There are a large number of high-cost short-term loans, often referred to as “payday loans”, offered to consumers, particularly in disadvantaged neighbourhoods. Before taking out a payday loan, consumers should speak to a free, community based financial counsellor about managing their debts or alternative funding options. These may include hardship variations for bills, energy relief grants, emergency assistance, Centrelink advances and low-interest loan schemes (see Financial counselling services).
If a consumer has entered into a payday loan, they should consider whether the lender has complied with its obligations (see especially, “Responsible lending obligations: suitability” in Understanding credit and finance, and “Unjust contracts”) and decide whether a complaint to a dispute resolution scheme is warranted.
The Enhancements Act introduced a raft of measures that came into effect between March 2013 and July 2013 that are intended to reduce the harm caused by payday loans.
The NCCPA now distinguishes between four types of loans:
•short-term credit contracts;
•small amount credit contracts;
•medium amount credit contracts;
•all other loans.
Since 1 March 2013, “short-term credit contracts” have been prohibited under section 133CA of the NCCPA. A short-term credit contract is defined as having a credit limit of $2,000 or less and a term of 15 days or less (s 5(1) NCCPA). This definition does not extend to loans offered by authorised deposit-taking institutions (such as banks or credit unions) or “continuing credit contracts” (such as credit card contract; see also s 204 NCC).
The Enhancements Act also inserted into the NCCPA a number of provisions relating to small amount credit contracts. Section 5 of the NCCPA defines a “small amount credit contract” as a contract that:
•has a credit limit of $2,000 or less;
•a term of at least 16 days but not longer than one year;
•is not provided by an “authorised deposit-taking institution” and is not a “continuing credit contract”; and
•the consumer’s obligations under the contract are not secured.
As of 1 March 2013:
•a credit provider must obtain and consider a consumer’s bank account statement covering at the least the immediately preceding 90 days as part of its responsible lending assessment (s 117(1A) NCCPA); and
•there will be a rebuttable presumption that if a consumer is in default under an existing small amount credit contract, or has had two or more small amount credit contracts in the immediately preceding 90 days, the consumer will only be able to comply with a new small amount credit contract with financial hardship (s 123(3A) NCCPA).
As of 1 July 2013, section 31A of the NCC limits the amount of interest, fees and charges that may be imposed by small amount credit contracts to:
aan establishment fee not exceeding 20 per cent of the amount of credit a borrower receives;
ba maximum monthly fee not exceeding four per cent of the amount of credit the borrower receives;
cdefault fees or charges; and
d any government fee, charge or duty payable.
In addition, section 31A(1A) of the NCC bans establishment fees under small amount contracts entered into for the purpose of refinancing another small amount credit contract. Section 39B of the NCC limits the amount payable if there is a default to twice the amount of credit received by the borrower, plus reasonable enforcement expenses.
Medium amount credit contracts
According to section 204(1) of the NCC, a ‘medium amount credit contract’ is similar to a small amount credit contract, save that the credit limit is at least $2,001 and not more than $5,000, the term of the contract is at least 16 days but not longer than two years, and the consumer’s obligations under the contract can be secured.
The Enhancements Act amended the NCC such that from 1 July 2013, a medium amount credit contract cannot have an annual cost rate higher than 48 per cent (s 32A NCC). The method for calculating the annual cost rate is set out in section 32B of the NCC. However, in addition to this amount, an establishment fee of up to $400 may be charged (s 32B NCC).