privacy policy of the APP entity contains information

about how the individual may complain about a breach of the

Australian Privacy Principles, or a registered APP code (if any) that

binds the entity, and how the entity will deal with such a

complaint;

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(i) whether the APP entity is likely to disclose the personal

information to overseas recipients;

(j) if the APP entity is likely to disclose the personal information to

overseas recipients—the countries in which such recipients are

likely to be located if it is practicable to specify those countries in

the notification or to otherwise make the individual aware of them.

APP 6 — Use or disclosure of personal information

Use or disclosure:

6.1 If an APP entity holds personal information about an individual that

was collected for a particular purpose (the primary purpose), the

entity must not use or disclose the information for another purpose

(the secondary purpose) unless:

(a) the individual has consented to the use or disclosure of the

information; or

(b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of

the information.

Note: Australian Privacy Principle 8 sets out requirements for the

disclosure of personal information to a person who is not in Australia

or an external Territory.

6.2 This subclause applies in relation to the use or disclosure of personal

information about an individual if:

(a) the individual would reasonably expect the APP entity to use or

disclose the information for the secondary purpose and the

secondary purpose is:

i. if the information is sensitive information—directly related

to the primary purpose; or

ii. if the information is not sensitive information—related to

the primary purpose;

(b) or the use or disclosure of the information is required or

authorised by or under an Australian law or a court/tribunal

order; or

(c) a permitted general situation exists in relation to the use or

disclosure of the information by the APP entity; or

(d) the APP entity is an organisation and a permitted health situation

exists in relation to the use or disclosure of the information by

the entity; or

(e) the APP entity reasonably believes that the use or disclosure of

the information is reasonably necessary for one or more

enforcement related activities conducted by, or on behalf of, an

enforcement body.

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Note: For permitted general situation, see section 16A. For permitted

health situation, see section 16B.

6.3 This subclause applies in relation to the disclosure of personal

information about an individual by an APP entity that is an agency if:

(a) the agency is not an enforcement body; and

(b) the information is biometric information or biometric templates;

and

(c) the recipient of the information is an enforcement body; and

(d) the disclosure is conducted in accordance with the guidelines

made by the Commissioner for the purposes of this paragraph.

6.4 If:

(a) the APP entity is an organisation; and

(b) subsection 16B(2) applied in relation to the collection of the

personal information by the entity;

the entity must take such steps as are reasonable in the

circumstances to ensure that the information is de-identified before

the entity discloses it in accordance with subclause 6.1 or 6.2.

Written note of use or disclosure

6.5 If an APP entity uses or discloses personal information in accordance

with paragraph 6.2(e), the entity must make a written note of the

use or disclosure.

Related bodies corporate

6.6 If:

(a) an APP entity is a body corporate; and

(b) the entity collects personal information from a related body

corporate;

this principle applies as if the entity’s primary purpose for the

collection of the information were the primary purpose for which the

related body corporate collected the information.

Exceptions

6.7 This principle does not apply to the use or disclosure by an

organisation of:

(a) personal information for the purpose of direct marketing; or

(b) government related identifiers.

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APP 7 — Direct marketing

7.1 If an organisation holds personal information about an individual, the

organisation must not use or disclose the information for the purpose

of direct marketing.

Note: An act or practice of an agency may be treated as an act or

practice of an organisation, see section 7A.

Exceptions—personal information other than sensitive

information

7.2 Despite subclause 7.1, an organisation may use or disclose personal

information (other than sensitive information) about an individual for

the purpose of direct marketing if:

(a) the organisation collected the information from the individual; and

(b) the individual would reasonably expect the organisation to use or

disclose the information for that purpose; and

(c) the organisation provides a simple means by which the individual

may easily request not to receive direct marketing

communications from the organisation; and

(d) the individual has not made such a request to the Organisation

7.3 Despite subclause 7.1, an organisation may use or disclose personal

information (other than sensitive information) about an individual for

the purpose of direct marketing if:

(a) the organisation collected the information from:

i. the individual and the individual would not reasonably expect

the organisation to use or disclose the information for that

purpose; or

ii. someone other than the individual; and

(b) either:

i. the individual has consented to the use or disclosure of the

information for that purpose; or

ii. it is impracticable to obtain that consent; and

(c) the organisation provides a simple means by which the individual

may easily request not to receive direct marketing

communications from the organisation; and

(d) in each direct marketing communication with the individual:

i. the organisation includes a prominent statement that the

individual may make such a request; or

ii. the organisation otherwise draws the individual’s attention to

the fact that the individual may make such a request; and

(e) the individual has not made such a request to the organisation.

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Exception—sensitive information

7.4 Despite subclause 7.1, an organisation may use or disclose sensitive

information about an individual for the purpose of direct marketing if

the individual has consented to the use or disclosure of the

information for that purpose.

Exception—contracted service providers

7.5 Despite subclause 7.1, an organisation may use or disclose personal

information for the purpose of direct marketing if:

(a) the organisation is a contracted service provider for a

Commonwealth contract; and

(b) the organisation collected the information for the purpose of

meeting (directly or indirectly) an obligation under the contract;

and

(c) the use or disclosure is necessary to meet (directly or indirectly)

such an obligation.

Individual may request not to receive direct marketing

communications etc.

7.6 If an organisation (the first organisation) uses or discloses personal

information about an individual:

(a) for the purpose of direct marketing by the first organisation; or

(b) for the purpose of facilitating direct marketing by other

organisations;

the individual may:

(c) if paragraph (a) applies—request not to receive direct marketing

communications from the first organisation; and

(d) if paragraph (b) applies—request the organisation not to use or

disclose the information for the purpose referred to in that

paragraph; and

(e) request the first organisation to provide its source of the

information.

7.7 If an individual makes a request under subclause 7.6, the first

organisation must not charge the individual for the making of, or to

give effect to, the request and:

(a) if the request is of a kind referred to in paragraph 7.6(c) or (d)—

the first organisation must give effect to the request within a

reasonable period after the request is made; and

(b) if the request is of a kind referred to in paragraph 7.6(e)—the

organisation must, within a reasonable period after the request is

made, notify the individual of its source unless it is impracticable

or unreasonable to do so.

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Interaction with other legislation

7.8 This principle does not apply to the extent that any of the following

apply:

(a) the Do Not Call Register Act 2006;

(b) the Spam Act 2003;

(c) any other Act of the Commonwealth, or a Norfolk Island

enactment, prescribed by the regulations.

APP 8 — Cross-border disclosure of personal information

8.1 Before an APP entity discloses personal information about an

individual to a person (the overseas recipient):

(a) who is not in Australia or an external Territory; and

(b) who is not the entity or the individual;

the entity must take such steps as are reasonable in the

circumstances to ensure that the overseas recipient does not breach

the Australian Privacy Principles (other than Australian Privacy

Principle 1) in relation to the information.

Note: In certain circumstances, an act done, or a practice engaged in,

by the overseas recipient is taken, under section 16C, to have been

done, or engaged in, by the APP entity and to be a breach of the

Australian Privacy Principles.

8.2 Subclause 8.1 does not apply to the disclosure of personal

information about an individual by an APP entity to the overseas

recipient if:

(a) the entity reasonably believes that:

i. the recipient of the information is subject to a law, or binding

scheme, that has the effect of protecting the information in a

way that, overall, is at least substantially similar to the way in

which the Australian Privacy Principles protect the information;

and

ii. (ii) there are mechanisms that the individual can access to

take action to enforce that protection of the law or binding

scheme; or

(b) both of the following apply:

i. the entity expressly informs the individual that if he or she

consents to the disclosure of the information, subclause 8.1 will

not apply to the disclosure;

ii. after being so informed, the individual consents to the

disclosure; or

(c) the disclosure of the information is required or authorised by or

under an Australian law or a court/tribunal order; or

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(d) a permitted general situation (other than the situation referred to

in item 4 or 5 of the table in subsection 16A(1)) exists in relation

to the disclosure of the information by the APP entity; or

(e) the entity is an agency and the disclosure of the information is

required or authorised by or under an international agreement

relating to information sharing to which Australia is a party; or

(f) the entity is an agency and both of the following apply:

i. the entity reasonably believes that the disclosure of the

information is reasonably necessary for one or more

enforcement related activities conducted by, or on behalf of, an

enforcement body;

ii. the recipient is a body that performs functions, or exercises

powers, that are similar to those performed or exercised by an

enforcement body.

Note: For permitted general situation, see section 16A.

APP 9 — Adoption, use or disclosure of government related

identifiers

Adoption of government related identifiers

9.1 An organisation must not adopt a government related identifier of

an individual as its own identifier of the individual unless:

(a) the adoption of the government related identifier is required or

authorised by or under an Australian law or a court/tribunal

order; or

(b) subclause 9.3 applies in relation to the adoption.

Note: An act or practice of an agency may be treated as an act or

practice of an organisation, see section 7A.

Use or disclosure of government related identifiers

9.2 An organisation must not use or disclose a government related

identifier of an individual unless:

(a) the use or disclosure of the identifier is reasonably necessary for

the organisation to verify the identity of the individual for the

purposes of the organisation’s activities or functions; or

(b) the use or disclosure of the identifier is reasonably necessary for

the organisation to fulfil its obligations to an agency or a State or

Territory authority; or

(c) the use or disclosure of the identifier is required or authorised by

or under an Australian law or a court/tribunal order; or

(d) a permitted general situation (other than the situation referred to

in item 4 or 5 of the table in subsection 16A(1)) exists in relation

to the use or disclosure of the identifier; or

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(e) the organisation reasonably believes that the use or disclosure of

the identifier is reasonably necessary for one or more

enforcement related activities conducted by, or on behalf of, an

enforcement body; or

(f) subclause 9.3 applies in relation to the use or disclosure.

Note 1: An act or practice of an agency may be treated as an act or

practice of an organisation, see section 7A.

Note 2: For permitted general situation, see section 16A.

Regulations about adoption, use or disclosure

9.3 This subclause applies in relation to the adoption, use or disclosure

by an organisation of a government related identifier of an

individual if:

(a) the identifier is prescribed by the regulations; and

(b) the organisation is prescribed by the regulations, or is included

in a class of organisations prescribed by the regulations; and

(c) the adoption, use or disclosure occurs in the circumstances

prescribed by the regulations.

Note: There are prerequisites that must be satisfied before the matters

mentioned in this subclause are prescribed, see subsections 100(2) and (3).

APP 10 — Quality of personal information

10.1 An APP entity must take such steps (if any) as are reasonable in

the circumstances to ensure that the personal information that the

entity collects is accurate, up to date and complete.

10.2 An APP entity must take such steps (if any) as are reasonable in

the circumstances to ensure that the personal information that the

entity uses or discloses is, having regard to the purpose of the use

or disclosure, accurate, up to date, complete and relevant.

APP 11 — Security of personal information

11.1 If an APP entity holds personal information, the entity must take

such steps as are reasonable in the circumstances to protect the

information:

(a) from misuse, interference and loss; and

(b) from unauthorised access, modification or disclosure.

11.2 If:

(a) an APP entity holds personal information about an individual;

and

(b) the entity no longer needs the information for any purpose for

which the information may be used or disclosed by the entity

under this Schedule; and

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(c) the information is not contained in a Commonwealth record; and

(d) the entity is not required by or under an Australian law, or a

court/tribunal order, to retain the information;

the entity must take such steps as are reasonable in the

circumstances to destroy the information or to ensure that the

information is de-identified.

APP 12 — Access to personal information

Access

12.1 If an APP entity holds personal information about an individual, the

entity must, on request by the individual, give the individual access

to the information.

Exception to access—agency

12.2 If:

(a) the APP entity is an agency; and

(b) the entity is required or authorised to refuse to give the

individual access to the personal information by or under:

i. the Freedom of Information Act; or

ii. any other Act of the Commonwealth, or a Norfolk Island

enactment, that provides for access by persons to

documents;

despite subclause 12.1, the entity is not required to give access to

the extent that the entity is required or authorised to refuse to give

access.

Exception to access—organisation

12.3 If the APP entity is an organisation then, despite subclause 12.1,

the entity is not required to give the individual access to the

personal information to the extent that:

(a) the entity reasonably believes that giving access would pose a

serious threat to the life, health or safety of any individual, or to

public health or public safety; or

(b) giving access would have an unreasonable impact on the privacy

of other individuals; or

(c) the request for access is frivolous or vexatious; or

(d) the information relates to existing or anticipated legal

proceedings between the entity and the individual, and would

not be accessible by the process of discovery in those

proceedings; or

(e) giving access would reveal the intentions of the entity in relation

to negotiations with the individual in such a way as to prejudice

those negotiations; or

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(f) giving access would be unlawful; or

(g) denying access is required or authorised by or under an

Australian law or a court/ tribunal order; or

(h) both of the following apply:

i. the entity has reason to suspect that unlawful activity, or

misconduct of a serious nature, that relates to the entity’s

functions or activities has been, is being or may be

engaged in;

ii. giving access would be likely to prejudice the taking of

appropriate action in relation to the matter; or

(i) giving access would be likely to prejudice one or more

enforcement related activities conducted by, or on behalf of, an

enforcement body; or

(j) giving access would reveal evaluative information generated

within the entity in connection with a commercially sensitive

decision-making process.

Dealing with requests for access

12.4 The APP entity must:

(a) respond to the request for access to the personal information:

i. if the entity is an agency—within 30 days after the request

is made; or

ii. if the entity is an organisation—within a reasonable period

after the request is made; and

(b) give access to the information in the manner requested by the

individual, if it is reasonable and practicable to do so.

Other means of access

12.5 If the APP entity refuses:

(a) to give access to the personal information because of subclause

12.2 or 12.3; or

(b) to give access in the manner requested by the individual; the

entity must take such steps (if any) as are reasonable in the

circumstances to give access in a way that meets the needs of

the entity and the individual.

12.6 Without limiting subclause 12.5, access may be given through the

use of a mutually agreed intermediary.

Access charges

12.7 If the APP entity is an agency, the entity must not charge the

individual for the making of the request or for giving access to the

personal information.

12.8 If:

(a) the APP entity is an organisation; and

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(b) the entity charges the individual for giving access to the

personal information;

the charge must not be excessive and must not apply to the making

of the request.

Refusal to give access

12.9 If the APP entity refuses to give access to the personal information

because of subclause 12.2 or 12.3, or to give access in the manner

requested by the individual, the entity must give the individual a

written notice that sets out:

(a) the reasons for the refusal except to the extent that, having

regard to the grounds for the refusal, it would be unreasonable

to do so; and

(b) the mechanisms available to complain about the refusal; and

(c) any other matter prescribed by the regulations.

12.10 If the APP entity refuses to give access to the personal

information because of paragraph 12.3(j), the reasons for the

refusal may include an explanation for the commercially sensitive

decision.

APP 13 — Correction of personal information

Correction

13.1 If:

(a) an APP entity holds personal information about an individual;

and

(b) either:

i. the entity is satisfied that, having regard to a purpose for

which the information is held, the information is inaccurate,

out of date, incomplete, irrelevant or misleading; or

ii. the individual requests the entity to correct the information;

the entity must take such steps (if any) as are reasonable in the

circumstances to correct that information to ensure that, having

regard to the purpose for which it is held, the information is

accurate, up to date, complete, relevant and not misleading.

Notification of correction to third parties

13.2 If:

(a) the APP entity corrects personal information about an individual

that the entity previously disclosed to another APP entity; and

(b) the individual requests the entity to notify the other APP entity

of the correction;

the entity must take such steps (if any) as are reasonable in the

circumstances to give that notification unless it is impracticable or

unlawful to do so.

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Refusal to correct information

13.3 If the APP entity refuses to correct the personal information as

requested by the individual, the entity must give the individual a

written notice that sets out:

(a) the reasons for the refusal except to the

(b) extent that it would be unreasonable to do so; and

(c) the mechanisms available to complain about the refusal; and

(d) any other matter prescribed by the regulations.

Request to associate a statement

13.4 If:

(a) the APP entity refuses to correct the personal information as

requested by the individual; and

(b) the individual requests the entity to associate with the

information a statement that the information is inaccurate, out

of date, incomplete, irrelevant or misleading;

the entity must take such steps as are reasonable in the

circumstances to associate the statement in such a way that will

make the statement apparent to users of the information.

Dealing with requests

13.5 If a request is made under subclause 13.1 or 13.4, the APP entity:

(a) must respond to the request:

i. if the entity is an agency—within 30 days after the request

is made; or

ii. if the entity is an organisation—within a reasonable period

after the request is made; and

(b) must not charge the individual for the making of the request,

for correcting the personal information or for associating the

statement with the personal information (as the case may be).

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Credit Reporting Privacy Code (CR code) 1.2

April 2014

Part IIIA of the Privacy Act 1988 (Privacy Act) regulates consumer credit

reporting in Australia. Part IIIA is supported by the Privacy Regulation

2013 and the Privacy (Credit Reporting) Code 2014 (CR code).

One of the objects of the Privacy Act is to facilitate an efficient credit

reporting system while ensuring that the privacy of individuals is

respected. In recognition of that objective, the laws about credit

reporting are intended to balance individuals’ interest in protecting their

personal information with the need to ensure that credit providers have

sufficient information available to assist them to decide whether to

provide an individual with credit.

The Australian credit reporting system also helps ensure that credit

providers are able to comply with their responsible lending obligations

under the National Consumer Credit Protection Act 2009 administered

by the Australian Securities and Investment Commission (ASIC).

In summary, the key requirements of Part IIIA include:

 Strict limits on the type of information, which can be held on a person's

credit information file by a credit-reporting agency. There are also limits

on how long the information can be held on file

 Limits on who can obtain access to a person’s credit file held by a

credit-reporting agency. Generally only lenders may obtain access and

only for specified purposes. Real estate agents, debt collectors,

employers and general insurers are barred from obtaining access.

 Limits on the purposes for which a lender can use a credit report

obtained from a credit-reporting agency. These include:

 To assess an application for consumer credit or commercial credit

(but they must seek consent if they are using a consumer credit

report to assess an application for commercial credit, or using a

commercial report to assess an application for consumer credit)

 To assess whether to accept a person as guarantor for a loan

applied for by someone else

 To collect overdue payments

 Prohibition on disclosure by lenders of credit worthiness information

about an individual, including a credit report received from a credit-

reporting agency, except in specified circumstances.

 These include:

 Where the disclosure is to another lender and the individual has

given consent

 To a mortgage insurer

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 To a debt collector (but lenders can only give limited information

contained in or derived from a credit report issued by a credit

reporting agency)

 Rights of access and correction for individuals in relation to their own

personal information contained in credit reports held by credit reporting

agencies and lenders.

Credit reporting

Part IIIA adopts terminology, including terms for participants in the credit

reporting system. The term ‘affected information recipients’ (AIRs) is used

to refer to various third parties, such as:

 mortgage insurers

 trade insurers, to whom credit-related personal information is disclosed

by CRBs and credit providers

 a person for the purpose of processing an application for credit made to

the credit provider; or

 a person who manages credit provided by the credit provider for use in

managing that credit;

 professional legal adviser

The recipient of the regulated information should manage it in an open

and transparent way that is clearly expressed in an up-to-date policy. This

should be made available in the appropriate form and is free of charge.

The policy on the Regulated information must contain the following:

 the kinds of regulated information and the purposes for collecting,

holding, using and disclosing this regulated information

 how an individual may access regulated information, complain about at

the failure in compliance, and deal with such a complaint

If a mortgage insurer or trade insurer holds or held personal information

about an individual; and this was disclosed by a credit reporting body or

credit provider, the insurer must not use or disclose this information.

This does not apply though if:

 the mortgage insurer will use it for mortgage insurance purposes

related to the individual

 any purpose arising under a contract for mortgage insurance that has

been entered into between the credit provider and the insurer

 for a trade insurance purpose of the insurer in relation to the individual

 as required or authorised by or under an Australian law, court, or

tribunal order.

Further to the above, certain credit reporting can only to be undertaken

by corporations. It is important to understand the penalties applicable to

brokers who go outside the rules of the privacy legislation.

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Certain credit reporting only to be undertaken by

corporations

A person must not (in the course of trade or commerce) carry on and

act on a corporation’s behalf in the course of carrying on a credit

reporting business unless the person is a corporation.

A person who intentionally contravenes this section is guilty of an

offence punishable, on conviction, by a fine not exceeding $30,000.

In summary, Finance/Mortgage Brokers who act on behalf of a bank are

deemed to represent that bank under the terms of the Privacy Act and are

therefore covered by the same provisions and penalties. It is crucial that

under all circumstances they are conscious of the act and what it means.

Full disclosure of all Privacy Act regulations can be found at:

http://www.oaic.gov.au/privacy/privacy-act/

Positive credit reporting

The Government announced on 2 November 2017 that it would legislate

for a mandatory comprehensive credit reporting regime (CCR). As of 1

July 2018, recording positive credit information on credit histories was

made mandatory for all credit providers. This is intended to allow

lenders to better assess risk using a fuller picture on potential

borrowers’ credit history and could be beneficial for people who have the

means to take on a loan but may have had a few blemishes in the past,

such as one or two missed payments.

What is Negative Credit Reporting?

Negative credit reporting is the system Australia operated under until

March 2014, which was based around only making a note of negative

credit events. Lenders based their assessments of a potential borrower

applicant solely on whether the applicant had any negative reports on

their credit history, such as missed repayments or defaults.

Banks, credit unions and other lenders could access information

concerning a potential customer’s credit applications – but not whether

the application was approved or not. The credit report also included

details of any overdue debts, defaults, bankruptcy, or court judgements.

What is Comprehensive (Positive) Credit Reporting

(CCR)?

Positive credit reporting is Australia’s new credit reporting system aimed

at making it easier for lenders to form comprehensive and balanced

assessments of applicants’ credit histories. The credit report includes

information about current accounts held, what accounts have been

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opened and closed, the date default notices were paid and whether

repayments were met.

While some may raise concerns over the increased amount of personal

financial information being given to banks, the comprehensive credit

reporting system is largely seen as a positive step for consumers and

lenders, encouraging responsible lending practices and enabling

consumers to build a more comprehensive and positive credit report that

could help them get a better deal from their chosen lender.

What does it mean for finance brokers?

With financial institutions providing a more complete picture of borrower

behaviour, it becomes a very effective tool for brokers to have a lot of

the initial discovery in a fraction of the time. More information means

greater efficiency, which in turn can only be a good thing for loan book

growth and client satisfaction.

Perhaps the most immediate and profound change will be around loan

approval, largely because the broker and lenders are both working with

similar data sets. With positive reporting, the broker can work with the

client to identify reparable financial behaviours that will ultimately

improve their creditworthiness — in time securing the loan or negotiating

a better rate. Not only can the relationship be maintained, but it can

build the kind of trust that creates a lifelong client relationship.

Whilst there are many positives for finance broker under the new

regime, there are some procedural changes that should be implemented

including training for finance brokers (Credit representatives) and more

comprehensive information for clients. Finance brokers will be required

to make their clients more aware of the benefits and repercussions of

their credit report through discussion and possible other information

brochures/key fact sheets.

For those clients with an adverse credit history, the business will need to

adopt a system where the brokers can implement a longer term strategy

to guide the client to adopt better credit practices in improving their

chances for a loan and the possibility of a better interest rate. By signing

a privacy form, clients should have the ability to request the finance

broker, as agent, to obtain their credit report before commencing to

application with the lender.

Tax file numbers (TFN)

These Guidelines are issued under Section 17 of the Privacy Act 1988.

They are intended to protect the privacy of individuals by restricting the

use of tax file number information. The Privacy Act provides that a breach

of the Guidelines is an interference with the privacy of an individual. An

affected individual may complain to the Privacy Commissioner. Where

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appropriate the individual may seek compensation. Unauthorised use or

disclosure of tax file numbers is also an offence under the Taxation

Administration Act 1953 with a penalty of up to $10,000 fine, two years

imprisonment, or both.

Use and disclosure of tax file number information

The tax file number is not to be used or disclosed to establish or confirm

the identity of an individual for any purpose not authorised by taxation,

personal assistance law or superannuation law (whether directly or

indirectly) to match personal information in particular. Matching of tax

file number information is not to be undertaken by government

agencies, employers, investment bodies or the trustees of

superannuation funds for any purpose not authorised by taxation,

assistance agency or superannuation law.

If an individual provides information to a TFN recipient for a purpose not

connected with the operation of a taxation, personal assistance or

superannuation law and that information incidentally contains a TFN, the

individual providing the information may remove the TFN.

The collection, use and disclosure of TFNs by investment bodies to build

up a database or to cross-match personal information is not permitted.

The legal basis for collection must always be made clear, including the

law (or laws) that allows the investment body to request or collect the

TFN and the purpose for which the TFN is requested or collected.

The Commissioner of Taxation and APRA identify the types of entities

who may request TFNs under taxation and superannuation law. The

main way they make this information available is by maintaining a list of

those people, agencies, organisations and other entities allowed to ask

for and receive TFNs, what they will do with it and who they can disclose

it to. This list is known as the Classes of lawful tax file number recipients

document, and it is published on the OAIC website.

Examples of lawful TFN recipients include:

 the ATO

 DHS is an agency that has authority to request a TFN from recipients of

personal assistance payments such as pensions, benefits and

allowances

 an employer

 banks and other financial institutions

 superannuation funds

 higher education providers

 tax agents, accountants and solicitors

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It should also be clear that an investor who is exempt from quoting a

TFN can claim that exemption rather than quoting. Information on the

circumstances where an investor can claim an exemption from quoting a

TFN should clearly state which taxation law authorises the collection of

TFN information and that quoting a TFN is optional.

Generally, investment bodies need to ask for an individual’s TFN

whenever each new investment is taken out. However, investment

bodies must allow the individual to choose to quote the TFN in the first

instance in relation to some investments. When inviting an investor to

quote their TFN, a clear explanation should be provided to the individual

that the TFN will be automatically used for future investments within the

terms of the facility, unless the investor indicates at any time that they

do not wish for their TFN to be applied to a particular investment.

SPAM

The Australian Communications & Media Authority (ACMA) is responsible

for enforcing the Spam Act 2003, which prohibits the sending of

‘unsolicited commercial electronic messages’ (known as Spam) with an

'Australian link'. A message has an Australian link if it originates or was

commissioned in Australia, or originates overseas but was sent to an

address accessed in Australia.

Definition of spam

The Spam Act 2003 refers to spam as ‘unsolicited commercial electronic

messaging’.

 The legislation covers more than just e-mails: mobile text messaging

and other electronic messaging is also covered.

 Voice to voice telemarketing is not covered.

 A key attribute of the messaging covered by the legislation is that it is

commercial in nature - it either offers a commercial transaction, or

directs the recipient to a location where a commercial transaction takes

place.

 To be considered spam, the message must have been sent without the

recipient's consent. Consent may be expressly given, or may be

inferred from the behaviour or business or other relationships of the

recipient.

 There is no reference to bulk messaging - a single unsolicited

commercial electronic message could be Spam, although enforcement

would be unlikely.

Of more recent times Spam is being used predominantly for the

marketing of alleged quick money making opportunities the supply of

so-called medical enhancements.

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Accurate information about message originator

The Spam Act 2003 requires that all commercial electronic messaging

contain accurate information about the message's originator. This will

most commonly be the actual sender of the message, but may be the

person or organisation that authorised the sending of the message. The

information must be reasonably likely to remain correct for a period of

30 days after the sending of the message.

Functional unsubscribe facility

The Spam Act 2003 requires that all commercial electronic messaging

contain a functional ‘unsubscribe’ facility to allow people to opt out from

receiving messages from that source in the future. The unsubscribe

facility must be reasonably likely to be able to receive and act on

unsubscribe messages for a period of 30 days after the sending of the

message. A request to opt out must be honoured within five working

days. The acceptable forms of the facility will be specified by regulation

and may vary between technologies.

Formal warnings

The ACMA may choose to issue a formal warning, rather than issue an

infringement notice or initiate a full court proceeding. This would

typically be done where the ACMA was satisfied that the contravention

was largely inadvertent and would not be repeated, or in other cases

where a warning would suffice to change the contravening behaviour.

Infringement notices

The ACMA may choose to issue infringement notices for contraventions

of the legislation, instead of initiating a full court proceeding. A person

who receives an infringement notice may refuse to pay, but would then

be subject to a court action, where, if the contravention was proven,

they could be penalised at a higher rate.

Infringement notices and penalties

The infringement notice penalties for sending spam: Fine amounts for

individuals can be very severe and will vary from time to time with

amendments to legislation.

Penalties of up to $1.8 million a day apply to repeat corporate offenders.

The penalty units referred to in the Spam Act are equal to $180 each. For

example the penalty under section 25(5)(b) of the Spam Act for a

company with a previous record of spamming and who sent two or more

spam messages on a given day without consent is a maximum fine of

10,000 penalty units. This equates to a maximum penalty of $1,800,000.

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Cyber Security Strategy The Australian Cyber Security Strategy has been developed over 18

months of intense consultation with more than 190 organisations and

across business, government and academia, in Australia and overseas.

This is a national strategy; the government and the private sector need

to work in partnership to set the strategic agenda for Australia and co-

design initiatives within the strategy.

This strategy establishes five themes of action for Australia’s cyber

security to 2020:

1. A national cyber partnership: Between government, researchers and

business including regular meetings to strengthen leadership and

tackle emerging issues.

2. Strong cyber defences: To better detect, deter and respond to

threats and anticipate risks.

3. Global responsibility and influence: Working with our international

partners through our new Cyber Ambassador and other channels to

champion a secure, open and free internet while building regional

cyber capacity to crack down on cyber criminals and shut safe

havens for cybercrime.

4. Growth and innovation: Helping Australian cyber security businesses

to grow and prosper, nurturing our home-grown expertise to

generate jobs and growth, and support new business models,

markets and investment for all businesses that are enabled by

secure products and services.

5. A cyber smart nation: Creating more Australian cyber security

professionals by establishing Academic Centres of Cyber Security

Excellence in universities, fostering skills throughout the education

system and raising awareness of cyber security to enable all

Australians to be secure online

CERT Australia works closely with other Australian Government agencies

and international CERTs, to provide Australian businesses with the best

advice possible, as soon as possible. It is also a key element in the

Australian Cyber Security Centre, sharing information and working

closely with the Australian Security Intelligence Organisation, the

Australian Federal Police, the Australian Signals Directorate, the Defence

Intelligence Organisation and the Australian Criminal Intelligence

Commission

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Money laundering and terrorism financing

‘Money laundering’ is a term used to describe the way some criminals

use the financial system to hide or disguise the proceeds of crimes.

The process of money laundering enables criminals to distance

themselves from how the money was generated and makes the tracing

of the funds and prosecution difficult. The ‘laundered’ money is used for

further criminal activity or for legitimate business purposes.

Terrorist groups also disguise the source, purpose and destination of

funds. The term ‘terrorism financing’ includes the financing of terrorist

acts, and of terrorists and terrorist organisations. The financing of

terrorism may include the provision of any kind of asset in any form

including, but not limited to: bank credits, travellers’ cheques, bank

cheques, money orders, share securities, bonds, drafts and letters of

credit. It may be that these come from ‘dirty’ or ‘clean’ funds or from

other assets.

Terrorism financing and money laundering are both serious crimes.

The purpose of the AML/CTF Act is to regulate financial transactions by

establishing an audit trail or transaction history, which will help detect

criminal activity and provide evidence for investigation.

There are three stages to laundering money:

 Illegal money is deposited into the financial system. This can be done in

a variety of ways such as splitting large amounts of cash into smaller

sums for direct deposit into bank accounts, or by buying instruments

such as cheques or money orders, which are then deposited into

accounts at other locations.

 Once the funds are in the financial system, the money launderer might

carry out a series of transfers to distance the sums from their original

source. The criminal might also try to disguise the transfers as

payments for goods or services.

 The money launderer moves the funds into the legitimate economy, for

example by buying real estate, business ventures or assets.

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The Anti-Money Laundering and Counter-Terrorism

Financing Act 2006 (AML/CTF Act)

The AML/CTF Act was passed on 12 December 2006. The legislation

forms part of a package that will implement reforms to prevent and

detect money laundering and terrorism financing and bring Australia into

line with international standards.

Scope of the AML/CTF Act

The AML/CTF Act covers the financial sector, gambling sector and bullion

dealing and any other professionals or businesses that provide particular

‘designated services’. The AML/CTF Act imposes a number of obligations

on businesses when they provide these designated services. These

obligations include:

 Customer due diligence (identification, verification of identity and

ongoing monitoring of transactions)

 Reporting (suspicious matters, threshold transactions and international

funds transfer instructions)

 Record keeping, and

 Establishing and maintaining the AML/CTF program.

Under the AML/CTF Act, businesses determine the way in which they

meet their obligations based on their assessment of the risk of a

customer facilitating money laundering or terrorism financing.

The AML/CTF Act sets out general principles and obligations. Details of

these obligations on businesses are set out in subordinate legislative

instruments known as the AML/CTF Rules.

The role of Australia’s financial intelligence unit, The Australian

Transaction Reports and Analysis Centre (AUSTRAC)

(www.austrac.gov.au) has been expanded to include national regulation

of the AML/CTF Act. It has supervisory, monitoring and enforcement

control over a diverse range of business sectors.

In order not to delay the implementation of the AML/CTF Act 2006, the

Australian Government made a decision to address technical

amendments in subsequent legislation. The Anti-Money Laundering and

Counter-Terrorism Financing Amendment Act 2007 make these

amendments.

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Requirements under the AML/CTF Act

The AML/CTF reforms impose obligations on businesses or individuals

who offer services that could be exploited to launder money or to

finance terrorism. Examples of these businesses or individuals are

financial institutions, banks, credit unions, building societies, hire

purchase companies, foreign exchange dealers, or fund managers.

Other specialised operations such as bullion dealers, asset managers,

custodial service companies, gambling enterprises and bookmakers are

also covered.

Under the new regulations, these businesses or individuals are required

to comply with the AML/CTF obligations only when they provide

‘designated services’.

Designated services include:

 Opening an account

 Accepting money on deposit

 Making a loan

 Issuing a debit card

 Issuing travellers’ cheques, and

 Sending and receiving instructions on electronic funds transfers.

The new obligations for businesses include:

 Customer due diligence (identification, verification of identity and

ongoing monitoring of transactions)

 Reporting (suspicious matters, threshold transactions and international

funds transfer instructions)

 Record keeping

 Establishing and maintaining the AML/CTF program.

Reporting entities are required to develop ‘risk-based’ systems and

controls. This risk-based approach allows flexibility in the assessment

and implementation of measures to reduce the risk of money laundering

and terrorism financing. The key to the new reforms is for the reporting

entity to know their customer.

Impact on business and reporting obligations

Businesses that provide designated services under the AML/CTF Act may

be required to collect customer information to protect the business from

illegal criminal activity.

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The types of businesses providing these services include:

 Banks, credit unions, building societies, leasing and hire purchase

companies, issuers of traveller’s cheques, foreign exchange dealers,

asset management companies, remittance dealers, financial planners

who arrange for the issue of financial products, life insurers,

superannuation funds, custodial service companies, cash couriers and

securities dealers

 The gambling sector, including casinos, bookmakers, tabs, clubs and

pubs, internet and electronic gaming service providers, and

 Bullion dealers.

The Australian Government’s Attorney-General’s Department lists the

new obligations on reporting entities as follows:

 Requirements to monitor customer transactions during their provision

of the designated service to identify, mitigate and manage the risk that

the provision of the designated service may involve or facilitate money

laundering or terrorism financing.

 Extension of existing significant cash transaction reporting obligations

to some non-cash transactions such as e-currency.

 Requirements to supply originator information in domestic and

international funds transfer instructions (subject to certain exceptions).

 Requirements to report movements of bearer negotiable instruments to

AUSTRAC if requested to do so by a police officer or customs officer.

There is no threshold for the bearer negotiable instruments reporting

requirement.

 Expansion of existing ‘suspicious transaction’ reporting obligations to

‘suspicious matter’ reporting as not all designated services under the

AML/CTF Act involve transactions.

Under the Financial Transactions Reports Act 1988 (FTR Act), customers

are required to provide 100 points of identification using documents

such as a passport, drivers licence and utilities notices to make up the

required points. Alternatively, they can have their identity confirmed by

an ‘acceptable referee’.

AML/CTF legislation requires businesses to determine the appropriate

level of required identification and verification subject to the money

laundering and terrorism financing risk. In addition, the identification

obligations are extended to a wider number of services than currently

covered under the FTR Act.

AML/CTF legislation obligations also extend to the monitoring of

customer transactions during the provision of the designated service.

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Identification requirements

To verify the identity and existence of a person from independent

documents (and to confirm they are who they say they are), there is a

requirement to sight an original or certified copy of the following

documents:

 A Primary Photographic Identification Document or, (if a primary

photographic identification document is not owned by the individual

being identified)

 A Primary Non-Photographic Identification Document AND a Secondary

Identification Document.

There is also a requirement to verify the customer’s full name, and

either the customer’s date of birth or the customer’s residential address

recorded in the application to the identification document.

Documents written in a language that is not English must be

accompanied by an English translation prepared by an accredited

translator.

The list of acceptable identification documents are:

 A ‘Primary Photographic Identification Document’

 A ‘Primary Non-Photographic Identification Document’

 A ‘Secondary Identification Document’

Primary Photographic Identification Document

The following constitute primary photographic documents:

 Current Australian Driver’s Licence containing the person’s photograph

 Australian Passport that is current or expired within the preceding two

years

 Card issued under the State or Territory, for the purpose of proving a

person’s age, containing a photograph of the person in whose name the

card is issued

 Foreign passport (or similar international travel document) that

contains the persons photograph and signature.

Primary Non-Photographic Identification Document

The following constitute primary non-photographic documents:

 Australian birth certificate (or birth extract)

 Australian citizenship certificate

 Pension card issued by Centrelink

 Health card issued by Centrelink.

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Secondary Identification Document:

The following constitute secondary identification documents:

 An original notice issued to an individual of a kind listed below, that

contains the name of the individual and his/her residential address:

 Issued by the Commonwealth or a State or Territory within the

preceding 12 months that records the provision of financial

benefits

 Issued by the Australian Taxation Office within the preceding 12

months, that records a debt payable to or by the individual

 Issued by a local government body or utilities provider within the

preceding three months, that records the provision of services to

that address or to that person.

 In relation to a person under the age of 18, a notice that:

 Was issued to a person by a school principal within the preceding

three months

 Contains the name of the person and his or her residential

address

 Records the period of time that the person attended at the

school.

 Foreign driver’s licence that contains a photograph of the person in

whose name it was issued

 National Identity Card issued by a foreign government containing a

photograph and signature of the person in whose name the card is

issued.

Obligations of finance brokers

Financial institutions are required to advise their accredited brokers of

their policies and procedures for identifying customers. All finance

brokers need to be aware of the legislation and comply with AML/CTF

training requirements.

Finance brokers who are holders of an Australian Financial Services

(AFS) licence and only provide the designated service specified in

section 6 of the Anti-Money Laundering and Counter Terrorism Financing

Act 2006 (AML/CTF Act), are required to comply with suspicious matter

reporting (SMR) obligations.

Likewise, finance brokers who provide one or more other designated

services and are not merely acting as agents of another reporting entity,

are obliged to report suspicious matters to AUSTRAC.

Generally the responsibility for reporting a suspicious matter to AUSTRAC

rests with the reporting entity (lender) not the agent (finance broker).

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Finance brokers who are not agents but are providing services to lenders

under a contractual agreement do not have any SMR obligations under

the AML/CTF Act, unless they themselves are providing one or more of

the specified services designated in the Act.

The Anti-Money Laundering and Counter-Terrorism Financing Rules

(AML/CTF Rules) were updated in June 2014 and imposed a number of

new obligations on the financial industry

AML3

These new customer due diligence compliance requirements were

required to be met by the 1st January 2016. Key changes to the

obligations require financial institutions and their third party referrers to

have greater visibility of ownership of non-individual customers (i.e.

companies, partnerships and trusts) to determine who ultimately

benefits from any profits generated.

The three areas of significant change in the AML3 standard pertain to

enhanced understanding of:

 beneficial owners;

 Politically Exposed Persons (PEP’s); and

 settlors of trusts.

Activity 7 – The Anti-Money Laundering and

Counter-Terrorism Financing Act (AML/CTF Act)

The AUSTRAC website offers an Introduction to AML/CTF:

http://www.austrac.gov.au/businesses/legislation/amlctf-act

What is the purpose of this legislation?

Check the model answers section

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Other legislation

As a financial services provider you should also be aware of other

legislation such as:

 Anti-discrimination law

 In New South Wales, the Real Property Act.

Anti-discrimination law

Laws about discrimination are made at both the Commonwealth and the

State and Territory level. These laws include a range of grounds on which

individuals may lodge a complaint including discrimination because of

race, sex, disability and age. Individuals can lodge complaints about

discrimination, harassment and bullying based on these grounds.

The Australian Human Rights Commission is an independent statutory

organisation to protect and promote the human rights of all people in

Australia. It is responsible for administering the following federal laws:

 Age Discrimination Act 2004

 Disability Discrimination Act 1992

 Human Rights and Equal Opportunity Commission Act 1986

 Sex Discrimination Act 1984

 Racial Discrimination Act 1975.

It is against the law to discriminate, harass or bully on the grounds of:

 Sex, including pregnancy, marital status, family responsibilities and

sexual harassment

 Disability, including temporary and permanent disabilities, physical,

intellectual, sensory, psychiatric disabilities, diseases or illnesses,

medical conditions, work related injuries, past, present and future

disabilities, and association with a person with a disability

 Race, including colour, descent, national or ethnic origin, immigrant

status and racial hatred

 Age, covering young people and older people, or

 Sexual preference, criminal record, trade union activity, political

opinion, religion or social origin (in employment only).

With regard to lending, a borrower should not be discriminated against

in their enquiries nor denied credit on the grounds listed above. This

means a borrower’s application must be considered on its merits rather

than on personal attributes. You should only ask a borrower questions

that are relevant to assessing their eligibility and suitability for the

financial product/service being offered.

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Real Property Act (NSW)

On 14 May 2009 the Real Property and Conveyancing Legislation

Amendment Act 2009 (NSW) was passed. This amended legislation

makes several key changes to the Real Property Act (RPA) and

Conveyancing Act, both of which significantly impact lenders.

Borrower identification requirement

Lenders are required to take ‘reasonable steps’ to ensure the person

who signs the mortgage is the mortgagor using the 100 points ID

scheme.

Record keeping

The lender must keep records of the steps taken to verify the

mortgagor’s identity and copies of the identification documents must be

sighted for 7 years from the date of registration.

Identification requisitions

The Registrar-General (RG) is empowered to make requisitions of the

lender to determine whether or not the identification requirements have

been complied with. These requisitions can be made before or after

registration.

Failure to take reasonable steps to identify the mortgagor can result in

the RG cancelling the registration of the mortgage. This can also occur

where the lender knowingly allowed a forged mortgage to be registered.

Under ‘constructive notice’ the RG can point to the lender and say, “He

ought to have known about the fraud based on the material he had

before him”.

Confirmation of identity under the NSW Real Property Act

1900 No 25

A recent change to the Real Property Act 1900 recommends:

 that before presenting a mortgage for lodgement, the mortgagee must

take reasonable steps to ensure that the person who executed the

mortgage is, or is to become, the registered proprietor of the land to be

mortgaged, and

 that a witness to a land dealing or caveat must have known the person

signing the dealing or caveat for more than 12 months or must have

taken reasonable steps to ensure the identity of that person.

http://www.legislation.nsw.gov.au/maintop/view/inforce/act+25+1900+

cd+0+N

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