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ASIC Licencing Guide

  

Lodging your application

RG 202.79
You should review your registration application carefully before you or your lodging agent submit it. Make sure your answers are correct. Once your application has been submitted you won’t be able to change your answers.

RG 202.80
If you include a false or misleading statement in, or omit a material matter from, your application, we can refuse your application. It is also a criminal offence to make false or misleading statements in, or omit a material matter from, your application.

RG 202.81
When you are satisfied that your registration application is complete, the system will lead you through steps to submit it.

RG 202.82
Your registration application will be lodged after you have submitted it online and we have accepted it for lodgement.

Declarations

RG 202.83
To complete your application, you must make declarations that:
(a) you have submitted your application under the terms and conditions of the ASIC Electronic Lodgement Protocol; and
(b) the information you have included in your application is complete, accurate and true, to the knowledge of the person who is making the declaration.

RG 202.84
These declarations must be made by:
(a) you, as the applicant; and
(b) each director and secretary, if you are a company;
(c) each partner, if you are a partnership; or
(d) each trustee, if you are a multiple trustee.

RG 202.85
If the application is submitted by a lodging agent, an additional declaration will be displayed that:
(a) under clause 16.2 of the ASIC Electronic Lodgement Protocol, the person is authorised to submit the application on behalf of the applicant; and
(b) the person is authorised by each of the people referred to in the main declarations to make those declarations on their behalf.

RG 202.86
Each of the declarations will be taken to have been made by each of the people listed in the declaration when you click on the ‘Submit’ button.

RG 202.87
You will not be required to physically sign these declarations, or obtain signatures of the relevant persons. However, you will need to provide the name of the person who submits the application for you, and the capacity that they act in. For example, if you are:
(a) a natural person applicant and submit your own application, you should enter your own name and select the capacity ‘natural person’;
(b) a company applicant and a director or an employee submits the application on your behalf, that person’s name and capacity should be entered.

RG 202.88
Before the application is submitted, you should ensure that:
(a) you provide the person completing the application with all information necessary to complete it;
(b) you review the application to ensure that the information in it is complete, accurate and true; and
(c) each person who will be taken to have made a declaration when the application is submitted has authorised the person submitting the application to make that declaration on their behalf.

What if my application is refused? 

RG 202.93
We must refuse your registration application if you do not make the required statements about membership of an approved EDR scheme and past conduct or history. For this reason, you cannot complete or submit your online application without making these statements.

RG 202.94
We can also refuse your application if we have reason to believe that it is false in a material particular or materially misleading, or there is an omission of a material matter. For example, if you state that you are a member of an approved EDR scheme and this is not true, your application may be refused.

RG 202.95
If we refuse to register you, we will give you the reasons for that decision. You will not be given an opportunity for a hearing before a decision is made on your application. However, you can seek review of the decision by the Administrative Appeals Tribunal.

RG 202.96
If your application is refused and you address the matter that resulted in the refusal, you can apply again for registration.

What obligations do I have after I am registered?

Key points
Once you are registered, you will have general conduct obligations under the Transitional Act: see RG 202.97–RG 202.101.
You will also have obligations under parts of the National Credit Act: see RG 202.102–RG 202.119.

General conduct obligations of registered persons

RG 202.97
As a registered person, you will have general conduct obligations that provide important protections for consumers by requiring:
(a) compliance with the credit legislation and the conditions on your registration;
(b) that clients are not disadvantaged by any conflicts of interest that arise wholly or partly in relation to credit activities engaged in by you or your representatives; and
(c) that credit activities are engaged in efficiently, honestly and fairly.
Note: See item 16 of Sch 2 of the Transitional Act.

RG 202.98
These general conduct obligations also apply to credit licensees under the National Credit Act (together with some additional obligations). Our policy on the general conduct obligations of credit licensees is set out in Regulatory Guide 205 Credit licensing: General conduct obligations (RG 205). To the extent that the same or similar obligations apply, we will apply the policy in RG 205 to the general conduct obligations of registered persons.
Note: RG 205 will be released later in December 2009.

RG 202.99
Most of the general conduct obligations of registered persons apply from 1 July 2010 rather than when your registration is granted. However, you should make sure that you understand your obligations and put in place appropriate systems and processes to meet them.

RG 202.100
The general conduct obligation to be a member of an approved EDR scheme starts before 1 July 2010—you must become a member of an approved EDR scheme before you apply for registration.
Membership of an approved EDR scheme allows consumers to resolve consumer credit disputes outside the court system, at no cost to the consumer.

Authorisation of credit representatives

RG 202.106
Another person can engage in credit activities on your behalf under your registration if they are:
(a) your employee or director;
(b) an employee or director of a company that is your related body corporate; or
(c) a credit representative authorised by you.

RG 202.107
You have an obligation to take reasonable steps to ensure that your representatives comply with the credit legislation. You are liable for the conduct of your representatives.
Note: See item 16(3)(d) of Schedule 2 of the Transitional Act and Div 4 of Part 2-3 of the National Credit Act (as applied to registered persons under item 33(1) of Schedule 2 of the Transitional Act).

How do I authorise a credit representative?

RG 202.108
You can only authorise another person as a credit representative after you have been registered. Once you are registered, you can start to authorise other people as credit representatives during the registration period. However the authorisation, and your obligations under the credit legislation in relation to these credit representatives, will be taken to start on 1 July 2010.

RG 202.109
To authorise a person as a credit representative, you must give them a written notice that specifies the credit activities they can engage in on your behalf. You also need to make sure that the person you authorise meets the requirements set out in the credit legislation. For example, the person must be a member of an approved EDR scheme and they must not be a person that is banned from engaging in credit activities. The person must meet these requirements by the date that they are authorised (or by 1 July 2010 for credit representatives that are authorised during the registration period).
Note: For more information on the requirements that must be met by a person for them to be eligible for authorisation as a credit representative, see s64(5) and 65(6) of the National Credit Act. 

RG 202.110
You need to notify us that you have authorised the person by lodging Form CS03 Notifications about credit representatives within 15 business days of the authorisation. For credit representatives that you authorised during the registration period, the date of authorisation is taken to be 1 July 2010.

RG 202.111
If you revoke the authorisation, or if certain details of the credit representative change (e.g. if you change the credit activities they are authorised to engage in on your behalf), you need to notify us by lodging Form CS03 within 10 business days of the revocation or change. 

What happens to my credit representatives if I get a credit licence?

RG 202.112
If you are granted a credit licence, the credit representatives that you authorised as a registered person will be taken to be credit representatives you have authorised as a licensee. You will not need to give these credit representatives a new authorisation, nor will you need to notify us again about their appointment. However, if you revoke their authorisation, or if certain details of your credit representatives change after you become a licensee, you will need to notify us of those changes by lodging Form CL31 Revoke a credit representative or Form CL32 Vary the details of a credit representative within 10 business days of the revocation or change.

Financial records and audit reports

RG 202.113
As a registered person, you must maintain financial records that correctly record and explain the transactions and financial position of your business of engaging in credit activities, and comply with requirements in relation to the keeping and location of those records.

RG 202.114
If we ask for an audit report about credit activities engaged in by you or your representatives, you are required to give the auditor:
(a) access to your financial records and other credit books; and
(b) any assistance and explanations they ask for in relation to the report.

Responsible lending obligations

RG 202.115
The responsible lending obligations in Ch 3 of the National Credit Act apply to credit providers, lessors and people who provide credit assistance in relation to credit contracts. These obligations are aimed at better informing consumers and preventing them from entering into unsuitable credit contracts. 

RG 202.116
For authorised deposit-taking institutions (ADIs) and registrable corporations under the Financial Sector (Collection of Data) Act 2001, the responsible lending obligations apply from 1 January 2011.

RG 202.117
For other persons:
(a) the requirement not to arrange or provide credit that is unsuitable will start to apply on 1 July 2010; and
(b) the other responsible lending obligations (including disclosure requirements) start to apply on 1 January 2011.
Note: See item 19 of Schedule 1 of the Transitional Act for details of the responsible lending obligations that start on 1 July 2010.

 

 

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