Frequently Asked Questions

Answer:

Typically, the application process is through an online application where information about the applicant and proposed authorisations need to be provided.  The applicant is required to attest that they have all of the systems and processes in place, and is ready to commence business.

Some supporting documentation about the licensee and key personnel (Responsible Manager(s)) also need to be prepared and submitted with the application.  The supporting documentation and Responsible Managers warrant further discussion and is explained in more detail in our AFSL Series Fact Sheets.

Answer:

If you decide to obtain an AFSL, you need to understand its associated obligations.  When you buy your first family pet, just how much credence do you give to the additional costs, responsibilities, and obligations that come with it?!

Let’s have a look at some of the obligations imposed upon AFSL holders, and while we do, remember that you will need rigid, and continually tested and updated processes and procedures as evidence of your compliance with the obligations.

The key obligations are detailed in section 912A of the Corporations Act, and are also discussed in ASIC Regulatory Guide 104 (Licensing: Meeting the general obligations):

• Do all things necessary to ensure that the financial services covered by your licence are provided efficiently, honestly and fairly;
• Have adequate arrangements in place for managing conflicts of interest;
• Comply with the conditions on your licence;
• Comply with the financial services laws;
• Take reasonable steps to ensure that your representatives comply with the financial services laws;
• Where not regulated by APRA, have adequate financial, technological and human resources to provide the financial services covered by your licence and to carry out supervisory arrangements;
• Maintain the competence to provide the financial services covered by your licence (this is through the Responsible Managers);
• Ensure that your representatives are adequately trained and competent to provide those financial services;
• If you provide financial services to retail clients, have a dispute resolution system which includes being a member of an ASIC-approved external dispute resolution scheme; and
• Where not regulated by APRA, establish and maintain adequate risk management systems.

Other key obligations include:

• Maintaining appropriate professional indemnity insurance (if you have retail client authorisations);
• Appointing an ASIC-registered company auditor; and
• Maintaining minimum financial obligations, including having sufficient resources to meet your anticipated cash flow requirements.

Answer:

You are able to take over the accounting and administration of an SMSF client without the need to be licensed (Regulation 7.1.29(3)(a)).

Answer:

Crowdsourcing

Crowdsourced equity funding is a type of investment-based crowdsourced funding that involves a company offering its ordinary shares to investors through an online platform in return for a relatively small cash investment.

It is akin to a 'low-doc' IPO and has limits on how much money can be raised under it.

P2P lending

Peer-to-peer (or marketplace) lending is an arrangement through which investors invest money with the operator and which is then lent by the operator to borrowers (either consumers or businesses).

Such arrangements involve the use of an online platform on which loan requests are made.  The loan requests are then matched against offers to invest.  Investors either select the loans they wish to invest in or they are matched with loans that meet specified criteria.

In some arrangements, investors may also be exposed to a loan or a pool of loans.  Multiple investors may also fund a single loan.

Answer:

Before being appointed as a Responsible Manager (RM), you, in conjunction with any fellow RMs, must collectively have the appropriate knowledge and skills for all of the licensee’s financial services and products.

Once appointed ASIC Regulatory Guide (RG) 105 requires a licensee to maintain and update the knowledge and skills of its RMs.

The appropriate knowledge and skills to maintain are those that relate to the relevant financial services and products provided by the licensee.  This, importantly, includes the regulatory environment applicable to these products and services.

As an RM, you should keep a professional development plan setting out how you are going to maintain your knowledge and skills.  Activities to maintain your regulatory knowledge may include:

• quarterly attendance at the licensee’s compliance committee meeting which includes regulatory update provided by an appropriately qualified compliance committee member;
• annual attendance at RM training run by a compliance provider or law firm;
• reading regulatory updates relevant to the products and services for which you are responsible.

Activities to maintain your knowledge and skills in financial services and products relevant to your licensee include:

• attendance at industry association events;
• reading industry association publications; and
• if you are RG 146 compliant, ongoing training designed to meet your RG 146 obligations.

Answer:

Responsible Managers of ACLs are required to undertake 20 hours of CPD per year.  The following activities may be counted towards CPD:

• attendance at relevant professional seminars or conferences;
• preparation time for presenting at relevant professional seminars or conferences;
• publication of journal articles relevant to the credit industry;
• viewing DVDs of recent (within the last year) professional seminars or conferences (up to a maximum of 10 hours per year); and
• completion of online tutorials and/or quizzes on recent (within the last year) regulatory, technical or professional developments in the industry.

Responsible Managers of licensees who provide mortgage broking services are required to have completed a Certificate IV in Financial Services (Finance/Mortgage Broking).  A mortgage broking service is credit assistance provided in relation to a credit product where the credit is secured by real property.

Representatives who provide mortgage broking services will also be required to have completed a Certificate IV in Financial Services (Finance/Mortgage Broking).

ASIC considers it appropriate that those representatives providing mortgage broking services should also undertake 20 hours of CPD per year.  For other representatives, between 10 and 30 hours of CPD per year is standard.

Answer:

Now that your company has been granted an AFSL, it is prudent to have agreements in place with the officers and employees.

These may range from a specially tailored Responsible Manager agreement at one end of the scale to a less sophisticated employment agreement with the receptionist at the other.  All should include confidentiality provisions and some may contain non-compete clauses.  The key persons set out on the AFSL are usually critical to the approval of the licence and so it is important to retain these officers with sensible but enforceable agreements.

Where your business intends to act as an introducing broker for another licensee, close scrutiny of a proposed IB agreement is always wise.

Terms and conditions of trade, a privacy policy, staff policies (such as use of the internet, sexual harassment, anti-bullying, etc.), and an AML/CTF policy are all likely to be required.

You may decide to lease or buy premises from which to operate.  It is essential that those arrangements be at least reviewed by a lawyer with appropriate experience.  Third party supplier agreements should also be reviewed.

Answer:

Advisers are not automatically appointed to the Financial Adviser Register (FAR) when you obtain your AFSL.  The AFS licensee must manually add each adviser to the FAR by contacting ASIC.  If you are not sure whether your advisers have been appointed to the FAR, you can access the register on ASIC Connect.  From 15 November 2019, additional information must be included for new and existing advisers – see ASIC website for details and compliance dates.

Responsible Managers are appointed by the AFS licensee to demonstrate the organisational competence of the licensee to provide financial services.  Their details are listed on a non-public register with ASIC.  Where there is only one Responsible Manager demonstrating the competence of the licensee for a particular financial service or financial product, the Responsible Manager may also be listed on the AFSL as a Key Person.

If Responsible Managers are also advisers providing personal advice, they will need to be listed on the FAR.

Note that advisers who are appointed as authorised representatives will also need to be entered onto the Authorised Representatives Register.

Answer:

If you carry on a business of providing general advice to clients, this falls under the definition of a financial service.  As such, employees who provide general advice must be authorised by you.  This authorisation could form part of their employment agreement.

If your authorised representatives only provide general advice, they do not need to be registered on the Financial Advisers Register (FAR).

Answer:

You require a licence if you are carrying on a business of providing a financial service in Australia.

Whether or not you will require authorisation under a licence to act under a Power of Attorney will depend on what you are being asked to do and the context.  For example, if it is part of your business to provide a financial service, such as dealing with financial products on behalf of another, under a Power of Attorney, you will require a licence unless an exemption applies.

If you are unsure about whether you require a licence, we recommend you seek legal advice.

Answer:

All reporting entities must create and maintain complete and accurate records of the services it provides to customers, and store them securely in a form that allows them to be retrieved and audited (either electronically or in hard copy).

As a reporting entity, you will need to comply with the following record keeping requirements:

In addition to fulfilling record keeping obligations, maintaining the above records will also assist you to comply with other AML/CTF obligations, including:

• assessing the effectiveness of your Program and your ML/TF risk assessment;
• assessing the effectiveness of your customer identification and verification procedures;
• reconstructing customer transactions;
• identifying and evaluating potential suspicious matters;
• assessing the effectiveness of your compliance with the obligation to report suspicious matters, threshold transactions and international funds transfer instruction reports;
• managing your business’ ML/TF risks; and
• satisfying any court orders, notices or inquiries from AUSTRAC or any other parties or agencies which require the disclosure of information which relates to your AML/CTF compliance.

All reporting entities must also comply with the Privacy Act.

Answer:

The process to apply for an Australian Credit Licence involves an online application which is submitted to ASIC along with supporting documentation about the applicant, the fit and proper persons and responsible managers.

The process is fully online where the applicant is required to attach the supporting documents to the application prior to submission.

In the online application, the applicant is required to attest that they have all of the required compliance systems and arrangements in place.

Depending on the authorisations being applied for, ASIC may request further information about the proposed business model or the experience of the responsible manager(s).  ASIC may also request copies of important documents such as the compliance plan, responsible lending policy or hardship policy.