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21-162MR Debt management licensing regime has commenced
From 1 July 2021, providers of debt management services (including firms offering ‘debt negotiation’ or ‘credit repair’ services) are regulated under the National Consumer Credit Protection Act 2009 (National Credit Act).
This means providers of these services must:
- hold a credit licence with an authorisation that covers those services (or act as a representative of such an authorised licensee); or
- be operating in accordance with the transitional arrangements, specifically that by 30 June 2021 they:
- applied to ASIC for a credit licence or variation that covers this activity (or have arrangements to act as a representative of a provider that has applied for a licence to cover this activity); and
- are a member of the Australian Financial Complaints Authority (AFCA).
If providers of debt management services have not met these requirements, they must cease engaging in these activities.
The transitional arrangements only apply while ASIC is considering the application for a credit licence or variation. If no licence is granted the provider must cease engaging in these activities.
ASIC will be closely monitoring compliance with the new laws, including identifying unlicensed conduct and taking action where necessary.
ASIC has published a list of persons/entities that have applied for a credit licence or a variation by 30 June 2021 (seeking the ‘debt management services’ authorisation) and were members of AFCA on that date.
The list reflects licence applications that have not yet been determined by ASIC and where the person/entity has consented to ASIC publishing details of their application.
If you are dealing with a person or entity that provides debt management services, this list may help you to decide whether they can provide those services under the transitional arrangements. You may also need to check on AFCA’s website to determine whether the person or entity has current AFCA membership.
ASIC reminds credit licensees that under section 31 of the National Credit Act they are prohibited from conducting business with unlicensed persons.
On 29 April 2021, the National Consumer Credit Protection Amendment (Debt Management Services) Regulations 2021 were made, which prescribe certain debt management services as a ‘credit activity’ for the purposes of the National Credit Act.