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This instrument provides transitional relief from the requirement for Australian financial services licensees (AFSL) and Australian credit licensees (ACL), corporate authorised representatives and unlicensed carried over instrument lenders to notify the Australian Securities and Investments Commission (ASIC) of their Australian Financial Complaints Authority (AFCA) membership details.
Administered by: Treasury
Registered 20 Sep 2018
Tabling HistoryDate
Tabled HR15-Oct-2018
Tabled Senate15-Oct-2018
Table of contents.

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ASIC Corporations and Credit (Transition to AFCA) Instrument 2018/814

I, Grant Moodie, delegate of the Australian Securities and Investments Commission, make the following legislative instrument.

 

 

Date    19 September 2018

 

 

 

 

Grant Moodie

 



Part 1—Preliminary

1        Name of legislative instrument

This is the ASIC Corporations and Credit (Transition to AFCA) Instrument 2018/814.

2        Commencement

This instrument commences on the day after it is registered on the Federal Register of Legislation.

Note:    The register may be accessed at www.legislation.gov.au.

3        Authority

This instrument is made under:

(a)     subsection 109(3) of the National Consumer Credit Protection Act 2009; and

(b)     subsection 926A(2) of the Corporations Act 2001.

4        Definitions

In this instrument:

Corporations Act means the Corporations Act 2001.

credit representative has the same meaning as in subsection 5(1) of the NCCP Act.

financial services licensee has the same meaning as in section 761A of the Corporations Act.

licensee has the same meaning as in subsection 5(1) of the NCCP Act.

NCCP Act means the National Consumer Credit Protection Act 2009.

unlicensed carried over instrument lender has the same meaning as in subsection 5(1) of the NCCP Act as modified by item 2.4 of Schedule 2 to the National Consumer Credit Protection Regulations 2010.


Part 2—Declaration

5        Notice of AFCA membership—financial services licensees

Part 7.6 (other than Divisions 4 and 8) of the Corporations Act apply in relation to financial services licensees as if Division 3 of Part 7.6 were modified or varied by, in the appropriate position, inserting:

912AI  Deferral of notice of AFCA scheme membership

(1)     A financial services licensee does not have to comply with paragraph 912A(1)(b) to the extent that it would require the licensee to lodge with ASIC, in the prescribed form and before 1 November 2018, details of its membership of the AFCA scheme.

(2)     A financial services licensee that relies on subsection (1) must lodge with ASIC, in the prescribed form and between 1 November 2018 and 30 November 2018, details of its membership of the AFCA scheme.

(3)     Nothing in this section affects an obligation to become a member of the AFCA scheme.”.

6        Notice of AFCA membership—credit licensees

The provisions to which Part 2-6 of the NCCP Act applies apply in relation to licensees as if Division 5 of Part 2-2 of the NCCP Act were modified or varied by, after section 47, inserting:

47A     Deferral of notice of AFCA scheme membership

(1)     A licensee does not have to comply with paragraph 47(1)(c) to the extent that it would require the licensee to lodge with ASIC, in the approved form and before 1 November 2018, details of its membership of the AFCA scheme.

(2)     A licensee that relies on subsection (1) must lodge with ASIC, in the approved form and between 1 November 2018 and 30 November 2018, details of its membership of the AFCA scheme.

(3)     Nothing in this section affects an obligation to become a member of the AFCA scheme.”.

7        Notice of AFCA membership—unlicensed carried over instrument lenders

The provisions to which Part 2-6 of the NCCP Act applies apply in relation to unlicensed carried over instrument lenders as if Schedule 2 to the National Consumer Credit Protection Regulations 2010 were modified or varied by, after item 2.19, inserting:

2.19A  After section 47

Add

47AA  Deferral of notice of AFCA scheme membership

(1)     An unlicensed carried over instrument lender does not have to comply with subsection 45(2) to the extent that it would require the lender to lodge with ASIC, in the approved form and before 1 November 2018, details of its membership of the AFCA scheme.

(2)     A lender that relies on subsection (1) must lodge with ASIC, in the approved form and between 1 November 2018 and 30 November 2018, details of its membership of the AFCA scheme.

(3)     Nothing in this section affects an obligation to become a member of the AFCA scheme.”.

8        Notice of AFCA membership—credit representatives

The provisions to which Part 2-6 of the NCCP Act applies apply in relation to licensees and credit representatives as if the following provisions were modified or varied:

(a)     omit paragraph 71(3)(c);

(b)     in subsection 71(3), insert:

“(ca)    details of the credit representative’s membership of the AFCA scheme;

(c)     after section 71, insert:

71A Deferral of notice of AFCA scheme membership

(1)     A person that authorises a credit representative under subsection 64(1) or 65(1) does not have to comply with subsection 71(1) or (4) to the extent that it would require the person to lodge with ASIC, in the approved form and before 1 November 2018, details of the credit representative’s membership of the AFCA scheme.

(2)     A person that relies on subsection (1) must lodge with ASIC, in the approved form and between 1 November 2018 and 30 November 2018, details of the credit representative’s membership of the AFCA scheme.

(3)     Nothing in this section affects an obligation to become a member of the AFCA scheme.”.

9        Application

The declaration made by paragraph 8(a) of this instrument applies on and after the day, under item 72 of Schedule 1 to the Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Act 2018, on and after which the amendments made by Part 5 of Schedule 1 to that Act apply.