August 3, 2020

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August 03, 2020

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Australian Buy Now Pay Later Businesses Discuss Utility of Open Banking Regime

On 22 January 2018, two of the largest ‘buy now, pay later’ businesses in Australia, Afterpay and, appeared at a hearing before the Senate’s Economic References Committee.

During the Senate hearing, both and Afterpay presented how their respective business models operate and responded to questions about how the ‘buy now, pay later’ industry should be regulated. As previously mentioned, ‘buy now, pay later’ businesses are not currently classified as ‘credit providers’ under the National Credit Code (Code) and, as such, are not subject to the responsible lending obligations under the Code.

While stated they already complied with responsible lending obligations, Afterpay argued that it should not be regulated under the Code. Mr Eisen of Afterpay claimed that given its average transaction is $130, to trawl through customers’ bank account details,employment history and other aspects which are required within the policies and procedures of the Code is probably disproportionate.

In responding to Senator Hume’s question as to how Open Banking regime may affect its business model, Mr Eisen remarked that the regime could enable Afterpay to make more fully informed credit approval decisions. In particular, Mr Eisen noted that the forthcoming availability and proliferation of banking and transaction data under the regime could allow for businesses such as Afterpay to apply this data as a means of maintaining the lowest possible default rates and protecting customers and without being required to strictly adhere to the Code which may be more appropriate for more traditional credit providers.

While not going as far as Mr Eisen in promoting the capabilities of Open Banking, also agreed that the Open Banking regime, which commences from 1 July 2019 onward, will make consumer banking and transactional data more accessible for credit providers.

Copyright 2020 K & L GatesNational Law Review, Volume IX, Number 31


About this Author

Jim Bulling, KL Gates, financial services lawyer, funds management attorney

Mr. Bulling's practise focuses on banking and financial services and he acts for a range of entities in the financial services and funds management industry. His clients include Australian and international investment managers, banks, trustees of superannuation funds, wholesale and retail investment trusts, funds management companies and financial planning groups.

His main areas of focus include banking and financial product disclosure issues, financial services compliance issues, financial product distribution issues and superannuation and...

Felix Charlesworth, KLGates, Financial attorney

Mr. Charlesworth is a commercial and regulatory lawyer with a focus on the financial services industry.

 Mr. Charlesworth advises on a range of regulatory and compliance issues relevant to wholesale and retail fund managers, financial advisers, superannuation fund trustees and other financial services entities. He also has experience in advising multinational corporations about compliance measures targeted at the prevention of bribery and corruption. 

Edwin Tan, KL Gates, investment fund attorney

Mr. Tan is a commercial and regulatory lawyer with a focus on the financial services industry. He advises on a range of Australian regulatory and compliance issues relevant to FinTechs, fund managers, financial advisers and other financial services entities.

Mr. Tan also provides advice on governance and compliance measures targeted at the prevention of bribery, corruption and anti-money laundering.

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