National Consumer Credit Protection (Fees) Act 2009

The central concept in the Act is the chargeable matter, exhaustively defined in section 4(1) by eight paragraphs (a) through (h). These are: (a) lodging a document under the NCCP Act or Transitional Act; (b) including a document in a register maintained under either Act; (c) inspecting or searching a register kept by ASIC, or a document in ASIC’s custody, under either Act; (d) making available by ASIC of information (in document form or otherwise) under either Act; (e) production by ASIC under a subpoena of such a register or document; (f) issuing a document or copy, granting a licence, registration, consent or approval, or doing any other act under either Act by the Minister or ASIC; (g) making an inquiry of or application to the Minister or ASIC in relation to a matter under either Act; and (h) submitting a document to ASIC for examination. The breadth of this list means that nearly every exchange between a regulated entity and ASIC or the Minister under the credit regime is a chargeable matter. The Act also defines representative of a person by cross-reference: for a licensee it has the meaning in section 5 of the NCCP Act; for a registered person (as defined in the Transitional Act) it has the meaning in section 4 of that Act; and otherwise it has the same meaning as in section 5 of the NCCP Act (section 4(1)). This layered definition means that the term can vary depending on whether the entity is a licensee or a transitional registrant, and it picks up the NCCP Act’s wide definition of representative (which includes employees, agents, and other authorised persons). Because sections 8 and 8A permit fee differentiation based on the number or kind of representatives a person has, an entity with many representatives could face a higher fee for the same chargeable matter than a sole practitioner. Another key concept is that fees are imposed as taxes (section 5(2)). This characterisation is not merely formal; it affects enforceability, liability for late payment (including possible interest and penalties under taxation law), and possibly GST treatment. The Act expressly disconnects fee amounts from cost recovery: section 6(2) states the fee need not bear any relationship to the cost of providing any service forming part of, or related to, the chargeable matter. This is a clear legislative choice to allow fees to be used as a revenue-raising or behaviour-steering tool, not merely a cost-recovery mechanism. The Act also permits multiple fees for the same chargeable matter (section 5(3)), subject to a total cap of $50,000 per chargeable matter (section 6(3)), and a per-fee cap of $10,000 (section 6(1)(a)). The caps apply separately to each fee if more than one is prescribed for the same matter. Finally, the time liability is incurred is fixed by section 9 for each type of chargeable matter , generally at the time of lodgment, request, service, or submission, not when ASIC completes the action. This means an entity cannot defer payment by waiting for the service to be performed.

The Act directly affects any person who lodges, requests, submits, or otherwise triggers a chargeable matter under the credit Acts. This includes, most obviously, credit licensees who lodge documents such as licence applications, annual compliance certificates, or change-of-details notices (paragraph (a) of the chargeable matter definition). It also affects applicants for a credit licence, registration, consent, or approval (paragraph (f)) , the person for whose benefit the act is done may be liable even if no request was made. For example, if ASIC on its own initiative grants a consent, the person benefitting from that consent must pay the fee (section 9(f)(ii)). Third-party representatives , lawyers, accountants, credit advisers, or mortgage brokers , who lodge documents on behalf of a client will have a direct liability for the fee if they are the person who lodges (section 9(a)(i)). The Act does not authorise passing the fee on to the client as a statutory entitlement, though that can happen contractually. The liability is fixed at the time of the action, and there is no provision for refund if the document is rejected or the application is withdrawn. ASIC is affected as the recipient of requests and fees; it must collect fees and may potentially refuse to process a matter if the fee is not paid, though the Act itself does not create a power to refuse , that would need to be found in the regulations or the principal Acts. The Minister is also affected, as some chargeable matters involve ministerial acts (paragraph (f)). The Crown is affected where it is bound by the substantive credit Acts in a capacity; for example, a State-owned entity that is subject to the NCCP Act in its credit activities must pay fees under this Act (section 3). This is significant because many government enterprises (such as state housing authorities or public trustee offices) engage in credit activities and may previously have been immune from such taxes. Consumers and borrowers are indirectly affected because the compliance costs of fees are likely to be passed on in the price of credit products. The more representatives a licensee has, or the more paper-based its compliance, the higher its regulatory bill, and those costs are ultimately borne by counterparties. The Act also affects persons making inquiries or applications to ASIC or the Minister (paragraph (g)), including journalists, researchers, and competitors seeking information under the register or from ASIC’s documents. A search or information request can trigger a fee, so anyone accessing the credit registers , not only licensees , is a potential fee payer. Finally, subpoena parties are affected: a person who files a subpoena requiring ASIC to produce documents bears the fee (paragraph (e) and section 9(e)). This adds a cost to litigation and regulatory proceedings.

The primary duty under the Act is the duty to pay the fee for a chargeable matter. This duty is not expressed as a criminal offence or a civil penalty provision; rather, the fees are imposed as taxes. The person liable is identified by section 9 according to the type of chargeable matter. For example, the person who lodges a document must pay the fee for that lodgment (paragraph (a)); the person who requests inclusion of a document in a register, or if no request the person who lodges, must pay (paragraph (b)); the person who requests an inspection or search must pay (paragraph (c)); and so on. The duty crystallises at the time the action occurs , when the document is lodged, the request is made, the subpoena is served on ASIC, or the document is submitted. There is no discretion to waive or reduce the fee under the Act itself; any remission or waiver would need to be found in the regulations or another instrument. The Act grants ASIC and the Minister no express power to refuse to perform the chargeable matter if the fee is unpaid. However, as a practical matter, if the fee is a tax, ASIC may have the power to withhold performance until payment is made, and that power could be implied from the structure of the Act or from the regulations. The regulations may also prescribe consequences for non-payment.

The right of a person is to have fees set in accordance with the caps and criteria in the Act. The maximum per fee is $10,000 (section 6(1)(a)), and the total of all fees for the same chargeable matter cannot exceed $50,000 (section 6(3)). This provides an outer bound: no single administrative action can attract a fee above $10,000 under a single fee head, though multiple different fees for the same matter could stack up to $50,000. The Act also creates a right to differential treatment in certain circumstances. The regulations may set different fees depending on whether the matter is complied with by electronic means (section 7), on the number of representatives a person has (section 8), and on any matter relating to the person liable to pay (section 8A). This means a person may benefit from a lower fee if they use electronic lodgment or have fewer representatives, but it also means a person could face higher fees based on subjective or broad criteria. Section 8A is particularly open-ended: fees may vary having regard to “any matter relating to the person by whom the fee is payable”. This could refer to the person’s size, revenue, regulatory history, or anything else. The Act provides no right to dispute the fee on the ground that it exceeds cost; section 6(2) directly removes that avenue. A person’s only way to challenge a fee is to argue that the regulation prescribing it is beyond power (e.g., exceeds the cap, is not for a chargeable matter, or is not a tax). The Act also does not confer a right to a refund if the service is not provided or is defective; liability is incurred at the time of the action, not on performance. The Crown has a duty to pay fees where it is bound by the substantive Acts (section 3), which is a notable extension of liability onto government entities.

The Act itself creates no penalty provisions. It does not state what happens if a person fails to pay a fee. However, because the fees are imposed as taxes (section 5(2)), the ordinary mechanisms for tax recovery would apply. The Commonwealth would be able to recover unpaid fees as a debt due to the Commonwealth, potentially with interest and late payment penalties under the Taxation Administration Act 1953 or general government debt recovery legislation. The regulations made under this Act may prescribe additional consequences, such as the refusal to accept a lodgment or provide a service until the fee is paid. But the source text does not specify any such regulation. It is also possible that the principal Acts (NCCP Act and Transitional Act) contain provisions linking fee payment to the validity of an application or document. For example, a licence application might be considered incomplete if the fee is not paid. However, that would depend on those Acts, not this Fees Act. The enforcement risk for a fee payer is that the failure to pay the fee when due (at the time of the action) could lead to a tax debt with accruing penalties and ultimately court proceedings. For ASIC and the Minister, there is an enforcement incentive to ensure fees are collected, as the fees are tax revenue. The Act does not impose criminal liability for non-payment, but if a person evades payment by providing false information or failing to disclose a chargeable matter, they could be liable under other laws (e.g., the Criminal Code Act 1995 for fraud or false statements). The Act also does not create a civil penalty regime specific to fee evasion. Because the fees are taxes, the Taxation Administration Act 1953 may apply rules about objections, reviews, and appeals, but those are not mentioned in the source. In litigation, the person liable could argue that the regulation prescribing the fee is invalid for exceeding the statutory caps or for not being a proper chargeable matter. That would be an administrative law challenge, not a defence to non-payment. The Act itself gives no specific enforcement power to ASIC; enforcement would be by the Commonwealth as tax collector.

The Act sits within a legislative package that includes the National Consumer Credit Protection Act 2009 (the principal Act) and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (the Transitional Act). The chargeable matters are defined solely by reference to those two Acts (section 4(1) definition: “under the National Consumer Credit Protection Act 2009 or the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009”). It does not extend to matters under other legislation, such as the Corporations Act 2001 or the Australian Securities and Investments Commission Act 2001, except to the extent that those other Acts are cross-referenced in the NCCP Act. However, because the NCCP Act itself imports many concepts and procedures from the Corporations Act (e.g., licensing provisions), the practical scope of chargeable matters could be broad. The Act also interacts with general tax law because the fees are imposed as taxes. The Taxation Administration Act 1953 governs the collection and recovery of Commonwealth taxes, and it is likely that unpaid fees under this Act are recoverable under that framework. The Act does not mention GST, but if the fees are taxes they may be input-taxed or GST-free under A New Tax System (Goods and Services Tax) Act 1999, depending on characterisation. Practitioners should verify whether the fee attracts GST. The Act also interacts with the Administrative Appeals Tribunal Act 1975 and the Judiciary Act 1903 to the extent that a person may seek merits review or judicial review of a decision to charge a fee or a regulation setting a fee. However, the Act itself does not confer a right of review; any review would arise under general administrative law. The definition of “representative” cross-references the NCCP Act (section 5) and the Transitional Act (section 4), so the meaning of that term is picked up from those Acts. If the NCCP Act is amended to change the definition of “representative”, that change will automatically flow through to this Fees Act (section 4(1) and (2)). The Act also interacts with state and territory laws regarding the Crown: section 3 binds the Crown in a capacity where the substantive Acts bind it. This likely overrides any state immunity from Commonwealth fees. The Act does not interact with consumer credit contracts directly; its effect is on the administrative layer between regulators and regulated entities.

The source text provides the Act as originally passed and assented to on 16 November 2009. The commencement table in section 2 covers only the original provisions. The Act as shown includes section 8A, which is headed “Different fees for matters relating to person liable to pay fee”. Section 8A was not part of the original numbering scheme (the original Act had sections 1-10, with 8 and 8A? Unclear). The original Act passed in 2009 likely had sections up to 8 only. Section 8A appears to have been inserted by a later amendment, but the source provided does not detail that amendment. The user’s instructions say the “legislation text is below , read all of it”. The text includes section 8A, so it is part of the Act as currently in force. However, because no amendment history is provided, we cannot specify the date or amending Act. Based on the text alone, we can note that the Act has been amended to insert section 8A, which broadens the discretion to differentiate fees. The original Act (2009) likely had only sections 1-10, with section 8 dealing with representative numbers, and section 8A added later. The caps in section 6 (per fee $10,000, total $50,000) have remained unchanged as far as we can see. The commencement table remains applicable for the original provisions, but any amendments would have their own commencement details not shown. The Note in the table states: “This table relates only to the provisions of this Act as originally passed … It will not be expanded to deal with provisions inserted in this Act after assent.” This confirms that section 8A was inserted later. The Act does not appear to have been amended to change the fee caps or the definition of chargeable matter, but we cannot be certain without the full amendment history. For compliance purposes, one should always consult the current version of the Act on the Federal Register of Legislation, not just this source.

The source text contains no reference to any litigation, and no cases are named or discussed. The Act itself does not create private rights of action, so litigation is likely limited to challenges to the validity of regulations or disputes about fee liability. Potential litigation grounds include: (a) whether a particular action falls within the definition of “chargeable matter”; (b) whether a fee exceeds the statutory caps ($10,000 per fee, $50,000 total); (c) whether the fee is truly a tax (and thus permissible under the Constitution’s requirement that a tax must be for a public purpose); and (d) whether the regulations are invalid for being discriminatory or for exceeding the scope of the Act’s delegation. The High Court may have considered the constitutional validity of fees imposed as taxes by delegation, but we cannot assert that without source. In practice, given the modest fee caps, litigation over a single fee is unlikely unless a large licensee faces multiple fees totalling the $50,000 cap. The Act’s short length and administrative nature mean it seldom appears in reported litigation. However, the broader National Consumer Credit Protection regime has been litigated frequently, and fee-related disputes may arise indirectly. For example, if ASIC refuses to register a credit contract because a fee was not paid, that refusal could be challenged. But the Fees Act itself is unlikely to be the primary subject of litigation. The absence of litigation history in the source means we cannot discuss any specific cases. Practitioners should be aware that the Act is a taxation statute, and any dispute over liability would follow the tax appeal process under the Taxation Administration Act 1953, not the general civil procedure of the Federal Court.

Several features of the Act can trap the unwary. First, fees are taxes, not user charges. This means a person cannot argue that a fee is too high relative to the cost of processing; the Act expressly disallows that argument (section 6(2)). Even if ASIC spends negligible resources on a matter, the fee can still be set high. Second, multiple fees for the same matter are allowed (section 5(3)). A single lodgment could attract a lodgment fee, a registration fee, and a separate fee for the inclusion of the document in a register , all taxed on top of each other, up to $50,000. Third, the person liable is not always the end-user. The person who lodges a document (such as a lawyer or agent) is personally liable for the fee, not necessarily the client. If the practitioner fails to pass that cost on or collect it in advance, they bear the loss. Fourth, liability arises at lodgment or request, not at completion. Even if ASIC rejects the document, loses it, or delays processing, the fee is still payable and non-refundable. The Act provides no refund mechanism. Fifth, differential fees based on representatives (section 8) and any matter relating to the person (section 8A) allow the regulations to target specific categories. A licensee with a large number of representatives , for example, a large bank with thousands of employees and agents , could be charged a higher fee for the same action as a small broker. This is a cost that scales with business size, not with the volume of lodgments. Sixth, the Crown is bound (section 3). State government entities that engage in credit activities must pay fees, even if they are not otherwise taxable. Seventh, the per-fee cap of $10,000 and total cap of $50,000 are the only limits. A regulation could prescribe a fee of $10,000 for a simple document inspection, and further fees for related matters could add up. Eighth, electronic compliance may attract a lower fee (section 7), but the Act does not mandate that; it leaves it to the regulations. If the regulations do not provide a discount, paper and electronic filers pay the same. Ninth, the definition of “representative” is layered and may include not only employees but also franchisees, authorised credit representatives, and other intermediaries. The number of such persons at a given time can fluctuate, and the fee may be recalculated periodically. Tenth, section 8A is a wild card: it allows fees to vary based on any matter relating to the person liable. This could include the person’s net assets, turnover, or even compliance history. This creates uncertainty and potential for discriminatory treatment, though it also allows the government to calibrate fees to ability to pay. Finally, the Act does not specify what happens if you don’t pay. The fee could become a tax debt with automatic penalties, and ASIC might refuse to process the matter. The safest approach is to treat the fee as a precondition to the action and pay it at the time of lodgment, request, or submission.

Compliance with this Act is largely administrative and passive: you must pay the prescribed fee at the time you trigger a chargeable matter. There are no ongoing reporting or record-keeping duties imposed by this Act itself. However, to avoid liability and ensure smooth dealings with ASIC, a person should follow several practical steps. First, identify which of your actions under the NCCP Act or Transitional Act fall within the eight categories of “chargeable matter”. Any lodgment, request for inclusion in a register, inspection or search of a register, request for information, subpoena, application for licence or consent, inquiry, or submission of a document for examination is potentially chargeable. Second, before taking any such action, check the current regulations made under this Act to determine the fee amount. The regulations will be published on the Federal Register of Legislation and may be updated regularly. Pay particular attention to any differential rates for electronic lodgment or based on the number of representatives you have. Third, ensure you have sufficient funds or credit to pay the fee at the time of the action. Because liability arises when the lodgment, request, or submission occurs, you cannot pay after the fact. Fourth, if you are acting as a representative (e.g., a lawyer or agent lodging on behalf of a client), clarify in your engagement letter who bears the fee liability. The Act makes the person who lodges liable, so you may be out of pocket if the client does not reimburse you. Consider requiring the client to pay the fee in advance or arranging direct debit from the client’s account. Fifth, if you have many representatives , such as authorised credit representatives, employees, or franchisees , monitor the number because the regulations may set fees based on that number. A change in the number of representatives at a particular time could affect the fee for a chargeable matter you are about to perform. Sixth, consider using electronic lodgment and communication with ASIC if the regulations offer a lower fee. The Act authorises differential fees for electronic compliance, so it is likely that electronic methods are cheaper. Seventh, maintain records of each fee paid, including the date, amount, and chargeable matter. Even though the Act does not require record-keeping, these records will be essential if ASIC or the ATO later questions a payment, or if you need to verify that a fee was paid before a service was provided. Eighth, if you are a government entity subject to the Act, check whether the regulations exempt you or reduce the fee. The Act binds the Crown, but the regulations might provide for lower fees for public sector entities. Ninth, be aware of the caps: no single fee can exceed $10,000 and the total for a single chargeable matter cannot exceed $50,000. If you are quoted a fee that appears to breach these caps, challenge the quote before paying. Tenth, if you dispute a fee, pay it under protest and seek review via the tax objection process or administrative law. Non-payment could lead to tax debt recovery and penalties, so it is safer to pay and challenge later. Finally, stay informed of any amendments to the Act or regulations, particularly changes to the caps or the types of differential fees. The law may change to introduce new fees or increase existing ones.