National Credit Reform: Enhancing Confidence and Fairness in Australia’s Credit Law dated July 2010

Green Paper on National Credit Reform

Corporations and Financial Services Division

The Treasury

Langton Crescent

PARKES ACT 2600

National Legal Aid (NLA) represents the Directors of the eight State and Territory

Legal Aid Commissions (Commissions) in Australia. The Commissions are

independent statutory authorities established under respective State or Territory

enabling legislation. They are funded by State or Territory and Commonwealth

governments to provide legal assistance to disadvantaged people.

NLA aims to ensure that the protection or assertion of the legal rights and interests of

people are not prejudiced by reason of their inability to:

NLA welcomes the opportunity to comment on the Green Paper for National Reform

NLA acknowledges the significance of the national consumer credit framework as

marking a generational change that will significantly improve the effectiveness of

consumer protection.

National Legal Aid Secretariat

GPO Box 1422

Hobart TAS 7001

Executive Officer: Louise Smith

t: 03 6236 3813

f: 03 6236 3811

m: 0419 350 065

Green Paper on National Credit Reform - NLA Response

2

Having regard to the size of the Green Paper and the timeline available for comment, it is not possible to provide detailed comments on all aspects of the paper.

This submission focuses on issues that will directly impact on consumers. It identifies possible gaps in coverage that could be addressed including:

We also believe a number of enhancements could be made that will provide better

protection for consumers in circumstances of financial hardship, particularly where

Court proceedings are being contemplated by the lender.

NLA's comments are informed by Commission case work experience with consumers

in dispute with credit providers and/or intermediaries in relation to the provision of

credit across all the States and Territories.

NLA supports the extension of basic protections and obligations under the Credit Act

hope would include extending the default notice provisions to small business loans.

NLA believes that it is essential that all consumers have access to justice to an EDR

Scheme. This gives consumers access to a free or low cost way to resolve disputes.

Licensing is also essential for small business lending to ensure:

Green Paper on National Credit Reform - NLA Response

3

possible into the protection regime.

NLA notes that with such reform there would need to be a concomitant development

of the responsible lending provisions to apply to guarantors of business loans. The

current gap in coverage for guarantors who guarantee a business loan is of

considerable concern. Our casework experience is that there is a concerning

number of instances where vulnerable elderly people are unconscionably induced

into providing their residential home as security for a friend or relative’s business

loan. Enhanced lending obligations in such cases would be of considerable benefit

to ensure such practices are better regulated.

The social and economic costs of unfair lending and market practices are becoming increasingly apparent amongst consumers, who have relied on easy credit to spend

Our case work experience reflects available research, which illustrates that the specific regulation of credit card products has not kept pace with the development of

these products. This has led to inappropriate lending and unfair market practices, with significant implications for disadvantaged consumers.

In addition to the MCCA Options, further reform will be needed to tighten up the assessment of lending and further limitations will need to be placed on unsolicited credit card increases.

Green Paper on National Credit Reform - NLA Response

4

In NLA's view, the appropriate legislative response will need to involve a combination

of enhanced remedial measures with specific preventative measures.

1. MCCA Option Three - prohibit the card issuer from providing more credit than the consumer can repay from their income without substantial hardship;

2. Require that the assessment of determining the consumer’s ability to repay the loan should be based on a loan period for complete repayment of 2 year loan;

3. MCCA Option Four - provide relief for the consumer by making the debt unenforceable to the extent that it exceeds an amount granted in accordance with Option three - with significant civil penalties applying for breach of Option four;

4. Prohibit unsolicited credit card increases;

5. MCCA Option Two - require credit providers to allow consumers to nominate their credit limit;

6. MCCA Option Six - require card issuers to increase the minimum repayment percentage for new credit card contracts (only) and for offers of increased credit limits on current cards;

7. MCCA Option Five - require card issuers to warn consumers about the effect of paying only the minimum repayments; and

8. MCCA Option One - change the timing of provision of essential information.

Green Paper on National Credit Reform - NLA Response

5

There is also a need for an equally robust public reporting regime against these

requirements. Improved public reporting will mean better accountability to regulatory

authorities and the Australian community at large.

NLA agrees that credit card debt is the largest single cause of debt problems in the

In soon to be released Victorian based research involving bulk waiver of creditrelated

debt, the vast bulk of that debt – upwards of 80% - is related to credit card

debt. Of the 102 clients surveyed, 60 of those consumers were defined as ‘special

circumstances’ clients, meaning they suffered from one or more of the following –

homelessness, mental or physical illness, gambling and/or alcohol addiction,

domestic violence and carer responsibilities. The research suggests that most, if not

all of the clients, were given inappropriate credit card limits (or limit increases) which

were then rigorously enforced by debt collectors against judgment-proof debtors.

Recent research also suggests that whilst credit card debt is no doubt a problem for

the most disadvantaged, credit card debt is increasingly becoming a middle class

A recent study by the NSW Consumer Credit Legal Centre of callers to their Credit &

Debt Hotline over a 2 year period suggests that advice on credit card debt was by far

organizations for a number of years. See for instance the submissions presented CCLC and Legal Aid

NSW to the Ministerial on Consumer Affair Consultation – RIS on the Responsible Lending Practices

in relation to Consumer Credit Cards, 2008

20, 2008, Professor Keen

there “is strong evidence that bankruptcy is becoming more of a middle class phenomenon” cited in

including home loan, personal loan and motor vehicle loan. CCLC Submission to the Ministerial on

Consumer Affair Consultation – RIS on the Responsible Lending Practices in relation to Consumer

Credit Cards, 2008, p.4

Green Paper on National Credit Reform - NLA Response

6

Credit card debt also impacts on mortgage stress. Commission experience is that

the two, more often than not, go hand in hand. The widespread mortgage stress

currently faced by so many consumers today may not have become as severe if

limits had already been put in place to halt irresponsible credit card lending practices.

Easy credit fuels the continuation of unhealthy and unsustainable credit card habits

and fails to protect the most vulnerable members in our community from falling

further into the cycle of poverty.

NLA is able to provide case studies from Commissions which illustrate the impact of

credit card debt on mortgage stress.

There are a variety of harsh and unfair practices used by credit providers in relation

to credit cards. These are well documented in reports, many of which are cited in the

The exploitative practices of credit card providers have led to significant credit card

concomitant social cost to consumers and the community at large of ever-present

concerns of not being able to manage finances.

We also refer to our introductory remarks to this Chapter and our response to

Questions 1 & 2 for further details.

January 2009

Australians are worried about their ability to repay their debt over the next 12 months, March 2010.

Green Paper on National Credit Reform - NLA Response

7

No. The following are two recent examples:

a. Bank fees exposed by the Reserve Bank

In 2008, the banks charged $1.2b in penalty fees out of a total of $11.6 billion of fee

income earned in the same year. Recent reporting states that industry has accepted

that more than three-quarters of the penalty fees - $954 million - could be avoided by

consumers. The big banks now face the largest class action in Australian corporate

history for overcharging their millions of customers about $5 billion in penalty and late

b. Interest rates movements not reflecting Reserve Bank official rates of borrowing

A recent report from the Sydney Morning Herald states:

Analysis by The Sun-Herald also found that no-frills cardholders, a growing number

of whom are using credit to pay for household essentials because of mortgage

stress, have been slugged with a bigger proportional increase in interest rates than

Green Paper on National Credit Reform - NLA Response

8

A summary of the key features of the credit card should be displayed prominently at the

time of applying for credit and in monthly credit card statements. Key features would

include:

NLA also supports the idea of a separate, easy to read, 'health' warning at the time that a

credit card statement is sent out, as canvassed in the Green Paper.

Disclosure provisions are always relevant to ensuring consumers are appropriately

informed about their financial products. We suggest though that, disclosure

requirements, whilst useful, are less effective as a method of remedying widespread

abusive market practices in the credit area. Many inherently unfair market practices

particularly the disadvantaged, are tied to credit card debt, they lose their ability to

make better choices about their finances.

Yes. The implementation of MCCA Option three and four combined with tightened

credit assessment processes will be central to ensuring the effectiveness of

responsible lending obligations. Assessment of capacity to pay the minimum

repayment alone should not be sufficient to comply with responsible lending

legislation.

Green Paper on National Credit Reform - NLA Response

9

The assessment should be made based on capacity to repay the fully drawn credit

limit within 2 years, assuming no further drawings are made and the customer pays

the maximum they can realistically afford each payment cycle. It is important that

credit card lending is conservative and repayable in a short time.

This approach would also be useful in financial literacy work with consumers, on how

to manage credit card debt, because information about how credit card limits are

assessed could be used in financial literacy publications.

We support Consumer Action Law Centre's recommendation to MCCA (Option Two)

that credit providers allow consumers to nominate the limit sought. However, we

suggest that safeguards should be put in place to ensure that such a nomination by a

consumer is not used as a basis for absolving a credit provider from their responsible

lending obligations.

Concerns about access to easy credit must be weighed up against broader social

and economic concerns. The underlying concern is that credit providers have for

some time not lent responsibly on credit cards. This concern has also been

expressed more generally by economists both here and abroad.

There is in our view a compelling argument that the long term consequences of an

inadequately regulated credit card market may prove detrimental not only to the most

vulnerable borrowers, but also to the community as a whole.

The Bank for International Settlements describes the mechanism by which

irresponsible lending can endanger financial stability as follows:

Green Paper on National Credit Reform - NLA Response

10

In Professor Steve Keen’s article ‘Unsustainable debt: Australia’s own sub prime

crisis’ dated 18 September 2007, he states:

No. See the detailed research and analysis of current lending practices undertaken

with repayments set at $60/month (2%), it would take almost 6 years to repay the

credit on an interest rate of 10.8%, 10 years to repay the debt on interest rates of

20.7% and an indeterminate time to pay the debt with interest running at 24.5% or

The appropriate policy response is that the assessment of capacity to repay should

be based on the fully drawn credit limit within 2 years.

June 2008. Page 137.

Lending Practices in relation to Consumer Credit Cards, 2008

Green Paper on National Credit Reform - NLA Response

11

Whilst this rationale is understandable as it centres around the idea that a debtor

should not be unjustly enriched by such a transaction - the inherent unfairness to this

rule is that it is inconsistent with the overarching obligation of lenders to lend

responsibly. Proper consideration needs to be given to the notion that a lender has

fiduciary-like obligations to protect a borrower, particularly disadvantaged borrowers,

from financial harm by not lending irresponsibly.

Responsible lending is an overarching concept that sits above relative notions of

accounting for a benefit received.

The notion of benefit received is just one of a number of competing factors that

should be taken into account, in that:

ability to fully account to the lender for that ‘benefit’;

consumer is rigorously pursued for the whole of that debt, plus the costs of

debt collection;

amount to harassment;

agencies will often involve writs for possession of personal property,

bankruptcy, garnishment of wages and even sale of residential home on

larger debts (and in some States such as Queensland, any sized debt);

Green Paper on National Credit Reform - NLA Response

12

would establish if the basis for lending was unjust;

responsibility for the plight of the consumer who would not be pursued for

extended number of years through high interest rates, fees and charges; and

unconvincing in that it is difficult if not impossible to ascertain what would

fails in such an obligation, should be forced to deal with the consequences of their

actions; namely, they be prohibited from seeking to enforce a debt that should not

have been provided in the first place. To aid enforcement of these obligations,

significant civil penalties should apply if they are breached.

In NLA’s view, systemic change can only be achieved through a combination of:

substantial hardship (#1 ranked issue);

unenforceable and be subject to civil penalty for breach (#3 ranked issue);

issue);

about spending on luxury items or believed that cash advances were viable ways to fund shortfall in

mortgage payments when things got tough.

Green Paper on National Credit Reform - NLA Response

13

Currently lenders are motivated to create debtors who keep an outstanding balance

rather than debtors who repay each month in full because this is more profitable.

Consumer spending patterns are likely to adjust to the availability of credit.

Consumers burdened with credit card debt tend not to be in a position to reduce that

debt so options forcing greater levels of repayment (MCCA Option Six), should not

apply retrospectively.

Commission casework experience suggests that many consumers suffer credit card

stress and struggle to make minimum monthly repayments.

For the reasons outlined above we see the development of concurrent obligations on

consumers of new credit card loans to repay minimum monthly repayments as

for financial hardship if this were to apply to existing loans, such obligations should

not be prescribed to apply retrospectively. Existing cardholders should have the

option to increase their minimum repayment to 3% at any time, to bring their

repayment requirements in line with new accounts.

Equally, we support the development of a requirement for new credit card loans that

repayments be made within a particular period. However, again, such requirements

should be flexible and not inadvertently result in further financial hardship for

consumers. This rule might be developed on a sliding scale – eg that the minimum

Lending Practices in relation to Consumer Credit Cards, 2008, p.9

Green Paper on National Credit Reform - NLA Response

14

monthly repayments will pay off a $1000 loan in one year, $2000 loan in two years

and $10,000 loan in five years.

Please refer to the response to Question 13.

Unsolicited credit card increases should be prohibited. In principle, unsolicited credit

card increases do not accord with the new responsible lending provisions which

require a current, relevant and realistic assessment of an account holder’s ability to

repay credit. Any cardholder who is offered credit without having to consciously

consider their ability to repay that debt within a reasonable time – by going through

the process of accounting to a credit provider about their ability to service the debt -

should not be offered credit.

Commission casework experience is that unsolicited credit card increases have

caused significant financial stress for many disadvantaged consumers. Given their

social and economic vulnerability, disadvantaged consumers are more likely to be

induced into accepting an offer for a credit increase without considering the

consequences.

NLA supports a ban on unsolicited limit increases especially where the consumer is

carrying an ongoing debt each month on the credit card. If the consumer is carrying

a debt this usually indicates some debt stress, and should not be further exacerbated

by an unsolicited offer to increase the level of the debt.

Given the importance of this issue and the need to obtain more detailed data on it,

requests for such information should form part of new compulsory ongoing public

reporting obligations by credit providers to the Reserve Bank.

Yes. Please refer to the response to Question 15.

Green Paper on National Credit Reform - NLA Response

15

We are not aware of any independent research or analysis of the ACT experience.

We suggest however, that take-up and default rates are only part of the picture.

The ACT provision was the first in Australia that sought to tackle the problems

associated with pre-approved credit cards and limit increases. It did so by requiring

credit providers to conduct an assessment of a borrower’s repayment capacity before

credit was advanced. This concept is at the heart of the new responsible lending

provisions.

It is our understanding from communications with Care Inc Financial Counselling and

the co-located Consumer Law Centre of the ACT that a number of breaches were

identified after the provision commenced. Their view was that its existence focused

the minds of credit providers on the fact that failing to assess capacity was a breach

of the law, rather than a question of whether it was appropriate to make a loan to the

particular borrower. The ACT provision may have been an incomplete mechanism

for addressing broader problems in the marketing of credit cards. We suggest

however that it is a critical first step.

Current practices maximise profits by allocating repayment to the least profitable balance

on the account. So, for example, a cardholder who transferred a large balance $15,000

at a low rate of 4% but has taken out a relatively small cash advance of $1000 will not be

able to repay the $1000 cash advance charged at a rate of 27% until the whole of the

balance transfer has been paid off. During that extended period the $1000 cash advance

at interest of 27% pa has accrued to a significant debt in itself.

Regulation of standardised allocation of repayments to balances will only work if such

rules also incorporate concepts of fairness within them. Despite the general importance

of the legislation, we do not expect that the new unfair terms regulation will lead to

sufficient change in this area in that credit providers will make a case that they are simply

protecting a legitimate business interest.

Green Paper on National Credit Reform - NLA Response

16

They may also argue that unfair terms legislation does not apply under the subject matter

exception. This area is too technical for unfair terms law application. It is suggested that

it would be preferable to develop a consistent but fair rule around allocation of repayment.

Without standardising these processes, the Reserve Bank will never be able to collect

reliable data on how the unfair allocation of repayments is connected with credit card

stress and financial hardship generally.

Please refer to the response to Question18.

No. As outlined in the Green Paper, credit providers use a host of different and

complicated methods for applying interest on credit card balances. Prescriptive rules

which standardise these processes is necessary so that consumers can make informed

choices about their credit cards including whether they are good value for money or not.

Equally, as outlined in our response to Question.18, without standardising these

processes, the Reserve Bank will never be able to collect reliable data on how the unfair

allocation of repayments is connected with credit card stress and financial hardship

generally.

As outlined in our response to Question 20, different policies in relation to interest

rates compound the confusion for consumers in relation to the amount of interest to

be paid. It is our experience in relation to credit cards, as with pay-day lenders, that

calculation of interest on a daily basis, as opposed to a monthly basis can have a

significant impact on the amount of money which needs to be repaid. We refer to our

response generally on Chapter 5 for further details.

Green Paper on National Credit Reform - NLA Response

17

This situation is not helped by the fact that credit providers set commercial card

rates, including on no frills credit cards, well above official interest rates, as outlined

in our response to Question 4.

Yes. Please also refer to our responses to Questions 20 – 21.

A longer notification period in respect of increases to interest rates would give consumers

more time to adjust to changes in interest rates, and where possible, reorganise their

finances to reduce any risk of hardship. There should be no minimum notification period

for a decrease in interest rates.

Industry has maximised profits over a sustained period based on consumers who

exceed their credit limits. Consumers have paid out some $954 million in fees,

including exceeding credit card limit fees, that could have been avoided. Offering

cards that permit the consumer to spend beyond their means – and then penalise

them for doing so is inconsistent with responsible lending. Please also refer to our

response to Question 4.

Please refer to our response to Question 2.

The need for specific legislative protections and safeguards for consumers

considering entering into reverse mortgages is critical given the particular

Green Paper on National Credit Reform - NLA Response

18

vulnerability of older consumers, who are attracted to these products often using their

only significant asset as security for credit, and doing so without an income stream.

Research also suggests that older people are also often in a poor position to protect

NLA does not support industry self-regulation as not all providers of reverse

mortgages are members of Senior Australians Equity Release Association

(SEQUAL). The result would be that consumers are left with varying levels of

protection as not all lenders comply with the industry Code of Conduct.

Yes.

There is a need for specific pre-contractual disclosure regarding information about:

their life expectancy; and

Non-title holding residents should be afforded uniform protection by ensuring that

lenders allow for that person to be added to the loan or designated as a nominated

resident.

In relation to a uniform procedure upon default by a borrower, it is suggested that the

SEQUAL guideline should be made mandatory requiring lenders to personally

contact (or make reasonable attempts to contact) the borrower prior to the expiry

date of a default notice and ensure the borrower has received the notice and

understands the consequences of not rectifying the default.

No comment.

Green Paper on National Credit Reform - NLA Response

19

Yes, these should be tailored to the features of reverse mortgage and applicable to

reverse mortgage providers and brokers.

is not sufficient protection in the case of reverse mortgages, as the enquiries are

limited to the customer’s financial circumstances, requirements and capacity to

repay.

The reverse mortgage should also be suitable for the consumer in light of

alternatives, such as downsizing, pension loans scheme, utilising existing assets and

so on.

Consumers considering reverse mortgages have a range of needs that are not

always about income and capacity to repay and therefore the enquiries that need to

be made are more specific to ensure the product is appropriate for the borrower’s

requirements.

There are other reasons for having responsible lending conduct obligations that are

specifically tailored for reverse mortgage products: These are

traditional credit products;

financial impacts of a reverse mortgage at the time they enter into the

contract;

uncertainty regarding how responsible lending will apply to reverse mortgage

products;

being placed in an unsuitable reverse mortgage may have severe financial

Green Paper on National Credit Reform - NLA Response

20

and quality of life impacts, which, for older borrowers may potentially be

irreversible; and

their homes to fund their aged care accommodation needs, this will be an

increasing cost that Government will need to meet.

Yes. NLA considers that they should be adopted (see p.42 Green Paper).

No comment.

No comment.

NLA supports the adoption of Option Two in relation to statutory protection against

negative equity.

For the purpose of reverse mortgages the broker should be considered to be the

lender’s agent.

Any misrepresentation by the borrower must be deliberate.

Yes.

Green Paper on National Credit Reform - NLA Response

21

NLA considers that both Option One and Option Two should be adopted to ensure

that consumers are provided with information and advice that is meaningful and

appropriate prior to entering into a reverse mortgage.

Option Two on its own will not be an effective consumer protection tool. An

information statement may be a useful starting point for information for some

consumers but is no substitute for independent advice that is specific to the

individual’s circumstances.

Further, we submit that consumers should be required to obtain both free legal and

financial advice before entering into a reverse mortgage through a one-stop-shop

provider such as the National Information Centre on Retirement Investments Inc

(NICRI).

NLA supports the proposal for the Government to fund the Equity Release

Information Centre (ERIC) model proposed by NICRI.

Yes - see above.

See above.

No comment.

Green Paper on National Credit Reform - NLA Response

22

NLA considers that the current arrangements are not adequate. See above

responses.

A mandated default procedure should require lenders to personally contact (or make

reasonable attempts to contact) the borrower prior to the expiry date of a default

notice and ensure the borrower has received the notice and understands the

consequences of not rectifying the default.

No comment.

NLA supports Option Two to implement a national interest rate cap.

No comment.

No comment.

Green Paper on National Credit Reform - NLA Response

23

NLA's experience is that the majority of consumers with small loans (often with

multiple small loans) are Centrelink recipients or on low incomes who seek

assistance to purchase items such as a car or to pay bills.

exclusively reliant on Centrelink, a further 10% had only part time or casual

employment, only 10% had full time employment.

No comment.

No comment.

Commission experience is that these loans are heavily marketed and promoted to

people with a history of credit defaults. People with this history often appear to

believe that they have a better chance of securing small amounts of cash quickly with

this type of credit.

advanced for choosing these loans was the lack of market choice for people seeking

to borrow less than $2000.

2008

Green Paper on National Credit Reform - NLA Response

24

A report into credit contracts and vulnerable consumers showed that consumers

tended to think about whether or not a loan was affordable in the context of their

fortnightly or weekly budget. As a result, the repayment rate tended to be the most

that they had decided to take the risk and proceed with the loan.

In Commission experience, clients tend to be unaware of their rights in relation to

accessing hardship provisions or services in order to pay bills and instead frequently

opt for short term credit which increases the risk of non-payment of other bills and

necessities due to the high cost of this type of credit.

No comment.

No comment.

No comment.

No comment.

to protect vulnerable borrowers” A report prepared jointly I November 2008 by

Green Paper on National Credit Reform - NLA Response

25

People who are at risk of hardship as a result of short term small amount loans tend

to be unaware of alternatives to expensive short term loans. A case example

cancer who borrowed from a payday lender for parking fees at the hospital. Hospital

social workers are able to assist clients with parking in these circumstances but the

woman was seemingly unaware of these options.

No comment.

We suggest that there is only limited awareness of Utility Financial Assistance

Programs. Further, many of the programs depend the individual policies of the

providers of the service or the State in which the borrower lives. For example,

Telstra provides direct assistance to people experiencing hardship and financial

counsellors and other organisations are provided with vouchers that they can give to

a customer of Telstra for payment of their telephone account. This is not matched by

other utility providers.

In addition, it is clear that each utility provider has different hardship policies and

many customers are unaware of the existence of these policies, how to access them

or where to complain to if the hardship offered is inadequate or refused.

Green Paper on National Credit Reform - NLA Response

26

recipients. We believe the figures may be underestimated given that the part time or

casual workers identified in the report might also be Centrelink recipients and that as

with any self selecting group, the most vulnerable are less likely to respond than the

rest of the community.

Commission experience suggests that there is general knowledge about availability

of advances on income support payments. We do not have access to the sort of

data which would enable us to answer the latter part of this question.

Commission experience suggests that people who use short term lenders do not

tend to use budgeting or debt counselling services until they are unable to borrow

from another source and cannot meet the repayments on these accounts.

A 48% Interest Rate Cap, inclusive of all fees and charges has been very effective at

reducing the cost of credit to borrowers.

Prior to the introduction of an interest rate cap in Queensland, the short term small

amount lending market had the following characteristics:

(a) The average effective interest rates in the market were over 240%. Less than

5 lenders (that LAQ were aware of) that were operating in the market had

interest rates less than 240%. One lender had an effective interest rate of over 3000%;

Green Paper on National Credit Reform - NLA Response

27

(b) There were over 1000 lenders in the Queensland market, some with less than

100 loans in their loan book;

(c) The average loans across the market were in excess of $1,000;

(d) One of the major fringe lenders had moved to a “credit card type product”

without providing a credit card but with the ability to redraw the principal sum

thus avoiding disclosure of the total cost of the loan; and

(e) It was extremely difficult for consumer advocates to obtain settlements on

grounds contract was unfair because of excessive interest.

Following the introduction of an interest rate cap, the average effective interest rates

(inclusive of brokerage fees and charges) fell significantly from an effective interest

ranging from 240% to between 140% to165%.

It is now relatively easy for consumer advocates to settle matters on behalf of

vulnerable clients where the issue is a breach of the interest rate cap even where the

lender has attempted to avoid regulation by using a 'sham' brokerage fee.

A recent example of the interest rate cap changing the behavioural norm of the

industry was where a short term loan contract that was in operation prior to the

introduction of an interest rate cap had an interest rate of 90% per annum. On the

introduction of the interest rate cap the interest rate was reduced to 48% despite the

fact that as an existing contract the lender had no obligation to do so.

In Queensland there are less of these lenders in the market. In Queensland, after

the introduction of the cap, initially the numbers of loans also decreased.

Green Paper on National Credit Reform - NLA Response

28

Before the Cap, examples of avoidance of consumer protection regulation include:

(a) A major fringe lender introduced a “credit card type product” without providing a

credit card but with the ability to redraw the principal sum thus avoiding

disclosure of the total cost of the loan and the ability to compare different

products;

(b) The use of interest free finance to purchase goods at a greatly inflated price

that did not reflect the value of the goods. This was particularly prevalent in the

sale of cars; and

(c) The use of business purposes declarations to avoid regulation. In one case the

default rate on a $200,000 mortgage was 96% or $16,000 per month in

interest.

Since the introduction of the Cap:

(a) The effective interest rates on small amount loans have fallen substantially;

(b) Most fringe lenders now use a brokerage model that has yet to be tested in

court;

(c) A major fringe lender has attempted to avoid legislation by setting up a

business selling diamonds at inflated prices;

(d) Another major fringe lender has unsuccessfully attempted to use the pawn

broking exemption; and

(e) There has been an increase in the use of consumer leases.

We have not seen any evidence to suggest that an interest rate cap has led to an

increase in avoidance of regulation or unlawful lending.

Green Paper on National Credit Reform - NLA Response

29

No comment.

NLA is hopeful that responsible lending obligations will result in a reduction of the

number of small and short-term loans a borrower has at any given time.

NLA supports the introduction of an interest rate cap.

NLA supports Option Two, implement a national interest rate cap.

It is suggested that disclosure (Option Three) is ineffective as borrowers often do not

see the warnings. Reasons for people accessing loans include a perception that

they have no option. This perception is unlikely to be impacted on by a warning.

NLA does not support Option Four as it does not address the problem borrowers face

when paying out a loan and re-borrowing a similar or higher amount from the same

lender within a few days or a few weeks.

NLA does not support Option Five because although it may assist consumers, it does

not address the detriment caused by the high cost of these loans when entering the

contracts (such as interest fees and charges) as opposed to the charges associated

with default fees.

This is illustrated by the following case study:

Green Paper on National Credit Reform - NLA Response

30

A borrower obtained a loan for $1715 (including $215 for fees) at 240%. The

repayments were $80 per week. In week 3 she missed a payment. From that date

on the payments she made barely met the interest component. In week 12 she

missed another payment. From that date the interest exceeded the weekly

payment. She missed one more payment in week 27 and sought advice after week

84. At this time she had paid $6340. The outstanding balance on the loan was

$5050, but only $60.00 was added in default fees.

In the experience of Commissions, access to timely financial counselling and legal

advice to explore alternatives when faced with financial stress or hardship is critical

for borrowers before they approach high cost lenders.

NLA is concerned about the targeted marketing of consumer leases to vulnerable

should be further regulated under the NCCP.

NLA supports Option Two of the Green Paper for further regulatory intervention.

NLA supports amendment to the NCCP to provide equal treatment of consumer

leases (no right to purchase) and hire-purchase contracts (where ultimately the client

can purchase the product). The mere fact of ultimate ownership ought not to

determine the quality of the protection available to the consumer (particularly

vulnerable consumers) or the quality of information available to the consumer to

make a choice of product.

NLA is primarily concerned with the lack of protection for vulnerable consumers in

relation to consumer leases rather than hire-purchase contracts, because they are

Green Paper on National Credit Reform - NLA Response

31

number of consumer complaints about consumer leases including

misrepresentations about the nature of the finance, unfair terms, heavy-handed

repossession tactics and inflated prices of the goods leased.

NLA is not aware of any.

No comment.

While leasing companies claim that they provide a competitive product by

supplying essential household goods at affordable prices to low income

consumers, research has shown that these agreements and market practices are

directly competitive in reality.

Historically consumer leases were a product for the purchase of new cars for

business in order to gain perceived tax benefits. Leases offer no particular tax

advantage or other advantage to vulnerable clients who purchase used cars on

finance.

http://www.consumer.vic.gov.au/CA256902000FE154/Lookup/CAV_Credit_Grant_Resources/$file/

70.

Green Paper on National Credit Reform - NLA Response

32

The market is skewed towards consumer leases as outlined above, but despite

the fact that these products offer the least regulatory impost for lenders and

enable lenders the greatest access and control over the product, they are

generally the most expensive form of finance on the market.

No comment.

Yes.

NLA suggests that the only way to stop the detriment to consumers from the

abuse of this product is to ensure that it is placed on an equal footing with other

forms of lending.

This would entail disclosure requirements equivalent to those for other forms of

lending, as well as equivalent treatment of breaches.

Consumer leases are currently preferred by leasing companies because they are

motivated by the artificially decreased regulation of these products. Further

regulation may impact on the market by removing that preference and creating a

level playing field, thereby increasing competition.

NLA supports regulation of consumer leases that mirrors the regulation for hire

purchase agreements under the NCC.

Such an extension will enhance consumer protection particular for vulnerable

consumers.

Green Paper on National Credit Reform - NLA Response

33

NLA suggests there should be no difference between a consumer lease and a

The cost of a lease can be more than a loan and there is no compensation for the

consumer to balance the lesser legal rights they have with this form of finance.

All requirements applying to credit contracts should apply to consumer leases to

prevent any attempts by leasing companies to avoid the regulation of the leases.

NLA is concerned that many consumers are confused as to whether they have a

right to purchase/own the goods at the end of the rental term.

Disclosure requirements should include clear warning in the contract that the

consumer has no right to purchase the goods. This warning should also be

repeated in the Information Statement.

Commissions have seen cases where car yards, who are self-insuring, charge

consumers “insurance premiums” in-house. This leads to confusion and

increased risk for the consumer when there is a car accident about the extent of

the “insurance cover”. Disclosure requirements relating to insurance (e.g. name

of insurer, amount payable to insurer and a description of the kind of insurance

provided) would ensure that details of any purported insurance would be

disclosed to consumers.

The present requirements in relation to default and repossession for consumer

leases particularly need to be extended in order to protect vulnerable consumers

from unscrupulous tactics by leasing companies.

Green Paper on National Credit Reform - NLA Response

34

NLA is aware of some situations in Queensland where car yards have threatened

clients with stealing charges when they have refused to return a vehicle following

a dispute about payment. Some consumers have bowed to this kind of pressure

by allowing cars to be repossessed, in contravention of their rights.

NLA is not aware of any.

As discussed above, an extension of linked credit provisions to consumer leases

would enhance consumer protection.

Equal treatment of consumer leases with hire-purchase (section 9) leases would

greatly assist vulnerable consumers.

The demand for consumer leases is likely to continue. While a broader range of

requirements may increase the cost of product, the current high cost of such a

product suggests that leasing companies should be able to absorb these costs

with very little impact.

Yes, please refer to our responses above.

Green Paper on National Credit Reform - NLA Response

35

The current disclosure requirements relating to the cost of consumer leases (i.e.

amount of each rental payment, total amount of rental payable, additional charges

etc.) should extend to a disclosure of the cash price of the goods and the cost of the

lease as a percentage per annum. This will allow consumers to see the actual cost

of the whole contract and prevent any hidden cost by use of balloon payments and

other tactics.

Further to the issues discussed above, NLA seeks the Government’s consideration of

the problem of liquidated damages. Leasing companies often have a clause that

means that consumers have to payout the whole term of the lease even if they

default early in the contract, and goods are repossessed in one month. Leasing

companies would argue that liquidated damages represent the loss they would

suffer. However, NLA is concerned that this is in fact a penalty, and does not in fact

reflect the real cost to the lessee.

Yes. Commission experience is that the current range of variations available under

the NCCP does not always accord with the needs of those in financial difficulty, or

reflect the types of arrangements commonly negotiated through IDR and EDR in light

of industry codes of practice.

Commission experience is that the significant majority of borrowers seeking a

be flexible enough to remedy past defaults as well as accommodate the current and

future needs of the borrower during a period of hardship.

A common scenario is where a borrower experiencing hardship has made

inconsistent repayments prior to seeking a hardship variation; and wishes to have

reduced repayments for a period of time before returning to contractual repayments.

Green Paper on National Credit Reform - NLA Response

36

While this is a situation commonly resolved through IDR and EDR, the current

provisions do not allow for a Court ordered variation to this effect.

Our experience also suggests that there is little understanding on the part of

consumers (and some lenders) of the current options available. If a consumer

mistakenly asks for a variation that is not in strict accordance with the options in the

Code, a consumer could be considered not to have taken the requisite steps needed

to make a hardship application to a Court, or to be able to enforce the variation

agreed by the lender. This seriously undermines the intended efficacy of the

hardship provisions in the Code.

NLA supports the position that there is no limit to the type of variations that can be

requested. An appropriate variation in any particular case may include any

combination of postponing repayments, accepting reduced repayments for a period,

capitalising arrears and extending the term of a credit contract, among others.

We do not see that this is inconsistent with codifying aspects of the industry codes of

practice, which usefully (the MFAA in particular) place obligations on lenders to work

with borrowers in a constructive way to overcome their difficulties. NLA supports the

codification of these principles, which we believe will bring more strength and

consistency to the hardship aspects of the NCC.

Please refer to the response above.

NLA’s view is that it is not appropriate to impose a monetary threshold limiting the

statutory right of a consumer to apply for a variation on the basis of hardship.

The policy motive of the threshold acting to exclude the sophisticated borrower from

accessing a hardship variation is not necessarily well founded. Some people with

high-value debts may still experience significant hardship as a result of illness,

unemployment, or other reasonable cause.

Green Paper on National Credit Reform - NLA Response

37

For example, it is possible that a person with a large mortgage may become disabled

and need to sell their home due a reduction in income. In such cases, hardship

variations can usefully be negotiated through IDR and EDR to allow the borrower

time to sell and maximise the sale price for the benefit of their family. It is unfair and

inconsistent that this option is not currently available to the same borrower if applying

to a Court.

The current hardship provisions – which require a debtor to be able to show that they

reasonably expect to be able to discharge their obligations if the terms of the credit

contract are changed in a manner requested – act as a ‘threshold’ preventing

inappropriate hardship variations.

Importantly, removal of the threshold will also provide consistency with the approach

of EDR schemes and the industry codes of conduct provide for hardship variations

regardless of the size of the loan.

If a threshold is to apply, NLA suggests that the statutory position clarify that the

threshold applies to the loan balance at the time the hardship application is made.

This is crucial in capturing those who may enter into a loan that is over the threshold

but fall into hardship some years later. It would be an unfair result if a borrower who

has brought their loan balance down by meeting their regular repayments was

excluded from the statutory right to make a hardship application in a subsequent

period of hardship.

This question warrants an evidence based response about the proportion of

consumers who are over the existing threshold, which we are unable to provide at

this time.

If a threshold is to apply it is appropriate for it to be indexed and regularly reviewed.

Consideration should be given to how the index is appropriately calculated, such as

Green Paper on National Credit Reform - NLA Response

38

whether it should be sensitive to geographic zones for metropolitan, regional, rural

and remote areas.

It is advantageous for all parties to maintain a tenable loan agreement where a

borrower is reasonably able to meet their obligations under the loan if the variation is

granted. For untenable loan agreements, the proposed amendments contained

herein should not represent a notable cost impost to that already incurred by lender’s

progressing enforcement proceedings.

NLA supports a requirement that lenders conduct compulsory hardship assessments

prior to commencing default proceedings or forced sale. Repossession rates in this

evidence that repossession rates reflect but a small portion of homes repossessed by

advice services, have seen first hand the impact of this in the Australian community

Commission experience is that lenders tend to not consider the financial hardship

circumstances of borrowers – choosing instead to enforce their strict legal rights

under the mortgage agreement. This is reflected in leading research conducted this

year on the causes of defaults in Australia today: less than 20% of survey defaulting

‘Crunch Time” About The House, aph.com.au September 2008 at p.38. See also ‘Repossessions on the

rise as interest rates go up’, HeraldSun.com,.au, 3 August 2010; ‘Queensland house repossessions at a

record high’, couriermail.com.au 10 June 2009;

"The Experience of Mortgage Distress in Western Sydney”, University of Western Sydney's Urban

Research Centre, 2010

Green Paper on National Credit Reform - NLA Response

39

parties were contacted by their lender to re-schedule mortgage payments to deal with

At the heart of this issue is that the balance of rights in relation to mortgages weighs

derive from outdated notions on the paramount nature of proprietary rights of lenders,

do not accord with modern standards of fairness – including standards of fairness

now prescribed in this area in the enhanced hardship and responsible lending

It is suggested that it is an appropriate time to implement reforms which would

require lenders to consider a borrower’s financial hardship before taking the drastic

step of moving toward repossession – either by writ or forced sale. We suggest that

the development of such a compulsory obligation on lenders to consider the financial

hardship of a borrower before repossessing is in line with the government’s

commitment to a program of addressing risks of social exclusion. There are tangible

benefits to government, individuals and the community at large when consumers,

where possible, are able to keep their home and thus avoid the enormous social and

economic cost of repossession.

We welcome the changes to notice requirements already provided for under section

88 of the NCC, requiring borrowers to be notified of their rights to make a hardship

application and complain to an EDR scheme. We look forward to monitoring the

effect of this requirement on consumers' ability to access hardship arrangements

prior to legal proceedings being commenced.

The view of NLA on this point is also informed by our positions in respect of

Questions 1 and 7. If aspects of the industry codes of practice requiring lenders to

work with borrowers in times of financial difficulty are codified, we anticipate this

would provide the strength to the Code required to support consumers in periods of

hardship. Further, if enforcement action remains on hold while a hardship application

is being assessed, we anticipate this will lead to hardship arrangements being

Nelson, March 2010, p.4

dailytelegraph.com.au, 3 August 2010

respect of an electricity disconnection than it is to resist a claim for repossession for an unsatisfied

default on a mortgage.

Green Paper on National Credit Reform - NLA Response

40

entered into at an earlier stage and avoiding the need for legal proceedings by the

lender.

Yes. Although protections already exist for consumers where a hardship application

is made to an EDR scheme or a Court, NLA believes there are significant benefits to

a general requirement that enforcement under a credit contract be stayed while a

hardship application is considered. Not only would this foster good faith, but it would

significantly ease the pressure on EDR schemes which are heavily relied upon to

ensure enforcement action remains on hold while a hardship application is

considered.

The stay of enforcement should operate to include steps such as accelerating the

loan, charging default costs and listing an adverse credit report on a borrower’s credit

file. It should also allow for a stay of enforcement for 14 days after a hardship

application is refused, so that a borrower has the ability to seek advice about their

options before enforcement action continues or commences.

In order for the stay of enforcement to work effectively, a less formal view of what

constitutes ‘making a hardship application’ needs to be taken. The focus should be

on whether the borrower has reported experiencing or anticipating hardship, or

whether the lender is reasonably on notice that is the case. The focus should be on

the substance rather than the form of the application.

In order to avoid abuse, safeguards could be included such as that the lender is not

required to stay enforcement where a substantially similar application has been

rejected within the previous month, for example.

Green Paper on National Credit Reform - NLA Response

41

expenses.

Charging the costs of considering a hardship application to a borrower’s loan as

enforcement expenses often puts the borrower into further hardship and undermines

the entire hardship framework. Given the inconsistency across the industry in

relation to these costs NLA believes it is important that there are clear statutory

provisions on this point.

Yes. If the hardship variation under consideration is granted, the effect should be

that the relevant credit contract is no longer in default and an adverse credit listing is

not necessary.

Further, it would be unfair for a consumer in financial difficulty to suffer the ongoing

effects of an adverse credit listing in circumstances where they can show that they

are reasonably able to meet their ongoing obligations under the credit contract.

NLA supports the view that attention should be given to whether existing gaps in

coverage, particularly in relation to third party conduct, have encouraged lending that

is at least irresponsible lending, but in more serious circumstances has also

amounted to predatory lending. Equity stripping, without any consequences for third

parties who have financially benefited from such practices, which are sometimes

utilised against vulnerable consumers is of significant concern.

Green Paper on National Credit Reform - NLA Response

42

We support the enhancement in protection to provide a remedy for unjust conduct in

relation to providers of credit services as providing the most chance of alleviating

Please refer to the response to Question10.

Yes.

NLA is of the view that the use of the expressions "pre-approved", "reverse

mortgage", and "financial counselling/financial counsellor" should be prohibited in the

circumstances suggested in the examples provided in the Green Paper.

The example "independent, impartial or unbiased, not-for-profit, free" should also be

prohibited in the circumstances suggested in the examples if possible.

In addition, NLA suggests the following prohibitions:

payments are required and no interest is to be charged during the relevant

period.

Please refer to the response to Question 12.

Green Paper on National Credit Reform - NLA Response

43

The current prohibition in section 156 of the Code on the marketing of credit at a

person’s residence is justified. NLA agrees with the concern expressed in the Green

Paper that these provisions do not adequately cover telemarketing and forms of

unsolicited contact such as “invited” home visits for the sale of credit products either

linked with door to door sales products or credit sold as a result of an invited visit.

NLA suggests this problem is similar to the one discussed by the Senate Economics

Legislation Committee in Pages 49-54 of its report into the Trade Practices

Amendment (Australian Consumer Law) Bill (No 2) 2010, where it put forward the

view that door to door sales provisions should extend to circumstances beyond mere

canvassing. “Unsolicited contact” should include circumstances where consumers

are contacted and agree to home visits through indirect means such as being

approached in a shopping centre.

This report highlights the concern that the pressure felt by vulnerable consumers

from high pressure sales tactics is the same irrespective of whether the seller is by a

solicited invitation or by canvassing.

Similarly, with respect to the canvassing of credit at home, the protections that are

offered under section 156 of the Code to vulnerable consumers are justified. They

should also apply to circumstances beyond mere canvassing of credit to

circumstances where through indirect means an invitation is obtained from a

vulnerable consumer to discuss credit in their residential home. Sale of credit in the

home following solicited invitations into the home should be prohibited under section

156 of the Code.

NLA's view is that the sale of credit in "Door to Door" sales of goods or services

should be further regulated.

Green Paper on National Credit Reform - NLA Response

44

Commissions are approached by clients seeking assistance with consumer products

they have purchased in their home which have a linked credit or finance contract in

order to purchase the product. The prohibitions of unsolicited contact are often

avoided by devices such as obtaining contact details from consent forms on

promotional material.

NLA supports the implementation of Recommendation 5.16 of the Senate Economics

Legislation Committee Report:

NLA's experience is that door to door sales transactions with linked credit tend to

involve:

overstaying;

computer programmes and household appliances.

Green Paper on National Credit Reform - NLA Response

45

the salesperson being inconsistent with oral representations regarding the

nature of the transaction; and

otherwise on the best terms.

By the time the consumer feels confident enough to complain about the quality of the

goods purchased the company selling the products is usually uncontactable or no

longer financially viable. As a consequence, vulnerable consumers, who in many

instances suffer from poor English and financial literacy, are often left with a product

that has little value and a finance contract paying for the goods that has 2-5 years still

to run on the product. The consumer feels powerless because of the difficulty they

face in contacting the company responsible for the substandard merchandise.

Vulnerable consumers often continue to pay the finance contract because of the fear

that a credit company will list the debt on their credit rating if the contract falls into

default.

In response to this commonly arising situation, NLA suggests when a consumer who

has purchased goods or services in a door to door transaction with a linked credit

contract:raises, in writing or by a phone call to either company involved in the

transaction, a complaint that

represented,

the linked credit provider should be prevented from:

consumer; or

to be placed on any list of defaulters or debtors; or

Green Paper on National Credit Reform - NLA Response

46

unless the linked credit provider obtains a preliminary declaration from the Court that

The effect of this recommendation is that it moves the onus of proof from a

vulnerable consumer to the linked finance company to show that the products sold

with linked finance meet basic standards before they are able to attempt to enforce a

linked credit product against a consumer.

This protection is currently available to vulnerable consumers in section 71 of the Fair

Trading Act 1989 (Qld) and should be adopted as a national protection for all

vulnerable consumers throughout Australia.

No comment.

Please refer to the responses to Questions 14 and 15 on this point.

The requirement that holders of an Australian Credit Licence engage in responsible

lending does mean that those who wish to be able to lend irresponsibly will need to

remain unlicensed and attempt to avoid the Code. However, the civil and criminal

penalties in the NCCP Act and the Code should have a deterrent effect. The key to

deterrence is vigilance and effective enforcement. It is useful that the NCCP Act

provides consumers with remedies for unlawful credit activities and the Code

Green Paper on National Credit Reform - NLA Response

47

provides civil penalties enforceable by consumers for breach of key requirements of

the Code.

Until recently the principal means of avoidance has been the use of false business

purpose declarations for refinancing home loans into short term, higher interest, high

fee loans. Many credit providers who engaged in this activity escaped detection

because consumers either re-financed or lost their homes. The slowing of growth in

home prices in the later years of the decade, has slowed this practice. Court

decisions that have focused on the use to which credit has been put have been

reasonably effective in overturning the false declarations in those relatively few cases

that went to Court. However legislative oversight is still required in cases where false

business purposes declarations are not deemed invalid by the Court.

Other practices include those identified in the Green paper: concealing the cost of

credit in the price of goods, the use of bills of exchange and promissory notes, and

short term lending with “brokerage” or “administration fees” paid to third parties.

A particular concern in the practice of using false declarations was the use of a third

person, such as a legal practitioner, who, under the former Code, was not deemed to

be associated with the credit provider, to procure the declaration. This issue has

been addressed in the Code and the regulations.

While the use of “nod and wink” consumer leases is not, strictly speaking, an

avoidance of the Code because the Code does regulate the lease, the Code does

not regulate leases to the same extent that it regulates credit contracts (see

responses above in relation to consumer leases). The use of leases that do not

contain an explicit option to purchase is an avoidance measure because it seeks to

avoid the more thorough consumer protection that is afforded under credit contracts.

Many consumers enter these transactions in the mistaken belief that they are

purchasers and not lessees. In the chapter on leases above we suggest that leases

be subject to the same disclosure requirements as for credit contracts to discourage

the use of leases as an avoidance measure.

Green Paper on National Credit Reform - NLA Response

48

In recent years global economic conditions have had the unexpected silver lining of

putting some fringe credit providers and fringe brokers out of the consumer credit

market. As regulation has improved, the number of people involved in credit activity

designed to avoid the Code has declined. However, the use of leases to avoid the

degree of regulation that applies to credit contracts is increasing.

It is suggested that large scale attempted avoidance occurred under the former

Code. It is hoped that the avoidance has been made more difficult by the new Code.

It is to be expected that fringe lenders will return to the market as economic

conditions stabilise.

The use of leases rather than credit contracts is becoming more prevalent as a form

of credit for the most economically disadvantaged consumers to acquire household

goods and motor vehicles. The effect of this is to increase the poverty of these

vulnerable consumers because the cost of leasing can be very high and, especially in

the case of second-hand motor vehicles, the value of the product can be very low.

Because the consumers do not become the owners of the goods unless they pay a

final balloon payment for the residual value of the goods, they are trapped in a cycle

of leasing and never owning.

Consumer credit regulation should most importantly protect the most economically

disadvantaged. It is a problem that economically and socially disadvantaged people

have limited access to credit and at greater cost than less risky borrowers.

The use of false business purpose declarations is likely to continue at the fringes of

the market. A regulatory difficulty arises because consumers desperate for credit

can be complicit in the false business purpose declaration in order to obtain credit

and are therefore vulnerable to allegations of fraud directed at them by lenders who

disclaim knowledge of the conduct of the broker who procured the declaration.

Green Paper on National Credit Reform - NLA Response

49

The requirement for more extensive inquiries as to purpose may be met by more

elaborate fraudulent conduct by unscrupulous brokers. This places vulnerable

consumers at risk of being drawn into criminal conduct.

These practices tend to give the avoiders an unfair competitive advantage over those

who comply with the Code and undertake the expense of having and monitoring

compliance programs. These kind of practices can also damage the reputation of

industry overall to the unfair detriment of the reputation of the lenders and brokers

who do comply with the rules.

The reach of the Code should be extended, as far as possible, to protect all

consumers. Under the ASIC Act and the Trade Practices Act consumer protection is

provided with reference to the product being under the prescribed value or being a

kind ordinarily acquired for personal, household or domestic purposes. On the other

hand, the rationale for confining regulation to credit provided in the course of a

business is that it is not really possible to comprehensively regulate lending by

friends or relatives of the borrower even in those circumstances where a charge is

made for the provision of credit.

However, where the lender was first introduced by an intermediary who receives fees

(from the lender or the borrower or both) both the lender and the intermediary should

comply with the Code.

Lending on the security of a first mortgage over residential property has long been a

form of investment seen as producing higher levels of return to the investor than

saving in a deposit taking institution. Often these lenders are retirees or recipients of

personal injury damages awards who have modest assets and are attempting to

generate a slightly higher level of income without significant risk. The products are

Green Paper on National Credit Reform - NLA Response

50

promoted as having a low risk of loss of capital because they have first mortgage

security and are based on a conservative loan to value ratio.

In recent years schemes of this kind have been promoted to potential lenders on the

basis that the borrower will be using the money for an investment, thus taking the

transaction outside the reach of the Code. When the Code in fact applies, the

consequences for the lender can be serious and costly.

Under the new Code, investment in residential property is a use of credit that attracts

the protection of the Code and perhaps the incidence of attempted avoidance of the

Code on that ground will decline. However, if the question whether the Code applies

to the transaction depends on whether the credit provider is carrying on a business of

providing credit or providing credit incidentally to a business, this will cause

uncertainty for borrowers, whose consumer protection in a particular transaction will

depend on the circumstance over which they have no control and no means of

knowing: the identity and nature of the lender. Therefore, it is essential that the credit

be provided in accordance with the Code.

The best way of ensuring that this type of credit is regulated by the Code is to require

the intermediary to be licensed and to expand the definition of credit provider in the

Code to include intermediaries who facilitate this kind of transaction even though they

do not risk their own funds to provide the credit.

In view of the use of this type of scheme as an investment by individuals, often of

relatively modest means, it would be administratively difficult to require the ultimate

lender to have a license unless they carry on a business of providing credit or provide

credit incidentally to a business. However, there is a concern that, if the lender - who

is in privity of contract with the borrower and holds the securities - is not licensed,

does not have an IDR process and is not a member of an EDR scheme, the lender

will be able to commence or continue enforcement processes even while a dispute or

hardship variation is being dealt with by the intermediary.

Green Paper on National Credit Reform - NLA Response

51

If the lender is to be exempt from the licensing requirement, some other regulatory

change will be required to ensure that enforcement cannot take place while the

borrower and intermediary engage in IDR or EDR.

As noted above, one way of ensuring that consumers have the full protection of the

Code in the situation where the lender may not be in business, but an intermediary is

operating a business is to redefine “credit provider” to include intermediaries.

The practices identified in the Green Paper of concealing the cost of credit in the cost

of land or in the cost of goods sold on instalments have been addressed in sections

10, 11 and 12 of the new Code.

There is a risk that a change to the definition of credit or the removal of the

requirement that a charge is imposed for the provision of credit may complicate and

perhaps lessen the availability of credit in other consumer transactions; such as

provision of goods and services on a deferred fee basis where no charge is made for

the credit and the goods or services are provided at standard prices.

A more comprehensive change would be to remove the requirement that credit be

provided wholly or predominantly for personal, household and domestic purposes

and extend the protection of the Code to small business borrowers as canvassed in

Chapter 1. NLA notes that the discussion in Chapter 1 did not specifically address

the extension of the Code to small business as an anti-avoidance measure, it is

worth considering it from that point of view.

Please refer to the response to Question 8.

Green Paper on National Credit Reform - NLA Response

52

If the matter is addressed by changing the definition of credit provider without

changing the definition of credit, there may not need to be a change to the definition

of regulated credit. If a change is made to the definition of credit, it may be

necessary to confine that definition to this particular type of practice.

A disadvantage of changing the definition of regulated credit for a particular type of

transaction is the risk that regulation will be seen to be cumbersome and complex.

There is also the risk that regulation of a particular model of transaction will give rise

to attempts to modify aspects of the transaction to avoid the particular regulation.

It is to be expected that Federal regulation of consumer credit will be more adaptable

in the face of newly identified avoidance measures than was possible in the former

model of co-operative credit regulation.

However, an advantage of approaching avoidance on a case by case basis is that it

can guard against unintended consequences of regulatory change.

NLA notes that number 11 has been allocated to 2 questions in this chapter. This

answer addresses the question posed on page 103.

The issue of prevention of avoidance involves weighing the risks of unintended

regulatory consequences and the fact that avoidance often targets the most

disadvantaged and vulnerable consumers, who have the greatest need of protection.

A case by case approach can protect future vulnerable consumers, but leave those

caught up in an avoidance scheme behind.

NLA considers that the success of past avoidance practices resulted from the fact

that most consumer claims were promptly settled before a Court could examine the

transaction and enforcement action was not often taken by regulators. Many of those

Green Paper on National Credit Reform - NLA Response

53

avoidance practices were regulated by the Code, but the issues were not tested in

Court.

If a robust approach to the enforcement of compliance with the Code is taken and

identified avoidance measures are challenged by the regulator in Court, this could

reduce the incidence of avoidance attempts. As noted above, regulatory vigilance

and the enforcement of penalties have a deterrent effect on avoidance. If

intermediaries are required to be licensed, the danger that intermediaries will create

borderline credit products at the risk of the (perhaps unwary) lender will be reduced.

The establishment of a mechanism for prompt determination of whether credit of a

particular type is regulated would mean that newly identified avoidance practices

could be addressed before a great number of consumers became entangled in them.

NLA supports the option of a general anti-avoidance provision in combination with

Option Three (respond to avoidance case by case) if the regulator is equipped with

the resources to pursue vigorous enforcement.

NLA suggests that in combination with a robust approach to enforcement of the

current laws, a case by case approach to avoidance practices is to be preferred.

A general anti-avoidance measure combined with a summary process of determining

whether a type of transaction is regulated could provide both the deterrence and

regulatory responsiveness needed to minimise avoidance.

NLA considers that the civil penalty regime operating under the former Credit Acts

which exposed unlicensed credit providers to payment of a penalty equivalent to the

principal and interest had merit: it allowed for enforcement by consumers and was a

strong deterrent to avoidance.

Green Paper on National Credit Reform - NLA Response

54

Should you require further information, please do not hesitate to contact us.

Yours sincerely,

Alan Kirkland

Chair, National Legal Aid