We thought it would be helpful to summarise the position of referrers with all the amendments in place.

There are now 4 referrer exemptions, and they can be found in regulation 25 of NCCPR. Exemptions 1 and 2 are ongoing. Exemption 3 only operates until 30 September 2010, after which exemption 4 effectively replaces it.
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The National Consumer Credit Protection Legislation Amendment Regulations 2010 (No. 2) (here) were registered on 21 July. They amend the National Consumer Credit Protection Regulations 2010 and the National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2010.

The Regulations:
• insert an exemption from licensing for upstream referrers;
• insert an exemption from licensing for locums and employment agencies, and exemptions from certain obligations for temporary employees appointed as credit representatives;
• remove the 12-month sunset clause from the exemption from licensing for state licensed debt collectors (so that the exemption from licensing for state licensed debt collectors will not expire after 12 months, as the states have not yet reached agreement on the regulation of debt collectors);
• insert an exemption from certain licensing obligations for authorised deposit-taking institutions (ADIs) who provide credit assistance under “white labelling” arrangements;
• amend the existing exemption from licensing for providers of incidental membership benefits;
• amend the definition of unsolicited contact (these amendments take effect on 1 October 2010);
• replace references to licensee with references to unlicensed carried over instrument lender (UCOIL) in the Principal Credit Regulations;
• expand the exemption from having to make external dispute resolution (EDR) related disclosures to additional persons and provisions of the Credit Code;
• correct a reference to a prescribed UCOIL; and
• include orders under the Criminal Organisation Act 2009 (Queensland) in the list of prescribed orders relevant to licensing.

These changes have important structuring implications for credit providers and intermediaries.

The National Consumer Credit Protection Legislation Amendment Regulations 2010 (No. 1) amending the NCCP Regulations and the Transitional Regulations were registered on 30 June 2010.

You can download a copy of the National Consumer Credit Protection Regulations 2010 consolidated to include these and all other regulations up to 1 July 2010 here.

The new Regulations cover transitional issues as follows:

• Residential investment property: exempt credit, which is intended predominantly for residential investment property, from the pre-contractual requirements (principally disclosure and responsible lending) under the Credit Act, where the offer of credit is made before 1 July 2010 and is accepted on or after that date. The regulation would cease to have effect from 1 October 2010. Any credit contracts formed after this date would not be exempt from the pre-contractual requirements under the Act and the Code.
• Referrers: modify the existing exemption for persons who pass on the contact details of a licensee or registered person to a consumer (referrers) to ensure that the exemption covers referrers who facilitate contact via a website link between a consumer and a licensee, registered person or representative;
• Carried over instruments: provide that the commencement of the responsible lending conduct obligations in relation to COIs coincides with the staggered timeframe set for new contracts.

The Minister for Financial Services has announced details of the new arrangements applying to temporary employees and locums and on-hire staff and employment agencies under the National Credit Act.

The new arrangements will allow credit businesses to continue to operate without the need to meet additional licensing obligations when they engage individuals to ‘fill in’ for regular employees or they engage employees through an employment or on-hire agency. The arrangements clarify that additional obligations are not required in particular circumstances of engagement where the person is subject to the same level of control and supervision as an employee.

Locums
Locums will be treated in the same way as employees of a licensee where they

• replace a person who is absent from work as an employee who is reasonably expected to return;
• be substantially performing the same duties of that employee; and
• be subject to similar control or direction as that employee.

Temporary and on-hired staff
Temporary and on-hired staff will be treated as credit representatives but excused from the requirement to be a member of an ASIC approved dispute resolution scheme and have the licensee notify ASIC of their authorisation subject to the conditions that they:

• be only engaged on a temporary basis;
• be engaged in similar duties and be under a similar level of control, management and supervision as other employees of the licensee;
• not be engaged because they possess particular skills that would prevent the licensee or registered person exercising the level of control that the person can exercise over its actual employees;
• be predominantly remunerated other than by way of commission; and
• be perceived by a reasonable consumer that they are an employee of the licensee.

Employment agencies
Employment agencies that only engages in credit activities by providing temporary or on-hired staff will be exempt from licensing requirements where they:

• only engage in credit activities by providing individuals to a licensee, registered person or their representative who engage in credit activities on behalf of the licensee or registered person; and
• these individuals are locums, or temporary or on-hired staff who meet the criteria above.
• These arrangements do not extend to independent contractors engaged to complete a defined scope of work; they will still need to be authorised as a credit representative.