ASIC has released Regulatory Guide 218 Licensing: Administrative action against persons engaging in credit activities (RG 218) to help the credit industry better understand ASIC’s administrative powers to enforce the National Consumer Credit Protection Act.
Such powers include, for example, suspending or cancelling a credit licence, banning a person from engaging in credit activities, or varying or imposing conditions on a licence.
RG 218 outlines the matters ASIC takes into account in determining whether administrative action is the most appropriate response in a particular case (relevant matters could include, for example, the nature and seriousness of suspected misconduct; the previous regulatory record of the licensee).
RG 218 also provides some indicative guidance on the kinds of factors ASIC will consider when determining the length of a banning order, including providing examples of relevant misconduct for illustration.
While ASIC assesses each matter on a case-by-case basis, the non-prescriptive factors – and the examples – set out in RG 218, are intended to provide transparency as to how ASIC determines the most appropriate regulatory response in a case.