ASIC Corporations (Amendment) Instrument 2015/991

Administered by Department of the Treasury

Legislation au F2015L01740 Not in force Legislative Instrument

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ASIC Corporations (Amendment) Instrument 2015/991

ASIC Credit (Financial Counselling Agencies) Instrument 2015/992

EXPLANATORY STATEMENT

Prepared by the Australian Securities and Investments Commission

 

Corporations Act 2001

National Consumer Credit Protection Act 2009

 

The Australian Securities and Investments Commission (ASIC) makes:

  •  the ASIC Corporations (Amendment) Instrument 2015/991 under paragraph 911A(2)(l) of the Corporations Act 2001 (the Corporations Act). Paragraph 911A(2)(l) provides that ASIC may exempt a person from the requirement to hold an Australian financial services (AFS) licence.
  •  the ASIC Credit (Financial Counselling Agencies) Instrument 2015/992 under paragraph 109(3)(d) of the National Consumer Credit Protection Act 2009 (the National Credit Act). Paragraph 109(3)(d) provides that ASIC may declare that provisions to which Part 2-6 of the National Credit Act applies apply in relation to a class of persons as if specified provisions were modified or varied.

 

  1.                                             Background

Existing exemptions

Financial counselling agencies, and persons who provide financial counselling services as representatives of financial counselling agencies, are exempt from:

  • the requirement in the Corporations Act to hold an AFS licence covering the provision of a limited range of financial services offered as part of a financial counselling service – this exemption is contained in ASIC Class Order [CO 03/1063]; and
  • the requirement in the National Credit Act to hold an Australian credit licence (credit licence) in relation to credit activities provided as part of a financial counselling service- this exemption is contained in subregulation 20(5) of the National Consumer Credit Protection Regulations 2010 (National Credit Regulations).

These exemptions only apply where no fees or charges (however described) are payable by or on behalf of the client in relation to the financial service or credit activity or any other aspect of the financial counselling service.

Financial counselling requirements under statutory schemes for payment of benefits

The Commonwealth Government has recently put in place a statutory scheme (the BSWAT Payment Scheme) for payment of a lump sum to eligible persons under the Business Services Wage Assessment Tool Payment Scheme Act 2015 (the BSWAT Payment Scheme Act).

An essential part of the BSWAT Payment Scheme is for eligible persons to only be able to accept the offer of a lump sum under the scheme after receiving both legal advice and financial counselling. In relation to the financial counselling requirement, the BSWAT Payment Scheme Act provides for:

  • a register of financial counsellors (registered advisers) who will be available to provide financial counselling certificates for the purpose of the scheme; and
  • registered advisers to make a claim to the Department of Social Services (the Department) for a service fee, up to a maximum of $435, in relation to each financial counselling certificate. Paragraph 98A(1)(a) of the BSWAT Payment Scheme Act provides that the service fee is payable ‘in discharge of costs, expenses or other obligations incurred by a person’ in connection with obtaining a financial counselling certificate.

The fee payable to the registered adviser will be assessed by the Secretary of the Department to determine whether it is appropriate for the level of work undertaken in providing the financial counselling service. Payment of the fee is not dependent on the decision of the eligible person, and will be payable regardless of whether the eligible person decides to accept the lump sum offer.

The financial counselling requirement, and Commonwealth funding for these services, is a control included in the terms of the BSWAT Payment Scheme to increase the choices of the scheme’s target group (consumers who are vulnerable because of intellectual disability). For additional information see the Explanatory Statement to the Business Services Wage Assessment Tool Payment Scheme Bill 2014.

The ability of financial counselling agencies to rely on the existing licensing exemptions may be adversely affected by participating in the BSWAT Payment Scheme as a registered adviser and receiving a service fee.

 

2.                                                Purpose of the instrument

The purpose of the ASIC Corporations (Amendment) Instrument 2015/991 and the ASIC Credit (Financial Counselling Agencies) Instrument 2015/992 is to modify the limitation in the existing exemptions on fees or charges payable on behalf of the client in relation to a financial counselling service.

The modifications will permit fees or charges that are payable on behalf of the client by the Commonwealth, a State or a Territory.

These modifications will permit a fee or charge to be payable on behalf of the client to implement the Government’s decision to include a Commonwealth funded financial counselling requirement as a consumer protection measure for the BSWAT Payment Scheme. Without this variation financial counsellors and agencies that participate in that scheme would lose the benefit of the existing exemptions, which may discourage participation in the BSWAT Payment Scheme.

Allowing for a service fee that is payable by the Commonwealth or a State or Territory, and that is not dependent on the client’s decisions, is unlikely to result in financial counsellors and agencies being subject to a conflict of interest.

 

3.                                                Operation of the instrument

Paragraph (c) of [CO 03/1063] requires that no fees or charges be payable by or on behalf of the client in relation to the financial service or any other aspect of the financial counselling service in order for the relevant licensing exemption to apply. Schedule 1 of the ASIC Corporations (Amendment) Instrument 2015/991 amends paragraph (c) of  [CO 03/1063] to permit fees or charges that are payable by the Commonwealth, a State or a Territory.

Paragraph 20(5)(e) of the National Credit Regulations requires that no fees or charges be payable by or on behalf of the client in relation to the credit activity or any other aspect of the financial counselling service in order for the licensing exemption in subregulation 20(5) to apply. Section 5 of the ASIC Credit (Financial Counselling Agencies) Instrument 2015/992 modifies paragraph 20(5)(e) of the National Credit Regulations to permit fees or charges that are payable by the Commonwealth, a State or a Territory.

 

4.                                                Consultation

Before making the legislative instruments, ASIC consulted with the Financial Counselling Association of Australia, together with the Department of Social Security as the Department responsible for the BSWAT Payment Scheme. ASIC considered that this level of consultation was appropriate given the limited extensions to the existing licensing exemptions for financial counselling services.

The Office of Best Practice Regulation advised that a RIS is not required in order to make the legislative instruments.

 

Overview

The ASIC Corporations (Amendment) Instrument 2015/991 and the ASIC Credit (Financial Counselling Agencies) Instrument 2015/992 were introduced by the Australian Securities and Investments Commission (ASIC) under the Corporations Act 2001 and the National Consumer Credit Protection Act 2009, respectively. These instruments aim to address the issue of financial counselling agencies participating in the Business Services Wage Assessment Tool Payment Scheme (BSWAT Payment Scheme) without losing their existing licensing exemptions. The BSWAT Payment Scheme requires eligible persons to receive financial counselling before accepting a lump sum payment, and permits the payment of a service fee to registered advisers for providing financial counselling certificates. The primary policy objective of these instruments is to ensure that financial counselling agencies can continue to operate under the existing licensing exemptions while participating in the BSWAT Payment Scheme, thereby not discouraging participation in the scheme. The instruments modify existing exemptions that currently prevent financial counselling agencies from charging fees or incurring charges on behalf of clients. The ASIC Corporations (Amendment) Instrument 2015/991 amends the ASIC Class Order [CO 03/1063] to allow fees or charges payable by the Commonwealth, a State, or a Territory, while the ASIC Credit (Financial Counselling Agencies) Instrument 2015/992 modifies the National Consumer Credit Protection Regulations 2010 to permit similar fees or charges. This change is intended to support the Commonwealth’s decision to include a Commonwealth funded financial counselling requirement as a consumer protection measure for the BSWAT Payment Scheme. ASIC consulted with the Financial Counselling Association of Australia and the Department of Social Services before making these legislative instruments, considering the consultation appropriate given the limited nature of the changes.

Scope and Application

The ASIC Corporations (Amendment) Instrument 2015/991 and the ASIC Credit (Financial Counselling Agencies) Instrument 2015/992, both made under the authority of the Australian Securities and Investments Commission (ASIC), modify existing exemptions related to financial counselling services provided by financial counselling agencies and individuals. These instruments apply to financial counselling agencies and individuals providing financial counselling services, specifically those that participate in the Business Services Wage Assessment Tool Payment Scheme (BSWAT Payment Scheme). The amendments allow these entities to receive a service fee from the Commonwealth, a State, or a Territory for providing financial counselling services within the BSWAT Payment Scheme, while still maintaining their exemption from holding an Australian Financial Services (AFS) licence and an Australian Credit Licence (credit licence). The geographic reach of these instruments is national, applying across all states and territories of Australia. The modifications are limited to the specific context of the BSWAT Payment Scheme, ensuring that financial counsellors and agencies can continue to operate under the existing exemptions despite receiving a service fee from the Commonwealth, a State, or a Territory. This change is designed to support the scheme's objectives without imposing additional regulatory burdens on financial counsellors and agencies participating in the BSWAT Payment Scheme.

Key Provisions

The ASIC Corporations (Amendment) Instrument 2015/991 and the ASIC Credit (Financial Counselling Agencies) Instrument 2015/992 modify existing exemptions for financial counselling services provided under the Corporations Act 2001 and the National Consumer Credit Protection Act 2009. Specifically, these instruments allow fees or charges to be payable on behalf of the client by the Commonwealth, a State, or a Territory, whereas previously no fees or charges could be payable by or on behalf of the client for the exemption to apply (sections 1 and 5). These amendments aim to accommodate the new financial counselling requirement under the Business Services Wage Assessment Tool Payment Scheme Act 2015, which involves a fee for services provided by registered advisers. The amendments impose obligations on financial counselling agencies and practitioners to comply with the modified conditions under the exemptions. For instance, under the ASIC Corporations (Amendment) Instrument 2015/991, financial counselling services can now be compensated by fees paid by the Commonwealth, a State, or a Territory, provided these fees are not dependent on the client’s decisions (Schedule 1). Similarly, the ASIC Credit (Financial Counselling Agencies) Instrument 2015/992 modifies the National Credit Regulations to allow fees payable by the Commonwealth, a State, or a Territory, without affecting the client's decision to accept the lump sum offer (Section 5). These changes are designed to ensure that financial counsellors can continue to participate in the BSWAT Payment Scheme without losing the benefit of the existing exemptions. Breaches of the conditions set forth in these instruments could lead to the loss of the existing licensing exemptions, thereby subjecting financial counselling agencies and practitioners to the requirement of holding an Australian financial services (AFS) licence or an Australian credit licence (credit licence). Although the text does not specify exact penalties for breaches, it is implied that failure to comply with the amended conditions could result in the revocation of the exemptions, which may necessitate adherence to more stringent regulatory requirements. Consultation was conducted by ASIC with relevant stakeholders, including the Financial Counselling Association of Australia and the Department of Social Services, to ensure the amendments were appropriate and to garner support for the changes. This consultation was deemed sufficient given the limited scope of the modifications. The Office of Best Practice Regulation also advised that a Regulatory Impact Statement was not required for these legislative instruments. In summary, these instruments modify the existing exemptions to allow for fees or charges payable by the Commonwealth, a State, or a Territory, while maintaining the integrity of the financial counselling service provided under the BSWAT Payment Scheme. This ensures that financial counselling agencies can continue to operate without unnecessary regulatory burdens, thereby supporting the scheme's objectives.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.