National Consumer Credit Protection Amendment (Credit Card and Home Loans) Bill

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1 Min-it Software Joint Submission National Consumer Credit Protection Amendment (Credit Card and Home Loans) Bill 8 March 2011 Contact: Haydn Cooper Director Min it Software PO Box 1367 Sunnybank Hills QLD 4109 Telephone : Fax: Mobile: e mail: it.net Min it Software / FAA Joint Submission Page 1 of 7

2 TABLE OF CONTENTS Background Information 3 Foreword 4 Credit Card issues 4 Key Facts Sheet requirements for Credit Cards 6 Home Loans 6 Min it Software / FAA Joint Submission Page 2 of 7

3 Background Information This submission is made on behalf of the Financiers Association of Australia ( FAA ) and Min it Software clients. We welcome this additional opportunity to contribute to Treasury s consultation on an amending regulation pursuant to the National Consumer Credit Protection Act Aside from the software produced in house, specifically by or for franchised organisations, Min it Software is the industry leader in the Australian market. It has current clients in Queensland, New South Wales, Victoria, South Australia, Western Australia and will shortly have its first Northern territory client. Min it Software promotes compliance with the Uniform Consumer Credit Code and other legislation. In order to do this, we have held industry wide Conferences for microlenders in 2005 and 2007 plus one exclusively for our own clients in We were a finalist in the Queensland Consumer Protection Awards 2005 and received a Highly Commended award in Neither the author nor his business partner has any financial interest in any lender. The Financiers Association of Australia is recognised as one of the industry's specialists on all matters relating to finance and credit management. The Association, having been established since the 1930 s, is an organisation for individuals and companies involved in the fields of finance and credit provision. By promoting professional unity amongst its members, the Association is able to represent the industry with the objective of educating, training and informing its members with a view to expanding the proficiency of the Association. Min it s clients (nearly all of whom are not FAA members) are both payday and micro lenders, with others operating in the business loan and invoice discounting arenas whilst the FAA s members are non ADI microlenders, many providing loans up to $5,000 over terms of up to 2 years. Min it Software / FAA Joint Submission Page 3 of 7

4 Foreword As we have noted previously, short periods of consultation are becoming increasingly repetitive but we must vigorously protest at the ultra short period of consultation of just 3 business days, including the day it was issued, allowed for this one. It is utterly contemptible and smacks of a sham. It is does not make for good government and inevitably leads to unintended consequences. As the vast majority of our clients do not supply or use credit cards, this submission will concentrate on aspects of the legislation that may affect those that do. There are other entities far more qualified than we are that can comment on the other provisions of this legislation. Credit Card issues Under s.133aa (2) and (3) of the draft bill 1, it states: Meaning of credit card (2) A credit card is an article that is one or more of the following: (a) an article of a kind commonly known as a credit card; (b) a similar article intended for use in obtaining cash, goods or services on credit; (c) an article of a kind that persons carrying on business commonly issue to their customers, or prospective customers, for use in obtaining goods or services from those persons on credit; (d) an article that may be used as an article referred to in paragraph (a), (b) or (c). Meaning of linked to a credit card contract (3) A credit card is linked to a credit card contract if: (a) the credit card is issued under or in relation to the contract; (b) the credit card can be used to obtain credit under the contract as referred to in subsection (1). This definition is not identical to credit card as defined under s.12dl (5) of the ASIC Act 2001(Cth). 2 This inconsistency as to definition makes it difficult for industry to comply with legislation, particularly 1 Treasury, National Consumer Credit Protection Amendment (Credit Cards and Home Loans) Bill Available online viewed 07/03/2011 Min it Software / FAA Joint Submission Page 4 of 7

5 with severe civil and criminal penalties applying and the same regulator, and we believe is another reason why consultations such as these should not be rushed by Government. In our opinion, the definition under s133aa means that a debit card supplied to a borrower by a lender under a continuing credit contract purely as a means of funding the loan quickly rather than a method of enabling goods and services to be purchased on further credit will also be caught as a credit card. We know of a small number of lenders, including some of our clients, which fund their loans this way. They do so for speed of funding rather than anything else as it often takes one business day to transfer funds via the banking system. With clients wanting immediate access to funds, this is an unacceptable delay to many and we are uncertain if it is the intention that such transactions are caught by this amendment. Section 133AA (5) (b), we believe, does not provide sufficient clarity as to clearly define whether or not these provisions apply. If it is not intended such transactions are caught, then we suggest, notwithstanding the differences in definition under the ASIC Act, that the definition of a credit card under s.133aa (2) (b) and (c) needs modification. Given the short time allocated for this consultation, however, we are unable to provide any satisfactory suggestion as to how this could be achieved by rewording the subclause. The problem some lenders, other than credit card issuers, will face with this legislation is that this has become their only method of funding. Consequently, they will face difficulty overcoming the definition of a credit card contract due to the fact that the credit they supply is ordinarily obtained only by the use of a credit card. 3 Unfortunately, whilst we understand the intent, it becomes a vicious circle with unintended consequences for some. At this stage, we believe this needs further consideration and a clearly defined exemption in order to avoid this occurring if this is the intention. 2 S.12DL(5) of the Australian Securities and Investment Act 2001 defines a credit card as an article that: (a) is of a kind described in one or more of the following subparagraphs: (i) an article of a kind commonly known as a credit card; (ii) a similar article intended for use in obtaining cash, goods or services on credit; (iii) an article of a kind that persons carrying on business commonly issue to their customers or prospective customers for use in obtaining goods or services from those persons on credit; and (b) is part of, or provides access to, a credit facility that is a financial product; or an article that may be used as an article referred to in paragraphs (a) and (b). Available online viewed 08/03/ Ibid 1, s.133aa(1) Min it Software / FAA Joint Submission Page 5 of 7

6 On the other hand, if it is intended these provisions are to apply to such funding arrangements, then we believe the small amount, short term lenders that use this method will find it impossible to comply with the provision of providing a default buffer in terms of s133ai when the loan itself has been fixed, the financial table will show the amount of credit to be supplied under the loan and the card will not permit any further funds to be drawn down by the borrower by virtue of it being a debit card. In any case, we believe providing a statutory buffer limit where the borrower can exceed their credit limit makes a mockery of the lender making an assessment of a borrower s credit limit in the first instance. Why otherwise would one set a credit limit? We view this as irresponsible. The buffer limit promotes the borrower indiscriminately exceeding the credit limit and for some borrowers at least, may impact on their ability to repay. For those that do have to comply with this, many will see their credit limits reduced. For your information, we are aware of one lender (and we don t believe they are the only lender that does this) who use principal and interest rather than continuing credit contracts and who fund the loan via a debit card. The cards essentially have a one time use, though the borrower is not restricted to draw down all the funds at once and should the borrower want further credit, a new loan and card are created. On the basis of s.133aa (1), the card supplied would not be regarded as a credit card due to the contract not being a continuing credit contract. Key Facts Sheet requirements for Credit Cards We will merely point out that s.133ad (1) (c) has a rogue letter w at the end of the subclause and should be removed. Home Loans There are both FAA members and Min it Software clients that provide a limited number of home loans. By and large, these are second or third mortgages but Min it Software also has a small number of clients that will provide first mortgage home loans. As the Key Fact Sheet Regulations have not been released, it is difficult to assess how much will be involved in producing the additional information required. The Min it Software / FAA Joint Submission Page 6 of 7

7 industry is already reeling under the mass of regulatory changes that have been brought to bear on it and we would point out that some in the industry may not be able to comply, particularly if the date of introduction allows insufficient time to comply. One point that will raise concern for those that are brokers, aggregators, mortgage managers or who use mortgage referrer sites is that s.133bc requires it is only the credit provider s website that must provide the Key Facts Sheet(s). This may drive borrowers to deal with the credit provider directly after obtaining initial information from a credit assistance provider. We suggest this may devalue the credit assistance provider s services and ultimately, likely to lead many direct to the lender. If this assists the larger lenders such as the banks, this may lessen competition. Whilst we are not suggesting that all credit licencees (such as those licensed to provide credit assistance) must provide Key Facts Sheet(s) to consumers, it appears to be an anomaly. In any case, the logistics of how websites, other than that of the credit provider, could be kept up to date is not inconsequential and would require proper industry consultation. We question, though, whether further disclosure such as a Key Fact Sheet will provide any real consumer benefit; the industry is already weighed down from the voluminous quantity of documentation it must provide borrowers and prospective borrowers. We suggest new entrants to the industry and some existing participants will be closely examining the provisions of s.133be (3) and (4) which provides it is an offence not to provide a Key Fact Sheet and although it is a defence if the consumer has not provided the information, the lender will, as defendant, bears all evidential burden in relation to proof. We believe this may be difficult to comply with, particularly if the access is via a website, and may require huge long term data storage for little benefit. Ultimately, these costs will have to be passed onto consumers. Far from providing better deals, it will have the opposite effect. We are of the opinion that until there is responsibility placed on the borrower to provide the information requested, the burden of proof should not be on the licencee. We are rapidly moving from the concept of innocent until proven guilty. Min it Software / FAA Joint Submission Page 7 of 7

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