New national responsible lending laws released this week should create more work for lawyers, Catherine Parr, a partner at Allens Arthur Robinson, told Lawyers Weekly on Thursday.
The National Consumer Credit Protection Bill 2009, which is intended to be operational from 1 November, could mean more work for lawyers, said Parr, to help businesses understand what they need to do in terms of complying with the legislation, changes required for existing documentation and processes and how to apply for a licence.
Under the regime, credit providers and advisers will be required to be licensed by meeting minimum entry standards, which will be supervised by the Australian Securities and Investment Commission (ASIC).
While institutions such as the banks are undertaking most of the requirements already - and will be put through a streamlined process to obtain a licence - brokers, credit intermediaries and smaller providers could find the regime "very onerous", said Parr.
"To get a licence they are going to need to satisfy ASIC of a whole range of criteria. They are going to have to demonstrate that their personnel and senior management have skills and experience relevant to the credit activities they're going to undertake, they're going to have to make sure they have training processes for staff and external and internal dispute resolution, complaints handling, compensation arrangements [and] risk management processes," she said.
"For many smaller players and intermediaries, a lot of things will be very new and, depending on the size of the business, may be quite difficult to comply with."
Requirements on brokers and intermediaries to make reasonable enquiries and assess a consumer's financial situation have come under criticism for being "unnecessary and unduly onerous", said Parr.
"While it's only considered to be a preliminary assessment, it does mean that an intermediary is having to collect and analyse financial information. Now, in the past they might have helped applicants fill in application forms and pass those forms on to credit providers, but they haven't, in the past, been required to take any independent assessment of the consumer's financial position," she said.
"So I know that many in the industry feel very strongly that that is not something intermediaries should have to do because, ultimately, credit providers will collect all that information and make a credit assessment ... I know there are arguments around its all being done twice - and that's unnecessary."
Parr said that it was high time, however, for a nationally consistent law which would benefit both consumers and credit providers and intermediaries.
- Sarah Sharples