17 June 2024

If your business is in the space of providing credit services to consumers, in most cases, you are required to be licensed under the Australian Credit Licensing regime. This typically includes:

1. Credit Providers (e.g. Banks, Financial Institutions and Private Lenders).

2. Credit Assistance Provider (e.g. Mortgage Brokers, Finance Brokers and Debt Collectors).

3. At times, other forms of businesses (e.g. Trustees, Managed Investment Schemes, and Non-Cash Payment Providers).

​

Such businesses will typically become a Credit Representative when they first start their business due to the process being simpler and quicker than getting an Australian Credit Licence (ACL or Credit Licence). However, every Credit Representative must ask themselves two key questions when determining whether they should remain a Credit Representative under an ACL or obtain their own ACL including:

1. As a Credit Representative under an ACL, when is it an appropriate time to obtain my own ACL?; and

2. What is more worth it, obtaining my own ACL or remaining a Credit Representative under an ACL?

​

All Credit Representatives are subject to different circumstances at various points in time which impacts the decision of whether it should obtain its own Credit Licence or remain a Credit Representative under a Credit Licence.

​

Australian Credit Licence (ACL)

A business providing credit services to consumers is required to obtain a Credit Licence to engage in ‘credit activities’ as defined under the National Consumer Credit Protection Act 2009 (Cth) (National Credit Act) unless an exemption applies. The most common exemption that exists to obtaining a Credit Licence is to be a Credit Representative under a Credit Licence. As a Credit Licensee, there are a wide range of obligations that must be adhered to, including but not limited to, general conduct obligations, organisational competence, reporting requirements and training requirements.

​

Advantages of being an Australian Credit Licensee

There are various key advantages of being a Credit Licensee including:

1. You ultimately “own” your business as it provides you with the flexibility to carry on your business in your own manner and you are not subject to restrictions or approval requirements that may apply to a Credit Representative and are not required to report to another Credit Licensee;

2. You are able to provide whichever credit services you are authorised to provide and are not limited to the credit services that another Credit Licensee may authorise you to provide;

3. You obtain the opportunity to authorise other businesses under your ACL which generates an additional revenue stream to your primary business revenue as you can charge a fee for each Credit Representative under your ACL;

4. Depending on the fee that you may pay as a Credit Representative, it may be more affordable long-term to obtain your own ACL; and

5. You can implement more efficient and effective compliance program to govern your ACL compared to a compliance program that may be imposed on a Credit Representative under an ACL. It also allows you to tailor a certain compliance program for your business operations rather than relying on a generic compliance program set out by other Credit Licensees.

​

Advantages of being a Credit Representative

There are also various key advantages of being a Credit Representative under an ACL including:

1. Your liability is limited due to a Credit Licensee being ultimately responsible for meeting all obligations and requirements under the ACL, rather than a Credit Representative, resulting in minimal legal risk;

2. You are provided a compliance program by the Credit Licensee rather than having to build and implement your own compliance program along with relevant templates, training and research.

3. The Credit Licensee incurs all relevant costs in maintaining its ACL, and typically the Credit Representative pays a fee to the Credit Licensee. It may be more beneficial to remain a Credit Representative where the fee that is paid to the Credit Licensee is more affordable than the costs in maintaining an ACL; and

4. In the case that you do not have the relevant experience and competence to obtain your own ACL, you can use utilise the opportunity of being a Credit Representative under an ACL to gain industry experience and competence.

​

How to Decide

It is important to weigh up the pros and cons when contemplating a decision to either obtain your own Credit Licence or become/remain a Credit Representative under a Credit Licence and is ultimately dependent on the circumstances of your business operations at the current point in time. Obtaining your own ACL means there will be a significant initial cost but a potential long-term benefit, however, becoming/remaining a Credit Representative may be a simpler and quicker process but may mean you are subject to restrictions and approval requirements meaning your credit services may not operate with full flexibility.

​

How We Can Help

Adria Law are experts in assisting businesses with their credit licensing requirements and can advise you on determining whether obtaining a Credit Licence or becoming/remaining a Credit Representative would be more beneficial for your business depending on your operational circumstances. We can further assist you in obtaining appropriate licensing with ASIC and collaborate closely with you through the preparation stage of an ACL application and post-application stages regarding any liaison with ASIC. We can also assist you with preparing or reviewing a Credit Representative Agreement where you intend on becoming a Credit Representative under a Credit Licence Our licensing services are charged at a fixed fee rate and we implement an operational approach to our services so that they are tailored to your business goals.

​

Whether you currently operate a business providing credit services or are in the process of opening a business to provide credit services, contact our experienced lawyers today for a free consultation.