ASIC Corporations and Credit (Reference Checking and Information Sharing Protocol) Instrument 2024/647 (Cth)

ASIC Corporations and Credit (Reference Checking and Information Sharing Protocol) Instrument 2024/647 I, Nathan Bourne, delegate of the Australian Securities and Investments Commission, make the following legislative instrument.

Date 7 August 2024

Nathan Bourne

Contents

Part 1—Preliminary 1 Name of legislative instrument 2 Commencement 3 Authority 4 Definitions and interpretation 4A Transitional Part 2—Protocol 5 Recruiting licensee and future mortgage intermediary—when a reference must or may be obtained 6 Requesting licensee—obligation to seek consent of individual 7 Requesting licensee—requesting a reference 8 Referee licensee—obligation to give reference 9 Agents 10 Use of information 11 No arrangement or agreements 12 Contact for reference checking and information sharing 13 Record-keeping Schedule 1—Template Consent Form (Recruiting Licensee) Schedule 2—Template Consent Form (Future Mortgage Intermediary) Schedule 3—Template Reference Request (Recruiting Licensee from Referee Licensee) Schedule 4—Template Reference Request (Recruiting Licensee from Prospective Representative Licensee) Schedule 5—Template Reference Request (Future Mortgage Intermediary)

Part 1—Preliminary

1 Name of legislative instrument This is the ASIC Corporations and Credit (Reference Checking and Information Sharing Protocol) Instrument 2024/647.

2 Commencement This instrument commences on the day after it is registered on the Federal Register of Legislation. Note: The register may be accessed at www.legislation.gov.au.

3 Authority This instrument is made under: (a) subsection 912A(3A) of the Corporations Act 2001; and (b) subsection 47(3A) of the National Consumer Credit Protection Act 2009.

4 Definitions and interpretation (1) In this instrument: acts as an intermediary has the same meaning as in section 9 of the Credit Act. authorised representative has the same meaning as in section 9 of the Corporations Act. clarification or update request means a request by a requesting licensee to a referee licensee to clarify specific information or provide an update on any unresolved matters mentioned in a reference provided by the referee licensee. Corporations Act means the Corporations Act 2001. Credit Act means the National Consumer Credit Protection Act 2009. credit assistance has the same meaning as in section 8 of the Credit Act. credit licensee has the same meaning as licensee in subsection 5(1) of the Credit Act. Note: A credit licensee includes a mortgage intermediary (as defined in this section). credit representative has the same meaning as in subsection 5(1) of the Credit Act. current credit licensee, in relation to an individual, means a credit licensee in respect of which the individual is a representative. current financial services licensee, in relation to an individual, means a financial services licensee in respect of which the individual is a representative. current licensee means a current credit licensee or a current financial services licensee. current mortgage intermediary: a mortgage intermediary is a current mortgage intermediary in relation to an individual if: (a) the mortgage intermediary is acting as an intermediary in relation to a credit licensee; and (b) the individual is, or is a representative of, the credit licensee and, in that capacity: (i) provides credit assistance in relation to credit contracts secured by mortgages over residential property; and (ii) is a mortgage broker or a director, employee or agent of a mortgage broker. financial services licensee has the same meaning as in section 9 of the Corporations Act. former credit licensee, in relation to an individual, means a credit licensee in respect of which the individual: (a) was a representative at any time in the previous 5 years; and (b) is no longer a representative. former financial services licensee, in relation to an individual, means a financial services licensee in respect of which the individual: (a) was a representative at any time in the previous 5 years; and (b) is no longer a representative. former licensee means a former credit licensee or a former financial services licensee. former mortgage intermediary: a mortgage intermediary is a former mortgage intermediary in relation to an individual if: (a) at any time in the previous 5 years: (i) the mortgage intermediary acted an intermediary in relation to a credit licensee; and (ii) the individual is, or is or was a representative of, the credit licensee and, in that capacity, the individual: (A) provided credit assistance in relation to credit contracts secured by mortgages over residential property; and (B) was a mortgage broker or a director, employee or agent of a mortgage broker; and (b) the mortgage intermediary is not a current mortgage intermediary in relation to the individual. future mortgage intermediary: a mortgage intermediary is a future mortgage intermediary in relation to an individual (relevant mortgage broker) if: (a) there are reasonable grounds to suspect that: (i) the mortgage intermediary is acting, or will act, as an intermediary in relation to a credit licensee; and (ii) the individual is, or is a current or prospective representative of, the credit licensee and, in that capacity, the individual: (A) provides, or will provide, credit assistance in relation to credit contracts secured by mortgages over residential property; and (B) is, or will be, a mortgage broker or a director, employee or agent of a mortgage broker; and (b) the mortgage intermediary is not a current mortgage intermediary in relation to the individual. mortgage broker has the same meaning as in section 15B of the Credit Act. mortgage intermediary means a credit licensee that is a mortgage intermediary within the meaning of subsection 15C(1) of the Credit Act. personal information has the same meaning as in section 6 of the Privacy Act. Privacy Act means the Privacy Act 1988. prospective representative: see the definitions of recruiting credit licensee and recruiting financial services licensee. recruiting credit licensee means a credit licensee that is considering employing or authorising an individual (prospective representative) who is: (a) a credit licensee or a financial services licensee; or (b) a former or current representative of a credit licensee or a financial services licensee; as a representative of the licensee, where there are reasonable grounds to suspect that, if the individual becomes a representative of the licensee, the individual will: (c) provide credit assistance in relation to credit contracts secured by mortgages over residential property; and (d) be a mortgage broker or a director, employee or agent of a mortgage broker. recruiting financial services licensee means a financial services licensee that is considering employing or authorising an individual (prospective representative) who is: (a) a financial services licensee or a credit licensee; or (b) a former or current representative of a financial services licensee or a credit licensee; as a representative of the licensee, where there are reasonable grounds to suspect that, if the individual becomes a representative of the licensee, the individual will provide personal advice to retail clients about relevant financial products. recruiting licensee means a recruiting credit licensee or a recruiting financial services licensee. referee licensee, in relation to an individual, means: (a) a credit licensee or a financial services licensee from whom subsection 5(1) requires a recruiting licensee to take reasonable steps to obtain a reference in relation to the individual; and (b) a former licensee, former mortgage intermediary or current mortgage intermediary from whom a recruiting licensee requests a reference under subsection 5(4) in relation to the individual; and (c) a former licensee, current licensee, former mortgage intermediary or current mortgage intermediary from whom a future mortgage intermediary requests a reference under subsection 5(5) in relation to the individual. relevant financial products has the same meaning as in section 9 of the Corporations Act. relevant mortgage broker: see the definition of future mortgage intermediary. representative: (a) in relation to a financial services licensee has the same meaning as in section 9 of the Corporations Act; and (b) in relation to a credit licensee has the same meaning as in subsection 5(1) of the Credit Act. requesting licensee: see subsection 6(1). (2) In this instrument, a reference to a reference, consent (given or withdrawn), notice, request, clarification or update, explanation or record is a reference to that thing in writing.