Outline
The National Consumer Credit Protection (Fees) Bill
2009 (Fees Bill), which accompanies the National Consumer Credit Protection
Bill 2009 (Credit Bill) and the National Consumer Credit Protection
(Transitional and Consequential Provisions) Bill 2009 (the Transitional Bill),
support the Commonwealth’s regulation of consumer credit in Australia.
The Fees Bill enables the imposition of fees, as
taxes, for things done under the Credit Bill and Transitional Bill, such as the
lodgment of documents, or inclusion of a document in, or inspection of, a
register maintained by the Australian Securities and Investments Commission
(ASIC).
Date of effect:Â The Fees Bill commences at the same
time as section 3 of the National Consumer Credit Protection
Bill 2009.Â
Proposal announced:Â The proposal to transfer responsibility for
regulating consumer credit to the Commonwealth was announced by the Council of
Australian Governments (COAG) on 26 March, 3 July and 2 October 2008.
Financial impact:Â The Government has provided $70.2
million over four years to implement the decision of COAG as part of the
2008‑09 Mid‑Year Economic and Fiscal Outlook. This Bill includes
measures to give effect to that transfer.
The funding will support the establishment of a
national licensing regime for providers of credit and credit services, with
ASIC as the sole national regulator. It will also support the national
regulation of mortgages, margin lending, personal loans, credit cards and pay
day lending.
The funding will be partially offset by revenue raised
from fees required to be paid by persons regulated by the national framework,
payment of which commences during the 2009Â10 financial year. The amount of
revenue generated from these fees will depend, in part, on the number and type
of persons seeking to be licensed.
Compliance cost
impact:Â The
main compliance cost impact arises in relation to persons who will be subject
to the licensing regime. This will primarily involve the initial costs associated
with applying for an Australian credit licence, which include the payment of
fees to lodge application documentation with ASIC, annual compliance costs and
costs of external dispute resolution membership.
Further details in relation to the compliance requirements
associated with the licensing of providers of credit and credit services are
set out in the Regulation Impact Statement accompanying the Credit Bill.
Summary of
regulation impact statement
Regulation
impact on business
Impact:Â A regulation impact statement was prepared for
the Consumer Credit Protection Reform Package and is set out in the explanatory
memorandum to the Credit Bill.
Chapter 1Â Â Â Â
Imposition of fees
Outline of
chapter
1.1
The National Consumer Credit Protection (Fees) Bill
2009 (Fees Bill) allows for the imposition of fees for things done under the National
Consumer Credit Protection Bill 2009 (Credit Bill) and the National Consumer
Credit Protection (Transitional and Consequential Provisions) Bill 2009
(Transitional Bill) such as the lodgment of documents or the inclusion of a document
in, or inspection of, a register maintained by the Australian Securities and
Investments Commission (ASIC).
Context of
new law
1.2
Section 55 of the Constitution provides, in part,
that laws imposing taxation shall deal only with imposing taxation, and any
provision dealing with any other matter shall not be effective. To comply with
this requirement, the Fees Bill, which imposes fees for chargeable matters as a
tax, is a separate piece of legislation from the Credit Bill and the
Transitional Bill.
1.3
The approach taken in the Fees Bill is generally
consistent with the Corporations (Fees) Act
2001 which deals with the imposition of fees under the Corporations Act 2001.
1.4
The fees imposed under the Fees Bill are payable to
the Commonwealth (through ASIC) by the application of Part 5-4 of the Credit
Bill.
Summary of
new law
1.5
The Fees Bill contains provisions relating to the:
• imposition
of fees for chargeable matters;
• the
ability to charge fees at different rates, for example depending on the method
used to lodge a document or the number of representatives a person has; and
• assignment
of liability for payment a fee.
Detailed
explanation of new law
What is a
chargeable matter?
1.6
The key provision in the Fees Bill is the definition
of the term chargeable
matter. It is defined broadly to mean any of the following:
• the
lodgment of a document under the Credit Bill and Transitional Bill;
• the
inclusion of a document in a register maintained under those Bills;
• the
inspection or search of a register kept by, or a document in the custody of,
ASIC under those Bills;
• the
making available by ASIC, under those Bills, of information (whether in the
form of a document or otherwise);
• the
production by ASIC, under a subpoena, of such a register or document;
•
the issuing of a document or of a copy of a
document, the granting of a licence, registration, consent or approval, or the
doing of any other act, under those Bills, by the Minister or ASIC;
• the
making of an inquiry of, or an application to, the Minister, or ASIC, in
relation to a matter arising under those Bills; and
• the
submission to ASIC of a document for examination by ASIC.
[Subsection 4(1)]
Example 1.1
JJF Pty Ltd lodges an application for a licence to
engage in credit activities with ASIC in accordance with section 35 of the
Credit Bill.Â
The lodgment of an application by JJF Pty Ltd is a
chargeable matter, for which a fee may be imposed.
Other
definitions
1.7
A representative of a registered person is defined
in section 4 of the Transitional Bill. A representative of a licensee, or in
any other case, is defined in section 5 of the Credit Bill. [Subsection
4(1)]
1.8
Other expressions used in this Bill that are
defined in the Credit Bill and the Transitional Bill have the same meanings as
they have in those Bills. [Subsection 4(2)]
Imposition
of, and matters relating to amount of, fees
1.9
Fees for chargeable matters may be prescribed in
the regulations [subsection 5(1)]. Any
fees prescribed will be imposed as a tax to ensure compliance with constitutional
requirements [subsection 5(2)].
1.10
Two or more fees may be prescribed for the same
chargeable matter. [Subsection 5(3)] Â
1.11
Fees for chargeable matters may be prescribed in
the regulations by specifying an amount as the fee (not exceeding $10,000) or
by specifying a method of calculating the amount of the fee. The $10,000
maximum applies separately to each fee imposed if more than one fee is
prescribed for the same chargeable matter. [Subsection 6(1)]Â
1.12
A fee for a chargeable matter need not bear any
relationship to the cost of providing any service that forms part of, or is
related to, that matter. [Subsection 6(2)]
1.13
A fee, or the sum of fees, for a chargeable matter
must not exceed $50,000. [Subsection 6(3)]
Different
fees in relation to chargeable matter
1.14
Regulations may prescribe that fees can be charged at different rates
depending whether or not a chargeable matter is complied with by electronic
means. [Section 7]Â
Example 1.2
The fee for lodging an annual compliance certificate
(as required by section 53 of the Credit Bill) electronically may be lower in
comparison to the fee imposed for lodging the same document in paper form.
1.15
Regulations may also prescribe that fees can be
charged at different rates depending on the number of representatives that the
person who is liable for the fee has at a particular time. [Section
8]Â
Example 1.3
This allows for the amount of a fee that is to be
imposed on a licensee to be calculated based on the number of credit
representatives they authorise under sections 64 and 65 of the Credit Bill.Â
Who is liable
to pay the fee for a chargeable matter, and time liability is incurred?
1.16
The person who is liable to pay the
fee imposed for each chargeable matter, and the time at which the liability
arises, is described in Table 1.1. [Section 9]
Table 1.1
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lodgment of a document
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person who lodges the document
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when the document is lodged
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inclusion of a document in the register
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person who requests inclusion of the document in the
register or if no request, the person who lodges the document
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when the request for inclusion of the document in
the register or if no request, when the document is lodged
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inspection or search of a register or document kept
by ASIC
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person who requests the information
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when the request is made
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information made available by ASIC
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person who requests the information
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when the request is made
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production of register or document by ASIC under a
subpoena
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person who filed the subpoena
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when the subpoena is served on ASIC
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issuing a document or
copy, granting a licence, consent or approval, or doing any other act by the
Minister or ASIC
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person requesting issue
of the document or copy, the grant of the licence, consent or approval, or
any other act. If there is no request, the person for whose benefit the act
is done
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when the request is
made, or if there is no request, when the act is done
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making an inquiry of, or application to, ASIC or the
Minister
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person who makes the inquiry or application
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when the inquiry or application is made
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submitting a document to ASIC for examination
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person submitting the document
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when the document is submitted
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Regulations
The Fees Bill provides that the Governor-General may make regulations
for the purposes of sections 5 to 8. [Section
10]