Guidance for financial counsellors
From 1 July 2010, ASIC took over the regulation of consumer credit and finance broking under the National Consumer Credit Protection Act 2009 (National Credit Act).
This information sheet (INFO 112) explains the effects of the new credit licensing regime on businesses and services that provide assistance to consumers in financial difficulty. It covers:
For detailed guidance on this issue see Where can I get more information? at the end of this page.
These are agencies that provide free and independent financial counselling and advocacy services to people in financial difficulty.They're generally community based non-government organisations funded by government or community sector organisations such as welfare organisations.
Debt advice businesses
These are also known as 'debt management services'. There are two types of business that fall into this category:
1. Businesses that establish and/or administer repayment arrangements between debtors and creditors including Part IX debt agreements under the Bankruptcy Act 1966 (Bankruptcy Act). These businesses may charge a set-up fee and an ongoing percentage-based fee to administer the agreement.
2. Businesses that assist consumers with budgeting, negotiation with creditors, and organising informal repayment arrangements outside the bankruptcy framework. This may include preparing hardship applications or assisting debtors to refinance loans. These businesses may charge a direct fee or a commission from the balance of the debt a consumer repays. They may also refer a consumer to a registered Part IX debt agreement administrator.
Note: These services are distinct from licensed financial institutions such as banks or credit unions that may offer repayment arrangements to their indebted customers. In some cases, financial institutions may refer indebted customers to a financial counselling service for independent assistance. Financial institutions may also fund or operate financial literacy programs to perform community outreach and education activities which may include working with financial counsellors.
If you are providing assistance to consumers in financial difficulty you may be engaging in 'credit activities' and may need a credit licence. See ASIC's Regulatory Guide 203 Do I need a credit licence? (RG 203).
Depending on the nature of the service you provide to indebted consumers, different laws apply. For example, you may be:
regulated by Australian Financial Security Authority (AFSA) (formerly ITSA) under the Bankruptcy Act
regulated as a provider of credit assistance under the National Credit Act requiring a credit licence
regulated under the Corporations Act 2001 (Corporations Act) requiring an Australian financial services licence
an exempt service operating with the benefit of an exemption from the licensing requirements under the National Credit Act
an exempt service operating with the benefit of ASIC Relief from the licensing requirements of the Corporations Act.
Obligations under the National Credit Act
A business, regardless of the kind of service it provides, must be aware of all of the legal requirements – including those outlined in the National Credit Act – that protect consumers that use its services.
Exemptions from the credit licensing requirements
Financial counselling agencies that engage in credit activity as part of a financial counselling service are exempt from the requirement to hold a credit licence.
The conditions applicable to financial counselling services that rely on this exemption are set out in the National Consumer Credit Protection Regulations 2010. The Regulations also set out a range of exemptions applying to other providers including registered Part IX debt agreement administrators, public trustees, receivers and liquidators.
The key conditions applying to financial counselling services relate to remuneration and training:
Note on the conditions and existing ASIC relief
These are the same conditions that apply to financial counselling agencies exempt under existing ASIC relief from holding an Australian Financial Services Licence. This relief allows the exempt service to provide financial advice in relation to a limited range of financial products such as deposits, general insurance and superannuation.
ASIC may review the operation or effectiveness of any relief instrument from time to time; however, it is up to all businesses to ensure they comply with the terms of a licence or any exemption from the requirement to hold a licence.
Click here for the latest information on credit and to download copies of the relevant regulatory guides
Visit http://consumercredit.treasury.gov.au/content/legislation.asp for National Credit Act and Regulations
This is Information Sheet 112 (INFO 112), reissued in September 2013. Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.
Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice. Omission of any matter in this information sheet will not relieve a company or its officers from any penalty incurred by failing to comply with the statutory obligations of the National Credit Act.
You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases your particular circumstances must be taken into account when determining how the law applies to you.