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This is a Bill, not an Act. For current law, see the Acts databases.
NATIONAL CONSUMER CREDIT PROTECTION BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Consumer Credit Protection
Bill 2009
No. , 2009
(Treasury)
A Bill for an Act relating to credit, and for related
purposes
i National Consumer Credit Protection Bill 2009 No. , 2009
Contents
Chapter 1--Introduction
1
Part 1-1--Introduction
1
1
Short title................................................................................ 1
2
Commencement ..................................................................... 2
3
The National Credit Code ...................................................... 2
Part 1-2--Definitions
3
Division 1--Introduction
3
4
Guide to this Part.................................................................... 3
Division 2--The Dictionary
4
5
The Dictionary ....................................................................... 4
Division 3--Definitions relating to the meaning of credit activity
16
6
Meaning of credit activity .................................................... 16
7
Meaning of credit service .................................................... 17
8
Meaning of credit assistance ............................................... 17
9
Meaning of acts as an intermediary .................................... 18
10
Assignees of credit providers, lessors, mortgagees
and beneficiaries of a guarantee........................................... 18
Division 4--Other definitions
20
11
Meaning of approved external dispute resolution
scheme .................................................................................. 20
12
When a business is carried on in this jurisdiction ............... 20
13
Meaning of misleading......................................................... 20
14
Meaning of person--generally includes a partnership ........ 21
15
Meaning of person--generally includes multiple
trustees ................................................................................. 21
16
Qualified privilege ............................................................... 23
Part 1-3--Application of this Act and the Transitional Act
24
Division 1--Introduction
24
17
Guide to this Part.................................................................. 24
Division 2--Constitutional basis and application of this Act and
the Transitional Act
25
18
Constitutional basis for this Act and the Transitional
Act ........................................................................................ 25
19
Meaning of referring State................................................... 26
National Consumer Credit Protection Bill 2009 No. , 2009 ii
20
Meaning of referred credit matters...................................... 28
21
General application of this Act and the Transitional
Act ........................................................................................ 32
22
Acts bind Crown .................................................................. 33
Division 3--Interaction between the Commonwealth credit
legislation and State and Territory laws
34
23
Concurrent operation intended............................................. 34
24
When Commonwealth credit legislation does not
apply..................................................................................... 34
25
Avoiding direct inconsistency between
Commonwealth and State and Territory laws...................... 35
26
Regulations to deal with interaction between laws .............. 36
Chapter 2--Licensing of persons who engage in credit
activities
39
Part 2-1--Require ment to be licensed to engage in credit
activities
39
Division 1--Introduction
39
27
Guide to this Part.................................................................. 39
Division 2--Engaging in credit activities without a licence
40
28
Application of this Division ................................................. 40
29
Prohibition on engaging in credit activities without a
licence .................................................................................. 40
Division 3--Other prohibitions relating to the requirement to be
licensed and to credit activities
42
30
Prohibitions on holding out and advertising etc................... 42
31
Prohibition on conducting business with unlicensed
persons ................................................................................. 43
32
Prohibition on charging a fee etc. ........................................ 43
33
Prohibition on giving misleading information etc. .............. 44
Part 2-2--Australian credit licences
45
Division 1--Introduction
45
34
Guide to this Part.................................................................. 45
Division 2--Australian credit licences
46
35
Australian credit licences ..................................................... 46
Division 3--How to get an Australian credit licence
47
36
Applying for a licence.......................................................... 47
iii National Consumer Credit Protection Bill 2009 No. , 2009
37
When a licence may be granted--applicants other
than ADIs ............................................................................. 47
38
When a licence may be granted--ADIs............................... 49
39
Regulations may prescribe streamlined process for
other applicants .................................................................... 50
40
Licences must not be granted to certain applicants.............. 50
41
Applicant must be given hearing before refusal of
licence .................................................................................. 50
42
Notice of grant or refusal of licence and date of
effect..................................................................................... 51
43
Australian credit licence numbers ........................................ 51
44
Basis on which licence is granted ........................................ 51
Division 4--Conditions on an Australian credit licence
53
45
The conditions on the licence............................................... 53
46
Licence conditions--special procedures for
APRA-regulated bodies ....................................................... 54
Division 5--Obligations of licensees
56
47
General conduct obligations of licensees ............................. 56
48
Requirements for compensation arrangements .................... 57
49
Obligation to provide a statement or obtain an audit
report if directed by ASIC.................................................... 58
50
Obligation to give ASIC information required by the
regulations ............................................................................ 60
51
Obligation to provide ASIC with assistance if
reasonably requested ............................................................ 61
52
Obligation to cite Australian credit licence number ............ 61
53
Obligation to lodge annual compliance certificate .............. 62
Division 6--When a licence can be suspended, cancelled or
varied
64
Subdivision A--Sus pensions and c ancellations
64
54
Suspension or cancellation without hearing......................... 64
55
Suspension or cancellation after offering a hearing............. 64
56
Suspension and cancellation--special procedures for
APRA-regulated bodies ....................................................... 66
Subdivision B--Variations
67
57
Varying licences ................................................................... 67
Subdivision C--Miscellaneous rules about suspensions,
cancellations and variations
67
58
Effect of suspension ............................................................. 67
59
Revocation of suspension..................................................... 67
National Consumer Credit Protection Bill 2009 No. , 2009 iv
60
Date of effect, notice and publication of variation,
cancellation or suspension etc.............................................. 67
61
Statement of reasons ............................................................ 68
62
ASIC may allow licence to continue in force ...................... 68
Part 2-3--Credit representatives and other representatives of
licensees
69
Division 1--Introduction
69
63
Guide to this Part.................................................................. 69
Division 2--Authorisation of credit representatives
70
64
Licensee may authorise credit representatives..................... 70
65
Credit representative that is a body corporate may
sub-authorise natural persons as credit
representatives...................................................................... 71
66
Credit representative of 2 or more licensees ........................ 72
67
A person cannot be a credit representative in relation
to credit activities authorised by a person's licence............. 73
68
Variation and revocation of authorisations and
sub-authorisations ................................................................ 73
69
Obligation not to give authorisation that has no effect ........ 74
70
Obligation to vary or revoke authorisation that ceases
to have effect ........................................................................ 74
71
Obligation to notify ASIC etc. about credit
representatives...................................................................... 75
72
Credit representative numbers ............................................. 77
Division 3--Information about representatives
78
73
ASIC may give licensee information about
representatives...................................................................... 78
Division 4--Liability of licensees for representatives
81
74
Application of this Division ................................................. 81
75
Responsibility if representative of only one licensee........... 81
76
Representatives of multiple licensees .................................. 81
77
Responsibility extends to loss or damage suffered by
client ..................................................................................... 82
78
Effect of this Division .......................................................... 82
Part 2-4--Banning or disqualification of persons from
engaging in credit activities
84
Division 1--Introduction
84
79
Guide to this Part.................................................................. 84
v National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Banning orders
85
80
ASIC's power to make a banning order............................... 85
81
What is a banning order?..................................................... 86
82
Effect of banning orders ....................................................... 87
83
Variation or cancellation of banning orders ......................... 88
84
Date of effect, notice and publication of banning
order, variation or cancellation ............................................ 88
85
Statement of reasons ............................................................ 89
Division 3--Disqualification by the court
90
86
Disqualification by the court................................................ 90
Part 2-5--Financial records, trust accounts and audit reports
91
Division 1--Introduction
91
87
Guide to this Part.................................................................. 91
Division 2--Financial records of licensees
92
88
Obligation to keep financial records .................................... 92
89
How financial records are to be kept ................................... 93
90
Language of financial records .............................................. 93
91
Location of financial records ............................................... 93
92
Information to be shown in financial records ...................... 94
93
Regulations may impose additional requirements ............... 94
94
Financial records taken to be made with licensee's
authority ............................................................................... 95
95
Obligation to retain financial records for 7 years ................ 95
96
Financial records are prima facie evidence of matters......... 96
Division 3--Trust accounts of credit service licensees
97
97
Application of this Division ................................................. 97
98
Obligation for credit service licensees to maintain
trust account ......................................................................... 97
99
Obligations in relation to trust account money .................... 98
100
Obligation to lodge trust account statement and trust
account audit report.............................................................. 99
101
Time of lodgment of trust account statement and
trust account audit report.................................................... 100
Division 4--Matters relating to audit reports
102
102
Auditor's right of access to records, information etc. ........ 102
103
Auditor's fees and expenses............................................... 103
104
Auditor to report on certain matters ................................... 103
105
Qualified privilege for auditor etc...................................... 104
106
Regulations in relation to audit reports etc. ....................... 105
National Consumer Credit Protection Bill 2009 No. , 2009 vi
Part 2-6--Exe mptions and modifications relating to this
Chapter
106
Division 1--Introduction
106
107
Guide to this Part................................................................ 106
Division 2--Exemptions and modifications relating to this
Chapter
107
108
Provisions to which this Part applies ................................. 107
109
Exemptions and modifications by ASIC............................ 107
110
Exemptions and modifications by the regulations ............. 108
Chapter 3--Responsible lending conduct
110
Part 3-1--Licensees that provide credit assistance in relation to
credit contracts
110
Division 1--Introduction
110
111
Guide to this Part................................................................ 110
112
Application of this Part ...................................................... 111
Division 2--Credit guide of credit assistance providers
112
113
Credit guide of credit assistance providers ........................ 112
Division 3--Quote for providing credit assistance etc. in relation
to credit contracts
115
114
Quote for providing credit assistance etc. .......................... 115
Division 4--Obligations of credit assistance providers before
providing credit assistance for credit contracts
117
115
Obligations of credit assistance providers before
providing credit assistance for credit contracts.................. 117
116
Preliminary assessment of unsuitability of the credit
contract............................................................................... 118
117
Reasonable inquiries etc. about the consumer ................... 118
118
When the credit contract must be assessed as
unsuitable--entering contract or increasing the credit
limit .................................................................................... 119
119
When the credit contract must be assessed as
unsuitable--remaining in credit contract ........................... 120
120
Providing the consumer with the preliminary
assessment .......................................................................... 121
Division 5--Fees, commissions etc. relating to credit contracts
123
121
Fees, commissions etc. relating to credit contracts ............ 123
122
No profiting from fees etc. paid to third parties................. 124
vii National Consumer Credit Protection Bill 2009 No. , 2009
Division 6--Prohibition on suggesting, or assisting with,
unsuitable credit contracts
125
123
Prohibition on suggesting or assisting consumers to
enter, or increase the credit limit under, unsuitable
credit contracts ................................................................... 125
124
Prohibition on suggesting to consumers to remain in
unsuitable credit contracts.................................................. 127
Part 3-2--Licensees that are credit providers under credit
contracts
129
Division 1--Introduction
129
125
Guide to this Part................................................................ 129
Division 2--Credit guide of credit providers
130
126
Credit guide of credit providers ......................................... 130
127
Credit guide of credit providers who are assignees ........... 131
Division 3--Obligations of credit providers before entering
credit contracts or increasing credit limits
133
128
Obligations of credit providers before entering credit
contracts or increasing credit limits ................................... 133
129
Assessment of unsuitability of the credit contract ............. 133
130
Reasonable inquiries etc. about the consumer ................... 133
131
When credit contract must be assessed as unsuitable ........ 135
132
Giving the consumer the assessment ................................. 136
Division 4--Prohibition on entering, or increasing the credit
limit of, unsuitable credit contracts
138
133
Prohibition on entering, or increasing the credit limit
of, unsuitable credit contracts ............................................ 138
Part 3-3--Licensees that provide credit assistance in relation to
consume r leases
140
Division 1--Introduction
140
134
Guide to this Part................................................................ 140
135
Application of this Part ...................................................... 141
Division 2--Credit guide of credit assistance providers
142
136
Credit guide of credit assistance providers ........................ 142
Division 3--Quote for providing credit assistance etc. in relation
to consumer leases
145
137
Quote for providing credit assistance etc. .......................... 145
National Consumer Credit Protection Bill 2009 No. , 2009 viii
Division 4--Obligations of credit assistance providers before
providing credit assistance for consumer leases
147
138
Obligations of credit assistance providers before
providing credit assistance for consumer leases ................ 147
139
Preliminary assessment of unsuitability of the
consumer lease ................................................................... 148
140
Reasonable inquiries etc. about the consumer ................... 148
141
When the consumer lease must be assessed as
unsuitable--entering lease ................................................. 149
142
When the consumer lease must be assessed as
unsuitable--remaining in lease .......................................... 150
143
Providing the consumer with the preliminary
assessment .......................................................................... 151
Division 5--Fees, commissions etc. relating to consumer leases
153
144
Fees, commissions etc. relating to consumer leases .......... 153
145
No profiting from fees etc. paid to third parties................. 154
Division 6--Prohibition on suggesting, or assisting with,
unsuitable consumer leases
155
146
Prohibition on suggesting, or assisting with,
unsuitable consumer leases ................................................ 155
147
Prohibition on suggesting to consumers to remain in
unsuitable consumer leases ................................................ 156
Part 3-4--Licensees that are lessors unde r consumer leases
159
Division 1--Introduction
159
148
Guide to this Part................................................................ 159
Division 2--Credit guide of lessors
160
149
Credit guide of lessors........................................................ 160
150
Credit guide of lessors who are assignees .......................... 161
Division 3--Obligations of lessors before entering consumer
leases
163
151
Obligations of lessors before entering consumer
leases .................................................................................. 163
152
Assessment of unsuitability of the consumer lease............ 163
153
Reasonable inquiries etc. about the consumer ................... 163
154
When consumer lease must be assessed as unsuitable....... 164
155
Giving the consumer the assessment ................................. 166
Division 4--Prohibition on entering unsuitable consumer leases
168
156
Prohibition on entering unsuitable consumer leases .......... 168
ix National Consumer Credit Protection Bill 2009 No. , 2009
Part 3-5--Credit representatives
170
Division 1--Introduction
170
157
Guide to this Part................................................................ 170
Division 2--Credit guide of credit representatives
171
158
Credit guide of credit representatives ................................ 171
Part 3-6--Debt collectors
174
Division 1--Introduction
174
159
Guide to this Part................................................................ 174
Division 2--Credit guide of debt collectors
175
160
Credit guide of debt collectors ........................................... 175
Part 3-7--Exe mptions and modifications relating to this
Chapter
177
Division 1--Introduction
177
161
Guide to this Part................................................................ 177
Division 2--Exemptions and modifications relating to this
Chapter
178
162
Provisions to which this Part applies ................................. 178
163
Exemptions and modifications by ASIC............................ 178
164
Exemptions and modifications by the regulations ............. 179
Chapter 4--Remedies
180
Part 4-1--Civil penalty provisions
180
Division 1--Introduction
180
165
Guide to this Part................................................................ 180
Division 2--Declarations and pecuniary penalty orders for
contraventions of civil penalty provisions
181
166
Declaration of contravention of civil penalty
provision............................................................................. 181
167
Court may order person to pay pecuniary penalty for
contravening civil penalty provision.................................. 181
Division 3--General provisions relating to civil penalty
provisions
183
168
Contravening a civil penalty provision is not an
offence................................................................................ 183
169
Involvement in contravention treated in same way as
actual contravention ........................................................... 183
National Consumer Credit Protection Bill 2009 No. , 2009 x
170
Civil evidence and procedure rules for proceedings
relating to civil penalty provisions..................................... 183
171
Criminal proceedings before civil proceedings ................. 183
172
Criminal proceedings during civil proceedings ................. 183
173
Criminal proceedings after civil proceedings .................... 184
174
Evidence given in proceedings for pecuniary penalty
not admissible in criminal proceedings .............................. 184
175
Civil double jeopardy......................................................... 184
Part 4-2--Powe r of the court to grant remedies
186
Division 1--Introduction
186
176
Guide to this Part................................................................ 186
Division 2--Power of the court to grant remedies
187
177
Injunctions.......................................................................... 187
178
Compensation orders.......................................................... 188
179
Other orders to compensate loss or damage....................... 189
180
Orders in relation to unlawful credit activities................... 191
181
Preference must be given to compensate consumers ......... 192
182
Adverse publicity orders .................................................... 193
183
Relief from liability for contravention of civil
penalty provision................................................................ 193
184
Multiple remedies may be granted..................................... 194
Part 4-3--Jurisdiction and procedure of courts
195
Division 1--Introduction
195
185
Guide to this Part................................................................ 195
Division 2--Civil proceedings
196
Subdivision A--Application of this Division
196
186
Application of this Division ............................................... 196
Subdivision B--Conferral of civil juris diction
196
187
Civil jurisdiction of courts ................................................. 196
188
Jurisdiction--decisions to prosecute and related
criminal justice process decisions made by
Commonwealth officers ..................................................... 197
189
Cross-jurisdictional appeals ............................................... 199
190
Courts to act in aid of each other ....................................... 199
Subdivision C--Transfers between courts
200
191
Transfers--application of Subdivision .............................. 200
192
Transfers--exercise of transfer power ............................... 201
193
Transfers--criteria for transfer .......................................... 201
xi National Consumer Credit Protection Bill 2009 No. , 2009
194
Transfers--how initiated.................................................... 202
195
Transfers--documents and procedure ............................... 202
196
Transfers--conduct of proceedings ................................... 203
197
Transfers--entitlement to practise as a lawyer .................. 203
198
Transfers--limitation on appeals ....................................... 203
Subdivision D--Other matters
204
199
Plaintiffs may choose small claims procedure ................... 204
200
Costs only if proceedings brought vexatiously etc. ........... 208
201
Civil proceedings not to be stayed ..................................... 208
202
Standard of proof in civil proceedings ............................... 208
Division 3--Criminal proceedings
210
Subdivision A--Application of this Division
210
203
Application of this Division ............................................... 210
Subdivision B--Conferral of criminal jurisdiction
210
204
Criminal jurisdiction of courts ........................................... 210
205
Criminal proceedings--laws to be applied ........................ 213
206
Criminal proceedings--how taken..................................... 213
207
Certain persons to assist in prosecutions............................ 214
208
Privilege against self-incrimination not available to
bodies corporate in criminal proceedings .......................... 215
Division 4--Proceedings generally
216
209
ASIC's power to intervene in proceedings ........................ 216
210
Evidence of contravention ................................................. 216
211
Power of court to punish for contempt of court ................. 217
Chapter 5--Administration
218
Part 5-1--Registers relating to cre dit activities
218
Division 1--Introduction
218
212
Guide to this Part................................................................ 218
Division 2--Registers relating to credit activities
219
213
Credit registers ................................................................... 219
214
Inspection and public availability of credit registers ......... 220
Part 5-2--Documents lodged with ASIC or require d by this Act
221
Division 1--Introduction
221
215
Guide to this Part................................................................ 221
Division 2--Lodgment of documents with ASIC
222
216
When documents are lodged with ASIC............................ 222
National Consumer Credit Protection Bill 2009 No. , 2009 xii
217
Approved forms for documents to be lodged with
ASIC................................................................................... 222
218
ASIC may refuse to receive document etc......................... 223
Division 3--ASIC's register of documents
225
219
Register of documents lodged with ASIC.......................... 225
220
ASIC may require person to give information for
document registers ............................................................. 225
221
Written document setting out information from
document registers is prima facie evidence of matters ...... 226
Division 4--Other provisions relating to documents lodged with
ASIC or required under this Act
227
222
Certified copy or extract of document lodged with
ASIC is admissible in evidence ......................................... 227
223
ASIC may destroy or dispose of certain documents .......... 227
224
Court may order lodgment of document etc. ..................... 227
225
Offences relating to documents lodged with ASIC
etc. ...................................................................................... 228
Part 5-3--Concealment or falsification of credit books
231
Division 1--Introduction
231
226
Guide to this Part................................................................ 231
Division 2--Prohibitions relating to the concealment or
falsification of credit books
232
227
Concealing etc. of credit books.......................................... 232
228
Falsification of credit books............................................... 233
229
Precautions against falsification of credit books................ 234
Part 5-4--Fees imposed by the National Consume r Credit
Protection (Fees) Act 2009
235
Division 1--Introduction
235
230
Guide to this Part................................................................ 235
Division 2--Fees imposed by the National Consumer Credit
Protection (Fees) Act 2009
236
231
Fees are payable to the Commonwealth ............................ 236
232
Lodgment of document without payment of fee ................ 236
233
Doing act without payment of fee...................................... 236
234
Effect of sections 232 and 233 ........................................... 236
235
Waiver and refund of fees .................................................. 236
236
Debts due to the Commonwealth ....................................... 237
xiii National Consumer Credit Protection Bill 2009 No. , 2009
237
Payment of fee does not give right to inspect or
search ................................................................................. 237
Part 5-5--Other administrative matters
238
Division 1--Introduction
238
238
Guide to this Part................................................................ 238
Division 2--Other administrative matters
239
239
ASIC has general administration of this Act ..................... 239
240
Obstructing or hindering ASIC etc. ................................... 239
241
Approved codes of conduct................................................ 239
242
ASIC may arrange for use of computer programs to
make decisions ................................................................... 240
243
Qualified privilege for information given to ASIC ............ 241
244
ASIC certificate is prima facie evidence of matters .......... 241
245
Operator of approved external dispute resolution
scheme may give information to ASIC.............................. 242
Chapter 6--Compliance and enforcement
243
Part 6-1--Investigations
243
Division 1--Introduction
243
246
Guide to this Part................................................................ 243
Division 2--Investigations
244
247
General powers of investigation ........................................ 244
248
Minister may direct investigations ..................................... 244
249
Interim report on investigation........................................... 245
250
Final report on investigation .............................................. 246
251
Distribution of report ......................................................... 246
Part 6-2--Examination of persons
248
Division 1--Introduction
248
252
Guide to this Part................................................................ 248
Division 2--Examination of persons
249
253
Notice requiring appearance for examination .................... 249
254
Proceedings at examination ............................................... 249
255
Requirements made of examinee ....................................... 249
256
Examination to take place in private.................................. 250
257
Examinee's lawyer may attend .......................................... 250
258
Record of examination ....................................................... 251
259
Giving to other persons copies of record ........................... 251
260
Copies given subject to conditions..................................... 252
National Consumer Credit Protection Bill 2009 No. , 2009 xiv
261
Record to accompany report .............................................. 252
Part 6-3--Inspection of books and audit information-gathering
powe rs
254
Division 1--Introduction
254
262
Guide to this Part................................................................ 254
Division 2--Inspection of books and audit information-gathering
powers
255
263
When certain powers may be exercised ............................. 255
264
ASIC may inspect books without charge ........................... 255
265
Notice to auditors concerning information and books ....... 256
266
Notice to produce books about credit activities ................. 257
267
Notice to produce documents in person's possession ........ 258
268
ASIC may authorise persons to require production of
books, giving of information etc. ....................................... 258
269
Application for warrant to seize books not produced ........ 259
270
Grant of warrant ................................................................. 259
271
Powers if books produced or seized................................... 260
272
Powers if books not produced ............................................ 262
Part 6-4--Proceedings after an investigation
263
Division 1--Introduction
263
273
Guide to this Part................................................................ 263
Division 2--Proceedings after an investigation
264
274
ASIC may prosecute .......................................................... 264
275
ASIC may bring civil proceedings ..................................... 265
Part 6-5--Hearings
266
Division 1--Introduction
266
276
Guide to this Part................................................................ 266
Division 2--Hearings
267
277
Power to hold hearings ....................................................... 267
278
General discretion to hold hearing in public or
private................................................................................. 267
279
Request by person appearing at hearing that it take
place in public .................................................................... 267
280
Certain hearings to take place in private ............................ 268
281
ASIC may restrict publication of certain material ............. 268
282
Who may be present when hearing takes place in
private................................................................................. 269
283
Involvement of person entitled to appear at hearing.......... 269
xv National Consumer Credit Protection Bill 2009 No. , 2009
284
Power to summon witnesses and take evidence................. 270
285
Proceedings at hearings ...................................................... 271
286
ASIC to take account of evidence and submissions .......... 272
287
Reference to court of question of law arising at
hearing................................................................................ 272
288
Protection of ASIC members etc. ...................................... 272
Part 6-6--Offences
274
Division 1--Introduction
274
289
Guide to this Part................................................................ 274
Division 2--Offences
275
290
Contraventions of requirements made under this
Chapter ............................................................................... 275
291
False information ............................................................... 276
292
Obstructing person executing a warrant under this
Chapter ............................................................................... 276
293
Disrupting hearings ............................................................ 277
294
Concealing books relevant to investigation ....................... 277
295
Self-incrimination .............................................................. 278
296
Legal professional privilege............................................... 279
297
Powers of court relating to contraventions of this
Chapter ............................................................................... 280
Part 6-7--ASIC's powe rs in relation to contraventions of this
Chapter
281
Division 1--Introduction
281
298
Guide to this Part................................................................ 281
Division 2--ASIC's powers in relation to contraventions of this
Chapter
282
299
Application of this Part ...................................................... 282
300
Orders by ASIC relating to credit contracts,
mortgages, guarantees or consumer leases ........................ 282
301
Orders under this Part ........................................................ 283
Part 6-8--Evidentiary use of certain material
284
Division 1--Introduction
284
302
Guide to this Part................................................................ 284
Division 2--Evidentiary use of certain material
285
303
Statements made at an examination: proceedings
against examinee ................................................................ 285
National Consumer Credit Protection Bill 2009 No. , 2009 xvi
304
Statements made at an examination: other
proceedings ........................................................................ 285
305
Weight of evidence admitted under section 304 ................ 286
306
Objection to admission of statements made at
examination ........................................................................ 287
307
Copies of, or extracts from, certain books ......................... 288
308
Report under Part 6-1 ......................................................... 289
309
Exceptions to admissibility of report ................................. 289
310
Material otherwise admissible ........................................... 290
Part 6-9--Miscellaneous provisions relating to compliance and
enforcement
291
Division 1--Introduction
291
311
Guide to this Part................................................................ 291
Division 2--Miscellaneous provisions relating to compliance and
enforcement
292
312
Requirement made of a body corporate ............................. 292
313
Evidence of authority ......................................................... 292
314
Giving documents to natural persons................................. 292
315
Place and time for production of books ............................. 293
316
Application of Crimes Act and Evidence Act.................... 293
317
Allowances and expenses................................................... 293
318
Expenses of investigation under Part 6-1........................... 294
319
Recovery of expenses of investigation............................... 294
320
Compliance with this Chapter............................................ 295
321
Effect of this Chapter ......................................................... 295
322
Enforcement of undertakings ............................................. 295
Chapter 7--Miscellaneous
297
Part 7-1--Miscellaneous
297
Division 1--Introduction
297
323
Guide to this Part................................................................ 297
Division 2--Liability of persons for conduct of their agents etc.
298
324
Liability for bodies corporate for conduct of their
agents, employees etc......................................................... 298
325
Liability of persons (other than bodies corporate) for
the conduct of their agents, employees etc. ....................... 299
326
Regulations for the purposes of this Division .................... 300
xvii National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Review of ASIC's decisions
301
327
Review by Administrative Appeals Tribunal of
decisions by ASIC under this Act ...................................... 301
328
Notice of reviewable decision and review rights ............... 301
Division 4--Regulations
303
329
Regulations......................................................................... 303
330
Regulations--where proceedings may be brought ............ 303
331
Regulations--infringement notices.................................... 303
Division 5--Other miscellaneous provisions
304
332
Civil penalty provisions contravened or offences
committed partly in and partly out of this jurisdiction....... 304
333
Contravention of Act does not generally affect
validity of transactions etc. ................................................ 304
334
Contracting out etc. ............................................................ 304
335
Indemnities ......................................................................... 305
336
Acquisition of property ...................................................... 306
337
Minister may delegate prescribed functions and
powers under this Act ........................................................ 306
Schedule 1--National Credit Code
307
Part 1--Preliminary
307
1
Short title............................................................................ 307
2
Interpretation generally ...................................................... 307
3
Meaning of credit and amount of credit............................. 307
4
Meaning of credit contract ................................................ 308
5
Provision of credit to which this Code applies .................. 308
6
Provision of credit to which this Code does not apply ...... 309
7
Mortgages to which this Code applies ............................... 313
8
Guarantees to which this Code applies .............................. 313
9
Goods leases with option to purchase to be regarded
as sale by instalments ......................................................... 314
10
Deciding application of Code to particular contracts
for the sale of land by instalments ..................................... 315
11
Deciding application of Code to particular contracts
for the sale of goods by instalments................................... 316
12
Deciding application of Code to particular contracts
for the sale of goods by instalments under related
contracts ............................................................................. 317
13
Presumptions relating to application of Code .................... 318
National Consumer Credit Protection Bill 2009 No. , 2009 xviii
Part 2--Credit contracts
320
Division 1--Negotiating and making credit contracts
320
14
Credit contract to be in form of written contract
document ............................................................................ 320
15
Other forms of contract ...................................................... 320
16
Precontractual disclosure ................................................... 321
17
Matters that must be in contract document ........................ 321
18
Form and expression of contract document ....................... 327
19
Alteration of contract document ........................................ 327
20
Copy of contract for debtor ................................................ 327
21
When debtor may terminate contract ................................. 327
22
Offence for noncompliance................................................ 328
Division 2--Debtor's monetary obligations
329
23
Prohibited monetary obligations ........................................ 329
24
Offences related to prohibited monetary obligations ......... 329
25
Loan to be in money or equivalent..................................... 330
26
Early payments and crediting of payments ........................ 330
Division 3--Interest charges
332
27
Definitions relating to interest............................................ 332
28
Limit on interest charges .................................................... 332
29
Early debit or payment of interest charges prohibited ....... 333
30
Default interest ................................................................... 333
Division 4--Fees and charges
334
31
Prohibited credit fees or charges ........................................ 334
32
Fees or charges passed on to other parties ......................... 334
Division 5--Credit provider's obligation to account
335
33
Statements of account ........................................................ 335
34
Information to be contained in statements of account ....... 336
35
Opening balance must not exceed closing balance of
previous statement.............................................................. 338
36
Statement of amount owing and other matters................... 339
37
Court may order statement to be provided......................... 340
38
Disputed accounts .............................................................. 340
39
Dating and adjustment of debits and credits in
accounts.............................................................................. 341
Division 6--Certain transactions not to be treated as contracts
343
40
Deferrals, waivers and changes under contracts ................ 343
xix National Consumer Credit Protection Bill 2009 No. , 2009
Part 3--Related mortgages and guarantees
344
Division 1--Mortgages
344
41
Application of Division...................................................... 344
42
Form of mortgage............................................................... 344
43
Copy of mortgage for mortgagor ....................................... 344
44
Mortgages over all property void....................................... 345
45
Restriction on mortgage of future property........................ 345
46
Mortgages and continuing credit contracts ........................ 345
47
All accounts mortgages ...................................................... 346
48
Third party mortgages prohibited ...................................... 346
49
Maximum amount which may be secured ......................... 347
50
Prohibited securities ........................................................... 347
51
Assignment or disposal of mortgaged property by
mortgagor ........................................................................... 348
52
Conditions on consent to assignment or disposal of
property subject to mortgage.............................................. 349
53
Offence for noncompliance................................................ 350
Division 2--Guarantees
351
54
Application of Division...................................................... 351
55
Form of guarantee .............................................................. 351
56
Disclosure........................................................................... 351
57
Copies of documents for guarantor .................................... 351
58
Guarantor may withdraw before credit is provided ........... 352
59
Extension of guarantee....................................................... 352
60
Limitation of guarantor's liability...................................... 353
61
Increase in guarantor's liabilities ....................................... 354
62
Offence for noncompliance................................................ 354
Part 4--Changes to obligations under credit contracts,
mortgages and guarantees
356
Division 1--Unilateral changes by credit provider
356
63
Application of Division...................................................... 356
64
Interest rate changes ........................................................... 356
65
Repayment changes............................................................ 358
66
Credit fees and charges changes ........................................ 359
67
Changes to credit limits etc. in continuing credit
contracts ............................................................................. 360
68
Other unilateral changes by credit provider ....................... 360
69
Particulars of matters as changed only required to be
given under this Division in certain cases .......................... 361
70
Prohibited increases in liabilities ....................................... 361
National Consumer Credit Protection Bill 2009 No. , 2009 xx
Division 2--Changes by agreement of parties
363
71
Changes by agreement ....................................................... 363
Division 3--Changes on grounds of hardship and unjust
transactions
364
72
Changes on grounds of hardship ........................................ 364
73
Notice of change ................................................................ 365
74
Changes by court................................................................ 366
75
Credit provider may apply for variation of change............ 366
76
Court may reopen unjust transactions ................................ 366
77
Orders on reopening of transactions .................................. 369
78
Court may review unconscionable interest and other
charges ............................................................................... 370
79
Applications by ASIC ........................................................ 371
80
Time limit........................................................................... 372
81
Joinder of parties ................................................................ 372
Part 5--Ending and enforcing credit contracts, mortgages and
guarantees
373
Division 1--Ending of credit contract by debtor
373
82
Debtor's or guarantor's right to pay out contract............... 373
83
Statement of pay out figure ................................................ 373
84
Court may determine pay out figure if credit provider
does not provide a pay out figure....................................... 374
85
Surrender of mortgaged goods and goods subject to
sale by instalments ............................................................. 374
86
Compensation to debtor or mortgagor ............................... 377
87
One-off notice to be given the first time a direct debit
default occurs ..................................................................... 377
Division 2--Enforcement of credit contracts, mortgages and
guarantees
379
88
Requirements to be met before credit provider can
enforce credit contract or mortgage against
defaulting debtor or mortgagor .......................................... 379
89
Defaults may be remedied.................................................. 382
90
Requirements to be met before credit provider can
enforce guarantee against guarantor .................................. 382
91
Requirements to be met before credit provider can
repossess mortgaged goods ................................................ 383
92
Acceleration clauses ........................................................... 383
93
Requirements to be met before credit provider can
enforce an acceleration clause............................................ 384
xxi National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Postponement of enforcement proceedings
386
94
Postponement of exercise of rights .................................... 386
95
Effect of negotiated postponement .................................... 386
96
Postponement by court....................................................... 387
97
Credit provider may apply for variation of
postponement order............................................................ 388
Division 4--Enforcement procedures for goods mortgaged
389
98
Information as to location of mortgaged goods ................. 389
99
Entry to residential property to take possession of
goods .................................................................................. 389
100
Court may order entry ........................................................ 390
101
Order for possession........................................................... 390
102
Procedures to be followed by credit provider after
taking possession of goods................................................. 390
103
Mortgagor may nominate purchaser of goods taken
by credit provider ............................................................... 392
104
Sale of goods by credit provider ........................................ 392
105
Matters for which account can be debited after
mortgagee sale of goods ..................................................... 393
106
Compensation to mortgagor............................................... 393
Division 5--Enforcement expenses
395
107
Recovery of enforcement expenses.................................... 395
Division 6--Mortgagor's remedies
396
108
Mortgagor may apply to regain possession of
mortgaged goods ................................................................ 396
109
Order for possession for mortgagor ................................... 396
110
Ancillary or consequential orders ...................................... 397
Part 6--Civil penalties for defaults of credit providers
398
Division 1--Civil penalties for breach of key disclosure and
other requirements
398
111
Key requirements ............................................................... 398
112
Application for order relating to key requirements............ 399
113
Civil penalty may be imposed for contravention of
key requirement.................................................................. 399
114
Penalty if application made by debtor or guarantor ........... 401
115
Payment of penalty to debtor or guarantor......................... 401
116
Penalty if application made by a credit provider or
ASIC................................................................................... 402
117
Payment of penalty............................................................. 402
118
Compensation for debtor or guarantor ............................... 402
National Consumer Credit Protection Bill 2009 No. , 2009 xxii
119
General provisions relating to applications by credit
providers or ASIC .............................................................. 403
120
ASIC may represent interests of debtors............................ 403
121
Directions pending court's decision................................... 403
122
Offences ............................................................................. 404
123
Time limit for application for orders under this
Division .............................................................................. 404
Division 2--Other civil penalties
405
124
Civil effect of other contraventions ................................... 405
Part 7--Related sale contracts
406
Division 1--Interpretation and application
406
125
Meaning of sale contract ................................................... 406
126
Sale contracts to which this Part applies ............................ 406
127
Linked credit providers and tied credit contracts............... 406
Division 2--Liability of credit providers for suppliers'
misrepresentations
408
128
Credit provider liable with respect to supplier's
misrepresentations etc. about tied credit contract .............. 408
Division 3--Liability of credit providers in relation to goods
409
129
Right to damages under sale contract against both
supplier and linked credit provider (cf. section 73 of
the Trade Practices Act 1974) ........................................... 409
130
Limits on debtor's right of action against linked
credit provider (cf. section 73 of the Trade Practices
Act 1974) ............................................................................ 410
131
Liability of supplier to linked credit provider (cf.
section 73 of the Trade Practices Act 1974)...................... 413
132
Interest may be awarded (cf. section 73 of the Trade
Practices Act 1974) ............................................................ 413
133
Subrogation of credit provider (cf. section 73 of the
Trade Practices Act 1974) ................................................. 413
Division 4--Termination of related transactions
415
134
Termination of sale contract which is conditional on
obtaining credit .................................................................. 415
135
Termination of (or recredit under) tied credit contract
if sale contract terminated .................................................. 415
136
Termination of linked maintenance services contract
if credit contract terminated ............................................... 417
137
Termination of contract under this Part to be in
writing ................................................................................ 418
xxiii National Consumer Credit Protection Bill 2009 No. , 2009
138
Powers of court with respect to termination of
contract under this Part ...................................................... 418
139
Part 5 not to apply to termination of contract under
this Part .............................................................................. 418
Division 5--Other provisions
419
140
Requirement as to source of credit for goods or
services ............................................................................... 419
141
Prohibition on payment for goods or services by
postdated bills of exchange or notes which exceed
cash price of goods or services .......................................... 419
Part 8--Related insurance contracts
420
142
Interpretation and application ............................................ 420
143
Requirement to take out insurance or to insure with
particular insurer or on particular terms............................. 420
144
Financing of insurance premiums over mortgaged
property .............................................................................. 421
145
Commission for consumer credit insurance....................... 422
146
Supply of copy of credit-related insurance contract
by insurer............................................................................ 423
147
Rejection of debtor's proposal for insurance ..................... 423
148
Termination of consumer credit insurance contract if
credit contract terminated................................................... 424
149
Termination of insurance contract over mortgaged
property if credit contract terminated................................. 424
Part 9--Advertising and related conduct
426
150
Advertising......................................................................... 426
151
Persons liable for advertisements....................................... 427
152
Defence .............................................................................. 427
153
Interest rates which may be disclosed................................ 427
154
False or misleading representations ................................... 428
155
Harassment......................................................................... 428
156
Canvassing of credit at home ............................................. 428
Part 10--Comparison rates
430
Division 1--Preliminary
430
157
Object of Part ..................................................................... 430
158
Part not to apply to continuing credit contracts ................. 430
159
Definitions.......................................................................... 430
Division 2--Comparison rate in credit advertising
432
160
Comparison rate mandatory in advertisements
containing annual percentage rate...................................... 432
National Consumer Credit Protection Bill 2009 No. , 2009 xxiv
161
The relevant comparison rate ............................................. 432
162
Information about comparison rate .................................... 432
163
Warning about comparison rate ......................................... 433
164
Other requirements for comparison rate ............................ 433
Division 3--Comparison rate in other documents
435
165
Comparison rates in documents other than credit
advertising .......................................................................... 435
Division 4--Miscellaneous
436
166
Calculation of comparison rates......................................... 436
167
Compliance grace period following changes in
interest or fees .................................................................... 436
168
Regulations--exemptions and other matters ..................... 436
Part 11--Consumer leases
437
Division 1--Interpretation and application
437
169
Meaning of consumer lease ............................................... 437
170
Consumer leases to which this Part applies ....................... 437
171
Consumer leases to which this Part does not apply ........... 438
172
Presumptions relating to application of this Part ............... 439
Division 2--Form of and information to be included in consumer
leases
441
173
Form of consumer lease ..................................................... 441
174
Disclosures in consumer leases .......................................... 441
175
Copy of lease etc. for lessee............................................... 442
176
Further goods and deferrals or waivers under
consumer leases.................................................................. 442
Division 3--Other provisions applicable to consumer leases
444
177
Application of certain Code provisions to consumer
leases .................................................................................. 444
178
Notice of repossession ....................................................... 444
179
Termination of lease........................................................... 445
Part 12--Miscellaneous
446
Division 1--Tolerances and assumptions
446
180
Tolerances and assumptions relating to information ......... 446
181
Tolerances relating to contracts and other documents ....... 447
182
Regulations......................................................................... 448
Division 2--Documentary provisions
449
183
Form of notices .................................................................. 449
184
Legibility and language...................................................... 449
xxv National Consumer Credit Protection Bill 2009 No. , 2009
185
Copies of contracts and other documents .......................... 450
186
Signing of documents......................................................... 450
187
Electronic transactions and documents .............................. 451
Division 3--General provisions
452
188
Assignment by credit provider ........................................... 452
189
Assignment by debtor, mortgagor or guarantor ................. 452
190
Appropriation of payments ................................................ 452
191
Contracting out................................................................... 453
192
Indemnities ......................................................................... 453
193
Effect of noncompliance .................................................... 454
194
Giving notice or other document ....................................... 454
195
Manner of giving notice or other document....................... 456
196
Date of notice or other document....................................... 457
197
Extensions of time.............................................................. 457
198
Orders of court ................................................................... 457
199
Conduct of agents and related matters ............................... 458
Division 4--Provisions relating to offences
459
200
Offences by officers, agents or employees ........................ 459
201
Offences by corporations ................................................... 459
202
Limitations ......................................................................... 459
203
Application of section 4K of the Crimes Act 1914 ............ 459
Part 13--Principal definitions
460
204
Principal definitions ........................................................... 460
Part 14--Miscellaneous provisions relating to interpretation
470
Division 1--Preliminary
470
205
Displacement of Part by contrary intention ....................... 470
Division 2--General
471
206
Material that is, and is not, part of this Code ..................... 471
207
References to particular Acts and to enactments ............... 471
208
Compliance with forms ...................................................... 471
Division 3--Terms and references
473
209
Provisions relating to defined terms and gender and
number ............................................................................... 473
210
Meaning of may and must etc. ........................................... 473
211
Effect of express references to bodies corporate and
individuals .......................................................................... 473
212
Reference to certain provisions of Code ............................ 474
213
Reference to provisions of this Code or an Act is
inclusive ............................................................................. 474
National Consumer Credit Protection Bill 2009 No. , 2009 xxvi
Division 4--Functions and powers
476
214
Power to make instrument or decision includes
power to amend or repeal................................................... 476
215
Matters for which statutory instruments may make
provision............................................................................. 476
216
Presumption of validity and power to make ...................... 477
217
Exercise of powers between enactment and
commencement .................................................................. 478
Division 5--Distance, time and age
481
218
Matters relating to distance, time and age.......................... 481
National Consumer Credit Protection Bill 2009 No. , 2009 1
A Bill for an Act relating to credit, and for related
1
purposes
2
The Parliament of Australia enacts:
3
Chapter 1--Introduction
4
Part 1-1--Introduction
5
6
1 Short title
7
This Act may be cited as the National Consumer Credit Protection
8
Act 2009.
9
Chapter 1 Introduction
Part 1-1 Introduction
Section 2
2 National Consumer Credit Protection Bill 2009 No. , 2009
2 Commence ment
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Sections 3 to
337 and
Schedule 1
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence with in the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
7
passed by both Houses of the Parliament and assented to. It will not be
8
expanded to deal with provisions inserted in this Act after assent.
9
(2) Column 3 of the table contains additional information that is not
10
part of this Act. Information in this column may be added to or
11
edited in any published version of this Act.
12
3 The National Credit Code
13
Schedule 1 (which is the National Credit Code) has effect as a law
14
of the Commonwealth.
15
16
Introduction Chapter 1
Definitions Part 1-2
Introduction Division 1
Section 4
National Consumer Credit Protection Bill 2009 No. , 2009 3
Part 1-2--Definitions
1
Division 1--Introduction
2
4 Guide to this Part
3
This Part is about the terms that are defined in this Act (other than
4
the National Credit Code). (For the terms that are defined in the
5
National Credit Code, see section 204 of that Code.)
6
Division 2 has the Dictionary (see section 5). The Dictionary is a
7
list of every term that is defined in this Act (other than the National
8
Credit Code). A term will either be defined in the Dictionary itself,
9
or in another provision of this Act. If another provision defines the
10
term, the Dictionary will have a signpost to that definition.
11
Division 3 has definitions relating to the meaning of credit activity.
12
Division 4 has some other definitions that apply across this Act
13
(other than the National Credit Code).
14
15
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 5
4 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--The Dictionary
1
5 The Dictionary
2
(1) In this Act (other than the National Credit Code):
3
acts as an intermediary: see section 9.
4
ADI has the same meaning as in subsection 5(1) of the Banking Act
5
1959.
6
adverse publicity order: see section 182.
7
affairs, in relation to a person that is a body corporate, has the
8
same meaning as in Part 3 of the ASIC Act.
9
affidavit includes affirmation.
10
ancillary offence, in relation to another offence, means:
11
(a) an offence against section 6 of the Crimes Act 1914; or
12
(b) an ancillary offence within the meaning of the Criminal
13
Code;
14
that relates to the other offence.
15
appeal includes:
16
(a) an application for a new trial; and
17
(b) proceedings to review or call in question the proceedings,
18
decision or jurisdiction of a court or judge.
19
approved external dispute resolution scheme: see section 11.
20
APRA means the Australian Prudential Regulation Authority.
21
ASIC means the Australian Securities and Investments
22
Commission.
23
ASIC Act means the Australian Securities and Investments
24
Commission Act 2001, and includes instruments made under that
25
Act.
26
ASIC member means a member of ASIC within the meaning of the
27
ASIC Act.
28
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 5
National Consumer Credit Protection Bill 2009 No. , 2009 5
ASIC staff member means a staff member within the meaning of
1
subsection 5(1) of the ASIC Act.
2
Australia, when used in a geographical sense, does not include an
3
external Territory.
4
Note:
Paragraph 17(a) of the Acts Interpretation Act 1901 would otherwise
5
provide that Australia included the Territory of Christmas Island and
6
the Territory of Cocos (Keeling) Islands.
7
Australian credit licence: see subsection 35(1).
8
Australian credit licence number means the number given to a
9
licence under section 43.
10
Australian financial services licence has the same meaning as in
11
section 761A of the Corporations Act 2001.
12
authorised, in relation to a credit activity: see subsection 35(2).
13
banker has the same meaning as in section 9 of the Corporations
14
Act 2001.
15
banned from engaging in a credit activity under a law of a State
16
or Territory: a person is banned from engaging in a credit activity
17
under a law of a State or Territory if:
18
(a) the person holds a State or Territory credit licence that is
19
suspended (otherwise than by request of the person); or
20
(b) the person has held a State or Territory credit licence that has
21
been cancelled within the last 7 years (otherwise than by the
22
person's request); or
23
(c) an order of a court made under a law of a State or Territory
24
prohibits the person from engaging in a credit activity; or
25
(d) the person is otherwise prohibited under a law of a State or
26
Territory from engaging in a credit activity.
27
banning order: see subsection 81(1).
28
beneficiary of a guarantee means a person who is a party to a
29
guarantee and who has the benefit of the guarantee, and includes a
30
person who is a beneficiary of a guarantee because of section 10.
31
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 5
6 National Consumer Credit Protection Bill 2009 No. , 2009
body regulated by APRA has the same meaning as in subsection
1
3(2) of the Australian Prudential Regulation Authority Act 1998.
2
book includes:
3
(a) a register; and
4
(b) any other record of information; and
5
(c) financial reports or financial records, however compiled,
6
recorded or stored; and
7
(d) a document.
8
business day has the same meaning as in section 204 of the
9
National Credit Code.
10
carried on in this jurisdiction has a meaning affected by
11
section 12.
12
civil penalty provision: a subsection of this Act (or a section of this
13
Act that is not divided into subsections) is a civil penalty provision
14
if:
15
(a) the words "civil penalty" and one or more amounts in penalty
16
units are set out at the foot of the subsection (or section); or
17
(b) another provision of this Act specifies that the subsection (or
18
section) is a civil penalty provision.
19
coastal sea:
20
(a) in relation to Australia--means:
21
(i) the territorial sea of Australia; and
22
(ii) the sea on the landward side of the territorial sea of
23
Australia and not within the limits of a State or internal
24
Territory;
25
and includes the airspace over, and the sea-bed and subsoil
26
beneath, any such sea; and
27
(b) in relation to a State or Territory--means so much of the
28
coastal sea of Australia as is within the area described in
29
Schedule 1 to the Offshore Petroleum and Greenhouse Gas
30
Storage Act 2006 under the heading that refers to that State or
31
Territory.
32
commission includes any financial or other benefit in the nature of
33
a commission.
34
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 5
National Consumer Credit Protection Bill 2009 No. , 2009 7
Commonwealth credit legislation means this Act and the
1
Transitional Act.
2
consumer means a natural person or a strata corporation.
3
consumer lease means a consumer lease to which Part 11 of the
4
National Credit Code applies.
5
contravention, in relation to a Commonwealth law, includes an
6
ancillary offence relating to an offence against that law.
7
credit has the same meaning as in subsection 3(1) of the National
8
Credit Code.
9
credit activity: see section 6.
10
credit assistance: see section 8.
11
credit book: see subsection 227(4).
12
credit contract has the same meaning as in section 4 of the
13
National Credit Code.
14
credit legislation means:
15
(a) this Act; and
16
(b) the Transitional Act; and
17
(c) Division 2 of Part 2 of the ASIC Act and regulations made
18
for the purpose of that Division; and
19
(d) any other Commonwealth, State or Territory legislation that
20
covers conduct relating to credit activities (whether or not it
21
also covers other conduct), but only in so far as it covers
22
conduct relating to credit activities.
23
credit limit of a credit contract means the maximum amount of
24
credit that may be provided under the contract.
25
credit provider has the same meaning as in section 204 of the
26
National Credit Code, and includes a person who is a credit
27
provider because of section 10.
28
credit registers: see section 213.
29
credit representative: see subsections 64(2) and 65(2).
30
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 5
8 National Consumer Credit Protection Bill 2009 No. , 2009
credit representative number means the number given to a credit
1
representative under section 72.
2
credit service: see section 7.
3
criminal procedure: see section 205.
4
debtor has the same meaning as in section 204 of the National
5
Credit Code.
6
director has the same meaning as in section 9 of the Corporations
7
Act 2001.
8
disqualification order means an order of the court under
9
section 86.
10
document registers: see section 219.
11
engage in conduct means:
12
(a) do an act; or
13
(b) omit to perform an act.
14
examination, when used in Chapter 6 (which deals with
15
compliance and enforcement), means an examination of a person
16
pursuant to a requirement made under section 253.
17
expenses, in relation to an investigation under Part 6-1, includes
18
costs and expenses incurred by ASIC in relation to proceedings
19
brought under section 275 as a result of the investigation.
20
Federal Court means the Federal Court of Australia.
21
financial records: see subsection 88(2).
22
financial year: see subsection 100(6).
23
function includes a duty.
24
give:
25
(a) when used in Chapter 6 (which deals with compliance and
26
enforcement) in relation to a document--has a meaning
27
affected by section 314; and
28
(b) when used in relation to information, includes:
29
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 5
National Consumer Credit Protection Bill 2009 No. , 2009 9
(i) explaining or stating a matter; and
1
(ii) identifying a person, matter or thing; and
2
(iii) disclosing information; and
3
(iv) answering a question.
4
guarantee means a guarantee to which the National Credit Code
5
applies.
6
hearing, when used in Chapter 6 (which deals with compliance
7
and enforcement), means a hearing before ASIC and, in
8
sections 278, 280, 281 and 282 (which are in that Chapter),
9
includes part of such a hearing.
10
initial National Credit Act means this Act as originally enacted.
11
initial Transitional Act means the Transitional Act as originally
12
enacted.
13
insolvent means:
14
(a) in the case of a natural person--a person who is an insolvent
15
under administration (within the meaning of the
16
Corporations Act 2001); or
17
(b) in the case of a body corporate--a body corporate that is an
18
externally-administered body corporate (within the meaning
19
of the Corporations Act 2001); or
20
(c) in the case of a partnership--a partnership against which a
21
creditor's petition or a debtor's petition is presented under
22
Division 2 or 3 of Part IV of the Bankruptcy Act 1966.
23
investigate, in relation to ASIC, means investigate in the course of
24
performing any of ASIC's functions or exercising any of ASIC's
25
powers.
26
involved in: a person is involved in a contravention of a provision
27
of legislation if, and only if, the person:
28
(a) has aided, abetted, counselled or procured the contravention;
29
or
30
(b) has induced the contravention, whether by threats or
31
promises or otherwise; or
32
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 5
10 National Consumer Credit Protection Bill 2009 No. , 2009
(c) has been in any way, by act or omission, directly or
1
indirectly, knowingly concerned in or party to the
2
contravention; or
3
(d) has conspired with others to effect the contravention.
4
judgment means a judgment, decree or order, whether final or
5
interlocutory.
6
law of a referring State or a Territory means a law of, or in force
7
in, a referring State or a Territory but does not include a law of the
8
Commonwealth in force in the referring State or the Territory.
9
law of a State or Territory means a law of, or in force in, a State or
10
Territory but does not include a law of the Commonwealth in force
11
in the State or Territory.
12
lawyer means a person who is admitted to the legal profession by a
13
federal court or a Supreme Court of a State or Territory.
14
lessee means the lessee under a consumer lease.
15
lessor means the lessor under a consumer lease, and includes a
16
person who is a lessor because of section 10.
17
licence means an Australian credit licence.
18
licensee means a person who holds a licence.
19
licensing anniversary: see subsection 53(7).
20
lodge with ASIC: see section 216.
21
lower court means:
22
(a) the Federal Magistrates Court; or
23
(b) a court of a State or Territory that is not a superior court.
24
malice: see subsection 16(2).
25
matter includes an act, an omission, a body, a person or a thing.
26
misleading: see section 13.
27
mortgage means a mortgage to which the National Credit Code
28
applies.
29
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 5
National Consumer Credit Protection Bill 2009 No. , 2009 11
mortgagee means the mortgagee under a mortgage, and includes a
1
person who is a mortgagee because of section 10.
2
mortgagor means the mortgagor under a mortgage.
3
National Credit Code means Schedule 1 to this Act, and includes:
4
(a) regulations made under section 329 for the purposes of that
5
Schedule; and
6
(b) instruments made under that Schedule.
7
officer of the Commonwealth has the same meaning as in
8
paragraph 75(v) of the Constitution.
9
penalty unit has the same meaning as in section 4AA of the Crimes
10
Act 1914.
11
person has a meaning affected by section 14 (which deals with
12
partnerships) and section 15 (which deals with multiple trustees).
13
power includes an authority.
14
premises includes:
15
(a) a structure, building, aircraft, vehicle or vessel; and
16
(b) any land or place (whether enclosed or built in or not); and
17
(c) a part of a structure, building, aircraft, vehicle, vessel or of
18
such a place.
19
prescribed State or Territory order means an order under a law of
20
a State or Territory, being an order of a kind prescribed by the
21
regulations.
22
proceedings:
23
(a) when used in Chapter 6 (which deals with compliance and
24
enforcement)--has the same meaning as the definition of
25
proceeding in subsection 5(1) of the ASIC Act; and
26
(b) otherwise--means proceedings, whether criminal or civil,
27
before a court.
28
qualified privilege has a meaning affected by section 16.
29
receiving court: see section 191.
30
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 5
12 National Consumer Credit Protection Bill 2009 No. , 2009
record, when used in Chapter 6 (which deals with compliance and
1
enforcement) in relation to an examination, means the whole or
2
part of a record made under section 258 of statements made at the
3
examination.
4
referred credit matters: see section 20.
5
referring State: see section 19.
6
registered company auditor has the same meaning as in section 9
7
of the Corporations Act 2001.
8
related body corporate has the same meaning as in section 9 of the
9
Corporations Act 2001.
10
related criminal justice process decision: see section 188.
11
relevant criminal law: see subsection 204(5).
12
relevant superior court, in relation to a lower court, means:
13
(a) if the lower court is the Federal Magistrates Court--the
14
Federal Court; or
15
(b) if the lower court is a court of a State or Territory--the
16
Supreme Court of the State or Territory.
17
representative of a person means:
18
(a) if the person is a licensee:
19
(i) an employee or director of the licensee; or
20
(ii) an employee or director of a related body corporate of
21
the licensee; or
22
(iii) a credit representative of the licensee; or
23
(iv) any other person acting on behalf of the licensee; or
24
(b) otherwise:
25
(i) an employee or director of the person; or
26
(ii) an employee or director of a related body corporate of
27
the person; or
28
(iii) any other person acting on behalf of the person.
29
senior manager has the same meaning as in section 9 of the
30
Corporations Act 2001.
31
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 5
National Consumer Credit Protection Bill 2009 No. , 2009 13
serious fraud means an offence involving fraud or dishonesty,
1
being an offence:
2
(a) against a law of the Commonwealth, or of a State or
3
Territory, or any other law; and
4
(b) punishable by imprisonment for life or for a period, or
5
maximum period, of at least 3 months.
6
State, when used in a geographical sense, includes the coastal sea
7
of the State.
8
statement, when used in Chapter 6 (which deals with compliance
9
and enforcement) in relation to an examination, includes a question
10
asked, an answer given, and any other comment or remark made, at
11
the examination.
12
state of mind: the state of mind of a person includes:
13
(a) the knowledge, intention, opinion, belief or purpose of the
14
person; and
15
(b) the person's reasons for the intention, opinion, belief or
16
purpose.
17
State or Territory credit licence means a licence or registration
18
that:
19
(a) is granted under a law of a State or Territory; and
20
(b) authorises the licensee or registered person to engage in a
21
credit activity.
22
strata corporation has the same meaning as in section 204 of the
23
National Credit Code.
24
superior court means any of the following courts:
25
(a) the Federal Court;
26
(b) the Supreme Court of a State or Territory.
27
Territory means:
28
(a) the Australian Capital Territory; or
29
(b) the Northern Territory; or
30
(c) the Jervis Bay Territory;
31
and, when used in a geographical sense, includes the coastal sea of
32
the Territory.
33
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 5
14 National Consumer Credit Protection Bill 2009 No. , 2009
this Act includes instruments made under this Act.
1
this jurisdiction: see subsections 21(2) and (3).
2
transfer matter: see section 191.
3
transferring court: see section 191.
4
Transitional Act means the National Consumer Credit Protection
5
(Transitional and Consequential Provisions) Act 2009, and
6
includes instruments made under that Act.
7
tribunal means:
8
(a) a tribunal in Australia; or
9
(b) any other body, authority or person in Australia having
10
power, by law or by consent of parties, to hear, receive or
11
examine evidence.
12
value of a credit contract, mortgage, guarantee or consumer
13
lease: see section 199.
14
within the authority: a representative's conduct is within the
15
authority of a person if:
16
(a) for a representative who is an employee of the person or of a
17
related body corporate of the person--the conduct is within
18
the scope of the employee's employment; or
19
(b) for a representative who is a director of the person or of a
20
related body corporate of the person--the conduct is within
21
the scope of the director's duties as director; or
22
(c) for a representative who is a credit representative of the
23
person--the conduct is within the scope of the authorisation
24
of the credit representative under subsection 64(1) or 65(1);
25
or
26
(d) otherwise--the conduct is within the scope of the authority
27
given by the person.
28
witness, in relation to a hearing before ASIC, means a person
29
appearing at the hearing to give evidence.
30
written record, when used in Chapter 6 (which deals with
31
compliance and enforcement) in relation to an examination, means:
32
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 5
National Consumer Credit Protection Bill 2009 No. , 2009 15
(a) a record of the examination:
1
(i) that is made in writing; or
2
(ii) as reduced to writing; or
3
(b) a part of such a record.
4
(2) In this Act (other than the National Credit Code), a reference to a
5
provision is a reference to a provision of this Act, unless the
6
contrary intention appears.
7
8
Chapter 1 Introduction
Part 1-2 Definitions
Division 3 Definitions relating to the meaning of cred it activity
Section 6
16 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Definitions relating to the meaning of credit
1
activity
2
6 Meaning of credit activity
3
(1) The following table sets out when a person engages in a credit
4
activity.
5
6
Meaning of credit activity
Item Topic
A person eng ages in a credit activity if:
1
credit contracts
(a) the person is a credit provider under a credit contract;
or
(b) the person carries on a business of providing credit,
being credit the provision of which the National Credit
Code applies to; or
(c) the person performs the obligations, or exercises the
rights, of a credit p rovider in relation to a credit
contract or proposed credit contract (whether the
person does so as the credit provider or for or on behalf
of the credit provider); o r
2
credit service
the person provides a credit service; or
3
consumer leases (a) the person is a lessor under a consumer lease; or
(b) the person carries on a business of providing consumer
leases; or
(c) the person performs the obligations, or exercises the
rights, of a lessor in relation to a consumer lease or
proposed consumer lease (whether the person does so
as the lessor or for or on behalf of the lessor); or
4
mortgages
(a) the person is a mo rtgagee under a mortgage; or
(b) the person performs the obligations, or exercises the
rights, of a mortgagee in relation to a mortgage or
proposed mortgage (whether the person does so as the
mortgagee or for or on behalf of the mortgagee); or
5
guarantees
(a) the person is the beneficiary of a guarantee; or
(b) the person performs the obligations, or exercises the
rights, of another person who is a beneficiary of a
guarantee or proposed guarantee, in relation to the
guarantee or proposed guarantee (whether the person
Introduction Chapter 1
Definitions Part 1-2
Definitions relating to the meaning of credit activ ity Division 3
Section 7
National Consumer Credit Protection Bill 2009 No. , 2009 17
Meaning of credit activity
Item Topic
A person eng ages in a credit activity if:
does so on the person's own behalf or for or on behalf
of the other person); or
6
prescribed
activities
the person engages in an activity prescribed by the
regulations in relation to credit, being cred it the provision
of which the National Credit Code applies to, or would
apply to if the credit were provided.
(2) A subclass of any of the conduct referred to in the table in
1
subsection (1) is also a credit activity.
2
Note:
For example, ASIC could impose a condition on a licence under
3
subsection 45(6) that provides that a person is authorised to be a credit
4
provider only under particular types of credit contracts (such as credit
5
contracts for credit cards).
6
7 Meaning of credit service
7
A person provides a credit service if the person:
8
(a) provides credit assistance to a consumer; or
9
(b) acts as an intermediary.
10
8 Meaning of credit assistance
11
A person provides credit assistance to a consumer if, by dealing
12
directly with the consumer or the consumer's agent in the course
13
of, as part of, or incidentally to, a business carried on in this
14
jurisdiction by the person or another person, the person:
15
(a) suggests that the consumer apply for a particular credit
16
contract with a particular credit provider; or
17
(b) suggests that the consumer apply for an increase to the credit
18
limit of a particular credit contract with a particular credit
19
provider; or
20
(c) suggests that the consumer remain in a particular credit
21
contract with a particular credit provider; or
22
(d) assists the consumer to apply for a particular credit contract
23
with a particular credit provider; or
24
Chapter 1 Introduction
Part 1-2 Definitions
Division 3 Definitions relating to the meaning of cred it activity
Section 9
18 National Consumer Credit Protection Bill 2009 No. , 2009
(e) assists the consumer to apply for an increase to the credit
1
limit of a particular credit contract with a particular credit
2
provider; or
3
(f) suggests that the consumer apply for a particular consumer
4
lease with a particular lessor; or
5
(g) suggests that the consumer remain in a particular consumer
6
lease with a particular lessor; or
7
(h) assists the consumer to apply for a particular consumer lease
8
with a particular lessor.
9
It does not matter whether the person does so on the person's own
10
behalf or for or on behalf of another person.
11
9 Meaning of acts as an intermediary
12
A person acts as an intermediary if, in the course of, as part of, or
13
incidentally to, a business carried on in this jurisdiction by the
14
person or another person, the person:
15
(a) acts as an intermediary (whether directly or indirectly)
16
between a credit provider and a consumer wholly or partly
17
for the purposes of securing a provision of credit for the
18
consumer under a credit contract for the consumer with the
19
credit provider; or
20
(b) acts as an intermediary (whether directly or indirectly)
21
between a lessor and a consumer wholly or partly for the
22
purposes of securing a consumer lease for the consumer with
23
the lessor.
24
It does not matter whether the person does so on the person's own
25
behalf or for or on behalf of another person.
26
10 Assignees of credit providers, lessors, mortgagees and
27
beneficiaries of a guarantee
28
(1) For the purposes of this Act (other than the National Credit Code),
29
a person is a credit provider, lessor, mortgagee or beneficiary of a
30
guarantee whether the person is:
31
(a) the original credit provider, lessor, mortgagee or beneficiary
32
of a guarantee under a credit contract, consumer lease,
33
mortgage or guarantee; or
34
Introduction Chapter 1
Definitions Part 1-2
Definitions relating to the meaning of credit activ ity Division 3
Section 10
National Consumer Credit Protection Bill 2009 No. , 2009 19
(b) a person to whom the rights of a credit provider, lessor,
1
mortgagee or beneficiary of a guarantee under a credit
2
contract, consumer lease, mortgage or guarantee have been
3
assigned or passed by law.
4
Note:
For example, a person who is assigned the rights of a credit provider
5
under a credit contract would engage in a credit activity within the
6
meaning of paragraph (a) of item 1 of the table in subsection 6(1).
7
(2) For the purposes of paragraph (1)(b), it does not matter whether an
8
assignment or passing by law of rights is the first or a subsequent
9
assignment or passing by law of those rights.
10
11
Chapter 1 Introduction
Part 1-2 Definitions
Division 4 Other definitions
Section 11
20 National Consumer Credit Protection Bill 2009 No. , 2009
Division 4--Other definitions
1
11 Meaning of approved external dispute resolution scheme
2
(1) A person is a member of an approved external dispute resolution
3
scheme if the person is a member of one or more external dispute
4
resolution schemes that:
5
(a) is, or are, approved by ASIC in accordance with the
6
regulations; and
7
(b) covers, or together cover, disputes in relation to the credit
8
activities engaged in by the person or its representatives.
9
(2) Regulations made for the purpose of paragraph (1)(a) may also
10
deal with the variation or revocation of approvals given by ASIC.
11
12 When a business is carried on in this jurisdiction
12
(1) Division 3 of Part 1.2 of the Corporations Act 2001 applies for the
13
purposes of working out whether a business is carried on in this
14
jurisdiction.
15
(2) Without limiting subsection (1), a business is taken to be carried
16
on in this jurisdiction by a person if, in the course of carrying on
17
the business, the person engages in conduct that is:
18
(a) intended to induce people in this jurisdiction to use the goods
19
or services the person provides; or
20
(b) is likely to have that effect;
21
whether or not the conduct is intended, or likely, to have that effect
22
in other places as well.
23
13 Meaning of misleading
24
(1) A representation made by a person is misleading if:
25
(a) the representation relates to a future matter (including the
26
doing of, or refusing to do, any act); and
27
(b) the person does not have reasonable grounds for making the
28
representation.
29
(2) Subsection (1) does not limit the circumstances in which a
30
representation may be misleading.
31
Introduction Chapter 1
Definitions Part 1-2
Other defin itions Division 4
Section 14
National Consumer Credit Protection Bill 2009 No. , 2009 21
14 Meaning of person--gene rally includes a partnership
1
(1) This Act (other than the National Credit Code) applies to a
2
partnership as if the partnership were a person, but it applies with
3
the following changes:
4
(a) obligations that would be imposed on the partnership are
5
imposed instead on each partner, but may be discharged by
6
any of the partners;
7
(b) any contravention of this Act (other than the National Credit
8
Code) that would otherwise be a contravention by the
9
partnership is taken (whether for the purposes of criminal or
10
civil liability) to have been a contravention by each partner
11
who:
12
(i) aided, abetted, counselled or procured the relevant act or
13
omission; or
14
(ii) was in any way knowingly concerned in, or party to, the
15
relevant act or omission (whether directly or indirectly
16
and whether by any act or omission of the partner).
17
Note:
For the purposes of paragraph (b), to determine whether the
18
partnership has contravened this Act, see section 325.
19
(2) For the purposes of this Act (other than the National Credit Code),
20
a change in the composition of a partnership does not affect the
21
continuity of the partnership.
22
(3) Subsections (1) and (2) have effect subject to:
23
(a) an express or implied contrary intention in a provision of this
24
Act (other than the National Credit Code); and
25
(b) the regulations, which may exclude or modify the effect of
26
those subsections in relation to specified provisions.
27
15 Meaning of person--gene rally includes multiple trustees
28
(1) This section applies in relation to a trust during a period while the
29
trust continues to have:
30
(a) 2 or more trustees; or
31
(b) a single trustee who was a trustee of the trust at a time when
32
it had 2 or more trustees.
33
Chapter 1 Introduction
Part 1-2 Definitions
Division 4 Other definitions
Section 15
22 National Consumer Credit Protection Bill 2009 No. , 2009
(2) Subject to subsections (3) and (4), during the period this Act (other
1
than the National Credit Code) applies to the trust as if the trustee
2
or trustees of the trust from time to time during the period were a
3
single person (the notional person) that remained the same for the
4
duration of that period.
5
Note:
So, for example, a licence granted under this Act during the period to
6
the trustees of the trust will continue in force, despite a change in the
7
persons who are the trustees.
8
(3) If, during the period or any part of the period, the trust has 2 or
9
more trustees, this Act (other than the National Credit Code)
10
applies to the trustees as referred to in subsection (2), but it applies
11
with the following changes:
12
(a) obligations that would be imposed on the notional person are
13
imposed instead on each trustee, but may be discharged by
14
any of the trustees;
15
(b) any contravention of this Act (other than the National Credit
16
Code) that would otherwise be a contravention by the
17
notional person is taken (whether for the purposes of criminal
18
or civil liability) to have been a contravention by each trustee
19
who:
20
(i) aided, abetted, counselled or procured the relevant act or
21
omission; or
22
(ii) was in any way knowingly concerned in, or party to, the
23
relevant act or omission (whether directly or indirectly
24
and whether by any act or omission of the trustee).
25
Note:
For the purposes of paragraph (b), to determine whether the notional
26
person has contravened this Act, see section 325.
27
(4) If, during the period or any part of the period, the trust has only one
28
trustee, this Act (other than the National Credit Code) applies to
29
the trustee as referred to in subsection (2), but it applies with the
30
following changes:
31
(a) obligations that would be imposed on the notional person are
32
imposed instead on that single trustee;
33
(b) any contravention of this Act (other than the National Credit
34
Code) that would otherwise be a contravention by the
35
notional person is taken (whether for the purposes of criminal
36
or civil liability) to have been a contravention by that single
37
trustee.
38
Introduction Chapter 1
Definitions Part 1-2
Other defin itions Division 4
Section 16
National Consumer Credit Protection Bill 2009 No. , 2009 23
(5) Subsections (2), (3) and (4) have effect subject to:
1
(a) an express or implied contrary intention in a provision of this
2
Act (other than the National Credit Code); and
3
(b) the regulations, which may exclude or modify the effect of
4
those subsections in relation to specified provisions.
5
16 Qualified privilege
6
(1) If this Act provides that a person has qualified privilege in relation
7
to an act, matter or thing, then the person:
8
(a) has qualified privilege in proceedings for defamation; or
9
(b) is not, in the absence of malice on the person's part, liable to
10
an action for defamation at the suit of a person;
11
in relation to that act, matter or thing.
12
(2) Malice includes ill will to the person concerned or any other
13
improper motive.
14
(3) Neither this section nor a provision of this Act that provides as
15
referred to in subsection (1) limits or affects any right, privilege or
16
immunity that a person has, apart from this section or such a
17
provision, as defendant in proceedings, or an action, for
18
defamation.
19
20
Chapter 1 Introduction
Part 1-3 Application of this Act and the Transitional Act
Division 1 Introduction
Section 17
24 National Consumer Credit Protection Bill 2009 No. , 2009
Part 1-3--Application of this Act and the
1
Transitional Act
2
Division 1--Introduction
3
17 Guide to this Part
4
This Part deals with the application of this Act and the Transitional
5
Act.
6
Division 2 is about the constitutional basis and geographical
7
application of those Acts. It also deals with the application of those
8
Acts to the Crown.
9
Division 3 deals with the interaction between those Acts and laws
10
of the States and Territories.
11
12
Introduction Chapter 1
Application of this Act and the Transitional Act Part 1 -3
Constitutional basis and application of this Act and the Transitional Act Division 2
Section 18
National Consumer Credit Protection Bill 2009 No. , 2009 25
Division 2--Constitutional basis and application of this Act
1
and the Transitional Act
2
18 Constitutional basis for this Act and the Transitional Act
3
Application in a referring State
4
(1) The application of this Act and the Transitional Act in the referring
5
States is based on:
6
(a) the legislative powers that the Commonwealth Parliament has
7
under section 51 of the Constitution (other than paragraph
8
51(xxxvii)); and
9
(b) the legislative powers that the Commonwealth Parliament has
10
in relation to matters to which this Act relates because those
11
matters are referred to it by the Parliaments of the referring
12
States under paragraph 51(xxxvii) of the Constitution.
13
Note:
The State referrals fully supplement the Commonwealth Parliament's
14
other powers by referring the matters to the Commonwealth
15
Parliament to the extent to which they are not otherwise included in
16
the legislative powers of the Commonwealth Parliament.
17
Application in a Territory
18
(2) The application of this Act and the Transitional Act in a Territory
19
is based on:
20
(a) the legislative powers that the Commonwealth Parliament has
21
under section 122 of the Constitution to make laws for the
22
government of a Territory; and
23
(b) the legislative powers that the Commonwealth Parliament has
24
under section 51 of the Constitution.
25
Despite subsection 22(3) of the Acts Interpretation Act 1901, this
26
Act and the Transitional Act as applying in the Territory are laws
27
of the Commonwealth.
28
Application outside Australia
29
(3) The operation of this Act and the Transitional Act outside Australia
30
is based on:
31
(a) the legislative power the Commonwealth Parliament has
32
under paragraph 51(xxix) of the Constitution; and
33
Chapter 1 Introduction
Part 1-3 Application of this Act and the Transitional Act
Division 2 Constitutional basis and application of this Act and the Transitional Act
Section 19
26 National Consumer Credit Protection Bill 2009 No. , 2009
(b) the other legislative powers that the Commonwealth
1
Parliament has under section 51 of the Constitution; and
2
(c) the legislative powers that the Commonwealth Parliament has
3
under section 122 of the Constitution to make laws for the
4
government of a Territory.
5
Application in a non-referring State
6
(4) The application of this Act and the Transitional Act in a State that
7
is not a referring State is based on:
8
(a) the legislative powers that the Commonwealth Parliament has
9
under section 51 (other than paragraph 51(xxxvii)) and
10
section 122 of the Constitution; and
11
(b) the legislative powers that the Commonwealth Parliament has
12
in relation to matters to which this Act relates because those
13
matters are referred to it by the Parliaments of the referring
14
States under paragraph 51(xxxvii) of the Constitution.
15
19 Meaning of referring State
16
Reference of matters by State Parliament to Commonwealth
17
Parliament
18
(1) A State is a referring State if the Parliament of the State has
19
referred the matters covered by subsections (3) and (4) to the
20
Parliament of the Commonwealth for the purposes of paragraph
21
51(xxxvii) of the Constitution:
22
(a) if and to the extent that the matters are not otherwise included
23
in the legislative powers of the Parliament of the
24
Commonwealth (otherwise than by a reference under
25
paragraph 51(xxxvii) of the Constitution); and
26
(b) if and to the extent to which the matters are included in the
27
legislative powers of the Parliament of the State.
28
Introduction Chapter 1
Application of this Act and the Transitional Act Part 1 -3
Constitutional basis and application of this Act and the Transitional Act Division 2
Section 19
National Consumer Credit Protection Bill 2009 No. , 2009 27
(2) A State is a referring State even if a law of the State provides that
1
the reference to the Commonwealth Parliament of either or both of
2
the matters covered by subsections (3) and (4) is to terminate in
3
particular circumstances.
4
Reference covering initial National Credit Act and initial
5
Transitional Act
6
(3) This subsection covers the matters to which the referred provisions
7
relate to the extent of making laws with respect to those matters by
8
including the referred provisions in the initial National Credit Act
9
and the initial Transitional Act.
10
Reference covering amendments of this Act, the Transitional Act or
11
the Trade Practices Act
12
(4) This subsection covers the referred credit matters (see section 20)
13
to the extent of the making of laws with respect to those matters by
14
making express amendments of this Act, the Transitional Act or
15
the Trade Practices Act.
16
Effect of termination of reference
17
(5) A State ceases to be a referring State if the State's initial reference
18
terminates.
19
(6) A State ceases to be a referring State if:
20
(a) the State's amendment reference terminates; and
21
(b) subsection (7) does not apply to the termination.
22
(7) A State does not cease to be a referring State because of the
23
termination of its amendment reference if:
24
(a) the termination is effected by the Governor of that State
25
fixing a day by Proclamation as the day on which the
26
reference terminates; and
27
(b) the day fixed is no earlier than the first day after the end of
28
the period of 6 months beginning on the day on which the
29
Proclamation is published; and
30
(c) that State's amendment reference, and the amendment
31
reference of every other State, terminates on the same day.
32
Chapter 1 Introduction
Part 1-3 Application of this Act and the Transitional Act
Division 2 Constitutional basis and application of this Act and the Transitional Act
Section 20
28 National Consumer Credit Protection Bill 2009 No. , 2009
Definitions
1
(8) In this section:
2
amendment reference of a State means the reference by the
3
Parliament of the State to the Parliament of the Commonwealth of
4
the matters covered by subsection (4).
5
express amendment of this Act, the Transitional Act or the Trade
6
Practices Act means the direct amendment of the text of this Act,
7
the Transitional Act or the Trade Practices Act (whether by the
8
insertion, omission, repeal, substitution or relocation of words or
9
matter) by another Commonwealth Act or by an instrument under a
10
Commonwealth Act, but does not include the enactment by a
11
Commonwealth Act of a provision that has, or will have,
12
substantive effect otherwise than as part of the text of this Act, the
13
Transitional Act or the Trade Practices Act.
14
initial reference of a State means the reference by the Parliament
15
of the State to the Parliament of the Commonwealth of the matters
16
covered by subsection (3).
17
referred provisions means:
18
(a) the initial National Credit Act; and
19
(b) the initial Transitional Act;
20
to the extent to which they deal with matters that are included in
21
the legislative powers of the Parliaments of the States.
22
Trade Practices Act means the Trade Practices Act 1974.
23
20 Meaning of referred credit matters
24
(1) Referred credit matters means any of the following:
25
(a) the matter of the regulation of credit or personal property
26
leases;
27
(b) the matter of the regulation of securities (including
28
mortgages), guarantees or insurance insofar as they relate to
29
credit or personal property leases;
30
(c) the matter of the regulation of credit activities;
31
Introduction Chapter 1
Application of this Act and the Transitional Act Part 1 -3
Constitutional basis and application of this Act and the Transitional Act Division 2
Section 20
National Consumer Credit Protection Bill 2009 No. , 2009 29
(d) in relation to sales of goods or supplies of services where the
1
sale or supply is financed, or proposed to be financed, wholly
2
or partly by the provision of credit, the following matters:
3
(i) in the case of such a sale or supply where the person
4
providing the credit is linked in any way to the person
5
supplying the goods or services:
6
(A) the liability of the person providing credit for
7
any representation, warranty or statement by the
8
person supplying the goods or services; and
9
(B) the liability of the person providing the credit or
10
supplying the goods or services for loss or
11
damage;
12
and matters arising out of any such liability; and
13
(ii) the termination of any transaction in relation to such a
14
sale of goods or supply of services and matters arising
15
out of any such termination.
16
(2) However, referred credit matters does not include the matter of
17
making provision with respect to:
18
(a) a matter in a manner that excludes or limits the operation of a
19
law of a State to the extent that the law makes provision with
20
respect to:
21
(i) the creation, holding, transfer, assignment, disposal or
22
forfeiture of a State statutory right; or
23
(ii) limitations, restrictions or prohibitions concerning the
24
kinds of interests that may be created or held in, or the
25
kinds of persons or bodies that may create or hold
26
interests in, a State statutory right; or
27
(iii) without limiting the generality of subparagraph (i) or
28
(ii)--any of the following matters:
29
(A) the forfeiture of property or interests in property
30
(or the disposal of forfeited property or
31
interests) in connection with the enforcement of
32
the general law or any law of a State;
33
(B) the transfer, by operation of that law of a State,
34
of property or interests in property from any
35
specified person or body to any other specified
36
Chapter 1 Introduction
Part 1-3 Application of this Act and the Transitional Act
Division 2 Constitutional basis and application of this Act and the Transitional Act
Section 20
30 National Consumer Credit Protection Bill 2009 No. , 2009
person or body (whether or not for valuable
1
consideration or a fee or other reward); or
2
(b) an excluded State statutory right.
3
(3) In this section, despite section 5 (the Dictionary):
4
credit means:
5
(a) credit within the meaning of subsection 3(1) of the initial
6
National Credit Code if a charge is or may be made for
7
providing the credit; and
8
(b) credit because of the operation of sections 9, 10, 11 and 12 of
9
the initial National Credit Code (either because credit is
10
regarded as having been provided or because a contract is to
11
be taken to be a credit contract).
12
credit activity means any activity associated with the provision of
13
credit or the entering into of personal property leases and includes
14
(but is not limited to) any conduct that constitutes a credit activity
15
for the purposes of the initial National Credit Act.
16
excluded State statutory right means a State statutory right that is
17
declared by the law of a State by or under which it is granted to be
18
an excluded State statutory right for the purposes of that State's
19
reference Act.
20
forfeiture means confiscation, seizure, extinguishment,
21
cancellation, suspension or any other forfeiture.
22
general law means the principles and rules of the common law and
23
equity to the extent to which they have effect in a State from time
24
to time.
25
initial National Credit Code means the National Credit Code
26
within the meaning of the initial National Credit Act.
27
interest, in relation to property, includes a right in the property.
28
law of a State means any Act of a State or any instrument made
29
under such an Act, whenever enacted or made and as in force from
30
time to time.
31
licence means either of the following:
32
Introduction Chapter 1
Application of this Act and the Transitional Act Part 1 -3
Constitutional basis and application of this Act and the Transitional Act Division 2
Section 20
National Consumer Credit Protection Bill 2009 No. , 2009 31
(a) a transferable right, entitlement or authority to do one or
1
more of the following:
2
(i) to manufacture, produce, sell, transport or otherwise
3
deal with property;
4
(ii) to provide services;
5
(iii) to explore for, exploit or use a resource;
6
(b) a transferable water right.
7
personal property lease means a contract for the hire of goods
8
(whether or not the person to whom the goods are hired has a right
9
or obligation to purchase the goods) if:
10
(a) a charge is or may be made for hiring the goods; and
11
(b) the charge, together with any other amount payable under or
12
in connection with the contract (including, if the person
13
hiring the goods has a right or obligation to purchase the
14
goods, any amount payable to purchase the goods or to
15
exercise an option to do so or any amount equal to any
16
agreed or residual value of the goods), exceeds the cash price
17
for the goods; and
18
(c) the goods are provided in the course of a business of
19
providing goods for hire or as part of or incidentally to any
20
other business carried on by the person who provides the
21
goods.
22
property includes a licence.
23
reference Act of a State is the law under which the initial reference
24
and the amendment reference are given as referred to in section 19.
25
State statutory right means a right, entitlement or authority that is
26
granted by or under a law of a State.
27
transferable, in relation to a right, entitlement or authority, means
28
transferable under the general law or a law of a State by the holder
29
of the right, entitlement or authority (whether or not the right,
30
entitlement or authority is exclusive, and whether or not a transfer
31
is restricted or requires consent).
32
Chapter 1 Introduction
Part 1-3 Application of this Act and the Transitional Act
Division 2 Constitutional basis and application of this Act and the Transitional Act
Section 21
32 National Consumer Credit Protection Bill 2009 No. , 2009
water right means a right, entitlement or authority, whether or not
1
exclusive, that is granted by or under the general law or a law of a
2
State in relation to the control, use or flow of water.
3
21 General application of this Act and the Transitional Act
4
Application in this jurisdiction
5
(1) Each provision of this Act and the Transitional Act applies in this
6
jurisdiction.
7
Geographical coverage of "this jurisdiction"
8
(2) This jurisdiction means the geographical area that consists of:
9
(a) each referring State (including its coastal sea); and
10
(b) each Territory (including its coastal sea).
11
(3) Throughout this Act and the Transitional Act, this jurisdiction
12
therefore consists of either:
13
(a) if all of the States are referring States--the whole of
14
Australia; or
15
(b) if one or more States are not referring States--Australia
16
(other than any State that is not a referring State).
17
Application outside this jurisdiction
18
(4) Subject to subsection (5), each provision of this Act and the
19
Transitional Act also applies, according to its tenor, in relation to
20
acts and omissions outside this jurisdiction.
21
Application in non-referring States
22
(5) This Act does not apply to an act or omission in a State that is not a
23
referring State to the extent to which that application would be
24
beyond the legislative powers of the Parliament (including powers
25
it has under paragraphs 51(xxxvii) and (xxxix) of the Constitution).
26
Residence, place of formation etc.
27
(6) Each provision of this Act and the Transitional Act applies,
28
according to its tenor, to:
29
Introduction Chapter 1
Application of this Act and the Transitional Act Part 1 -3
Constitutional basis and application of this Act and the Transitional Act Division 2
Section 22
National Consumer Credit Protection Bill 2009 No. , 2009 33
(a) natural persons whether:
1
(i) resident in this jurisdiction or not; and
2
(ii) resident in Australia or not; and
3
(iii) Australian citizens or not; and
4
(b) all bodies corporate and unincorporated bodies whether:
5
(i) formed or carrying on a business in this jurisdiction or
6
not; and
7
(ii) formed or carrying on a business in Australia or not.
8
22 Acts bind Crown
9
(1) This Act (other than Chapter 3 and the National Credit Code) and
10
the Transitional Act bind the Crown in each of its capacities.
11
(2) However, those Acts do not make the Crown liable to be
12
prosecuted for an offence or to any pecuniary penalty.
13
14
Chapter 1 Introduction
Part 1-3 Application of this Act and the Transitional Act
Division 3 Interaction between the Co mmonwealth credit legislation and State and
Territory laws
Section 23
34 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Interaction between the Commonwealth credit
1
legislation and State and Territory laws
2
23 Concurre nt operation intended
3
(1) This Act and the Transitional Act (the Commonwealth credit
4
legislation) are not intended to exclude or limit the concurrent
5
operation of any law of a State or Territory.
6
(2) If:
7
(a) an act or omission of a person is both an offence against the
8
Commonwealth credit legislation and an offence against the
9
law of a State or Territory; and
10
(b) the person is convicted of either of those offences;
11
the person is not liable to be convicted of the other of those
12
offences.
13
(3) This section does not apply to a law of a State or Territory if there
14
is a direct inconsistency between that law and the Commonwealth
15
credit legislation.
16
Note:
Section 25 avoids direct inconsistency arising in some cases by
17
limiting the operation of the Commonwealth credit legislation.
18
24 When Commonwealth credit legislation does not apply
19
(1) Subsection (2) applies if a provision of a law of a referring State or
20
a Territory declares a matter to be an excluded matter for the
21
purposes of this section in relation to:
22
(a) the whole of the Commonwealth credit legislation; or
23
(b) a specified provision of the Commonwealth credit legislation;
24
or
25
(c) the Commonwealth credit legislation other than a specified
26
provision; or
27
(d) the Commonwealth credit legislation otherwise than to a
28
specified extent.
29
(2) By force of this subsection:
30
(a) none of the provisions of the Commonwealth credit
31
legislation (other than this section) applies in or in relation to
32
Introduction Chapter 1
Application of this Act and the Transitional Act Part 1 -3
Interaction between the Commonwealth cred it leg islation and State and Territory laws
Division 3
Section 25
National Consumer Credit Protection Bill 2009 No. , 2009 35
the State or Territory with respect to the matter if the
1
declaration is one to which paragraph (1)(a) applies; and
2
(b) the specified provision of the Commonwealth credit
3
legislation does not apply in or in relation to the State or
4
Territory with respect to the matter if the declaration is one to
5
which paragraph (1)(b) applies; and
6
(c) the provisions of the Commonwealth credit legislation (other
7
than this section and the specified provisions) do not apply in
8
or in relation to the State or Territory with respect to the
9
matter if the declaration is one to which paragraph (1)(c)
10
applies; and
11
(d) the provisions of the Commonwealth credit legislation (other
12
than this section and otherwise than to the specified extent)
13
do not apply in or in relation to the State or Territory with
14
respect to the matter if the declaration is one to which
15
paragraph (1)(d) applies.
16
(3) Subsection (2) does not apply to the declaration to the extent to
17
which the regulations provide that that subsection does not apply to
18
that declaration.
19
25 Avoiding direct inconsistency between Commonwealth and State
20
and Te rritory laws
21
This section overrides other Commonwealth credit legislation
22
(1) This section has effect despite anything else in the Commonwealth
23
credit legislation.
24
When this section does not apply to a State or Territory law
25
(2) This section does not apply to a provision of a law of a referring
26
State or a Territory that is capable of concurrent operation with the
27
Commonwealth credit legislation.
28
Note:
This kind of provision is dealt with by section 23.
29
When this section applies to a State or Territory law
30
(3) This section applies to the interaction between a provision (the
31
displacement provision) of a law of a referring State or a Territory
32
Chapter 1 Introduction
Part 1-3 Application of this Act and the Transitional Act
Division 3 Interaction between the Co mmonwealth credit legislation and State and
Territory laws
Section 26
36 National Consumer Credit Protection Bill 2009 No. , 2009
and a provision (the Commonwealth provision) of the
1
Commonwealth credit legislation only if the displacement
2
provision is declared by a law of the State or Territory to be a
3
Commonwealth credit legislation displacement provision for the
4
purposes of this section (either generally or specifically in relation
5
to the Commonwealth provision).
6
Effect of displacement provision
7
(4) The Commonwealth provision does not:
8
(a) prohibit the doing of an act; or
9
(b) impose a liability (whether civil or criminal) for doing an act;
10
if the displacement provision specifically permits, authorises or
11
requires the doing of that act.
12
(5) The Commonwealth provision does not operate in or in relation to
13
the State or Territory to the extent necessary to ensure that no
14
inconsistency arises between:
15
(a) the Commonwealth provision; and
16
(b) the displacement provision to the extent to which the
17
displacement provision would, apart from this subsection, be
18
inconsistent with the Commonwealth provision.
19
Note 1:
The displacement provision is not covered by this subsection if
20
subsection (4) applies to the displacement provision: if that subsection
21
applies there would be no potential inconsistency to be dealt with by
22
this subsection.
23
Note 2:
The operation of the displacement provision will be supported by
24
section 23 to the extent to which it can operate concurrently with the
25
Commonwealth provision.
26
(6) Subsections (4) and (5) do not apply in relation to the displacement
27
provision to the extent to which the regulations provide that those
28
subsections do not apply in relation to the displacement provision.
29
26 Regulations to deal with interaction between laws
30
(1) The regulations may modify the operation of the Commonwealth
31
credit legislation so that:
32
Introduction Chapter 1
Application of this Act and the Transitional Act Part 1 -3
Interaction between the Commonwealth cred it leg islation and State and Territory laws
Division 3
Section 26
National Consumer Credit Protection Bill 2009 No. , 2009 37
(a) provisions of the Commonwealth credit legislation do not
1
apply to a matter that is dealt with by a law of a referring
2
State or a Territory specified in the regulations; or
3
(b) no inconsistency arises between the operation of a provision
4
of the Commonwealth credit legislation and the operation of
5
a provision of a law of a referring State or a Territory
6
specified in the regulations.
7
(2) Without limiting subsection (1), regulations made for the purposes
8
of that subsection may provide that a provision of the
9
Commonwealth credit legislation:
10
(a) does not apply to:
11
(i) a person specified in the regulations; or
12
(ii) a body specified in the regulations; or
13
(iii) circumstances specified in the regulations; or
14
(iv) a person or body specified in the regulations in the
15
circumstances specified in the regulations; or
16
(b) does not prohibit an act to the extent to which the prohibition
17
would otherwise give rise to an inconsistency with a law of a
18
referring State or a Territory; or
19
(c) does not require a person to do an act to the extent to which
20
the requirement would otherwise give rise to an
21
inconsistency with a law of a referring State or a Territory; or
22
(d) does not authorise a person to do an act to the extent to which
23
the conferral of that authority on the person would otherwise
24
give rise to an inconsistency with a law of a referring State or
25
a Territory; or
26
(e) does not impose an obligation on a person to the extent to
27
which complying with that obligation would require the
28
person not to comply with an obligation imposed on the
29
person under a law of a referring State or a Territory; or
30
(f) authorises a person to do something for the purposes of the
31
Commonwealth credit legislation that the person:
32
(i) is authorised to do under a law of a referring State or a
33
Territory; and
34
(ii) would not otherwise be authorised to do under the
35
Commonwealth credit legislation; or
36
Chapter 1 Introduction
Part 1-3 Application of this Act and the Transitional Act
Division 3 Interaction between the Co mmonwealth credit legislation and State and
Territory laws
Section 26
38 National Consumer Credit Protection Bill 2009 No. , 2009
(g) will be taken to be satisfied if a law of a referring State or a
1
Territory is satisfied.
2
3
Licensing of persons who engage in credit activities Chapter 2
Requirement to be licensed to engage in credit activ ities Part 2 -1
Introduction Division 1
Section 27
National Consumer Credit Protection Bill 2009 No. , 2009 39
Chapter 2--Licensing of persons who engage
1
in credit activities
2
Part 2-1--Requirement to be licensed to engage in
3
credit activities
4
Division 1--Introduction
5
27 Guide to this Part
6
This Part is about the licensing of persons to engage in credit
7
activities. In general, a person cannot engage in a credit activity if
8
the person does not hold an Australian credit licence.
9
Division 2 prohibits a person from engaging in credit activities
10
without an Australian credit licence. However, the prohibition does
11
not apply to employees and directors of licensees or related bodies
12
corporate of licensees, or to credit representatives of licensees.
13
Division 3 deals with other prohibitions relating to the requirement
14
to be licensed and to credit activities. These prohibitions relate to
15
holding out and advertising, conducting business with unlicensed
16
persons, charging fees for unlicensed conduct, and giving
17
misleading information.
18
19
Chapter 2 Licensing of persons who engage in credit activities
Part 2-1 Requirement to be licensed to engage in credit activ ities
Division 2 Engaging in credit activities without a licence
Section 28
40 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Engaging in credit activities without a licence
1
28 Application of this Division
2
This Division applies on or after 1 July 2011, or a later day
3
prescribed by the regulations.
4
29 Prohibition on engaging in credit activities without a licence
5
Prohibition on engaging in credit activities without a licence
6
(1) A person must not engage in a credit activity if the person does not
7
hold a licence authorising the person to engage in the credit
8
activity.
9
Civil penalty:
2,000 penalty units.
10
Offence
11
(2) A person commits an offence if:
12
(a) the person is subject to a requirement under subsection (1);
13
and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the requirement.
16
Criminal penalty: 200 penalty units, or 2 years imprisonment, or
17
both.
18
Defence
19
(3) For the purposes of subsections (1) and (2), it is a defence if:
20
(a) the person engages in the credit activity on behalf of another
21
person (the principal); and
22
(b) the person is:
23
(i) an employee or director of the principal or of a related
24
body corporate of the principal; or
25
(ii) a credit representative of the principal; and
26
(c) the person's conduct in engaging in the credit activity is
27
within the authority of the principal; and
28
Licensing of persons who engage in credit activities Chapter 2
Requirement to be licensed to engage in credit activ ities Part 2 -1
Engaging in credit activ ities without a licence Division 2
Section 29
National Consumer Credit Protection Bill 2009 No. , 2009 41
(d) the principal holds a licence authorising the principal to
1
engage in the credit activity.
2
Note:
For the purposes of subsection (2), a defendant bears an evidential
3
burden in relation to the matter in subsection (3) (see subsection
4
13.3(3) of the Criminal Code).
5
6
Chapter 2 Licensing of persons who engage in credit activities
Part 2-1 Requirement to be licensed to engage in credit activ ities
Division 3 Other prohib itions relating to the requirement to be licensed and to credit
activities
Section 30
42 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Other prohibitions relating to the requirement
1
to be licensed and to credit activities
2
30 Prohibitions on holding out and advertising etc.
3
Prohibitions on holding out and advertising etc.
4
(1) A person must not hold out:
5
(a) that the person holds a licence; or
6
(b) that the person holds a licence authorising the person to
7
engage in a particular credit activity; or
8
(c) that a credit activity engaged in by the person or by someone
9
else is exempt from a requirement to hold a licence; or
10
(d) that, in engaging in a credit activity, the person acts on behalf
11
of another person; or
12
(e) that conduct, or proposed conduct, of the person is within the
13
authority of a licensee;
14
if that is not the case.
15
Civil penalty:
2,000 penalty units.
16
(2) A person must not hold out or advertise that the person engages or
17
is able to engage in a credit activity if the person would, if the
18
person engaged in the credit activity, contravene section 29 (which
19
deals with the requirement to be licensed).
20
Civil penalty:
2,000 penalty units.
21
Offence
22
(3) A person commits an offence if:
23
(a) the person is subject to a requirement under subsection (1) or
24
(2); and
25
(b) the person engages in conduct; and
26
(c) the conduct contravenes the requirement.
27
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
28
both.
29
Licensing of persons who engage in credit activities Chapter 2
Requirement to be licensed to engage in credit activ ities Part 2 -1
Other prohibitions relating to the requirement to be licensed and to credit activities
Division 3
Section 31
National Consumer Credit Protection Bill 2009 No. , 2009 43
31 Prohibition on conducting business with unlicensed persons
1
Prohibition on conducting business with unlicensed persons
2
(1) A licensee must not:
3
(a) engage in a credit activity; and
4
(b) in the course of engaging in that credit activity, conduct
5
business with another person who is engaging in a credit
6
activity;
7
if, by engaging in the credit activity, the other person contravenes
8
section 29 (which deals with the requirement to be licensed).
9
Civil penalty:
2,000 penalty units.
10
Offence
11
(2) A person commits an offence if:
12
(a) the person is subject to a requirement under subsection (1);
13
and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the requirement.
16
Criminal penalty: 200 penalty units, or 2 years imprisonment, or
17
both.
18
32 Prohibition on charging a fee etc.
19
Prohibition on charging a fee etc.
20
(1) A person must not demand, receive or accept any fee, charge or
21
other amount from a consumer for engaging in a credit activity if,
22
by engaging in that credit activity, the person contravenes, or
23
would contravene, section 29 (which deals with the requirement to
24
be licensed).
25
Civil penalty:
2,000 penalty units.
26
Offence
27
(2) A person commits an offence if:
28
Chapter 2 Licensing of persons who engage in credit activities
Part 2-1 Requirement to be licensed to engage in credit activ ities
Division 3 Other prohib itions relating to the requirement to be licensed and to credit
activities
Section 33
44 National Consumer Credit Protection Bill 2009 No. , 2009
(a) the person is subject to a requirement under subsection (1);
1
and
2
(b) the person engages in conduct; and
3
(c) the conduct contravenes the requirement.
4
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
5
both.
6
33 Prohibition on giving misleading information etc.
7
Prohibition on giving misleading information etc.
8
(1) A person (the giver) must not, in the course of engaging in a credit
9
activity, give information or a document to another person if the
10
giver knows, or is reckless as to whether, the information or
11
document is false in a material particular or materially misleading.
12
Civil penalty:
2,000 penalty units.
13
Offence
14
(2) A person commits an offence if:
15
(a) the person gives information or a document to another
16
person; and
17
(b) the person does so in the course of engaging in a credit
18
activity; and
19
(c) the information or document is false in a material particular
20
or materially misleading.
21
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
22
both.
23
24
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
Introduction Division 1
Section 34
National Consumer Credit Protection Bill 2009 No. , 2009 45
Part 2-2--Australian credit licences
1
Division 1--Introduction
2
34 Guide to this Part
3
This Part is about Australian credit licences.
4
Division 2 explains what an Australian credit licence is and the
5
credit activities that are authorised by it.
6
Division 3 is about how to get an Australian credit licence,
7
including how to apply for it and when ASIC may grant or refuse
8
to grant it.
9
Division 4 is about the conditions that may be imposed on an
10
Australian credit licence.
11
Division 5 is about conduct obligations of licensees.
12
Division 6 is about the suspension, cancellation or variation of an
13
Australian credit licence.
14
15
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 2 Australian credit licences
Section 35
46 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Australian credit licences
1
35 Australian credit licences
2
(1) An Australian credit licence is a licence that authorises the
3
licensee to engage in particular credit activities.
4
(2) The credit activities that the licensee is authorised to engage in are
5
those credit activities specified in a condition of the licence as the
6
credit activities that the licensee is authorised to engage in.
7
8
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
How to get an Australian credit licence Division 3
Section 36
National Consumer Credit Protection Bill 2009 No. , 2009 47
Division 3--How to get an Australian credit licence
1
36 Applying for a licence
2
(1) A person may apply for a licence by lodging an application with
3
ASIC on or after 1 January 2010, or a later day prescribed by the
4
regulations.
5
(2) The application must be in the approved form.
6
37 When a licence may be granted--applicants othe r than ADIs
7
When ASIC must grant a licence
8
(1) ASIC must grant a person (other than an ADI) a licence if (and
9
must not grant the person a licence unless):
10
(a) the person has applied for the licence in accordance with
11
section 36; and
12
(b) ASIC has no reason to believe that the person is likely to
13
contravene the obligations that will apply under section 47 if
14
the licence is granted; and
15
(c) ASIC has no reason to believe that the person is not a fit and
16
proper person to engage in credit activities; and
17
(d) the person has given ASIC any additional information or
18
audit report requested by ASIC under subsection (4); and
19
(e) the person meets any other requirements prescribed by the
20
regulations.
21
Note:
ASIC must not grant a licence to a person contrary to a banning order
22
or disqualification order, or if a prescribed State or Territory order is
23
in force against the person or certain representatives of the person (see
24
section 40).
25
Matters ASIC must have regard to
26
(2) For the purposes of paragraphs (1)(b) and (c), ASIC must (subject
27
to Part VIIC of the Crimes Act 1914) have regard to the following:
28
(a) whether a registration under the Transitional Act, a licence or
29
an Australian financial services licence of the person has ever
30
been suspended or cancelled;
31
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 3 How to get an Australian credit licence
Section 37
48 National Consumer Credit Protection Bill 2009 No. , 2009
(b) whether a banning order or disqualification order under
1
Part 2-4 has ever been made against the person;
2
(c) whether a banning order or disqualification order under
3
Division 8 of Part 7.6 of the Corporations Act 2001 has ever
4
been made against the person;
5
(d) whether the person has ever been banned from engaging in a
6
credit activity under a law of a State or Territory;
7
(e) any relevant information given to ASIC by a State or
8
Territory, or an authority of a State or Territory, in relation to
9
the person;
10
(f) if the person is not the trustees of a trust--whether the person
11
has ever been insolvent;
12
(g) if the person is a single natural person:
13
(i) whether the person has ever been disqualified from
14
managing corporations under Part 2D.6 of the
15
Corporations Act 2001; and
16
(ii) any criminal conviction of the person, within 10 years
17
before the application was made;
18
(h) if the person is not a single natural person, whether ASIC has
19
reason to believe that any of the following persons is not a fit
20
and proper person to engage in credit activities:
21
(i) if the person is a body corporate--each director,
22
secretary or senior manager of the body corporate who
23
would perform duties in relation to the credit activities
24
to be authorised by the licence;
25
(ii) if the person is a partnership or the trustees of a trust--
26
each partner or trustee who would perform duties in
27
relation to the credit activities to be authorised by the
28
licence;
29
(i) any other matter ASIC considers relevant;
30
(j) any other matter prescribed by the regulations.
31
Note:
Part VIIC of the Crimes Act 1914 includes provisions that, in certain
32
circumstances, relieve persons from the requirement to disclose spent
33
convictions and require persons aware of such convictions to disregard
34
them.
35
(3) ASIC must (subject to Part VIIC of the Crimes Act 1914), in
36
considering whether it has reason to believe that a person referred
37
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
How to get an Australian credit licence Division 3
Section 38
National Consumer Credit Protection Bill 2009 No. , 2009 49
to in paragraph (2)(h) is not a fit and proper person to engage in
1
credit activities, have regard to:
2
(a) the matters set out in paragraphs (2)(a) to (g); and
3
(b) any other matter ASIC considers relevant; and
4
(c) any other matter prescribed by the regulations;
5
in relation to that person.
6
ASIC may request information or audit report from applicant
7
(4) ASIC may give a written notice to a person who has applied for a
8
licence requesting the person to lodge with ASIC, within the time
9
specified in the notice, either or both of the following:
10
(a) additional information specified in the notice in relation to
11
any matters that ASIC may have regard to in deciding
12
whether to grant the licence;
13
(b) an audit report, prepared by a suitably qualified person
14
specified in the notice, in relation to matters that ASIC may
15
have regard to in deciding whether to grant the licence.
16
(5) If the person does not lodge with ASIC the additional information
17
or audit report requested by ASIC under subsection (4) within the
18
time specified in the notice, the person is taken to have withdrawn
19
the application. ASIC may extend the time by giving a written
20
notice to the person.
21
38 When a licence may be granted--ADIs
22
If:
23
(a) an ADI applies under section 36 for a licence; and
24
(b) the application includes a statement (in accordance with the
25
requirements of the approved form) to the effect that the ADI
26
will, if granted the licence, comply with its obligations as a
27
licensee;
28
then ASIC must grant the ADI a licence authorising the ADI to
29
engage in credit activities that equate (as closely as possible) to the
30
credit activities in relation to which the application was made.
31
Note:
ASIC must not grant a licence to a person contrary to a banning order
32
or disqualification order, or if a prescribed State or Territory order is
33
in force against the person or certain representatives of the person (see
34
section 40).
35
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 3 How to get an Australian credit licence
Section 39
50 National Consumer Credit Protection Bill 2009 No. , 2009
39 Regulations may prescribe streamlined process for other
1
applicants
2
Despite sections 36 and 37, the regulations may provide that:
3
(a) some or all of sections 36 and 37 do not apply in relation to
4
particular classes of applicants; and
5
(b) alternative processes apply to applications for licences by,
6
and the grant of licences to, those classes of applicants.
7
40 Licences must not be granted to certain applicants
8
Banning or disqualification order in force against person
9
(1) Despite subsection 37(1) and section 38, ASIC must not grant a
10
licence that authorises a person to engage in a credit activity if a
11
banning order or disqualification order under Part 2-4 is in force
12
against the person in relation to that credit activity.
13
Prescribed State or Territory order in force against person etc.
14
(2) Despite subsection 37(1) and section 38, ASIC must not grant a
15
licence to a person if:
16
(a) the person is a natural person against whom a prescribed
17
State or Territory order is in force; or
18
(b) the person is a body corporate, and a prescribed State or
19
Territory order is in force against a director, secretary or
20
senior manager of the body corporate who would perform
21
duties in relation to the credit activities to be authorised by
22
the licence; or
23
(c) the person is a partnership or the trustees of a trust, and a
24
prescribed State or Territory order is in force against a
25
partner or trustee who would perform duties in relation to the
26
credit activities to be authorised by the licence.
27
41 Applicant must be given hearing before refusal of licence
28
ASIC may only refuse to grant a licence after giving the person
29
who applied for the licence an opportunity:
30
(a) to appear, or be represented, at a hearing before ASIC that
31
takes place in private; and
32
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
How to get an Australian credit licence Division 3
Section 42
National Consumer Credit Protection Bill 2009 No. , 2009 51
(b) to make submissions to ASIC in relation to the refusal.
1
42 Notice of grant or refusal of licence and date of effect
2
(1) ASIC must give a person (the applicant) who has applied for a
3
licence written notice of:
4
(a) ASIC's decision on the application; and
5
(b) if the decision is to grant the applicant a licence--the day on
6
which the licence takes effect; and
7
(c) if the decision is not to grant the applicant a licence--the
8
reasons for the decision.
9
(2) The licence comes into force on the day specified in the notice,
10
which must not be before the day on which the decision to grant
11
the licence was made.
12
43 Australian credit licence numbers
13
(1) ASIC must allocate each licence a unique Australian credit licence
14
number when it is granted.
15
(2) If:
16
(a) a person is granted a licence; and
17
(b) the person holds an Australian financial services licence;
18
then the Australian credit licence number that ASIC gives to the
19
licence held by that person must be the same number as the
20
person's Australian financial services licence number.
21
(3) ASIC must give the licensee written notice of the Australian credit
22
licence number.
23
44 Basis on which licence is granted
24
A licence granted under this Division is granted on the basis that:
25
(a) conditions on the licence may be imposed, varied or revoked
26
under section 45 or 46; and
27
(b) the licence may be suspended under section 54, 55 or 56; and
28
(c) the licence may be cancelled under section 54, 55 or 56; and
29
(d) the licence may be varied under section 57; and
30
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 3 How to get an Australian credit licence
Section 44
52 National Consumer Credit Protection Bill 2009 No. , 2009
(e) the licence may be cancelled, revoked, terminated or varied
1
by or under later legislation; and
2
(f) no compensation is payable if:
3
(i) conditions on the licence are imposed, varied or revoked
4
as referred to in paragraph (a); or
5
(ii) the licence is suspended, cancelled, varied, revoked or
6
terminated as referred to in paragraphs (b) to (e).
7
8
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
Conditions on an Australian credit licence Division 4
Section 45
National Consumer Credit Protection Bill 2009 No. , 2009 53
Division 4--Conditions on an Australian credit licence
1
45 The conditions on the licence
2
ASIC may impose, vary or revoke conditions on licences
3
(1) ASIC may, at any time:
4
(a) impose conditions, or additional conditions, on a licence; and
5
(b) vary or revoke conditions imposed on a licence.
6
(2) ASIC may do so:
7
(a) on its own initiative; or
8
(b) if the licensee lodges an application with ASIC for the
9
imposition, variation or revocation.
10
(3) The application must be in the approved form.
11
Notice and effect of imposition, variation or revocation of
12
conditions
13
(4) ASIC must give the licensee written notice of the imposition,
14
variation or revocation of the conditions. The imposition, variation
15
or revocation of the conditions comes into force on the day
16
specified in the notice, which must not be before the day on which
17
the decision to impose, vary or revoke the conditions was made.
18
ASIC must give the licensee a hearing
19
(5) Despite subsection (1), ASIC may only impose conditions or
20
additional conditions, or vary or revoke the conditions, on the
21
licence after giving the licensee an opportunity:
22
(a) to appear, or be represented, at a hearing before ASIC that
23
takes place in private; and
24
(b) to make submissions to ASIC in relation to the conditions.
25
This subsection does not apply to ASIC imposing conditions when
26
the licence is granted.
27
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 4 Conditions on an Australian credit licence
Section 46
54 National Consumer Credit Protection Bill 2009 No. , 2009
Condition in relation to credit activities authorised
1
(6) ASIC must ensure that the licence is subject to a condition that
2
specifies the credit activities or classes of credit activities that the
3
licensee is authorised to engage in.
4
Regulations may prescribe conditions
5
(7) The licence is subject to such other conditions as are prescribed by
6
the regulations. However, ASIC cannot vary or revoke those
7
conditions.
8
46 Licence conditions--special procedures for APRA-regulated
9
bodies
10
Special procedures for APRA-regulated bodies (other than ADIs)
11
(1) If the licensee, or a related body corporate, is a body (the APRA
12
body) regulated by APRA (other than an ADI), then the following
13
provisions apply:
14
(a) ASIC cannot:
15
(i) impose, vary or revoke a condition on the licence that,
16
in ASIC's opinion, has or would have the result of
17
preventing the APRA body from being able to carry on
18
all or any of its usual activities (being activities in
19
relation to which APRA has regulatory or supervisory
20
responsibilities); or
21
(ii) vary a condition so that it would, in ASIC's opinion,
22
become a condition that would have a result as
23
described in subparagraph (i);
24
unless ASIC has first consulted APRA about the proposed
25
action;
26
(b) if ASIC imposes, varies or revokes a condition on the licence
27
and paragraph (a) does not apply to that action, ASIC must,
28
within one week, inform APRA of the action that has been
29
taken.
30
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
Conditions on an Australian credit licence Division 4
Section 46
National Consumer Credit Protection Bill 2009 No. , 2009 55
Special procedures for ADIs
1
(2) If the licensee, or a related body corporate, is an ADI, then the
2
following provisions apply:
3
(a) subject to paragraphs (b) and (c), the powers that ASIC
4
would otherwise have under section 45:
5
(i) to impose, vary or revoke a condition on the licence
6
that, in ASIC's opinion, has or would have the result of
7
preventing the ADI from being able to carry on all or
8
any of its banking business (within the meaning of the
9
Banking Act 1959); or
10
(ii) to vary a condition so that it would, in ASIC's opinion,
11
become a condition that would have a result as
12
described in subparagraph (i);
13
are instead powers of the Minister;
14
(b) the following provisions apply in relation to a power to
15
which paragraph (a) applies:
16
(i) the procedures for the exercise of the power are the
17
same as would apply if ASIC could exercise the power,
18
except that the Minister must not exercise the power
19
unless he or she has first considered advice from ASIC
20
on the proposed action, being advice given after ASIC
21
has consulted APRA about the proposed action;
22
(ii) ASIC (rather than the Minister) must still conduct any
23
hearing required under paragraph 45(5)(a) and receive
24
any submissions under paragraph 45(5)(b);
25
(c) if ASIC imposes, varies or revokes a condition on the licence
26
and paragraph (a) does not apply to that action, ASIC must,
27
within one week, inform APRA of the action that has been
28
taken.
29
30
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 5 Obligations of licensees
Section 47
56 National Consumer Credit Protection Bill 2009 No. , 2009
Division 5--Obligations of licensees
1
47 General conduct obligations of licensees
2
General conduct obligations
3
(1) A licensee must:
4
(a) do all things necessary to ensure that the credit activities
5
authorised by the licence are engaged in efficiently, honestly
6
and fairly; and
7
(b) have in place adequate arrangements to ensure that clients of
8
the licensee are not disadvantaged by any conflict of interest
9
that may arise wholly or partly in relation to credit activities
10
engaged in by the licensee or its representatives; and
11
(c) comply with the conditions on the licence; and
12
(d) comply with the credit legislation; and
13
(e) take reasonable steps to ensure that its representatives
14
comply with the credit legislation; and
15
(f) maintain the competence to engage in the credit activities
16
authorised by the licence; and
17
(g) ensure that its representatives are adequately trained, and are
18
competent, to engage in the credit activities authorised by the
19
licence; and
20
(h) have an internal dispute resolution procedure that:
21
(i) complies with standards and requirements made or
22
approved by ASIC in accordance with the regulations;
23
and
24
(ii) covers disputes in relation to the credit activities
25
engaged in by the licensee or its representatives; and
26
(i) be a member of an approved external dispute resolution
27
scheme; and
28
(j) have compensation arrangements in accordance with
29
section 48; and
30
(k) have adequate arrangements and systems to ensure
31
compliance with its obligations under this section, and a
32
written plan that documents those arrangements and systems;
33
and
34
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
Obligations of licensees Division 5
Section 48
National Consumer Credit Protection Bill 2009 No. , 2009 57
(l) unless the licensee is a body regulated by APRA:
1
(i) have available adequate resources (including financial,
2
technological and human resources) to engage in the
3
credit activities authorised by the licence and to carry
4
out supervisory arrangements; and
5
(ii) have adequate risk management systems; and
6
(m) comply with any other obligations that are prescribed by the
7
regulations.
8
Assessment of whether compliance is adequate
9
(2) For the purposes of paragraphs (1)(b), (g), (k) and (l), in
10
considering whether a matter is adequate, the nature, scale and
11
complexity of the credit activities engaged in by the licensee must
12
be taken into account.
13
Regulations in relation to internal dispute resolution procedures
14
(3) Regulations made for the purposes of paragraph (1)(h) may also
15
deal with the variation or revocation of:
16
(a) standards or requirements made by ASIC; or
17
(b) approvals given by ASIC.
18
48 Requirements for compensation arrangements
19
Requirement to have adequate compensation arrangements
20
(1) A licensee must have adequate arrangements for compensating
21
persons for loss or damage suffered because of a contravention of
22
this Act by the licensee or its representatives.
23
When arrangements are adequate
24
(2) For the purposes of subsection (1), arrangements are adequate if,
25
and only if, they:
26
(a) satisfy any requirements prescribed by the regulations; or
27
(b) are approved in writing by ASIC.
28
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 5 Obligations of licensees
Section 49
58 National Consumer Credit Protection Bill 2009 No. , 2009
Approval of arrangements by ASIC
1
(3) Before approving arrangements under paragraph (2)(b), ASIC must
2
have regard to:
3
(a) the credit activities authorised by the licence; and
4
(b) whether the arrangements will continue to cover persons after
5
the licensee ceases to engage in credit activities, and the
6
length of time for which that cover will continue; and
7
(c) any other matters that are prescribed by the regulations.
8
(4) Without limiting paragraph (3)(c), the regulations may, in
9
particular, prescribe additional details in relation to the matters to
10
which ASIC must have regard under paragraphs (3)(a) and (b).
11
49 Obligation to provide a statement or obtain an audit report if
12
directed by ASIC
13
Notice to licensee to provide a statement
14
(1) ASIC may give a licensee a written notice directing the licensee to
15
lodge with ASIC a written statement containing specified
16
information about the credit activities engaged in by the licensee or
17
its representatives.
18
(2) Notices under subsection (1):
19
(a) may be given at any time; and
20
(b) may be given to one or more particular licensees, or to each
21
licensee in one or more classes of licensee, or to all licensees;
22
and
23
(c) may require all the same information, or may contain
24
differences as to the information they require; and
25
(d) may require a statement containing information to be given
26
on a periodic basis, or each time a particular event or
27
circumstance occurs, without ASIC having to give a further
28
written notice.
29
Notice to licensee to obtain an audit report
30
(3) ASIC may also give a licensee a written notice directing the
31
licensee to obtain an audit report, prepared by a suitably qualified
32
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
Obligations of licensees Division 5
Section 49
National Consumer Credit Protection Bill 2009 No. , 2009 59
person specified in the notice, on a statement, or on each statement
1
in a class of statements, under subsection (1) before the statement
2
is given to ASIC.
3
(4) A notice under subsection (3) is not a legislative instrument.
4
Notice must specify day by which licensee must comply
5
(5) A notice given under this section must specify the day by which
6
the licensee must comply with the notice (which must be a
7
reasonable period after the notice is given). ASIC may extend the
8
day by giving a written notice to the licensee.
9
Requirement to comply with notice
10
(6) The licensee must comply with a notice given under this section
11
within the time specified in the notice.
12
Civil penalty:
2,000 penalty units.
13
Offence
14
(7) A person commits an offence if:
15
(a) the person is subject to a requirement under subsection (6);
16
and
17
(b) the person engages in conduct; and
18
(c) the conduct contravenes the requirement.
19
Criminal penalty: 25 penalty units, or 6 months imprisonment,
20
or both.
21
Strict liability offence
22
(8) A person commits an offence if:
23
(a) the person is subject to a requirement under subsection (6);
24
and
25
(b) the person engages in conduct; and
26
(c) the conduct contravenes the requirement.
27
Criminal penalty: 10 penalty units.
28
(9) Subsection (8) is an offence of strict liability.
29
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 5 Obligations of licensees
Section 50
60 National Consumer Credit Protection Bill 2009 No. , 2009
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
50 Obligation to give ASIC information require d by the regulations
2
Regulations may require licensee to give information
3
(1) The regulations may require a licensee, or each licensee in a class
4
of licensees, to give ASIC specified information about the credit
5
activities engaged in by the licensee or its representatives.
6
Requirement to comply with regulations
7
(2) If regulations under subsection (1) require a licensee to give ASIC
8
information, the licensee must give ASIC that information.
9
Civil penalty:
2,000 penalty units.
10
Offence
11
(3) A person commits an offence if:
12
(a) the person is subject to a requirement to give ASIC
13
information under subsection (2); and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the requirement.
16
Criminal penalty: 25 penalty units, or 6 months imprisonment,
17
or both.
18
Strict liability offence
19
(4) A person commits an offence if:
20
(a) the person is subject to a requirement to give ASIC
21
information under subsection (2); and
22
(b) the person engages in conduct; and
23
(c) the conduct contravenes the requirement.
24
Criminal penalty: 10 penalty units.
25
(5) Subsection (4) is an offence of strict liability.
26
Note:
For strict liability, see section 6.1 of the Criminal Code.
27
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
Obligations of licensees Division 5
Section 51
National Consumer Credit Protection Bill 2009 No. , 2009 61
51 Obligation to provide ASIC with assistance if reasonably
1
requested
2
Requirement to provide assistance
3
(1) If ASIC, or a person authorised by ASIC, reasonably requests
4
assistance from a licensee in relation to whether the licensee and its
5
representatives are complying with the credit legislation, the
6
licensee must give ASIC or the authorised person the requested
7
assistance.
8
Civil penalty:
2,000 penalty units.
9
(2) If the request is in writing, it is not a legislative instrument.
10
Offence
11
(3) A person commits an offence if:
12
(a) the person is subject to a requirement to give ASIC or an
13
authorised person assistance under subsection (1); and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the requirement.
16
Criminal penalty: 25 penalty units, or 6 months imprisonment,
17
or both.
18
Assistance may include showing ASIC credit books etc.
19
(4) The assistance referred to in subsection (1) may include showing
20
ASIC the person's credit books or giving ASIC other information.
21
52 Obligation to cite Australian credit licence numbe r
22
When this section applies
23
(1) This section applies on or after the day that is 2 years after the day
24
section 3 commences.
25
Requirement to include licence number in documents
26
(2) Whenever a licensee identifies itself in a document of a kind
27
prescribed by the regulations, the licensee must:
28
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 5 Obligations of licensees
Section 53
62 National Consumer Credit Protection Bill 2009 No. , 2009
(a) include in the document the licensee's Australian credit
1
licence number; and
2
(b) identify in the document that the number is the licensee's
3
Australian credit licence number.
4
Civil penalty:
2,000 penalty units.
5
Strict liability offence
6
(3) A person commits an offence if:
7
(a) the person is subject to a requirement under subsection (2) to
8
include and identify its Australian credit licence number in a
9
document; and
10
(b) the person engages in conduct; and
11
(c) the conduct contravenes the requirement.
12
Criminal penalty: 10 penalty units.
13
(4) Subsection (3) is an offence of strict liability.
14
Note:
For strict liability, see section 6.1 of the Criminal Code.
15
53 Obligation to lodge annual compliance certificate
16
Requirement to lodge annual compliance certificate
17
(1) A licensee must, no later than 45 days after the licensee's licensing
18
anniversary in each year, lodge a compliance certificate with ASIC
19
in accordance with this section. ASIC may extend the day by
20
giving a written notice to the licensee.
21
Civil penalty:
2,000 penalty units.
22
Compliance certificate must be in approved form
23
(2) The compliance certificate must be in the approved form.
24
Who must sign compliance certificate
25
(3) The compliance certificate must be signed by:
26
(a) if the licensee is a single natural person--the licensee; or
27
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
Obligations of licensees Division 5
Section 53
National Consumer Credit Protection Bill 2009 No. , 2009 63
(b) if the licensee is a body corporate--a person of a kind
1
prescribed by the regulations; or
2
(c) if the licensee is a partnership or the trustees of a trust--a
3
partner or trustee who performs duties in relation to credit
4
activities.
5
Requirement to ensure compliance certificate is lodged
6
(4) Each person by whom the compliance certificate may be signed
7
under subsection (3) must ensure that the licensee lodges the
8
compliance certificate with ASIC in accordance with this section.
9
Civil penalty:
2,000 penalty units.
10
Strict liability offence
11
(5) A person commits an offence if:
12
(a) the person is subject to a requirement under subsection (1) or
13
(4); and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the requirement.
16
Criminal penalty: 60 penalty units.
17
(6) Subsection (5) is an offence of strict liability.
18
Meaning of licensing anniversary
19
(7) Licensing anniversary of a licensee means the anniversary of the
20
day on which the licensee's licence came into force under
21
section 42.
22
23
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 6 When a licence can be suspended, cancelled or varied
Section 54
64 National Consumer Credit Protection Bill 2009 No. , 2009
Division 6--When a licence can be suspended, cancelled or
1
varied
2
Subdivision A--Suspensions and cancellations
3
54 Suspension or cancellation without hearing
4
(1) ASIC may suspend or cancel a licensee's licence if:
5
(a) the licensee lodges with ASIC an application for the
6
suspension or cancellation; or
7
(b) the licensee ceases to engage in credit activities; or
8
(c) any of the matters set out in subsection (2) applies to any of
9
the following persons:
10
(i) the licensee;
11
(ii) if the licensee is a body corporate--a director, secretary
12
or senior manager of the body corporate who performs
13
duties in relation to credit activities;
14
(iii) if the licensee is a partnership or the trustees of a trust--
15
a partner or trustee who performs duties in relation to
16
credit activities.
17
(2) For the purposes of paragraph (1)(c), the matters are as follows:
18
(a) if the person is not the trustees of a trust--the person is
19
insolvent;
20
(b) if the person is a natural person:
21
(i) the person is convicted of serious fraud; or
22
(ii) the person is incapable of managing his or her affairs
23
because of physical or mental incapacity; or
24
(iii) a prescribed State or Territory order is in force against
25
the person.
26
(3) An application for suspension or cancellation of a licence must be
27
in the approved form.
28
55 Suspension or cancellation after offering a hearing
29
(1) ASIC may suspend or cancel a licensee's licence (subject to
30
complying with subsection (4)) if:
31
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
When a licence can be suspended, cancelled or varied Division 6
Section 55
National Consumer Credit Protection Bill 2009 No. , 2009 65
(a) the licensee has contravened an obligation under section 47
1
(which deals with general conduct obligations of licensees);
2
or
3
(b) ASIC has reason to believe that the licensee is likely to
4
contravene an obligation under that section; or
5
(c) ASIC has reason to believe that the licensee is not a fit and
6
proper person to engage in credit activities; or
7
(d) the application for the licence:
8
(i) was false in a material particular or materially
9
misleading; or
10
(ii) omitted a material matter.
11
(2) For the purposes of paragraphs (1)(b) and (c), ASIC must (subject
12
to Part VIIC of the Crimes Act 1914) have regard to the following:
13
(a) if the person is a natural person--the matters set out in
14
paragraphs 37(2)(a) to (f) and subparagraph 37(2)(g)(i) in
15
relation to the person;
16
(b) if the person is not a natural person:
17
(i) the matters set out in paragraphs 37(2)(a) to (f) in
18
relation to the person; and
19
(ii) whether ASIC has reason to believe that any of the
20
persons referred to in paragraph 37(2)(h) in relation to
21
the person is not a fit and proper person to engage in
22
credit activities;
23
(c) any criminal conviction of the person, within 10 years before
24
the licence is proposed to be suspended or cancelled;
25
(d) any other matter ASIC considers relevant;
26
(e) any other matter prescribed by the regulations.
27
Note:
Part VIIC of the Crimes Act 1914 includes provisions that, in certain
28
circumstances, relieve persons from the requirement to disclose spent
29
convictions and require persons aware of such convictions to disregard
30
them.
31
(3) ASIC must (subject to Part VIIC of the Crimes Act 1914), in
32
considering whether it has reason to believe that a person referred
33
to in subparagraph (2)(b)(ii) is not a fit and proper person to
34
engage in credit activities, have regard to the matters set out in
35
paragraphs (2)(a), (c), (d) and (e) in relation to the person.
36
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 6 When a licence can be suspended, cancelled or varied
Section 56
66 National Consumer Credit Protection Bill 2009 No. , 2009
(4) ASIC may only suspend or cancel a licensee's licence under this
1
section after giving the licensee an opportunity:
2
(a) to appear, or be represented, at a hearing before ASIC that
3
takes place in private; and
4
(b) to make submissions to ASIC on the matter.
5
56 Suspension and cancellation--special procedures for
6
APRA-regulated bodies
7
Special procedures for APRA-regulated bodies (other than ADIs)
8
(1) If a licensee, or a related body corporate, is a body (the APRA
9
body) regulated by APRA (other than an ADI), then the following
10
provisions apply:
11
(a) ASIC cannot suspend or cancel the licensee's licence if doing
12
so would, in ASIC's opinion, have the result of preventing
13
the APRA body from being able to carry on all or any of its
14
usual activities (being activities in relation to which APRA
15
has regulatory or supervisory responsibilities), unless ASIC
16
has first consulted APRA about the proposed action;
17
(b) if ASIC suspends or cancels the licensee's licence and
18
paragraph (a) does not apply to that action, ASIC must,
19
within one week, inform APRA of the action that has been
20
taken.
21
Special procedures for ADIs
22
(2) If:
23
(a) a licensee is an ADI; or
24
(b) a related body corporate of a licensee is an ADI, and
25
cancellation or suspension of the licensee's licence would, in
26
ASIC's opinion, have the result of preventing the ADI from
27
being able to carry on all or any of its banking business
28
(within the meaning of the Banking Act 1959);
29
then the following provisions have effect:
30
(c) subject to paragraph (d), the powers that ASIC would
31
otherwise have under this Division to cancel or suspend the
32
licensee's licence, or to revoke a suspension to which this
33
subsection applied, are instead powers of the Minister;
34
Licensing of persons who engage in credit activities Chapter 2
Australian cred it licences Part 2-2
When a licence can be suspended, cancelled or varied Division 6
Section 57
National Consumer Credit Protection Bill 2009 No. , 2009 67
(d) the procedures for the exercise of a power to which
1
paragraph (c) applies are the same as would apply if ASIC
2
could exercise the power, except that the Minister must not
3
exercise the power unless he or she has first considered
4
advice from ASIC on the proposed action, being advice given
5
after ASIC has consulted APRA about the proposed action;
6
(e) ASIC (rather than the Minister) must still conduct any
7
hearing required under paragraph 55(4)(a) and receive any
8
submissions under paragraph 55(4)(b).
9
Subdivision B--Variations
10
57 Varying licences
11
ASIC may vary a person's licence to take account of a change in
12
the person's name.
13
Note:
The conditions on the licence can be varied under section 45.
14
Subdivision C--Miscellaneous rules about suspensions,
15
cancellations and variations
16
58 Effect of suspe nsion
17
(1) A suspended licence has no effect while it remains suspended.
18
(2) Subsection (1) has effect subject to section 62 (which deals with
19
the continued effect of some suspended or cancelled licences).
20
59 Revocation of suspension
21
ASIC may at any time revoke the suspension of a licence.
22
60 Date of effect, notice and publication of variation, cancellation or
23
suspension etc.
24
(1) ASIC must give a licensee written notice of a variation,
25
suspension, revocation of a suspension, or cancellation of the
26
licensee's licence.
27
Chapter 2 Licensing of persons who engage in credit activities
Part 2-2 Australian cred it licences
Division 6 When a licence can be suspended, cancelled or varied
Section 61
68 National Consumer Credit Protection Bill 2009 No. , 2009
(2) A variation, suspension, revocation of a suspension, or cancellation
1
of a licence comes into force when the written notice of that action
2
is given to the licensee.
3
(3) As soon as practicable after the notice is given to the licensee,
4
ASIC must publish a notice of the action on ASIC's website. The
5
notice must state when the action took effect.
6
61 Statement of reasons
7
A notice of suspension or cancellation given to a licensee must be
8
accompanied by a statement of reasons for the action taken.
9
62 ASIC may allow licence to continue in force
10
(1) If ASIC gives a written notice of suspension or cancellation to a
11
licensee, ASIC may include terms in the notice specifying that the
12
licence continues in force as though the suspension or cancellation
13
had not happened for the purposes of specified provisions of this
14
Act in relation to specified matters, a specified period, or both.
15
(2) If ASIC includes terms in a notice under subsection (1), the licence
16
continues in force in accordance with the terms of the notice.
17
18
Licensing of persons who engage in credit activities Chapter 2
Cred it representatives and other representatives of licensees Part 2 -3
Introduction Division 1
Section 63
National Consumer Credit Protection Bill 2009 No. , 2009 69
Part 2-3--Credit representatives and other
1
representatives of licensees
2
Division 1--Introduction
3
63 Guide to this Part
4
This Part is about credit representatives of licensees (which are a
5
particular type of representative of licensees). A person who is
6
authorised as a credit representative of a licensee does not need to
7
hold an Australian credit licence when engaging in credit activities
8
on behalf of the licensee.
9
This Part also deals with information that ASIC may give to
10
licensees about their representatives (such as their employees,
11
directors and credit representatives, and persons who act on their
12
behalf), and the liability of licensees for their representatives.
13
Division 2 deals with how a credit representative may be
14
authorised to engage in credit activities on behalf of a licensee. It
15
also deals with certain obligations of licensees in relation to the
16
authorisation of their credit representatives.
17
Division 3 deals with information about representatives that ASIC
18
may give to a licensee and the use of that information.
19
Division 4 deals with the liability of licensees for the conduct of
20
their representatives.
21
22
Chapter 2 Licensing of persons who engage in credit activities
Part 2-3 Cred it representatives and other representatives of licensees
Division 2 Authorisation of credit representatives
Section 64
70 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Authorisation of credit representatives
1
64 Licensee may authorise credit representatives
2
Authorisation of credit representative by licensee
3
(1) A licensee may give a person a written notice authorising the
4
person to engage in specified credit activities on behalf of the
5
licensee.
6
(2) A person who is authorised under subsection (1) is a credit
7
representative of the relevant licensee.
8
(3) The credit activities specified may be some or all of the credit
9
activities authorised by the licensee's licence.
10
When authorisation is of no effect
11
(4) The authorisation:
12
(a) is of no effect if subsection (5) applies to it when it is given;
13
and
14
(b) ceases to have effect if and when subsection (5) starts to
15
apply to it after it is given;
16
to the extent that subsection (5) applies.
17
(5) This section applies to the authorisation to the extent that it
18
purports to authorise:
19
(a) a person to engage in a credit activity that is not authorised
20
by the licensee's licence; or
21
(b) a person to engage in a credit activity, and a banning order or
22
disqualification order under Part 2-4 is in force against the
23
person in relation to the credit activity; or
24
(c) a person who is not a member of an approved external
25
dispute resolution scheme; or
26
(d) a person who is banned from engaging in a credit activity
27
under a law of a State or Territory; or
28
(e) a natural person who has been convicted, within the last 10
29
years, of serious fraud; or
30
Licensing of persons who engage in credit activities Chapter 2
Cred it representatives and other representatives of licensees Part 2 -3
Authorisation of credit representatives Division 2
Section 65
National Consumer Credit Protection Bill 2009 No. , 2009 71
(f) a natural person against whom a prescribed State or Territory
1
order is in force; or
2
(g) a person that is a body corporate, if a prescribed State or
3
Territory order is in force against a director, secretary or
4
senior manager of the body corporate who would perform
5
duties in relation to the credit activities specified in the
6
authorisation; or
7
(h) a person that is a partnership or the trustees of a trust, if a
8
prescribed State or Territory order is in force against a
9
partner or trustee who would perform duties in relation to the
10
credit activities specified in the authorisation.
11
65 Credit re presentative that is a body corporate may sub-authorise
12
natural persons as credit re presentatives
13
Authorisation of natural person as credit representative by credit
14
representative that is a body corporate
15
(1) A body corporate that is a credit representative of a licensee may,
16
in that capacity, give a natural person a written notice authorising
17
that natural person to engage in specified credit activities on behalf
18
of the licensee.
19
(2) A natural person who is authorised under subsection (1) is a credit
20
representative of the relevant licensee.
21
(3) The credit activities specified may be some or all of the credit
22
activities authorised by the licensee's licence.
23
Licensee must give consent to authorisation
24
(4) The authorisation can only be given if the licensee gives the body
25
corporate its written consent to the authorisation. The licensee may
26
give consent in relation to either a specified natural person or a
27
specified class of natural persons (the membership of which might
28
change from time to time).
29
When authorisation is of no effect
30
(5) The authorisation:
31
Chapter 2 Licensing of persons who engage in credit activities
Part 2-3 Cred it representatives and other representatives of licensees
Division 2 Authorisation of credit representatives
Section 66
72 National Consumer Credit Protection Bill 2009 No. , 2009
(a) is of no effect if subsection (6) applies to it when it is given;
1
and
2
(b) ceases to have effect if and when subsection (6) starts to
3
apply to it after it is given;
4
to the extent that subsection (6) applies.
5
(6) This subsection applies to the authorisation to the extent that it
6
purports to authorise:
7
(a) a natural person to engage in a credit activity that is not
8
authorised by the licensee's licence; or
9
(b) a natural person to engage in a credit activity, and a banning
10
order or disqualification order under Part 2-4 is in force
11
against the natural person in relation to the credit activity; or
12
(c) a natural person who is not a member of an approved external
13
dispute resolution scheme; or
14
(d) a natural person who is banned from engaging in a credit
15
activity under a law of a State or Territory; or
16
(e) a natural person who has been convicted, within the last 10
17
years, of serious fraud; or
18
(f) a natural person against whom a prescribed State or Territory
19
order is in force; or
20
(g) a natural person in relation to the authorisation of whom the
21
licensee has not given its written consent in accordance with
22
subsection (4).
23
(7) To avoid doubt, an authorisation under subsection (1) is taken, for
24
the purposes of sections 66 to 72, to be given by the body
25
corporate, not the licensee.
26
66 Credit re presentative of 2 or more licensees
27
(1) One person can be the credit representative of 2 or more licensees,
28
but only if:
29
(a) each of those licensees has consented to the person also being
30
the credit representative of each of the other licensees; or
31
(b) each of the licensees is a related body corporate of each of
32
the other licensees.
33
(2) An authorisation:
34
Licensing of persons who engage in credit activities Chapter 2
Cred it representatives and other representatives of licensees Part 2 -3
Authorisation of credit representatives Division 2
Section 67
National Consumer Credit Protection Bill 2009 No. , 2009 73
(a) is of no effect if it contravenes subsection (1) when it is
1
given; and
2
(b) ceases to have effect if and when it starts to contravene
3
subsection (1) after it is given.
4
67 A pe rson cannot be a credit representative in relation to credit
5
activities authorised by a person's licence
6
(1) A person must not authorise another person to engage in a credit
7
activity as a credit representative under subsection 64(1) or 65(1) if
8
the other person holds a licence authorising the person to engage in
9
the credit activity.
10
(2) An authorisation:
11
(a) is of no effect if it contravenes subsection (1) when it is
12
given; and
13
(b) ceases to have effect if and when it starts to contravene
14
subsection (1) after it is given.
15
68 Variation and revocation of authorisations and
16
sub-authorisations
17
Variation and revocation of authorisations
18
(1) An authorisation under subsection 64(1) may be varied or revoked
19
at any time by the licensee giving written notice to the credit
20
representative.
21
Variation and revocation of sub-authorisations
22
(2) An authorisation under subsection 65(1) may be varied or revoked
23
at any time by:
24
(a) the licensee in relation to whom the authorisation was given;
25
or
26
(b) the body corporate that gave the authorisation;
27
giving written notice to the credit representative.
28
(3) If a person varies or revokes an authorisation under subsection (2),
29
that person must give the other person who could have varied or
30
Chapter 2 Licensing of persons who engage in credit activities
Part 2-3 Cred it representatives and other representatives of licensees
Division 2 Authorisation of credit representatives
Section 69
74 National Consumer Credit Protection Bill 2009 No. , 2009
revoked the authorisation written notice of the variation or
1
revocation.
2
69 Obligation not to give authorisation that has no effect
3
Requirement not to give authorisation
4
(1) A person must not purport to authorise a credit representative
5
under subsection 64(1) or 65(1) if, at the time the person first
6
purports to give the authorisation, it is of no effect, to any extent,
7
under this Division.
8
Civil penalty:
2,000 penalty units.
9
Offence
10
(2) A person commits an offence if:
11
(a) the person is subject to a requirement under subsection (1);
12
and
13
(b) the person engages in conduct; and
14
(c) the conduct contravenes the requirement.
15
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
16
both.
17
70 Obligation to vary or revoke authorisation that ceases to have
18
effect
19
Requirement to vary or revoke authorisation
20
(1) If a person:
21
(a) has authorised a credit representative under subsection 64(1)
22
or 65(1); and
23
(b) becomes aware of a matter because of which the
24
authorisation of the credit representative has ceased to have
25
effect under this Division;
26
the person must, as soon as practicable:
27
(c) revoke the authorisation; or
28
(d) vary the authorisation so that it is no longer, to any extent, of
29
no effect under this Division.
30
Licensing of persons who engage in credit activities Chapter 2
Cred it representatives and other representatives of licensees Part 2 -3
Authorisation of credit representatives Division 2
Section 71
National Consumer Credit Protection Bill 2009 No. , 2009 75
Civil penalty:
2,000 penalty units.
1
Offence
2
(2) A person commits an offence if:
3
(a) the person is required to vary or revoke an authorisation
4
under subsection (1); and
5
(b) the person engages in conduct; and
6
(c) the conduct contravenes subsection (1).
7
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
8
both.
9
71 Obligation to notify ASIC etc. about credit representatives
10
Requirement to notify ASIC when credit representative authorised
11
(1) If a person authorises a credit representative under subsection
12
64(1) or 65(1), the person must, within 15 business days of the
13
authorisation, lodge with ASIC a written notice in accordance with
14
subsection (3).
15
Civil penalty:
2,000 penalty units.
16
Requirement to notify licensee of sub-authorisation
17
(2) If:
18
(a) a person authorises a natural person as a credit representative
19
of a licensee under subsection 65(1) (which deals with
20
sub-authorisations); and
21
(b) the consent of the licensee to the authorisation was given in
22
relation to a specified class of natural persons;
23
then the person must, within 15 business days of the authorisation,
24
give the licensee written notice of the authorisation in accordance
25
with subsection (3).
26
Civil penalty:
2,000 penalty units.
27
Details to be included in notice
28
(3) The notice must include the following details:
29
Chapter 2 Licensing of persons who engage in credit activities
Part 2-3 Cred it representatives and other representatives of licensees
Division 2 Authorisation of credit representatives
Section 71
76 National Consumer Credit Protection Bill 2009 No. , 2009
(a) the name and business address of the credit representative;
1
(b) details of the authorisation, including the date on which it
2
was made and what the credit representative is authorised to
3
do on behalf of the licensee;
4
(c) details of the external dispute resolution scheme of which the
5
credit representative is a member;
6
(d) details of each other licensee on behalf of whom the credit
7
representative is a credit representative.
8
Requirement to notify ASIC of change in details etc.
9
(4) If:
10
(a) a person authorises a credit representative under subsection
11
64(1) or 65(1); and
12
(b) either:
13
(i) any of the details that are referred to in subsection (3) in
14
relation to the credit representative changes; or
15
(ii) the person revokes the authorisation;
16
then the person must, within 10 business days of the change or
17
revocation, lodge with ASIC a written notice of the change or
18
revocation.
19
Civil penalty:
2,000 penalty units.
20
(5) A notice given under subsection (1), (2) or (4) must be in the
21
approved form.
22
Strict liability offence
23
(6) A person commits an offence if:
24
(a) the person is subject to a requirement to give a notice under
25
subsection (1), (2) or (4); and
26
(b) the person engages in conduct; and
27
(c) the conduct contravenes the requirement.
28
Criminal penalty: 25 penalty units, or 6 months imprisonment,
29
or both.
30
(7) Subsection (6) is an offence of strict liability.
31
Note:
For strict liability, see section 6.1 of the Criminal Code.
32
Licensing of persons who engage in credit activities Chapter 2
Cred it representatives and other representatives of licensees Part 2 -3
Authorisation of credit representatives Division 2
Section 72
National Consumer Credit Protection Bill 2009 No. , 2009 77
72 Credit re presentative numbe rs
1
(1) Within a reasonable period after receiving a notice under
2
subsection 71(1) of the authorisation of a credit representative,
3
ASIC must allocate the credit representative a unique credit
4
representative number.
5
(2) ASIC must give written notice of the credit representative number
6
to:
7
(a) the credit representative; and
8
(b) the person who authorised the credit representative.
9
(3) This section does not apply in relation to a credit representative
10
that has already been allocated a credit representative number.
11
12
Chapter 2 Licensing of persons who engage in credit activities
Part 2-3 Cred it representatives and other representatives of licensees
Division 3 Information about representatives
Section 73
78 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Information about representatives
1
73 ASIC may give licensee information about representatives
2
ASIC may give licensee information about representatives
3
(1) If ASIC considers it appropriate to do so, it may give information
4
to a licensee about a person whom ASIC believes is, or will be, a
5
representative of the licensee. However, ASIC may only do so if it
6
believes, on reasonable grounds, that the information is true.
7
Requirements about use of information
8
(2) A licensee to whom information is given under subsection (1) may
9
make use of, make a record of, or give to another person, the
10
information for a purpose connected with:
11
(a) the licensee making a decision about what action (if any) to
12
take in relation to the representative, as a consequence of
13
receiving the information; or
14
(b) the licensee taking action pursuant to such a decision.
15
(3) A licensee to whom information is given under subsection (1) must
16
not make use of, make a record of, or give to another person, the
17
information other than as permitted by subsection (2).
18
Civil penalty:
2,000 penalty units.
19
(4) A person to whom information has been given for a purpose or
20
purposes under subsection (2) or this subsection may make use of,
21
make a record of, or give to another person, that information for
22
that purpose or any of those purposes.
23
(5) A person to whom information has been given for a purpose or
24
purposes under subsection (2) or (4) must not make use of, make a
25
record of, or give to another person, the information other than as
26
permitted by subsection (4).
27
Civil penalty:
2,000 penalty units.
28
Offence
29
(6) A person commits an offence if:
30
Licensing of persons who engage in credit activities Chapter 2
Cred it representatives and other representatives of licensees Part 2 -3
Information about representatives Division 3
Section 73
National Consumer Credit Protection Bill 2009 No. , 2009 79
(a) the person is subject to a requirement under subsection (3) or
1
(5); and
2
(b) the person engages in conduct; and
3
(c) the conduct contravenes the requirement.
4
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
5
both.
6
Qualified privilege
7
(7) A person has qualified privilege in relation to an act done by the
8
person under subsection (2) or (4).
9
Use of information obtained under this section in court
10
(8) A person to whom information is given in accordance with this
11
section must not give any of the information to a court, or produce
12
in a court a document that sets out some or all of the information,
13
except:
14
(a) for a purpose connected with:
15
(i) a licensee making a decision about what action (if any)
16
to take in relation to the representative, as a
17
consequence of receiving some or all of the information;
18
or
19
(ii) a licensee taking action pursuant to that decision; or
20
(iii) proving in proceedings in that court that particular
21
action taken by a licensee in relation to the
22
representative was taken pursuant to that decision; or
23
(b) in proceedings in that court, in so far as the proceedings
24
relate to an alleged contravention of this section; or
25
(c) in proceedings about giving to a court false information
26
some, at least, of which was the information given under this
27
section.
28
(9) For the purposes of subsection (8), a licensee takes action in
29
relation to a representative if the licensee:
30
(a) takes action by way of making, terminating or varying the
31
terms and conditions of an agreement; or
32
(b) otherwise takes action in relation to an agreement;
33
Chapter 2 Licensing of persons who engage in credit activities
Part 2-3 Cred it representatives and other representatives of licensees
Division 3 Information about representatives
Section 73
80 National Consumer Credit Protection Bill 2009 No. , 2009
to the extent that the agreement relates to the representative acting
1
on behalf of the licensee.
2
(10) Subsection (8) also has the effect it would have if:
3
(a) a reference in it to a court were a reference to a court of an
4
external Territory or of a country outside Australia and the
5
external Territories; and
6
(b) paragraph (8)(b) were omitted.
7
8
Licensing of persons who engage in credit activities Chapter 2
Cred it representatives and other representatives of licensees Part 2 -3
Liability of licensees for representatives Division 4
Section 74
National Consumer Credit Protection Bill 2009 No. , 2009 81
Division 4--Liability of licensees for representatives
1
74 Application of this Division
2
This Division applies to any conduct of a representative of a
3
licensee:
4
(a) that relates to a credit activity; and
5
(b) on which a third person (the client) could reasonably be
6
expected to rely; and
7
(c) on which the client in fact relied in good faith.
8
75 Responsibility if representative of only one licensee
9
If the representative is the representative of only one licensee, the
10
licensee is responsible, as between the licensee and the client, for
11
the conduct of the representative, whether or not the
12
representative's conduct is within the authority of the licensee.
13
76 Representatives of multiple licensees
14
When this section applies
15
(1) This section applies if the representative is the representative of
16
more than one licensee.
17
Conduct covered by only one authority
18
(2) If:
19
(a) the representative is the representative of one of the licensees
20
only in relation to a particular class of credit activity; and
21
(b) the conduct relates to that class of credit activity;
22
that licensee is responsible for the conduct, as between that
23
licensee and the client, whether or not the conduct is within the
24
authority of the licensee.
25
Conduct covered by multiple authorities
26
(3) If:
27
Chapter 2 Licensing of persons who engage in credit activities
Part 2-3 Cred it representatives and other representatives of licensees
Division 4 Liab ility of licensees for representatives
Section 77
82 National Consumer Credit Protection Bill 2009 No. , 2009
(a) the representative is the representative of more than one of
1
the licensees in relation to a particular class of credit activity;
2
and
3
(b) the conduct relates to that class of credit activity; and
4
(c) the conduct is within the authority of:
5
(i) only one of those licensees (the authorising licensee);
6
or
7
(ii) 2 or more of those licensees (the authorising licensees);
8
then:
9
(d) if subparagraph (c)(i) applies--the authorising licensee is
10
responsible for the conduct, as between that licensee and the
11
client; or
12
(e) if subparagraph (c)(ii) applies--the authorising licensees are
13
jointly and severally responsible for the conduct, as between
14
themselves and the client.
15
All other cases
16
(4) In any other case, all of the licensees are jointly and severally
17
responsible for the conduct, as between themselves and the client,
18
whether or not the representative's conduct is within the authority
19
of any of them.
20
77 Responsibility extends to loss or damage suffered by client
21
The responsibility of a licensee under this Division extends so as to
22
make the licensee liable to the client in relation to any loss or
23
damage suffered by the client as a result of the representative's
24
conduct.
25
78 Effect of this Division
26
(1) If a licensee is responsible for the conduct of its representative
27
under this Division, the client has the same remedies against the
28
licensee that the client has against the representative.
29
(2) The licensee and the representative (along with any other licensees
30
that are also responsible) are all jointly and severally liable to the
31
client in relation to those remedies.
32
Licensing of persons who engage in credit activities Chapter 2
Cred it representatives and other representatives of licensees Part 2 -3
Liability of licensees for representatives Division 4
Section 78
National Consumer Credit Protection Bill 2009 No. , 2009 83
(3) However, nothing in this Division imposes:
1
(a) any criminal responsibility; or
2
(b) any civil liability under a provision of this Act apart from this
3
Division;
4
on a licensee that would not otherwise be imposed on the licensee.
5
(4) This Division does not relieve a representative of a licensee of any
6
liability that the representative has to the client or the licensee.
7
(5) An agreement has no effect in so far as it purports to alter or
8
restrict the operation of section 75, 76 or 77.
9
(6) However, subsection (5) does not apply to the extent that the
10
agreement:
11
(a) provides for a representative of a licensee to indemnify the
12
licensee for a liability of the licensee in relation to the
13
representative; or
14
(b) provides for a licensee, for whom a representative acts, to
15
indemnify another licensee for a liability in relation to the
16
representative.
17
(7) A licensee must not make, or offer to make, an agreement that has,
18
or would have, no effect under subsection (5).
19
20
Chapter 2 Licensing of persons who engage in credit activities
Part 2-4 Banning or disqualification of persons fro m engaging in cred it activities
Division 1 Introduction
Section 79
84 National Consumer Credit Protection Bill 2009 No. , 2009
Part 2-4--Banning or disqualification of persons
1
from engaging in credit activities
2
Division 1--Introduction
3
79 Guide to this Part
4
This Part is about the banning and disqualification of persons from
5
engaging in credit activities.
6
Division 2 deals with banning orders, which are orders made by
7
ASIC that prohibit a person from engaging in credit activities.
8
Division 3 deals with disqualification orders, which are orders of
9
the court that disqualify a person from engaging in credit activities.
10
11
Licensing of persons who engage in credit activities Chapter 2
Banning or disqualification of persons from engaging in cred it activities Part 2-4
Banning orders Division 2
Section 80
National Consumer Credit Protection Bill 2009 No. , 2009 85
Division 2--Banning orders
1
80 ASIC's powe r to make a banning order
2
(1) ASIC may make a banning order against a person:
3
(a) if ASIC suspends or cancels a licence of the person; or
4
(b) for a person other than the trustees of a trust--if the person
5
becomes insolvent; or
6
(c) for a natural person--if the person is convicted of fraud; or
7
(d) if the person has:
8
(i) contravened any credit legislation; or
9
(ii) been involved in a contravention of a provision of any
10
credit legislation by another person; or
11
(e) if ASIC has reason to believe that the person is likely to:
12
(i) contravene any credit legislation; or
13
(ii) be involved in a contravention of a provision of any
14
credit legislation by another person; or
15
(f) if ASIC has reason to believe that the person is not a fit and
16
proper person to engage in credit activities; or
17
(g) if a prescribed State or Territory order is in force against the
18
person; or
19
(h) in any other circumstances prescribed by the regulations.
20
(2) For the purposes of paragraphs (1)(e) and (f), ASIC must (subject
21
to Part VIIC of the Crimes Act 1914) have regard to the following:
22
(a) if the person is a natural person--the matters set out in
23
paragraphs 37(2)(a) to (f) and subparagraph 37(2)(g)(i) in
24
relation to the person;
25
(b) if the person is not a natural person:
26
(i) the matters set out in paragraphs 37(2)(a) to (f) in
27
relation to the person; and
28
(ii) whether ASIC has reason to believe that any of the
29
persons referred to in paragraph 37(2)(h) in relation to
30
the person is not a fit and proper person to engage in
31
credit activities;
32
(c) any criminal conviction of the person, within 10 years before
33
the banning order is proposed to be made;
34
Chapter 2 Licensing of persons who engage in credit activities
Part 2-4 Banning or disqualification of persons fro m engaging in cred it activities
Division 2 Banning orders
Section 81
86 National Consumer Credit Protection Bill 2009 No. , 2009
(d) any other matter ASIC considers relevant;
1
(e) any other matter prescribed by the regulations.
2
Note:
Part VIIC of the Crimes Act 1914 includes provisions that, in certain
3
circumstances, relieve persons from the requirement to disclose spent
4
convictions and require persons aware of such convictions to disregard
5
them.
6
(3) ASIC must (subject to Part VIIC of the Crimes Act 1914), in
7
considering whether it has reason it has reason to believe that a
8
person referred to in subparagraph (2)(b)(ii) is not a fit and proper
9
person to engage in credit activities, have regard to the matters set
10
out in paragraphs (2)(a), (c), (d) and (e) in relation to the person.
11
(4) Despite subsection (1), ASIC may only make a banning order
12
against a person after giving the person an opportunity:
13
(a) to appear, or be represented, at a hearing before ASIC that
14
takes place in private; and
15
(b) to make submissions to ASIC on the matter.
16
(5) Subsection (4) does not apply if:
17
(a) ASIC's grounds for making the banning order against the
18
person include that ASIC has suspended or cancelled a
19
licence of the person (see paragraph (1)(a)); and
20
(b) the suspension or cancellation took place without a hearing
21
under section 54.
22
(6) Subsection (4) also does not apply if:
23
(a) ASIC's grounds for making the banning order against the
24
person include that the person has been convicted of fraud
25
(see paragraph (1)(c)); and
26
(b) the person has been convicted of serious fraud.
27
(7) ASIC must give a copy of the banning order to the person against
28
whom it was made.
29
81 What is a banning order?
30
(1) A banning order is a written order that prohibits a person from
31
engaging in any credit activities or specified credit activities in
32
specified circumstances or capacities.
33
Licensing of persons who engage in credit activities Chapter 2
Banning or disqualification of persons from engaging in cred it activities Part 2-4
Banning orders Division 2
Section 82
National Consumer Credit Protection Bill 2009 No. , 2009 87
(2) The order may prohibit the person against whom it is made from
1
engaging in a credit activity:
2
(a) permanently; or
3
(b) for a specified period.
4
(3) A banning order may include a provision allowing the person
5
against whom it was made, subject to any specified conditions:
6
(a) to do specified acts; or
7
(b) to do specified acts in specified circumstances;
8
that the order would otherwise prohibit them from doing.
9
(4) A banning order is not a legislative instrument.
10
82 Effect of banning orde rs
11
Requirement not to engage in conduct contrary to banning order
12
(1) A person must not engage in conduct that is contrary to a banning
13
order that is in force against the person.
14
Civil penalty:
2,000 penalty units.
15
Offence
16
(2) A person commits an offence if:
17
(a) the person is subject to a requirement under subsection (1);
18
and
19
(b) the person engages in conduct; and
20
(c) the conduct contravenes the requirement.
21
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
22
both.
23
Note:
A person against whom a banning order is in force cannot be granted a
24
licence authorising the person to engage in a credit activity to which
25
the banning order applies (see subsection 40(1)).
26
Chapter 2 Licensing of persons who engage in credit activities
Part 2-4 Banning or disqualification of persons fro m engaging in cred it activities
Division 2 Banning orders
Section 83
88 National Consumer Credit Protection Bill 2009 No. , 2009
83 Variation or cancellation of banning orders
1
(1) ASIC may vary or cancel a banning order if ASIC is satisfied that
2
it is appropriate to do so because of a change in any of the
3
circumstances based on which ASIC made the order.
4
(2) ASIC may do so:
5
(a) on its own initiative; or
6
(b) if the person against whom the order was made lodges with
7
ASIC an application for the variation or cancellation.
8
(3) The application must be in the approved form.
9
(4) If ASIC proposes not to vary or cancel a banning order in
10
accordance with an application given by a person under
11
paragraph (2)(b), ASIC must give the person an opportunity:
12
(a) to appear, or be represented, at a hearing before ASIC that
13
takes place in private; and
14
(b) to make submissions to ASIC on the matter.
15
(5) ASIC must give written notice of the variation or cancellation of a
16
banning order to the person against whom the order was made.
17
84 Date of effect, notice and publication of banning order, variation
18
or cancellation
19
(1) A banning order comes into force when it is given to the person
20
against whom it is made.
21
(2) A variation or cancellation of a banning order comes into force
22
when written notice of the variation or cancellation is given to the
23
person against whom the order was made.
24
(3) ASIC must publish a notice on ASIC's website as soon as
25
practicable after making, varying or cancelling a banning order.
26
The notice must state when the banning order, or variation or
27
cancellation of the banning order, came into force and:
28
(a) in the case of the making of a banning order--set out a copy
29
of the banning order; or
30
(b) in the case of the variation of a banning order--set out a copy
31
of the banning order as varied.
32
Licensing of persons who engage in credit activities Chapter 2
Banning or disqualification of persons from engaging in cred it activities Part 2-4
Banning orders Division 2
Section 85
National Consumer Credit Protection Bill 2009 No. , 2009 89
(4) However, if the banning order contains a provision of the kind
1
referred to in subsection 81(3) and ASIC considers that the notice
2
on its website would be unreasonably long if that provision were
3
included, the notice may instead set out a summary of the
4
provision's effect.
5
85 Statement of reasons
6
(1) A copy of a banning order given to a person must be accompanied
7
by a statement of reasons for the order.
8
(2) If ASIC varies a banning order made against a person, ASIC must,
9
on request by the person, give the person a statement of reasons for
10
the variation.
11
12
Chapter 2 Licensing of persons who engage in credit activities
Part 2-4 Banning or disqualification of persons fro m engaging in cred it activities
Division 3 Disqualification by the court
Section 86
90 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Disqualification by the court
1
86 Disqualification by the court
2
(1) ASIC may apply to the court for an order under subsection (2) in
3
relation to a person if ASIC:
4
(a) cancels a licence of the person; or
5
(b) makes a banning order against the person that is to operate
6
permanently.
7
(2) The court may make:
8
(a) an order disqualifying the person, permanently or for a
9
specified period, from engaging in credit activities, or
10
specified credit activities, in specified circumstances or
11
capacities; or
12
(b) any other order the court considers appropriate.
13
Note:
A person against whom a disqualification order is in force cannot be
14
granted a licence authorising the person to engage in a credit activity
15
to which the disqualification order applies (see subsection 40(1)).
16
17
Licensing of persons who engage in credit activities Chapter 2
Financial records, trust accounts and audit reports Part 2-5
Introduction Division 1
Section 87
National Consumer Credit Protection Bill 2009 No. , 2009 91
Part 2-5--Financial records, trust accounts and
1
audit reports
2
Division 1--Introduction
3
87 Guide to this Part
4
This Part is about financial records, trust accounts and matters
5
relating to audit reports required under this Act.
6
Division 2 deals with the requirement for licensees to keep certain
7
financial records, and provides for how those records must be kept.
8
Division 3 deals with trust accounts. Licensees that provide credit
9
services and that receive money on behalf of others in the course of
10
those services are required to maintain a trust account. Those
11
licensees must also comply with requirements in relation to trust
12
account money, trust account statements and trust account audit
13
reports.
14
Division 4 has requirements relating to audit reports required by
15
this Act, and the auditors that prepare those reports.
16
17
Chapter 2 Licensing of persons who engage in credit activities
Part 2-5 Financial records, trust accounts and audit reports
Division 2 Financial records of licensees
Section 88
92 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Financial records of licensees
1
88 Obligation to keep financial records
2
Requirement to keep financial records
3
(1) A licensee must:
4
(a) keep financial records that correctly record and explain the
5
transactions and financial position of any business of
6
engaging in credit activities carried on by the licensee; and
7
(b) keep those records in accordance with this Division; and
8
(c) comply with subsection 90(2) in relation to the conversion of
9
records into the English language; and
10
(d) comply with section 91 in relation to the location and
11
production of records and particulars.
12
Civil penalty:
2,000 penalty units.
13
Meaning of financial records
14
(2) Financial records includes:
15
(a) invoices, receipts, orders for the payment of money, bills of
16
exchange, cheques, promissory notes and vouchers; and
17
(b) documents of prime entry; and
18
(c) any trust account statement or trust account report required
19
under section 100.
20
Offence
21
(3) A person commits an offence if:
22
(a) the person is subject to a requirement in relation to financial
23
records under subsection (1); and
24
(b) the person engages in conduct; and
25
(c) the conduct contravenes subsection (1).
26
Criminal penalty: 200 penalty units, or 5 years imprisonment, or
27
both.
28
Licensing of persons who engage in credit activities Chapter 2
Financial records, trust accounts and audit reports Part 2-5
Financial records of licensees Division 2
Section 89
National Consumer Credit Protection Bill 2009 No. , 2009 93
Financial records may be kept with other records
1
(4) A licensee does not contravene this Division merely because some
2
or all of the financial records are prepared as a part of, or in
3
conjunction with, the records relating to any other business that is
4
carried on by the licensee.
5
Note:
For the purposes of subsection (3), a defendant bears an evidential
6
burden in relation to the matter in subsection (4) (see subsection
7
13.3(3) of the Criminal Code).
8
89 How financial records are to be kept
9
The financial records must be kept in a way that:
10
(a) enables true and fair profit and loss statements, and balance
11
sheets, of the business referred to in paragraph 88(1)(a) to be
12
prepared from time to time; and
13
(b) allows those statements and balance sheets to be
14
conveniently and properly audited in accordance with the
15
auditing standards (if any) prescribed by regulations made
16
under section 106.
17
90 Language of financial records
18
(1) The financial records must be kept in writing in the English
19
language, or in a manner that enables them to be readily accessible
20
and readily converted into writing in the English language.
21
(2) If any of the financial records are not kept in writing in the English
22
language, the licensee must, if required to convert the financial
23
records concerned into writing in the English language by a person
24
who is entitled to examine the financial records concerned, comply
25
with the requirement within a reasonable time.
26
91 Location of financial records
27
If any of the financial records are kept outside this jurisdiction, the
28
licensee must:
29
(a) cause to be sent to and retained at a place in this jurisdiction
30
such particulars in relation to the business dealt with in those
31
Chapter 2 Licensing of persons who engage in credit activities
Part 2-5 Financial records, trust accounts and audit reports
Division 2 Financial records of licensees
Section 92
94 National Consumer Credit Protection Bill 2009 No. , 2009
financial records as will enable true and fair profit and loss
1
statements and balance sheets to be prepared; and
2
(b) if required by ASIC to produce those financial records at a
3
place in this jurisdiction, comply with the requirement not
4
later than 28 days after the requirement is made.
5
92 Information to be shown in financial records
6
The financial records must be kept in sufficient detail to show
7
particulars of:
8
(a) all money received or paid by the licensee; and
9
(b) for each credit contract under which the licensee is the credit
10
provider:
11
(i) the amount and day of all payments made by or on
12
behalf of the debtor under the credit contract; and
13
(ii) all amounts (including principal, interest, fees and
14
charges) owed by the debtor under the credit contract;
15
and
16
(c) for each consumer lease under which the licensee is the
17
lessor--the amount and day of all payments made by or on
18
behalf of the lessee under the consumer lease; and
19
(d) for each guarantee under which the licensee is the beneficiary
20
of the guarantee--the amount and day of all payments made
21
by or on behalf of the guarantor under the guarantee; and
22
(e) all income received by the licensee from commissions,
23
interest, and other sources, and all expenses, commissions,
24
and interest paid by the licensee; and
25
(f) all the assets and liabilities (including contingent liabilities)
26
of the licensee; and
27
(g) any other matters prescribed by the regulations.
28
93 Regulations may impose additional require ments
29
The regulations may impose additional requirements to be
30
complied with in relation to the financial records including, for
31
example:
32
(a) requirements for things to be contained in the records; and
33
Licensing of persons who engage in credit activities Chapter 2
Financial records, trust accounts and audit reports Part 2-5
Financial records of licensees Division 2
Section 94
National Consumer Credit Protection Bill 2009 No. , 2009 95
(b) requirements relating to the level of detail to be shown in the
1
records.
2
94 Financial records taken to be made with licensee's authority
3
An entry in the records is, unless the contrary is proved, to be taken
4
to have been made by, or with the authority of, the licensee.
5
95 Obligation to retain financial records for 7 years
6
Requirement to retain financial records
7
(1) A licensee that is required by this Division to make a financial
8
record must retain it for 7 years after the transactions covered by
9
the record are completed.
10
Civil penalty:
2,000 penalty units.
11
Regulations
12
(2) The regulations may prescribe financial records to which
13
subsection (1) does not apply.
14
Records to be kept even if person stops carrying on business
15
(3) Financial records must be retained in accordance with this section,
16
even if the person stops carrying on any business to which they
17
relate.
18
Offence
19
(4) A person commits an offence if:
20
(a) the person is subject to a requirement under subsection (1);
21
and
22
(b) the person engages in conduct; and
23
(c) the conduct contravenes the requirement.
24
Criminal penalty: 50 penalty units, or 6 months imprisonment,
25
or both.
26
Chapter 2 Licensing of persons who engage in credit activities
Part 2-5 Financial records, trust accounts and audit reports
Division 2 Financial records of licensees
Section 96
96 National Consumer Credit Protection Bill 2009 No. , 2009
96 Financial records are prima facie evidence of matters
1
(1) In proceedings in a court, a financial record kept under this
2
Division is admissible as prima facie evidence of any matter in the
3
financial record.
4
(2) A document purporting to be a financial record kept by a licensee
5
under this Division is, unless the contrary is proved, presumed to
6
be a financial record kept by the licensee under this Division.
7
(3) If:
8
(a) because of subsection (1) a financial record is prima facie
9
evidence of a matter; and
10
(b) the financial record, or a part of the financial, is kept or
11
prepared by recording or storing matters (including that
12
matter) by means of a mechanical, electronic or other device;
13
a written reproduction of that matter as so recorded or stored is
14
admissible as prima facie evidence of that matter in a proceeding in
15
a court.
16
(4) A written document that purports to reproduce a matter recorded or
17
stored by means of a mechanical, electronic or other device is,
18
unless the contrary is proved, presumed to be a reproduction of that
19
matter.
20
21
Licensing of persons who engage in credit activities Chapter 2
Financial records, trust accounts and audit reports Part 2-5
Trust accounts of credit service licensees Division 3
Section 97
National Consumer Credit Protection Bill 2009 No. , 2009 97
Division 3--Trust accounts of credit service licensees
1
97 Application of this Division
2
This Division applies to a licensee (the credit service licensee)
3
that:
4
(a) holds a licence that authorises the licensee to provide a credit
5
service; and
6
(b) in the course of providing the credit service, receives money
7
for or on behalf of another person.
8
98 Obligation for credit service lice nsees to maintain trust account
9
Requirement to maintain trust account
10
(1) The credit service licensee must maintain one more trust accounts
11
(the trust account) in accordance with this section.
12
Civil penalty:
2,000 penalty units.
13
Requirements for trust accounts
14
(2) The trust account must be maintained with an Australian ADI
15
(within the meaning of section 9 of the Corporations Act 2001).
16
(3) The trust account must be designated as the credit service
17
licensee's trust account.
18
Offence
19
(4) The credit service licensee commits an offence if:
20
(a) the credit service licensee is subject to a requirement under
21
subsection (1); and
22
(b) the credit service licensee engages in conduct; and
23
(c) the conduct contravenes the requirement.
24
Criminal penalty: 25 penalty units, or 6 months imprisonment,
25
or both.
26
Chapter 2 Licensing of persons who engage in credit activities
Part 2-5 Financial records, trust accounts and audit reports
Division 3 Trust accounts of credit service licensees
Section 99
98 National Consumer Credit Protection Bill 2009 No. , 2009
99 Obligations in relation to trust account money
1
Requirement to pay money to credit of trust account
2
(1) The credit service licensee must pay to the credit of the trust
3
account any money received by the credit service licensee for or on
4
behalf of another person in relation to the credit service provided
5
by the licensee.
6
Civil penalty:
2,000 penalty units.
7
Requirement in relation to withdrawal of money from trust account
8
(2) The credit service licensee must not withdraw any money paid into
9
the trust account, other than for the purpose of paying the money in
10
accordance with subsection (3).
11
Civil penalty:
2,000 penalty units.
12
Requirement in relation to payment of money from trust account
13
(3) The credit service licensee must pay any money withdrawn from
14
the trust account to the person or persons lawfully entitled to
15
receive that money.
16
Civil penalty:
2,000 penalty units.
17
Offence
18
(4) The credit service licensee commits an offence if:
19
(a) the credit service licensee is subject to a requirement under
20
subsection (1), (2) or (3); and
21
(b) the credit service licensee engages in conduct; and
22
(c) the conduct contravenes the requirement.
23
Criminal penalty: 25 penalty units, or 6 months imprisonment,
24
or both.
25
Trust account money not available for payment of debts etc.
26
(5) Money paid into a trust account by the credit service licensee under
27
this section:
28
Licensing of persons who engage in credit activities Chapter 2
Financial records, trust accounts and audit reports Part 2-5
Trust accounts of credit service licensees Division 3
Section 100
National Consumer Credit Protection Bill 2009 No. , 2009 99
(a) is not available for the payment of a debt of any other
1
creditor of the credit service licensee; and
2
(b) is not liable to be attached or taken in execution under the
3
order or process of a court at the instance of any such
4
creditors.
5
100 Obligation to lodge trust account statement and trust account
6
audit report
7
Requirement to prepare and lodge trust account statement
8
(1) The credit service licensee must, for each financial year of the
9
credit service licensee:
10
(a) prepare a written statement in relation to the trust account
11
(the trust account statement) in accordance with this section;
12
and
13
(b) lodge the trust account statement with ASIC in accordance
14
with this section.
15
Civil penalty:
2,000 penalty units.
16
Requirement to prepare and lodge trust account audit report
17
(2) The credit service licensee must, with the trust account statement,
18
lodge with ASIC an auditor's report (the trust account audit
19
report) in accordance with this section.
20
Civil penalty:
2,000 penalty units.
21
Requirements for statement and audit report
22
(3) Each of the trust account statement and trust account audit report
23
must:
24
(a) be in the approved form; and
25
(b) contain the information and matters prescribed by the
26
regulations; and
27
(c) be lodged with ASIC in accordance with section 101.
28
Chapter 2 Licensing of persons who engage in credit activities
Part 2-5 Financial records, trust accounts and audit reports
Division 3 Trust accounts of credit service licensees
Section 101
100 National Consumer Credit Protection Bill 2009 No. , 2009
(4) The trust account audit report must be prepared by a person who
1
complies with any eligibility requirements prescribed by the
2
regulations.
3
Offence
4
(5) The credit service licensee commits an offence if:
5
(a) the credit service licensee is subject to a requirement under
6
subsection (1) or (2); and
7
(b) the credit service licensee engages in conduct; and
8
(c) the conduct contravenes the requirement.
9
Criminal penalty: 200 penalty units, or 5 years imprisonment, or
10
both.
11
Meaning of financial year
12
(6) A financial year of the credit service licensee means:
13
(a) if the credit service licensee is not a body corporate--a year
14
ending on 30 June; and
15
(b) if the credit service licensee is a body corporate--a financial
16
year of the body corporate (within the meaning of
17
section 323D of the Corporations Act 2001).
18
101 Time of lodgme nt of trust account statement and trust account
19
audit report
20
(1) Unless an extension is granted under subsection (3), the trust
21
account statement and trust account audit report must be lodged
22
with ASIC before the day that is 3 months after the end of the
23
financial year of the credit service licensee to which they relate.
24
(2) If an extension is granted under subsection (3), the trust account
25
statement and trust account audit report must be lodged with ASIC
26
before the end of the extended period.
27
(3) ASIC may, on application made:
28
(a) by the credit service licensee and the auditor that is to prepare
29
the trust account audit report; and
30
(b) before the end of the period that would otherwise apply;
31
Licensing of persons who engage in credit activities Chapter 2
Financial records, trust accounts and audit reports Part 2-5
Trust accounts of credit service licensees Division 3
Section 101
National Consumer Credit Protection Bill 2009 No. , 2009 101
approve an extension of the period for lodging the trust account
1
statement and trust account audit report. The extension may be of
2
the period originally applicable or the period applicable under a
3
previous extension.
4
(4) An approval may be given subject to any conditions imposed by
5
ASIC.
6
(5) If an approval is given subject to conditions, the licensee must
7
comply with those conditions.
8
9
Chapter 2 Licensing of persons who engage in credit activities
Part 2-5 Financial records, trust accounts and audit reports
Division 4 Matters relating to audit reports
Section 102
102 National Consumer Credit Protection Bill 2009 No. , 2009
Division 4--Matters relating to audit reports
1
102 Auditor's right of access to records, information etc.
2
Auditor is entitled to access and assistance etc. from licensee
3
(1) An auditor (the auditor) who prepares one of the following audit
4
reports (the audit report):
5
(a) an audit report required under subsection 49(3) in relation to
6
a licensee;
7
(b) a trust account audit report required under subsection 100(2)
8
in relation to a licensee;
9
has a right of access at all reasonable times to the financial records
10
or other credit books of the licensee for purposes relating to the
11
audit report.
12
(2) The auditor is entitled to require:
13
(a) from the licensee; or
14
(b) if the licensee is a body corporate--from any director,
15
secretary or senior manager of the licensee;
16
any assistance and explanations that the auditor desires for
17
purposes relating to the audit report.
18
Requirement to give auditor access and assistance etc.
19
(3) The licensee, or a director, secretary or senior manager of the
20
licensee if it is a body corporate, must not:
21
(a) refuse or fail to allow the auditor access, in accordance with
22
subsection (1), to financial records or other credit books of
23
the licensee; or
24
(b) refuse or fail to give assistance, or an explanation, to the
25
auditor as and when required under subsection (2); or
26
(c) otherwise hinder, obstruct or delay the auditor in the
27
performance or exercise of the auditor's duties or powers.
28
Civil penalty:
2,000 penalty units.
29
Offence
30
(4) A person commits an offence if:
31
Licensing of persons who engage in credit activities Chapter 2
Financial records, trust accounts and audit reports Part 2-5
Matters relating to audit reports Division 4
Section 103
National Consumer Credit Protection Bill 2009 No. , 2009 103
(a) the person is subject to a requirement under subsection (3);
1
and
2
(b) the person engages in conduct; and
3
(c) the person's conduct contravenes the requirement.
4
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
5
both.
6
103 Auditor's fees and expenses
7
(1) The reasonable fees and expenses of the auditor for preparing the
8
audit report are payable by the licensee.
9
(2) The auditor may recover those fees by action against the licensee.
10
104 Auditor to report on certain matters
11
Requirement for auditor to disclose maters
12
(1) If the auditor, in the performance of duties relating to the audit
13
report, becomes aware of a matter referred to in subsection (2), the
14
auditor must, within 7 days after becoming aware of the matter:
15
(a) lodge a written report on the matter with ASIC; and
16
(b) give a copy of the report to the licensee.
17
Civil penalty:
2,000 penalty units.
18
Matters that must be disclosed
19
(2) A report must be given in relation to any matter that, in the opinion
20
of the auditor:
21
(a) has adversely affected, is adversely affecting or may
22
adversely affect the ability of the licensee to meet the
23
licensee's obligations as a licensee; or
24
(b) constitutes or may constitute a contravention of:
25
(i) Division 2 or 3 (or regulations made under those
26
Divisions); or
27
(ii) a condition of the licensee's licence; or
28
Chapter 2 Licensing of persons who engage in credit activities
Part 2-5 Financial records, trust accounts and audit reports
Division 4 Matters relating to audit reports
Section 105
104 National Consumer Credit Protection Bill 2009 No. , 2009
(c) constitutes an attempt to unduly influence, coerce,
1
manipulate or mislead the auditor in the preparation of the
2
audit report.
3
Offence
4
(3) The auditor commits an offence if:
5
(a) the auditor is subject to a requirement under subsection (1);
6
and
7
(b) the auditor engages in conduct; and
8
(c) the auditor's conduct contravenes the requirement.
9
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
10
both.
11
105 Qualified privilege for auditor etc.
12
Qualified privilege for auditor
13
(1) The auditor has qualified privilege in relation to:
14
(a) a statement that the auditor makes, orally or in writing, in the
15
course of its duties relating to the audit report; or
16
(b) the lodging of a report with ASIC under subsection 104(1);
17
or
18
(c) the giving of a report to the licensee under subsection 104(1).
19
Note:
If the auditor is a company, the company has qualified privilege under
20
this subsection in relation to statements made, and reports lodged or
21
sent, by natural persons on behalf of the company if those statements
22
and notices can be properly attributed to the company.
23
Qualified privilege for registered company auditor acting on
24
behalf of company
25
(2) If the auditor is a company registered under the Corporations Act
26
2001, a registered company auditor acting on behalf of the
27
company has qualified privilege in relation to:
28
(a) a statement that the registered company auditor makes (orally
29
or in writing) in the course of the performance, on behalf of
30
the company, of the company's duties relating to the audit
31
report; or
32
Licensing of persons who engage in credit activities Chapter 2
Financial records, trust accounts and audit reports Part 2-5
Matters relating to audit reports Division 4
Section 106
National Consumer Credit Protection Bill 2009 No. , 2009 105
(b) the lodging by the registered company auditor, on behalf of
1
the company, of a report with ASIC under subsection 104(1);
2
or
3
(c) the giving by the registered company auditor, on behalf of the
4
company, of a report to the licensee under subsection 104(1).
5
Qualified privilege for subsequent publication
6
(3) A person has qualified privilege in relation to the publishing of a
7
document prepared by the auditor in the course of the auditor's
8
duties relating to the audit report.
9
(4) A person has qualified privilege in relation to the publishing of a
10
statement:
11
(a) made by the auditor as referred to in subsection (1); or
12
(b) made by a registered company auditor as referred to in
13
subsection (2).
14
106 Regulations in relation to audit reports etc.
15
The regulations may make provision in relation to:
16
(a) the audit reports referred to in subsection 102(1); and
17
(b) audit reports that persons who have applied for a licence may
18
be requested to lodge under subsection 37(4); and
19
(c) the auditors that prepare those reports; and
20
(d) auditing standards that must be complied with in relation to
21
those reports.
22
23
Chapter 2 Licensing of persons who engage in credit activities
Part 2-6 Exemptions and modifications relating to this Chapter
Division 1 Introduction
Section 107
106 National Consumer Credit Protection Bill 2009 No. , 2009
Part 2-6--Exemptions and modifications relating to
1
this Chapter
2
Division 1--Introduction
3
107 Guide to this Part
4
This Part is about exemptions from, and modifications of, the
5
provisions of this Chapter.
6
Division 2 deals with how exemptions and modifications may be
7
made by ASIC or by the regulations.
8
9
Licensing of persons who engage in credit activities Chapter 2
Exemptions and modifications relating to this Chapter Part 2-6
Exemptions and modifications relating to this Chapter Division 2
Section 108
National Consumer Credit Protection Bill 2009 No. , 2009 107
Division 2--Exemptions and modifications relating to this
1
Chapter
2
108 Provisions to which this Part applies
3
The provisions to which this Part applies are:
4
(a) this Chapter; and
5
(b) definitions in this Act, as they apply to references in this
6
Chapter; and
7
(c) instruments made for the purposes of this Chapter.
8
109 Exemptions and modifications by ASIC
9
Exemptions and modifications
10
(1) ASIC may:
11
(a) exempt a person from all or specified provisions to which
12
this Part applies; or
13
(b) exempt a credit activity that is engaged in in relation to a
14
specified credit contract, mortgage, guarantee or consumer
15
lease from all or specified provisions to which this Part
16
applies; or
17
(c) declare that provisions to which this Part applies apply in
18
relation to a person, or a credit activity referred to in
19
paragraph (1)(b), as if specified provisions were omitted,
20
modified or varied as specified in the declaration.
21
(2) An exemption or declaration under subsection (1) is not a
22
legislative instrument.
23
(3) ASIC may, by legislative instrument:
24
(a) exempt a class of persons from all or specified provisions to
25
which this Part applies; or
26
(b) exempt a credit activity (other than a credit activity referred
27
to in paragraph (1)(b)) from all or specified provisions to
28
which this Part applies; or
29
(c) exempt a class of credit activities from all or specified
30
provisions to which this Part applies; or
31
Chapter 2 Licensing of persons who engage in credit activities
Part 2-6 Exemptions and modifications relating to this Chapter
Division 2 Exemptions and modifications relating to this Chapter
Section 110
108 National Consumer Credit Protection Bill 2009 No. , 2009
(d) declare that provisions to which this Part applies apply in
1
relation to a credit activity (other than a credit activity
2
referred to in paragraph (1)(b)), or a class of persons or credit
3
activities, as if specified provisions were omitted, modified
4
or varied as specified in the declaration.
5
Conditions on exemptions
6
(4) An exemption may apply unconditionally or subject to specified
7
conditions. A person to whom a condition specified in an
8
exemption applies must comply with the condition. The court may
9
order the person to comply with the condition in a specified way.
10
Only ASIC may apply to the court for the order.
11
Publication of exemptions and declarations
12
(5) An exemption or declaration under subsection (1) must be in
13
writing and ASIC must publish notice of it on its website.
14
Special rules in relation to offences
15
(6) If conduct (including an omission) of a person would not have
16
constituted an offence if a particular declaration under
17
paragraph (1)(c) or (3)(d) had not been made, that conduct does not
18
constitute an offence unless, before the conduct occurred:
19
(a) the text of the declaration was published by ASIC on its
20
website; or
21
(b) ASIC gave written notice setting out the text of the
22
declaration to the person;
23
(in addition to complying with the requirements of the Legislative
24
Instruments Act 2003 if the declaration is made under
25
subsection (3)).
26
(7) In a prosecution for an offence to which subsection (6) applies, the
27
prosecution must prove that paragraph (6)(a) or (b) was complied
28
with before the conduct occurred.
29
110 Exemptions and modifications by the regulations
30
The regulations may:
31
Licensing of persons who engage in credit activities Chapter 2
Exemptions and modifications relating to this Chapter Part 2-6
Exemptions and modifications relating to this Chapter Division 2
Section 110
National Consumer Credit Protection Bill 2009 No. , 2009 109
(a) exempt a person or class of persons from all or specified
1
provisions to which this Part applies; or
2
(b) exempt a credit activity or a class of credit activities from all
3
or specified provisions to which this Part applies; or
4
(c) provide that the provisions to which this Part applies apply as
5
if specified provisions were omitted, modified or varied as
6
specified in the regulations.
7
8
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 1 Introduction
Section 111
110 National Consumer Credit Protection Bill 2009 No. , 2009
Chapter 3--Responsible lending conduct
1
Part 3-1--Licensees that provide credit assistance
2
in relation to credit contracts
3
Division 1--Introduction
4
111 Guide to this Part
5
This Part has rules that apply to licensees that provide credit
6
assistance in relation to credit contracts. These rules are aimed at
7
better informing consumers and preventing them from being in
8
unsuitable credit contracts. However, these rules do not apply to a
9
licensee that will be the credit provider under the credit contract.
10
Division 2 requires a licensee to give its credit guide to a
11
consumer. The credit guide has information about the licensee and
12
some of the licensee's obligations under this Act.
13
Division 3 requires a licensee to give a quote before providing
14
credit assistance to a consumer. The quote must set out the
15
maximum amount the consumer will be required to pay to the
16
licensee. The licensee must not charge more than that amount.
17
Division 4 requires a licensee, before providing credit assistance to
18
a consumer in relation to a credit contract, to make a preliminary
19
assessment as to whether the contract will be unsuitable for the
20
consumer. To do this, the licensee must make inquiries and
21
verifications about the consumer's requirements, objectives and
22
financial situation. The licensee must give the consumer a copy of
23
the assessment if requested.
24
Division 5 requires a licensee, when providing credit assistance to
25
a consumer in relation to a credit contract, to give the consumer a
26
document that discloses certain information (for example, the
27
commission the licensee is likely to receive).
28
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Introduction Division 1
Section 112
National Consumer Credit Protection Bill 2009 No. , 2009 111
Division 6 prohibits a licensee from providing credit assistance to a
1
consumer in relation to a credit contract if the contract will be
2
unsuitable for the consumer.
3
112 Application of this Part
4
This Part does not apply in relation to credit assistance provided by
5
a licensee in relation to a credit contract if the licensee is or will be
6
the credit provider under the contract.
7
8
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 2 Credit guide of credit assistance providers
Section 113
112 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Credit guide of credit assistance providers
1
113 Credit guide of credit assistance providers
2
Requirement to give credit guide
3
(1) A licensee must, as soon as practicable after it becomes apparent to
4
the licensee that it is likely to provide credit assistance to a
5
consumer in relation to a credit contract, give the consumer the
6
licensee's credit guide in accordance with subsection (2).
7
Civil penalty:
2,000 penalty units.
8
(2) The licensee's credit guide must:
9
(a) be in writing; and
10
(b) be in the form (if any) prescribed by the regulations; and
11
(c) specify the licensee's name and contact details; and
12
(d) specify the licensee's Australian credit licence number; and
13
(e) give information about:
14
(i) any fees that are payable by a consumer to the licensee
15
for the licensee's credit assistance; and
16
(ii) any charges that are payable by a consumer to the
17
licensee for matters associated with providing the credit
18
assistance; and
19
(iii) the method for working out the amount of the fees and
20
charges; and
21
(f) give information about:
22
(i) if there are 6 or fewer credit providers that the licensee
23
conducts business with when providing credit assistance
24
in relation to credit contracts--the names of those credit
25
providers; and
26
(ii) if there are more than 6 credit providers that the licensee
27
conducts business with when providing credit assistance
28
in relation to credit contracts--the names of the 6 credit
29
providers with whom the licensee reasonably believes it
30
conducts the most business; and
31
(g) give information about:
32
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Cred it guide of cred it assistance providers Division 2
Section 113
National Consumer Credit Protection Bill 2009 No. , 2009 113
(i) any commissions that the licensee, or an employee,
1
director or credit representative of the licensee, is likely
2
to receive, directly or indirectly, from credit providers in
3
relation to credit contracts for which the licensee has
4
provided credit assistance; and
5
(ii) a reasonable estimate of the amounts of those
6
commissions or the range of those amounts; and
7
(iii) the method for working out those amounts; and
8
(h) give information about the licensee's procedure for resolving
9
disputes with a consumer, including contact details for a
10
consumer to access:
11
(i) the licensee's internal dispute resolution procedure; and
12
(ii) the approved external dispute resolution scheme of
13
which the licensee is a member; and
14
(i) give information about the licensee's obligations under
15
sections 120 and 123; and
16
(j) comply with any other requirements prescribed by the
17
regulations.
18
(3) The regulations may prescribe:
19
(a) information that need not be included in the credit guide,
20
despite subsection (2); and
21
(b) for the purposes of paragraph (2)(g):
22
(i) the method for working out amounts of commissions;
23
and
24
(ii) how commissions or amounts of commissions must be
25
described.
26
Manner of giving credit guide
27
(4) The licensee must give the consumer the licensee's credit guide in
28
the manner (if any) prescribed by the regulations.
29
Strict liability offence
30
(5) A person commits an offence if:
31
(a) the person is subject to a requirement under subsection (1);
32
and
33
(b) the person engages in conduct; and
34
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 2 Credit guide of credit assistance providers
Section 113
114 National Consumer Credit Protection Bill 2009 No. , 2009
(c) the conduct contravenes the requirement.
1
Criminal penalty: 50 penalty units.
2
(6) Subsection (5) is an offence of strict liability.
3
Note:
For strict liability, see section 6.1 of the Criminal Code.
4
5
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Quote for providing cred it assistance etc. in relation to credit contracts Division 3
Section 114
National Consumer Credit Protection Bill 2009 No. , 2009 115
Division 3--Quote for providing credit assistance etc. in
1
relation to credit contracts
2
114 Quote for providing credit assistance etc.
3
Requirement to give quote
4
(1) A licensee must not provide credit assistance to a consumer by:
5
(a) suggesting that the consumer apply, or assisting the consumer
6
to apply, for a particular credit contract with a particular
7
credit provider; or
8
(b) suggesting that the consumer apply, or assisting the consumer
9
to apply, for an increase to the credit limit of a particular
10
credit contract with a particular credit provider; or
11
(c) suggesting that the consumer remain in a particular credit
12
contract with a particular credit provider;
13
unless:
14
(d) the licensee has given the consumer a quote in accordance
15
with subsection (2); and
16
(e) the consumer has signed and dated that quote or otherwise
17
indicated the consumer's acceptance of it (and the day that
18
happens) in the manner (if any) prescribed by the regulations;
19
and
20
(f) the licensee has given the consumer a copy of the accepted
21
quote.
22
Civil penalty:
2,000 penalty units.
23
(2) The quote must:
24
(a) be in writing; and
25
(b) give information about the credit assistance and other
26
services that the quote covers; and
27
(c) specify the maximum amount that will be payable by the
28
consumer to the licensee in relation to the licensee's credit
29
assistance and other services; and
30
(d) give information about what that amount relates to,
31
including:
32
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 3 Quote for provid ing credit assistance etc. in relation to credit contracts
Section 114
116 National Consumer Credit Protection Bill 2009 No. , 2009
(i) the maximum amount of the licensee's fee for providing
1
the credit assistance and other services; and
2
(ii) the maximum amount of charges that will be incurred
3
by the licensee for matters associated with providing the
4
credit assistance and other services; and
5
(iii) the maximum amount of fees or charges that will be
6
payable by the licensee to another person on the
7
consumer's behalf; and
8
(e) state whether the maximum amount or any other amount will
9
be payable by the consumer to the licensee if a credit contract
10
is not entered or a credit limit is not increased; and
11
(f) comply with any other requirements prescribed by the
12
regulations.
13
Manner of giving quote
14
(3) The licensee must give the quote to the consumer in the manner (if
15
any) prescribed by the regulations.
16
No demanding payment of amount exceeding quoted amount
17
(4) The licensee must not request or demand payment of an amount
18
that exceeds the maximum amount set out in the quote.
19
Civil penalty:
2,000 penalty units.
20
No demanding payment before credit assistance provided
21
(5) The licensee must not request or demand payment of an amount for
22
the licensee's credit assistance before the licensee provides the
23
assistance.
24
Civil penalty:
2,000 penalty units.
25
Caveats
26
(6) The licensee must not lodge, or threaten to lodge, a caveat in
27
relation to land to induce the consumer to pay an amount to the
28
licensee for the licensee's credit assistance or other services.
29
Civil penalty:
2,000 penalty units.
30
31
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Obligations of credit assistance providers before providing credit assistance for credit
contracts Division 4
Section 115
National Consumer Credit Protection Bill 2009 No. , 2009 117
Division 4--Obligations of credit assistance providers
1
before providing credit assistance for credit
2
contracts
3
115 Obligations of credit assistance provide rs before providing
4
credit assistance for credit contracts
5
(1) A licensee must not provide credit assistance to a consumer on a
6
day (the assistance day) by:
7
(a) suggesting that the consumer apply, or assisting the consumer
8
to apply, for a particular credit contract with a particular
9
credit provider; or
10
(b) suggesting that the consumer apply, or assisting the consumer
11
to apply, for an increase to the credit limit of a particular
12
credit contract with a particular credit provider;
13
unless the licensee has, within 90 days (or other period prescribed
14
by the regulations) before the assistance day:
15
(c) made a preliminary assessment that:
16
(i) is in accordance with subsection 116(1); and
17
(ii) covers the period proposed for the entering of the
18
contract or the increase of the credit limit; and
19
(d) made the inquiries and verification in accordance with
20
section 117.
21
Civil penalty:
2,000 penalty units.
22
(2) A licensee must not provide credit assistance to a consumer on a
23
day (the assistance day) by suggesting that the consumer remain in
24
a particular credit contract with a particular credit provider unless
25
the licensee has, within 90 days (or other period prescribed by the
26
regulations) before the assistance day:
27
(a) made a preliminary assessment that:
28
(i) is in accordance with subsection 116(2); and
29
(ii) covers a period in which the assistance day occurs; and
30
(b) made the inquiries and verification in accordance with
31
section 117.
32
Civil penalty:
2,000 penalty units.
33
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 4 Obligations of credit assistance providers before providing credit assistance
for cred it contracts
Section 116
118 National Consumer Credit Protection Bill 2009 No. , 2009
116 Preliminary assessment of unsuitability of the credit contract
1
(1) For the purposes of paragraph 115(1)(c), the licensee must make a
2
preliminary assessment that:
3
(a) specifies the period the assessment covers; and
4
(b) assesses whether the credit contract will be unsuitable for the
5
consumer if the contract is entered or the credit limit is
6
increased in that period.
7
(2) For the purposes of paragraph 115(2)(a), the licensee must make a
8
preliminary assessment that:
9
(a) specifies the period the assessment covers; and
10
(b) assesses whether the credit contract will be unsuitable for the
11
consumer if the consumer remains in the contract in that
12
period.
13
Note:
The licensee is not required to make a preliminary assessment under
14
this section if the credit assistance is not provided.
15
117 Reasonable inquiries etc. about the consumer
16
(1) For the purposes of paragraph 115(1)(d) or 115(2)(b), the licensee
17
must, before making the preliminary assessment:
18
(a) make reasonable inquiries about the consumer's requirements
19
and objectives in relation to the credit contract; and
20
(b) make reasonable inquiries about the consumer's financial
21
situation; and
22
(c) take reasonable steps to verify the consumer's financial
23
situation; and
24
(d) make any inquiries prescribed by the regulations about any
25
matter prescribed by the regulations; and
26
(e) take any steps prescribed by the regulations to verify any
27
matter prescribed by the regulations.
28
Civil penalty:
2,000 penalty units.
29
(2) The regulations may prescribe particular inquiries or steps that
30
must be made or taken, or do not need to be made or taken, for the
31
purposes of paragraph (1)(a), (b) or (c).
32
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Obligations of credit assistance providers before providing credit assistance for credit
contracts Division 4
Section 118
National Consumer Credit Protection Bill 2009 No. , 2009 119
118 When the credit contract must be assessed as unsuitable--
1
entering contract or increasing the credit limit
2
Requirement to assess the contract as unsuitable
3
(1) For a preliminary assessment under subsection 116(1) about
4
entering a credit contract or increasing a credit limit of a credit
5
contract, the licensee must assess that the contract will be
6
unsuitable for the consumer if the contract will be unsuitable for
7
the consumer under subsection (2).
8
Civil penalty:
2,000 penalty units.
9
Note:
Even if the contract will not be unsuitable for the consumer under
10
subsection (2), the licensee may still assess that the contract will be
11
unsuitable for other reasons.
12
Particular circumstances when the contract will be unsuitable
13
(2) The contract will be unsuitable for the consumer if, at the time of
14
the preliminary assessment, it is likely that:
15
(a) the consumer will be unable to comply with the consumer's
16
financial obligations under the contract, or could only comply
17
with substantial hardship, or
18
(b) the contract will not meet the consumer's requirements or
19
objectives; or
20
(c) if the regulations prescribe circumstances in which a credit
21
contract is unsuitable--those circumstances will apply to the
22
contract;
23
if the contract is entered in the period proposed for it to be entered
24
or the credit limit is increased in the period proposed for it to be
25
increased.
26
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
27
consumer could only comply with the consumer's financial
28
obligations under the contract by selling the consumer's principal
29
place of residence, the consumer could only comply with those
30
obligations with substantial hardship, unless the contrary is proved.
31
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 4 Obligations of credit assistance providers before providing credit assistance
for cred it contracts
Section 119
120 National Consumer Credit Protection Bill 2009 No. , 2009
Information to be used to determine if contract will be unsuitable
1
(4) For the purposes of determining under subsection (2) whether the
2
contract will be unsuitable, only information that satisfies both of
3
the following paragraphs is to be taken into account:
4
(a) the information is about the consumer's financial situation,
5
requirements or objectives, or any other matter prescribed by
6
the regulations under paragraph 117(1)(d) or (e);
7
(b) at the time of the preliminary assessment:
8
(i) the licensee had reason to believe that the information
9
was true; or
10
(ii) the licensee would have had reason to believe that the
11
information was true if the licensee had made the
12
inquiries or verification under section 117.
13
119 When the credit contract must be assessed as unsuitable--
14
re maining in credit contract
15
Requirement to assess the contract as unsuitable
16
(1) For a preliminary assessment under subsection 116(2) about
17
remaining in a credit contract, the licensee must assess that the
18
contract will be unsuitable for the consumer if the contract will be
19
unsuitable for the consumer under subsection (2).
20
Civil penalty:
2,000 penalty units.
21
Note:
Even if the contract will not be unsuitable for the consumer under
22
subsection (2), the licensee may still assess that the contract will be
23
unsuitable for other reasons.
24
Particular circumstances when the contract will be unsuitable
25
(2) The contract will be unsuitable for the consumer if, at the time of
26
the preliminary assessment, it is likely that:
27
(a) the consumer will be unable to comply with the consumer's
28
financial obligations under the contract, or could only comply
29
with substantial hardship, if the consumer remains in the
30
contract in the period covered by the preliminary assessment;
31
or
32
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Obligations of credit assistance providers before providing credit assistance for credit
contracts Division 4
Section 120
National Consumer Credit Protection Bill 2009 No. , 2009 121
(b) the contract will not meet the consumer's requirements or
1
objectives if the consumer remains in the contract in the
2
period covered by the preliminary assessment; or
3
(c) if the regulations prescribe circumstances in which a credit
4
contract is unsuitable--those circumstances will apply to the
5
contract if the consumer remains in the contract in the period
6
covered by the preliminary assessment.
7
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
8
consumer could only comply with the consumer's financial
9
obligations under the contract by selling the consumer's principal
10
place of residence, the consumer could only comply with those
11
obligations with substantial hardship, unless the contrary is proved.
12
Information to be used to determine if contract will be unsuitable
13
(4) For the purposes of determining under subsection (2) whether the
14
contract will be unsuitable, only information that satisfies both of
15
the following paragraphs is to be taken into account:
16
(a) the information is about the consumer's financial situation,
17
requirements or objectives, or any other matter prescribed by
18
the regulations under paragraph 117(1)(d) or (e);
19
(b) at the time of the preliminary assessment:
20
(i) the licensee had reason to believe that the information
21
was true; or
22
(ii) the licensee would have had reason to believe that the
23
information was true if the licensee had made the
24
inquiries or verification under section 117.
25
120 Providing the consume r with the preliminary assessment
26
Requirement to give assessment if requested
27
(1) If the consumer requests the licensee for a copy of the preliminary
28
assessment within 7 years of the date of the credit assistance quote
29
under section 114, the licensee must give the consumer a written
30
copy of the assessment:
31
(a) if the request is made within 2 years of the quote--before the
32
end of 7 business days after the day the licensee receives the
33
request; and
34
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 4 Obligations of credit assistance providers before providing credit assistance
for cred it contracts
Section 120
122 National Consumer Credit Protection Bill 2009 No. , 2009
(b) otherwise--before the end of 21 business days after the day
1
the licensee receives the request.
2
Note:
The licensee is not required to give the consumer a copy of the
3
preliminary assessment if the licensee does not provide credit
4
assistance to the consumer.
5
Civil penalty:
2,000 penalty units.
6
Manner of giving assessment
7
(2) The licensee must give the consumer the copy of the assessment in
8
the manner (if any) prescribed by the regulations.
9
No payment for assessment
10
(3) The licensee must not request or demand payment of an amount for
11
giving the consumer a copy of the preliminary assessment.
12
Civil penalty:
2,000 penalty units.
13
Strict liability offence
14
(4) A person commits an offence if:
15
(a) the person is subject to a requirement under subsection (1) or
16
(3); and
17
(b) the person engages in conduct; and
18
(c) the conduct contravenes the requirement.
19
Criminal penalty: 50 penalty units.
20
(5) Subsection (4) is an offence of strict liability.
21
Note:
For strict liability, see section 6.1 of the Criminal Code.
22
23
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Fees, commissions etc. relating to credit contracts Division 5
Section 121
National Consumer Credit Protection Bill 2009 No. , 2009 123
Division 5--Fees, commissions etc. relating to credit
1
contracts
2
121 Fees, commissions etc. relating to credit contracts
3
Requirement for disclosure
4
(1) A licensee must, at the same time as providing credit assistance to
5
a consumer by:
6
(a) suggesting that the consumer apply, or assisting the consumer
7
to apply, for a particular credit contract with a particular
8
credit provider; or
9
(b) suggesting that the consumer apply, or assisting the consumer
10
to apply, for an increase to the credit limit of a particular
11
credit contract with a particular credit provider; or
12
(c) suggesting that the consumer remain in a particular credit
13
contract with a particular credit provider;
14
give the consumer a credit proposal disclosure document in
15
accordance with subsection (2).
16
Civil penalty:
2,000 penalty units.
17
(2) The credit proposal disclosure document must contain the
18
following:
19
(a) the total amount of any fees or charges that the consumer is
20
liable to pay to the licensee in relation to the credit contract
21
and the method used for working out that amount;
22
(b) a reasonable estimate of the total amount of any commissions
23
that the licensee, or an employee, director or credit
24
representative of the licensee, is likely to receive in relation
25
to the credit contract and the method used for working out
26
that amount;
27
(c) a reasonable estimate of the total amount of any fees or
28
charges that the consumer is likely to be liable to pay to the
29
credit provider in relation to applying for the credit contract;
30
(d) a reasonable estimate of the total amount of any fees or
31
charges that the consumer is likely to be liable to pay to any
32
other person in relation to applying for the credit contract;
33
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 5 Fees, commissions etc. relating to credit contracts
Section 122
124 National Consumer Credit Protection Bill 2009 No. , 2009
(e) if the credit is to be applied to pay any of the amounts in the
1
above paragraphs--a reasonable estimate of the likely
2
amount of credit that will be available to the consumer after
3
payments under paragraphs (a), (c) and (d) are made.
4
(3) For the purposes of paragraph (2)(b), the regulations may
5
prescribe:
6
(a) the method for working out amounts of commissions; and
7
(b) how amounts of commissions must be described.
8
Manner of giving credit proposal disclosure document
9
(4) The licensee must give the credit proposal disclosure document to
10
the consumer in the manner (if any) prescribed by the regulations.
11
122 No profiting from fees etc. paid to third parties
12
Requirement not to profit
13
(1) If, in the course of providing credit assistance to a consumer in
14
relation to a credit contract, a licensee pays an amount (the third
15
party amount) to another person on behalf of the consumer, the
16
licensee must not request or demand payment of an amount, as
17
reimbursement for the third party amount, that exceeds the third
18
party amount.
19
Civil penalty:
2,000 penalty units.
20
Offence
21
(2) A person commits an offence if:
22
(a) the person is subject to a requirement under subsection (1);
23
and
24
(b) the person engages in conduct; and
25
(c) the conduct contravenes the requirement.
26
Criminal penalty: 25 penalty units, or 6 months imprisonment,
27
or both.
28
29
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Prohibition on suggesting, or assisting with, unsuitable credit contracts Division 6
Section 123
National Consumer Credit Protection Bill 2009 No. , 2009 125
Division 6--Prohibition on suggesting, or assisting with,
1
unsuitable credit contracts
2
123 Prohibition on suggesting or assisting consume rs to enter, or
3
increase the credit limit under, unsuitable credit contracts
4
Prohibition on suggesting, or assisting with, unsuitable contracts
5
(1) A licensee must not provide credit assistance to a consumer by:
6
(a) suggesting that the consumer apply, or assisting the consumer
7
to apply, for a particular credit contract with a particular
8
credit provider; or
9
(b) suggesting that the consumer apply, or assisting the consumer
10
to apply, for an increase to the credit limit of a particular
11
credit contract with a particular credit provider;
12
if the contract will be unsuitable for the consumer under
13
subsection (2).
14
Civil penalty:
2,000 penalty units.
15
When the contract will be unsuitable
16
(2) The contract will be unsuitable for the consumer if, at the time the
17
licensee provides the credit assistance, it is likely that:
18
(a) the consumer will be unable to comply with the consumer's
19
financial obligations under the contract, or could only comply
20
with substantial hardship; or
21
(b) the contract will not meet the consumer's requirements or
22
objectives; or
23
(c) if the regulations prescribe circumstances in which a credit
24
contract is unsuitable--those circumstances will apply to the
25
contract;
26
if the contract is entered in the period proposed for it to be entered
27
or the credit limit is increased in the period proposed for it to be
28
increased.
29
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
30
consumer could only comply with the consumer's financial
31
obligations under the contract by selling the consumer's principal
32
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 6 Prohib ition on suggesting, or assisting with, unsuitable credit contracts
Section 123
126 National Consumer Credit Protection Bill 2009 No. , 2009
place of residence, the consumer could only comply with those
1
obligations with substantial hardship, unless the contrary is proved.
2
Information to be used to determine if contract will be unsuitable
3
(4) For the purposes of determining under subsection (2) whether the
4
contract will be unsuitable, only information that satisfies both of
5
the following paragraphs is to be taken into account:
6
(a) the information is about the consumer's financial situation,
7
requirements or objectives, or any other matter prescribed by
8
the regulations under paragraph 117(1)(d) or (e);
9
(b) at the time the licensee provides the credit assistance:
10
(i) the licensee had reason to believe that the information
11
was true; or
12
(ii) the licensee would have had reason to believe that the
13
information was true if the licensee had made the
14
inquiries or verification under section 117.
15
Credit contract not unsuitable under regulations
16
(5) The regulations may prescribe particular situations in which a
17
credit contract is taken not to be unsuitable for a consumer, despite
18
subsection (2).
19
Offence
20
(6) A person commits an offence if:
21
(a) the person is subject to a requirement under subsection (1);
22
and
23
(b) the person engages in conduct; and
24
(c) the conduct contravenes the requirement.
25
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
26
both.
27
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to credit contracts Part 3-1
Prohibition on suggesting, or assisting with, unsuitable credit contracts Division 6
Section 124
National Consumer Credit Protection Bill 2009 No. , 2009 127
124 Prohibition on suggesting to consumers to remain in unsuitable
1
credit contracts
2
Prohibition on suggesting to remain in unsuitable contracts
3
(1) A licensee must not provide credit assistance to a consumer by
4
suggesting that the consumer remain in a particular credit contract
5
with a particular credit provider if the contract is unsuitable for the
6
consumer under subsection (2).
7
Civil penalty:
2,000 penalty units.
8
When the contract is unsuitable
9
(2) The credit contract is unsuitable for the consumer if, at that time
10
the licensee provides the credit assistance:
11
(a) the consumer is, or is likely to be, unable to comply with the
12
consumer's financial obligations under the contract, or only
13
able to comply with substantial hardship; or
14
(b) the contract does not meet the consumer's requirements or
15
objectives; or
16
(c) if the regulations prescribe circumstances in which a credit
17
contract is unsuitable--those circumstances apply to the
18
contract.
19
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
20
consumer could only comply with the consumer's financial
21
obligations under the contract by selling the consumer's principal
22
place of residence, the consumer could only comply with those
23
obligations with substantial hardship, unless the contrary is proved.
24
Information to be used to determine if contract is unsuitable
25
(4) For the purposes of determining under subsection (2) whether the
26
contract is unsuitable, only information that satisfies both of the
27
following paragraphs is to be taken into account:
28
(a) the information is about the consumer's financial situation,
29
requirements or objectives, or any other matter prescribed by
30
the regulations under paragraph 117(1)(d) or (e);
31
(b) at the time the licensee provides the credit assistance:
32
Chapter 3 Responsible lending conduct
Part 3-1 Licensees that provide credit assistance in relation to credit contracts
Division 6 Prohib ition on suggesting, or assisting with, unsuitable credit contracts
Section 124
128 National Consumer Credit Protection Bill 2009 No. , 2009
(i) the licensee had reason to believe that the information
1
was true; or
2
(ii) the licensee would have had reason to believe that the
3
information was true if the licensee had made the
4
inquiries or verification under section 117.
5
Credit contract not unsuitable under regulations
6
(5) The regulations may prescribe particular situations in which a
7
credit contract is taken not to be unsuitable for a consumer, despite
8
subsection (2).
9
Offence
10
(6) A person commits an offence if:
11
(a) the person is subject to a requirement under subsection (1);
12
and
13
(b) the person engages in conduct; and
14
(c) the conduct contravenes the requirement.
15
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
16
both.
17
Defence
18
(7) For the purposes of subsections (1) and (6), it is a defence if:
19
(a) the licensee suggested that the consumer remain in the credit
20
contract because, after making reasonable inquiries, the
21
licensee reasonably believed that there was no other credit
22
contract that was not unsuitable for the consumer; and
23
(b) the licensee informed the consumer that there is a procedure
24
under sections 72 and 94 of the National Credit Code for
25
consumers in hardship.
26
Note:
For the purposes of subsection (6), a defendant bears an evidential
27
burden in relation to the matter in subsection (7) (see subsection
28
13.3(3) of the Criminal Code).
29
(8) The regulations may prescribe particular inquiries that must be
30
made, or do not need to be made, for the purposes of
31
paragraph (7)(a).
32
33
Responsible lending conduct Chapter 3
Licensees that are credit providers under credit contracts Part 3-2
Introduction Division 1
Section 125
National Consumer Credit Protection Bill 2009 No. , 2009 129
Part 3-2--Licensees that are credit providers under
1
credit contracts
2
Division 1--Introduction
3
125 Guide to this Part
4
This Part has rules that apply to licensees that are credit providers.
5
These rules are aimed at better informing consumers and
6
preventing them from being in unsuitable credit contracts.
7
Division 2 requires a licensee to give its credit guide to a
8
consumer. The credit guide has information about the licensee and
9
some of the licensee's obligations under this Act.
10
Division 3 requires a licensee, before entering or increasing the
11
credit limit of a credit contract, to make an assessment as to
12
whether the contract will be unsuitable. To do this, the licensee
13
must make inquiries and verifications about the consumer's
14
requirements, objectives and financial situation. The licensee must
15
give the consumer a copy of the assessment if requested.
16
Division 4 prohibits a licensee from entering or increasing the
17
credit limit of a credit contract that is unsuitable for a consumer.
18
19
Chapter 3 Responsible lending conduct
Part 3-2 Licensees that are credit providers under credit contracts
Division 2 Credit guide of credit providers
Section 126
130 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Credit guide of credit providers
1
126 Credit guide of credit providers
2
Requirement to give credit guide
3
(1) A licensee must, as soon as practicable after it becomes apparent to
4
the licensee that it is likely to enter a credit contract with a
5
consumer who will be the debtor under the contract, give the
6
consumer the licensee's credit guide in accordance with
7
subsection (2).
8
Civil penalty:
2,000 penalty units.
9
(2) The licensee's credit guide must:
10
(a) be in writing; and
11
(b) be in the form (if any) prescribed by the regulations; and
12
(c) specify the licensee's name and contact details; and
13
(d) specify the licensee's Australian credit licence number; and
14
(e) give information about the licensee's procedure for resolving
15
disputes with a consumer, including contact details for a
16
consumer to access:
17
(i) the licensee's internal dispute resolution procedure; and
18
(ii) the approved external dispute resolution scheme of
19
which the licensee is a member; and
20
(f) give information about the licensee's obligations under
21
sections 132 and 133; and
22
(g) comply with any other requirements prescribed by the
23
regulations.
24
(3) The regulations may prescribe information that need not be
25
included in the credit guide, despite subsection (2).
26
Manner of giving credit guide
27
(4) The licensee must give the consumer the licensee's credit guide in
28
the manner (if any) prescribed by the regulations.
29
Responsible lending conduct Chapter 3
Licensees that are credit providers under credit contracts Part 3-2
Cred it guide of cred it providers Division 2
Section 127
National Consumer Credit Protection Bill 2009 No. , 2009 131
Strict liability offence
1
(5) A person commits an offence if:
2
(a) the person is subject to a requirement under subsection (1);
3
and
4
(b) the person engages in conduct; and
5
(c) the conduct contravenes the requirement.
6
Criminal penalty: 50 penalty units.
7
(6) Subsection (5) is an offence of strict liability.
8
Note:
For strict liability, see section 6.1 of the Criminal Code.
9
127 Credit guide of credit providers who are assignees
10
Requirement to give credit guide
11
(1) A licensee must, as soon as practicable after it has been assigned
12
any rights or obligations of a credit provider under a credit
13
contract, give the debtor under the contract the licensee's credit
14
guide in accordance with subsection (2).
15
Civil penalty:
2,000 penalty units.
16
(2) The licensee's credit guide must:
17
(a) be in writing; and
18
(b) be in the form (if any) prescribed by the regulations; and
19
(c) specify the licensee's name and contact details; and
20
(d) specify the licensee's Australian credit licence number; and
21
(e) give information about the licensee's procedure for resolving
22
disputes with a consumer, including contact details for a
23
consumer to access:
24
(i) the licensee's internal dispute resolution procedure; and
25
(ii) the approved external dispute resolution scheme of
26
which the licensee is a member; and
27
(f) comply with any other requirements prescribed by the
28
regulations.
29
(3) The regulations may prescribe information that need not be
30
included in the credit guide, despite subsection (2).
31
Chapter 3 Responsible lending conduct
Part 3-2 Licensees that are credit providers under credit contracts
Division 2 Credit guide of credit providers
Section 127
132 National Consumer Credit Protection Bill 2009 No. , 2009
Manner of giving credit guide
1
(4) The licensee must give the consumer the licensee's credit guide in
2
the manner (if any) prescribed by the regulations.
3
Strict liability offence
4
(5) A person commits an offence if:
5
(a) the person is subject to a requirement under subsection (1);
6
and
7
(b) the person engages in conduct; and
8
(c) the conduct contravenes the requirement.
9
Criminal penalty: 50 penalty units.
10
(6) Subsection (5) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
13
Responsible lending conduct Chapter 3
Licensees that are credit providers under credit contracts Part 3-2
Obligations of credit providers before entering cred it contracts or increasing credit
limits Division 3
Section 128
National Consumer Credit Protection Bill 2009 No. , 2009 133
Division 3--Obligations of credit providers before entering
1
credit contracts or increasing credit limits
2
128 Obligations of credit providers before entering credit contracts
3
or increasing credit limits
4
A licensee must not:
5
(a) enter a credit contract with a consumer who will be the
6
debtor under the contract; or
7
(b) increase the credit limit of a credit contract with a consumer
8
who is the debtor under the contract;
9
on a day (the credit day) unless the licensee has, within 90 days (or
10
other period prescribed by the regulations) before the credit day:
11
(c) made an assessment that:
12
(i) is in accordance with section 129; and
13
(ii) covers the period in which the credit day occurs; and
14
(d) made the inquiries and verification in accordance with
15
section 130.
16
Civil penalty:
2,000 penalty units.
17
129 Assessment of unsuitability of the credit contract
18
For the purposes of paragraph 128(1)(c), the licensee must make an
19
assessment that:
20
(a) specifies the period the assessment covers; and
21
(b) assesses whether the credit contract will be unsuitable for the
22
consumer if the contract is entered or the credit limit is
23
increased in that period.
24
Note:
The licensee is not required to make the assessment under this section
25
if the contract is not entered or the credit limit is not increased.
26
130 Reasonable inquiries etc. about the consumer
27
Requirement to make inquiries and take steps to verify
28
(1) For the purposes of paragraph 128(1)(d), the licensee must, before
29
making the assessment:
30
Chapter 3 Responsible lending conduct
Part 3-2 Licensees that are credit providers under credit contracts
Division 3 Obligations of credit providers before entering credit contracts or increasing
credit limits
Section 130
134 National Consumer Credit Protection Bill 2009 No. , 2009
(a) make reasonable inquiries about the consumer's requirements
1
and objectives in relation to the credit contract; and
2
(b) make reasonable inquiries about the consumer's financial
3
situation; and
4
(c) take reasonable steps to verify the consumer's financial
5
situation; and
6
(d) make any inquiries prescribed by the regulations about any
7
matter prescribed by the regulations; and
8
(e) take any steps prescribed by the regulations to verify any
9
matter prescribed by the regulations.
10
Civil penalty:
2,000 penalty units.
11
(2) The regulations may prescribe particular inquiries or steps that
12
must be made or taken, or do not need to be made or taken, for the
13
purposes of paragraph (1)(a), (b) or (c).
14
When not required to take steps to verify
15
(3) Despite subsection (1), if:
16
(a) a preliminary assessment under subsection 116(1) about the
17
entering of the credit contract or the increase to the credit
18
limit has been made; and
19
(b) the preliminary assessment was made no more than 90 days
20
before the day of entering the contract or increasing the credit
21
limit; and
22
(c) the preliminary assessment assesses the contract as not being
23
unsuitable for the consumer; and
24
(d) the preliminary assessment contains the information that was
25
used for the purposes of making the preliminary assessment;
26
the licensee is not required, for the purposes of paragraph (1)(c) or
27
(e), to verify that information.
28
Responsible lending conduct Chapter 3
Licensees that are credit providers under credit contracts Part 3-2
Obligations of credit providers before entering cred it contracts or increasing credit
limits Division 3
Section 131
National Consumer Credit Protection Bill 2009 No. , 2009 135
131 When credit contract must be assessed as unsuitable
1
Requirement to assess the contract as unsuitable
2
(1) The licensee must assess that the credit contract will be unsuitable
3
for the consumer if the contract will be unsuitable for the consumer
4
under subsection (2).
5
Note:
Even if the contract will not be unsuitable for the consumer under
6
subsection (2), the licensee may still assess that the contract will be
7
unsuitable for other reasons.
8
Particular circumstances when the contract will be unsuitable
9
(2) The contract will be unsuitable for the consumer if, at the time of
10
the assessment, it is likely that:
11
(a) the consumer will be unable to comply with the consumer's
12
financial obligations under the contract, or could only comply
13
with substantial hardship, if the contract is entered or the
14
credit limit is increased in the period covered by the
15
assessment; or
16
(b) the contract will not meet the consumer's requirements or
17
objectives if the contract is entered or the credit limit is
18
increased in the period covered by the assessment; or
19
(c) if the regulations prescribe circumstances in which a credit
20
contract is unsuitable--those circumstances will apply to the
21
contract if the contract is entered or the credit limit is
22
increased in the period covered by the assessment.
23
Civil penalty:
2,000 penalty units.
24
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
25
consumer could only comply with the consumer's financial
26
obligations under the contract by selling the consumer's principal
27
place of residence, the consumer could only comply with those
28
obligations with substantial hardship, unless the contrary is proved.
29
Information to be used to determine if contract will be unsuitable
30
(4) For the purposes of determining under subsection (2) whether the
31
contract will be unsuitable, only information that satisfies both of
32
the following paragraphs is to be taken into account:
33
Chapter 3 Responsible lending conduct
Part 3-2 Licensees that are credit providers under credit contracts
Division 3 Obligations of credit providers before entering credit contracts or increasing
credit limits
Section 132
136 National Consumer Credit Protection Bill 2009 No. , 2009
(a) the information is about the consumer's financial situation,
1
requirements or objectives, or any other matter prescribed by
2
the regulations under paragraph 130(1)(d) or (e);
3
(b) at the time of the assessment:
4
(i) the licensee had reason to believe that the information
5
was true; or
6
(ii) the licensee would have had reason to believe that the
7
information was true if the licensee had made the
8
inquiries or verification under section 130.
9
132 Giving the consumer the assessment
10
Requirement to give assessment if requested
11
(1) If, before entering the credit contract or increasing the credit limit,
12
the consumer requests the licensee for a copy of the assessment,
13
the licensee must give the consumer a written copy of the
14
assessment before entering the contract or increasing the credit
15
limit.
16
Note:
The licensee is not required to give the consumer a copy of the
17
assessment if the contract is not entered or the credit limit is not
18
increased.
19
Civil penalty:
2,000 penalty units.
20
(2) If, during the period that:
21
(a) starts on the day (the credit day) the credit contract is entered
22
or the credit limit is increased; and
23
(b) ends 7 years after that day;
24
the consumer requests the licensee for a copy of the assessment,
25
the licensee must give the consumer a written copy of the
26
assessment:
27
(c) if the request is made within 2 years of the credit day--
28
before the end of 7 business days after the day the licensee
29
receives the request; and
30
(d) otherwise--before the end of 21 business days after the day
31
the licensee receives the request.
32
Civil penalty:
2,000 penalty units.
33
Responsible lending conduct Chapter 3
Licensees that are credit providers under credit contracts Part 3-2
Obligations of credit providers before entering cred it contracts or increasing credit
limits Division 3
Section 132
National Consumer Credit Protection Bill 2009 No. , 2009 137
Manner of giving assessment
1
(3) The licensee must give the consumer the copy of the assessment in
2
the manner (if any) prescribed by the regulations.
3
No payment for assessment
4
(4) The licensee must not request or demand payment of an amount for
5
giving the consumer a copy of the assessment.
6
Civil penalty:
2,000 penalty units.
7
Strict liability offence
8
(5) A person commits an offence if:
9
(a) the person is subject to a requirement under subsection (1),
10
(2) or (4); and
11
(b) the person engages in conduct; and
12
(c) the conduct contravenes the requirement.
13
Criminal penalty: 50 penalty units.
14
(6) Subsection (5) is an offence of strict liability.
15
Note:
For strict liability, see section 6.1 of the Criminal Code.
16
17
Chapter 3 Responsible lending conduct
Part 3-2 Licensees that are credit providers under credit contracts
Division 4 Prohib ition on entering, or increasing the credit limit of, unsuitable credit
contracts
Section 133
138 National Consumer Credit Protection Bill 2009 No. , 2009
Division 4--Prohibition on entering, or increasing the
1
credit limit of, unsuitable credit contracts
2
133 Prohibition on entering, or increasing the credit limit of,
3
unsuitable credit contracts
4
Prohibition on entering etc. unsuitable contracts
5
(1) A licensee must not:
6
(a) enter a credit contract with a consumer who will be the
7
debtor under the contract; or
8
(b) increase the credit limit of a credit contract with a consumer
9
who is the debtor under the contract;
10
if the contract is unsuitable for the consumer under subsection (2).
11
Civil penalty:
2,000 penalty units.
12
When the contract is unsuitable
13
(2) The contract is unsuitable for the consumer if, at the time it is
14
entered or the credit limit is increased:
15
(a) it is likely that the consumer will be unable to comply with
16
the consumer's financial obligations under the contract, or
17
could only comply with substantial hardship; or
18
(b) the contract does not meet the consumer's requirements or
19
objectives; or
20
(c) if the regulations prescribe circumstances in which a credit
21
contract is unsuitable--those circumstances apply to the
22
contract.
23
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
24
consumer could only comply with the consumer's financial
25
obligations under the contract by selling the consumer's principal
26
place of residence, the consumer could only comply with those
27
obligations with substantial hardship, unless the contrary is proved.
28
Responsible lending conduct Chapter 3
Licensees that are credit providers under credit contracts Part 3-2
Prohibition on entering, or increasing the credit limit of, unsuitable credit contracts
Division 4
Section 133
National Consumer Credit Protection Bill 2009 No. , 2009 139
Information to be used to determine if contract will be unsuitable
1
(4) For the purposes of determining under subsection (2) whether the
2
contract will be unsuitable, only information that satisfies both of
3
the following paragraphs is to be taken into account:
4
(a) the information is about the consumer's financial situation,
5
requirements or objectives, or any other matter prescribed by
6
the regulations under paragraph 130(1)(d) or (e);
7
(b) at the time of the contract is entered or the credit limit is
8
increased, the information:
9
(i) the licensee had reason to believe that the information
10
was true; or
11
(ii) the licensee would have had reason to believe that the
12
information was true if the licensee had made the
13
inquiries or verification under section 130.
14
Credit contract not unsuitable under regulations
15
(5) The regulations may prescribe particular situations in which a
16
credit contract is taken not to be unsuitable for a consumer, despite
17
subsection (2).
18
Offence
19
(6) A person commits an offence if:
20
(a) the person is subject to a requirement under subsection (1);
21
and
22
(b) the person engages in conduct; and
23
(c) the conduct contravenes the requirement.
24
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
25
both.
26
27
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 1 Introduction
Section 134
140 National Consumer Credit Protection Bill 2009 No. , 2009
Part 3-3--Licensees that provide credit assistance
1
in relation to consumer leases
2
Division 1--Introduction
3
134 Guide to this Part
4
This Part has rules that apply to licensees that provide credit
5
assistance in relation to consumer leases. These rules are aimed at
6
better informing consumers and preventing them from being in
7
unsuitable consumer leases. However, these rules do not apply to a
8
licensee that will be the lessor under the consumer lease.
9
Division 2 requires a licensee to give its credit guide to a
10
consumer. The credit guide has information about the licensee and
11
some of the licensee's obligations under this Act.
12
Division 3 requires a licensee to give a quote before providing
13
credit assistance to a consumer. The quote must set out the
14
maximum amount the consumer will be required to pay to the
15
licensee. The licensee must not charge more than that amount.
16
Division 4 requires a licensee, before providing credit assistance to
17
a consumer in relation to a consumer lease, to make a preliminary
18
assessment as to whether the lease will be unsuitable for the
19
consumer. To do this, the licensee must make inquiries and
20
verifications about the consumer's requirements, objectives and
21
financial situation. The licensee must give the consumer a copy of
22
the assessment if requested.
23
Division 5 requires a licensee, when providing credit assistance to
24
a consumer in relation to a consumer lease, to give the consumer a
25
document that discloses certain information (for example, the
26
commission the licensee is likely to receive).
27
Division 6 prohibits a licensee from providing credit assistance to a
28
consumer in relation to a consumer lease if the lease will be
29
unsuitable for the consumer.
30
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Introduction Division 1
Section 135
National Consumer Credit Protection Bill 2009 No. , 2009 141
135 Application of this Part
1
This Part does not apply in relation to credit assistance provided by
2
a licensee in relation to a consumer lease if the licensee is or will
3
be the lessor under the consumer lease.
4
5
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 2 Credit guide of credit assistance providers
Section 136
142 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Credit guide of credit assistance providers
1
136 Credit guide of credit assistance providers
2
Requirement to give credit guide
3
(1) A licensee must, as soon as practicable after it becomes apparent to
4
the licensee that it is likely to provide credit assistance to a
5
consumer in relation to a consumer lease, give the consumer the
6
licensee's credit guide in accordance with subsection (2).
7
Civil penalty:
2,000 penalty units.
8
(2) The licensee's credit guide must:
9
(a) be in writing; and
10
(b) be in the form (if any) prescribed by the regulations; and
11
(c) specify the licensee's name and contact details; and
12
(d) specify the licensee's Australian credit licence number; and
13
(e) give information about:
14
(i) any fees that are payable by a consumer to the licensee
15
for the licensee's credit assistance; and
16
(ii) any charges that are payable by a consumer to the
17
licensee for matters associated with providing the credit
18
assistance; and
19
(iii) the method for working out the amount of the fees and
20
charges; and
21
(f) give information about:
22
(i) if there are 6 or fewer lessors that the licensee conducts
23
business with when providing credit assistance in
24
relation to consumer leases--the names of those lessors;
25
and
26
(ii) if there are more than 6 lessors that the licensee
27
conducts business with when providing credit assistance
28
in relation to consumer leases--the names of the 6
29
lessors with whom the licensee reasonably believes it
30
conducts the most business; and
31
(g) give information about:
32
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Cred it guide of cred it assistance providers Division 2
Section 136
National Consumer Credit Protection Bill 2009 No. , 2009 143
(i) any commissions that the licensee, or an employee,
1
director or credit representative of the licensee, is likely
2
to receive, directly or indirectly, from lessors in relation
3
to consumer leases for which the licensee has provided
4
credit assistance; and
5
(ii) a reasonable estimate of the amounts of those
6
commissions or the range of those amounts; and
7
(iii) the method for working out those amounts; and
8
(h) give information about the licensee's procedure for resolving
9
disputes with a consumer, including contact details for a
10
consumer to access:
11
(i) the licensee's internal dispute resolution procedure; and
12
(ii) the approved external dispute resolution scheme of
13
which the licensee is a member; and
14
(i) give information about the licensee's obligations under
15
sections 143 and 146; and
16
(j) comply with any other requirements prescribed by the
17
regulations.
18
(3) The regulations may prescribe:
19
(a) information that need not be included in the credit guide,
20
despite subsection (2); and
21
(b) for the purposes of paragraph (2)(g):
22
(i) the method for working out amounts of commissions;
23
and
24
(ii) how commissions or amounts of commissions must be
25
described.
26
Manner of giving credit guide
27
(4) The licensee must give the consumer the licensee's credit guide in
28
the manner (if any) prescribed by the regulations.
29
Strict liability offence
30
(5) A person commits an offence if:
31
(a) the person is subject to a requirement under subsection (1);
32
and
33
(b) the person engages in conduct; and
34
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 2 Credit guide of credit assistance providers
Section 136
144 National Consumer Credit Protection Bill 2009 No. , 2009
(c) the conduct contravenes the requirement.
1
Criminal penalty: 50 penalty units.
2
(6) Subsection (5) is an offence of strict liability.
3
Note:
For strict liability, see section 6.1 of the Criminal Code.
4
5
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Quote for providing cred it assistance etc. in relation to consumer leases Division 3
Section 137
National Consumer Credit Protection Bill 2009 No. , 2009 145
Division 3--Quote for providing credit assistance etc. in
1
relation to consumer leases
2
137 Quote for providing credit assistance etc.
3
Requirement to give quote
4
(1) A licensee must not provide credit assistance to a consumer by:
5
(a) suggesting that the consumer apply, or assisting the consumer
6
to apply, for a particular consumer lease with a particular
7
lessor; or
8
(b) suggesting that the consumer remain in a particular consumer
9
lease with a particular lessor;
10
unless:
11
(c) the licensee has given the consumer a quote in accordance
12
with subsection (2); and
13
(d) the consumer has signed and dated that quote or otherwise
14
indicated the consumer's acceptance of it (and the day that
15
happens) in the manner (if any) prescribed by the regulations;
16
and
17
(e) the licensee has given the consumer a copy of the accepted
18
quote.
19
Civil penalty:
2,000 penalty units.
20
(2) The quote must:
21
(a) be in writing; and
22
(b) give information about the credit assistance and other
23
services that the quote covers; and
24
(c) specify the maximum amount that will be payable by the
25
consumer to the licensee in relation to the licensee's credit
26
assistance and other services; and
27
(d) give information about what that amount relates to,
28
including:
29
(i) the maximum amount of the licensee's fee for providing
30
the credit assistance and other services; and
31
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 3 Quote for provid ing credit assistance etc. in relation to consumer leases
Section 137
146 National Consumer Credit Protection Bill 2009 No. , 2009
(ii) the maximum amount of charges that will be incurred
1
by the licensee for matters associated with providing the
2
credit assistance and other services; and
3
(iii) the maximum amount of fees or charges that will be
4
payable by the licensee to another person on the
5
consumer's behalf; and
6
(e) state whether the maximum amount or any other amount will
7
be payable by the consumer to the licensee if a consumer
8
lease is not entered; and
9
(f) comply with any other requirements prescribed by the
10
regulations.
11
Manner of giving quote
12
(3) The licensee must give the quote to the consumer in the manner (if
13
any) prescribed by the regulations.
14
No demanding payment of amount exceeding quoted amount
15
(4) The licensee must not request or demand payment of an amount
16
that exceeds the maximum amount set out in the quote.
17
Civil penalty:
2,000 penalty units.
18
No demanding payment before credit assistance provided
19
(5) The licensee must not request or demand payment of an amount for
20
the licensee's credit assistance before the licensee provides the
21
assistance.
22
Civil penalty:
2,000 penalty units.
23
Caveats
24
(6) The licensee must not lodge, or threaten to lodge, a caveat in
25
relation to land to induce the consumer to pay an amount to the
26
licensee for the licensee's credit assistance or other services.
27
Civil penalty:
2,000 penalty units.
28
29
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Obligations of credit assistance providers before providing credit assistance for
consumer leases Division 4
Section 138
National Consumer Credit Protection Bill 2009 No. , 2009 147
Division 4--Obligations of credit assistance providers
1
before providing credit assistance for consumer
2
leases
3
138 Obligations of credit assistance provide rs before providing
4
credit assistance for consume r leases
5
(1) A licensee must not provide credit assistance to a consumer on a
6
day (the assistance day) by:
7
(a) suggesting that the consumer apply for a particular consumer
8
lease with a particular lessor; or
9
(b) assisting the consumer to apply for a particular consumer
10
lease with a particular lessor;
11
unless the licensee has, within 90 days (or other period prescribed
12
by the regulations) before the assistance day:
13
(c) made a preliminary assessment that:
14
(i) is in accordance with subsection 139(1); and
15
(ii) covers the period proposed for the entering of the lease;
16
and
17
(d) made the inquiries and verification in accordance with
18
section 140.
19
Civil penalty:
2,000 penalty units.
20
(2) A licensee must not provide credit assistance to a consumer on a
21
day (the assistance day) by suggesting that the consumer remain in
22
a particular consumer lease with a particular lessor unless the
23
licensee has, within 90 days (or other period prescribed by the
24
regulations) before the assistance day:
25
(a) made a preliminary assessment that:
26
(i) is in accordance with subsection 139(2); and
27
(ii) covers a period in which the assistance day occurs; and
28
(b) made the inquiries and verification in accordance with
29
section 140.
30
Civil penalty:
2,000 penalty units.
31
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 4 Obligations of credit assistance providers before providing credit assistance
for consumer leases
Section 139
148 National Consumer Credit Protection Bill 2009 No. , 2009
139 Preliminary assessment of unsuitability of the consumer lease
1
(1) For the purposes of paragraph 138(1)(c), the licensee must make a
2
preliminary assessment that:
3
(a) specifies the period the assessment covers; and
4
(b) assesses whether the consumer lease will be unsuitable for
5
the consumer if the lease is entered in that period.
6
(2) For the purposes of paragraph 138(2)(a), the licensee must make a
7
preliminary assessment that:
8
(a) specifies the period the assessment covers; and
9
(b) assesses whether the consumer lease will be unsuitable for
10
the consumer if the consumer remains in the lease in that
11
period.
12
Note:
The licensee is not required to make a preliminary assessment under
13
this section if the credit assistance is not provided.
14
140 Reasonable inquiries etc. about the consumer
15
(1) For the purposes of paragraph 138(1)(d) or 138(2)(b), the licensee
16
must, before making the preliminary assessment:
17
(a) make reasonable inquiries about the consumer's requirements
18
and objectives in relation to the consumer lease; and
19
(b) make reasonable inquiries about the consumer's financial
20
situation; and
21
(c) take reasonable steps to verify the consumer's financial
22
situation; and
23
(d) make any inquiries prescribed by the regulations about any
24
matter prescribed by the regulations; and
25
(e) take any steps prescribed by the regulations to verify any
26
matter prescribed by the regulations.
27
Civil penalty:
2,000 penalty units.
28
(2) The regulations may prescribe particular inquiries or steps that
29
must be made or taken, or do not need to be made or taken, for the
30
purposes of paragraph (1)(a), (b) or (c).
31
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Obligations of credit assistance providers before providing credit assistance for
consumer leases Division 4
Section 141
National Consumer Credit Protection Bill 2009 No. , 2009 149
141 When the consume r lease must be assessed as unsuitable--
1
entering lease
2
Requirement to assess the lease as unsuitable
3
(1) For a preliminary assessment under subsection 139(1) about
4
entering a consumer lease, the licensee must assess that the lease
5
will be unsuitable for the consumer if the lease will be unsuitable
6
for the consumer under subsection (2).
7
Civil penalty:
2,000 penalty units.
8
Note:
Even if the lease will not be unsuitable for the consumer under
9
subsection (2), the licensee may still assess that the lease will be
10
unsuitable for other reasons.
11
Particular circumstances when the lease will be unsuitable
12
(2) The lease will be unsuitable for the consumer if, at the time of the
13
preliminary assessment, it is likely that:
14
(a) the consumer will be unable to comply with the consumer's
15
financial obligations under the lease, or could only comply
16
with substantial hardship, if the lease is entered in the period
17
proposed for it to be entered; or
18
(b) the lease will not meet the consumer's requirements or
19
objectives if the lease is entered in the period proposed for it
20
to be entered; or
21
(c) if the regulations prescribe circumstances in which a
22
consumer lease is unsuitable--those circumstances will apply
23
to the lease if the lease is entered in the period proposed for it
24
to be entered.
25
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
26
consumer could only comply with the consumer's financial
27
obligations under the lease by selling the consumer's principal
28
place of residence, the consumer could only comply with those
29
obligations with substantial hardship, unless the contrary is proved.
30
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 4 Obligations of credit assistance providers before providing credit assistance
for consumer leases
Section 142
150 National Consumer Credit Protection Bill 2009 No. , 2009
Information to be used to determine if lease will be unsuitable
1
(4) For the purposes of determining under subsection (2) whether the
2
lease will be unsuitable, only information that satisfies both of the
3
following paragraphs is to be taken into account:
4
(a) the information is about the consumer's financial situation,
5
requirements or objectives, or any other matter prescribed by
6
the regulations under paragraph 140(1)(d) or (e);
7
(b) at the time of the preliminary assessment:
8
(i) the licensee had reason to believe that the information
9
was true; or
10
(ii) the licensee would have had reason to believe that the
11
information was true if the licensee had made the
12
inquiries or verification under section 140.
13
142 When the consume r lease must be assessed as unsuitable--
14
re maining in lease
15
Requirement to assess the lease as unsuitable
16
(1) For a preliminary assessment under subsection 139(2) about
17
remaining in a consumer lease, the licensee must assess that the
18
lease will be unsuitable for the consumer if the lease will be
19
unsuitable for the consumer under subsection (2).
20
Civil penalty:
2,000 penalty units.
21
Note:
Even if the lease will not be unsuitable for the consumer under
22
subsection (2), the licensee may still assess that the lease will be
23
unsuitable for other reasons.
24
Particular circumstances when the lease will be unsuitable
25
(2) The lease will be unsuitable for the consumer if, at the time of the
26
preliminary assessment, it is likely that:
27
(a) the consumer will be unable to comply with the consumer's
28
financial obligations under the lease, or could only comply
29
with substantial hardship if the consumer remains in the lease
30
in the period covered by the preliminary assessment; or
31
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Obligations of credit assistance providers before providing credit assistance for
consumer leases Division 4
Section 143
National Consumer Credit Protection Bill 2009 No. , 2009 151
(b) the lease will not meet the consumer's requirements or
1
objectives if the consumer remains in the lease in the period
2
covered by the preliminary assessment; or
3
(c) if the regulations prescribe circumstances in which a
4
consumer lease is unsuitable--those circumstances will apply
5
to the lease if the consumer remains in the lease in the period
6
covered by the preliminary assessment.
7
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
8
consumer could only comply with the consumer's financial
9
obligations under the lease by selling the consumer's principal
10
place of residence, the consumer could only comply with those
11
obligations with substantial hardship, unless the contrary is proved.
12
Information to be used to determine if lease will be unsuitable
13
(4) For the purposes of determining under subsection (2) whether the
14
lease will be unsuitable, only information that satisfies both of the
15
following paragraphs is to be taken into account:
16
(a) the information is about the consumer's financial situation,
17
requirements or objectives, or any other matter prescribed by
18
the regulations under paragraph 140(1)(d) or (e);
19
(b) at the time of the preliminary assessment:
20
(i) the licensee had reason to believe that the information
21
was true; or
22
(ii) the licensee would have had reason to believe that the
23
information was true if the licensee had made the
24
inquiries or verification under section 140.
25
143 Providing the consume r with the preliminary assessment
26
Requirement to give assessment if requested
27
(1) If the consumer requests the licensee for a copy of the preliminary
28
assessment within 7 years of the date of the credit assistance quote
29
under section 137, the licensee must give the consumer a written
30
copy of the assessment:
31
(a) if the request is made within 2 years of the quote--before the
32
end of 7 business days after the day the licensee receives the
33
request; and
34
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 4 Obligations of credit assistance providers before providing credit assistance
for consumer leases
Section 143
152 National Consumer Credit Protection Bill 2009 No. , 2009
(b) otherwise--before the end of 21 business days after the day
1
the licensee receives the request.
2
Note:
The licensee is not required to give the consumer a copy of the
3
preliminary assessment if the licensee does not provide credit
4
assistance to the consumer.
5
Civil penalty:
2,000 penalty units.
6
Manner of giving assessment
7
(2) The licensee must give the consumer the copy of the assessment in
8
the manner (if any) prescribed by the regulations.
9
No payment for assessment
10
(3) The licensee must not request or demand payment of an amount for
11
giving the consumer a copy of the preliminary assessment.
12
Civil penalty:
2,000 penalty units.
13
Strict liability offence
14
(4) A person commits an offence if:
15
(a) the person is subject to a requirement under subsection (1) or
16
(3); and
17
(b) the person engages in conduct; and
18
(c) the conduct contravenes the requirement.
19
Criminal penalty: 50 penalty units.
20
(5) Subsection (4) is an offence of strict liability.
21
Note:
For strict liability, see section 6.1 of the Criminal Code.
22
23
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Fees, commissions etc. relating to consumer leases Division 5
Section 144
National Consumer Credit Protection Bill 2009 No. , 2009 153
Division 5--Fees, commissions etc. relating to consumer
1
leases
2
144 Fees, commissions etc. relating to consumer leases
3
Requirement for disclosure
4
(1) A licensee must, at the same time as providing credit assistance to
5
a consumer by:
6
(a) suggesting that the consumer apply, or assisting the consumer
7
to apply, for a particular consumer lease with a particular
8
lessor; or
9
(b) suggesting that the consumer remain in a particular consumer
10
lease with a particular lessor;
11
give the consumer a lease proposal disclosure document in
12
accordance with subsection (2).
13
Civil penalty:
2,000 penalty units.
14
(2) The lease proposal disclosure document must contain the
15
following:
16
(a) the total amount of any fees or charges that the consumer is
17
liable to pay to the licensee in relation to the consumer lease
18
and the method used for working out that amount;
19
(b) a reasonable estimate of the total amount of any commissions
20
that the licensee, or an employee, director or credit
21
representative of the licensee, is likely to receive in relation
22
to the consumer lease and the method used for working out
23
that amount;
24
(c) a reasonable estimate of the total amount of any fees or
25
charges that the consumer is likely to be liable to pay to the
26
lessor in relation to applying for the consumer lease;
27
(d) a reasonable estimate of the total amount of any fees or
28
charges that the consumer is likely to be liable to pay to
29
another person in relation to applying for the consumer lease.
30
(3) For the purposes of paragraph (2)(b), the regulations may
31
prescribe:
32
(a) the method for working out amounts of commissions; and
33
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 5 Fees, commissions etc. relating to consumer leases
Section 145
154 National Consumer Credit Protection Bill 2009 No. , 2009
(b) how amounts of commissions must be described.
1
Manner of giving lease proposal disclosure document
2
(4) The licensee must give the lease proposal disclosure document to
3
the consumer in the manner (if any) prescribed by the regulations.
4
145 No profiting from fees etc. paid to third parties
5
Requirement not to profit
6
(1) If, in the course of providing credit assistance to a consumer in
7
relation to a consumer lease, a licensee pays an amount (the third
8
party amount) to another person on behalf of the consumer, the
9
licensee must not request or demand payment of an amount, as
10
reimbursement for the third party amount, that exceeds the third
11
party amount.
12
Civil penalty:
2,000 penalty units.
13
Offence
14
(2) A person commits an offence if:
15
(a) the person is subject to a requirement under subsection (1);
16
and
17
(b) the person engages in conduct; and
18
(c) the conduct contravenes the requirement.
19
Criminal penalty: 25 penalty units, or 6 months imprisonment,
20
or both.
21
22
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Prohibition on suggesting, or assisting with, unsuitable consumer leases Division 6
Section 146
National Consumer Credit Protection Bill 2009 No. , 2009 155
Division 6--Prohibition on suggesting, or assisting with,
1
unsuitable consumer leases
2
146 Prohibition on suggesting, or assisting with, unsuitable
3
consume r leases
4
Prohibition on suggesting, or assisting with, unsuitable leases
5
(1) A licensee must not provide credit assistance to a consumer by:
6
(a) suggesting that the consumer apply for a particular consumer
7
lease with a particular lessor; or
8
(b) assisting the consumer to apply for a particular consumer
9
lease with a particular lessor;
10
if the lease will be unsuitable for the consumer under
11
subsection (2).
12
Civil penalty:
2,000 penalty units.
13
When the lease will be unsuitable
14
(2) The lease will be unsuitable for the consumer if, at the time the
15
licensee provides the credit assistance, it is likely that:
16
(a) the consumer will be unable to comply with the consumer's
17
financial obligations under the lease, or could only comply
18
with substantial hardship, if the lease is entered in the period
19
proposed for it to be entered; or
20
(b) the lease will not meet the consumer's requirements or
21
objectives if the lease is entered in the period proposed for it
22
to be entered; or
23
(c) if the regulations prescribe circumstances in which a
24
consumer lease is unsuitable--those circumstances will apply
25
to the lease if the lease is entered in the period proposed for it
26
to be entered.
27
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
28
consumer could only comply with the consumer's financial
29
obligations under the lease by selling the consumer's principal
30
place of residence, the consumer could only comply with those
31
obligations with substantial hardship, unless the contrary is proved.
32
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 6 Prohib ition on suggesting, or assisting with, unsuitable consumer leases
Section 147
156 National Consumer Credit Protection Bill 2009 No. , 2009
Information to be used to determine if lease will be unsuitable
1
(4) For the purposes of determining under subsection (2) whether the
2
lease will be unsuitable, only information that satisfies both of the
3
following paragraphs is to be taken into account:
4
(a) the information is about the consumer's financial situation,
5
requirements or objectives, or any other matter prescribed by
6
the regulations under paragraph 140(1)(d) or (e);
7
(b) at the time the licensee provides the credit assistance:
8
(i) the licensee had reason to believe that the information
9
was true; or
10
(ii) the licensee would have had reason to believe that the
11
information was true if the licensee had made the
12
inquiries or verification under section 140.
13
Consumer lease not unsuitable under regulations
14
(5) The regulations may prescribe particular situations in which a
15
consumer lease is taken not to be unsuitable for a consumer,
16
despite subsection (2).
17
Offence
18
(6) A person commits an offence if:
19
(a) the person is subject to a requirement under subsection (1);
20
and
21
(b) the person engages in conduct; and
22
(c) the conduct contravenes the requirement.
23
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
24
both.
25
147 Prohibition on suggesting to consumers to remain in unsuitable
26
consume r leases
27
Prohibition on suggesting to remain in unsuitable lease
28
(1) A licensee must not provide credit assistance to a consumer by
29
suggesting that the consumer remain in a particular consumer lease
30
Responsible lending conduct Chapter 3
Licensees that provide credit assistance in relation to consumer leases Part 3 -3
Prohibition on suggesting, or assisting with, unsuitable consumer leases Division 6
Section 147
National Consumer Credit Protection Bill 2009 No. , 2009 157
with a particular lessor if the lease is unsuitable for the consumer
1
under subsection (2).
2
Civil penalty:
2,000 penalty units.
3
When the lease is unsuitable
4
(2) The lease is unsuitable for the consumer if, at that time the licensee
5
provides the credit assistance:
6
(a) the consumer is, or is likely to be, unable to comply with the
7
consumer's financial obligations under the lease, or only able
8
to comply with substantial hardship; or
9
(b) the lease does not meet the consumer's requirements or
10
objectives; or
11
(c) if the regulations prescribe circumstances in which a
12
consumer lease is unsuitable--those circumstances apply to
13
the lease.
14
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
15
consumer could only comply with the consumer's financial
16
obligations under the lease by selling the consumer's principal
17
place of residence, the consumer could only comply with those
18
obligations with substantial hardship, unless the contrary is proved.
19
Information to be used to determine if lease is unsuitable
20
(4) For the purposes of determining under subsection (2) whether the
21
lease is unsuitable, only information that satisfies both of the
22
following paragraphs is to be taken into account:
23
(a) the information is about the consumer's financial situation,
24
requirements or objectives, or any other matter prescribed by
25
the regulations under paragraph 140(1)(d) or (e);
26
(b) at the time the licensee provides the credit assistance:
27
(i) the licensee had reason to believe that the information
28
was true; or
29
(ii) the licensee would have had reason to believe that the
30
information was true if the licensee had made the
31
inquiries or verification under section 140.
32
Chapter 3 Responsible lending conduct
Part 3-3 Licensees that provide credit assistance in relation to consumer leases
Division 6 Prohib ition on suggesting, or assisting with, unsuitable consumer leases
Section 147
158 National Consumer Credit Protection Bill 2009 No. , 2009
Consumer lease not unsuitable under regulations
1
(5) The regulations may prescribe particular situations in which a
2
consumer lease is taken not to be unsuitable for a consumer,
3
despite subsection (2).
4
Offence
5
(6) A person commits an offence if:
6
(a) the person is subject to a requirement under subsection (1);
7
and
8
(b) the person engages in conduct; and
9
(c) the conduct contravenes the requirement.
10
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
11
both.
12
Defence
13
(7) For the purposes of subsections (1) and (6), it is a defence if:
14
(a) the licensee suggested that the consumer remain in the
15
consumer lease because the licensee reasonably believed that
16
there was no other consumer lease that was not unsuitable for
17
the consumer; and
18
(b) the licensee informed the consumer that there is a procedure
19
under sections 72 and 94 of the National Credit Code for
20
consumers in hardship.
21
Note 1:
For the purposes of subsection (6), a defendant bears an evidential
22
burden in relation to the matter in subsection (7) (see subsection
23
13.3(3) of the Criminal Code).
24
Note 2:
Sections 72 and 94 of the National Credit Code apply in relation to
25
consumer leases because of section 177 of the Code.
26
(8) The regulations may prescribe particular inquiries that must be
27
made, or do not need to be made, for the purposes of
28
paragraph (7)(a).
29
30
Responsible lending conduct Chapter 3
Licensees that are lessors under consumer leases Part 3 -4
Introduction Division 1
Section 148
National Consumer Credit Protection Bill 2009 No. , 2009 159
Part 3-4--Licensees that are lessors under
1
consumer leases
2
Division 1--Introduction
3
148 Guide to this Part
4
This Part has rules that apply to licensees that are lessors. These
5
rules are aimed at better informing consumers and preventing them
6
from being in unsuitable consumer leases.
7
Division 2 requires a licensee to give its credit guide to a
8
consumer. The credit guide has information about the licensee and
9
some of the licensee's obligations under this Act.
10
Division 3 requires a licensee, before entering a consumer lease, to
11
make an assessment as to whether the lease will be unsuitable. To
12
do this, the licensee must make inquiries and verifications about
13
the consumer's requirements, objectives and financial situation.
14
The licensee must give the consumer a copy of the assessment if
15
requested.
16
Division 4 prohibits a licensee from entering a consumer lease that
17
is unsuitable for a consumer.
18
19
Chapter 3 Responsible lending conduct
Part 3-4 Licensees that are lessors under consumer leases
Division 2 Credit guide of lessors
Section 149
160 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Credit guide of lessors
1
149 Credit guide of lessors
2
Requirement to give credit guide
3
(1) A licensee must, as soon as practicable after it becomes apparent to
4
the licensee that it is likely to enter a consumer lease with a
5
consumer who will be the lessee under the lease, give the consumer
6
the licensee's credit guide in accordance with subsection (2).
7
Civil penalty:
2,000 penalty units.
8
(2) The licensee's credit guide must:
9
(a) be in writing; and
10
(b) be in the form (if any) prescribed by the regulations; and
11
(c) specify the licensee's name and contact details; and
12
(d) specify the licensee's Australian credit licence number; and
13
(e) give information about the licensee's procedure for resolving
14
disputes with a consumer, including contact details for a
15
consumer to access:
16
(i) the licensee's internal dispute resolution procedure; and
17
(ii) the approved external dispute resolution scheme of
18
which the licensee is a member; and
19
(f) give information about the licensee's obligations under
20
sections 155 and 156; and
21
(g) comply with any other requirements prescribed by the
22
regulations.
23
(3) The regulations may prescribe information that need not be
24
included in the credit guide, despite subsection (2).
25
Manner of giving credit guide
26
(4) The licensee must give the consumer the licensee's credit guide in
27
the manner (if any) prescribed by the regulations.
28
Strict liability offence
29
(5) A person commits an offence if:
30
Responsible lending conduct Chapter 3
Licensees that are lessors under consumer leases Part 3 -4
Cred it guide of lessors Division 2
Section 150
National Consumer Credit Protection Bill 2009 No. , 2009 161
(a) the person is subject to a requirement under subsection (1);
1
and
2
(b) the person engages in conduct; and
3
(c) the conduct contravenes the requirement.
4
Criminal penalty: 50 penalty units.
5
(6) Subsection (5) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
150 Credit guide of lessors who are assignees
8
Requirement to give credit guide
9
(1) A licensee must, as soon as practicable after it has been assigned
10
any rights or obligations of a lessor under a consumer lease, give
11
the lessee under the lease the licensee's credit guide in accordance
12
with subsection (2).
13
Civil penalty:
2,000 penalty units.
14
(2) The licensee's credit guide must:
15
(a) be in writing; and
16
(b) be in the form (if any) prescribed by the regulations; and
17
(c) specify the licensee's name and contact details; and
18
(d) specify the licensee's Australian credit licence number; and
19
(e) give information about the licensee's procedure for resolving
20
disputes with a consumer, including contact details for a
21
consumer to access:
22
(i) the licensee's internal dispute resolution procedure; and
23
(ii) the approved external dispute resolution scheme of
24
which the licensee is a member; and
25
(f) comply with any other requirements prescribed by the
26
regulations.
27
(3) The regulations may prescribe information that need not be
28
included in the credit guide, despite subsection (2).
29
Chapter 3 Responsible lending conduct
Part 3-4 Licensees that are lessors under consumer leases
Division 2 Credit guide of lessors
Section 150
162 National Consumer Credit Protection Bill 2009 No. , 2009
Manner of giving credit guide
1
(4) The licensee must give the consumer the licensee's credit guide in
2
the manner (if any) prescribed by the regulations.
3
Strict liability offence
4
(5) A person commits an offence if:
5
(a) the person is subject to a requirement under subsection (1);
6
and
7
(b) the person engages in conduct; and
8
(c) the conduct contravenes the requirement.
9
Criminal penalty: 50 penalty units.
10
(6) Subsection (5) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
13
Responsible lending conduct Chapter 3
Licensees that are lessors under consumer leases Part 3 -4
Obligations of lessors before entering consumer leases Division 3
Section 151
National Consumer Credit Protection Bill 2009 No. , 2009 163
Division 3--Obligations of lessors before entering
1
consumer leases
2
151 Obligations of lessors before entering consume r leases
3
A licensee must not enter a consumer lease with a consumer who
4
will be the lessee under the lease on a day (the lease day) unless
5
the licensee has, within 90 days (or other period prescribed by the
6
regulations) before the lease day:
7
(a) made an assessment that:
8
(i) is in accordance with section 152; and
9
(ii) covers a period in which the lease day occurs; and
10
(b) made the inquiries and verification in accordance with
11
section 130.
12
Civil penalty:
2,000 penalty units.
13
152 Assessment of unsuitability of the consumer lease
14
For the purposes of paragraph 151(a), the licensee must make an
15
assessment that:
16
(a) specifies the period the assessment covers; and
17
(b) assesses whether the consumer lease will be unsuitable for
18
the consumer if the lease is entered in that period.
19
Note:
The licensee is not required to make the assessment under this section
20
if the lease is not entered.
21
153 Reasonable inquiries etc. about the consumer
22
Requirement to make inquiries and take steps to verify
23
(1) For the purposes of paragraph 151(b), the licensee must, before
24
making the assessment:
25
(a) make reasonable inquiries about the consumer's requirements
26
and objectives in relation to the consumer lease; and
27
(b) make reasonable inquiries about the consumer's financial
28
situation; and
29
Chapter 3 Responsible lending conduct
Part 3-4 Licensees that are lessors under consumer leases
Division 3 Obligations of lessors before entering consumer leases
Section 154
164 National Consumer Credit Protection Bill 2009 No. , 2009
(c) take reasonable steps to verify the consumer's financial
1
situation; and
2
(d) make any inquiries prescribed by the regulations about any
3
matter prescribed by the regulations; and
4
(e) take any steps prescribed by the regulations to verify any
5
matter prescribed by the regulations.
6
Civil penalty:
2,000 penalty units.
7
(2) The regulations may prescribe particular inquiries or steps that
8
must be made or taken, or do not need to be made or taken, for the
9
purposes of paragraph (1)(a), (b) or (c).
10
When not required to take steps to verify
11
(3) Despite subsection (1), if:
12
(a) a preliminary assessment under subsection 139(1) about the
13
entering of the consumer lease has been made; and
14
(b) the preliminary assessment was made no more than 90 days
15
before the day of entering the lease; and
16
(c) the preliminary assessment assesses the lease as not being
17
unsuitable for the consumer; and
18
(d) the preliminary assessment contains the information that was
19
used for the purposes of making the preliminary assessment;
20
the licensee is not required, for the purposes of paragraph (1)(c) or
21
(e), to verify that information.
22
154 When consume r lease must be assessed as unsuitable
23
Requirement to assess the lease as unsuitable
24
(1) The licensee must assess that the consumer lease will be unsuitable
25
for the consumer if the lease will be unsuitable for the consumer
26
under subsection (2).
27
Note:
Even if the lease will not be unsuitable for the consumer under
28
subsection (2), the licensee may still assess that the lease will be
29
unsuitable for other reasons.
30
Responsible lending conduct Chapter 3
Licensees that are lessors under consumer leases Part 3 -4
Obligations of lessors before entering consumer leases Division 3
Section 154
National Consumer Credit Protection Bill 2009 No. , 2009 165
Particular circumstances when the lease will be unsuitable
1
(2) The lease will be unsuitable for the consumer if, at the time of the
2
assessment, it is likely that:
3
(a) the consumer will be unable to comply with the consumer's
4
financial obligations under the lease, or could only comply
5
with substantial hardship, if the lease is entered in the period
6
covered by the assessment; or
7
(b) the lease will not meet the consumer's requirements or
8
objectives if the lease is entered in the period covered by the
9
assessment; or
10
(c) if the regulations prescribe circumstances in which a
11
consumer lease is unsuitable--those circumstances will apply
12
to the lease if the lease is entered in the period covered by the
13
assessment.
14
Civil penalty:
2,000 penalty units.
15
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
16
consumer could only comply with the consumer's financial
17
obligations under the lease by selling the consumer's principal
18
place of residence, the consumer could only comply with those
19
obligations with substantial hardship, unless the contrary is proved.
20
Information to be used to determine if lease will be unsuitable
21
(4) For the purposes of determining under subsection (2) whether the
22
lease will be unsuitable, only information that satisfies both of the
23
following paragraphs is to be taken into account:
24
(a) the information is about the consumer's financial situation,
25
requirements or objectives, or any other matter prescribed by
26
the regulations under paragraph 153(1)(d) or (e);
27
(b) at the time of the preliminary assessment:
28
(i) the licensee had reason to believe that the information
29
was true; or
30
(ii) the licensee would have had reason to believe that the
31
information was true if the licensee had made the
32
inquiries or verification under section 153.
33
Chapter 3 Responsible lending conduct
Part 3-4 Licensees that are lessors under consumer leases
Division 3 Obligations of lessors before entering consumer leases
Section 155
166 National Consumer Credit Protection Bill 2009 No. , 2009
155 Giving the consumer the assessment
1
Requirement to give assessment if requested
2
(1) If, before entering the consumer lease, the consumer requests the
3
licensee for a copy of the assessment, the licensee must give the
4
consumer a written copy of the assessment before entering the
5
lease.
6
Note:
The licensee is not required to give the consumer a copy of the
7
assessment if the lease is not entered.
8
Civil penalty:
2,000 penalty units.
9
(2) If, during the period that:
10
(a) starts on the day (the lease day) the consumer lease is
11
entered; and
12
(b) ends 7 years after that day;
13
the consumer requests the licensee for a copy of the assessment,
14
the licensee must give the consumer a written copy of the
15
assessment:
16
(c) if the request is made within 2 years of the lease day--before
17
the end of 7 business days after the day the licensee receives
18
the request; and
19
(d) otherwise--before the end of 21 business days after the day
20
the licensee receives the request.
21
Civil penalty:
2,000 penalty units.
22
Manner of giving assessment
23
(3) The licensee must give the consumer the copy of the assessment in
24
the manner (if any) prescribed by the regulations.
25
No payment for assessment
26
(4) The licensee must not request or demand payment of an amount for
27
giving the consumer a copy of the assessment.
28
Civil penalty:
2,000 penalty units.
29
Responsible lending conduct Chapter 3
Licensees that are lessors under consumer leases Part 3 -4
Obligations of lessors before entering consumer leases Division 3
Section 155
National Consumer Credit Protection Bill 2009 No. , 2009 167
Strict liability offence
1
(5) A person commits an offence if:
2
(a) the person is subject to a requirement under subsection (1),
3
(2) or (4); and
4
(b) the person engages in conduct; and
5
(c) the conduct contravenes the requirement.
6
Criminal penalty: 50 penalty units.
7
(6) Subsection (5) is an offence of strict liability.
8
Note:
For strict liability, see section 6.1 of the Criminal Code.
9
10
Chapter 3 Responsible lending conduct
Part 3-4 Licensees that are lessors under consumer leases
Division 4 Prohib ition on entering unsuitable consumer leases
Section 156
168 National Consumer Credit Protection Bill 2009 No. , 2009
Division 4--Prohibition on entering unsuitable consumer
1
leases
2
156 Prohibition on entering unsuitable consume r leases
3
Prohibition on entering unsuitable lease
4
(1) A licensee must not enter a consumer lease with a consumer who
5
will be the lessee under the lease if the lease is unsuitable for the
6
consumer under subsection (2).
7
Civil penalty:
2,000 penalty units.
8
When the lease is unsuitable
9
(2) The lease is unsuitable for the consumer if, at the time it is entered:
10
(a) it is likely that the consumer will be unable to comply with
11
the consumer's financial obligations under the lease, or could
12
only comply with substantial hardship; or
13
(b) the lease does not meet the consumer's requirements or
14
objectives; or
15
(c) if the regulations prescribe circumstances in which a
16
consumer lease is unsuitable--those circumstances apply to
17
the lease.
18
(3) For the purposes of paragraph (2)(a), it is presumed that, if the
19
consumer could only comply with the consumer's financial
20
obligations under the lease by selling the consumer's principal
21
place of residence, the consumer could only comply with those
22
obligations with substantial hardship, unless the contrary is proved.
23
Information to be used to determine if lease is unsuitable
24
(4) For the purposes of determining under subsection (2) whether the
25
lease is unsuitable, only information that satisfies both of the
26
following paragraphs is to be taken into account:
27
(a) the information is about the consumer's financial situation,
28
requirements or objectives, or any other matter prescribed by
29
the regulations under paragraph 153(1)(d) or (e);
30
(b) at the time the lease is entered:
31
Responsible lending conduct Chapter 3
Licensees that are lessors under consumer leas es Part 3 -4
Prohibition on entering unsuitable consumer leases Division 4
Section 156
National Consumer Credit Protection Bill 2009 No. , 2009 169
(i) the licensee had reason to believe that the information
1
was true; or
2
(ii) the licensee would have had reason to believe that the
3
information was true if the licensee had made the
4
inquiries or verification under section 153.
5
Consumer lease not unsuitable under regulations
6
(5) The regulations may prescribe particular situations in which a
7
consumer lease is taken not to be unsuitable for a consumer,
8
despite subsection (2).
9
Offence
10
(6) A person commits an offence if:
11
(a) the person is subject to a requirement under subsection (1);
12
and
13
(b) the person engages in conduct; and
14
(c) the conduct contravenes the requirement.
15
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
16
both.
17
18
Chapter 3 Responsible lending conduct
Part 3-5 Cred it representatives
Division 1 Introduction
Section 157
170 National Consumer Credit Protection Bill 2009 No. , 2009
Part 3-5--Credit representatives
1
Division 1--Introduction
2
157 Guide to this Part
3
This Part has rules that apply to credit representatives when they
4
act on behalf of a licensee under Part 3-1, 3-2, 3-3 or 3-4. These
5
rules are aimed at better informing consumers.
6
Division 2 requires a credit representative to give its credit guide to
7
a consumer. The credit guide has information about the credit
8
representative.
9
10
Responsible lending conduct Chapter 3
Cred it representatives Part 3-5
Cred it guide of cred it representatives Division 2
Section 158
National Consumer Credit Protection Bill 2009 No. , 2009 171
Division 2--Credit guide of credit representatives
1
158 Credit guide of credit representatives
2
Requirement to give credit guide
3
(1) If a credit representative of a licensee gives a consumer the
4
licensee's credit guide when acting on behalf of the licensee under
5
Part 3-1, 3-2, 3-3 or 3-4, the credit representative must at the same
6
time give the consumer the credit representative's credit guide in
7
accordance with subsection (2).
8
Civil penalty:
2,000 penalty units.
9
(2) The credit representative's credit guide must:
10
(a) be in writing; and
11
(b) be in the form (if any) prescribed by the regulations; and
12
(c) specify the credit representative's name and contact details;
13
and
14
(d) specify the credit representative's credit representative
15
number; and
16
(e) give information about:
17
(i) any fees that are payable by a consumer to the credit
18
representative for acting as a credit representative; and
19
(ii) any charges that are payable by a consumer to the credit
20
representative for matters associated with acting as a
21
credit representative; and
22
(iii) the method for working out the amount of the fees and
23
charges; and
24
(f) give information about:
25
(i) if there are 6 or fewer licensees for whom the credit
26
representative is a credit representative--the names of
27
those licensees; and
28
(ii) if there are more than 6 licensees for whom the credit
29
representative is a credit representative--the names of
30
the 6 licensees for whom the credit representative
31
reasonably believes it conducts the most business; and
32
Chapter 3 Responsible lending conduct
Part 3-5 Cred it representatives
Division 2 Credit guide of credit representatives
Section 158
172 National Consumer Credit Protection Bill 2009 No. , 2009
(iii) the credit activities the credit representative is
1
authorised to engage in on behalf of the licensees
2
referred to in subparagraph (i) or (ii); and
3
(g) give information about:
4
(i) any commissions the credit representative is likely to
5
receive, directly or indirectly, from those licensees; and
6
(ii) a reasonable estimate of the amounts of those
7
commissions or the range of those amounts; and
8
(iii) the method for working out those amounts; and
9
(h) give information about the credit representative's procedure
10
for resolving disputes with a consumer, including contact
11
details for a consumer to access the approved external dispute
12
resolution scheme of which the credit representative's is a
13
member; and
14
(i) comply with any other requirements prescribed by the
15
regulations.
16
(3) The regulations may prescribe:
17
(a) information that need not be included in the credit guide,
18
despite subsection (2); and
19
(b) for the purposes of paragraph (2)(g):
20
(i) the method for working out amounts of commissions;
21
and
22
(ii) how commissions or amounts of commissions must be
23
described.
24
Manner of giving credit guide
25
(4) The credit representative must give the consumer the credit
26
representative's credit guide in the manner (if any) prescribed by
27
the regulations.
28
Strict liability offence
29
(5) A person commits an offence if:
30
(a) the person is subject to a requirement under subsection (1);
31
and
32
(b) the person engages in conduct; and
33
(c) the conduct contravenes the requirement.
34
Responsible lending conduct Chapter 3
Cred it representatives Part 3-5
Cred it guide of cred it representatives Division 2
Section 158
National Consumer Credit Protection Bill 2009 No. , 2009 173
Criminal penalty: 50 penalty units.
1
(6) Subsection (5) is an offence of strict liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
4
Chapter 3 Responsible lending conduct
Part 3-6 Debt collectors
Division 1 Introduction
Section 159
174 National Consumer Credit Protection Bill 2009 No. , 2009
Part 3-6--Debt collectors
1
Division 1--Introduction
2
159 Guide to this Part
3
This Part has rules that apply to a person who is authorised to
4
collect payments under a credit contract or consumer lease from a
5
debtor or lessee. These rules are aimed at better informing
6
consumers.
7
Division 2 requires the person to give the person's credit guide to
8
the consumer. The credit guide has information about the person.
9
10
Responsible lending conduct Chapter 3
Debt collectors Part 3-6
Cred it guide of debt collectors Division 2
Section 160
National Consumer Credit Protection Bill 2009 No. , 2009 175
Division 2--Credit guide of debt collectors
1
160 Credit guide of debt collectors
2
Requirement to give credit guide
3
(1) A person who is a licensee or credit representative must, as soon as
4
practicable after it becomes authorised by a credit provider to
5
collect, on the credit provider's behalf, repayments made by a
6
debtor under a credit contract, give the debtor the person's credit
7
guide in accordance with subsection (3).
8
Civil penalty:
2,000 penalty units.
9
(2) A person who is a licensee or credit representative must, as soon as
10
practicable after it becomes authorised by a lessor to collect, on the
11
lessor's behalf, payments made by a lessee under a consumer lease,
12
give the lessee the person's credit guide in accordance with
13
subsection (3).
14
Civil penalty:
2,000 penalty units.
15
(3) The person's credit guide must:
16
(a) be in writing; and
17
(b) be in the form (if any) prescribed by the regulations; and
18
(c) specify the person's name and contact details; and
19
(d) if the person is a licensee--specify the person's Australian
20
credit licence number; and
21
(e) if the person is a credit representative--specify the person's
22
credit representative number; and
23
(f) give information about the person's procedure for resolving
24
disputes with a consumer, including contact details for a
25
consumer to access:
26
(i) if the person is a licensee--the person's internal dispute
27
resolution procedure; and
28
(ii) in all cases--the approved external dispute resolution
29
scheme of which the person is a member; and
30
(g) comply with any other requirements prescribed by the
31
regulations.
32
Chapter 3 Responsible lending conduct
Part 3-6 Debt collectors
Division 2 Credit guide of debt collectors
Section 160
176 National Consumer Credit Protection Bill 2009 No. , 2009
(4) The regulations may prescribe information that need not be
1
included in the credit guide, despite subsection (3).
2
Manner of giving credit guide
3
(5) The person must give the consumer the person's credit guide in the
4
manner (if any) prescribed by the regulations.
5
Strict liability offence
6
(6) A person commits an offence if:
7
(a) the person is subject to a requirement under subsection (1);
8
and
9
(b) the person engages in conduct; and
10
(c) the conduct contravenes the requirement.
11
Criminal penalty: 50 penalty units.
12
(7) Subsection (6) is an offence of strict liability.
13
Note:
For strict liability, see section 6.1 of the Criminal Code.
14
15
Responsible lending conduct Chapter 3
Exemptions and modifications relating to this Chapter Part 3-7
Introduction Division 1
Section 161
National Consumer Credit Protection Bill 2009 No. , 2009 177
Part 3-7--Exemptions and modifications relating to
1
this Chapter
2
Division 1--Introduction
3
161 Guide to this Part
4
This Part is about exemptions from, and modifications of, the
5
provisions of this Chapter.
6
Division 2 deals with how exemptions and modifications may be
7
made by ASIC or by the regulations.
8
9
Chapter 3 Responsible lending conduct
Part 3-7 Exemptions and modifications relating to this Chapter
Division 2 Exemptions and modifications relating to this Chapter
Section 162
178 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Exemptions and modifications relating to this
1
Chapter
2
162 Provisions to which this Part applies
3
The provisions to which this Part applies are:
4
(a) this Chapter; and
5
(b) definitions in this Act, as they apply to references in this
6
Chapter; and
7
(c) instruments made for the purposes of this Chapter.
8
163 Exemptions and modifications by ASIC
9
(1) ASIC may:
10
(a) exempt a person from all or specified provisions to which
11
this Part applies; or
12
(b) exempt a credit contract from all or specified provisions to
13
which this Part applies; or
14
(c) exempt a consumer lease from all or specified provisions to
15
which this Part applies; or
16
(d) declare that provisions to which this Part applies apply in
17
relation to a person, credit contract or consumer lease as if
18
specified provisions were omitted, modified or varied as
19
specified in the declaration.
20
(2) An exemption or declaration under subsection (1) is not a
21
legislative instrument.
22
(3) ASIC may, by legislative instrument:
23
(a) exempt a class of persons from all or specified provisions to
24
which this Part applies; or
25
(b) exempt a class of credit contracts from all or specified
26
provisions to which this Part applies; or
27
(c) exempt a class of consumer leases from all or specified
28
provisions to which this Part applies; or
29
(d) declare that provisions to which this Part applies apply in
30
relation to a class of persons, credit contracts or consumer
31
Responsible lending conduct Chapter 3
Exemptions and modifications relating to this Chapter Part 3-7
Exemptions and modifications relating to this Chapter Division 2
Section 164
National Consumer Credit Protection Bill 2009 No. , 2009 179
leases, as if specified provisions were omitted, modified or
1
varied as specified in the declaration.
2
(4) An exemption may apply unconditionally or subject to specified
3
conditions. A person to whom a condition specified in an
4
exemption applies must comply with the condition. The court may
5
order the person to comply with the condition in a specified way.
6
Only ASIC may apply to the court for the order.
7
(5) An exemption or declaration under subsection (1) must be in
8
writing and ASIC must publish notice of it on its website.
9
(6) If conduct (including an omission) of a person would not have
10
constituted an offence if a particular declaration under
11
paragraph (1)(d) or (3)(d) had not been made, that conduct does not
12
constitute an offence unless, before the conduct occurred:
13
(a) the text of the declaration was published by ASIC on its
14
website; or
15
(b) ASIC gave written notice setting out the text of the
16
declaration to the person;
17
(in addition to complying with the requirements of the Legislative
18
Instruments Act 2003 if the declaration is made under
19
subsection (3)).
20
(7) In a prosecution for an offence to which subsection (6) applies, the
21
prosecution must prove that paragraph (6)(a) or (b) was complied
22
with before the conduct occurred.
23
164 Exemptions and modifications by the regulations
24
The regulations may:
25
(a) exempt a person or class of persons from all or specified
26
provisions to which this Part applies; or
27
(b) exempt a credit contract or a class of credit contracts from all
28
or specified provisions to which this Part applies; or
29
(c) exempt a consumer lease or a class of consumer leases from
30
all or specified provisions to which this Part applies; or
31
(d) provide that the provisions to which this Part applies apply as
32
if specified provisions were omitted, modified or varied as
33
specified in the regulations.
34
Chapter 4 Remed ies
Part 4-1 Civil penalty provisions
Division 1 Introduction
Section 165
180 National Consumer Credit Protection Bill 2009 No. , 2009
Chapter 4--Remedies
1
Part 4-1--Civil penalty provisions
2
Division 1--Introduction
3
165 Guide to this Part
4
This Part is about civil penalty provisions. Civil penalty provisions
5
impose obligations on certain persons. Civil remedies may be
6
sought in relation to contraventions of these provisions.
7
Division 2 authorises the court to make a declaration that a person
8
has contravened a civil penalty provision and order the person to
9
pay a pecuniary penalty. Only ASIC may apply to the court for the
10
declaration or order.
11
Division 3 has general provisions relating to civil penalty
12
provisions, including rules about evidence and procedure.
13
14
Remedies Chapter 4
Civil penalty provisions Part 4 -1
Declarations and pecuniary penalty orders for contraventions of civil penalty provisions
Division 2
Section 166
National Consumer Credit Protection Bill 2009 No. , 2009 181
Division 2--Declarations and pecuniary penalty orders for
1
contraventions of civil penalty provisions
2
166 Declaration of contravention of civil penalty provision
3
Application for declaration of contravention
4
(1) Within 6 years of a person contravening a civil penalty provision,
5
ASIC may apply to the court for a declaration that the person
6
contravened the provision.
7
Declaration of contravention
8
(2) The court must make the declaration if it is satisfied that the person
9
has contravened the provision.
10
(3) The declaration must specify the following:
11
(a) the court that made the declaration;
12
(b) the civil penalty provision that was contravened;
13
(c) the person who contravened the provision;
14
(d) the conduct that constituted the contravention.
15
Declaration of contravention conclusive evidence
16
(4) The declaration is conclusive evidence of the matters referred to in
17
subsection (3).
18
167 Court may order pe rson to pay pecuniary penalty for
19
contravening civil penalty provision
20
Application for order
21
(1) Within 6 years of a person contravening a civil penalty provision,
22
ASIC may apply to the court for an order that the person pay the
23
Commonwealth a pecuniary penalty.
24
Court may order person to pay pecuniary penalty
25
(2) If a declaration has been made under section 166 that the person
26
has contravened the provision, the court may order the person to
27
Chapter 4 Remed ies
Part 4-1 Civil penalty provisions
Division 2 Declarations and pecuniary penalty orders for contraventions of civil
penalty provisions
Section 167
182 National Consumer Credit Protection Bill 2009 No. , 2009
pay to the Commonwealth a pecuniary penalty that the court
1
considers is appropriate (but not more than the amount specified in
2
subsection (3)).
3
Determining amount of pecuniary penalty
4
(3) The pecuniary penalty must not be more than:
5
(a) if the person is a natural person--the maximum number of
6
penalty units referred to in the civil penalty provision; or
7
(b) if the person is a body corporate, a partnership or multiple
8
trustees--5 times the maximum number of penalty units
9
referred to in the civil penalty provision.
10
Note:
This Act treats partnerships and multiple trustees as if they were
11
persons (see sections 14 and 15).
12
Recovery of penalty as a debt
13
(4) The pecuniary penalty may be recovered as a debt due to the
14
Commonwealth.
15
16
Remedies Chapter 4
Civil penalty provisions Part 4 -1
General provisions relating to civil penalty provisions Division 3
Section 168
National Consumer Credit Protection Bill 2009 No. , 2009 183
Division 3--General provisions relating to civil penalty
1
provisions
2
168 Contravening a civil penalty provision is not an offence
3
A contravention of a civil penalty provision is not an offence.
4
169 Involvement in contravention treated in same way as actual
5
contravention
6
A person who is involved in a contravention of a civil penalty
7
provision is taken to have contravened that provision.
8
170 Civil evidence and procedure rules for proceedings relating to
9
civil penalty provisions
10
The court must apply the rules of evidence and procedure for civil
11
matters when hearing proceedings relating to a contravention, or
12
proposed contravention, of a civil penalty provision.
13
171 Criminal proceedings before civil proceedings
14
The court must not make a declaration of contravention or a
15
pecuniary penalty order against a person for a contravention of a
16
civil penalty provision if the person has been convicted of an
17
offence constituted by conduct that is substantia lly the same as the
18
conduct constituting the contravention.
19
172 Criminal proceedings during civil proceedings
20
(1) Proceedings for a declaration of contravention or a pecuniary
21
penalty order against a person for a contravention of a civil penalty
22
provision are stayed if:
23
(a) criminal proceedings are brought or have already been
24
brought against the person for an offence; and
25
(b) the offence is constituted by conduct that is substantially the
26
same as the conduct in relation to which the declaration or
27
order would be made.
28
Chapter 4 Remed ies
Part 4-1 Civil penalty provisions
Division 3 General provisions relating to civ il penalty provisions
Section 173
184 National Consumer Credit Protection Bill 2009 No. , 2009
(2) The proceedings for the declaration or order may be resumed if the
1
person is not convicted of the offence. Otherwise, the proceedings
2
for the declaration or order are dismissed.
3
173 Criminal proceedings after civil proceedings
4
Criminal proceedings may be brought against a person for conduct
5
that is substantially the same as conduct constituting a
6
contravention of a civil penalty provision regardless of whether a
7
declaration of contravention or a pecuniary penalty order has been
8
made against the person under this Division.
9
174 Evidence given in proceedings for pecuniary penalty not
10
admissible in criminal proceedings
11
(1) Evidence of information given, or evidence of production of
12
documents, by a natural person is not admissible in criminal
13
proceedings against the natural person if:
14
(a) the natural person previously gave the information or
15
produced the documents in proceedings for a declaration of
16
contravention or a pecuniary penalty order against the natural
17
person for a contravention of a civil penalty provision
18
(whether or not the declaration or order was made); and
19
(b) the conduct alleged to constitute the offence is substantially
20
the same as the conduct in relation to which the declaration
21
or order was sought.
22
(2) However, this does not apply to criminal proceedings in relation to
23
the falsity of the evidence given by the natural person in the
24
proceedings for the declaration or order.
25
175 Civil double jeopardy
26
If a person is ordered to pay a pecuniary penalty under a civil
27
penalty provision in relation to particular conduct, the person is not
28
liable to be ordered to pay a pecuniary penalty under some other
29
provision of a law of the Commonwealth in relation to that
30
conduct.
31
Remedies Chapter 4
Civil penalty provisions Part 4 -1
General provisions relating to civil penalty provisions Division 3
Section 175
National Consumer Credit Protection Bill 2009 No. , 2009 185
Note:
A court may make other orders, such as an order for compensation, in
1
relation to particular conduct even if the court has made a pecuniary
2
penalty order in relation to that conduct (see section 184).
3
4
Chapter 4 Remed ies
Part 4-2 Po wer o f the court to grant remed ies
Division 1 Introduction
Section 176
186 National Consumer Credit Protection Bill 2009 No. , 2009
Part 4-2--Power of the court to grant remedies
1
Division 1--Introduction
2
176 Guide to this Part
3
This Part is about the remedies the court may grant.
4
Division 2 authorises the court to grant a range of remedies,
5
including injunctions, compensation orders and other orders
6
against those who engage in credit activities unlawfully.
7
8
Remedies Chapter 4
Power o f the court to grant remed ies Part 4-2
Power o f the court to grant remed ies Division 2
Section 177
National Consumer Credit Protection Bill 2009 No. , 2009 187
Division 2--Power of the court to grant remedies
1
177 Injunctions
2
(1) If, on the application of ASIC or any other person, the court is
3
satisfied that a person has engaged or is proposing to engage in
4
conduct that constitutes or would constitute:
5
(a) a contravention of this Act; or
6
(b) attempting to contravene this Act; or
7
(c) aiding, abetting, counselling or procuring a person to
8
contravene this Act; or
9
(d) inducing or attempting to induce, whether by threats,
10
promises or otherwise, a person to contravene this Act; or
11
(e) being in any way, directly or indirectly, knowingly concerned
12
in, or party to, the contravention by a person of this Act; or
13
(f) conspiring with others to contravene this Act;
14
the court may grant an injunction on such terms as the court
15
considers appropriate.
16
(2) If an application for an injunction under subsection (1) has been
17
made, the court may, if the court considers it appropriate, grant an
18
injunction by consent of all the parties to the proceedings, whether
19
or not the court is satisfied that the person has engaged, or is
20
proposing to engage, in conduct of a kind referred to in
21
subsection (1).
22
(3) The court may, if the court considers it appropriate, grant an
23
interim injunction pending determination of an application under
24
subsection (1).
25
(4) The court may revoke or vary an injunction granted under
26
subsection (1) or (3).
27
(5) The power of the court to grant an injunction restraining a person
28
from engaging in conduct may be exercised:
29
(a) whether or not it appears to the court that the person intends
30
to engage again, or to continue to engage, in conduct of that
31
kind; and
32
Chapter 4 Remed ies
Part 4-2 Po wer o f the court to grant remed ies
Division 2 Power of the court to grant remedies
Section 178
188 National Consumer Credit Protection Bill 2009 No. , 2009
(b) whether or not the person has previously engaged in conduct
1
of that kind; and
2
(c) whether or not there is an imminent danger of substantial
3
damage to another person if the person engages in conduct of
4
that kind.
5
(6) The power of the court to grant an injunction requiring a person to
6
do an act or thing may be exercised:
7
(a) whether or not it appears to the court that the person intends
8
to refuse or fail again, or to continue to refuse or fail, to do
9
that act or thing; and
10
(b) whether or not the person has previously refused or failed to
11
do that act or thing; and
12
(c) whether or not there is an imminent danger of substantial
13
damage to another person if the person refuses or fails to do
14
that act or thing.
15
(7) If ASIC applies to the court for the grant of an injunction under
16
this section, the court must not require ASIC or another person, as
17
a condition of granting an interim injunction, to give an
18
undertaking as to damages.
19
(8) If the court has power under this section to grant an injunction
20
against a person, the court may, either in addition to or in
21
substitution for the grant of the injunction, order the person to pay
22
damages to another person.
23
178 Compensation orders
24
Court may order person to pay compensation
25
(1) The court may order a person (the defendant) to compensate
26
another person (the plaintiff) for loss or damage suffered by the
27
plaintiff if:
28
(a) the defendant has contravened a civil penalty provision or has
29
committed an offence against this Act (other than the
30
National Credit Code); and
31
(b) the loss or damage resulted from the contravention or
32
commission of the offence.
33
The order must specify the amount of compensation.
34
Remedies Chapter 4
Power o f the court to grant remed ies Part 4-2
Power o f the court to grant remed ies Division 2
Section 179
National Consumer Credit Protection Bill 2009 No. , 2009 189
When order may be made
1
(2) The court may make the order only if:
2
(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an
3
order under this section; and
4
(b) the application is made within 6 years of the day the cause of
5
action that relates to the contravention or commission of the
6
offence accrued.
7
Applications for order
8
(3) For the purposes of paragraph (2)(a), ASIC may make an
9
application on behalf of the plaintiff, but only if the plaintiff has
10
given consent in writing before the application is made.
11
Recovery of compensation as a debt
12
(4) If the court makes the order, the amount of compensation specified
13
in the order that is to be paid to the plaintiff may be recovered as a
14
debt due to the plaintiff.
15
179 Other orders to compensate loss or damage
16
Court may make other orders to compensate loss or damage
17
(1) If:
18
(a) a person (the defendant) has contravened a civil penalty
19
provision or has committed an offence against this Act (other
20
than the National Credit Code); and
21
(b) another person (the plaintiff) has suffered, or is likely to
22
suffer, loss or damage as a result of the contravention or
23
commission of the offence;
24
the court may make such order as the court considers appropriate
25
against the defendant to:
26
(c) compensate the plaintiff, in whole or in part, for the loss or
27
damage; or
28
(d) prevent or reduce the loss or damage suffered, or likely to be
29
suffered, by the plaintiff.
30
Chapter 4 Remed ies
Part 4-2 Po wer o f the court to grant remed ies
Division 2 Power of the court to grant remedies
Section 179
190 National Consumer Credit Protection Bill 2009 No. , 2009
(2) Without limiting subsection (1), examples of orders the court may
1
make include:
2
(a) an order declaring the whole or any part of a contract, deed or
3
arrangement made between the defendant and the plaintiff to
4
be void and, if the court considers it appropriate, to have been
5
void from the time it was entered or at all times on and after a
6
specified day before the order is made; and
7
(b) an order varying such a contract, deed or arrangement in such
8
manner as is specified in the order and, if the court considers
9
it appropriate, declaring the contract, deed or arrangement to
10
have had effect as so varied on and after a specified day
11
before the order is made; and
12
(c) an order refusing to enforce any or all of the terms of such a
13
contract, deed or arrangement; and
14
(d) an order directing the defendant to refund money or return
15
property to the plaintiff; and
16
(e) an order directing the defendant to pay to the plaintiff the
17
amount of loss or damage the plaintiff suffered; and
18
(f) an order directing the defendant, at the defendant's own
19
expense, to supply specified services to the plaintiff.
20
When order may be made
21
(3) The court may make the order only if:
22
(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an
23
order under this section; and
24
(b) the application is made within 6 years of the day the cause of
25
action that relates to the contravention or commission of the
26
offence accrued.
27
Applications for order
28
(4) For the purposes of paragraph (3)(a), ASIC may make an
29
application on behalf of the plaintiff, but only if the plaintiff has
30
given consent in writing before the application is made.
31
Remedies Chapter 4
Power o f the court to grant remed ies Part 4-2
Power o f the court to grant remed ies Division 2
Section 180
National Consumer Credit Protection Bill 2009 No. , 2009 191
Recovery of amount as a debt
1
(5) If the court makes an order that the defendant pay an amount
2
specified in the order to the plaintiff, the plaintiff may recover the
3
amount as a debt due to the plaintiff.
4
180 Orde rs in relation to unlawful credit activities
5
Court may make orders in relation to unlawful credit activities
6
(1) If:
7
(a) a person (the defendant) engages in a credit activity in
8
relation to another person (the plaintiff); and
9
(b) the engaging in the activity contravenes section 29 (which
10
requires the holding of licence);
11
the court may make such order as the court considers appropriate
12
against the defendant:
13
(c) to prevent the defendant from profiting from the plaintiff by
14
engaging in that activity; or
15
(d) to compensate the plaintiff, in whole or in part, for any loss
16
or damage suffered as a result of the defendant engaging in
17
that activity; or
18
(e) to prevent or reduce the loss or damage suffered, or likely to
19
be suffered, by the plaintiff as a result of the defendant
20
engaging in that activity.
21
(2) Without limiting subsection (1), examples of orders the court may
22
make include:
23
(a) an order declaring the whole or any part of a contract, deed or
24
arrangement made between the defendant and the plaintiff to
25
be void and, if the court considers it appropriate, to have been
26
void from the time it was entered or at all times on and after a
27
specified day before the order is made; and
28
(b) an order varying such a contract, deed or arrangement in such
29
manner as is specified in the order and, if the court considers
30
it appropriate, declaring the contract, deed or arrangement to
31
have had effect as so varied on and after a specified day
32
before the order is made; and
33
Chapter 4 Remed ies
Part 4-2 Po wer o f the court to grant remed ies
Division 2 Power of the court to grant remedies
Section 181
192 National Consumer Credit Protection Bill 2009 No. , 2009
(c) an order refusing to enforce any or all of the terms of such a
1
contract, deed or arrangement; and
2
(d) an order directing the defendant to refund money or return
3
property to the plaintiff; and
4
(e) an order directing the defendant to pay to the plaintiff the
5
amount of loss or damage the plaintiff suffered; and
6
(f) an order directing the defendant, at the defendant's own
7
expense, to supply specified services to the plaintiff.
8
When order may be made
9
(3) The court may make the order only if:
10
(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an
11
order under this section; and
12
(b) the application is made within 6 years of the day the cause of
13
action that relates to the contravention or commission of the
14
offence accrued.
15
Applications for order
16
(4) For the purposes of paragraph (3)(a), ASIC may make an
17
application on behalf of the plaintiff, but only if the plaintiff has
18
given consent in writing before the application is made.
19
Recovery of amount as a debt
20
(5) If the court makes an order that the defendant pay an amount
21
specified in the order to the plaintiff, the plaintiff may recover the
22
amount as a debt due to the plaintiff.
23
181 Preference must be given to compe nsate consumers
24
If the court considers that:
25
(a) it is appropriate to make a pecuniary penalty order against a
26
person in relation to a contravention of a civil penalty
27
provision or impose a fine against a person in relation to a
28
commission of an offence against this Act (other than the
29
National Credit Code); and
30
Remedies Chapter 4
Power o f the court to grant remed ies Part 4-2
Power o f the court to grant remed ies Division 2
Section 182
National Consumer Credit Protection Bill 2009 No. , 2009 193
(b) it is appropriate to make an order under 178, 179 or 180 that
1
the person pay compensation to a consumer who has suffered
2
loss or damage in relation to the contravention; and
3
(c) the person does not have sufficient financial resources to pay
4
both the pecuniary penalty or fine and the compensation;
5
the court must give preference to making the order for
6
compensation.
7
182 Adve rse publicity orders
8
(1) The court may, on application by ASIC, make an adverse publicity
9
order against a person who has:
10
(a) contravened a civil penalty provision; or
11
(b) committed an offence against this Act.
12
(2) An adverse publicity order is an order that:
13
(a) requires a person to disclose, in the way and to the persons
14
specified in the order, such information as is so specified,
15
being information that the person has possession of or access
16
to; or
17
(b) requires a person to publish, at the person's expense and in
18
the way specified in the order, an advertisement in the terms
19
specified in, or determined in accordance with, the order.
20
(3) The court may make the order only if:
21
(a) ASIC applies for an order under this section; and
22
(b) the application is made within 6 years of the contravention or
23
the commission of the offence.
24
183 Relief from liability for contravention of civil penalty provision
25
(1) If:
26
(a) proceedings for a contravention of a civil penalty provision
27
are brought against a person; and
28
(b) in the proceedings it appears to the court that the person has,
29
or may have, contravened a civil penalty provision but that:
30
(i) the person has acted honestly; and
31
(ii) having regard to all the circumstances of the case, the
32
person ought fairly to be excused for the contravention;
33
Chapter 4 Remed ies
Part 4-2 Po wer o f the court to grant remed ies
Division 2 Power of the court to grant remedies
Section 184
194 National Consumer Credit Protection Bill 2009 No. , 2009
the court may relieve the person either wholly or partly from a
1
liability to which the person would otherwise be subject, or that
2
might otherwise be imposed on the person, because of the
3
contravention.
4
(2) If a person considers that proceedings for a contravention of a civil
5
penalty provision will or may be brought against the person, the
6
person may apply to the court for relief.
7
(3) On an application under subsection (2), the court may grant relief
8
under subsection (1) as if the proceedings had been begun in the
9
court.
10
184 Multiple remedies may be granted
11
To avoid doubt, the court may make an order under a provision of
12
this Act in addition to one or more orders under another provision
13
of this Act.
14
15
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Introduction Division 1
Section 185
National Consumer Credit Protection Bill 2009 No. , 2009 195
Part 4-3--Jurisdiction and procedure of courts
1
Division 1--Introduction
2
185 Guide to this Part
3
This Part is about court jurisdiction and procedure.
4
Division 2 deals with civil proceedings. It confers jurisdiction on
5
the Federal Court, the Federal Magistrates Court and State and
6
Territory courts, subject to specified limits. It also contains rules
7
about the transfer of civil proceedings between courts and other
8
matters (such as when proceedings may be dealt with as small
9
claims proceedings and when adverse cost orders can be made).
10
Division 3 deals with criminal proceedings. It confers criminal
11
jurisdiction on the State and Territory courts and sets out the laws
12
that are to be applied in relation to criminal proceedings.
13
Division 4 contains rules about proceedings generally (such as
14
ASIC's power to intervene in proceedings and the power of courts
15
to punish for contempt).
16
17
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 2 Civil p roceedings
Section 186
196 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Civil proceedings
1
Subdivision A--Application of this Division
2
186 Application of this Division
3
(1) This Division applies to the exclusion of:
4
(a) the Jurisdiction of Courts (Cross-vesting) Act 1987; and
5
(b) section 39B of the Judiciary Act 1903.
6
(2) This Division does not limit the application of the provisions of the
7
Judiciary Act 1903 (other than section 39B). In particular, it does
8
not limit the application of subsection 39(2) of that Act in relation
9
to matters arising under this Act.
10
(3) Nothing in this Division affects any other jurisdiction of any court.
11
(4) Despite anything else in this Division, jurisdiction is conferred on
12
the courts of a Territory only to the extent that the Constitution
13
permits.
14
Subdivision B--Conferral of civil jurisdiction
15
187 Civil jurisdiction of courts
16
(1) Jurisdiction is conferred on a court referred to in an item in the
17
following table in relation to civil matters arising under this Act,
18
subject to the limits on the court's jurisdiction (if any) specified in
19
the item:
20
21
Civil jurisdiction of courts
Item
Court on which civil jurisdiction is
conferred
Limits of jurisdiction
1
The Federal Court
No specified limits.
2
The Federal Mag istrates Court
The court does not have jurisdiction
to award an amount for loss or
damage that exceeds:
(a) $750,000; or
(b) if another amount is prescribed
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Civil proceedings Division 2
Section 188
National Consumer Credit Protection Bill 2009 No. , 2009 197
Civil jurisdiction of courts
Item
Court on which civil jurisdiction is
conferred
Limits of jurisdiction
by the regulations--that other
amount.
3
A superior court, or lo wer court, of a
State or Territory
The court's general jurisdictional
limits, including limits as to locality
and subject matter.
(2) This section has effect subject to section 188.
1
188 Jurisdiction--decisions to prosecute and related criminal justice
2
process decisions made by Commonwealth officers
3
(1) If a decision to prosecute a person for an offence against this Act
4
has been made by an officer of the Commonwealth, and the
5
prosecution is proposed to be brought in a court of a State or
6
Territory:
7
(a) the Federal Court does not have jurisdiction in relation to any
8
matter in which a person seeks a writ of mandamus or
9
prohibition, or an injunction, against the officer in relation to
10
that decision; and
11
(b) jurisdiction in relation to any such matter is conferred on the
12
Supreme Court of the State or Territory in which the
13
prosecution is proposed to be brought.
14
(2) Subject to subsection (4), at any time when:
15
(a) a prosecution for an offence against this Act is before a court
16
of a State or Territory; or
17
(b) an appeal arising out of such a prosecution is before a court
18
of a State or Territory;
19
the following apply:
20
(c) the Federal Court does not have jurisdiction in relation to any
21
matter in which the person who is or was the defendant in the
22
prosecution seeks a writ of mandamus or prohibition, or an
23
injunction, against an officer of the Commonwealth in
24
relation to a related criminal justice process decision;
25
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 2 Civil p roceedings
Section 188
198 National Consumer Credit Protection Bill 2009 No. , 2009
(d) jurisdiction in relation to any such matter is conferred on the
1
Supreme Court of the State or Territory in which the
2
prosecution or appeal is before a court.
3
(3) A related criminal justice process decision, in relation to an
4
offence, means a decision (other than a decision to prosecute)
5
made in the criminal justice process in relation to the offence,
6
including:
7
(a) a decision in connection with the investigation, committal for
8
trial or prosecution of the defendant; and
9
(b) a decision in connection with the appointment of
10
investigators or inspectors for the purposes of such an
11
investigation; and
12
(c) a decision in connection with the issue of a warrant,
13
including a search warrant or a seizure warrant; and
14
(d) a decision requiring the production of documents, the giving
15
of information or the summoning of persons as witnesses;
16
and
17
(e) a decision in connection with an appeal arising out of the
18
prosecution.
19
(4) Subsection (2) does not apply if a person has applied for a writ of
20
mandamus or prohibition, or an injunction, against an officer of the
21
Commonwealth in relation to a related criminal justice process
22
decision before the commencement of a prosecution for an offence
23
against a law of the Commonwealth, or of a State or a Territory.
24
(5) If subsection (4) applies, the prosecutor may apply to the court for
25
a permanent stay of the proceedings referred to in that subsection
26
and the court may grant such a stay if the court determines that:
27
(a) the matters that are the subject of the proceedings are more
28
appropriately dealt with in the criminal justice process; and
29
(b) a stay of proceedings will not substantially prejudice the
30
person.
31
(6) Subsections (1), (2), (4) and (5) have effect despite anything in this
32
Act or in any other law. In particular:
33
(a) neither this Act, nor any other law, has the effect of giving
34
the Federal Court jurisdiction contrary to subsection (1) or
35
(2); and
36
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Civil proceedings Division 2
Section 189
National Consumer Credit Protection Bill 2009 No. , 2009 199
(b) neither section 9 of the Administrative Decisions (Judicial
1
Review) Act 1977, nor any other law, has the effect of
2
removing from the Supreme Court of a State or Territory the
3
jurisdiction given to that court by subsection (1) or (2).
4
189 Cross-jurisdictional appeals
5
The following table has effect:
6
7
Cross-jurisdictional appeals
Item
Despite any other law of the
Commonwealth, an appeal in
relation to a matter arising under
this Act does not lie from a
decision of ...
to any of the following courts:
1
the Federal Court
(a) a court of a State;
(b) a court of a Territory;
(c) the Federal Magistrates Court.
2
the Federal Magistrates Court
(a) a court of a State;
(b) a court of a Territory.
3
a court of a State
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) a court of another State;
(d) a court of a Territory.
4
a court of the Australian Capital
Territory
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) a court of a State;
(d) a court of another Territory.
5
a court of the Northern Territory
(a) the Federal Court;
(b) the Federal Magistrates Court;
(c) a court of a State;
(d) a court of another Territory.
190 Courts to act in aid of each othe r
8
All of the following must severally act in aid of, and be auxiliary
9
to, each other in civil matters arising under this Act:
10
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 2 Civil p roceedings
Section 191
200 National Consumer Credit Protection Bill 2009 No. , 2009
(a) courts on which jurisdiction is conferred under this Division;
1
(b) officers of, or under the control of, those courts.
2
Subdivision C--Transfers between courts
3
191 Transfers--application of Subdivision
4
Scope of Subdivision
5
(1) This Subdivision applies if all the following conditions are
6
satisfied:
7
(a) proceedings in relation to a civil matter arising under this Act
8
are pending, or have come, before a court (the transferring
9
court) on which jurisdiction is conferred under this Division
10
in relation to the matter;
11
(b) jurisdiction is also conferred on another court (the receiving
12
court) under this Division in relation to either of the
13
following (the transfer matter):
14
(i) the entire proceedings;
15
(ii) an application in the proceedings;
16
(c) the receiving court has the power to grant the remedies
17
sought before the transferring court in relation to the transfer
18
matter.
19
Transfers to which other legislation applies
20
(2) This Subdivision does not apply to a transfer between the Federal
21
Court and the Federal Magistrates Court, except as provided by
22
paragraph 192(2)(b).
23
Note 1:
Paragraph 192(2)(b) gives the Federal Magistrates Court the power to
24
transfer a matter to the Federal Court with a recommendation that the
25
Federal Court transfer the matter to another superior court.
26
Note 2:
Transfers from the Federal Court are covered by section 32AB of the
27
Federal Court of Australia Act 1976 and transfers from the Federal
28
Magistrates Court are covered by section 39 of the Federal
29
Magistrates Act 1999.
30
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Civil proceedings Division 2
Section 192
National Consumer Credit Protection Bill 2009 No. , 2009 201
192 Transfers--exercise of transfer powe r
1
General rule
2
(1) If section 193 (which deals with the criteria for transfers) is
3
satisfied, the transferring court may transfer to the receiving court:
4
(a) the transfer matter; and
5
(b) if the transferring court considers it necessary or
6
convenient--any related application (or all related
7
applications) in the proceedings.
8
Cross-jurisdictional transfers between lower courts and superior
9
courts
10
(2) However, if the transferring court is a lower court, and the
11
transferring court considers that section 193 is satisfied in relation
12
to the transfer of a matter referred to in subsection (1) of this
13
section to a receiving court that is a superior court other than the
14
relevant superior court:
15
(a) the transferring court does not have the power to transfer the
16
matter to that receiving court; but
17
(b) the transferring court may:
18
(i) transfer the matter to the relevant superior court; and
19
(ii) give the relevant superior court a recommendation that
20
the matter be transferred to that receiving court by the
21
relevant superior court.
22
193 Transfers--criteria for transfer
23
General
24
(1) The transferring court may make a transfer under section 192 only
25
if it appears to the transferring court, taking into account the
26
considerations covered by subsection (2) of this section, that:
27
(a) the transfer matter arises out of, or is related to, other
28
proceedings pending, or that have come, before the receiving
29
court; or
30
(b) it is otherwise in the interests of justice that the transfer
31
matter be determined by the receiving court.
32
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 2 Civil p roceedings
Section 194
202 National Consumer Credit Protection Bill 2009 No. , 2009
Relevant considerations
1
(2) The considerations covered by this subsection include the
2
following:
3
(a) the principal location, or place of business, of the parties in
4
relation to the transfer matter;
5
(b) where the event (or events) that are the subject of the transfer
6
matter took place;
7
(c) if the transfer matter involves secured real property--the
8
jurisdiction in which the real property is located;
9
(d) the desirability of related proceedings being heard in the
10
same State or Territory;
11
(e) any relevant recommendation received under subsection
12
192(2);
13
(f) the suitability (taking into account the considerations referred
14
to in paragraphs (a) to (e) and any other consideration) of
15
having the transfer matter determined by the receiving court.
16
194 Transfers--how initiated
17
A court may make a transfer under section 192:
18
(a) on the application of a party made at any stage; or
19
(b) at the court's own initiative.
20
195 Transfers--documents and procedure
21
If the transferring court transfers proceedings or an application to
22
the receiving court under section 192:
23
(a) the Registrar (or other proper officer) of the transferring court
24
must give the Registrar (or other proper officer) of the
25
receiving court all documents filed in the transferring court in
26
relation to the proceedings or application; and
27
(b) the receiving court must proceed as if:
28
(i) the proceedings or application had been originally
29
brought or made in the receiving court; and
30
(ii) the same proceedings had been taken in the receiving
31
court as were taken in the transferring court.
32
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Civil proceedings Division 2
Section 196
National Consumer Credit Protection Bill 2009 No. , 2009 203
196 Transfers--conduct of proceedings
1
(1) Subject to any applicable rules of court, in dealing with the transfer
2
matter transferred to the court under section 192, the receiving
3
court must apply rules of evidence and procedure that:
4
(a) are applied in any superior court; and
5
(b) the court considers appropriate to be applied in the
6
circumstances.
7
(2) If proceedings are transferred under section 192 from the
8
transferring court to the receiving court, the receiving court must
9
deal with the proceedings as if, subject to any order of the
10
transferring court, the steps that had been taken for the purposes of
11
the proceedings in the transferring court (including the making of
12
an order), or similar steps, had been taken in the receiving court.
13
197 Transfers--entitle ment to practise as a lawyer
14
(1) If proceedings (the transferred proceedings) in the transferring
15
court are transferred to the receiving court under section 192, a
16
person who is entitled to practise as a lawyer (however described)
17
in the transferring court has the same entitlements to practise in
18
relation to the matters covered by subsection (2) in the receiving
19
court that the person would have if the receiving court were a
20
federal court exercising federal jurisdiction.
21
(2) This subsection covers the following matters:
22
(a) the transferred proceedings;
23
(b) any other proceedings out of which the transferred
24
proceedings arise or to which the transferred proceedings are
25
related, if the other proceedings are to be determined together
26
with the transferred proceedings.
27
198 Transfers--limitation on appeals
28
An appeal does not lie from a decision of a court:
29
(a) in relation to the transfer of proceedings under section 192;
30
or
31
(b) as to which rules of evidence and procedure are to be applied
32
under subsection 196(1).
33
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 2 Civil p roceedings
Section 199
204 National Consumer Credit Protection Bill 2009 No. , 2009
Subdivision D--Other matters
1
199 Plaintiffs may choose small claims procedure
2
Application for small claims procedure
3
(1) Proceedings are to be dealt with as small claims proceedings under
4
this section if:
5
(a) a person applies to a magistrates court, local court or the
6
Federal Magistrates Court for an order covered by
7
subsection (2); and
8
(b) the person indicates, in the manner (if any) prescribed by the
9
regulations or by the rules of the court, that the person wants
10
the small claims procedure to apply to the proceedings.
11
Orders for which small claims procedure triggered
12
(2) The following table sets out when an order is covered by this
13
subsection:
14
15
Orders for which small claims procedure triggered
Item
An order is covered by this
subsection if it is made under ...
but only if (if applicable) ...
1
Section 178
the order is for an amount that is not
more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
2
Section 37 of the National Credit
Code
the value of the credit contract,
mortgage, guarantee or consumer
lease to which the order relates is
not more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
3
Subsection 38(7) of the National
the value of the credit contract,
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Civil proceedings Division 2
Section 199
National Consumer Credit Protection Bill 2009 No. , 2009 205
Orders for which small claims procedure triggered
Item
An order is covered by this
subsection if it is made under ...
but only if (if applicable) ...
Cred it Code
mortgage, guarantee or consumer
lease to which the order relates is
not more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
4
Section 74 of the National Credit
Code
not applicable.
5
Section 75 of the National Credit
Code
not applicable.
6
Section 76 of the National Credit
Code
the value of the credit contract,
mortgage, guarantee or consumer
lease to which the order relates is
not more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
7
Section 78 of the National Credit
Code
the value of the credit contract,
mortgage, guarantee or consumer
lease to which the order relates is
not more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
8
Section 96 of the National Credit
Code
not applicable.
9
Section 101 of the National Cred it
Code
the value of the credit contract,
mortgage, guarantee or consumer
lease to which the order relates is
not more than:
(a) $40,000; or
(b) if a higher amount is prescribed
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 2 Civil p roceedings
Section 199
206 National Consumer Credit Protection Bill 2009 No. , 2009
Orders for which small claims procedure triggered
Item
An order is covered by this
subsection if it is made under ...
but only if (if applicable) ...
by the regulations--that higher
amount.
10
Section 106 of the National Cred it
Code
the order is for an amount that is not
more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
11
Subsection 107(3) of the National
Cred it Code
the order is for an amount that is not
more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
12
Section 108 of the National Cred it
Code
the value of the credit contract,
mortgage, guarantee or consumer
lease to which the order relates is
not more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
13
Section 118 of the National Cred it
Code
the order is for an amount that is not
more than:
(a) $40,000; or
(b) if a higher amount is prescribed
by the regulations--that higher
amount.
(3) The value of a credit contract, mortgage, guarantee or consumer
1
lease is:
2
(a) worked out in accordance with the regulations; or
3
(b) if there are no regulations in force for the purposes of
4
paragraph (a):
5
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Civil proceedings Division 2
Section 199
National Consumer Credit Protection Bill 2009 No. , 2009 207
(i) for a credit contract--the amount of credit that has been,
1
or may be, provided under the contract; and
2
(ii) for a mortgage--the amount of credit that has been, or
3
may be, provided under the credit contract to which the
4
mortgage relates; and
5
(iii) for a guarantee--the amount of credit that has been, or
6
may be, provided under the credit contract to which the
7
guarantee relates; and
8
(iv) for a consumer lease--the amount payable under the
9
consumer lease, as referred to in paragraph 170(1)(b) of
10
the National Credit Code.
11
Court may make ancillary or consequential orders
12
(4) To avoid doubt, the court may make any ancillary or consequential
13
orders it considers appropriate in relation to the orders made under
14
the provisions referred to in subsection (2). The limits referred to in
15
column 3 of the table do not apply to those ancillary or
16
consequential orders.
17
Procedure
18
(5) In small claims proceedings, the court is not bound by any rules of
19
evidence and procedure and may act:
20
(a) in an informal manner; and
21
(b) without regard to legal forms and technicalities.
22
(6) At any stage of the small claims proceedings, the court may amend
23
the papers commencing the proceedings if sufficient notice is given
24
to any party adversely affected by the amendment.
25
Legal representation
26
(7) A party to small claims proceedings may be represented in the
27
proceedings by a lawyer only with the leave of the court.
28
(8) If the court grants leave for a party to the proceedings to be
29
represented by a lawyer, the court may, if it considers appropriate,
30
do so subject to conditions designed to ensure that no other party is
31
unfairly disadvantaged.
32
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 2 Civil p roceedings
Section 200
208 National Consumer Credit Protection Bill 2009 No. , 2009
(9) For the purposes of this section, a person is taken not to be
1
represented by a lawyer if the lawyer is an employee or officer of
2
the person.
3
200 Costs only if proceedings brought vexatiously etc.
4
(1) In proceedings that:
5
(a) are dealt with as small claims proceedings (see section 199);
6
or
7
(b) relate to section 74 or 96 of the National Credit Code (which
8
deal with hardship and postponement orders);
9
a party to the proceedings may be ordered by the court to pay costs
10
incurred by another party to the proceedings only in accordance
11
with subsection (2).
12
(2) The party may be ordered to pay the costs only if:
13
(a) the court is satisfied that the party brought the proceedings
14
vexatiously or without reasonable cause; or
15
(b) the court is satisfied that the party's unreasonable act or
16
omission caused the other party to incur the costs.
17
201 Civil proceedings not to be stayed
18
No civil proceedings under this Act are to be stayed merely
19
because the proceedings disclose, or arise out of, the commission
20
of an offence.
21
202 Standard of proof in civil proceedings
22
If, in proceedings (other than proceedings for an offence), it is
23
necessary to establish, or for the court to be satisfied, for any
24
purpose relating to a matter arising under this Act, that:
25
(a) a person has contravened a provision of this Act; or
26
(b) default has been made in complying with a provision of this
27
Act; or
28
(c) an act or omission was unlawful because of a provision of
29
this Act; or
30
(d) a person has been in any way, by act or omission, directly or
31
indirectly, knowingly concerned in or party to a
32
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Civil proceedings Division 2
Section 202
National Consumer Credit Protection Bill 2009 No. , 2009 209
contravention, or a default in complying with, a provision of
1
this Act;
2
it is sufficient if the matter referred to in paragraph (a), (b), (c) or
3
(d) is established, or the court is so satisfied on the balance of
4
probabilities.
5
6
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 3 Criminal proceedings
Section 203
210 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Criminal proceedings
1
Subdivision A--Application of this Division
2
203 Application of this Division
3
(1) This Division applies to the exclusion of sections 68, 70 and 70A
4
of the Judiciary Act 1903.
5
(2) However, this Division does not limit the application of the
6
provisions of the Judiciary Act 1903 (other than sections 68, 70
7
and 70A). In particular, it does not limit the application of
8
subsection 39(2) of that Act in relation to criminal matters arising
9
under this Act.
10
(3) Despite anything else in this Division, jurisdiction is conferred on
11
the courts of a Territory only to the extent that the Constitution
12
permits.
13
Subdivision B--Conferral of criminal jurisdiction
14
204 Criminal jurisdiction of courts
15
Cross-vesting of criminal jurisdiction of courts
16
(1) Subject to this section, if a court of a State or Territory exercises
17
jurisdiction in relation to a matter covered by subsection (2) in
18
relation to offenders or persons (State offenders) charged with
19
offences against the laws of the State or Territory, the court has the
20
equivalent jurisdiction in relation to offenders or persons charged
21
with offences against this Act.
22
(2) The matters covered by this subsection are as follows:
23
(a) the summary conviction of State offenders;
24
(b) their examination and commitment for trial on indictment;
25
(c) their trial and conviction on indictment;
26
(d) their sentencing, punishment and release;
27
(e) the liability to make reparation in connection with their
28
offences;
29
(f) the forfeiture of property in connection with their offences;
30
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Criminal proceedings Division 3
Section 204
National Consumer Credit Protection Bill 2009 No. , 2009 211
(g) the proceeds of their crimes;
1
(h) the hearing and determination of:
2
(i) proceedings connected with; or
3
(ii) appeals arising out of; or
4
(iii) appeals arising out of proceedings connected with;
5
any trial or conviction referred to in paragraph (a), (b) or (c),
6
or any matter of a kind referred to in paragraph (d), (e), (f) or
7
(g).
8
Certain aspects of jurisdiction to be exercised only by magistrate
9
(3) Only a magistrate may exercise the jurisdiction conferred by
10
subsection (1) in relation to the summary conviction, or
11
examination and commitment for trial, of any person.
12
Person who pleads guilty to an indictable offence may be
13
sentenced or otherwise dealt with without trial
14
(4) The jurisdiction conferred by subsection (1) includes jurisdiction in
15
accordance with provisions of a relevant criminal law of a State or
16
Territory, and:
17
(a) the reference in paragraph (2)(h) to "any trial or conviction"
18
includes a reference to any conviction or sentencing in
19
accordance with the provisions of a relevant criminal law;
20
and
21
(b) unless the contrary intention appears, a reference to
22
jurisdiction conferred by subsection (1) includes a reference
23
to such included jurisdiction.
24
(5) Relevant criminal law means a law providing that if, in
25
proceedings before a court, a person pleads guilty to a charge for
26
which the person could be prosecuted on indictment, the person
27
may be committed, to a court having jurisdiction to try offences on
28
indictment, to be sentenced or otherwise dealt with without being
29
tried in that last-mentioned court.
30
(6) A person may be dealt with in accordance with a relevant criminal
31
law even if, apart from this section, the offence concerned:
32
(a) would be required to be prosecuted on indictment; or
33
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 3 Criminal proceedings
Section 204
212 National Consumer Credit Protection Bill 2009 No. , 2009
(b) would be required to be prosecuted either summarily or on
1
indictment.
2
(7) For the purposes of the application of a relevant criminal law as
3
provided by subsection (4):
4
(a) a reference in that law to an indictable offence is taken to
5
include a reference to an offence that may be prosecuted on
6
indictment; and
7
(b) in order to determine the sentence that may be imposed on a
8
person by a court pursuant to the relevant criminal law, the
9
person is taken to have been prosecuted and convicted on
10
indictment in that court.
11
Jurisdiction in relation to summary offences is unlimited
12
(8) Subject to subsection (10), the jurisdiction conferred on a court of a
13
State or Territory by subsection (1) is conferred despite any limits
14
as to locality of the jurisdiction of that court under the law of that
15
State or Territory.
16
Court may decline to exercise jurisdiction in relation to summary
17
offences
18
(9) If:
19
(a) jurisdiction is conferred on a court of a State or Territory in
20
relation to the summary conviction of persons charged with
21
offences against this Act by subsection (1); and
22
(b) the court is satisfied that it is appropriate to do so, having
23
regard to all the circumstances (including the public interest);
24
the court may decline to exercise that jurisdiction in relation to an
25
offence committed in another State or Territory.
26
Limits on jurisdiction in relation to indictable offences
27
(10) The jurisdiction conferred on a court of a State or Territory by
28
subsection (1) in relation to:
29
(a) the examination and commitment for trial on indictment; and
30
(b) the trial and conviction on indictment;
31
of offenders or persons charged with offences against this Act is
32
conferred only in relation to:
33
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Criminal proceedings Division 3
Section 205
National Consumer Credit Protection Bill 2009 No. , 2009 213
(c) offences committed outside Australia (not including the
1
coastal sea); and
2
(d) offences committed, begun or completed in the State or the
3
Territory concerned.
4
205 Criminal proceedings--laws to be applied
5
Laws to be applied
6
(1) Subject to this Division, the laws of a State or Territory in relation
7
to:
8
(a) the arrest and custody in the State or Territory of offenders or
9
persons charged with offences; and
10
(b) criminal procedure in the State or Territory in relation to such
11
persons; and
12
(c) the rules of evidence applied in criminal procedure in the
13
State or Territory in relation to such persons;
14
apply in the State or Territory, so far as they are applicable, to
15
persons who are charged with offences against this Act.
16
Meaning of criminal procedure
17
(2) Criminal procedure means the procedure for:
18
(a) the summary conviction; and
19
(b) the examination and commitment for trial on indictment; and
20
(c) the trial and conviction on indictment; and
21
(d) the hearing and determination of appeals arising out of any
22
such trial or conviction or out of any related proceedings;
23
of offenders or persons charged with offences, and includes the
24
procedure for holding accused persons to bail.
25
206 Criminal proceedings--how taken
26
(1) In any proceedings for an offence against this Act, any
27
information, charge, complaint or application may be laid or made
28
by:
29
(a) ASIC; or
30
(b) a delegate of ASIC; or
31
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 3 Criminal proceedings
Section 207
214 National Consumer Credit Protection Bill 2009 No. , 2009
(c) another person authorised in writing by the Minister to bring
1
the proceedings.
2
(2) A delegation for the purposes of paragraph (1)(b), or an
3
authorisation for the purposes of paragraph (1)(c), may relate to all
4
offences, or to specified offences, against this Act.
5
(3) Nothing in this section affects the operation of the Director of
6
Public Prosecutions Act 1983.
7
207 Certain pe rsons to assist in prosecutions
8
(1) If a prosecution in relation to an offence against this Act has been
9
brought, or ASIC is of the opinion that a prosecution in relation to
10
an offence against this Act ought to be brought, against a person
11
(the defendant), ASIC may:
12
(a) if the defendant is a natural person--require any person who
13
is or was a partner, employee or agent of the defendant; or
14
(b) if the defendant is a body corporate--require any person who
15
is or was an officer (within the meaning of the Corporations
16
Act 2001), employee or agent of the defendant;
17
to assist in the prosecution, and the person who is so required must
18
give all assistance in connection with the prosecution that that
19
person is reasonably able to give.
20
(2) A person commits an offence if:
21
(a) the person is subject to a requirement under subsection (1);
22
and
23
(b) the person engages in conduct; and
24
(c) the conduct contravenes the requirement.
25
Penalty: 5 penalty units.
26
(3) Subsection (2) is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
(4) For the purposes of subsection (2), it is a defence if the person:
29
(a) is the defendant; or
30
(b) is or has been the defendant's lawyer.
31
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Criminal proceedings Division 3
Section 208
National Consumer Credit Protection Bill 2009 No. , 2009 215
Note:
A defendant bears an evidential burden in relation to the matter in
1
subsection (4) (see subsection 13.3(3) of the Criminal Code).
2
(5) If a person (other than the defendant or a person who is, or has
3
been, the defendant's lawyer) does not comply with a requirement
4
under subsection (1), the court may, on the application of ASIC,
5
order the person to comply with the requirement within such time,
6
and in such manner, as the court orders.
7
(6) If ASIC makes a requirement under subsection (1) in writing, the
8
requirement is not a legislative instrument.
9
208 Privilege against self-incrimination not available to bodies
10
corporate in criminal proceedings
11
(1) In proceedings in a court when exercising jurisdiction in relation to
12
a criminal matter arising under this Act, a body corporate is not
13
entitled to refuse or fail to comply with a requirement:
14
(a) to answer a question or give information; or
15
(b) to produce a book or any other thing; or
16
(c) to do any other act whatever;
17
on the ground that the answer or information, production of the
18
book or other thing, or doing that other act might tend:
19
(d) to incriminate the body (whether in relation to an offence to
20
which the proceedings relate or otherwise); or
21
(e) to make the body liable to a penalty (whether in relation to
22
anything to which the proceedings relate or otherwise).
23
(2) Subsection (1) applies whether or not the body concerned is a
24
defendant in the proceedings or in any other proceedings.
25
26
Chapter 4 Remed ies
Part 4-3 Jurisdiction and procedure of courts
Division 4 Proceedings generally
Section 209
216 National Consumer Credit Protection Bill 2009 No. , 2009
Division 4--Proceedings generally
1
209 ASIC's powe r to intervene in proceedings
2
(1) ASIC may intervene in any proceedings relating to a matter arising
3
under this Act.
4
(2) If ASIC intervenes in proceedings referred to in subsection (1),
5
ASIC is taken to be a party to the proceedings and, subject to this
6
Act, has all the rights, duties and liabilities of such a party.
7
(3) Without limiting subsection (2), ASIC may appear and be
8
represented in any proceedings in which it wishes to intervene
9
pursuant to subsection (1):
10
(a) by an ASIC staff member; or
11
(b) by a natural person to whom, or by an officer or employee of
12
a person or body to whom or to which, ASIC has delegated
13
its functions and powers under this Act or such of those
14
functions and powers as relate to a matter to which the
15
proceedings relate; or
16
(c) by a lawyer.
17
210 Evidence of contravention
18
For the purposes of this Act, a certificate that:
19
(a) purports to be signed by the Registrar or other proper officer
20
of an Australian court; and
21
(b) states:
22
(i) that a person was convicted by that court on a specified
23
day of a specified offence; or
24
(ii) that a person charged before that court with a specified
25
offence was, on a specified day, found in that court to
26
have committed the offence but that the court did not
27
proceed to convict the person of the offence;
28
is, unless it is proved that the conviction was quashed or set aside,
29
or that the finding was set aside or reversed, as the case may be,
30
conclusive evidence:
31
(c) if subparagraph (b)(i) applies--that the person was convicted
32
of the offence on that day; and
33
Remedies Chapter 4
Jurisdiction and procedure of courts Part 4-3
Proceedings generally Division 4
Section 211
National Consumer Credit Protection Bill 2009 No. , 2009 217
(d) if the offence was constituted by a contravention of a
1
provision of a law--that the person contravened that
2
provision.
3
211 Powe r of court to punish for contempt of court
4
Nothing in a provision of this Act that provides:
5
(a) that a person must not contravene an order of the court; or
6
(b) that a person who contravenes an order of the court
7
contravenes a provision of this Act or commits an offence;
8
affects the powers of the court in relation to the punishment of
9
contempts of the court.
10
11
Chapter 5 Ad min istration
Part 5-1 Registers relating to credit activities
Division 1 Introduction
Section 212
218 National Consumer Credit Protection Bill 2009 No. , 2009
Chapter 5--Administration
1
Part 5-1--Registers relating to credit activities
2
Division 1--Introduction
3
212 Guide to this Part
4
This Part is about registers relating to credit activities that must be
5
established and maintained by ASIC.
6
Division 2 requires ASIC to establish and maintain one or more
7
registers relating to credit activities. It also deals with how those
8
registers are to be maintained, and the inspection and public
9
availability of those registers.
10
11
Admin istration Chapter 5
Registers relating to credit activities Part 5-1
Registers relating to credit activities Division 2
Section 213
National Consumer Credit Protection Bill 2009 No. , 2009 219
Division 2--Registers relating to credit activities
1
213 Credit registers
2
ASIC must establish and maintain credit registers
3
(1) ASIC must establish and maintain one or more registers (the credit
4
registers) relating to credit activities.
5
How credit registers are to be maintained
6
(2) The regulations may prescribe the way in which the credit registers
7
must be established or maintained, including the details that ASIC
8
must enter in the credit registers in relation to the following
9
persons:
10
(a) licensees;
11
(b) persons registered to engage in credit activities under the
12
Transitional Act;
13
(c) credit representatives of licensees or persons registered to
14
engage in credit activities under the Transitional Act;
15
(d) persons against whom a banning order or disqualification
16
order is made under Part 2-4;
17
(e) persons who are banned from engaging in a credit activity
18
under a law of a State or Territory;
19
(f) any other persons prescribed by the regulations.
20
(3) Without limiting subsection (2), the credit registers:
21
(a) may be maintained in an electronic form; and
22
(b) may be maintained as part of, or together with, any register in
23
relation to financial services maintained under section 922A
24
of the Corporations Act 2001.
25
Credit register is not a legislative instrument
26
(4) A credit register established under this section is not a legislative
27
instrument.
28
Chapter 5 Ad min istration
Part 5-1 Registers relating to credit activities
Division 2 Reg isters relating to credit activities
Section 214
220 National Consumer Credit Protection Bill 2009 No. , 2009
214 Inspection and public availability of credit registers
1
(1) A person may inspect the credit registers and may make copies of,
2
or take extracts from, them.
3
(2) ASIC may make the credit registers, or any part of them, available
4
to the public on its website or by other means.
5
(3) Any disclosure necessary for the purposes of this section is
6
authorised by this section.
7
8
Admin istration Chapter 5
Documents lodged with ASIC or required by this Act Part 5 -2
Introduction Division 1
Section 215
National Consumer Credit Protection Bill 2009 No. , 2009 221
Part 5-2--Documents lodged with ASIC or
1
required by this Act
2
Division 1--Introduction
3
215 Guide to this Part
4
This Part deals with the lodging of documents with ASIC. It also
5
has offences relating to making false statements in documents.
6
Division 2 deals with how documents are lodged with ASIC and
7
the approved forms in which the documents must be lodged. It also
8
deals with ASIC's power to refuse to receive documents (in which
9
case, the documents will not be treated as having been lodged with
10
ASIC).
11
Division 3 deals with ASIC's register of documents that have been
12
lodged with ASIC.
13
Division 4 has other provisions relating to documents (such as
14
offences for making false statements in documents lodged with
15
ASIC or required for the purposes of this Act).
16
17
Chapter 5 Ad min istration
Part 5-2 Documents lodged with ASIC o r required by this Act
Division 2 Lodg ment of documents with ASIC
Section 216
222 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Lodgment of documents with ASIC
1
216 When documents are lodged with ASIC
2
(1) A document is lodged with ASIC under this Act if the document:
3
(a) is transmitted to ASIC in an electronic format approved by
4
ASIC; or
5
(b) if ASIC approves another manner for the lodgment of a
6
document with ASIC--is given to ASIC in that manner.
7
(2) However, a document is not lodged with ASIC under this Act if
8
ASIC refuses to receive the document under subsection 218(1).
9
Note:
Subsection 232(3) provides for when a compliance certificate under
10
section 53 is taken not to be lodged with ASIC.
11
(3) If a document is lodged with ASIC, then any other material that is
12
lodged with the document as required by this Act or an approved
13
form is taken to be included in that document.
14
Note:
For example, this subsection means that a person will contravene
15
section 225 if the person makes a false or misleading statement in the
16
other material.
17
217 Approve d forms for documents to be lodged with ASIC
18
(1) A document that this Act requires to be lodged with ASIC in an
19
approved form must, if ASIC has approved a form for the
20
document:
21
(a) be in the approved form; and
22
(b) include the information, statements, explanations or other
23
matters required by the form; and
24
(c) be accompanied by any other material required by the form.
25
(2) If:
26
(a) this Act requires a document to be lodged with ASIC in an
27
approved form; and
28
(b) a provision of this Act either specifies, or provides for
29
regulations to prescribe, information, statements,
30
explanations or other matters that must be included in the
31
document, or other material that must accompany the
32
document;
33
Admin istration Chapter 5
Documents lodged with ASIC or required by this Act Part 5 -2
Lodg ment of documents with ASIC Division 2
Section 218
National Consumer Credit Protection Bill 2009 No. , 2009 223
that other provision is not taken to exclude or limit the operation of
1
subsection (1) in relation to the approved form (and so the
2
approved form may also require information etc. to be included in
3
the form or material to accompany the form).
4
218 ASIC may refuse to receive document etc.
5
ASIC may refuse to receive document etc.
6
(1) If ASIC considers that a document submitted to ASIC for lodgment
7
under this Act:
8
(a) contains matter contrary to law; or
9
(b) contains matter that, in a material particular, is false or
10
misleading in the form or context in which it is included; or
11
(c) is incomplete; or
12
(d) contravenes this Act; or
13
(e) contains an error, alteration or erasure;
14
ASIC may refuse to receive the document and may make a request
15
under subsection (2).
16
Note:
The effect of ASIC refusing to receive the document is that the
17
document is not lodged with ASIC (see subsection 216(2)).
18
(2) For the purposes of subsection (1), ASIC may request:
19
(a) that the document be appropriately amended or completed
20
and resubmitted; or
21
(b) that a fresh document be submitted in its place; or
22
(c) if the document is incomplete--that a supplementary
23
document in the approved form be lodged.
24
Notice to provide further document or information
25
(3) ASIC may give a written notice to a person who submits a
26
document (the first document) for lodgment under this Act,
27
requiring the person to:
28
(a) give to ASIC any other document; or
29
(b) give to ASIC any information;
30
that ASIC considers necessary in order to form an opinion as to
31
whether it may refuse to receive the first document.
32
Chapter 5 Ad min istration
Part 5-2 Documents lodged with ASIC o r required by this Act
Division 2 Lodg ment of documents with ASIC
Section 218
224 National Consumer Credit Protection Bill 2009 No. , 2009
Notice must specify day by which person must comply
1
(4) The notice must specify the day by which the person must comply
2
with the notice (which must be a reasonable period after the notice
3
is given). ASIC may extend the day by giving a written notice to
4
the person.
5
Requirement to comply with notice
6
(5) The person must comply with the notice within the time specified
7
in the notice.
8
Civil penalty:
2,000 penalty units.
9
Strict liability offence
10
(6) A person commits an offence if:
11
(a) the person is subject to a requirement under subsection (5);
12
and
13
(b) the person engages in conduct; and
14
(c) the conduct contravenes the requirement.
15
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
16
both.
17
(7) Subsection (6) is an offence of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
20
Admin istration Chapter 5
Documents lodged with ASIC or required by this Act Part 5 -2
ASIC's register of documents Division 3
Section 219
National Consumer Credit Protection Bill 2009 No. , 2009 225
Division 3--ASIC's register of documents
1
219 Register of documents lodged with ASIC
2
ASIC may maintain document registers
3
(1) ASIC may establish and maintain one or more registers (the
4
document registers) of documents that have been lodged with
5
ASIC under this Act.
6
How document registers to be maintained
7
(2) ASIC may establish and maintain the document registers in any
8
form it considers appropriate.
9
(3) Without limiting subsection (2), the document registers may be
10
maintained in an electronic form.
11
No entitlement to inspect document registers
12
(4) ASIC is not required to:
13
(a) permit persons to inspect the document registers, or make
14
copies of, or take extracts from, the document registers; or
15
(b) make any part of the document registers available to the
16
public.
17
Document register is not a legislative instrument
18
(5) A document register established under this section is not a
19
legislative instrument.
20
220 ASIC may require person to give information for document
21
registers
22
Notice to person to give information
23
(1) If information about a person is included on the document
24
registers, ASIC may, at any time, give the person a written notice
25
requiring the person to give to ASIC specified information about
26
the person, being information of the kind included on the document
27
registers.
28
Chapter 5 Ad min istration
Part 5-2 Documents lodged with ASIC o r required by this Act
Division 3 ASIC's register of documents
Section 221
226 National Consumer Credit Protection Bill 2009 No. , 2009
Notice must specify day by which person must comply
1
(2) The notice must specify the day by which the person must comply
2
with the notice (which must be a reasonable period after the notice
3
is given). ASIC may extend the day by giving a written notice to
4
the person.
5
Requirement to comply with notice
6
(3) The person must comply with the notice within the time specified
7
in the notice.
8
Civil penalty:
2,000 penalty units.
9
Strict liability offence
10
(4) A person commits an offence if:
11
(a) the person is subject to a requirement under subsection (3);
12
and
13
(b) the person engages in conduct; and
14
(c) the conduct contravenes the requirement.
15
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
16
both.
17
(5) Subsection (4) is an offence of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
221 Written docume nt setting out information from document
20
registers is prima facie evidence of matters
21
(1) ASIC may, by using a mechanical, electronic or other device for
22
processing data, prepare a written document that sets out
23
information obtained by ASIC from the document registers.
24
(2) In proceedings in a court, a written document that purports to be a
25
document prepared by ASIC under subsection (1) is admissible as
26
prima facie evidence of the matters in the document.
27
(3) A written document need not be certified by ASIC, or signed, in
28
order to be taken to purport to have been prepared by ASIC.
29
30
Admin istration Chapter 5
Documents lodged with ASIC or required by this Act Part 5 -2
Other provisions relating to documents lodged with ASIC or required under this Act
Division 4
Section 222
National Consumer Credit Protection Bill 2009 No. , 2009 227
Division 4--Other provisions relating to documents lodged
1
with ASIC or required under this Act
2
222 Certified copy or extract of document lodged with ASIC is
3
admissible in evidence
4
(1) In proceedings in a court, a copy of, or extract from, any document
5
lodged with ASIC under this Act, and certified by ASIC, is
6
admissible in evidence as of equal validity with the original
7
document.
8
(2) The reference in subsection (1) to a document includes, if a copy of
9
that document has been included in the document register by
10
ASIC, a reference to that copy.
11
223 ASIC may destroy or dispose of certain docume nts
12
ASIC may destroy or otherwise dispose of any document that is
13
lodged with ASIC under this Act if:
14
(a) ASIC considers that it is no longer necessary or desirable to
15
retain it; and
16
(b) either of the following apply:
17
(i) it has been in ASIC's possession for the period
18
prescribed by the regulations;
19
(ii) a copy of the document has been included in the
20
document register.
21
224 Court may order lodgment of document etc.
22
(1) If a person has failed to comply with:
23
(a) any provision of this Act that requires the lodgment of any
24
document with ASIC; or
25
(b) any request of ASIC under subsection 218(2) (which deals
26
with requests to resubmit documents etc.);
27
ASIC may give the person a written notice requiring the person to
28
comply with the requirement or request within 14 days.
29
Chapter 5 Ad min istration
Part 5-2 Documents lodged with ASIC o r required by this Act
Division 4 Other provisions relating to documents lodged with ASIC or required under
this Act
Section 225
228 National Consumer Credit Protection Bill 2009 No. , 2009
(2) If the person does not comply with the notice within 14 days, the
1
court may, on an application by ASIC, make an order directing the
2
person to comply with the requirement or request.
3
(3) The order may provide that all costs of and incidental to the
4
application are to be borne by one or more of the following:
5
(a) the person;
6
(b) if the person is a body corporate--a director, secretary or
7
senior manager of the body corporate who is responsible for
8
the failure to comply;
9
(c) if the person is a partnership or the trustees of a trust--a
10
partner or trustee who is responsible for the failure to
11
comply.
12
225 Offences relating to docume nts lodged with ASIC etc.
13
Documents this section applies to
14
(1) This section applies to the following documents:
15
(a) any document required under or for the purposes of this Act;
16
(b) any document lodged with or submitted to ASIC under or for
17
the purposes of this Act.
18
Requirement where person knows matter is false or misleading
19
(2) A person must not:
20
(a) make, or authorise the making of, a statement in the
21
document if the person knows, or is reckless as to whether,
22
the statement:
23
(i) is false in a material particular or materially misleading;
24
or
25
(ii) has omitted from it a matter or thing the omission of
26
which renders the document materially misleading; or
27
(iii) is based on information that is false in a material
28
particular or materially misleading, or has omitted from
29
it a matter or thing the omission of which renders the
30
document materially misleading; or
31
(b) omit, or authorise the omission of, a matter from the
32
document if the person knows, or is reckless as to whether,
33
Admin istration Chapter 5
Documents lodged with ASIC or required by this Act Part 5 -2
Other provisions relating to documents lodged with ASIC or required under this Act
Division 4
Section 225
National Consumer Credit Protection Bill 2009 No. , 2009 229
without the matter, the document is false in a material
1
particular or materially misleading.
2
Civil penalty:
2,000 penalty units.
3
Offences
4
(3) A person commits an offence if:
5
(a) the person makes, or authorises the making of, a statement in
6
the document; and
7
(b) the person knows that the statement:
8
(i) is false in a material particular or materially misleading;
9
or
10
(ii) has omitted from it a matter or thing the omission of
11
which renders the document materially misleading; or
12
(iii) is based on information that is false in a material
13
particular or materially misleading, or has omitted from
14
it a matter or thing the omission of which renders the
15
document materially misleading.
16
Criminal penalty: 200 penalty units, or imprisonment for 5
17
years, or both.
18
(4) A person commits an offence if:
19
(a) the person omits, or authorises the omission of, a matter from
20
the document; and
21
(b) the person knows that, without the matter, the document is
22
false in a material particular or materially misleading.
23
Criminal penalty: 200 penalty units, or imprisonment for 5
24
years, or both.
25
Requirement to take reasonable steps
26
(5) A person must take reasonable steps to ensure that the person does
27
not:
28
(a) make, or authorise the making of, a statement in the
29
document that:
30
(i) is false in a material particular or materially misleading;
31
or
32
Chapter 5 Ad min istration
Part 5-2 Documents lodged with ASIC o r required by this Act
Division 4 Other provisions relating to documents lodged with ASIC or required under
this Act
Section 225
230 National Consumer Credit Protection Bill 2009 No. , 2009
(ii) has omitted from it a matter or thing the omission of
1
which renders the document materially misleading; or
2
(iii) is based on information that is false in a material
3
particular or materially misleading, or has omitted from
4
it a matter or thing the omission of which renders the
5
document materially misleading; or
6
(b) omit, or authorise the omission of, a matter from the
7
document, without which the document is false in a material
8
particular or materially misleading.
9
Civil penalty:
2,000 penalty units.
10
Offence
11
(6) A person commits an offence if:
12
(a) the person is subject to a requirement under subsection (5);
13
and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the requirement.
16
Criminal penalty: 5 penalty units.
17
(7) Subsection (6) is an offence of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
Approval of document taken to be authorisation
20
(8) For the purposes of this section, if a person votes in favour of a
21
resolution approving, or otherwise approves, the document, the
22
person is taken to have authorised:
23
(a) the making of any statement in the document; and
24
(b) the omission of any matter from the document.
25
26
Admin istration Chapter 5
Concealment or falsification of credit books Part 5 -3
Introduction Division 1
Section 226
National Consumer Credit Protection Bill 2009 No. , 2009 231
Part 5-3--Concealment or falsification of credit
1
books
2
Division 1--Introduction
3
226 Guide to this Part
4
This Part deals with the concealment or falsification of credit
5
books.
6
Division 2 includes requirements not to conceal or falsify credit
7
books, and a requirement to take precautions against the
8
falsification of credit books.
9
10
Chapter 5 Ad min istration
Part 5-3 Concealment or falsification of credit books
Division 2 Prohib itions relating to the concealment or falsification of cred it books
Section 227
232 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Prohibitions relating to the concealment or
1
falsification of credit books
2
227 Concealing etc. of credit books
3
Prohibition on concealing credit books etc.
4
(1) A person must not:
5
(a) conceal, destroy, mutilate or alter a credit book; or
6
(b) send a credit book out of this jurisdiction.
7
Civil penalty:
2,000 penalty units.
8
Offence
9
(2) A person commits an offence if:
10
(a) the person is subject to a requirement under subsection (1);
11
and
12
(b) the person engages in conduct; and
13
(c) the conduct contravenes the requirement.
14
Criminal penalty: 50 penalty units, or 6 months imprisonment,
15
or both.
16
Defence
17
(3) For the purposes of subsections (1) and (2), it is a defence if the
18
person did not act with intent to:
19
(a) defraud; or
20
(b) prevent, delay or obstruct the carrying out of an examination,
21
investigation or audit, or the exercise of a power, under this
22
Act.
23
Note:
For the purposes of subsection (2), a defendant bears an evidential
24
burden in relation to the matter in subsection (3) (see subsection
25
13.3(3) of the Criminal Code).
26
Meaning of credit book
27
(4) Credit book means:
28
Admin istration Chapter 5
Concealment or falsification of credit books Part 5 -3
Prohibitions relating to the concealment or falsification of credit books Division 2
Section 228
National Consumer Credit Protection Bill 2009 No. , 2009 233
(a) a book (by whatever name it is known) that this Act requires
1
to be kept; or
2
(b) a document that is:
3
(i) prepared; or
4
(ii) lodged with or submitted to ASIC; or
5
(iii) given to a person;
6
under, or for the purposes of, this Act; or
7
(c) a book relating to the credit activities engaged in by a
8
licensee or a credit representative; or
9
(d) a financial record.
10
228 Falsification of credit books
11
Requirements in relation to falsification of credit books
12
(1) A person must not engage in conduct that results in the falsification
13
of a credit book.
14
Civil penalty:
2,000 penalty units.
15
Offence
16
(2) A person commits an offence if:
17
(a) the person engages in conduct; and
18
(b) the conduct results in the falsification of a credit book.
19
Criminal penalty: 50 penalty units, or 6 months imprisonment,
20
or both.
21
Defence
22
(3) For the purposes of subsections (1) and (2), it is a defence if:
23
(a) the person acted honestly; and
24
(b) in all the circumstances, the act or omission constituting the
25
offence should be excused.
26
Note:
For the purposes of subsection (2), a defendant bears an evidential
27
burden in relation to the matter in subsection (3) (see subsection
28
13.3(3) of the Criminal Code).
29
Chapter 5 Ad min istration
Part 5-3 Concealment or falsification of credit books
Division 2 Prohib itions relating to the concealment or falsification of cred it boo ks
Section 229
234 National Consumer Credit Protection Bill 2009 No. , 2009
229 Precautions against falsification of credit books
1
Requirement to take precautions against falsification
2
(1) A person who is required by this Act to keep a credit book must
3
take reasonable steps to:
4
(a) guard against the falsification of the credit book; and
5
(b) facilitate the discovery of any falsification of the credit book.
6
Civil penalty:
2,000 penalty units.
7
Offence
8
(2) A person commits an offence if:
9
(a) the person is subject to a requirement under subsection (1);
10
and
11
(b) the person engages in conduct; and
12
(c) the conduct contravenes the requirement.
13
Criminal penalty: 50 penalty units, or 6 months imprisonment,
14
or both.
15
16
Admin istration Chapter 5
Fees imposed by the National Consumer Cred it Protection (Fees) Act 2009 Part 5-4
Introduction Division 1
Section 230
National Consumer Credit Protection Bill 2009 No. , 2009 235
Part 5-4--Fees imposed by the National Consumer
1
Credit Protection (Fees) Act 2009
2
Division 1--Introduction
3
230 Guide to this Part
4
This Part deals with fees imposed by the National Consumer
5
Credit Protection (Fees) Act 2009.
6
Division 2 includes provisions relating to fees, including the
7
payment of fees, the lodgment of documents or doing of acts
8
without the payment of fees, and the waiver or refund of fees.
9
10
Chapter 5 Ad min istration
Part 5-4 Fees imposed by the National Consumer Cred it Protection (Fees) Act 2009
Division 2 Fees imposed by the National Consumer Credit Protection (Fees) Act 2009
Section 231
236 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Fees imposed by the National Consumer
1
Credit Protection (Fees) Act 2009
2
231 Fees are payable to the Commonwealth
3
The fees imposed under the National Consumer Credit Protection
4
(Fees) Act 2009 in relation to this Act are payable to the
5
Commonwealth.
6
232 Lodgment of document without payment of fee
7
(1) This section applies where:
8
(a) a fee is payable under section 231 for the lodgment of a
9
document under this Act; and
10
(b) the document was submitted for lodgment without payment
11
of the fee.
12
(2) The document is not taken not to have been lodged merely because
13
of non-payment of the fee.
14
(3) Despite subsection (2), a compliance certificate that is required to
15
be lodged under section 53 is taken not to have been lodged until
16
the fee is paid.
17
233 Doing act without payment of fee
18
If a fee is payable under section 231 for a matter involving the
19
doing of an act by the Minister or ASIC under this Act, the
20
Minister or ASIC may refuse to do that act until the fee is paid.
21
234 Effect of sections 232 and 233
22
Sections 232 and 233 have effect despite anything in another Part
23
of this Act.
24
235 Waive r and refund of fees
25
Nothing in this Division or the National Consumer Credit
26
Protection (Fees) Act 2009 prevents the Commonwealth from:
27
Admin istration Chapter 5
Fees imposed by the National Consumer Cred it Protection (Fees) Act 2009 Part 5-4
Fees imposed by the National Consumer Cred it Protection (Fees) Act 2009 Division 2
Section 236
National Consumer Credit Protection Bill 2009 No. , 2009 237
(a) waiving or reducing, in a particular case or in particular
1
classes of cases, fees that would otherwise be payable under
2
this Act; or
3
(b) refunding, in whole or in part, in a particular case or in
4
particular classes of cases, fees paid under this Act.
5
236 Debts due to the Commonwealth
6
ASIC may, on behalf of the Commonwealth, recover a debt due
7
under this Division.
8
237 Payment of fee does not give right to inspect or search
9
To avoid doubt, nothing in this Division, and nothing done under
10
this Division:
11
(a) imposes on ASIC a duty to allow the inspection or search of
12
a register or document, or to make available information; or
13
(b) confers a right to inspect or search a register or document or
14
to have information made available;
15
under this Act except so far as such a duty or right would, but for
16
the effect of section 233, exist under a provision of another Part of
17
this Act or under some other law.
18
19
Chapter 5 Ad min istration
Part 5-5 Other ad min istrative matters
Division 1 Introduction
Section 238
238 National Consumer Credit Protection Bill 2009 No. , 2009
Part 5-5--Other administrative matters
1
Division 1--Introduction
2
238 Guide to this Part
3
This Part includes miscellaneous provisions relating to
4
administrative matters.
5
6
Admin istration Chapter 5
Other ad min istrative matters Part 5-5
Other ad min istrative matters Division 2
Section 239
National Consumer Credit Protection Bill 2009 No. , 2009 239
Division 2--Other administrative matters
1
239 ASIC has general administration of this Act
2
Subject to the ASIC Act, ASIC has the general administration of
3
this Act.
4
240 Obstructing or hindering ASIC etc.
5
(1) A person must not engage in conduct that results in the obstruction
6
or hindering of ASIC, or any other person, in the performance of a
7
function or the exercise of a power under this Act.
8
Civil penalty:
2,000 penalty units.
9
(2) A person commits an offence if:
10
(a) the person engages in conduct; and
11
(b) the conduct results in the obstruction or hindering of ASIC,
12
or any other person, in the performance of a function or the
13
exercise of a power under this Act.
14
Criminal penalty: 100 penalty units, or imprisonment for 2
15
years, or both.
16
(3) For the purposes of subsections (1) and (2), it is a defence if the
17
person has a reasonable excuse.
18
Note:
For the purposes of subsection (2), a defendant bears an evidential
19
burden in relation to the matter in subsection (3) (see subsection
20
13.3(3) of the Criminal Code).
21
241 Approve d codes of conduct
22
(1) ASIC may, on application, approve codes of conduct that relate to
23
any aspect of the activities of:
24
(a) licensees; or
25
(b) credit representatives;
26
being activities in relation to which ASIC has a regulatory
27
responsibility. The approval must be in writing.
28
(2) ASIC may, on application, approve a variation of an approved code
29
of conduct. The approval must be in writing.
30
Chapter 5 Ad min istration
Part 5-5 Other ad min istrative matters
Division 2 Other ad ministrative matters
Section 242
240 National Consumer Credit Protection Bill 2009 No. , 2009
(3) ASIC must not approve a code of conduct, or a variation of a code
1
of conduct, unless it is satisfied that:
2
(a) the code of conduct, or the code of conduct as proposed to be
3
varied, is not inconsistent with this Act or any other law of
4
the Commonwealth under which ASIC has regulatory
5
responsibilities; and
6
(b) it is appropriate to approve the code of conduct or variation,
7
having regard to the following matters:
8
(i) the ability of the applicant to ensure that persons who
9
hold out that they comply with the code of conduct will
10
comply with the code of conduct as in force from time
11
to time;
12
(ii) the desirability of codes of conduct being harmonised to
13
the greatest extent possible;
14
(iii) any other matter ASIC considers relevant.
15
(4) ASIC may revoke an approval of a code of conduct:
16
(a) on application by the person who applied for the approval; or
17
(b) if ASIC is no longer satisfied as referred to in subsection (3).
18
The revocation must be in writing.
19
(5) The following are legislative instruments:
20
(a) an approval of a code of conduct under subsection (1);
21
(b) an approval of a variation of a code of conduct under
22
subsection (2);
23
(c) a revocation of a code of conduct under subsection (4).
24
242 ASIC may arrange for use of compute r programs to make
25
decisions
26
(1) ASIC may arrange for the use, under ASIC's control, of computer
27
programs for any purposes for which ASIC may make decisions
28
under this Act.
29
(2) A decision made by the operation of a computer program under an
30
arrangement made under subsection (1) is taken to be a decision
31
made by ASIC.
32
Admin istration Chapter 5
Other ad min istrative matters Part 5-5
Other ad min istrative matters Division 2
Section 243
National Consumer Credit Protection Bill 2009 No. , 2009 241
243 Qualified privilege for information given to ASIC
1
(1) A person has qualified privilege in relation to the giving of any
2
information to ASIC:
3
(a) that the person is required or expressly permitted to give
4
under this Act; or
5
(b) that relates to a contravention, or possible contravention, of
6
the credit legislation; or
7
(c) that relates to a matter that is relevant to a decision of ASIC
8
under:
9
(i) section 37 (which deals with when ASIC must grant a
10
licence); or
11
(ii) section 54 or 55 (which deal with ASIC's powers to
12
suspend or cancel licences); or
13
(iii) subsection 80(1) (which deals with ASIC's power to
14
make banning orders).
15
(2) A person who has qualified privilege under subsection (1) in
16
relation to conduct is also not liable for any action based on breach
17
of confidence in relation to that conduct.
18
(3) The protections given by this section to a person in relation to
19
conduct extend to representatives of the person.
20
244 ASIC ce rtificate is prima facie evidence of matters
21
(1) ASIC may issue a certificate stating that a requirement of this Act
22
specified in the certificate:
23
(a) had or had not been complied with at a date or within a
24
period specified in the certificate; or
25
(b) had been complied with at a date specified in the certificate
26
but not before that date.
27
(2) In proceedings in a court, a certificate issued by ASIC under
28
subsection (1) is admissible as prima facie evidence of the matters
29
stated in the certificate.
30
Chapter 5 Ad min istration
Part 5-5 Other ad min istrative matters
Division 2 Other ad ministrative matters
Section 245
242 National Consumer Credit Protection Bill 2009 No. , 2009
245 Ope rator of approved external dispute resolution scheme may
1
give information to ASIC
2
The operator of an approved external dispute resolution scheme
3
may give information to ASIC about:
4
(a) a person becoming a member of the scheme; or
5
(b) a person ceasing to be a member of the scheme.
6
7
Co mpliance and enforcement Chapter 6
Investigations Part 6-1
Introduction Division 1
Section 246
National Consumer Credit Protection Bill 2009 No. , 2009 243
Chapter 6--Compliance and enforcement
1
Part 6-1--Investigations
2
Division 1--Introduction
3
246 Guide to this Part
4
This Part is about investigations made by ASIC.
5
Division 2 includes powers of ASIC to make investigations. ASIC
6
may make investigations in certain circumstances for the due
7
administration of the Commonwealth credit legislation. The
8
Minister may also direct ASIC to investigate matters in certain
9
circumstances.
10
Division 2 also deals with reports about investigations.
11
12
Chapter 6 Co mpliance and enforcement
Part 6-1 Investigations
Division 2 Investigations
Section 247
244 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Investigations
1
247 General powe rs of investigation
2
(1) ASIC may make such investigation as it considers expedient for
3
the due administration of the Commonwealth credit legislation if it
4
has reason to suspect that there may have been committed:
5
(a) a contravention of the credit legislation; or
6
(b) a contravention of a law of the Commonwealth, or of a law of
7
a referring State or a Territory, being a contravention that:
8
(i) concerns the management, conduct or affairs of a
9
licensee, credit representative or other person who
10
engages, or has engaged, in a credit activity; or
11
(ii) involves fraud or dishonesty and relates to a credit
12
activity engaged in by a person, or a credit contract,
13
mortgage, guarantee or consumer lease.
14
248 Minister may direct investigations
15
(1) If, in the Minister's opinion, it is in the public interest in relation to
16
this jurisdiction for a particular matter to which subsection (2)
17
applies to be investigated, he or she may by writing direct ASIC to
18
investigate that matter.
19
(2) This subsection applies to a matter relating to any of the following:
20
(a) an alleged or suspected contravention of the Commonwealth
21
credit legislation;
22
(b) an alleged or suspected contravention of a law of the
23
Commonwealth, or a law of a referring State or a Territory,
24
being a contravention that:
25
(i) concerns the management, conduct or affairs of a
26
licensee, credit representative or other person who
27
engages, or has engaged, in a credit activity; or
28
(ii) involves fraud or dishonesty and relates to a credit
29
activity engaged in by a person, or a credit contract,
30
mortgage, guarantee or consumer lease;
31
(c) a credit activity engaged in by a person.
32
(3) ASIC must comply with a direction under subsection (1).
33
Co mpliance and enforcement Chapter 6
Investigations Part 6-1
Investigations Division 2
Section 249
National Consumer Credit Protection Bill 2009 No. , 2009 245
(4) A direction under subsection (1) does not prevent ASIC from
1
delegating a function or power.
2
(5) A direction under subsection (1) is not a legislative instrument.
3
249 Inte rim re port on investigation
4
(1) If, in the course of an investigation under this Part, ASIC forms the
5
opinion that:
6
(a) a serious contravention of a law of the Commonwealth, or a
7
law of a referring State or a Territory, has been committed; or
8
(b) to prepare an interim report about the investigation would
9
enable or assist the protection, preservation or prompt
10
recovery of property; or
11
(c) there is an urgent need for the Commonwealth credit
12
legislation to be amended;
13
it must prepare an interim report that relates to the investigation
14
and sets out:
15
(d) if paragraph (a) applies--its findings about the contravention,
16
and the evidence and other material on which those findings
17
are based; or
18
(e) if paragraph (b) applies--such matters as, in its opinion, will
19
so enable or assist; or
20
(f) if paragraph (c) applies--its opinion about amendment of
21
that legislation, and its reasons for that opinion;
22
and such other matters relating to, or arising out of, the
23
investigation as it considers appropriate.
24
(2) ASIC may prepare an interim report about an investigation under
25
this Part and must do so if the Minister so directs.
26
(3) A report under subsection (2) must set out such matters relating to,
27
or arising out of, the investigation as ASIC considers appropriate
28
or the Minister directs.
29
(4) An interim report prepared under this section is not a legislative
30
instrument.
31
Chapter 6 Co mpliance and enforcement
Part 6-1 Investigations
Division 2 Investigations
Section 250
246 National Consumer Credit Protection Bill 2009 No. , 2009
250 Final report on investigation
1
(1) At the end of an investigation under section 247, ASIC may
2
prepare a report about the investigation and must do so if the
3
Minister so directs.
4
(2) At the end of an investigation under section 248, ASIC must
5
prepare a report about the investigation.
6
(3) A report under this section must set out:
7
(a) ASIC's findings about the matters investigated; and
8
(b) the evidence and other material on which those findings are
9
based; and
10
(c) such other matters relating to, or arising out of, the
11
investigation as ASIC considers appropriate or the Minister
12
directs.
13
(4) A direction under subsection (1) is not a legislative instrument.
14
(5) A report prepared under this section is not a legislative instrument.
15
251 Distribution of report
16
(1) As soon as practicable after preparing a report under this Part,
17
ASIC must give a copy of the report to the Minister.
18
(2) If a report, or part of a report, under this Part relates to a serious
19
contravention of a law of the Commonwealth, or a law of a
20
referring State or a Territory, ASIC may give a copy of the whole
21
or a part of the report to:
22
(a) the Australian Federal Police; or
23
(b) the Chief Executive Officer of the Australian Crime
24
Commission or a member of the staff of the ACC (within the
25
meaning of the Australian Crime Commission Act 2002); or
26
(c) the Director of Public Prosecutions; or
27
(d) an agency, authority, body or person prescribed by the
28
regulations.
29
(3) If a report, or part of a report, under this Part relates to a person's
30
affairs to a material extent, ASIC may, at the person's request or of
31
Co mpliance and enforcement Chapter 6
Investigations Part 6-1
Investigations Division 2
Section 251
National Consumer Credit Protection Bill 2009 No. , 2009 247
its own motion, give to the person a copy of the report or of part of
1
the report.
2
(4) The Minister may cause the whole or a part of a report under this
3
Part to be printed and published.
4
5
Chapter 6 Co mpliance and enforcement
Part 6-2 Examination of persons
Division 1 Introduction
Section 252
248 National Consumer Credit Protection Bill 2009 No. , 2009
Part 6-2--Examination of persons
1
Division 1--Introduction
2
252 Guide to this Part
3
This Part is about the examination of persons by ASIC.
4
Division 2 allows ASIC to examine a person if ASIC suspects or
5
believes, on reasonable grounds, that the person can give
6
information relevant to an investigation under Part 6-1.
7
Division 2 also includes rules relating to the procedure for
8
examination of persons by ASIC.
9
10
Co mpliance and enforcement Chapter 6
Examination of persons Part 6-2
Examination of persons Division 2
Section 253
National Consumer Credit Protection Bill 2009 No. , 2009 249
Division 2--Examination of persons
1
253 Notice requiring appearance for examination
2
(1) This section applies if ASIC, on reasonable grounds, suspects or
3
believes that a person can give information relevant to a matter that
4
it is investigating, or is to investigate, under Part 6-1.
5
(2) ASIC may, by written notice in the approved form given to the
6
person, require the person:
7
(a) to give to ASIC all reasonable assistance in connection with
8
the investigation; and
9
(b) to appear before a specified ASIC member or ASIC staff
10
member for examination on oath and to answer questions.
11
Note:
Failure to comply with a requirement made under this subsection is an
12
offence (see section 290).
13
(3) A notice given under subsection (2) must:
14
(a) state the general nature of the matter referred to in
15
subsection (1); and
16
(b) set out the effect of subsection 257(1) and section 295.
17
254 Proceedings at examination
18
The remaining provisions of this Part apply if, pursuant to a
19
requirement made under section 253 for the purposes of an
20
investigation under Part 6-1, a person (the examinee) appears
21
before another person (the inspector) for examination.
22
255 Requirements made of examinee
23
(1) The inspector may examine the examinee on oath or affirmation
24
and may, for that purpose:
25
(a) require the examinee to either take an oath or make an
26
affirmation; and
27
(b) administer an oath or affirmation to the examinee.
28
Note:
Failure to comply with a requirement made under this subsection is an
29
offence (see section 290).
30
Chapter 6 Co mpliance and enforcement
Part 6-2 Examination of persons
Division 2 Examination of persons
Section 256
250 National Consumer Credit Protection Bill 2009 No. , 2009
(2) An offence under subsection 290(2) relating to subsection (1) of
1
this section is an offence of strict liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
(3) The oath or affirmation to be taken or made by the examinee for
4
the purposes of the examination is an oath or affirmation that the
5
statements that the examinee will make will be true.
6
(4) The inspector may require the examinee to answer a question that
7
is put to the examinee at the examination and is relevant to a matter
8
that ASIC is investigating, or is to investigate, under Part 6-1.
9
Note:
Failure to comply with a requirement made under this subsection is an
10
offence (see section 290).
11
256 Examination to take place in private
12
(1) The examination must take place in private and the inspector may
13
give directions about who may be present during it, or during a part
14
of it.
15
(2) A person must not be present at the examination unless he or she:
16
(a) is the inspector, the examinee or an ASIC member; or
17
(b) is an ASIC staff member approved by ASIC; or
18
(c) is entitled to be present by virtue of:
19
(i) a direction under subsection (1); or
20
(ii) subsection 257(1).
21
Criminal penalty: 10 penalty units, or 3 months imprisonment,
22
or both.
23
(3) Subsection (2) is an offence of strict liability.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
257 Examinee's lawyer may attend
26
(1) The examinee's lawyer may be present at the examination and
27
may, at such times during it as the inspector determines:
28
(a) address the inspector; and
29
(b) examine the examinee;
30
Co mpliance and enforcement Chapter 6
Examination of persons Part 6-2
Examination of persons Division 2
Section 258
National Consumer Credit Protection Bill 2009 No. , 2009 251
about matters about which the inspector has examined the
1
examinee.
2
(2) If, in the inspector's opinion, a person is trying to obstruct the
3
examination by exercising rights under subsection (1), the
4
inspector may require the person to stop addressing the inspector,
5
or examining the examinee, as the case requires.
6
Note:
Failure to comply with a requirement made under this subsection is an
7
offence (see section 290).
8
(3) An offence under subsection 290(3) relating to subsection (2) of
9
this section is an offence of strict liability.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
258 Record of examination
12
(1) The inspector may, and must if the examinee so requests, cause a
13
record to be made of statements made at the examination.
14
(2) If a record made under subsection (1) is in writing or is reduced to
15
writing:
16
(a) the inspector may require the examinee to read it, or to have
17
it read to him or her, and may require him or her to sign it;
18
and
19
(b) the inspector must, if requested in writing by the examinee to
20
give to the examinee a copy of the written record, comply
21
with the request without charge but subject to such conditions
22
(if any) as the inspector imposes.
23
Note:
Failure to comply with a requirement made under this subsection is an
24
offence (see section 290).
25
(3) An offence under subsection 290(2) relating to paragraph (2)(a) of
26
this section is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
259 Giving to other persons copies of record
29
(1) ASIC may give a copy of a written record of the examination, or
30
such a copy together with a copy of any related book, to a person's
31
lawyer if the lawyer satisfies ASIC that the person is carrying on,
32
Chapter 6 Co mpliance and enforcement
Part 6-2 Examination of persons
Division 2 Examination of persons
Section 260
252 National Consumer Credit Protection Bill 2009 No. , 2009
or is contemplating in good faith, proceedings in relation to a
1
matter to which the examination related.
2
(2) If ASIC gives a copy to a person under subsection (1), the person,
3
or any other person who has possession, custody or control of the
4
copy or a copy of it, must not, except in connection with preparing,
5
beginning or carrying on, or in the course of, proceedings:
6
(a) use the copy or a copy of it; or
7
(b) publish, or communicate to a person, the copy, a copy of it,
8
or any part of the copy's contents.
9
Criminal penalty: 10 penalty units, or 3 months imprisonment,
10
or both.
11
(3) Subsection (2) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
(4) ASIC may, subject to such conditions (if any) as it imposes, give to
14
a person a copy of a written record of the examination, or such a
15
copy together with a copy of any related book.
16
260 Copies given subject to conditions
17
(1) If a copy is given to a person under subsection 258(2) or 259(4)
18
subject to conditions, the person, and any other person who has
19
possession, custody or control of the copy or a copy of it, must
20
comply with the conditions.
21
Criminal penalty: 10 penalty units, or 3 months imprisonment,
22
or both.
23
(2) Subsection (1) is an offence of strict liability.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
261 Record to accompany report
26
(1) If a report about the investigation referred to in section 254 is
27
prepared under section 250, each record (if any) of the examination
28
must accompany the report.
29
(2) If:
30
Co mpliance and enforcement Chapter 6
Examination of persons Part 6-2
Examination of persons Division 2
Section 261
National Consumer Credit Protection Bill 2009 No. , 2009 253
(a) in ASIC's opinion, a statement made at an examination is
1
relevant to any other investigation under Part 6-1; and
2
(b) a record of the statement was made under section 258; and
3
(c) a report about the other investigation is prepared under
4
section 250;
5
a copy of the record must accompany the report.
6
7
Chapter 6 Co mpliance and enforcement
Part 6-3 Inspection of books and audit information-gathering powers
Division 1 Introduction
Section 262
254 National Consumer Credit Protection Bill 2009 No. , 2009
Part 6-3--Inspection of books and audit
1
information-gathering powers
2
Division 1--Introduction
3
262 Guide to this Part
4
This Part is about powers of ASIC in relation to the inspection of
5
books and gathering of information about audits.
6
Division 2 includes powers of ASIC to inspect books, and to
7
require persons to produce books or documents, or give
8
information, in some circumstances.
9
Division 2 also allows ASIC to seize books in certain
10
circumstances, and sets out procedures to be followed in relation to
11
such a seizure, including in relation to the granting of warrants.
12
13
Co mpliance and enforcement Chapter 6
Inspection of books and audit information-gathering powers Part 6-3
Inspection of books and audit information-gathering powers Division 2
Section 263
National Consumer Credit Protection Bill 2009 No. , 2009 255
Division 2--Inspection of books and audit
1
information-gathering powers
2
263 When certain powe rs may be exercised
3
A power conferred by this Part (other than sections 264, 265, 269
4
and 270) may only be exercised:
5
(a) for the purposes of the performance or exercise of any of
6
ASIC's functions and powers under the Commonwealth
7
credit legislation; or
8
(b) for the purposes of ensuring compliance with the
9
Commonwealth credit legislation; or
10
(c) in relation to an alleged or suspected contravention of the
11
credit legislation; or
12
(d) in relation to a contravention of a law of the Commonwealth,
13
or of a law of a referring State or a Territory, being a
14
contravention that:
15
(i) concerns the management, conduct or affairs of a
16
licensee, credit representative or other person who
17
engages, or has engaged, in a credit activity; or
18
(ii) involves fraud or dishonesty and relates to a credit
19
activity engaged in by a person, or a credit contract,
20
mortgage, guarantee or consumer lease; or
21
(e) for the purposes of an investigation under Part 6-1.
22
264 ASIC may inspect books without charge
23
(1) A book that the Commonwealth credit legislation requires a person
24
to keep must be open for inspection (without charge) by a person
25
authorised in writing by ASIC.
26
(2) A person (the authorised person) authorised under this section
27
may require a person in whose possession, custody or control the
28
book is to make the book available for inspection by the authorised
29
person.
30
Note:
Failure to comply with a requirement made under this subsection is an
31
offence (see section 290).
32
Chapter 6 Co mpliance and enforcement
Part 6-3 Inspection of books and audit information-gathering powers
Division 2 Inspection of books and audit information-gathering powers
Section 265
256 National Consumer Credit Protection Bill 2009 No. , 2009
(3) An offence under subsection 290(2) relating to subsection (2) of
1
this section is an offence of strict liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
(4) An authorisation under this section may be of general application
4
or may be limited by reference to the books to be inspected.
5
265 Notice to auditors concerning information and books
6
(1) Subject to subsection (2), ASIC may give an auditor who prepares
7
an audit report required under the Commonwealth credit legislation
8
a written notice requiring the auditor:
9
(a) to give specified information; or
10
(b) to produce specified books;
11
to a specified ASIC member or ASIC staff member at a specified
12
place and time.
13
Note:
Failure to comply with a requirement made under this subsection is an
14
offence (see section 290).
15
(2) The power in subsection (1) may only be exercised:
16
(a) for the purposes of ascertaining compliance with audit
17
requirements under the Commonwealth credit legislation; or
18
(b) in relation to an alleged or suspected contravention of audit
19
requirements under the Commonwealth credit legislation; or
20
(c) in relation to an alleged or suspected contravention of a law
21
of the Commonwealth, or of a law of a referring State or a
22
Territory, being a contravention that:
23
(i) concerns the management, conduct or affairs of a
24
licensee, credit representative or other person who
25
engages, or has engaged, in a credit activity; or
26
(ii) involves fraud or dishonesty and relates to a credit
27
activity engaged in by a person, or a credit contract,
28
mortgage, guarantee or consumer lease; or
29
(d) for the purposes of an investigation under Part 6-1 relating to
30
a contravention referred to in paragraph (b) or (c).
31
(3) Without limiting subsection (1), a notice under that subsection may
32
specify information or books that relate to any or all of the
33
following:
34
Co mpliance and enforcement Chapter 6
Inspection of books and audit information-gathering powers Part 6-3
Inspection of books and audit information-gathering powers Division 2
Section 266
National Consumer Credit Protection Bill 2009 No. , 2009 257
(a) the policies relating to audit that the auditor has adopted or
1
proposes to adopt, or the procedures relating to audit that the
2
auditor has put in place or proposes to put in place;
3
(b) audits the auditor has conducted or proposes to conduct or in
4
which the auditor has participated or proposes to participate;
5
(c) any other matter pertaining to audit that is prescribed by the
6
regulations for the purposes of this paragraph.
7
(4) Without limiting subsection (1), a notice under that subsection may
8
require the auditor to give information or produce books even if
9
doing so would involve a breach of an obligation of confidentiality
10
that the auditor owes an audited person.
11
(5) ASIC may, by written notice to an auditor who has received a
12
notice under subsection (1), extend the period within which the
13
auditor must give the information or produce the books to which
14
the notice under that subsection relates.
15
266 Notice to produce books about credit activities
16
ASIC may give to:
17
(a) a person who engages in a credit activity (either alone or
18
together with any other person or persons); or
19
(b) a person who, in ASIC's opinion, has been a party to
20
engaging in a credit activity; or
21
(c) a representative, banker, lawyer or auditor of a person
22
referred to in paragraph (a) or (b);
23
a written notice requiring the production to a specified ASIC
24
member or ASIC staff member, at a specified place and time, of
25
specified books relating to:
26
(d) a credit activity engaged in by a person; or
27
(e) the character or financial situation of, or a business carried on
28
by, a person who engages, or has engaged, in a credit
29
activity.
30
Note:
Failure to comply with a requirement made under this subsection is an
31
offence (see section 290).
32
Chapter 6 Co mpliance and enforcement
Part 6-3 Inspection of books and audit information-gathering powers
Division 2 Inspection of books and audit information-gathering powers
Section 267
258 National Consumer Credit Protection Bill 2009 No. , 2009
267 Notice to produce documents in person's possession
1
(1) ASIC may give to a person (the recipient) a written notice
2
requiring the production to a specified ASIC member or ASIC staff
3
member, at a specified place and time, of specified books that are
4
in the recipient's possession, custody or control and relate to:
5
(a) affairs of a licensee, credit representative or other person who
6
engages, or has engaged, in a credit activity; or
7
(b) a matter referred to in paragraph 266(1)(d) or (e).
8
(2) ASIC may give to a person (the recipient) a written notice
9
requiring the production to a specified ASIC member or ASIC staff
10
member, at a specified place and time, of specified books that are
11
in the recipient's possession, custody or control and that relate to
12
the question whether an auditor has complied with audit
13
requirements under the Commonwealth credit legislation.
14
Note:
Failure to comply with a requirement made under this section is an
15
offence (see section 290).
16
268 ASIC may authorise persons to require production of books,
17
giving of information etc.
18
(1) ASIC may by writing authorise an ASIC member or ASIC staff
19
member (an authorised person) to make a requirement of a kind
20
that this Part empowers ASIC to make.
21
Note:
Failure to comply with a requirement made under this subsection is an
22
offence (see section 290).
23
(2) An authorisation under this section may be of general application
24
or may be limited by reference to all or any of the following:
25
(a) the persons of whom requirements may be made;
26
(b) the books that may be required to be produced;
27
(c) the information that may be required to be given.
28
(3) If an authorisation of an authorised person is in force under this
29
section, the authorised person may make a requirement in
30
accordance with the authorisation as if, in sections 265, 266 and
31
267:
32
(a) a reference to ASIC were a reference to the authorised
33
person; and
34
Co mpliance and enforcement Chapter 6
Inspection of books and audit information-gathering powers Part 6-3
Inspection of books and audit information-gathering powers Division 2
Section 269
National Consumer Credit Protection Bill 2009 No. , 2009 259
(b) a reference to specified books were a reference to books that
1
the authorised person specifies, whether in the requirement or
2
not and whether orally or in writing, to the person of whom
3
the requirement is made; and
4
(c) a reference to specified information were a reference to
5
information that the authorised person specifies, whether in
6
the requirement or not and whether orally or in writing, to the
7
person of whom the requirement is made; and
8
(d) a reference to giving or producing to a specified person were
9
a reference to giving or producing to the authorised person.
10
269 Application for warrant to seize books not produced
11
(1) If an ASIC member or ASIC staff member has reasonable grounds
12
to suspect that there are, or may be within the next 3 days, on
13
particular premises in Australia, books:
14
(a) whose production has been required under this Part; and
15
(b) that have not been produced in compliance with that
16
requirement;
17
he or she may:
18
(c) lay before a magistrate an information on oath setting out
19
those grounds; and
20
(d) apply for the issue of a warrant to search the premises for
21
those books.
22
(2) On an application under this section, the magistrate may require
23
further information to be given, either orally or by affidavit, in
24
connection with the application.
25
270 Grant of warrant
26
(1) This section applies if, on an application under section 269, the
27
magistrate is satisfied that there are reasonable grounds to suspect
28
that there are, or may be within the next 3 days, on particular
29
premises, particular books:
30
(a) whose production has been required under this Part; and
31
(b) that have not been produced in compliance with that
32
requirement.
33
Chapter 6 Co mpliance and enforcement
Part 6-3 Inspection of books and audit information-gathering powers
Division 2 Inspection of books and audit information-gathering powers
Section 271
260 National Consumer Credit Protection Bill 2009 No. , 2009
(2) The magistrate may issue a warrant authorising a member of the
1
Australian Federal Police, whether or not named in the warrant,
2
together with any person so named, with such assistance, and by
3
such force, as is necessary and reasonable:
4
(a) to enter on or into the premises; and
5
(b) to search the premises; and
6
(c) to break open and search anything, whether a fixture or not,
7
in or on the premises; and
8
(d) to take possession of, or secure against interference, books
9
that appear to be any or all of those books.
10
(3) If the magistrate issues such a warrant, he or she must set out on
11
the information laid before him or her under subsection 269(2) for
12
the purposes of the application:
13
(a) which of the grounds set out in the information; and
14
(b) particulars of any other grounds;
15
he or she has relied on to justify the issue of the warrant.
16
(4) A warrant under this section must:
17
(a) specify the premises and books referred to in subsection (1);
18
and
19
(b) state whether entry is authorised to be made at any time of
20
the day or night or only during specified hours; and
21
(c) state that the warrant ceases to have effect on a specified day
22
that is not more than 7 days after the day of issue of the
23
warrant.
24
271 Powe rs if books produced or seized
25
(1) This section applies if:
26
(a) books are produced to a person under a requirement made
27
under this Part; or
28
(b) under a warrant issued under section 270, a person:
29
(i) takes possession of books; or
30
(ii) secures books against interference; or
31
(c) by virtue of a previous application of subsection (8) of this
32
section, books are delivered into a person's possession.
33
Co mpliance and enforcement Chapter 6
Inspection of books and audit information-gathering powers Part 6-3
Inspection of books and audit information-gathering powers Division 2
Section 271
National Consumer Credit Protection Bill 2009 No. , 2009 261
(2) If paragraph (1)(a) applies, the person may take possession of any
1
of the books.
2
(3) The person may inspect, and may make copies of, or take extracts
3
from, any of the books.
4
(4) The person may use, or permit the use of, any of the books for the
5
purposes of proceedings.
6
(5) The person may retain possession of any of the books for so long
7
as is necessary:
8
(a) for the purposes of exercising a power conferred by this
9
section (other than this subsection and subsection (7)); or
10
(b) for any of the purposes referred to in paragraphs 263(a), (b)
11
and (e) or 265(2)(a) and (d), as the case requires; or
12
(c) for a decision to be made about whether or not proceedings
13
(including proceedings under a law of the Commonwealth, or
14
a law of a referring State or a Territory) to which the books
15
concerned would be relevant should be begun; or
16
(d) for such proceedings to be begun and carried on.
17
(6) No-one is entitled, as against the person, to claim a lien on any of
18
the books, but such a lien is not otherwise prejudiced.
19
(7) While the books are in the possession of a person (the possessor),
20
the possessor:
21
(a) must permit another person to inspect at all reasonable times
22
such (if any) of the books as the other person would be
23
entitled to inspect if they were not in the possessor's
24
possession; and
25
(b) may permit another person to inspect any of the books.
26
(8) Unless subparagraph (1)(b)(ii) applies, the person may deliver any
27
of the books into the possession of ASIC or of a person authorised
28
by it to receive them.
29
(9) If paragraph (1)(a) or (b) applies, the person, or a person into
30
whose possession the person delivers any of the books under
31
subsection (8), may require:
32
(a) if paragraph (1)(a) applies--a person who so produced any of
33
the books; or
34
Chapter 6 Co mpliance and enforcement
Part 6-3 Inspection of books and audit information-gathering powers
Division 2 Inspection of books and audit information-gathering powers
Section 272
262 National Consumer Credit Protection Bill 2009 No. , 2009
(b) in any case--a person who was a party to the compilation of
1
any of the books;
2
to explain any matter about the compilation of any of the books or
3
to which any of the books relate.
4
Note:
Failure to comply with a requirement made under this subsection is an
5
offence (see section 290).
6
272 Powe rs if books not produced
7
If a person (the first person) fails or refuses to produce particular
8
books in compliance with a requirement made by another person
9
under this Part, the other person may require the first person to
10
state:
11
(a) if the books may be found; and
12
(b) who last had possession, custody or control of the books and
13
if that person may be found.
14
Note:
Failure to comply with a requirement made under this subsection is an
15
offence (see section 290).
16
17
Co mpliance and enforcement Chapter 6
Proceedings after an investigation Part 6-4
Introduction Division 1
Section 273
National Consumer Credit Protection Bill 2009 No. , 2009 263
Part 6-4--Proceedings after an investigation
1
Division 1--Introduction
2
273 Guide to this Part
3
This Part is about criminal and civil proceedings that ASIC may
4
bring after it has conducted an investigation under this Chapter.
5
Division 2 deals with criminal proceedings. After an investigation
6
of a person under this Chapter, ASIC may prosecute the person for
7
an offence against the Commonwealth credit legislation (i.e. this
8
Act or the National Credit Transitional Act). It may also require
9
others to provide it with reasonable assistance in connection with
10
the prosecution.
11
Division 2 also deals with civil proceedings. After an investigation
12
of a person under this Chapter, ASIC may bring civil proceedings
13
against a person in particular circumstances. However, under this
14
Division, ASIC cannot bring civil proceedings under the
15
Commonwealth credit legislation. This is because Part 4-2 (which
16
deals with remedies) and the National Credit Code deal with when
17
ASIC can bring those proceedings.
18
19
Chapter 6 Co mpliance and enforcement
Part 6-4 Proceedings after an investigation
Division 2 Proceedings after an investigation
Section 274
264 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Proceedings after an investigation
1
274 ASIC may prosecute
2
(1) This section applies if:
3
(a) as a result of an investigation; or
4
(b) from a record of an examination;
5
conducted under this Chapter, it appears to ASIC that a person:
6
(c) may have committed an offence against the Commonwealth
7
credit legislation; and
8
(d) ought to be prosecuted for the offence.
9
(2) ASIC may cause a prosecution of the person for the offence to be
10
brought and carried on.
11
(3) ASIC may make a requirement under subsection (4) if:
12
(a) ASIC, on reasonable grounds, suspects or believes that a
13
person can give information relevant to a prosecution for the
14
offence; or
15
(b) the offence relates to matters being, or connected with, affairs
16
of a licensee, credit representative or other person who
17
engages, or has engaged, in a credit activity, or to matters
18
including such matters.
19
(4) ASIC may, whether before or after a prosecution for the offence is
20
begun, by writing given to any of the following persons:
21
(a) the person referred to in paragraph (3)(a);
22
(b) a representative, banker, lawyer or auditor of a person
23
referred to in paragraph (3)(b);
24
require the person to give all reasonable assistance in connection
25
with such a prosecution.
26
Note:
Failure to comply with a requirement made under this subsection is an
27
offence (see section 63).
28
(5) An offence under subsection 63(3) relating to subsection (4) of this
29
section is an offence of strict liability.
30
Note:
For strict liability, see section 6.1 of the Criminal Code.
31
(6) Subsection (4) does not apply in relation to:
32
Co mpliance and enforcement Chapter 6
Proceedings after an investigation Part 6-4
Proceedings after an investigation Division 2
Section 275
National Consumer Credit Protection Bill 2009 No. , 2009 265
(a) the person referred to in subsection (1); or
1
(b) a person who is or has been that person's lawyer.
2
Note:
A defendant bears an evidential burden in relation to the matter in
3
subsection (6), see subsection 13.3(3) of the Criminal Code.
4
(7) A requirement made by ASIC under subsection (4) is not a
5
legislative instrument.
6
(8) Nothing in this section affects the operation of the Director of
7
Public Prosecutions Act 1983.
8
275 ASIC may bring civil proceedings
9
If, as a result of an investigation or from a record of an
10
examination (being an investigation or examination conducted
11
under this Chapter), it appears to ASIC to be in the public interest
12
for a person to bring and carry on proceedings (other than
13
proceedings under the Commonwealth credit legislation) for:
14
(a) the recovery of damages for fraud, negligence, default,
15
breach of duty, or other misconduct, committed in connection
16
with a matter to which the investigation or examination
17
related; or
18
(b) recovery of property of the person;
19
ASIC:
20
(c) if the person is a company (within the meaning of the
21
Corporations Act 2001)--may cause; or
22
(d) otherwise--may, with the person's written consent, cause;
23
such proceedings to be begun and carried on in the person's name.
24
25
Chapter 6 Co mpliance and enforcement
Part 6-5 Hearings
Division 1 Introduction
Section 276
266 National Consumer Credit Protection Bill 2009 No. , 2009
Part 6-5--Hearings
1
Division 1--Introduction
2
276 Guide to this Part
3
This Part is about hearings held by ASIC.
4
Division 2 gives ASIC the power to hold hearings for the purpose
5
of the performance of its functions and powers under the
6
Commonwealth credit legislation (other than Part 6-1).
7
Division 2 also includes rules and procedures for the conduct of
8
hearings, including rules in relation to whether the hearing is
9
conducted in private, and rules in relation to evidence and
10
proceedings at hearings.
11
12
Co mpliance and enforcement Chapter 6
Hearings Part 6-5
Hearings Division 2
Section 277
National Consumer Credit Protection Bill 2009 No. , 2009 267
Division 2--Hearings
1
277 Powe r to hold hearings
2
ASIC may hold hearings for the purposes of the performance or
3
exercise of any of its functions and powers under the
4
Commonwealth credit legislation, other than a function or power
5
conferred on it by Part 6-1 (which deals with investigations).
6
278 General discretion to hold hearing in public or private
7
(1) Subject to sections 279 and 280, ASIC may direct that a hearing
8
take place in public or take place in private.
9
(2) In exercising its discretion under subsection (1), ASIC must have
10
regard to:
11
(a) whether evidence that may be given, or a matter that may
12
arise, during the hearing is of a confidential nature or relates
13
to the commission, or to the alleged or suspected
14
commission, of an offence against a law of the
15
Commonwealth, a State or a Territory; and
16
(b) any unfair prejudice to a person's reputation that would be
17
likely to be caused if the hearing took place in public; and
18
(c) whether it is in the public interest that the hearing take place
19
in public; and
20
(d) any other relevant matter.
21
279 Request by person appearing at hearing that it take place in
22
public
23
(1) Subject to section 280, if:
24
(a) the Commonwealth credit legislation requires ASIC to give a
25
person an opportunity to appear at a hearing; and
26
(b) the person requests that the hearing or part of the hearing take
27
place in public;
28
the hearing or part must take place in public.
29
(2) Despite subsection (1), if ASIC is satisfied, having regard to the
30
matters referred to in subsection 278(2), that it is desirable that a
31
Chapter 6 Co mpliance and enforcement
Part 6-5 Hearings
Division 2 Hearings
Section 280
268 National Consumer Credit Protection Bill 2009 No. , 2009
hearing or part of a hearing take place in private, it may direct that
1
the hearing or part take place in private.
2
(3) If a direction given under subsection (2) is in writing, it is not a
3
legislative instrument.
4
280 Certain hearings to take place in private
5
If the Commonwealth credit legislation (other than this section)
6
requires a hearing to take place in private, the hearing must take
7
place in private.
8
281 ASIC may restrict publication of certain material
9
(1) If, at a hearing that is taking place in public or in private, ASIC is
10
satisfied that it is desirable to do so, ASIC may give directions
11
preventing or restricting the publication of evidence given before,
12
or of matters contained in documents lodged with, ASIC.
13
Note:
Failure to comply with a direction given under this subsection is an
14
offence (see section 293).
15
(2) In determining whether or not to give a direction under
16
subsection (1), ASIC must have regard to:
17
(a) whether evidence that has been or may be given, or a matter
18
that has arisen or may arise, during the hearing is of a
19
confidential nature or relates to the commission, or to the
20
alleged or suspected commission, of an offence against a law
21
of the Commonwealth, a State or a Territory; and
22
(b) any unfair prejudice to a person's reputation that would be
23
likely to be caused unless ASIC exercises its powers under
24
this section; and
25
(c) whether it is in the public interest that ASIC exercises its
26
powers under this section; and
27
(d) any other relevant matter.
28
(3) If a direction given under subsection (1) is in writing, it is not a
29
legislative instrument.
30
Co mpliance and enforcement Chapter 6
Hearings Part 6-5
Hearings Division 2
Section 282
National Consumer Credit Protection Bill 2009 No. , 2009 269
282 Who may be present when hearing takes place in private
1
(1) ASIC may give directions about who may be present during a
2
hearing that is to take place in private.
3
(2) A direction under subsection (1) does not prevent:
4
(a) a person whom the Commonwealth credit legislation requires
5
to be given the opportunity to appear at a hearing; or
6
(b) a person representing under section 285:
7
(i) a person of a kind referred to in paragraph (a) of this
8
subsection; or
9
(ii) a person who, by virtue of such a direction, is entitled to
10
be present at a hearing;
11
from being present during the hearing.
12
(3) If ASIC directs that a hearing take place in private, a person must
13
not be present at the hearing unless he or she:
14
(a) is an ASIC member; or
15
(b) is an ASIC staff member approved by ASIC; or
16
(c) is entitled to be present by virtue of:
17
(i) a direction under subsection (1); or
18
(ii) subsection (2).
19
Criminal penalty: 10 penalty units or 3 months imprisonment or
20
both.
21
(4) Subsection (3) is an offence of strict liability.
22
Note:
For strict liability, see section 6.1 of the Criminal Code.
23
(5) If a direction given under subsection (1) is in writing, it is not a
24
legislative instrument.
25
283 Involvement of person entitled to appear at hearing
26
(1) This section applies if the Commonwealth credit legislation
27
requires ASIC to give a person an opportunity to appear at a
28
hearing and to make submissions and give evidence to it.
29
(2) ASIC must appoint a place and time for the hearing and cause
30
written notice of that place and time to be given to the person.
31
Chapter 6 Co mpliance and enforcement
Part 6-5 Hearings
Division 2 Hearings
Section 284
270 National Consumer Credit Protection Bill 2009 No. , 2009
(3) If the person does not wish to appear at the hearing, the person
1
may, before the day of the hearing, lodge with ASIC any written
2
submissions that the person wishes ASIC to take into account in
3
relation to the matter concerned.
4
284 Powe r to summon witnesses and take evidence
5
(1) An ASIC member may, by written summons in the approved form
6
given to a person:
7
(a) require the person to appear before ASIC at a hearing to give
8
evidence, to produce specified documents, or to do both; and
9
(b) require the person to attend from day to day unless excused,
10
or released from further attendance, by an ASIC member.
11
Note:
Failure to comply with a requirement made under this subsection is an
12
offence (see section 290).
13
(2) At a hearing, ASIC may take evidence on oath or affirmation, and
14
for that purpose an ASIC member may:
15
(a) require a witness at the hearing to either take an oath or make
16
an affirmation; and
17
(b) administer an oath or affirmation to a witness at the hearing.
18
Note:
Failure to comply with a requirement made under this subsection is an
19
offence (see section 290).
20
(3) The oath or affirmation to be taken or made by a person for the
21
purposes of this section is an oath or affirmation that the evidence
22
the person will give will be true.
23
(4) The ASIC member presiding at a hearing:
24
(a) may require a witness at the hearing to answer a question put
25
to the witness; and
26
(b) may require a person appearing at the hearing pursuant to a
27
summons issued under this section to produce a document
28
specified in the summons.
29
Note:
Failure to comply with a requirement made under this subsection is an
30
offence (see section 290).
31
(5) An offence under subsection 290(2) relating to subsection (1), (2)
32
or (4) of this section is an offence of strict liability.
33
Note:
For strict liability, see section 6.1 of the Criminal Code.
34
Co mpliance and enforcement Chapter 6
Hearings Part 6-5
Hearings Division 2
Section 285
National Consumer Credit Protection Bill 2009 No. , 2009 271
(6) ASIC may permit a witness at a hearing to give evidence by
1
tendering, and if ASIC so requires, verifying by oath, a written
2
statement.
3
285 Proceedings at hearings
4
(1) A hearing must be conducted with as little formality and
5
technicality, and with as much expedition, as the requirements of
6
the Commonwealth credit legislation and a proper consideration of
7
the matters before ASIC permit.
8
(2) At a hearing, ASIC:
9
(a) is not bound by the rules of evidence; and
10
(b) may, on such conditions as it considers appropriate, permit a
11
person to intervene; and
12
(c) must observe the rules of natural justice.
13
(3) Subject to subsection (4), Division 4 of Part 4 of the ASIC Act
14
(other than section 104 of that Act) applies, so far as practicable, in
15
relation to a hearing as if the hearing were a meeting of ASIC.
16
(4) At a hearing before a Division of ASIC (established under
17
section 97 of the ASIC Act), 2 members of the Division form a
18
quorum.
19
(5) At a hearing, a natural person may appear in person or be
20
represented by an employee of the person approved by ASIC.
21
(6) A body corporate may be represented at a hearing by an officer
22
(within the meaning of section 5 of the ASIC Act) or employee of
23
the body corporate approved by ASIC.
24
(7) An unincorporated association, or a person in the person's capacity
25
as a member of an unincorporated association, may be represented
26
at a hearing by a member, officer (within the meaning of section 5
27
of the ASIC Act) or employee of the association approved by
28
ASIC.
29
(8) Any person may be represented at a hearing by a lawyer.
30
Chapter 6 Co mpliance and enforcement
Part 6-5 Hearings
Division 2 Hearings
Section 286
272 National Consumer Credit Protection Bill 2009 No. , 2009
286 ASIC to take account of evidence and submissions
1
ASIC must take into account:
2
(a) evidence given, or a submission made, to it at a hearing; or
3
(b) a submission lodged with it under section 283;
4
in making a decision on a matter to which the evidence or
5
submission relates.
6
287 Reference to court of question of law arising at hearing
7
(1) ASIC may, of its own motion or at a person's request, refer to the
8
court for decision a question of law arising at a hearing.
9
(2) If a question has been referred under subsection (1), ASIC must
10
not, in relation to a matter to which the hearing relates:
11
(a) give while the reference is pending a decision to which the
12
question is relevant; or
13
(b) proceed in a manner, or make a decision, that is inconsistent
14
with the court's opinion on the question.
15
(3) If a question is referred under subsection (1):
16
(a) ASIC must send to the court all documents that were before
17
ASIC in connection with the hearing; and
18
(b) at the end of the proceedings in the court in relation to the
19
reference, the court must cause the documents to be returned
20
to ASIC.
21
288 Protection of ASIC membe rs etc.
22
(1) An ASIC member has, in the performance or exercise of any of his
23
or her functions and powers as an ASIC member in relation to a
24
hearing, the same protection and immunity as a Justice of the High
25
Court.
26
(2) A delegate of an ASIC member has, in the performance or exercise
27
of any delegated function or power in relation to a hearing, the
28
same protection and immunity as a Justice of the High Court.
29
Co mpliance and enforcement Chapter 6
Hearings Part 6-5
Hearings Division 2
Section 288
National Consumer Credit Protection Bill 2009 No. , 2009 273
(3) A lawyer or other person appearing on a person's behalf at a
1
hearing has the same protection and immunity as a barrister has in
2
appearing for a party in proceedings in the High Court.
3
(4) Subject to this Act, a person who is required by a summons under
4
section 284 to appear at a hearing, or a witness at a hearing, has the
5
same protection as a witness in proceedings in the High Court.
6
7
Chapter 6 Co mpliance and enforcement
Part 6-6 Offences
Division 1 Introduction
Section 289
274 National Consumer Credit Protection Bill 2009 No. , 2009
Part 6-6--Offences
1
Division 1--Introduction
2
289 Guide to this Part
3
This Part is about offences for non-compliance with requirements
4
of this Chapter, and other offences in relation to requirements
5
made under this Chapter.
6
Division 2 includes offences for non-compliance with the
7
requirements of this Chapter. It also includes other offences
8
relating to compliance and enforcement, including offences
9
relating to giving false information, obstructing the exercise of
10
powers under this Chapter, and contempt of ASIC.
11
Division 2 also includes rules in relation to self-incrimination and
12
legal professional privilege.
13
14
Co mpliance and enforcement Chapter 6
Offences Part 6-6
Offences Division 2
Section 290
National Consumer Credit Protection Bill 2009 No. , 2009 275
Division 2--Offences
1
290 Contraventions of requirements made under this Chapter
2
(1) A person must not intentionally or recklessly refuse or fail to
3
comply with a requirement made under:
4
(a) section 253; or
5
(b) subsection 255(4); or
6
(c) section 265, 266, 267 or 268; or
7
(d) subsection 271(9); or
8
(e) section 272.
9
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
10
both.
11
(2) A person must not refuse or fail to comply with a requirement
12
made under subsection 255(1) or 264(2), paragraph 258(2)(a) or
13
subsection 274(4), 284(1), (2) or (4).
14
Criminal penalty: 10 penalty units, or 3 months imprisonment,
15
or both.
16
(3) A person must comply with a requirement made under subsection
17
257(2).
18
Criminal penalty: 5 penalty units.
19
(4) Subsections (1) and (2) do not apply to the extent that the person
20
has a reasonable excuse.
21
Note:
A defendant bears an evidential burden in relation to the matter in
22
subsection (4) (see subsection 13.3(3) of the Criminal Code).
23
(5) Paragraph (1)(d) does not apply to the extent that the person has
24
explained the matter to the best of his or her knowledge or belief.
25
Note:
A defendant bears an evidential burden in relation to the matter in
26
subsection (5) (see subsection 13.3(3) of the Criminal Code).
27
(6) Paragraph (1)(e) does not apply to the extent that the person has
28
stated the matter to the best of his or her knowledge or belief.
29
Note:
A defendant bears an evidential burden in relation to the matter in
30
subsection (6) (see subsection 13.3(3) of the Criminal Code).
31
Chapter 6 Co mpliance and enforcement
Part 6-6 Offences
Division 2 Offences
Section 291
276 National Consumer Credit Protection Bill 2009 No. , 2009
291 False information
1
(1) A person must not:
2
(a) in purported compliance with a requirement made under this
3
Chapter; or
4
(b) in the course of an examination of the person;
5
give information, or make a statement, that is false or misleading in
6
a material particular.
7
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
8
both.
9
(2) A person must not, at a hearing, give evidence that is false or
10
misleading in a material particular.
11
Criminal penalty: 10 penalty units, or 3 months imprisonment,
12
or both.
13
(3) It is a defence to a prosecution for a contravention of subsection (1)
14
or (2) if it is proved that the defendant, when giving the
15
information or evidence or making the statement, believed on
16
reasonable grounds that it was true and not misleading.
17
Note:
A defendant bears a legal burden in relation to the matter in
18
subsection (3) (see section 13.4 of the Criminal Code).
19
292 Obstructing person executing a warrant under this Chapte r
20
(1) A person must not engage in conduct that results in the obstruction
21
or hindering of a person who is executing a warrant issued under
22
section 270.
23
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
24
both.
25
(2) Subsection (1) does not apply to the extent that the person has a
26
reasonable excuse.
27
Note:
A defendant bears an evidential burden in relation to the matter in
28
subsection (2) (see subsection 13.3(3) of the Criminal Code).
29
(3) The occupier, or person in charge, of premises that a person enters
30
under a warrant issued under section 270 must not intentionally or
31
recklessly refuse or fail to provide to that person all reasonable
32
Co mpliance and enforcement Chapter 6
Offences Part 6-6
Offences Division 2
Section 293
National Consumer Credit Protection Bill 2009 No. , 2009 277
facilities and assistance for the effective exercise of his or her
1
powers under the warrant.
2
Criminal penalty: 25 penalty units, or 6 months imprisonment,
3
or both.
4
293 Disrupting hearings
5
(1) A person must not engage in conduct that results in the disruption
6
of a hearing.
7
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
8
both.
9
(2) A person must not contravene a direction given under subsection
10
281(1).
11
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
12
both.
13
(3) Subsection (2) does not apply to the extent that the person has a
14
reasonable excuse.
15
Note:
A defendant bears an evidential burden in relation to the matter in
16
subsection (3) (see subsection 13.3(3) of the Criminal Code).
17
(4) Subsection (2) is an offence of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
(5) An offence constituted by a contravention of subsection (1) or (2)
20
is punishable on summary conviction.
21
294 Concealing books relevant to investigation
22
(1) If ASIC is investigating, or is about to investigate, a matter, a
23
person must not:
24
(a) in any case--engage in conduct that results in the
25
concealment, destruction, mutilation or alteration of a book
26
relating to that matter; or
27
(b) if a book relating to that matter is in a particular State or
28
Territory--engage in conduct that results in the taking or
29
Chapter 6 Co mpliance and enforcement
Part 6-6 Offences
Division 2 Offences
Section 295
278 National Consumer Credit Protection Bill 2009 No. , 2009
sending of the book out of that State or Territory or out of
1
Australia.
2
Criminal penalty: 200 penalty units, or 5 years imprisonment, or
3
both.
4
(2) It is a defence to a prosecution for a contravention of subsection (1)
5
if it is proved that the defendant intended neither to defeat the
6
purposes of the Commonwealth credit legislation, nor to delay or
7
obstruct an investigation, or a proposed investigation, by ASIC.
8
Note:
A defendant bears a legal burden in relation to a matter referred to in
9
subsection (2) ( see section 13.4 of the Criminal Code).
10
295 Self-incrimination
11
(1) For the purposes of this Chapter, it is not a reasonable excuse for a
12
person to refuse or fail:
13
(a) to give information; or
14
(b) to sign a record; or
15
(c) to produce a book;
16
in accordance with a requirement made of the person, that the
17
information, signing the record or production of the book, as the
18
case may be, might tend to incriminate the person or make the
19
person liable to a penalty.
20
(2) Subsection (3) applies if:
21
(a) before:
22
(i) making an oral statement giving information; or
23
(ii) signing a record;
24
pursuant to a requirement made under this Chapter, a person
25
(other than a body corporate) claims that the statement, or
26
signing the record, as the case may be, might tend to
27
incriminate the person or make the person liable to a penalty;
28
and
29
(b) the statement, or signing the record, as the case may be,
30
might in fact tend to incriminate the person or make the
31
person so liable.
32
Co mpliance and enforcement Chapter 6
Offences Part 6-6
Offences Division 2
Section 296
National Consumer Credit Protection Bill 2009 No. , 2009 279
(3) The statement, or the fact that the person has signed the record, as
1
the case may be, is not admissible in evidence against the person
2
in:
3
(a) criminal proceedings; or
4
(b) proceedings for the imposition of a penalty;
5
other than proceedings in relation to:
6
(c) in the case of the making of a statement--the falsity of the
7
statement; or
8
(d) in the case of the signing of a record--the falsity of any
9
statement contained in the record.
10
296 Legal professional privilege
11
(1) This section applies if:
12
(a) under this Chapter, a person requires a lawyer:
13
(i) to give information; or
14
(ii) to produce a book; and
15
(b) giving the information would involve disclosing, or the book
16
contains, as the case may be, a privileged communication
17
made by, on behalf of or to the lawyer in his or her capacity
18
as a lawyer.
19
(2) The lawyer is entitled to refuse to comply with the requirement
20
unless:
21
(a) if the person to whom, or by or on behalf of whom, the
22
communication was made is a body corporate that is being
23
wound up--the liquidator (within the meaning of section 9 of
24
the Corporations Act 2001) of the body; or
25
(b) otherwise--the person to whom, or by or on behalf of whom,
26
the communication was made;
27
consents to the lawyer complying with the requirement.
28
(3) If the lawyer so refuses, he or she must, as soon as practicable, give
29
to the person who made the requirement a written notice setting
30
out:
31
(a) if the lawyer knows the name and address of the person to
32
whom, or by or on behalf of whom, the communication was
33
made--that name and address; and
34
Chapter 6 Co mpliance and enforcement
Part 6-6 Offences
Division 2 Offences
Section 297
280 National Consumer Credit Protection Bill 2009 No. , 2009
(b) if subparagraph (1)(a)(i) applies and the communication was
1
made in writing--sufficient particulars to identify the
2
document containing the communication; and
3
(c) if subparagraph (1)(a)(ii) applies--sufficient particulars to
4
identify the book, or the part of the book, containing the
5
communication.
6
Criminal penalty: 10 penalty units, or 3 months imprisonment,
7
or both.
8
297 Powe rs of court relating to contraventions of this Chapter
9
(1) This section applies if ASIC is satisfied that a person has, without
10
reasonable excuse, refused or failed to comply with a requirement
11
made under this Chapter, other than Part 6-7 (which deals with
12
ASIC's powers in relation to non-compliance with this Chapter).
13
(2) ASIC may by writing certify the refusal or failure to the court.
14
(3) If ASIC does so, the court may inquire into the case and may order
15
the person to comply with the requirement as specified in the order.
16
17
Co mpliance and enforcement Chapter 6
ASIC's powers in relation to contraventions of this Chapter Part 6-7
Introduction Division 1
Section 298
National Consumer Credit Protection Bill 2009 No. , 2009 281
Part 6-7--ASIC's powers in relation to
1
contraventions of this Chapter
2
Division 1--Introduction
3
298 Guide to this Part
4
This Part is about powers of ASIC to in relation to non-compliance
5
with this Chapter.
6
Division 2 is about orders that ASIC may make in relation to credit
7
contracts, mortgages, guarantees and consumer leases.
8
9
Chapter 6 Co mpliance and enforcement
Part 6-7 ASIC's powers in relation to contraventions of this Chapter
Division 2 ASIC's powers in relation to contraventions of this Chapter
Section 299
282 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--ASIC's powers in relation to contraventions of
1
this Chapter
2
299 Application of this Part
3
This Part applies if, in ASIC's opinion, information about a credit
4
contract, mortgage, guarantee or consumer lease needs to be found
5
out for the purposes of the exercise of any of ASIC's powers under
6
this Chapter but cannot be found out because a person has refused
7
or failed to comply with a requirement made under this Chapter.
8
300 Orde rs by ASIC relating to credit contracts, mortgages,
9
guarantees or consumer leases
10
(1) ASIC may make one or more of the following:
11
(a) an order restraining a specified person from assigning any
12
interest in a credit contact, mortgage, guarantee or consumer
13
lease;
14
(b) an order restraining a specified person from acquiring any
15
interest in a credit contact, mortgage, guarantee or consumer
16
lease;
17
(c) an order restraining the exercise of rights under a credit
18
contract, mortgage, guarantee or consumer lease;
19
(d) an order directing a:
20
(i) credit provider under a credit contract; or
21
(ii) mortgagee under a mortgage; or
22
(iii) beneficiary of a guarantee under a guarantee; or
23
(iv) lessor under a consumer lease;
24
in relation to which an order under this section is in force to
25
give written notice of that order to any person whom the
26
credit provider, mortgagee, beneficiary or lessor knows to be
27
entitled to exercise a right in relation to the credit contract,
28
mortgage, guarantee or consumer lease.
29
(2) An offence under subsection 301(4) relating to subsection (1) of
30
this section is an offence of strict liability.
31
Note:
For strict liability, see section 6.1 of the Criminal Code.
32
Co mpliance and enforcement Chapter 6
ASIC's powers in relation to contraventions of this Chapter Part 6-7
ASIC's powers in relation to contraventions of this Chapter Division 2
Section 301
National Consumer Credit Protection Bill 2009 No. , 2009 283
(3) An order made under subsection (1) is not a legislative instrument.
1
301 Orde rs under this Part
2
(1) ASIC may make an order varying or revoking an order in force
3
under this Part.
4
(2) An order under this Part must be made by notice published in the
5
Gazette or on ASIC's website.
6
(3) If an order is made under this Part (other than subsection (1)),
7
ASIC must cause to be given to the person to whom the order is
8
directed:
9
(a) a copy of the order; and
10
(b) a copy of each order varying or revoking it.
11
(4) A person must comply with an order in force under this Part.
12
Criminal penalty: 25 penalty units, or 6 months imprisonment,
13
or both.
14
15
Chapter 6 Co mpliance and enforcement
Part 6-8 Evidentiary use of certain material
Division 1 Introduction
Section 302
284 National Consumer Credit Protection Bill 2009 No. , 2009
Part 6-8--Evidentiary use of certain material
1
Division 1--Introduction
2
302 Guide to this Part
3
This Part is about the evidentiary use and value of certain material.
4
Division 2 includes rules in relation to the evidentiary value of
5
statements made at examinations, copies or extracts made from
6
certain books, and reports of investigations made under Part 6-1.
7
8
Co mpliance and enforcement Chapter 6
Ev identiary use of certain material Part 6-8
Ev identiary use of certain material Division 2
Section 303
National Consumer Credit Protection Bill 2009 No. , 2009 285
Division 2--Evidentiary use of certain material
1
303 Statements made at an examination: proceedings against
2
examinee
3
(1) A statement that a person makes at an examination of the person is
4
admissible in evidence against the person in proceedings unless:
5
(a) because of subsection 295(3), the statement is not admissible
6
in evidence against the person in the proceedings; or
7
(b) the statement is not relevant to the proceedings and the
8
person objects to the admission of evidence of the statement;
9
or
10
(c) the statement (the first statement) is qualified or explained by
11
some other statement made at the examination, evidence of
12
the other statement is not tendered in the proceedings and the
13
person objects to the admission of evidence of the first
14
statement; or
15
(d) the statement discloses matter in relation to which the person
16
could claim legal professional privilege in the proceedings if
17
this subsection did not apply in relation to the statement, and
18
the person objects to the admission of evidence of the
19
statement.
20
(2) Subsection (1) applies in relation to proceedings against a person
21
even if it is heard together with proceedings against another
22
person.
23
(3) If a written record of an examination of a person is signed by the
24
person under subsection 258(2) or authenticated in any other
25
manner prescribed by the regulations, the record is, in proceedings,
26
prima facie evidence of the statements it records, but nothing in
27
this Chapter limits or affects the admissibility in the proceedings of
28
other evidence of statements made at the examination.
29
304 Statements made at an examination: other proceedings
30
If direct evidence by a person (the absent witness) of a matter
31
would be admissible in proceedings, a statement that the absent
32
witness made at an examination of the absent witness and that
33
Chapter 6 Co mpliance and enforcement
Part 6-8 Evidentiary use of certain material
Division 2 Ev identiary use of certain material
Section 305
286 National Consumer Credit Protection Bill 2009 No. , 2009
tends to establish that matter is admissible in the proceedings as
1
evidence of that matter:
2
(a) if it appears to the court or tribunal that:
3
(i) the absent witness is dead or is unfit, because of
4
physical or mental incapacity, to attend as a witness; or
5
(ii) the absent witness is outside the State or Territory in
6
which the proceedings is being heard and it is not
7
reasonably practicable to secure his or her attendance;
8
or
9
(iii) all reasonable steps have been taken to find the absent
10
witness but he or she cannot be found; or
11
(b) if it does not so appear to the court or tribunal--unless
12
another party to the proceedings requires the party tendering
13
evidence of the statement to call the absent witness as a
14
witness in the proceedings and the tendering party does not
15
so call the absent witness.
16
305 Weight of evidence admitted under section 304
17
(1) This section applies if evidence of a statement made by a person at
18
an examination of the person is admitted under section 304 in
19
proceedings.
20
(2) In deciding how much weight (if any) to give to the statement as
21
evidence of a matter, regard is to be had to:
22
(a) how long after the matters to which it related the statement
23
was made; and
24
(b) any reason the person may have had for concealing or
25
misrepresenting a material matter; and
26
(c) any other circumstances from which it is reasonable to draw
27
an inference about how accurate the statement is.
28
(3) If the person is not called as a witness in the proceedings:
29
(a) evidence that would, if the person had been so called, have
30
been admissible in the proceedings for the purpose of
31
destroying or supporting his or her credibility is so
32
admissible; and
33
Co mpliance and enforcement Chapter 6
Ev identiary use of certain material Part 6-8
Ev identiary use of certain material Division 2
Section 306
National Consumer Credit Protection Bill 2009 No. , 2009 287
(b) evidence is admissible to show that the statement is
1
inconsistent with another statement that the person has made
2
at any time.
3
(4) However, evidence of a matter is not admissible under this section
4
if, had the person been called as a witness in the proceedings and
5
denied the matter in cross-examination, evidence of the matter
6
would not have been admissible if adduced by the cross-examining
7
party.
8
306 Objection to admission of statements made at examination
9
(1) A party (the adducing party) to proceedings may, not less than 14
10
days before the first day of the hearing of the proceedings, give to
11
another party to the proceedings written notice that the adducing
12
party:
13
(a) will apply to have admitted in evidence in the proceedings
14
specified statements made at an examination; and
15
(b) for that purpose, will apply to have evidence of those
16
statements admitted in the proceedings.
17
(2) A notice under subsection (1) must set out, or be accompanied by
18
writing that sets out, the specified statements.
19
(3) Within 14 days after a notice is given under subsection (1), the
20
other party may give to the adducing party a written notice:
21
(a) stating that the other party objects to specified statements
22
being admitted in evidence in the proceedings; and
23
(b) specifies, in relation to each of those statements, the grounds
24
of objection.
25
(4) The period prescribed by subsection (3) may be extended by the
26
court or tribunal or by agreement between the parties concerned.
27
(5) On receiving a notice given under subsection (3), the adducing
28
party must give to the court or tribunal a copy of:
29
(a) the notice under subsection (1) and any writing that
30
subsection (2) required to accompany that notice; and
31
(b) the notice under subsection (3).
32
(6) If subsection (5) is complied with, the court or tribunal may either:
33
Chapter 6 Co mpliance and enforcement
Part 6-8 Evidentiary use of certain material
Division 2 Ev identiary use of certain material
Section 307
288 National Consumer Credit Protection Bill 2009 No. , 2009
(a) determine the objections as a preliminary point before the
1
hearing of the proceedings begins; or
2
(b) defer determination of the objections until the hearing.
3
(7) If a notice has been given in accordance with subsections (1) and
4
(2), the other party is not entitled to object at the hearing of the
5
proceedings to a statement specified in the notice being admitted in
6
evidence in the proceedings, unless:
7
(a) the other party has, in accordance with subsection (3),
8
objected to the statement being so admitted; or
9
(b) the court or tribunal gives the other party leave to object to
10
the statement being so admitted.
11
307 Copies of, or extracts from, certain books
12
(1) A copy of, or an extract from, a book relating to:
13
(a) affairs of a licensee, credit representative or other person who
14
engages, or has engaged, in a credit activity; or
15
(b) a matter referred to in paragraph 266(1)(d) or (e);
16
is admissible in evidence in proceedings as if the copy were the
17
original book, or the extract were the relevant part of the original
18
book, as the case may be, whether or not the copy or extract was
19
made under section 271.
20
(2) A copy of, or an extract from, a book is not admissible in evidence
21
under subsection (1) unless it is proved that the copy or extract is a
22
true copy of the book, or of the relevant part of the book, as the
23
case may be.
24
(3) For the purposes of subsection (2), a person who has compared:
25
(a) a copy of a book with the book; or
26
(b) an extract from a book with the relevant part of the book;
27
may give evidence, either orally or by an affidavit or statutory
28
declaration, that the copy or extract is a true copy of the book or
29
relevant part, as the case may be.
30
Co mpliance and enforcement Chapter 6
Ev identiary use of certain material Part 6-8
Ev identiary use of certain material Division 2
Section 308
National Consumer Credit Protection Bill 2009 No. , 2009 289
308 Report under Part 6-1
1
Subject to section 309, if a copy of a report under Part 6-1 purports
2
to be certified by ASIC as a true copy of such a report, the copy is
3
admissible in proceedings (other than criminal proceedings) as
4
prima facie evidence of any facts or matters that the report states
5
ASIC to have found to exist.
6
309 Exceptions to admissibility of report
7
(1) This section applies if a party to proceedings tenders a copy of a
8
report as evidence against another party.
9
(2) The copy is not admissible under section 308 in the proceedings as
10
evidence against the other party unless the court or tribunal is
11
satisfied that:
12
(a) a copy of the report has been given to the other party; and
13
(b) the other party, and the other party's lawyer, have had a
14
reasonable opportunity to examine that copy and to take its
15
contents into account in preparing the other party's case.
16
(3) Before or after the copy referred to in subsection (1) is admitted in
17
evidence, the other party may apply to cross-examine, in relation to
18
the report, a specified person who, or 2 or more specified persons
19
each of whom:
20
(a) was concerned in preparing the report or making a finding
21
about a fact or matter that the report states ASIC to have
22
found to exist; or
23
(b) whether or not pursuant to a requirement made under this
24
Part, gave information, or produced a book, on the basis of
25
which, or on the basis of matters including which, such a
26
finding was made.
27
(4) The court or tribunal must grant an application made under
28
subsection (3) unless it considers that, in all the circumstances, it is
29
not appropriate to do so.
30
(5) If:
31
(a) the court or tribunal grants an application or applications
32
made under subsection (3); and
33
Chapter 6 Co mpliance and enforcement
Part 6-8 Evidentiary use of certain material
Division 2 Ev identiary use of certain material
Section 310
290 National Consumer Credit Protection Bill 2009 No. , 2009
(b) a person to whom the application or any of the applications
1
relate, or 2 or more such persons, is or are unavailable, or
2
does not or do not attend, to be cross-examined in relation to
3
the report; and
4
(c) the court or tribunal is of the opinion that to admit the copy
5
under section 308 in the proceedings as evidence against the
6
other party without the other party having the opportunity so
7
to cross-examine the person or persons would unfairly
8
prejudice the other party;
9
the court or tribunal must refuse so to admit the copy, or must treat
10
the copy as not having been so admitted, as the case requires.
11
310 Material otherwise admissible
12
Nothing in this Part renders evidence inadmissible in proceedings
13
in circumstances if it would have been admissible in those
14
proceedings if this Part had not been enacted.
15
16
Co mpliance and enforcement Chapter 6
Miscellaneous provisions relating to compliance and enforcement Part 6-9
Introduction Division 1
Section 311
National Consumer Credit Protection Bill 2009 No. , 2009 291
Part 6-9--Miscellaneous provisions relating to
1
compliance and enforcement
2
Division 1--Introduction
3
311 Guide to this Part
4
This Part includes miscellaneous provisions relating to this
5
Chapter.
6
7
Chapter 6 Co mpliance and enforcement
Part 6-9 Miscellaneous provisions relating to compliance and enforcement
Division 2 Miscellaneous provisions relating to comp liance and enforcement
Section 312
292 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Miscellaneous provisions relating to
1
compliance and enforcement
2
312 Requirement made of a body corporate
3
If a provision of this Chapter empowers a person to make a
4
requirement of a body corporate, the provision also empowers the
5
person to make that requirement of a person who is or has been an
6
officer (within the meaning of section 5 of the ASIC Act) or
7
employee of the body.
8
313 Evidence of authority
9
(1) A person (the inspector), other than ASIC, who is about to make,
10
or has made, a requirement of another person under this Chapter
11
(other than Part 6-5) must, if the other person requests evidence of
12
the inspector's authority to make the requirement, produce to the
13
other person:
14
(a) a current identity card that was issued to the inspector by
15
ASIC and incorporates a photograph of the inspector; and
16
(b) if the requirement will be, or was, made under an
17
authorisation by ASIC--a document that was issued by ASIC
18
and sets out the effect of so much of the authorisation as is
19
relevant to making the requirement; and
20
(c) otherwise--such evidence (if any) of the inspector's
21
authority to make the requirement as ASIC determines.
22
(2) An identity card under paragraph (1)(a) is not a legislative
23
instrument.
24
314 Giving docume nts to natural persons
25
Section 109X of the Corporations Act 2001 applies for the
26
purposes of this Chapter as if a reference in subsection (2) of that
27
section to leaving a document at an address were a reference to
28
leaving it at that address with a person whom the person leaving
29
the document believes on reasonable grounds:
30
(a) to live or work at that address; and
31
(b) to have attained the age of 16 years.
32
Co mpliance and enforcement Chapter 6
Miscellaneous provisions relating to compliance and enforcement Part 6-9
Miscellaneous provisions relating to compliance and enforcement Division 2
Section 315
National Consumer Credit Protection Bill 2009 No. , 2009 293
315 Place and time for production of books
1
A provision of this Chapter that empowers a person to require the
2
production of books at a place and time specified by the person is
3
taken:
4
(a) to require the person to specify a place and time that are
5
reasonable in all the circumstances; and
6
(b) if it is reasonable in all the circumstances for the person to
7
require the books to be produced forthwith--to empower the
8
person to require the books to be produced forthwith.
9
316 Application of Crimes Act and Evidence Act
10
(1) For the purposes of Part III of the Crimes Act 1914, an examination
11
or a hearing is a judicial proceeding.
12
(2) Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of
13
the Evidence Act 1995 apply to an examination in the same way
14
that they apply to proceedings to which that Act applies under
15
section 4 of that Act.
16
317 Allowances and expenses
17
(1) A person who, pursuant to a requirement made under section 253,
18
appears for examination is entitled to the allowances and expenses
19
prescribed by the regulations (if any).
20
(2) A person who, pursuant to a summons issued under section 284,
21
appears at a hearing is entitled to be paid:
22
(a) if the summons was issued at another person's request--by
23
that other person; or
24
(b) otherwise--by ASIC;
25
allowances and expenses prescribed by the regulations (if any).
26
(3) ASIC may pay such amount as it considers reasonable on account
27
of the costs and expenses (if any) that a person incurs in complying
28
with a requirement made under this Chapter.
29
Chapter 6 Co mpliance and enforcement
Part 6-9 Miscellaneous provisions relating to compliance and enforcement
Division 2 Miscellaneous provisions relating to comp liance and enforcement
Section 318
294 National Consumer Credit Protection Bill 2009 No. , 2009
318 Expenses of investigation unde r Part 6-1
1
Subject to section 319, ASIC must pay the expenses of an
2
investigation.
3
319 Recovery of expenses of investigation
4
(1) If:
5
(a) a person is convicted of an offence against a law of the
6
Commonwealth, or a law of a referring State or a Territory,
7
in a prosecution; or
8
(b) a judgment is awarded, or a declaration or other order is
9
made, against a person in proceedings in a court or tribunal
10
of this jurisdiction;
11
brought as a result of an investigation under Part 6-1, ASIC may
12
make one of the following orders:
13
(c) an order that the person pay the whole, or a specified part, of
14
the expenses of the investigation;
15
(d) an order that the person reimburse ASIC to the extent of a
16
specified amount of such of the expenses of the investigation
17
as ASIC has paid;
18
(e) an order that the person pay, or reimburse ASIC in relation
19
to, the whole, or a specified part, of the cost to ASIC of
20
making the investigation, including the remuneration of an
21
ASIC member or ASIC staff member concerned in the
22
investigation.
23
(2) An order under this section must be in writing and must specify
24
when and how the payment or reimbursement is to be made.
25
(3) A person must comply with an order under this section that is
26
applicable to the person.
27
Criminal penalty: 50 penalty units, or 1 year imprisonment, or
28
both.
29
(4) Subsection (3) is an offence of strict liability.
30
Note:
For strict liability, see section 6.1 of the Criminal Code.
31
Co mpliance and enforcement Chapter 6
Miscellaneous provisions relating to compliance and enforcement Part 6-9
Miscellaneous provisions relating to compliance and enforcement Division 2
Section 320
National Consumer Credit Protection Bill 2009 No. , 2009 295
(5) ASIC may recover in a court of competent jurisdiction as a debt
1
due to ASIC so much of the amount payable under an order made
2
under this section as is not paid in accordance with the order.
3
(6) A report under Part 6-1 may include recommendations about the
4
making of orders under this section.
5
(7) An order made under this section is not a legislative instrument.
6
320 Compliance with this Chapter
7
A person is neither liable to proceedings, nor subject to a liability,
8
merely because the person has complied, or proposes to comply,
9
with a requirement made, or purporting to have been made, under
10
this Chapter.
11
321 Effect of this Chapter
12
(1) Except as expressly provided, nothing in this Chapter limits the
13
generality of anything else in this Chapter.
14
(2) The functions and powers that this Chapter confers are in addition
15
to, and do not derogate from, any other function or power
16
conferred by a law of the Commonwealth, a State or a Territory.
17
322 Enforce ment of undertakings
18
(1) ASIC may accept a written undertaking given by a person in
19
connection with a matter in relation to which ASIC has a function
20
or power under the Commonwealth credit legislation.
21
(2) The person may withdraw or vary the undertaking at any time, but
22
only with ASIC's consent.
23
(3) If ASIC considers that the person who gave the undertaking has
24
breached any of its terms, ASIC may apply to the court for an order
25
under subsection (4).
26
(4) If the court is satisfied that the person has breached a term of the
27
undertaking, the court may make all or any of the following orders:
28
(a) an order directing the person to comply with that term of the
29
undertaking;
30
Chapter 6 Co mpliance and enforcement
Part 6-9 Miscellaneous provisions relating to compliance and enforcement
Division 2 Miscellaneous provisions relating to comp liance and enforcement
Section 322
296 National Consumer Credit Protection Bill 2009 No. , 2009
(b) an order directing the person to pay to the Commonwealth an
1
amount up to the amount of any financial benefit that the
2
person has obtained directly or indirectly and that is
3
reasonably attributable to the breach;
4
(c) any order that the court considers appropriate directing the
5
person to compensate any other person who has suffered loss
6
or damage as a result of the breach;
7
(d) any other order that the court considers appropriate.
8
9
Miscellaneous Chapter 7
Miscellaneous Part 7-1
Introduction Division 1
Section 323
National Consumer Credit Protection Bill 2009 No. , 2009 297
Chapter 7--Miscellaneous
1
Part 7-1--Miscellaneous
2
Division 1--Introduction
3
323 Guide to this Part
4
This Part deals with miscellaneous matters.
5
Division 2 deals with when a person will be liable for the conduct
6
of others (usually the person's employee or agent).
7
Division 3 provides for AAT review of ASIC's decisions.
8
Division 4 provides for regulations to be made.
9
Division 5 has other miscellaneous provisions (such as Ministerial
10
delegations).
11
12
Chapter 7 Miscellaneous
Part 7-1 Miscellaneous
Division 2 Liab ility of persons for conduct of their agents etc.
Section 324
298 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Liability of persons for conduct of their agents
1
etc.
2
324 Liability for bodies corporate for conduct of their agents,
3
employees etc.
4
Liability of bodies corporate
5
(1) Any conduct engaged in on behalf of a body corporate:
6
(a) by a director, employee or agent (an official) of the body
7
within the scope of the person's actual or apparent authority;
8
or
9
(b) by any other person at the direction or with the consent or
10
agreement (whether express or implied) of an official of the
11
body, if the giving of the direction, consent or agreement is
12
within the scope of the actual or apparent authority of the
13
official;
14
is taken, for the purposes of this Act (other than the National Credit
15
Code), to have been engaged in also by the body.
16
(2) Any conduct engaged in by a person (for example, the giving of
17
money) in relation to:
18
(a) an official of the body acting within the scope of his or her
19
actual or apparent authority; or
20
(b) any other person acting at the direction or with the consent or
21
agreement (whether express or implied) of an official of the
22
body, if the giving of the direction, consent or agreement is
23
within the scope of the actual or apparent authority of the
24
official;
25
is taken, for the purposes of this Act (other than the National Credit
26
Code), to have been engaged in also in relation to the body.
27
State of mind of a body corporate
28
(3) If, for the purposes of this Act (other than the National Credit
29
Code), it is necessary to establish the state of mind of the body
30
corporate in relation to particular conduct, it is enough to show:
31
(a) that the conduct was engaged in by a person referred to in
32
paragraph (1)(a) or (b); and
33
Miscellaneous Chapter 7
Miscellaneous Part 7-1
Liability of persons for conduct of their agents etc. Division 2
Section 325
National Consumer Credit Protection Bill 2009 No. , 2009 299
(b) that the person had that state of mind.
1
Disapplication of Part 2.5 of the Criminal Code
2
(4) Part 2.5 of the Criminal Code does not apply to an offence against
3
this Act.
4
Note:
Part 2.5 of the Criminal Code deals with corporate criminal
5
responsibility, but this section instead deals with that for the purposes
6
of this Act (other than the National Credit Code), and section 199 of
7
the National Credit Code deals with that for the purpose of that Code.
8
325 Liability of persons (other than bodies corporate) for the
9
conduct of their age nts, employees etc.
10
Liability of principals
11
(1) Any conduct engaged in on behalf of a person (the principal) who
12
is not a body corporate:
13
(a) by any of the following persons (an official) within the scope
14
of the person's actual or apparent authority:
15
(i) an employee or agent of the principal;
16
(ii) if the principal is a partnership--a partner;
17
(iii) if the principal is the trustees of a trust--a trustee; or
18
(b) by any other person at the direction or with the consent or
19
agreement (whether express or implied) of an official of the
20
principal, if the giving of the direction, consent or agreement
21
is within the scope of the actual or apparent authority of the
22
official;
23
is taken, for the purposes of this Act (other than the National Credit
24
Code), to have been engaged in also by the principal.
25
(2) Any conduct engaged in by a person (for example, the giving of
26
money) in relation to:
27
(a) an official of the principal acting within the scope of his or
28
her actual or apparent authority; or
29
(b) any other person acting at the direction or with the consent or
30
agreement (whether express or implied) of an official of the
31
principal, if the giving of the direction, consent or agreement
32
is within the scope of the actual or apparent authority of the
33
official;
34
Chapter 7 Miscellaneous
Part 7-1 Miscellaneous
Division 2 Liab ility of persons for conduct of their agents etc.
Section 326
300 National Consumer Credit Protection Bill 2009 No. , 2009
is taken, for the purposes of this Act (other than the National Credit
1
Code), to have been engaged in also in relation to the principal.
2
State of mind of the principal
3
(3) If, for the purposes of this Act (other than the National Credit
4
Code), it is necessary to establish the state of mind of the principal
5
in relation to particular conduct, it is enough to show:
6
(a) that the conduct was engaged in by a person referred to in
7
paragraph (1)(a) or (b); and
8
(b) that the person had that state of mind.
9
326 Regulations for the purposes of this Division
10
The regulations may modify this Division for the purposes
11
prescribed in the regulations.
12
13
Miscellaneous Chapter 7
Miscellaneous Part 7-1
Review of ASIC's decisions Division 3
Section 327
National Consumer Credit Protection Bill 2009 No. , 2009 301
Division 3--Review of ASIC's decisions
1
327 Review by Administrative Appeals Tribunal of decisions by
2
ASIC under this Act
3
(1) An application may be made to the Administrative Appeals
4
Tribunal for review of a decision (within the meaning of the
5
Administrative Appeals Tribunal Act 1975) made by ASIC under
6
this Act other than:
7
(a) a decision of ASIC under section 241 (dealing with approved
8
codes of conduct); or
9
(b) a decision to make a determination under subsection 328(3).
10
(2) Section 27A of the Administrative Appeals Tribunal Act 1975 does
11
not apply to the decision.
12
328 Notice of reviewable decision and review rights
13
(1) This section applies if ASIC makes a decision to which section 327
14
applies.
15
(2) Subject to subsection (3), ASIC must take such steps as are
16
reasonable in the circumstances to give to each person whose
17
interests are affected by the decision notice, in writing or
18
otherwise:
19
(a) of the making of the decision; and
20
(b) of the person's right to have the decision reviewed by the
21
Administrative Appeals Tribunal.
22
(3) Subsection (2) does not require ASIC to give notice to a person
23
affected by the decision or to the persons in a class of persons
24
affected by the decision, if ASIC determines that giving notice to
25
the person or persons is not warranted, having regard to:
26
(a) the cost of giving notice to the person or persons; and
27
(b) the way in which the interests of the person or persons are
28
affected by the decision.
29
(4) A determination made under subsection (3) is not a legislative
30
instrument.
31
Chapter 7 Miscellaneous
Part 7-1 Miscellaneous
Division 3 Rev iew o f ASIC's decisions
Section 328
302 National Consumer Credit Protection Bill 2009 No. , 2009
(5) A failure to comply with this section does not affect the validity of
1
the decision.
2
3
Miscellaneous Chapter 7
Miscellaneous Part 7-1
Regulations Division 4
Section 329
National Consumer Credit Protection Bill 2009 No. , 2009 303
Division 4--Regulations
1
329 Regulations
2
The Governor-General may make regulations prescribing matters:
3
(a) required or permitted by this Act to be prescribed; or
4
(b) necessary or convenient to be prescribed for carrying out or
5
giving effect to this Act.
6
330 Regulations--whe re proceedings may be brought
7
The regulations may prescribe the location for where court
8
proceedings in relation to the following must be brought:
9
(a) matters arising under this Act;
10
(b) credit contracts;
11
(c) mortgages;
12
(d) guarantees;
13
(e) consumer leases.
14
331 Regulations--infringe ment notices
15
Infringement notices for civil penalties
16
(1) The regulations may provide for a person who is alleged to have
17
contravened a civil penalty provision to pay a penalty to the
18
Commonwealth as an alternative to civil proceedings.
19
(2) The penalty must not exceed one-fourtieth of the maximum penalty
20
that a court could impose on the person for contravention of that
21
provision.
22
Infringement notices for offences
23
(3) The regulations may provide for a person who is alleged to have
24
committed an offence against this Act that is stated to be an
25
offence of strict liability to pay a penalty to the Commonwealth as
26
an alternative to prosecution.
27
(4) The penalty must not exceed one-fifth of the maximum penalty that
28
a court could impose on the person for that offence.
29
Chapter 7 Miscellaneous
Part 7-1 Miscellaneous
Division 5 Other miscellaneous provisions
Section 332
304 National Consumer Credit Protection Bill 2009 No. , 2009
Division 5--Other miscellaneous provisions
1
332 Civil penalty provisions contravened or offences committed
2
partly in and partly out of this jurisdiction
3
If:
4
(a) a person does or omits to do an act outside this jurisdiction;
5
and
6
(b) if that person had done or omitted to do that act in this
7
jurisdiction, the person would, by reason of also having done
8
or omitted to do an act in this jurisdiction, have contravened
9
a civil penalty provision or committed an offence against this
10
Act;
11
the person contravenes that provision or commits that offence.
12
333 Contravention of Act does not generally affect validity of
13
transactions etc.
14
(1) A failure to comply with any requirement of this Act does not
15
affect the validity or enforceability of any transaction, contract,
16
instrument or other arrangement.
17
(2) Subsection (1) has effect subject to any express provision to the
18
contrary in:
19
(a) this Act (including regulations made under this Act); or
20
(b) regulations referred to in subsection (3).
21
(3) Regulations may provide that a failure to comply with a specified
22
requirement referred to in subsection (1) has a specified effect on
23
the validity or enforceability of a transaction, contract, instrument
24
or arrangement.
25
334 Contracting out etc.
26
(1) A provision of a contract or other instrument by which a person
27
seeks to avoid or modify the effect of this Act (other than the
28
National Credit Code) is void.
29
Note:
A similar rule applies for the purposes of the National Credit Code
30
(see section 191 of that Code).
31
Miscellaneous Chapter 7
Miscellaneous Part 7-1
Other miscellaneous provisions Division 5
Section 335
National Consumer Credit Protection Bill 2009 No. , 2009 305
(2) A provision of a contract or other instrument by which a person
1
seeks to have:
2
(a) a debtor indemnify a credit provider; or
3
(b) a mortgagor indemnify a mortgagee; or
4
(c) a guarantor indemnify a beneficiary of a guarantee; or
5
(d) a lessee indemnify a lessor;
6
for any loss or liability arising under this Act (other than the
7
National Credit Code) is void.
8
Note:
A similar rule applies for the purposes of the National Credit Code
9
(see section 191 of that Code).
10
(3) A person commits an offence if:
11
(a) the person is a credit provider, mortgagee, beneficiary of a
12
guarantee or lessor; and
13
(b) the person is a party to a contract or other instrument; and
14
(c) the contract or other instrument is void under subsection (1)
15
or (2).
16
Criminal penalty: 100 penalty units.
17
(4) Subsection (3) is an offence of strict liability:
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
(5) Subsection (2) does not affect the operation of subsection 60(2) of
20
the National Credit Code.
21
335 Indemnities
22
(1) An indemnity for any liability under this Act (other than the
23
National Credit Code) is not void, and cannot be declared void, on
24
the grounds of public policy, despite any rule of law to the
25
contrary.
26
Note:
A similar rule applies for the purposes of the National Credit Code
27
(see section 192 of that Code).
28
(2) The liabilities to which this section applies include the following:
29
(a) a liability for any criminal or civil penalty incurred by any
30
person under this Act (other than the National Credit Code);
31
Chapter 7 Miscellaneous
Part 7-1 Miscellaneous
Division 5 Other miscellaneous provisions
Section 336
306 National Consumer Credit Protection Bill 2009 No. , 2009
(b) a payment in settlement of a liability or alleged liability
1
under this Act (other than the National Credit Code);
2
(c) a liability under another indemnity for any liability under this
3
Act (other than the National Credit Code).
4
(3) This section is subject to subsection 334(2).
5
(4) This section does not derogate from any other rights and remedies
6
that exist apart from this section.
7
336 Acquisition of property
8
(1) A provision of this Act does not apply, and is taken never to have
9
applied, to the extent that the operation of the provision would
10
result in an acquisition of property from a person otherwise than on
11
just terms.
12
(2) In subsection (1), acquisition of property and just terms have the
13
same meanings as in paragraph 51(xxxi) of the Constitution.
14
337 Minister may delegate prescribed functions and powe rs under
15
this Act
16
(1) The Minister may, by signed instrument, delegate to:
17
(a) an ASIC member; or
18
(b) an ASIC staff member;
19
such of the Minister's functions and powers under this Act as are
20
prescribed.
21
(2) In performing functions or exercising powers under a delegation,
22
the delegate must comply with any directions of the Minister.
23
24
National Credit Code Schedule 1
Preliminary Part 1
Section 1
National Consumer Credit Protection Bill 2009 No. , 2009 307
Schedule 1--National Credit Code
1
Note:
See section 3 of the National Credit Act.
2
Part 1--Preliminary
3
4
1 Short title
5
This Code may be cited as the National Credit Code.
6
2 Inte rpretation generally
7
(1) Part 13 contains the principal definitions of words and expressions
8
used in this Code.
9
(2) Part 14 contains other miscellaneous provisions relating to the
10
interpretation of this Code.
11
3 Meaning of credit and amount of credit
12
(1) For the purposes of this Code, credit is provided if under a
13
contract:
14
(a) payment of a debt owed by one person (the debtor) to another
15
(the credit provider) is deferred; or
16
(b) one person (the debtor) incurs a deferred debt to another (the
17
credit provider).
18
(2) For the purposes of this Code, the amount of credit is the amount
19
of the debt actually deferred. The amount of credit does not
20
include:
21
(a) any interest charge under the contract; or
22
(b) any fee or charge:
23
(i) that is to be or may be debited after credit is first
24
provided under the contract; and
25
(ii) that is not payable in connection with the making of the
26
contract or the making of a mortgage or guarantee
27
related to the contract.
28
Schedule 1 National Cred it Code
Part 1 Preliminary
Section 4
308 National Consumer Credit Protection Bill 2009 No. , 2009
4 Meaning of credit contract
1
For the purposes of this Code, a credit contract is a contract under
2
which credit is or may be provided, being the provision of credit to
3
which this Code applies.
4
5 Provision of credit to which this Code applies
5
(1) This Code applies to the provision of credit (and to the credit
6
contract and related matters) if when the credit contract is entered
7
into or (in the case of precontractual obligations) is proposed to be
8
entered into:
9
(a) the debtor is a natural person or a strata corporation; and
10
(b) the credit is provided or intended to be provided wholly or
11
predominantly:
12
(i) for personal, domestic or household purposes; or
13
(ii) to purchase, renovate or improve residential property for
14
investment purposes; or
15
(iii) to refinance credit that has been provided wholly or
16
predominantly to purchase, renovate or improve
17
residential property for investment purposes; and
18
(c) a charge is or may be made for providing the credit; and
19
(d) the credit provider provides the credit in the course of a
20
business of providing credit carried on in this jurisdiction or
21
as part of or incidentally to any other business of the credit
22
provider carried on in this jurisdiction.
23
(2) If this Code applies to the provision of credit (and to the credit
24
contract and related matters):
25
(a) this Code applies in relation to all transactions or acts under
26
the contract whether or not they take place in this
27
jurisdiction; and
28
(b) this Code continues to apply even though the credit provider
29
ceases to carry on a business in this jurisdiction.
30
(3) For the purposes of this section, investment by the debtor is not a
31
personal, domestic or household purpose.
32
(4) For the purposes of this section, the predominant purpose for
33
which credit is provided is:
34
National Credit Code Schedule 1
Preliminary Part 1
Section 6
National Consumer Credit Protection Bill 2009 No. , 2009 309
(a) the purpose for which more than half of the credit is intended
1
to be used; or
2
(b) if the credit is intended to be used to obtain goods or services
3
for use for different purposes, the purpose for which the
4
goods or services are intended to be most used.
5
6 Provision of credit to which this Code does not apply
6
Short term credit
7
(1) This Code does not apply to the provision of credit if, under the
8
contract:
9
(a) the provision of credit is limited to a total period that does
10
not exceed 62 days; and
11
(b) the maximum amount of credit fees and charges that may be
12
imposed or provided for does not exceed 5% of the amount
13
of credit; and
14
(c) the maximum amount of interest charges that may be
15
imposed or provided for does not exceed an amount
16
(calculated as if the Code applied to the contract) equal to the
17
amount payable if the annual percentage rate were 24% per
18
annum.
19
(2) For the purposes of paragraph (1)(b), credit fees and charges
20
imposed or provided for under the contract are taken to include the
21
following, whether or not payable under the contract:
22
(a) a fee or charge payable by the debtor to any person for an
23
introduction to the credit provider;
24
(b) a fee or charge payable by the debtor to any person for any
25
service if the person has been introduced to the debtor by the
26
credit provider;
27
(c) a fee or charge payable by the debtor to the credit provider
28
for any service related to the provision of credit, other than a
29
service mentioned in paragraph (b).
30
(3) For the purposes of paragraphs (2)(a) and (b), it does not matter
31
whether or not there is an association between the person and the
32
credit provider.
33
Schedule 1 National Cred it Code
Part 1 Preliminary
Section 6
310 National Consumer Credit Protection Bill 2009 No. , 2009
Credit without express prior agreement
1
(4) This Code does not apply to the provision of credit if, before the
2
credit was provided, there was no express agreement between the
3
credit provider and the debtor for the provision of credit. For
4
example, when a cheque account becomes overdrawn but there is
5
no expressly agreed overdraft facility or when a savings account
6
falls into debit.
7
Credit for which only account charge payable
8
(5) This Code does not apply to the provision of credit under a
9
continuing credit contract if the only charge that is or may be made
10
for providing the credit is a periodic or other fixed charge that does
11
not vary according to the amount of credit provided. However, this
12
Code applies if the charge is of a nature prescribed by the
13
regulations for the purposes of this subsection or if the charge
14
exceeds the maximum charge (if any) so prescribed.
15
Joint credit and debit facilities
16
(6) This Code does not apply to any part of a credit contract under
17
which both credit and debit facilities are available to the extent that
18
the contract or any amount payable or other matter arising out of it
19
relates only to the debit facility.
20
Bill facilities
21
(7) This Code applies to the provision of credit arising out of a bill
22
facility, that is, a facility under which the credit provider provides
23
credit by accepting, drawing, discounting or endorsing a bill of
24
exchange or promissory note. However, it does not apply if:
25
(a) the credit is provided by an authorised deposit-taking
26
institution (within the meaning of subsection 5(1) of the
27
Banking Act 1959); or
28
(b) the regulations provide that the Code does not apply to the
29
provision of all or any credit arising out of such a facility.
30
National Credit Code Schedule 1
Preliminary Part 1
Section 6
National Consumer Credit Protection Bill 2009 No. , 2009 311
Insurance premiums by instalments
1
(8) This Code does not apply to the provision of credit by an insurer
2
for the purpose of the payment to the insurer of an insurance
3
premium by instalments, even though the instalments exceed the
4
total of the premium that would be payable if the premium were
5
paid in a lump sum, if on cancellation the insured would have no
6
liability to make further payments under the contract.
7
Pawnbrokers
8
(9) This Code does not apply to the provision of credit on the security
9
of pawned or pledged goods by a pawnbroker in the ordinary
10
course of a pawnbroker's business (being a business which is being
11
lawfully conducted by the pawnbroker) as long as it is the case
12
that, if the debtor is in default, the pawnbroker's only recourse is
13
against the goods provided as security for the provision of the
14
credit. However, sections 76 to 81 (Court may reopen unjust
15
transactions) apply to any such provision of credit.
16
Trustees of estates
17
(10) This Code does not apply to the provision of credit by the trustee
18
of the estate of a deceased person by way of an advance to a
19
beneficiary or prospective beneficiary of the estate. However,
20
sections 76 to 81 (Court may reopen unjust transactions) apply to
21
any such provision of credit.
22
Employee loans
23
(11) This Code (other than this Part, Part 4, Division 3 of Part 5,
24
Divisions 4 and 5 of Part 7 and Parts 12, 13 and 14) does not apply
25
to the provision of credit by an employer, or a related body
26
corporate within the meaning of the Corporations Act 2001 of an
27
employer, to an employee or former employee (whether or not it is
28
provided to the employee or former employee with another
29
person). However, for a credit provider that provides credit to
30
which this Code applies in the course of a business of providing
31
credit to which this Code applies to employees or former
32
employees and to others, this subsection applies only to the
33
provision of credit on terms that are more favourable to the debtor
34
Schedule 1 National Cred it Code
Part 1 Preliminary
Section 6
312 National Consumer Credit Protection Bill 2009 No. , 2009
than the terms on which the credit provider provides credit to
1
persons who are not employees or former employees of the credit
2
provider or a related body corporate.
3
Margin loans
4
(12) This Code does not apply to the provision of credit by way of a
5
margin loan (within the meaning of subsection 761EA(1) of the
6
Corporations Act 2001).
7
Regulations may exclude credit
8
(13) The regulations may exclude, from the application of all or any
9
provisions of this Code, the provision of credit of a class specified
10
in the regulations. In particular (but without limiting the generality
11
of the foregoing), the regulations may so exclude the provision of
12
credit if the amount of the credit exceeds or may exceed a specified
13
amount or if the credit is provided by a credit provider of a
14
specified class.
15
ASIC may exclude credit
16
(14) ASIC may exclude, from the application of all or any provisions of
17
this Code, a provision of credit specified by ASIC.
18
(15) Without limiting subsection (14), ASIC may exclude a provision of
19
credit if:
20
(a) the amount of the credit exceeds, or may exceed, a specified
21
amount; or
22
(b) the credit is provided by a specified credit provider.
23
(16) An exemption under subsection (14) is not a legislative instrument.
24
(17) ASIC may, by legislative instrument, exclude from the application
25
of all or any provisions of this Code, the provision of credit of a
26
class specified in the instrument.
27
(18) Without limiting subsection (17), ASIC may exclude a provision of
28
credit if:
29
(a) the amount of the credit exceeds, or may exceed, a specified
30
amount; or
31
National Credit Code Schedule 1
Preliminary Part 1
Section 7
National Consumer Credit Protection Bill 2009 No. , 2009 313
(b) the credit is provided by a specified credit provider, or a class
1
of credit providers.
2
(19) In this section:
3
fee or charge does not include a government fee, charge or duty of
4
any kind.
5
security, of pawned or pledged goods, means security by way of
6
bailment of the goods under which the title to the goods does not
7
pass, conditionally or unconditionally, to the bailee.
8
7 Mortgages to which this Code applies
9
(1) This Code applies to a mortgage if:
10
(a) it secures obligations under a credit contract or a related
11
guarantee; and
12
(b) the mortgagor is a natural person or a strata corporation.
13
(2) If any such mortgage also secures other obligations, this Code
14
applies to the mortgage to the extent only that it secures obligations
15
under the credit contract or related guarantee.
16
(3) The regulations may exclude, from the application of all or any
17
provisions of this Code, a mortgage of a class specified in the
18
regulations.
19
8 Guarantees to which this Code applies
20
(1) This Code applies to a guarantee if:
21
(a) it guarantees obligations under a credit contract; and
22
(b) the guarantor is a natural person or a strata corporation.
23
(2) If any such guarantee also guarantees other obligations, this Code
24
applies to the guarantee to the extent only that it guarantees
25
obligations under the credit contract.
26
(3) The regulations may exclude, from the application of all or any
27
provisions of this Code, a guarantee of a class specified in the
28
regulations.
29
Schedule 1 National Cred it Code
Part 1 Preliminary
Section 9
314 National Consumer Credit Protection Bill 2009 No. , 2009
9 Goods leases with option to purchase to be regarded as sale by
1
instalme nts
2
(1) For the purposes of this Code, a contract for the hire of goods
3
under which the hirer has a right or obligation to purchase the
4
goods, is to be regarded as a sale of the goods by instalments if the
5
charge that is or may be made for hiring the goods, together with
6
any other amount payable under the contract (including an amount
7
to purchase the goods or to exercise an option to do so) exceeds the
8
cash price of the goods.
9
Note:
A contract includes a series of contracts, or contracts and
10
arrangements (see Part 13).
11
(2) A debt is to be regarded as having been incurred, and credit
12
provided, in such circumstances.
13
(3) Accordingly, if because of subsection 5(1) the contract is a credit
14
contract, this Code (including Part 6) applies as if the contract had
15
always been a sale of goods by instalments, and for that purpose:
16
(a) the amounts payable under the contract are the instalments;
17
and
18
(b) the credit provider is the person who is to receive those
19
payments; and
20
(c) the debtor is the person who is to make those payments; and
21
(d) the property of the supplier in the goods passes under the
22
contract to the person to whom the goods are hired on
23
delivery of the goods or the making of the contract,
24
whichever occurs last; and
25
(e) the charge for providing the credit is the amount by which the
26
charge that is or may be made for hiring the goods, together
27
with any other amount payable under the contract (including
28
an amount to purchase the goods or to exercise an option to
29
do so), exceeds the cash price of the goods; and
30
(f) a mortgage containing the terms and conditions set out in the
31
regulations is taken to have been entered into in writing
32
between the person to whom the goods are hired under the
33
contract and the supplier as security for payment to the
34
supplier of the amount payable to the supplier by the person
35
to whom the goods are hired under the contract; and
36
National Credit Code Schedule 1
Preliminary Part 1
Section 10
National Consumer Credit Protection Bill 2009 No. , 2009 315
(g) any provision in the contract for hiring by virtue of which the
1
supplier is empowered to take possession, or dispose, of the
2
goods to which the contract relates is void.
3
(4) For the purposes of this section, the amount payable under the
4
contract includes any agreed or residual value of the goods at the
5
end of the hire period or on termination of the contract, but does
6
not include the following amounts:
7
(a) any amount payable in respect of services that are incidental
8
to the hire of goods under the contract;
9
(b) any amount that ceases to be payable on the termination of
10
the contract following the exercise of a right of cancellation
11
by the hirer at the earliest opportunity.
12
Note:
Part 11 (Consumer leases) applies to the contracts specified in that
13
Part for the hire of goods under which the hirer does not have a right
14
or obligation to purchase the goods.
15
10 Deciding application of Code to particular contracts for the sale
16
of land by instalments
17
(1) This section applies to an executory contract for the sale of land if:
18
(a) under the contract, the purchaser:
19
(i) is entitled to enter into possession of the land before
20
becoming entitled to receive a conveyance or transfer of
21
the land; and
22
(ii) is bound to make a payment or payments (other than a
23
deposit or rent payment) to, or in accordance with the
24
instructions of, the vendor without becoming entitled to
25
receive a conveyance or transfer of the land in exchange
26
for the payment or payments; and
27
(b) the amount payable to purchase the land under the contract
28
exceeds the cash price of the land.
29
Note:
Cash price is defined in Part 13 in terms of goods or services.
30
Services is defined in Part 13 to include rights in relation to, and
31
interests in, real property.
32
(2) For the purpose of deciding whether the contract is a credit
33
contract and, if it is a credit contract, of applying this Code
34
(including Part 6) to it:
35
Schedule 1 National Cred it Code
Part 1 Preliminary
Section 11
316 National Consumer Credit Protection Bill 2009 No. , 2009
(a) a debt is to be regarded as having been incurred, and credit
1
provided, in the circumstances mentioned in subsection (1);
2
and
3
(b) the debtor is the purchaser under the contract; and
4
(c) the credit provider is the vendor under the contract; and
5
(d) the charge for providing the credit is the amount by which the
6
amount payable to purchase the land, together with any other
7
amount payable under the contract other than outgoings for
8
the land, exceeds the cash price of the land.
9
(3) This section does not affect the application of this Code to a
10
contract that is, apart from this section, a credit contract.
11
(4) In this section:
12
deposit, in relation to a contract, means an amount:
13
(a) not exceeding 10% of the amount payable to purchase the
14
land under the contract; and
15
(b) paid or payable in one or more amounts; and
16
(c) liable to be forfeited and retained by the vendor in the event
17
of a breach of contract by the purchaser.
18
outgoings includes rates, water charges and house and contents
19
insurance.
20
rent payment, under a contract, means a payment:
21
(a) made by the purchaser to the vendor in exchange for
22
possession of the land before becoming entitled to receive a
23
conveyance or transfer of the land; and
24
(b) that is not deductible from the amount payable to purchase
25
the land.
26
11 Deciding application of Code to particular contracts for the sale
27
of goods by instalments
28
(1) This section applies to a contract for the sale of goods if the
29
amount payable to purchase the goods under the contract:
30
(a) is payable by instalments; and
31
(b) exceeds the cash price of the goods.
32
National Credit Code Schedule 1
Preliminary Part 1
Section 12
National Consumer Credit Protection Bill 2009 No. , 2009 317
(2) This section does not apply to a contract for the hire of goods even
1
if the hirer has a right or obligation to purchase the goods.
2
(3) For the purpose of deciding whether the contract is a credit
3
contract and, if it is a credit contract, of applying this Code
4
(including Part 6) to it:
5
(a) a debt is to be regarded as having been incurred, and credit
6
provided, in the circumstances mentioned in subsection (1);
7
and
8
(b) the debtor is the person who is to make the payments; and
9
(c) the credit provider is the person who is to receive the
10
payments; and
11
(d) the charge for providing the credit is the amount by which the
12
amount payable to purchase the goods, together with any
13
other amount payable under the contract, exceeds the cash
14
price of the goods.
15
(4) This section does not affect the application of this Code to a
16
contract that is, apart from this section, a credit contract.
17
12 Deciding application of Code to particular contracts for the sale
18
of goods by instalments unde r related contracts
19
(1) For the purpose of this section, a contract is a related contract to a
20
contract for the sale of goods (the goods contract) if:
21
(a) the sale of goods is financed, wholly or partly, by the
22
provision of credit under the contract; and
23
(b) the credit provider under the contract is:
24
(i) the supplier of goods under the goods contract; or
25
(ii) a related body corporate within the meaning of the
26
Corporations Act 2001 of the supplier of the goods
27
under the goods contract; and
28
(c) the amount payable under the contract is payable by
29
instalments.
30
(2) For the purpose of deciding whether a related contract to a goods
31
contract is a credit contract and, if it is a credit contract, of
32
applying this Code (including Part 6) to it, the charge for providing
33
the credit is the amount by which the amount payable to purchase
34
Schedule 1 National Cred it Code
Part 1 Preliminary
Section 13
318 National Consumer Credit Protection Bill 2009 No. , 2009
the goods, together with any other amount payable under the
1
related contract, exceeds the cash price of the goods.
2
(3) This section does not affect the application of this Code to a
3
contract that is, apart from this section, a credit contract.
4
13 Presumptions relating to application of Code
5
(1) In any proceedings (whether brought under this Code or not) in
6
which a party claims that a credit contract, mortgage or guarantee
7
is one to which this Code applies, it is presumed to be such unless
8
the contrary is established.
9
(2) It is presumed for the purposes of this Code that credit is not
10
provided or intended to be provided under a contract wholly or
11
predominantly for any or all of the following purposes (a Code
12
purpose):
13
(a) for personal, domestic or household purposes;
14
(b) to purchase, renovate or improve residential property for
15
investment purposes;
16
(c) to refinance credit that has been provided wholly or
17
predominantly to purchase, renovate or improve residential
18
property for investment purposes;
19
if the debtor declares, before entering the contract, that the credit is
20
to be applied wholly or predominantly for a purpose that is not a
21
Code purpose, unless the contrary is established.
22
(3) However, the declaration is ineffective if, when the declaration was
23
made, the credit provider or a person (the prescribed person) of a
24
kind prescribed by the regulations:
25
(a) knew, or had reason to believe; or
26
(b) would have known, or had reason to believe, if the credit
27
provider or prescribed person had made reasonable inquiries
28
about the purpose for which the credit was provided, or
29
intended to be provided, under the contract;
30
that the credit was in fact to be applied wholly or predominantly
31
for a Code purpose.
32
(4) If the declaration is ineffective under subsection (3), paragraph
33
5(1)(b) is taken to be satisfied in relation to the contract.
34
National Credit Code Schedule 1
Preliminary Part 1
Section 13
National Consumer Credit Protection Bill 2009 No. , 2009 319
(5) A declaration under this section is to be substantially in the form (if
1
any) required by the regulations and is ineffective for the purposes
2
of this section if it is not.
3
(6) A person commits an offence if:
4
(a) the person engages in conduct; and
5
(b) the conduct induces a debtor to make a declaration under this
6
section that is false or misleading in a material particular; and
7
(c) the declaration is false or misleading in a material particular.
8
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
9
both.
10
(7) Strict liability applies to paragraph (6)(c).
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
13
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 1 Negotiating and making credit contracts
Section 14
320 National Consumer Credit Protection Bill 2009 No. , 2009
Part 2--Credit contracts
1
Division 1--Negotiating and making credit contracts
2
14 Credit contract to be in form of written contract document
3
(1) A credit contract must be in the form of:
4
(a) a written contract document signed by the debtor and the
5
credit provider; or
6
(b) a written contract document signed by the credit provider and
7
constituting an offer to the debtor that is accepted by the
8
debtor in accordance with the terms of the offer.
9
(2) An offer may be accepted by the debtor for the purposes of
10
paragraph (1)(b):
11
(a) by the debtor or a person authorised by the debtor accessing
12
or drawing down credit to incur a liability; or
13
(b) by any other act of the debtor or of any such authorised
14
person that satisfies the conditions of the offer and constitutes
15
an acceptance of the offer at law.
16
(3) The credit provider, or a person associated with the credit provider,
17
may not be authorised by the debtor for the purposes of
18
subsection (2). However, this subsection does not prevent the
19
debtor authorising the credit provider to debit the debtor's account.
20
(4) In the case of a contract document consisting of more than one
21
document, it is sufficient compliance with this section if one of the
22
documents is duly signed and the other documents are referred to
23
in the signed document.
24
15 Other forms of contract
25
(1) The regulations may authorise other ways of making a credit
26
contract that do not involve a written document.
27
(2) In that case, the provisions of this Division apply with such
28
modifications as are prescribed by the regulations.
29
National Credit Code Schedule 1
Cred it contracts Part 2
Negotiating and making credit contracts Division 1
Section 16
National Consumer Credit Protection Bill 2009 No. , 2009 321
16 Precontractual disclosure
1
(1) A credit provider must not enter into a credit contract unless the
2
credit provider has given the debtor:
3
(a) a precontractual statement setting out the matters required by
4
section 17 to be included in the contract document; and
5
(b) an information statement in the form required by the
6
regulations of the debtor's statutory rights and statutory
7
obligations.
8
(2) Those statements must be given:
9
(a) before the contract is entered into; or
10
(b) before the debtor makes an offer to enter into the contract;
11
whichever first occurs.
12
(3) Before entering into a credit contract, the credit provider may
13
inform the debtor of the comparison rate. If the credit provider
14
does so, the comparison rate must be calculated as prescribed by
15
the regulations and be accompanied by the warnings set out in the
16
regulations.
17
(4) The precontractual statement must contain the financial
18
information specified by the regulations in the form prescribed by
19
the regulations.
20
(5) The precontractual statement may be the proposed contract
21
document or be a separate document or documents.
22
(6) A document forming part of a precontractual statement consisting
23
of more than one document when the precontractual statement is
24
first given must indicate that it does not contain all of the required
25
precontractual information.
26
(7) A precontractual statement may be varied, within the time referred
27
to in subsection (2), by written notice containing particulars of the
28
variation given to the debtor.
29
17 Matters that must be in contract document
30
(1) The contract document must contain the following matters.
31
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 1 Negotiating and making credit contracts
Section 17
322 National Consumer Credit Protection Bill 2009 No. , 2009
Credit provider's name
1
(2) The contract document must contain the credit provider's name.
2
Amount of credit
3
(3) The contract document must contain:
4
(a) if the amount of credit to be provided is ascertainable:
5
(i) that amount; and
6
(ii) the persons, bodies or agents (including the credit
7
provider) to whom it is to be paid and the amounts
8
payable to each of them, but only if both the person,
9
body or agent and the amount are ascertainable; and
10
(b) if the amount of the credit to be provided is not
11
ascertainable--the maximum amount of credit agreed to be
12
provided, or the credit limit under the contract, if any; and
13
(c) if the credit is provided by the supplier for a sale of land or
14
goods by instalments--a description of the land and its cash
15
price or of the goods and their cash price.
16
The requirement under paragraph (c) is in addition to, and does not
17
limit, the requirement under paragraph (a) or (b).
18
Note:
A penalty may be imposed for contravention of a key requirement in
19
this subsection: see Part 6.
20
Annual percentage rate or rates
21
(4) The contract document must contain:
22
(a) the annual percentage rate or rates under the contract; and
23
(b) if there is more than one rate, how each rate applies; and
24
(c) if an annual percentage rate under the contract is determined
25
by referring to a reference rate:
26
(i) the name of the rate or a description of it; and
27
(ii) the margin or margins (if any) above or below the
28
reference rate to be applied to determine the annual
29
percentage rate or rates; and
30
(iii) where and when the reference rate is published or, if it
31
is not published, how the debtor may ascertain the rate;
32
and
33
(iv) the current annual percentage rate or rates.
34
National Credit Code Schedule 1
Cred it contracts Part 2
Negotiating and making credit contracts Division 1
Section 17
National Consumer Credit Protection Bill 2009 No. , 2009 323
Note:
A penalty may be imposed for contravention of a key requirement in
1
this subsection: see Part 6.
2
Calculation of interest charges
3
(5) The contract document must contain the method of calculation of
4
the interest charges payable under the contract and the frequency
5
with which interest charges are to be debited under the contract.
6
Note:
A penalty may be imposed for contravention of a key requirement in
7
this subsection: see Part 6.
8
Total amount of interest charges payable
9
(6) The contract document must contain the total amount of interest
10
charges payable under the contract, if ascertainable (but only if the
11
contract would, on the assumptions under sections 180 and 182, be
12
paid out within 7 years of the date on which credit is first provided
13
under the contract).
14
Note:
A penalty may be imposed for contravention of a key requirement in
15
this subsection: see Part 6.
16
Repayments
17
(7) The contract document must contain:
18
(a) if more than one repayment is to be made:
19
(i) the amount of the repayments or the method of
20
calculating the amount; and
21
(ii) if ascertainable, the number of the repayments; and
22
(iii) if ascertainable, the total amount of the repayments, but
23
only if the contract would, on the assumptions under
24
sections 180 and 182, be paid out within 7 years of the
25
date on which credit is first provided under the contract;
26
and
27
(iv) when the first repayment is to be paid, if ascertainable,
28
and the frequency of payment of repayments; and
29
(b) if the contract provides for a minimum repayment, the
30
amount of that repayment, if ascertainable, but, if not, the
31
method of calculation of the minimum repayment.
32
Paragraph (a) does not apply to minimum repayments under a
33
continuing credit contract.
34
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 1 Negotiating and making credit contracts
Section 17
324 National Consumer Credit Protection Bill 2009 No. , 2009
Credit fees and charges
1
(8) The contract document must contain:
2
(a) a statement of the credit fees and charges that are, or may
3
become, payable under the contract, and when each such fee
4
or charge is payable, if ascertainable; and
5
(b) the amount of any such fee or charge if ascertainable, but, if
6
not, the method of calculation of the fee or charge, if
7
ascertainable; and
8
(c) the total amount of credit fees and charges payable under the
9
contract to the extent that it is ascertainable.
10
Note:
A penalty may be imposed for contravention of a key requirement in
11
paragraph (a) or (b), but only in respect of retained credit fees and
12
charges: see Part 6.
13
Changes affecting interest and credit fees and charges
14
(9) If the annual percentage rate or rates or the amount or frequency of
15
payment of a credit fee or charge or instalment payable under the
16
contract may be changed, or a new credit fee or charge may be
17
imposed, the contract document must contain a statement or
18
statements to that effect and of the means by which the debtor will
19
be informed of the change or the new fee or charge.
20
Note:
A penalty may be imposed for contravention of a key requirement in
21
this subsection: see Part 6.
22
Statements of account
23
(10) The contract document must contain the frequency with which
24
statements of account are to be provided to the debtor (except in
25
the case of a credit contract for which the annual percentage rate is
26
fixed for the whole term of the contract and under which there is
27
no provision for varying the rate).
28
Default rate
29
(11) The contract document must contain:
30
(a) if the contract is a contract under which a default rate of
31
interest may be charged when payments are in default--a
32
statement to that effect and the default rate and how it is to be
33
applied; and
34
National Credit Code Schedule 1
Cred it contracts Part 2
Negotiating and making credit contracts Division 1
Section 17
National Consumer Credit Protection Bill 2009 No. , 2009 325
(b) if the default rate under the contract is determined by
1
referring to a reference rate:
2
(i) the name of the rate or a description of it; and
3
(ii) the margin or margins (if any) above or below the
4
reference rate to be applied to determine the default rate;
5
and
6
(iii) when and where the reference rate is published or, if it
7
is not published, how the debtor may ascertain the rate;
8
and
9
(iv) the current default rate.
10
Note:
A penalty may be imposed for contravention of a key requirement in
11
this subsection: see Part 6.
12
Enforcement expenses
13
(12) The contract document must contain a statement that enforcement
14
expenses may become payable under the credit contract or
15
mortgage (if any) in the event of a breach.
16
Mortgage or guarantee
17
(13) The contract document must contain:
18
(a) if any mortgage or guarantee is to be or has been taken by the
19
credit provider--a statement to that effect; and
20
(b) in the case of a mortgage--a description of the property
21
subject to, or proposed to be subject to, the mortgage, to the
22
extent to which it is ascertainable.
23
Commission
24
(14) If a commission is to be paid by or to the credit provider for the
25
introduction of credit business or business financed by the contract,
26
the contract document must contain:
27
(a) a statement of that fact; and
28
(b) the person by whom the commission is payable; and
29
(c) the person to whom the commission is payable; and
30
(d) the amount if ascertainable.
31
Commission does not include fees payable by a supplier under a
32
merchant service agreement with a credit provider, an amount
33
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 1 Negotiating and making credit contracts
Section 17
326 National Consumer Credit Protection Bill 2009 No. , 2009
payable in connection with a credit-related insurance contract or
1
commission paid to employees of the credit provider.
2
Insurance financed by contract
3
(15) If the credit provider knows that the debtor is to enter into a
4
credit-related insurance contract and that the insurance is to be
5
financed under the credit contract, the contract document must
6
contain:
7
(a) the name of the insurer; and
8
(b) the amount payable to the insurer or, if it is not ascertainable,
9
how it is calculated; and
10
(c) the kind of insurance and any other particulars that may be
11
prescribed by the regulations; and
12
(d) if the credit provider knows of any commission to be paid by
13
the insurer for the introduction of the insurance business--a
14
statement that it is to be paid and, if ascertainable, the amount
15
of the commission expressed either as a monetary amount or
16
as a proportion of the premium.
17
In the case of consumer credit insurance that includes a contract of
18
general insurance within the meaning of the Insurance Contracts
19
Act 1984:
20
(e) it is sufficient compliance with paragraphs (a) and (b) if the
21
contract document contains the name of the general insurer
22
and the total amount payable to the insurers (or, if it is not
23
ascertainable, how it is calculated); and
24
(f) it is sufficient compliance with paragraph (d) relating to the
25
amount of commission if the contract document contains the
26
total amount of commission (expressed as a monetary
27
amount or as a proportion of the premium) to be paid by the
28
insurers.
29
Note:
A penalty may be imposed for contravention of a key requirement in
30
paragraph (a) or (b): see Part 6.
31
Other information
32
(16) The contract document must contain any information or warning
33
required by the regulations.
34
National Credit Code Schedule 1
Cred it contracts Part 2
Negotiating and making credit contracts Division 1
Section 18
National Consumer Credit Protection Bill 2009 No. , 2009 327
Note:
Sections 180 to 182 set out the tolerances and assumptions applicable
1
to matters required to be disclosed.
2
18 Form and expression of contract docume nt
3
The contract document must conform to the requirements of the
4
regulations as to its form and the way it is expressed and, subject to
5
any such requirements, may consist of one or more separate
6
documents.
7
19 Alte ration of contract docume nt
8
(1) An alteration of (including an addition to) a contract document by
9
the credit provider after it is signed by the debtor is ineffective
10
unless the debtor has agreed in writing to the alteration.
11
(2) This section does not apply to an alteration having the effect of
12
reducing the debtor's liabilities under the credit contract.
13
20 Copy of contract for debtor
14
(1) If a contract document is to be signed by the debtor and returned to
15
the credit provider, the credit provider must give the debtor a copy
16
to keep.
17
(2) A credit provider must, not later than 14 days after a credit contract
18
is made, give a copy of the contract in the form in which it was
19
made to the debtor.
20
(3) Subsection (2) does not apply if the credit provider has previously
21
given the debtor a copy of the contract document to keep.
22
21 When debtor may terminate contract
23
(1) Although a credit contract has been made, the debtor may
24
nevertheless, by written notice to the credit provider, terminate the
25
contract unless:
26
(a) any credit has been obtained under the contract; or
27
(b) a card or other means of obtaining credit provided to the
28
debtor by the credit provider has been used to acquire goods
29
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 1 Negotiating and making credit contracts
Section 22
328 National Consumer Credit Protection Bill 2009 No. , 2009
or services for which credit is to be advanced under the
1
contract.
2
(2) Nothing in this section prevents the credit provider from retaining
3
or requiring payment of fees or charges incurred before the
4
termination and which would have been payable under the credit
5
contract.
6
22 Offence for noncompliance
7
(1) A credit provider must not:
8
(a) enter into a credit contract that contravenes a requirement of
9
this Division; or
10
(b) otherwise contravene a requirement of this Division.
11
Criminal penalty: 100 penalty units.
12
(2) Subsection (1) is an offence of strict liability.
13
Note:
For strict liability, see section 6.1 of the Criminal Code.
14
15
National Credit Code Schedule 1
Cred it contracts Part 2
Debtor's monetary obligations Division 2
Section 23
National Consumer Credit Protection Bill 2009 No. , 2009 329
Division 2--Debtor's monetary obligations
1
23 Prohibited monetary obligations
2
(1) A credit contract must not impose a monetary liability on the
3
debtor:
4
(a) in respect of a credit fee or charge prohibited by this Code; or
5
(b) in respect of an amount of a fee or charge exceeding the
6
amount that may be charged consistently with this Code; or
7
(c) in respect of an interest charge under the contract exceeding
8
the amount that may be charged consistently with this Code.
9
Note:
A penalty may be imposed for contravention of a key requirement in
10
this subsection, but only at the time the credit contract is entered into:
11
see Part 6.
12
Civil effect
13
(2) Any provision of a credit contract that imposes a monetary liability
14
prohibited by subsection (1) is void to the extent that it does so. If
15
an amount that is prohibited by subsection (1) is paid, it may be
16
recovered.
17
(3) A credit fee or charge cannot be charged in respect of a credit
18
contract unless the contract authorises it to be charged.
19
Civil effect
20
(4) If an amount that is prohibited by subsection (3) is paid, it may be
21
recovered.
22
24 Offences related to prohibited monetary obligations
23
(1) A credit provider must not:
24
(a) enter into a credit contract on terms imposing a monetary
25
liability prohibited by subsection 23(1); or
26
(b) require or accept payment of an amount in respect of a
27
monetary liability that cannot be imposed consistently with
28
this Code.
29
Criminal penalty: 100 penalty units.
30
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 2 Debtor's monetary obligations
Section 25
330 National Consumer Credit Protection Bill 2009 No. , 2009
(2) Subsection (1) is an offence of strict liability.
1
Note:
For strict liability, see section 6.1 of the Criminal Code.
2
25 Loan to be in money or equivalent
3
(1) A credit provider must not under a credit contract pay an amount to
4
or in accordance with the instructions of the debtor unless the
5
payment is in cash or money's worth and is made in full without
6
deducting an amount for interest charges under the contract.
7
Criminal penalty: 100 penalty units.
8
(2) Subsection (1) is an offence of strict liability.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
(3) The regulations may provide that subsection (1) does not apply to
11
the deduction of an amount for the first payment of interest charges
12
under the contract.
13
26 Early payme nts and crediting of payme nts
14
(1) A credit provider must accept any payment under a credit contract
15
that is made before it is payable under the contract unless the
16
contract prohibits its early payment.
17
Criminal penalty: 100 penalty units.
18
(2) A credit provider must credit each payment made under a credit
19
contract to the debtor as soon as practicable after receipt of the
20
payment.
21
Criminal penalty: 100 penalty units.
22
(3) Subsections (1) and (2) are offences of strict liability.
23
Note:
For strict liability, see section 6.1 of the Criminal Code.
24
(4) Despite subsection (2), a credit provider is not required to credit a
25
payment under a credit contract before it is payable under the
26
contract if the contract prohibits its early payment and:
27
(a) the credit provider informs the debtor, as soon as practicable
28
after the credit provider becomes aware of the payment, that
29
National Credit Code Schedule 1
Cred it contracts Part 2
Debtor's monetary obligations Division 2
Section 26
National Consumer Credit Protection Bill 2009 No. , 2009 331
it will not be credited to the debtor (or that any credit will be
1
reversed) until it becomes payable under the contract, and the
2
debtor elects to leave the payment with the credit provider; or
3
(b) the credit provider informs the debtor, before accepting the
4
payment, that it will not be credited to the debtor until it
5
becomes payable under the contract; or
6
(c) the credit provider refunds the payment to the debtor.
7
(5) A credit contract may not, under this section, prohibit the paying
8
out of the contract at any time under section 82.
9
10
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 3 Interest charges
Section 27
332 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Interest charges
1
27 Definitions relating to interest
2
(1) In this Code:
3
annual percentage rate under a credit contract means a rate
4
specified in the contract as an annual percentage rate.
5
daily percentage rate means the rate determined by dividing the
6
annual percentage rate by 365.
7
default rate means a higher annual percentage rate permitted by
8
section 30.
9
unpaid balance under a credit contract at any time means the
10
difference between all amounts credited and all amounts debited to
11
the debtor under the contract at that time.
12
unpaid daily balance for a day under a credit contract means the
13
unpaid balance under the contract at the end of that day.
14
(2) A credit contract may specify, for the purposes of payments or any
15
other purposes under the contract, when a day ends. Different times
16
of the day may be specified for different purposes.
17
28 Limit on interest charges
18
(1) The maximum amount of an interest charge that may be imposed
19
or provided for under a credit contract is:
20
(a) where only one annual percentage rate applies to the unpaid
21
balances under the contract--the amount determined by
22
applying the daily percentage rate to the unpaid daily
23
balances; or
24
(b) in any other case--the sum of each of the amounts
25
determined by applying each daily percentage rate to that part
26
of the unpaid daily balances to which it applies under the
27
contract.
28
(2) However, an interest charge under a credit contract for a month, a
29
quarter or half a year may be determined by applying the annual
30
National Credit Code Schedule 1
Cred it contracts Part 2
Interest charges Division 3
Section 29
National Consumer Credit Protection Bill 2009 No. , 2009 333
percentage rate or rates, divided by 12 (for a month), by 4 (for a
1
quarter) or by 2 (for half a year), to the whole or that part of the
2
average unpaid daily balances to which it applies. The regulations
3
may provide for the calculation of unpaid daily balances in these
4
circumstances.
5
(3) This section does not prevent the imposition of a default rate of
6
interest permitted by section 30.
7
29 Early debit or payment of interest charges prohibited
8
(1) A credit provider must not, at any time before the end of a day to
9
which an interest charge applies, require payment of or debit the
10
interest charge.
11
(2) A credit contract may provide for an interest charge to become
12
payable or be debited at any time after the day to which it applies.
13
(3) The regulations may provide that subsection (1) does not apply to
14
the first payment of interest charges under a credit contract.
15
(4) This section does not apply to the debit of an interest charge under
16
a credit contract before the end of the period to which the charge
17
applies if:
18
(a) the charge is debited on the last day of the period; and
19
(b) the amount debited is not treated by the credit provider as
20
part of the unpaid daily balance for that day for the purpose
21
of calculating interest charges under the contract.
22
30 Default inte rest
23
(1) A credit contract may not provide that an annual percentage rate
24
applicable under a credit contract to any part of the unpaid balance
25
will differ according to whether the debtor is in default under the
26
contract.
27
(2) However, a credit contract may provide for such a differential rate
28
if the higher rate is imposed only in the event of default in
29
payment, in respect of the amount in default and while the default
30
continues.
31
32
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 4 Fees and charges
Section 31
334 National Consumer Credit Protection Bill 2009 No. , 2009
Division 4--Fees and charges
1
31 Prohibited credit fees or charges
2
The regulations may specify credit fees or charges or classes of
3
credit fees or charges that are prohibited for the purposes of this
4
Code.
5
32 Fees or charges passed on to other parties
6
(1) A fee or charge payable by a debtor for an amount payable or to
7
reimburse an amount paid by the credit provider to another person,
8
body or agency is not to exceed the actual amount payable or paid
9
by the credit provider if that amount is ascertainable when the fee
10
or charge is paid by the debtor. The actual amount payable is to be
11
determined after taking into account any discount or other rebate or
12
other applicable allowance received or receivable by the credit
13
provider or a related body corporate within the meaning of the
14
Corporations Act 2001.
15
(2) If the actual amount paid by the credit provider to another person
16
was not ascertainable when the debtor paid an amount to the credit
17
provider for the fee or charge and is less than the amount paid by
18
the debtor, the credit provider must refund or credit the difference
19
to the debtor.
20
(3) Nothing in this section requires a rebate on tax payable by the
21
credit provider or a related body corporate to be taken into account
22
in determining the actual amount payable or paid by a credit
23
provider.
24
25
National Credit Code Schedule 1
Cred it contracts Part 2
Cred it provider's obligation to account Division 5
Section 33
National Consumer Credit Protection Bill 2009 No. , 2009 335
Division 5--Credit provider's obligation to account
1
33 Statements of account
2
(1) A credit provider that provides credit must give to the debtor, or
3
arrange for the debtor to be given, periodic statements of account
4
in accordance with this Division.
5
Criminal penalty: 100 penalty units.
6
(2) The maximum period for a statement of account is:
7
(a) in the case of a continuing credit contract under which credit
8
is ordinarily obtained only by the use of a card--40 days; or
9
(b) in the case of any other continuing credit contract--40 days
10
or such longer period, not exceeding 3 months, as is agreed
11
by the credit provider and the debtor; or
12
(c) in any other case--6 months.
13
(3) A statement of account need not be given if:
14
(a) the credit is provided under a credit contract for which the
15
annual percentage rate is fixed for the whole term of the
16
contract and under which there is no provision for varying
17
the rate; or
18
(b) no amount has been debited or credited to the account during
19
the statement period (other than debits for government
20
charges, or duties, on receipts or withdrawals) and the
21
amount outstanding is zero or below a level fixed by the
22
regulations; or
23
(c) the credit provider wrote off the debt of the debtor under the
24
credit contract during the statement period and no further
25
amount has been debited or credited to the account during the
26
statement period; or
27
(d) the debtor was in default under the credit contract (not being
28
a continuing credit contract) during the statement period and
29
the credit provider has commenced enforcement proceedings;
30
or
31
(e) the debtor was in default under a continuing credit contract
32
during the preceding 120 days, or during the statement period
33
and the 2 immediately preceding statement periods,
34
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 5 Credit provider's obligation to account
Section 34
336 National Consumer Credit Protection Bill 2009 No. , 2009
whichever is the shorter time, and the credit provider has,
1
before the commencement of the statement period, exercised
2
a right not to provide further credit under the contract and has
3
not provided further credit during the period; or
4
(f) the debtor has died or is insolvent and the debtor's personal
5
representative or trustee in bankruptcy has not requested a
6
statement of account.
7
(4) A separate statement of account may, but need not, be given in
8
respect of each or any number of the credit facilities provided
9
under a credit contract.
10
(5) Subsection (1) is an offence of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
34 Information to be contained in statements of account
13
(1) A statement of account must contain the following matters.
14
Statement period
15
(2) A statement of account must contain the dates on which the
16
statement period begins and ends.
17
Balances
18
(3) A statement of account must contain the opening and closing
19
balances (indicating the amount owed by the debtor at the
20
beginning and at the end of the statement period).
21
Credit provided
22
(4) A statement of account must contain particulars of each amount of
23
credit provided by the credit provider to the debtor during the
24
statement period.
25
Identity of supplier
26
(5) In the case of a continuing credit contract under which credit is
27
ordinarily obtained only by the use of a card, a statement of
28
account must contain the identity of the supplier if the credit was
29
National Credit Code Schedule 1
Cred it contracts Part 2
Cred it provider's obligation to account Division 5
Section 34
National Consumer Credit Protection Bill 2009 No. , 2009 337
provided for any cash, goods or services supplied by another
1
person.
2
Interest charges
3
(6) A statement of account must contain:
4
(a) the amount of the interest charge debited to the debtor's
5
account during the statement period and when the interest
6
was debited; and
7
(b) the annual percentage rate or rates and, if required by Part 4,
8
details of any change since the last statement period.
9
Note:
A penalty may be imposed for contravention of a key requirement in
10
this subsection: see Part 6.
11
Fees and charges
12
(7) A statement of account must contain particulars of any fees and
13
charges debited to the debtor's account during the statement
14
period.
15
Payments to or from account
16
(8) A statement of account must contain:
17
(a) particulars of each amount paid by the debtor to the credit
18
provider, or credited to the debtor, during the statement
19
period; and
20
(b) particulars of any amount transferred to or from the account
21
to which the statement relates or to or from any other account
22
maintained under or for the purposes of the credit contract.
23
Amounts payable by debtor
24
(9) If a minimum amount is payable by the debtor under a continuing
25
credit contract, a statement of account must contain a statement of
26
the amount and the date by which it is due.
27
Insurance payments
28
(10) If payment to an insurer is made during the statement period under
29
a credit-related insurance contract that is agreed to be financed
30
under the credit contract, a statement of account must contain:
31
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 5 Credit provider's obligation to account
Section 35
338 National Consumer Credit Protection Bill 2009 No. , 2009
(a) the name of the insurer, the amount paid to the insurer and
1
the kind of insurance; and
2
(b) if the credit provider is aware of any commission to be paid
3
by the insurer in relation to the insurance contract--the
4
amount of the commission expressed either as a monetary
5
amount or as a proportion of the premium, if ascertainable
6
when the statement is given;
7
(if not previously disclosed in accordance with this Code).
8
In the case of consumer credit insurance that includes a contract of
9
general insurance within the meaning of the Insurance Contracts
10
Act 1984:
11
(c) it is sufficient compliance with paragraph (a) if the statement
12
of account contains the name of the general insurer, the total
13
amount payable to the insurers and the kind of insurance; and
14
(d) it is sufficient compliance with paragraph (b) if the statement
15
of account contains the total amount of commission
16
(expressed as a monetary amount or as a proportion of the
17
premium) to be paid by the insurers.
18
Alterations
19
(11) A statement of account must contain any correction of information
20
in a previous statement of account.
21
Other
22
(12) A statement of account must contain any other information
23
required by the regulations.
24
Note:
Sections 180 to 182 set out the tolerances and assumptions applicable
25
to matters required to be included in statements of accounts.
26
35 Opening balance must not exceed closing balance of previous
27
statement
28
(1) The opening balance shown in each successive statement of
29
account must not exceed the closing balance shown in the last
30
statement of account.
31
Note:
A penalty may be imposed for contravention of a key requirement in
32
this section: see Part 6.
33
National Credit Code Schedule 1
Cred it contracts Part 2
Cred it provider's obligation to account Division 5
Section 36
National Consumer Credit Protection Bill 2009 No. , 2009 339
(2) However, if no statement of account was given for the previous
1
period, the next statement of account required to be given by this
2
Code may have an opening balance that exceeds the closing
3
balance for the previous statement and must provide the particulars
4
referred to in subsections 34(4) to (12) in relation to any
5
immediately preceding periods for which statements were not
6
given.
7
36 Statement of amount owing and other matte rs
8
(1) A credit provider must, at the request of a debtor or guarantor and
9
within the time specified by this section, provide a statement of all
10
or any of the following:
11
(a) the current balance of the debtor's account;
12
(b) any amounts credited or debited during a period specified in
13
the request;
14
(c) any amounts currently overdue and when each such amount
15
became due;
16
(d) any amount currently payable and the date it became due.
17
Criminal penalty: 100 penalty units.
18
(2) The statement must be given:
19
(a) within 14 days, if all information requested relates to a period
20
1 year or less before the request is given; or
21
(b) within 30 days, if any information requested relates to a
22
period more than 1 year before the request is given.
23
(3) A statement under this section may be given orally but if the
24
request for the statement is made in writing the statement must be
25
given in writing.
26
(4) In the case of joint debtors or guarantors, the statement under this
27
section need only be given to a debtor or guarantor who requests
28
the statement and not, despite section 194, to each joint debtor or
29
guarantor.
30
(5) A credit provider is not required to provide a further written
31
statement under this section if it has, within the 3 months before
32
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 5 Credit provider's obligation to account
Section 37
340 National Consumer Credit Protection Bill 2009 No. , 2009
the request is given, given such a statement to the person
1
requesting it.
2
(6) Except where otherwise ordered by the court on the application of
3
the debtor or guarantor, a credit provider is not required to provide
4
information in a statement under this section about amounts
5
credited or debited, or which were overdue or payable, more than 7
6
years before the request is given unless those amounts are currently
7
overdue and payable.
8
(7) Subsection (1) is an offence of strict liability.
9
Note:
For strict liability, see section 6.1 of the Criminal Code.
10
37 Court may order state ment to be provided
11
If a statement is not provided within the time required by this
12
Division, the court may, on the application of the debtor or
13
guarantor, order the credit provider to provide the statement or
14
itself determine the amounts in relation to which the statement was
15
sought.
16
38 Disputed accounts
17
(1) If a debtor, by written notice to a credit provider, disputes a
18
particular liability entered against the debtor under a credit
19
contract, the credit provider must give the debtor a written notice
20
explaining in reasonable detail how the liability arises.
21
(2) A written notice need not be given if the credit provider agrees
22
with the debtor as to the disputed amount and gives the debtor a
23
written notice advising of the agreed liability.
24
(3) If in the case of a continuing credit contract the disputed entry
25
appears in a statement of account in which a date for payment of
26
the amount of the account, or part of that amount, is shown, the
27
notice of dispute must be given to the credit provider on or before
28
that date.
29
(4) In the case of any other credit contract for which a statement of
30
account is given, the notice of dispute must be given to the credit
31
National Credit Code Schedule 1
Cred it contracts Part 2
Cred it provider's obligation to account Division 5
Section 39
National Consumer Credit Protection Bill 2009 No. , 2009 341
provider within 30 days of receiving the statement of account in
1
which the amount, or part of that amount, was first shown.
2
(5) In the case of a credit contract in respect of which a statement of
3
account need not be and is not given for the period to which the
4
disputed liability relates, the notice of dispute must be given to the
5
credit provider not later than 3 months after the end of the contract.
6
(6) The credit provider must not begin enforcement proceedings on the
7
basis of a default arising from the disputed liability until at least 30
8
days have elapsed from the time the written explanation or advice
9
as to agreement was given.
10
(7) A debtor or credit provider may apply to the court to have the court
11
determine a disputed liability and, if satisfied that a liability is
12
genuinely disputed, the court may determine the matters in dispute
13
and make such consequential orders as it thinks just.
14
(8) If an application is made to the court under this section within 30
15
days after the explanation is given, the credit provider must not,
16
without leave of the court, begin enforcement proceedings on the
17
basis of a default arising from the disputed liability.
18
Criminal penalty: 50 penalty units.
19
(9) Subsection (8) is an offence of strict liability.
20
Note:
For strict liability, see section 6.1 of the Criminal Code.
21
(10) This section does not affect a dispute not dealt with, or not arising,
22
under this section.
23
39 Dating and adjustment of debits and credits in accounts
24
(1) For the purposes of this Code and the credit contract, a debit or a
25
credit made by a credit provider to a debtor's account is taken to
26
have been made, and has effect, on the date assigned to the debit or
27
credit, not on the date on which it is processed.
28
(2) A credit provider may subsequently adjust debits or credits to a
29
debtor's account, and the account balances, so as to accurately
30
reflect the legal obligations of the debtor and the credit provider.
31
Schedule 1 National Cred it Code
Part 2 Credit contracts
Division 5 Credit provider's obligation to account
Section 39
342 National Consumer Credit Protection Bill 2009 No. , 2009
(3) However, subsections (1) and (2) do not permit a debit or a credit
1
to be assigned a date other than the date on which it is processed,
2
or the subsequent adjustment of a debit or a credit or account
3
balance, if:
4
(a) the assignment or adjustment is not consistent with the credit
5
contract; or
6
(b) the adjustment results in an interest charge that is more than
7
the maximum amount permitted by the Code, as calculated
8
on the basis of debits or credits to a debtor's account
9
consistent with the credit contract; or
10
(c) the assignment or adjustment results in a contravention of
11
section 26; or
12
(d) the assignment of the date on which an interest charge is
13
taken to be debited results in a debit being taken to be done
14
before a time permitted under this Code.
15
(4) An adjustment by a credit provider under subsection (2) does not
16
affect any liability of a credit provider under Part 6.
17
18
National Credit Code Schedule 1
Cred it contracts Part 2
Certain transactions not to be treated as contracts Division 6
Section 40
National Consumer Credit Protection Bill 2009 No. , 2009 343
Division 6--Certain transactions not to be treated as
1
contracts
2
40 Deferrals, waivers and changes under contracts
3
(1) The provision of credit as a result of a change to an existing credit
4
contract, or a deferral or waiver of an amount under an existing
5
credit contract or a postponement relating to an existing credit
6
contract, is not to be treated as creating a new credit contract for
7
the purposes of this Code, if the change, deferral, waiver or
8
postponement is made in accordance with this Code or the existing
9
credit contract.
10
(2) In this section:
11
existing credit contract includes existing consumer lease.
12
13
Schedule 1 National Cred it Code
Part 3 Related mortgages and guarantees
Division 1 Mortgages
Section 41
344 National Consumer Credit Protection Bill 2009 No. , 2009
Part 3--Related mortgages and guarantees
1
Division 1--Mortgages
2
41 Application of Division
3
This Division applies to a mortgage (under which the mortgagor is
4
a natural person or a strata corporation) which secures obligations
5
under a credit contract or related guarantee, whether or not it also
6
secures other obligations (see section 7).
7
42 Form of mortgage
8
(1) A mortgage must be in the form of a written mortgage document
9
that is signed by the mortgagor.
10
(2) It is sufficient compliance with subsection (1) if:
11
(a) the mortgage is contained in a credit contract signed by the
12
mortgagor; or
13
(b) one of the documents comprising the mortgage document is
14
signed by the mortgagor (and the other documents are
15
referred to in the signed document).
16
(3) However, a goods mortgage need not be in the form of a written
17
mortgage document if the credit provider lawfully had possession
18
of the goods that are subject to the mortgage before the mortgage
19
was entered into, otherwise than because the credit provider
20
supplied the goods (for example, the goods were held by way of
21
security).
22
(4) A mortgage is not enforceable unless it complies with this section.
23
43 Copy of mortgage for mortgagor
24
(1) If a mortgage is in the form of a written mortgage document and is
25
not part of a credit contract, the credit provider must give the
26
mortgagor a copy to keep, in the form in which it was made, within
27
14 days after it is made.
28
National Credit Code Schedule 1
Related mo rtgages and guarantees Part 3
Mortgages Division 1
Section 44
National Consumer Credit Protection Bill 2009 No. , 2009 345
(2) This section does not apply if the credit provider has previously
1
given the mortgagor a copy of the mortgage document to keep.
2
44 Mortgages over all property void
3
(1) A mortgage that does not describe or identify the property which is
4
subject to the mortgage is void.
5
(2) Without limiting subsection (1), a provision in a mortgage that
6
charges all the property of the mortgagor is void.
7
45 Restriction on mortgage of future prope rty
8
(1) A provision in a mortgage to the effect that the mortgagor creates
9
or agrees to create a mortgage over or in respect of property or a
10
class of property that is to be, or may be, acquired by the
11
mortgagor after the mortgage is entered into is void.
12
(2) However, this section does not apply:
13
(a) to a provision in a mortgage of property that is to be acquired
14
wholly or partly with the credit provided under the credit
15
contract secured by the mortgage; or
16
(b) to a provision in a mortgage relating to property or a class of
17
property (whether or not ascertained) described or identified
18
in the mortgage; or
19
(c) to a provision in a mortgage relating to goods acquired in
20
replacement for, or as additions or accessories to, other goods
21
subject to the mortgage; or
22
(d) to any other provision specified by the regulations.
23
46 Mortgages and continuing credit contracts
24
(1) A provision in a mortgage to the effect that goods supplied from
25
time to time under a continuing credit contract are subject to the
26
mortgage is void.
27
(2) However, this section does not apply to a provision in a mortgage
28
relating to specified goods securing payment of a debt under a
29
continuing credit contract.
30
Schedule 1 National Cred it Code
Part 3 Related mortgages and guarantees
Division 1 Mortgages
Section 47
346 National Consumer Credit Protection Bill 2009 No. , 2009
47 All accounts mortgages
1
(1) In addition to securing credit provided by the credit contract or
2
proposed credit contract, or securing obligations under a related
3
guarantee or proposed related guarantee, to which a mortgage
4
initially applies, the mortgage may contain a provision that secures
5
credit provided under another future credit contract or future
6
related guarantee.
7
(2) Any such mortgage is unenforceable in relation to such a future
8
credit contract or future related guarantee unless the credit provider
9
has:
10
(a) given the mortgagor a copy of the contract document of the
11
credit contract or proposed credit contract or a copy of the
12
guarantee or proposed guarantee to which the mortgage is to
13
relate; and
14
(b) subsequently obtained from the mortgagor a written
15
acceptance of the extension of the mortgage or obtained
16
acceptance in some other form provided for by the
17
regulations.
18
(3) Section 42 (Form of mortgage) does not apply to an extension of a
19
mortgage under this section.
20
48 Third party mortgages prohibited
21
(1) A credit provider must not enter into a mortgage to secure
22
obligations under a credit contract unless each mortgagor is a
23
debtor under the contract or a guarantor under a related guarantee.
24
(2) A credit provider must not enter into a mortgage to secure
25
obligations under a guarantee unless each mortgagor is a guarantor
26
under the guarantee or a debtor under the related credit contract.
27
(3) A mortgage which does not comply with this section is
28
unenforceable.
29
(4) The court may, on the application of a party to a mortgage that is
30
unenforceable because of this section, order that the credit provider
31
takes such steps as are necessary to discharge the mortgage.
32
National Credit Code Schedule 1
Related mo rtgages and guarantees Part 3
Mortgages Division 1
Section 49
National Consumer Credit Protection Bill 2009 No. , 2009 347
(5) In this section, a reference to a credit contract or guarantee includes
1
a reference to a proposed credit contract or proposed guarantee.
2
49 Maximum amount which may be secured
3
(1) A mortgage is void to the extent that it secures an amount, in
4
relation to any credit contract which it secures, that exceeds the
5
sum of the amount of the liabilities of the debtor under the credit
6
contract and the reasonable enforcement expenses of enforcing the
7
mortgage.
8
(2) A mortgage is void to the extent that it secures an amount, in
9
relation to any guarantee which it secures, that exceeds the limit of
10
the guarantor's liability under the guarantee and the reasonable
11
enforcement expenses of enforcing the mortgage.
12
(3) This section does not affect a provision of a mortgage permitted by
13
section 47.
14
50 Prohibited securities
15
(1) A mortgage cannot be created over employees' remuneration or
16
employment benefits or benefits under a superannuation scheme
17
unless the regulations permit it to do so.
18
(2) A mortgage cannot be created over goods that are essential
19
household property unless:
20
(a) the mortgagee supplied the goods to the mortgagor as part of
21
a business carried on by the mortgagee of supplying goods
22
and the mortgagor has not, as a previous owner of the goods,
23
sold them to the mortgagee for the purposes of the supply; or
24
(b) the mortgagee is a linked credit provider of the person who
25
supplied the goods to the mortgagor.
26
(3) For the purposes of subsection (2), essential household property
27
includes goods of a type prescribed under the regulations.
28
(4) A type of goods may be prescribed under subsection (3) only if the
29
type is similar to a type of household property mentioned in
30
regulations made under subparagraph 116(2)(b)(i) of the
31
Bankruptcy Act 1966.
32
Schedule 1 National Cred it Code
Part 3 Related mortgages and guarantees
Division 1 Mortgages
Section 51
348 National Consumer Credit Protection Bill 2009 No. , 2009
(5) A mortgage cannot be created over goods that are property used by
1
the mortgagor in earning income by personal exertion if the goods
2
do not have a total value greater than the relevant limit.
3
(6) An obligation under a credit contract cannot be secured by a
4
cheque, or bill of exchange or promissory note, endorsed or issued
5
by the debtor or guarantor.
6
(7) A mortgage or security is void to the extent that it contravenes this
7
section.
8
(8) In this section:
9
antique item means an item of household property the market
10
value of which is substantially attributable to its age or historical
11
significance.
12
essential household property means household property as
13
prescribed under regulations made under subparagraph 116(2)(b)(i)
14
of the Bankruptcy Act 1966.
15
goods does not include antique items.
16
relevant limit, in relation to goods, means the limit prescribed from
17
time to time under the Bankruptcy Regulations 1966 for the
18
purposes of subparagraph 116(2)(c)(i) of the Bankruptcy Act 1966
19
for goods of that type.
20
51 Assignment or disposal of mortgaged prope rty by mortgagor
21
(1) A mortgagor must not assign or dispose of property that is subject
22
to a mortgage without the credit provider's consent or the authority
23
of the court under subsection (3).
24
Criminal penalty: 50 penalty units.
25
(2) The credit provider must not unreasonably withhold consent or
26
attach unreasonable conditions to the consent (but a condition
27
requiring security over property of an equivalent kind and value is
28
not to be regarded as unreasonable).
29
National Credit Code Schedule 1
Related mo rtgages and guarantees Part 3
Mortgages Division 1
Section 52
National Consumer Credit Protection Bill 2009 No. , 2009 349
(3) The court may, on application by a mortgagor, authorise the
1
mortgagor to dispose of mortgaged property on conditions
2
determined by the court if:
3
(a) the credit provider fails within a reasonable time to reply to a
4
request for consent to do so by the mortgagor; or
5
(b) consent is unreasonably withheld, or unreasonable conditions
6
are attached to the consent.
7
(4) Subsection (1) is an offence of strict liability.
8
Note:
For strict liability, see section 6.1 of the Criminal Code.
9
52 Conditions on consent to assignment or disposal of property
10
subject to mortgage
11
(1) As a condition of granting consent to an assignment or disposal of
12
property subject to a mortgage, the credit provider may make any
13
or all of the requirements set out in this section. This section does
14
not limit any other requirements that may be made by the credit
15
provider.
16
(2) The credit provider may require any breaches of the credit contract
17
to which the mortgage relates and of the mortgage to be remedied.
18
(3) The credit provider may require the mortgagor and the assignee or
19
person to whom the property is disposed to execute and deliver to
20
the credit provider an agreement relating to the assignment or
21
disposal in a form approved by the credit provider under which,
22
without prejudicing or affecting the liability of the mortgagor, the
23
assignee or person to whom the property is disposed agrees with
24
the credit provider:
25
(a) to be personally liable to pay the amounts due or that become
26
due under the mortgage; and
27
(b) to perform and observe all other requirements and conditions
28
of the mortgage.
29
(4) The credit provider may require the mortgagor and the assignee or
30
person to whom the property is disposed to pay the reasonable
31
costs (if any) incurred by the credit provider for:
32
(a) stamp duty in respect of the assignment or disposal
33
agreement, or any other document the credit provider
34
Schedule 1 National Cred it Code
Part 3 Related mortgages and guarantees
Division 1 Mortgages
Section 53
350 National Consumer Credit Protection Bill 2009 No. , 2009
reasonably requires to be executed in connection with the
1
assignment or disposal; and
2
(b) fees payable to a duly qualified lawyer.
3
53 Offence for noncompliance
4
(1) A credit provider must not:
5
(a) enter into a mortgage that contravenes a requirement of this
6
Division; or
7
(b) otherwise contravene a requirement of this Division.
8
Criminal penalty: 50 penalty units.
9
(2) A credit provider must not enter into a mortgage that is void or
10
unenforceable, or that includes a provision that is void or
11
unenforceable, because of this Division.
12
Criminal penalty: 50 penalty units.
13
(3) Subsections (1) and (2) are offences of strict liability.
14
Note:
For strict liability, see section 6.1 of the Criminal Code.
15
16
National Credit Code Schedule 1
Related mo rtgages and guarantees Part 3
Guarantees Division 2
Section 54
National Consumer Credit Protection Bill 2009 No. , 2009 351
Division 2--Guarantees
1
54 Application of Division
2
This Division applies to a guarantee (under which the guarantor is
3
a natural person or a strata corporation) to the extent to which it
4
guarantees obligations under a credit contract, whether or not it
5
also guarantees other obligations (see section 8).
6
55 Form of guarantee
7
(1) A guarantee must be in writing signed by the guarantor.
8
(2) It is sufficient compliance with subsection (1) if the guarantee is
9
contained in a mortgage signed by the guarantor.
10
(3) The regulations may make provision for or with respect to the
11
content of guarantees and the way they are expressed.
12
(4) A guarantee is not enforceable unless it complies with this section
13
and regulations made under this section.
14
56 Disclosure
15
(1) Before a guarantee is signed by the guarantor, the credit provider
16
must give to the prospective guarantor:
17
(a) a copy of the contract document of the credit contract or
18
proposed credit contract; and
19
(b) a document in the form prescribed by the regulations
20
explaining the rights and obligations of a guarantor.
21
(2) A guarantee is not enforceable unless paragraph (1)(a) is complied
22
with.
23
57 Copies of documents for guarantor
24
(1) A credit provider must, not later than 14 days after a guarantee is
25
signed and given to the credit provider, give the guarantor:
26
(a) a copy of the guarantee signed by the guarantor; and
27
(b) a copy of the credit contract or proposed credit contract.
28
Schedule 1 National Cred it Code
Part 3 Related mortgages and guarantees
Division 2 Guarantees
Section 58
352 National Consumer Credit Protection Bill 2009 No. , 2009
(2) Paragraph (1)(a) does not apply if the credit provider has
1
previously given the guarantor a copy of the guarantee document to
2
keep and paragraph (1)(b) does not apply if the credit provider has
3
previously given the guarantor a copy of the credit contract or
4
proposed credit contract to keep.
5
58 Guarantor may withdraw before credit is provided
6
(1) Although a guarantee has been made, the guarantor may
7
nevertheless, by written notice to the credit provider:
8
(a) withdraw from the guarantee at any time before credit is first
9
provided under the credit contact; or
10
(b) withdraw from the guarantee after credit is first provided
11
under the contract if the credit contract made differs in some
12
material respect from the proposed credit contract given to
13
the guarantor before the guarantee is signed.
14
(2) The guarantor may withdraw from a guarantee under this section to
15
the extent only that it guarantees obligations under the credit
16
contract.
17
(3) This section is subject to section 61.
18
59 Extension of guarantee
19
(1) In addition to guaranteeing obligations under a credit contract or
20
proposed credit contract to which a guarantee initially applies, a
21
guarantee may contain a provision that makes credit provided
22
under another future credit contract subject to the guarantee.
23
(2) Any such guarantee is unenforceable in relation to such a future
24
credit contract unless the credit provider has:
25
(a) given the guarantor a copy of the contract document of that
26
future credit contract; and
27
(b) subsequently obtained from the guarantor a written
28
acceptance of the extension of the guarantee or obtained
29
acceptance in some other form provided for by the
30
regulations.
31
(3) Section 55 (Form of guarantee) and section 56 (Disclosure) do not
32
apply to an extension of a guarantee under this section.
33
National Credit Code Schedule 1
Related mo rtgages and guarantees Part 3
Guarantees Division 2
Section 60
National Consumer Credit Protection Bill 2009 No. , 2009 353
60 Limitation of guarantor's liability
1
Total amount for which guarantor can be liable
2
(1) A guarantee is void to the extent that it secures an amount, in
3
relation to a credit contract to which this Code applies, that exceeds
4
the sum of the amount of the liabilities of the debtor under the
5
credit contract and the reasonable expenses of enforcing the
6
guarantee, or any lesser amount agreed between the credit provider
7
and the guarantor.
8
Unenforceable contracts
9
(2) Nothing in subsection (1) prevents a credit provider from enforcing
10
a guarantee relating to liabilities under a credit contract that is
11
unenforceable solely because of the debtor's death, insolvency or
12
incapacity.
13
Debtors under 18 years of age
14
(3) A guarantee which guarantees the liability of a debtor who was
15
under 18 years of age when the liability was incurred cannot be
16
enforced against the guarantor unless it contains a prominent
17
statement to the effect that the guarantor may not be entitled to an
18
indemnity against the debtor.
19
Guarantor may limit liabilities under continuing credit contract
20
(4) In the case of a continuing credit contract, a guarantor may, by
21
notice to the credit provider, limit the guarantee so that it applies
22
only to liabilities related to credit previously provided to the debtor
23
under the credit contract (including any liabilities not yet debited to
24
the debtor's account) and such further amount (if any) as the
25
guarantor agrees to guarantee.
26
Guarantee must not limit indemnity
27
(5) A guarantee is void to the extent that it limits the guarantor's right
28
to indemnity from the person whose liability the guarantor has
29
guaranteed or it postpones or otherwise purports to limit the
30
guarantor's right to enforce the indemnity against the person.
31
Schedule 1 National Cred it Code
Part 3 Related mortgages and guarantees
Division 2 Guarantees
Section 61
354 National Consumer Credit Protection Bill 2009 No. , 2009
Effect of section
1
(6) This section does not affect a provision of a guarantee permitted by
2
section 59.
3
61 Increase in guarantor's liabilities
4
(1) If the terms of a credit contract are changed to increase or allow for
5
an increase in liabilities, the liabilities of a guarantor under a
6
guarantee that secures those liabilities are not increased unless:
7
(a) the credit provider gives to the guarantor a written notice
8
setting out particulars of the change in the terms of the credit
9
contract; and
10
(b) the credit provider has subsequently obtained from the
11
guarantor a written acceptance of the extension of the
12
guarantee to those increased liabilities or obtained acceptance
13
in some other form provided for by the regulations.
14
(2) This section does not apply to an increase in liabilities resulting
15
from:
16
(a) a change of a kind referred to in paragraph 63(2)(a) or (b); or
17
(b) a change of which notice is required to be given under
18
Division 1 of Part 4 (not being a change referred to in
19
subsection 67(4) or section 68); or
20
(c) a change under subsection 74(2) or a postponement under
21
subsection 96(2); or
22
(d) a deferral or waiver of a debtor's obligations for a period not
23
exceeding 90 days.
24
62 Offence for noncompliance
25
(1) A credit provider must not:
26
(a) enter into a guarantee that contravenes a requirement of this
27
Division; or
28
(b) otherwise contravene a requirement of this Division.
29
(2) A credit provider must not enter into a guarantee that is void or
30
unenforceable, or that contains a provision that is void or
31
unenforceable, because of this Division.
32
National Credit Code Schedule 1
Related mo rtgages and guarantees Part 3
Guarantees Division 2
Section 62
National Consumer Credit Protection Bill 2009 No. , 2009 355
Criminal penalty: 50 penalty units.
1
(3) Subsections (1) and (2) are offences of strict liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
4
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 1 Unilateral changes by credit provider
Section 63
356 National Consumer Credit Protection Bill 2009 No. , 2009
Part 4--Changes to obligations under credit
1
contracts, mortgages and guarantees
2
Division 1--Unilateral changes by credit provider
3
63 Application of Division
4
(1) This Division applies only to changes made unilaterally by a credit
5
provider under a credit contract, mortgage or guarantee.
6
(2) This Division does not apply to the following changes under a
7
credit contract:
8
(a) a change to a new annual percentage rate payable under the
9
contract (not being a rate determined by referring to a
10
reference rate), if both the new rate and when it takes effect
11
are ascertainable from the contract;
12
(b) an increase in the amount of repayments, if the increase
13
occurs automatically, as specified by the contract, and both
14
the amount of the increase and when it takes effect are
15
ascertainable from the contract;
16
(c) an increase in the term of a credit contract, if the increase
17
occurs only because of an increase in the annual percentage
18
rate or rates payable under the contract;
19
(d) a change made under Division 3.
20
(3) Nothing in this Division confers on a credit provider or a debtor
21
any power or right to change the credit contract or its terms in
22
addition to those conferred by the contract.
23
64 Inte rest rate changes
24
Notification of interest rate changes
25
(1) A credit provider must, not later than the day on which a change in
26
the annual percentage rate or rates payable under a credit contract
27
takes effect, give to the debtor written notice setting out:
28
(a) the new rate or rates or, if a rate is determined by referring to
29
a reference rate, the new reference rate; and
30
(b) any information required by the regulations.
31
National Credit Code Schedule 1
Changes to obligations under credit contracts, mortgages and guarantees Part 4
Unilateral changes by credit provider Division 1
Section 64
National Consumer Credit Protection Bill 2009 No. , 2009 357
Criminal penalty: 100 penalty units.
1
Notification by publication
2
(2) Notice under subsection (1) may be given by publishing the notice
3
in a newspaper circulating throughout each State and Territory. A
4
credit provider that gives notice in accordance with this subsection
5
must give to the debtor particulars of the change before or when
6
the next statement of account is sent to the debtor after the change
7
takes effect.
8
Criminal penalty: 100 penalty units.
9
Changes in reference rates
10
(3) Subsection (1) does not apply to a change in a rate that is
11
determined by referring to a reference rate if the changed reference
12
rate is notified (whether or not by the credit provider) in a
13
newspaper circulating throughout each State and Territory not later
14
than the date the change takes effect.
15
Notification of other interest changes
16
(4) A credit provider must, not later than 20 days before a change in
17
the manner in which interest is calculated or applied under a credit
18
contract (including a change in or abolition of any interest free
19
period under the contract) takes effect, give to the debtor written
20
notice setting out:
21
(a) particulars of the change; and
22
(b) any information required by the regulations.
23
Criminal penalty: 100 penalty units.
24
Interest rate reductions
25
(5) Subsections (1) and (4) do not apply to a change that reduces the
26
obligations of the debtor under the credit contract.
27
Strict liability offences
28
(6) Subsections (1), (2) and (4) are offences of strict liability.
29
Note:
For strict liability, see section 6.1 of the Criminal Code.
30
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 1 Unilateral changes by credit provider
Section 65
358 National Consumer Credit Protection Bill 2009 No. , 2009
Application
1
(7) This section applies whether or not the change is a change to the
2
terms of the contract.
3
65 Repayment changes
4
Notification of repayment changes
5
(1) A credit provider must, not later than 20 days before a change in
6
the amount or frequency or time for payment of, or a change in the
7
method of calculation of, instalments or minimum repayments,
8
under a credit contract takes effect, give to the debtor written
9
notice setting out:
10
(a) particulars of the change; and
11
(b) any information required by the regulations.
12
Criminal penalty: 100 penalty units.
13
Repayment reductions
14
(2) Subsection (1) does not apply to a change that reduces the
15
obligations of the debtor, or extends the time for payment, under
16
the credit contract. The credit provider must, however, give
17
particulars of any such change before or when the next statement
18
of account is sent to the debtor after the change takes effect.
19
Criminal penalty: 100 penalty units.
20
(3) If the amount or frequency or time for payment of instalments or
21
minimum repayments is not specified in the credit contract but is
22
determined by a method of calculation so specified, this section
23
requires the credit provider to give particulars only of any change
24
in that method of calculation.
25
Strict liability offences
26
(4) Subsections (1) and (2) are offences of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
National Credit Code Schedule 1
Changes to obligations under credit contracts, mortgages and guarantees Part 4
Unilateral changes by credit provider Division 1
Section 66
National Consumer Credit Protection Bill 2009 No. , 2009 359
Application
1
(5) This section does not apply to a change that occurs while the credit
2
contract does not require any repayment of the amount of credit
3
provided.
4
(6) This section applies whether or not the change is a change to the
5
terms of the contract.
6
66 Credit fees and charges changes
7
Notification of credit fees and charges changes
8
(1) A credit provider must, not later than 20 days before a change in
9
the amount of a credit fee or charge (including a new credit fee or
10
charge), or a change in the frequency or time for payment of a
11
credit fee or charge, under a credit contract takes effect, give to the
12
debtor written notice setting out:
13
(a) particulars of the change; and
14
(b) any information required by the regulations.
15
Criminal penalty: 100 penalty units.
16
Notification by publication
17
(2) Notice relating to a change in the amount of a credit fee or charge
18
(including a new credit fee or charge) may be given by publishing
19
the notice in a newspaper circulating throughout each State and
20
Territory. A credit provider that gives notice in accordance with
21
this subsection must give particulars of the change before or when
22
the next statement of account is sent to the debtor after the change
23
takes effect.
24
Criminal penalty: 100 penalty units.
25
Credit fee or charge reductions
26
(3) Subsection (1) does not apply to a change that reduces the
27
obligations of the debtor, or extends the time for payment, under
28
the credit contract. The credit provider must, however, give
29
particulars of any such change before or when the next statement
30
of account is sent to the debtor after the change takes effect.
31
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 1 Unilateral changes by credit provider
Section 67
360 National Consumer Credit Protection Bill 2009 No. , 2009
Criminal penalty: 100 penalty units.
1
Strict liability offences
2
(4) Subsections (1), (2) and (3) are offences of strict liability.
3
Note:
For strict liability, see section 6.1 of the Criminal Code.
4
Application
5
(5) This section applies whether or not the change is a change to the
6
terms of the contract.
7
67 Changes to credit limits etc. in continuing credit contracts
8
(1) If a credit provider decides not to provide any further credit under a
9
continuing credit contract, the credit contract continues in force in
10
relation to any credit previously provided under the contract.
11
However, this subsection does not prevent the termination of the
12
contract if otherwise permitted by this Code or the contract.
13
(2) A credit provider must, unless the debtor is in default under the
14
contract, as soon as practicable after deciding not to provide any
15
further credit or to reduce the credit limit, give to the debtor a
16
written notice to that effect if such notice has not previously been
17
given.
18
Criminal penalty: 100 penalty units.
19
(3) Subsection (2) is an offence of strict liability.
20
Note:
For strict liability, see section 6.1 of the Criminal Code.
21
(4) A credit provider may increase the credit limit under a continuing
22
credit contract only at the request of the debtor or with the written
23
consent of the debtor.
24
68 Other unilateral changes by credit provider
25
(1) A credit provider must not exercise a power under a credit contract,
26
mortgage or guarantee to unilaterally change its terms without
27
giving to the other party, not less than 20 days before the change
28
takes effect, written notice setting out:
29
National Credit Code Schedule 1
Changes to obligations under credit contracts, mortgages and guarantees Part 4
Unilateral changes by credit provider Division 1
Section 69
National Consumer Credit Protection Bill 2009 No. , 2009 361
(a) particulars of the change in the terms of the credit contract,
1
mortgage or guarantee; and
2
(b) any information required by the regulations.
3
Criminal penalty: 100 penalty units.
4
(2) Subsection (1) does not apply to a change that reduces the
5
obligations of the debtor, or extends the time for payment, under
6
the credit contract. The credit provider must, however, give
7
particulars of any such change before or when the next statement
8
of account is sent to the debtor after the change takes effect.
9
Criminal penalty: 100 penalty units.
10
(3) Subsections (1) and (2) are offences of strict liability.
11
Note:
For strict liability, see section 6.1 of the Criminal Code.
12
(4) This section does not apply to a change of which notice is required
13
to be given under section 64, 65, 66 or 67 (or which would be
14
required to be so given but for an exception provided in any such
15
section) or which is referred to in subsection 67(4).
16
69 Particulars of matters as changed only required to be given
17
under this Division in ce rtain cases
18
The credit provider may, under section 64, 65, 66 or 68, give a
19
person particulars only of a matter as changed instead of particulars
20
of the change, but only if the credit provider:
21
(a) makes it clear to the person that the matter has changed; or
22
(b) issues to the person a new set of terms and conditions relating
23
to the credit contract, mortgage or guarantee.
24
70 Prohibited increases in liabilities
25
(1) If the annual percentage rate under a credit contract is currently
26
fixed for a specified term (including the whole term) of the
27
contract, the contract cannot be changed unilaterally by a credit
28
provider so as to increase, or change the method of calculation of a
29
fee or charge so as to increase, a fee or charge:
30
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 1 Unilateral changes by credit provider
Section 70
362 National Consumer Credit Protection Bill 2009 No. , 2009
(a) payable by the debtor on early termination of the credit
1
contract; or
2
(b) payable on prepayment of an amount under the credit
3
contract.
4
(2) The regulations may prescribe circumstances in which such a
5
change is permitted.
6
7
National Credit Code Schedule 1
Changes to obligations under credit contracts, mortgages and guarantees Part 4
Changes by agreement of parties Division 2
Section 71
National Consumer Credit Protection Bill 2009 No. , 2009 363
Division 2--Changes by agreement of parties
1
71 Changes by agreement
2
(1) If the parties under a credit contract, mortgage or guarantee agree
3
to change its terms, the credit provider must, not later than 30 days
4
after the date of the agreement, give to the other party under the
5
agreement a written notice setting out:
6
(a) particulars of the change in the terms of the credit contract,
7
mortgage or guarantee; and
8
(b) any information required by the regulations.
9
Criminal penalty: 100 penalty units.
10
(2) Subsection (1) does not apply to a change which defers or
11
otherwise reduces the obligations of the debtor for a period not
12
exceeding 90 days or to an agreement to increase the amount of
13
credit under a credit contract.
14
(3) If the parties under a credit contract (other than a continuing credit
15
contract) propose to increase the amount of credit under the
16
contract by agreement, the credit provider must also, before the
17
agreement is made, give to the debtor a written notice containing
18
the information required by the regulations.
19
Criminal penalty: 100 penalty units.
20
(4) This section does not apply to a change made under Division 3.
21
(5) The credit provider may, under subsection (1), give a person
22
particulars only of a matter as changed instead of particulars of the
23
change, but only if the credit provider:
24
(a) makes it clear to the person that the matter has changed; or
25
(b) issues to the person a new set of terms and conditions relating
26
to the credit contract, mortgage or guarantee.
27
(6) Subsections (1) and (3) are offences of strict liability.
28
Note:
For strict liability, see section 6.1 of the Criminal Code.
29
30
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 3 Changes on grounds of hardship and unjust transactions
Section 72
364 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Changes on grounds of hardship and unjust
1
transactions
2
72 Changes on grounds of hardship
3
General principle
4
(1) A debtor who is unable reasonably, because of illness,
5
unemployment or other reasonable cause, to meet the debtor's
6
obligations under a credit contract and who reasonably expects to
7
be able to discharge the debtor's obligations if the terms of the
8
contract were changed in a manner set out in subsection (2) may
9
apply to the credit provider for such a change.
10
Changes
11
(2) An application by a debtor must seek to change the terms of the
12
contract in one of the following ways:
13
(a) extending the period of the contract and reducing the amount
14
of each payment due under the contract accordingly (without
15
a change being made to the annual percentage rate or rates);
16
(b) postponing during a specified period the dates on which
17
payments are due under the contract (without a change being
18
made to the annual percentage rate or rates);
19
(c) extending the period of the contract and postponing during a
20
specified period the dates on which payments are due under
21
the contract (without a change being made to the annual
22
percentage rate or rates).
23
Credit provider's notice about change
24
(3) If the debtor makes an application, the credit provider must, within
25
21 days after the day of receiving the application, give the debtor a
26
written notice:
27
(a) that states whether or not the credit provider agrees to the
28
change; and
29
(b) if the credit provider does not agree to the change--that
30
states:
31
National Credit Code Schedule 1
Changes to obligations under credit contracts, mortgages and guarantees Part 4
Changes on grounds of hardship and unjust transactions Division 3
Section 73
National Consumer Credit Protection Bill 2009 No. , 2009 365
(i) the name of the approved external resolution scheme of
1
which the credit provider is a member; and
2
(ii) the debtor's rights under that scheme.
3
Criminal penalty: 30 penalty units.
4
(4) Subsection (3) is an offence of strict liability.
5
Note:
For strict liability, see section 6.1 of the Criminal Code.
6
Application
7
(5) This section and sections 73 to 75 do not apply to a credit contract
8
under which the maximum amount of credit that is or may be
9
provided is more than:
10
(a) $500,000; or
11
(b) if the regulations prescribe a higher amount--that amount.
12
73 Notice of change
13
(1) A credit provider that enters into an agreement with the debtor on
14
any such application must, not later than 30 days after the date of
15
the agreement, give to the debtor, and any guarantor under a
16
guarantee related to the contract, a written notice setting out:
17
(a) particulars of the change in the terms of the credit contract;
18
and
19
(b) any information required by the regulations.
20
Criminal penalty: 50 penalty units.
21
(2) The credit provider may, under subsection (1), give a person
22
particulars only of a matter as changed instead of particulars of the
23
change, but only if the credit provider:
24
(a) makes it clear to the person that the matter has changed; or
25
(b) issues to the person a new set of terms and conditions relating
26
to the credit contract.
27
(3) Subsection (1) is an offence of strict liability.
28
Note:
For strict liability, see section 6.1 of the Criminal Code.
29
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 3 Changes on grounds of hardship and unjust transactions
Section 74
366 National Consumer Credit Protection Bill 2009 No. , 2009
74 Changes by court
1
(1) If the credit provider does not change the credit contract in
2
accordance with the application, the debtor may apply to the court
3
to change the terms of the credit contract.
4
(2) The court may, after allowing the applicant, the credit provider and
5
any guarantor a reasonable opportunity to be heard, by order
6
change the credit contract in a manner set out in section 72, and
7
make such other orders as it thinks fit, or refuse to change the
8
credit contract.
9
(3) The court may, if it thinks it appropriate in the circumstances, stay
10
any enforcement proceedings under the credit contract, and make
11
such other orders as it thinks fit, until the application has been
12
determined.
13
75 Credit provider may apply for variation of change
14
(1) A credit provider under a credit contract that has been changed by
15
an order under subsection 74(2) may apply to the court for an order
16
varying or revoking the order.
17
(2) A credit provider subject to a stay of enforcement proceedings or
18
other order under subsection 74(3) may apply to the court for an
19
order varying or revoking the stay or order.
20
(3) On an application under this section, the court may vary or revoke
21
the order or stay to which the application relates as it thinks fit, or
22
may refuse the application.
23
76 Court may reopen unjust transactions
24
Power to reopen unjust transactions
25
(1) The court may, if satisfied on the application of a debtor,
26
mortgagor or guarantor that, in the circumstances relating to the
27
relevant credit contract, mortgage or guarantee at the time it was
28
entered into or changed (whether or not by agreement), the
29
contract, mortgage or guarantee or change was unjust, reopen the
30
National Credit Code Schedule 1
Changes to obligations under credit contracts, mortgages and guarantees Part 4
Changes on grounds of hardship and unjust transactions Division 3
Section 76
National Consumer Credit Protection Bill 2009 No. , 2009 367
transaction that gave rise to the contract, mortgage or guarantee or
1
change.
2
Matters to be considered by court
3
(2) In determining whether a term of a particular credit contract,
4
mortgage or guarantee is unjust in the circumstances relating to it
5
at the time it was entered into or changed, the court is to have
6
regard to the public interest and to all the circumstances of the case
7
and may have regard to the following:
8
(a) the consequences of compliance, or noncompliance, with all
9
or any of the provisions of the contract, mortgage or
10
guarantee;
11
(b) the relative bargaining power of the parties;
12
(c) whether or not, at the time the contract, mortgage or
13
guarantee was entered into or changed, its provisions were
14
the subject of negotiation;
15
(d) whether or not it was reasonably practicable for the applicant
16
to negotiate for the alteration of, or to reject, any of the
17
provisions of the contract, mortgage or guarantee or the
18
change;
19
(e) whether or not any of the provisions of the contract,
20
mortgage or guarantee impose conditions that are
21
unreasonably difficult to comply with, or not reasonably
22
necessary for the protection of the legitimate interests of a
23
party to the contract, mortgage or guarantee;
24
(f) whether or not the debtor, mortgagor or guarantor, or a
25
person who represented the debtor, mortgagor or guarantor,
26
was reasonably able to protect the interests of the debtor,
27
mortgagor or guarantor because of his or her age or physical
28
or mental condition;
29
(g) the form of the contract, mortgage or guarantee and the
30
intelligibility of the language in which it is expressed;
31
(h) whether or not, and if so when, independent legal or other
32
expert advice was obtained by the debtor, mortgagor or
33
guarantor;
34
(i) the extent to which the provisions of the contract, mortgage
35
or guarantee or change and their legal and practical effect
36
were accurately explained to the debtor, mortgagor or
37
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 3 Changes on grounds of hardship and unjust transactions
Section 76
368 National Consumer Credit Protection Bill 2009 No. , 2009
guarantor and whether or not the debtor, mortgagor or
1
guarantor understood those provisions and their effect;
2
(j) whether the credit provider or any other person exerted or
3
used unfair pressure, undue influence or unfair tactics on the
4
debtor, mortgagor or guarantor and, if so, the nature and
5
extent of that unfair pressure, undue influence or unfair
6
tactics;
7
(k) whether the credit provider took measures to ensure that the
8
debtor, mortgagor or guarantor understood the nature and
9
implications of the transaction and, if so, the adequacy of
10
those measures;
11
(l) whether at the time the contract, mortgage or guarantee was
12
entered into or changed, the credit provider knew, or could
13
have ascertained by reasonable inquiry at the time, that the
14
debtor could not pay in accordance with its terms or not
15
without substantial hardship;
16
(m) whether the terms of the transaction or the conduct of the
17
credit provider is justified in the light of the risks undertaken
18
by the credit provider;
19
(n) for a mortgage--any relevant purported provision of the
20
mortgage that is void under section 50;
21
(o) the terms of other comparable transactions involving other
22
credit providers and, if the injustice is alleged to result from
23
excessive interest charges, the annual percentage rate or rates
24
payable in comparable cases;
25
(p) any other relevant factor.
26
Representing debtor, mortgagor or guarantor
27
(3) For the purposes of paragraph (2)(f), a person is taken to have
28
represented a debtor, mortgagor or guarantor if the person
29
represented the debtor, mortgagor or guarantor, or assisted the
30
debtor, mortgagor or guarantor to a significant degree, in the
31
negotiations process prior to, or at, the time the credit contract,
32
mortgage or guarantee was entered into or changed.
33
National Credit Code Schedule 1
Changes to obligations under credit contracts, mortgages and guarantees Part 4
Changes on grounds of hardship and unjust transactions Division 3
Section 77
National Consumer Credit Protection Bill 2009 No. , 2009 369
Unforeseen circumstances
1
(4) In determining whether a credit contract, mortgage or guarantee is
2
unjust, the court is not to have regard to any injustice arising from
3
circumstances that were not reasonably foreseeable when the
4
contract, mortgage or guarantee was entered into or changed.
5
Conduct
6
(5) In determining whether to grant relief in respect of a credit
7
contract, mortgage or guarantee that it finds to be unjust, the court
8
may have regard to the conduct of the parties to the proceedings in
9
relation to the contract, mortgage or guarantee since it was entered
10
into or changed.
11
Application
12
(6) This section does not apply:
13
(a) to a matter or thing in relation to which an application may
14
be made under subsection 78(1); or
15
(b) to a change to a contract under this Division.
16
(7) This section does apply in relation to a mortgage, and a mortgagor
17
may make an application under this section, even though all or part
18
of the mortgage is void under subsection 50(3).
19
Meaning of unjust
20
(8) In this section:
21
unjust includes unconscionable, harsh or oppressive.
22
77 Orde rs on reopening of transactions
23
The court may, if it reopens a transaction under this Division, do
24
any one or more of the following, despite any settlement of
25
accounts or any agreement purporting to close previous dealings
26
and create a new obligation:
27
(a) reopen an account already taken between the parties to the
28
transaction;
29
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 3 Changes on grounds of hardship and unjust transactions
Section 78
370 National Consumer Credit Protection Bill 2009 No. , 2009
(b) relieve the debtor and any guarantor from payment of any
1
amount in excess of such amount as the court, having regard
2
to the risk involved and all other circumstances, considers to
3
be reasonably payable;
4
(c) set aside either wholly or in part or revise or alter an
5
agreement made or mortgage given in connection with the
6
transaction;
7
(d) order that the mortgagee takes such steps as are necessary to
8
discharge the mortgage;
9
(e) give judgment for or make an order in favour of a party to the
10
transaction of such amount as, having regard to the relief (if
11
any) which the court thinks fit to grant, is justly due to that
12
party under the contract, mortgage or guarantee;
13
(f) give judgment or make an order against a person for delivery
14
of goods to which the contract, mortgage or guarantee relates
15
and which are in the possession of that person;
16
(g) make ancillary or consequential orders.
17
78 Court may revie w unconscionable interest and other charges
18
(1) The court may, if satisfied on the application of a debtor or
19
guarantor that:
20
(a) a change in the annual percentage rate or rates under a credit
21
contract to which subsection 64(1) or (4) applies; or
22
(b) an establishment fee or charge; or
23
(c) a fee or charge payable on early termination of a credit
24
contract; or
25
(d) a fee or charge for a prepayment of an amount under a credit
26
contract;
27
is unconscionable, annul or reduce the change or fee or charge and
28
may make ancillary or consequential orders.
29
(2) For the purposes of this section, a change to the annual percentage
30
rate or rates is unconscionable if and only if it appears to the court
31
that:
32
(a) it changes the annual percentage rate or rates in a manner that
33
is unreasonable, having regard to any advertised rate or other
34
representations made by the credit provider before or at the
35
National Credit Code Schedule 1
Changes to obligations under credit contracts, mortgages and guarantees Part 4
Changes on grounds of hardship and unjust transactions Division 3
Section 79
National Consumer Credit Protection Bill 2009 No. , 2009 371
time the contract was entered into, the period of time since
1
the contract was entered into and any other consideration the
2
court thinks relevant; or
3
(b) the change is a measure that discriminates unjustifiably
4
against the debtor when the debtor is compared to other
5
debtors of the credit provider under similar contracts.
6
(3) In determining whether an establishment fee or charge is
7
unconscionable, the court is to have regard to whether the amount
8
of the fee or charge is equal to the credit provider's reasonable
9
costs of determining an application for credit and the initial
10
administrative costs of providing the credit or is equal to the credit
11
provider's average reasonable costs of those things in respect of
12
that class of contract.
13
(4) For the purposes of this section, a fee or charge payable on early
14
termination of the contract or a prepayment of an amount under the
15
credit contract is unconscionable if and only if it appears to the
16
court that it exceeds a reasonable estimate of the credit provider's
17
loss arising from the early termination or prepayment, including
18
the credit provider's average reasonable administrative costs in
19
respect of such a termination or prepayment.
20
79 Applications by ASIC
21
(1) This section applies if ASIC considers that it is in the public
22
interest to make an application under this Division.
23
(2) ASIC may make an application under this Division and has
24
standing to represent the public interest.
25
(3) The application:
26
(a) may apply to any one or more credit contracts; and
27
(b) may apply to all or any class of credit contracts entered into
28
by a credit provider during a specified period (for example,
29
all credit contracts entered into during a specified period that
30
are affected by a specified matter for which relief is sought).
31
Schedule 1 National Cred it Code
Part 4 Changes to obligations under credit contracts, mortgages and guarantees
Division 3 Changes on grounds of hardship and unjust transactions
Section 80
372 National Consumer Credit Protection Bill 2009 No. , 2009
80 Time limit
1
(1) An application (other than an application under section 78) may
2
not be brought under this Division more than 2 years after the
3
relevant credit contract is rescinded or discharged or otherwise
4
comes to an end.
5
(2) An application under section 78 may not be brought more than 2
6
years after the relevant change takes effect or fee or charge is
7
charged under the credit contract or the credit contract is rescinded
8
or discharged or otherwise comes to an end.
9
81 Joinder of parties
10
(1) If it appears to the court that a person other than a credit provider
11
or a mortgagee (a third party) has shared in the profits of, or has a
12
beneficial interest prospectively or otherwise in, a credit contract or
13
mortgage that the court holds to be unjust, the court may make an
14
order about the third party that the court considers appropriate.
15
(2) However, before making an order about the third party, the court
16
must:
17
(a) join the third party as a party to the proceedings; and
18
(b) give the third party an opportunity to appear and be heard in
19
the proceedings.
20
21
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Ending of credit contract by debtor Division 1
Section 82
National Consumer Credit Protection Bill 2009 No. , 2009 373
Part 5--Ending and enforcing credit contracts,
1
mortgages and guarantees
2
Division 1--Ending of credit contract by debtor
3
82 Debtor's or guarantor's right to pay out contract
4
(1) A debtor or guarantor is entitled to pay out the credit contract at
5
any time.
6
(2) The amount required to pay out a credit contract (other than a
7
continuing credit contract) is the total of the following amounts:
8
(a) the amount of credit;
9
(b) the interest charges and all other fees and charges payable by
10
the debtor to the credit provider up to the date of termination;
11
(c) reasonable enforcement expenses;
12
(d) early termination charges, if provided for in the contract;
13
less any payments made under the contract and any rebate of
14
premium under section 148.
15
83 Statement of pay out figure
16
(1) A credit provider must, at the written request of a debtor or
17
guarantor, provide a written statement of the amount required to
18
pay out a credit contract (other than a continuing credit contract) as
19
at such date as the debtor or guarantor specifies. If so requested,
20
the credit provider must also provide details of the items which
21
make up that amount.
22
Criminal penalty: 50 penalty units.
23
(2) The statement must also contain a statement to the effect that the
24
amount required to pay out the credit contract may change
25
according to the date on which it is paid.
26
(3) A credit provider must give a statement, complying with this
27
section, within 7 days after the request is given to the credit
28
provider.
29
Criminal penalty: 50 penalty units.
30
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 1 End ing of credit contract by debtor
Section 84
374 National Consumer Credit Protection Bill 2009 No. , 2009
(4) In the case of joint debtors or guarantors, the statement under this
1
section need only be given to a debtor or guarantor who requests
2
the statement and not, despite section 194, to each joint debtor or
3
guarantor.
4
(5) Subsections (1) and (3) are offences of strict liability.
5
Note:
For strict liability, see section 6.1 of the Criminal Code.
6
84 Court may determine pay out figure if credit provider does not
7
provide a pay out figure
8
(1) If the credit provider does not provide a statement of the amount
9
required to pay out a credit contract (other than a continuing credit
10
contract) in accordance with this Part after a request is duly made
11
by a debtor or guarantor, the court may, on the application of the
12
debtor or guarantor, determine the amount payable on the date of
13
determination, the amount by which it increases daily and the
14
period for which the determination is applicable.
15
(2) The credit contract is discharged if an amount calculated in
16
accordance with the determination is tendered to the credit
17
provider within the applicable period.
18
85 Surrender of mortgaged goods and goods subject to sale by
19
instalme nts
20
General principle
21
(1) If:
22
(a) a credit contract takes the form of a sale of goods by
23
instalments and title in the goods does not pass until all
24
instalments are paid; or
25
(b) the credit provider has a mortgage over goods of the debtor
26
or guarantor;
27
the debtor or mortgagor may give written notice of an intention to
28
return the goods to the credit provider or, if the goods are in the
29
credit provider's possession, require the credit provider in writing
30
to sell the goods.
31
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Ending of credit contract by debtor Division 1
Section 85
National Consumer Credit Protection Bill 2009 No. , 2009 375
Delivery of goods
1
(2) A debtor or mortgagor may return the goods to the credit provider
2
at the credit provider's place of business during ordinary business
3
hours within 7 days of the date of the notice or within such other
4
period or at such other time or place as may be agreed with the
5
credit provider.
6
Notice of value
7
(3) The credit provider must, within 14 days after a debtor or
8
mortgagor returns the goods or requires the credit provider to sell
9
the goods, give the debtor or mortgagor a written notice containing
10
the estimated value of the goods and any other information
11
required by the regulations.
12
Return or sale of goods
13
(4) If the debtor or mortgagor, within 21 days after the notice under
14
subsection (3) is given, requests by written notice return of the
15
goods to the debtor or mortgagor or withdraws the requirement to
16
sell the goods (and the debtor is not in default under the terms of
17
the credit contract), the credit provider must return to the debtor or
18
mortgagor any goods returned by the debtor or mortgagor and must
19
not comply with the requirement.
20
Nominated purchaser
21
(5) The debtor or mortgagor may, within 21 days after the notice under
22
subsection (3) is given, nominate in writing a person who is
23
prepared to purchase the goods from the credit provider at the
24
estimated value or at any greater amount for which the credit
25
provider has obtained a written offer to buy the goods. The credit
26
provider must offer to sell the goods to that person for the
27
estimated value or, if there is a written offer to buy the goods for a
28
greater amount, that amount.
29
Sale of goods by credit provider
30
(6) The credit provider must, if the goods are not required to be
31
returned under subsection (4), as soon as reasonably practicable (or
32
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 1 End ing of credit contract by debtor
Section 85
376 National Consumer Credit Protection Bill 2009 No. , 2009
at such other time as the credit provider and the debtor or
1
mortgagor agree) sell the goods in accordance with subsection (5)
2
or, if no buyer is nominated or the nominated buyer under that
3
subsection does not buy the goods, for the best price reasonably
4
obtainable.
5
Amount to be credited to debtor or mortgagor
6
(7) The credit provider must credit the debtor or mortgagor with a
7
payment equivalent to the proceeds of the sale less any amounts
8
which the credit provider is entitled to deduct from those proceeds.
9
On the sale of the goods, the amount required to pay out the
10
contract becomes due.
11
Deductions from proceeds
12
(8) A credit provider that sells mortgaged goods under this section is
13
entitled to deduct from the proceeds of that sale only the following
14
amounts:
15
(a) the amount currently secured by the mortgage in relation to
16
the credit contract or guarantee, not being more than the
17
amount required to discharge the contract or guarantee;
18
(b) the amount payable to discharge any prior mortgage to which
19
the goods were subject;
20
(c) the amounts payable in successive discharge of any
21
subsequent mortgages to which the goods were subject and of
22
which the credit provider had notice;
23
(d) the credit provider's reasonable enforcement expenses;
24
(e) the expenses reasonably incurred by the credit provider in
25
connection with the possession and sale of the mortgaged
26
goods.
27
Notice of amount credited and other matters
28
(9) The credit provider must give the debtor or mortgagor a written
29
notice stating the gross amount realised on the sale, the net
30
proceeds of the sale, the amount credited to the debtor or
31
mortgagor and the amount required to pay out the credit contract or
32
the amount due under the guarantee.
33
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Ending of credit contract by debtor Division 1
Section 86
National Consumer Credit Protection Bill 2009 No. , 2009 377
Offence--credit provider
1
(10) A credit provider that contravenes a requirement of this section
2
commits an offence.
3
Criminal penalty: 50 penalty units.
4
Strict liability offence
5
(11) Subsection (10) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
86 Compensation to debtor or mortgagor
8
(1) The court, on application by the debtor or mortgagor, may order a
9
credit provider to credit the debtor or mortgagor with a payment,
10
fixed by the court, exceeding the net proceeds of sale if it is not
11
satisfied that the credit provider sold the goods as soon as
12
reasonably practicable (or at such other time as the credit provider
13
and debtor or mortgagor agreed) for the best price reasonably
14
obtainable.
15
(2) On application by the debtor or mortgagor, the mortgagee under
16
any prior mortgage to which the goods are subject or the
17
mortgagee under any subsequent mortgage of which the credit
18
provider has notice, the court, if not satisfied that the credit
19
provider complied with section 85, may make an order requiring
20
the credit provider to compensate the debtor or mortgagor or the
21
relevant mortgagee for any loss suffered as a result.
22
(3) The onus of proving that section 85 was complied with is on the
23
credit provider.
24
87 One-off notice to be given the first time a direct debit default
25
occurs
26
(1) This section applies if:
27
(a) a debtor authorises payment of an amount for a credit
28
contract by direct debit; and
29
(b) default occurs; and
30
(c) it is the first occasion the default occurs.
31
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 1 End ing of credit contract by debtor
Section 87
378 National Consumer Credit Protection Bill 2009 No. , 2009
(2) The credit provider must give the debtor, and any guarantor, a
1
direct debit default notice under this section within 10 business
2
days of the default occurring.
3
Criminal penalty: 50 penalty units.
4
(3) The direct debit default notice must contain the information
5
prescribed under the regulations.
6
(4) Subsection (2) is an offence of strict liability.
7
Note:
For strict liability, see section 6.1 of the Criminal Code.
8
(5) This section does not affect any other requirement under this Code
9
to give a notice.
10
(6) In this section:
11
Bulk Electronic Clearing System means the system established by
12
the Australian Payments Clearing Association to manage the
13
conduct of the exchange and settlement of bulk electronic low
14
value transactions and includes any replacement system.
15
direct debit, in relation to the payment by a debtor of an amount for
16
a credit contract, means the debiting of the amount against an
17
account with a financial institution, as specified and authorised in
18
writing by the debtor, that is processed through the Bulk Electronic
19
Clearing System.
20
21
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Enforcement of credit contracts, mortgages and guarantees Division 2
Section 88
National Consumer Credit Protection Bill 2009 No. , 2009 379
Division 2--Enforcement of credit contracts, mortgages
1
and guarantees
2
88 Requirements to be met before credit provider can enforce credit
3
contract or mortgage against defaulting debtor or
4
mortgagor
5
Enforcement of credit contract
6
(1) A credit provider must not begin enforcement proceedings against
7
a debtor in relation to a credit contract unless the debtor is in
8
default under the credit contract and:
9
(a) the credit provider has given the debtor, and any guarantor, a
10
default notice, complying with this section, allowing the
11
debtor a period of at least 30 days from the date of the notice
12
to remedy the default; and
13
(b) the default has not been remedied within that period.
14
Criminal penalty: 50 penalty units.
15
Enforcement of mortgage
16
(2) A credit provider must not begin enforcement proceedings against
17
a mortgagor to recover payment of money due or take possession
18
of, sell, appoint a receiver for or foreclose in relation to property
19
subject to a mortgage, unless the mortgagor is in default under the
20
mortgage and:
21
(a) the credit provider has given the mortgagor a default notice,
22
complying with this section, allowing the mortgagor a period
23
of at least 30 days from the date of the notice to remedy the
24
default; and
25
(b) the default has not been remedied within that period.
26
Criminal penalty: 50 penalty units.
27
Default notice requirements
28
(3) A default notice must contain a prominent heading at its top stating
29
that it is a default notice and specify:
30
(a) the default; and
31
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 2 En forcement of cred it contracts, mortgages and guarantees
Section 88
380 National Consumer Credit Protection Bill 2009 No. , 2009
(b) the action necessary to remedy the default; and
1
(c) a period for remedying the default; and
2
(d) the date after which enforcement proceedings in relation to
3
the default, and, if relevant, repossession of mortgaged
4
property may begin if the default has not been remedied; and
5
(e) that repossession and sale of mortgaged property may not
6
extinguish the debtor's liability; and
7
(f) the information prescribed by the regulations about the
8
debtor's right to:
9
(i) make an application to the credit provider under
10
section 72; or
11
(ii) negotiate with the credit provider under section 94; or
12
(iii) make an application to the court under sections 74 and
13
96; and
14
(g) the information prescribed by the regulations about:
15
(i) the approved external dispute resolution scheme of
16
which the credit provider is a member; or
17
(ii) the debtor's rights under that scheme; and
18
(h) that a subsequent default of the same kind that occurs during
19
the period specified for remedying the original default may
20
be the subject of enforcement proceedings without further
21
notice if it is not remedied within the period; and
22
(i) that, under the Privacy Act 1988, the debt may be included in
23
a credit reporting agency's credit information file about the
24
debtor if:
25
(i) the debt remains overdue for 60 days or more; and
26
(ii) the credit provider has taken steps to recover all or part
27
of the debt; and
28
(j) any other information prescribed by the regulations.
29
Combined notices
30
(4) Default notices that may be given under subsections (1) and (2)
31
may be combined in one document if given to a person who is both
32
a debtor and a mortgagor.
33
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Enforcement of credit contracts, mortgages and guarantees Division 2
Section 88
National Consumer Credit Protection Bill 2009 No. , 2009 381
When default notice not required
1
(5) A credit provider is not required to give a default notice or to wait
2
until the period specified in the default notice has elapsed, before
3
beginning enforcement proceedings, if:
4
(a) the credit provider believes on reasonable grounds that it was
5
induced by fraud on the part of the debtor or mortgagor to
6
enter into the credit contract or mortgage; or
7
(b) the credit provider has made reasonable attempts to locate the
8
debtor or mortgagor but without success; or
9
(c) the court authorises the credit provider to begin the
10
enforcement proceedings; or
11
(d) the credit provider believes on reasonable grounds that the
12
debtor or mortgagor has removed or disposed of mortgaged
13
goods under a mortgage related to the credit contract or under
14
the mortgage concerned, or intends to remove or dispose of
15
mortgaged goods, without the credit provider's permission or
16
that urgent action is necessary to protect the mortgaged
17
property.
18
Non-remedial default
19
(6) If the credit provider believes on reasonable grounds that a default
20
is not capable of being remedied:
21
(a) the default notice need only specify the default; and
22
(b) the credit provider may begin the enforcement proceedings
23
after the period of 30 days from the date of the notice.
24
(7) Subsections (1) and (2) are offences of strict liability.
25
Note:
For strict liability, see section 6.1 of the Criminal Code.
26
Other law about mortgages not affected
27
(8) This section is in addition to any provision of any other law
28
relating to the enforcement of real property or other mortgages and
29
does not prevent the issue of notices to defaulting mortgagors
30
under other legislation. Nothing in this section prevents a notice to
31
a defaulting mortgagor under other legislation being issued at the
32
same time, or in the same document, as the default notice under
33
this section.
34
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 2 En forcement of cred it contracts, mortgages and guarantees
Section 89
382 National Consumer Credit Protection Bill 2009 No. , 2009
Note:
By virtue of subsection 183(2), a notice may contain information
1
required to be given under other legislation or be included in a notice
2
given under other legislation.
3
89 Defaults may be re medied
4
(1) If a default notice states that the credit provider intends to take
5
action because the debtor or mortgagor is in default under the
6
credit contract or mortgage, the debtor, mortgagor or guarantor
7
may remedy the default within the period specified in the notice,
8
and the contract or mortgage is then reinstated and any acceleration
9
clause cannot operate.
10
(2) A debtor, mortgagor or guarantor does not remedy the default if, at
11
the end of the period, the debtor or mortgagor is in default under
12
the credit contract or mortgage because of the breach specified in
13
the notice or because of a subsequent breach of the same type.
14
90 Requirements to be met before credit provider can enforce
15
guarantee against guarantor
16
(1) A credit provider must not, under a guarantee, enforce a judgment
17
against a guarantor unless:
18
(a) the credit provider has obtained a judgment against the debtor
19
for payment of the guaranteed liability and the judgment
20
remains unsatisfied for 30 days after the credit provider has
21
made a written demand for payment of the judgment debt; or
22
(b) the court has relieved the credit provider from the obligation
23
to obtain a judgment against the debtor on the ground that
24
recovery from the debtor is unlikely; or
25
(c) the credit provider has made reasonable attempts to locate the
26
debtor but without success; or
27
(d) the debtor is insolvent.
28
Criminal penalty: 50 penalty units.
29
(2) Subsection (1) is an offence of strict liability.
30
Note:
For strict liability, see section 6.1 of the Criminal Code.
31
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Enforcement of credit contracts, mortgages and guarantees Division 2
Section 91
National Consumer Credit Protection Bill 2009 No. , 2009 383
91 Requirements to be met before credit provider can repossess
1
mortgaged goods
2
(1) A credit provider must not, without the consent of the court, take
3
possession of mortgaged goods if the amount currently owing
4
under the credit contract related to the relevant mortgage is less
5
than 25% of the amount of credit provided under the contract or
6
$10,000, whichever is the lesser.
7
Criminal penalty: 100 penalty units.
8
(2) However, the restriction does not apply:
9
(a) to a continuing credit contract; or
10
(b) if the credit provider believes on reasonable grounds that the
11
debtor has removed or disposed of the mortgaged goods, or
12
intends to remove or dispose of them, without the credit
13
provider's permission or that urgent action is necessary to
14
protect the goods.
15
(3) Subsection (1) is an offence of strict liability.
16
Note:
For strict liability, see section 6.1 of the Criminal Code.
17
(4) In any proceedings in which it is established that a credit provider
18
has taken possession of mortgaged goods contrary to
19
subsection (1), the burden of establishing that the possession of the
20
goods was lawfully taken by virtue of subsection (2) lies on the
21
credit provider.
22
(5) Nothing in this section prevents a credit provider from accepting
23
the return of goods under section 85.
24
92 Acceleration clauses
25
(1) For the purposes of this Part, an acceleration clause is a term of a
26
credit contract or mortgage providing that:
27
(a) on the occurrence or non-occurrence of a particular event, the
28
credit provider becomes entitled to immediate payment of all,
29
or a part, of an amount under the contract that would not
30
otherwise have been immediately payable; or
31
(b) whether or not on the occurrence or non-occurrence of a
32
particular event, the credit provider has a discretion to require
33
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 2 En forcement of cred it contracts, mortgages and guarantees
Section 93
384 National Consumer Credit Protection Bill 2009 No. , 2009
repayment of the amount of credit otherwise than by
1
repayments fixed, or determined on a basis stated, in the
2
contract;
3
but does not include any such term in a credit contract or mortgage
4
that is an on demand facility.
5
(2) An on demand facility is a credit contract or mortgage under
6
which:
7
(a) the total amount outstanding under the contract or mortgage
8
is repayable at any time on demand by the credit provider;
9
and
10
(b) there is no agreement, arrangement or understanding between
11
the credit provider and the debtor or mortgagor that
12
repayment will only be demanded on the occurrence or
13
non-occurrence of a particular event.
14
93 Requirements to be met before credit provider can enforce an
15
acceleration clause
16
(1) An acceleration clause is to operate only if the debtor or mortgagor
17
is in default under the credit contract or mortgage and:
18
(a) the credit provider has given to the debtor and any guarantor,
19
or to the mortgagor, a default notice under section 88; and
20
(b) the default notice contains an additional statement of the
21
manner in which the liabilities of the debtor or mortgagor
22
under the contract or mortgage would be affected by the
23
operation of the acceleration clause and also of the amount
24
required to pay out the contract (as accelerated); and
25
(c) the default has not been remedied within the period specified
26
in the default notice (unless the credit provider believes on
27
reasonable grounds that the default is not capable of being
28
remedied).
29
(2) However, a credit provider is not required to give a default notice
30
under section 88 or to wait until the period specified in the default
31
notice has elapsed before bringing an acceleration clause into
32
operation, if:
33
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Enforcement of credit contracts, mortgages and guarantees Division 2
Section 93
National Consumer Credit Protection Bill 2009 No. , 2009 385
(a) the credit provider believes on reasonable grounds that it was
1
induced by fraud on the part of the debtor or mortgagor to
2
enter into the contract or mortgage; or
3
(b) the credit provider has made reasonable attempts to locate the
4
debtor or mortgagor but without success; or
5
(c) the court authorises the credit provider not to do so; or
6
(d) the credit provider believes on reasonable grounds that the
7
debtor or mortgagor has removed or disposed of mortgaged
8
goods under a mortgage related to the credit contract or the
9
mortgage concerned, or intends to remove or dispose of
10
mortgaged goods, without the credit provider's permission or
11
that urgent action is necessary to protect the goods.
12
(3) This section is in addition to any provision of any other law
13
relating to the enforcement of real property mortgages and does not
14
prevent the issue of notices to defaulting mortgagors under other
15
legislation.
16
17
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 3 Postponement of enforcement proceedings
Section 94
386 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Postponement of enforcement proceedings
1
94 Postpone ment of exercise of rights
2
(1) A debtor, mortgagor or guarantor who has been given a default
3
notice under Division 2 or a demand for payment under section 90
4
may, at any time before the end of the period specified in the notice
5
or demand, request the credit provider to negotiate a postponement
6
of the enforcement proceedings or any action taken under such
7
proceedings or of the operation of any applicable acceleration
8
clause.
9
Credit provider's notice about postponement
10
(2) If the debtor, mortgagor or guarantor makes the request, the credit
11
provider must, within 21 days after the day of receiving the
12
request, give the person a written notice:
13
(a) that states whether or not the credit provider agrees to
14
negotiate a postponement; and
15
(b) if the credit provider does not agree to negotiate--that states:
16
(i) the name of the approved external resolution scheme of
17
which the credit provider is a member; and
18
(ii) the person's rights under that scheme.
19
Criminal penalty: 30 penalty units.
20
(3) Subsection (2) is an offence of strict liability.
21
Note:
For strict liability, see section 6.1 of the Criminal Code.
22
(4) This Division does not apply to a credit contract in respect of
23
which the maximum amount of credit that is or may be provided is
24
more than:
25
(a) $500,000; or
26
(b) if the regulations prescribe a higher amount--that amount.
27
95 Effect of negotiated postponement
28
(1) The default notice or demand for payment is taken, for the
29
purposes of this Code, not to have been given or made if a
30
postponement is negotiated with the credit provider and the debtor,
31
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Postponement of enforcement proceedings Division 3
Section 96
National Consumer Credit Protection Bill 2009 No. , 2009 387
mortgagor or guarantor complies with the conditions of
1
postponement.
2
(2) It is a condition of any postponement negotiated with a credit
3
provider after the credit provider has taken possession of property
4
subject to a mortgage that the mortgagor pay the reasonable costs
5
of the credit provider in taking possession of the property.
6
(3) A credit provider must give written notice of the conditions of a
7
postponement referred to in subsection (1) not later than 30 days
8
after agreement is reached on the postponement. The notice must
9
set out the consequences under subsection (5) if the conditions of
10
the postponement are not complied with.
11
Criminal penalty: 100 penalty units.
12
(4) Subsection (3) is an offence of strict liability.
13
Note:
For strict liability, see section 6.1 of the Criminal Code.
14
(5) A credit provider that is required to give notice under section 71 in
15
relation to a postponement is not required to comply with
16
subsection (3).
17
(6) If any of the conditions of a postponement are not complied with, a
18
credit provider is not required to give a further default notice under
19
this Code to the debtor, mortgagor or guarantor with whom the
20
postponement was negotiated before proceeding with enforcement
21
proceedings.
22
96 Postpone ment by court
23
(1) If the debtor, mortgagor or guarantor is unable to negotiate a
24
postponement, the debtor, mortgagor or guarantor may apply to the
25
court for a postponement.
26
(2) The court may, after allowing the applicant, the credit provider and
27
any debtor, mortgagor or guarantor concerned a reasonable
28
opportunity to be heard, order or refuse to order the postponement
29
to which the application relates and may make such other orders as
30
it thinks fit.
31
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 3 Postponement of enforcement proceedings
Section 97
388 National Consumer Credit Protection Bill 2009 No. , 2009
(3) The court may, if it thinks it appropriate in the circumstances, stay
1
any enforcement proceedings under the credit contract or mortgage
2
until the application has been determined.
3
97 Credit provider may apply for variation of postponement order
4
(1) A credit provider that is subject to an order under this Division
5
may apply to the court for variation of the order.
6
(2) On such an application, the court may vary the order to which the
7
application relates as it thinks fit or may refuse to vary the order or
8
may revoke the order.
9
10
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Enforcement procedures for goods mortgaged Division 4
Section 98
National Consumer Credit Protection Bill 2009 No. , 2009 389
Division 4--Enforcement procedures for goods mortgaged
1
98 Information as to location of mortgaged goods
2
(1) A credit provider may, by written notice to a mortgagor under a
3
goods mortgage, require the mortgagor to inform the credit
4
provider within 7 days where the mortgaged goods are and, if the
5
mortgaged goods are not in the mortgagor's possession, to give the
6
credit provider all information in the mortgagor's possession that
7
might assist the credit provider to trace the goods.
8
(2) A mortgagor who contravenes a notice under this section commits
9
an offence.
10
Criminal penalty: 50 penalty units.
11
(3) Subsection (2) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
99 Entry to residential prope rty to take possession of goods
14
(1) A credit provider, or an agent of a credit provider, must not enter
15
any part of premises used for residential purposes for the purpose
16
of taking possession of mortgaged goods under a goods mortgage
17
unless:
18
(a) the court has authorised the entry; or
19
(b) the occupier of the premises has, after being informed in
20
writing of the provisions of this section, consented in writing
21
to the entry.
22
(2) The regulations may provide for procedures for the obtaining and
23
giving of consent for the purposes of this section and may set out
24
the circumstances in which consent is or is not taken to have been
25
given.
26
(3) If premises are entered in contravention of this section by a credit
27
provider or an agent of a credit provider, the credit provider
28
commits an offence.
29
Criminal penalty: 50 penalty units.
30
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 4 En forcement procedures for goods mortgaged
Section 100
390 National Consumer Credit Protection Bill 2009 No. , 2009
(4) Subsection (3) is an offence of strict liability.
1
Note:
For strict liability, see section 6.1 of the Criminal Code.
2
100 Court may order entry
3
The court may, on the application of a credit provider that is
4
entitled to take possession of mortgaged goods, authorise the credit
5
provider to enter residential premises for the purpose of taking
6
possession of mortgaged goods.
7
101 Orde r for possession
8
(1) The court may, on the application of a credit provider that is
9
entitled to take possession of mortgaged goods, order a person who
10
has possession of the goods to deliver them to the credit provider at
11
a specified time or place or within a specified period.
12
(2) The court may, on the application of a credit provider or other
13
person required to deliver goods to a credit provider, by order vary
14
the place at which or time or period within which goods must be
15
delivered to the credit provider.
16
(3) A person who contravenes an order under this section commits an
17
offence.
18
Criminal penalty: 30 penalty units.
19
(4) Subsection (3) is an offence of strict liability.
20
Note:
For strict liability, see section 6.1 of the Criminal Code.
21
102 Procedures to be followe d by credit provider after taking
22
possession of goods
23
Notice to be given
24
(1) A credit provider that has taken possession of goods under a
25
mortgage must, within 14 days after doing so, give the mortgagor a
26
written notice containing the following matters:
27
(a) the estimated value of the goods;
28
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Enforcement procedures for goods mortgaged Division 4
Section 102
National Consumer Credit Protection Bill 2009 No. , 2009 391
(b) the enforcement expenses incurred up to the date on which
1
the goods were taken into the credit provider's possession
2
and, if enforcement expenses are accruing while the goods
3
remain in the credit provider's possession, the rate of accrual;
4
(c) a statement of the mortgagor's rights and obligations in the
5
form set out in the regulations.
6
Goods not to be sold immediately
7
(2) A credit provider must not dispose of goods taken under the
8
mortgage within 21 days after the date of the notice, unless the
9
court authorises the credit provider to do so.
10
Effect of proceedings
11
(3) If at the end of that 21 day period a stay of enforcement
12
proceedings is in force under this Code or an application under
13
section 76 has not been determined, the credit provider must not
14
dispose of the goods until those proceedings have been determined
15
and any period allowed for appeal has elapsed.
16
Payment during notice period
17
(4) The credit provider must return the goods if:
18
(a) the amount in arrears (less any accelerated amount) and the
19
credit provider's reasonable enforcement expenses are paid
20
within that 21 day period and the debtor has not committed a
21
further default of the same kind under the credit contract; or
22
(b) the credit contract is paid out.
23
Offence
24
(5) A credit provider that contravenes this section commits an offence.
25
Criminal penalty: 50 penalty units.
26
(6) Subsection (5) is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 4 En forcement procedures for goods mortgaged
Section 103
392 National Consumer Credit Protection Bill 2009 No. , 2009
103 Mortgagor may nominate purchaser of goods taken by credit
1
provide r
2
(1) The mortgagor may, within 21 days after the date of the notice
3
given under section 102, nominate in writing a person who is
4
prepared to purchase the goods from the credit provider at the
5
estimated value or at any greater amount for which the credit
6
provider has obtained a written offer to buy the goods.
7
(2) The credit provider must offer to sell the goods to that person for
8
the estimated value or, if there is a written offer to buy the goods
9
for a greater amount, that amount.
10
Criminal penalty: 50 penalty units.
11
(3) Subsection (2) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
104 Sale of goods by credit provider
14
(1) The credit provider must, if payment is not made within 21 days
15
after the date of the notice given under section 102 and that section
16
does not prevent the sale, as soon as reasonably practicable (or at
17
such time as the credit provider and mortgagor agree) sell the
18
goods in accordance with section 103 or, if there is no nominated
19
buyer or the nominated buyer under that section does not buy the
20
goods, for the best price reasonably obtainable.
21
(2) The credit provider must credit the mortgagor with a payment
22
equivalent to the proceeds of the sale less any amounts which the
23
credit provider is entitled to deduct from those proceeds. On the
24
sale of the goods, the amount required to pay out the contract
25
becomes due.
26
(3) A credit provider that sells mortgaged goods must give the
27
mortgagor a written notice stating the gross amount realised on the
28
sale, the net proceeds of the sale, the amount required to pay out
29
the credit contract or the amount due under the guarantee, any
30
further recovery action proposed to be taken by the credit provider
31
against the debtor and any other information required by the
32
regulations.
33
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Enforcement procedures for goods mortgaged Division 4
Section 105
National Consumer Credit Protection Bill 2009 No. , 2009 393
(4) A credit provider that contravenes a requirement of this section
1
commits an offence.
2
Criminal penalty: 50 penalty units.
3
(5) Subsection (4) is an offence of strict liability.
4
Note:
For strict liability, see section 6.1 of the Criminal Code.
5
105 Matters for which account can be debited afte r mortgagee sale
6
of goods
7
A credit provider that sells mortgaged goods under section 104 is
8
entitled to deduct from the proceeds of that sale only the following
9
amounts:
10
(a) the amount currently secured by the mortgage in relation to
11
the credit contract, not being more than the amount required
12
to discharge the contract;
13
(b) the amount payable to discharge any prior mortgage to which
14
the goods were subject;
15
(c) the amounts payable in successive discharge of any
16
subsequent mortgages to which the goods were subject and of
17
which the credit provider had notice;
18
(d) the credit provider's reasonable enforcement expenses.
19
106 Compensation to mortgagor
20
(1) The court, on application by a mortgagor, may order a credit
21
provider to credit the mortgagor with a payment, fixed by the
22
court, exceeding the net proceeds of sale if it is not satisfied that
23
the credit provider sold the goods as soon as reasonably
24
practicable, or at a time agreed between the credit provider and the
25
mortgagor, for the best price reasonably obtainable.
26
(2) On application by a mortgagor, the mortgagee under any prior
27
mortgage to which the goods are subject or the mortgagee under
28
any subsequent mortgage of which the credit provider has notice,
29
the court, if not satisfied that the credit provider exercised its
30
power of sale in accordance with this Division, may make an order
31
requiring the credit provider to compensate the mortgagor or the
32
relevant mortgagee for any loss suffered as a result.
33
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 4 En forcement procedures for goods mortgaged
Section 106
394 National Consumer Credit Protection Bill 2009 No. , 2009
(3) The onus of proving that a power of sale was exercised in
1
accordance with this Division is on the credit provider that
2
exercised it.
3
4
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Enforcement expenses Division 5
Section 107
National Consumer Credit Protection Bill 2009 No. , 2009 395
Division 5--Enforcement expenses
1
107 Recovery of enforcement expenses
2
(1) A credit provider must not recover or seek to recover enforcement
3
expenses from a debtor, mortgagor or guarantor in excess of those
4
reasonably incurred by the credit provider. Enforcement expenses
5
of a credit provider extend to those reasonably incurred by the use
6
of the staff and facilities of the credit provider.
7
Civil effect
8
(2) Any provision of the credit contract, mortgage or guarantee that
9
appears to confer a greater right is void. If enforcement expenses
10
are in fact recovered in excess of this limitation, they may be
11
recovered back.
12
(3) If there is a dispute between the credit provider and the debtor,
13
mortgagor or guarantor about the amount of enforcement expenses
14
that may be recovered by the credit provider, the court may, on
15
application by any of the parties to the dispute, determine the
16
amount of that liability.
17
18
Schedule 1 National Cred it Code
Part 5 Ending and enforcing credit contracts, mortgages and guarantees
Division 6 Mortgagor's remedies
Section 108
396 National Consumer Credit Protection Bill 2009 No. , 2009
Division 6--Mortgagor's remedies
1
108 Mortgagor may apply to regain possession of mortgaged goods
2
(1) If a credit provider takes possession of mortgaged goods in
3
contravention of Division 2 or Division 4, the court may, on the
4
application of the mortgagor, order the credit provider, at the credit
5
provider's expense, to return possession of the goods to the
6
mortgagor.
7
(2) An order may be made under subsection (1) even though the
8
relevant default has not been remedied.
9
(3) A person who contravenes an order under subsection (1) commits
10
an offence.
11
Criminal penalty: 30 penalty units.
12
(4) Subsection (3) is an offence of strict liability.
13
Note:
For strict liability, see section 6.1 of the Criminal Code.
14
109 Orde r for possession for mortgagor
15
(1) The court may, when making an order under subsection 108(1),
16
order a person who has possession of the goods to deliver them to
17
the mortgagor at a specified time or place or within a specified
18
period.
19
(2) If the person is not the credit provider, the court may also order the
20
credit provider to pay the person's costs of delivering the goods to
21
the mortgagor.
22
(3) The court may, on the application of a mortgagor or other person
23
required to deliver goods to a mortgagor, by order vary the place at
24
which or time or period within which goods must be delivered to
25
the mortgagor.
26
(4) A person who contravenes an order under this section commits an
27
offence.
28
Criminal penalty: 30 penalty units.
29
National Credit Code Schedule 1
Ending and enforcing cred it contracts, mortgages and guarantees Part 5
Mortgagor's remedies Division 6
Section 110
National Consumer Credit Protection Bill 2009 No. , 2009 397
(5) Subsection (4) is an offence of strict liability.
1
Note:
For strict liability, see section 6.1 of the Criminal Code.
2
110 Ancillary or consequential orders
3
(1) This section applies if the court makes an order under this
4
Division.
5
(2) The court may make ancillary or consequential orders it considers
6
appropriate, including, for example, orders to restore the parties to
7
the position they were in before the taking of possession in
8
contravention of Division 2 or Division 4.
9
(3) Without limiting subsection (2), the court may order that the
10
mortgagor be paid compensation for any damage to the goods
11
because of the taking of possession.
12
13
Schedule 1 National Cred it Code
Part 6 Civ il penalties for defaults of credit providers
Division 1 Civil penalties for breach of key disclosure and other requirements
Section 111
398 National Consumer Credit Protection Bill 2009 No. , 2009
Part 6--Civil penalties for defaults of credit
1
providers
2
Division 1--Civil penalties for breach of key disclosure and
3
other requirements
4
111 Key require ments
5
(1) For the purposes of this Division, a key requirement in connection
6
with a credit contract (other than a continuing credit contract) is
7
any one of the requirements of this Code contained in the
8
following provisions:
9
(a) subsection 17(3);
10
(b) subsection 17(4);
11
(c) subsection 17(5);
12
(d) subsection 17(6);
13
(e) paragraphs 17(8)(a) and (b)--but only in respect of retained
14
credit fees and charges;
15
(f) subsection 17(9);
16
(g) subsection 17(11);
17
(h) paragraphs 17(15)(a) and (b);
18
(i) subsection 23(1)--but only at the time the credit contract is
19
entered into.
20
(2) For the purposes of this Division, a key requirement in connection
21
with a continuing credit contract is any one of the requirements of
22
this Code contained in the following provisions:
23
(a) paragraph 17(3)(b);
24
(b) subsection 17(4);
25
(c) subsection 17(5);
26
(d) paragraphs 17(8)(a) and (b)--but only in respect of retained
27
credit fees and charges;
28
(e) subsection 17(9);
29
(f) subsection 23(1);
30
(g) subsection 34(6);
31
(h) section 35.
32
National Credit Code Schedule 1
Civil penalties for defaults of credit prov iders Part 6
Civil penalties for breach of key disclosure and other requirements Division 1
Section 112
National Consumer Credit Protection Bill 2009 No. , 2009 399
(3) A key requirement relating to a disclosure or a statement of
1
account extends to the requirements set out in Part 2 as to the
2
manner in which the disclosure or statement is to be made, but
3
does not extend to any requirements set out in the regulations.
4
112 Application for order relating to key requirements
5
(1) A party to a credit contract or a guarantor or ASIC may apply to
6
the court for an order under this Division.
7
(2) A debtor or guarantor may not make an application for an order
8
under this Division in respect of a contravention under a contract if
9
the contravention under that contract is or has been subject to an
10
application for an order made by the credit provider or ASIC
11
anywhere in Australia under this Code.
12
(3) Subsection (2) does not prevent an application from being made for
13
an order for the payment of compensation under section 118.
14
113 Civil penalty may be imposed for contravention of key
15
require ment
16
Declaration as to key requirement
17
(1) The court must, on an application being made, by order declare
18
whether or not the credit provider has contravened a key
19
requirement in connection with the credit contract or contracts
20
concerned.
21
Penalty orders
22
(2) The court may make an order, in accordance with this Division,
23
requiring the credit provider to pay an amount as a penalty, if it is
24
of the opinion that the credit provider has contravened a key
25
requirement.
26
Prudential standing
27
(3) The court, in considering the imposition of a penalty, must have
28
regard primarily to the prudential standing of any credit provider
29
concerned, or of any subsidiary of the credit provider (within the
30
Schedule 1 National Cred it Code
Part 6 Civ il penalties for defaults of credit providers
Division 1 Civil penalties for breach of key disclosure and other requirements
Section 113
400 National Consumer Credit Protection Bill 2009 No. , 2009
meaning of the Corporations Act 2001), if the credit provider or
1
subsidiary takes deposits or is a borrowing corporation (within the
2
meaning of that Act). However, the court is to have regard to that
3
prudential standing only if the credit provider requests the court to
4
do so.
5
Other matters to be considered
6
(4) The court, in considering the imposition of a penalty, must have
7
regard to the following:
8
(a) the conduct of the credit provider and debtor before and after
9
the credit contract was entered into;
10
(b) whether the contravention was deliberate or otherwise;
11
(c) the loss or other detriment (if any) suffered by the debtor as a
12
result of the contravention;
13
(d) when the credit provider first became aware, or ought
14
reasonably to have become aware, of the contravention;
15
(e) any systems or procedures of the credit provider to prevent or
16
identify contraventions;
17
(f) whether the contravention could have been prevented by the
18
credit provider;
19
(g) any action taken by the credit provider to remedy the
20
contravention or compensate the debtor or to prevent further
21
contraventions;
22
(h) the time taken to make the application and the nature of the
23
application;
24
(i) any other matter the court considers relevant.
25
Related contraventions
26
(5) The court must, for the purposes of determining an application for
27
an order under this Division or the amount of a penalty, treat a
28
contravention of a key requirement that occurs merely because of
29
another contravention of a key requirement as being a
30
contravention of the same kind. If a provision referred to in
31
section 111 contains several requirements, the court must treat
32
contraventions of more than one of those requirements as a single
33
contravention of the one key requirement for the purposes of
34
determining the amount of a penalty.
35
National Credit Code Schedule 1
Civil penalties for defaults of credit prov iders Part 6
Civil penalties for breach of key disclosure and other requirements Division 1
Section 114
National Consumer Credit Protection Bill 2009 No. , 2009 401
Suppression of publication of application
1
(6) The court may, if it thinks it appropriate in the circumstances,
2
order that particulars of or any matters relating to an application for
3
an order under this Division not be published.
4
114 Penalty if application made by debtor or guarantor
5
(1) On application being made by a debtor or a guarantor for an order,
6
the maximum penalty that may be imposed by the court for a
7
contravention of a key requirement is an amount not exceeding the
8
amount of:
9
(a) except as provided by paragraphs (b) and (c)--all interest
10
charges payable under the contract from the date it was
11
made; or
12
(b) in the case of a contravention of a key requirement relating to
13
a statement of account of a continuing credit contract--all
14
interest charges payable under the contract for the period to
15
which the statement of account relates; or
16
(c) in the case of a contravention of a key requirement relating to
17
prohibited monetary obligations--all interest charges
18
accruing under the contract from the date the contravention
19
occurred.
20
(2) The court may, however, impose a greater penalty if the debtor or
21
guarantor satisfies the court that the debtor has suffered a loss. The
22
amount of the penalty is to be not less than the amount of the loss.
23
(3) For the purposes of paragraph (1)(a), the amount of future interest
24
charges payable under a credit contract is to be calculated on the
25
assumptions in sections 180 and 182.
26
115 Payment of penalty to debtor or guarantor
27
(1) An amount of penalty ordered by the court to be paid on an
28
application for an order made by a debtor or a guarantor may be set
29
off by the debtor or guarantor against any amount that is due or
30
becomes due to the credit provider under the credit contract. If
31
there is no such amount, the amount of the penalty is a debt due by
32
the credit provider to the debtor or guarantor.
33
Schedule 1 National Cred it Code
Part 6 Civ il penalties for defaults of credit providers
Division 1 Civil penalties for breach of key disclosure and other requirements
Section 116
402 National Consumer Credit Protection Bill 2009 No. , 2009
(2) The Consolidated Revenue Fund is appropriated for the purposes
1
of:
2
(a) a set-off; or
3
(b) a debt due;
4
in relation to a penalty ordered under subsection (1). The Financial
5
Management and Accountability Act 1997 does not apply in
6
relation to those amounts.
7
(3) An order made on application by a debtor or a guarantor may
8
include such directions as the court considers appropriate relating
9
to the payment of the amount owed by the debtor or the credit
10
provider as a result of the order.
11
116 Penalty if application made by a credit provide r or ASIC
12
On application being made by a credit provider or ASIC for an
13
order, the maximum penalty that may be imposed by the court for a
14
contravention of a key requirement relating to a contract affected
15
by the application is an amount calculated so that the total penalty
16
for all contraventions of the requirement in Australia (as disclosed
17
by the credit provider) does not exceed $500,000.
18
117 Payment of penalty
19
An amount of penalty ordered by the court to be paid on an
20
application for an order made by a credit provider or ASIC must be
21
paid by the credit provider to ASIC on behalf of the
22
Commonwealth.
23
118 Compensation for debtor or guarantor
24
(1) The court may, on application by a debtor or a guarantor, order that
25
the credit provider pay to the debtor or guarantor an amount by
26
way of compensation for loss arising from the contravention of a
27
key requirement.
28
(2) The court may only order an amount to be paid by way of
29
compensation if the debtor or guarantor satisfies the court that the
30
debtor or guarantor has suffered a loss arising from the
31
National Credit Code Schedule 1
Civil penalties for defaults of credit prov iders Part 6
Civil penalties for breach of key disclosure and other requirements Division 1
Section 119
National Consumer Credit Protection Bill 2009 No. , 2009 403
contravention. The amount of compensation is not to exceed the
1
amount of the loss.
2
(3) The court may not make an order under this section if the debtor or
3
guarantor has previously obtained or been refused a penalty
4
referred to in section 115 relating to the same contravention.
5
(4) An amount payable under this section does not affect the amount
6
of penalty for the purposes of section 116.
7
119 General provisions relating to applications by credit providers
8
or ASIC
9
(1) An application for an order by a credit provider or ASIC:
10
(a) may apply to any one or more credit contracts; and
11
(b) may apply to all or any class of credit contracts entered into
12
by the credit provider during a specified period (for example,
13
all credit contracts entered into during a specified period
14
which are affected by a specified contravention).
15
(2) The court may require notice of any such application to be
16
published by notice, in a form approved by the court, in a
17
newspaper circulating throughout one or more States or Territories,
18
as the court determines.
19
(3) Notice of an application by a credit provider must be given by the
20
credit provider to ASIC.
21
120 ASIC may represent interests of debtors
22
ASIC may apply to the court to become a party to an application
23
under this Division and, if joined as a party, has standing to
24
represent the public interest and the interests of debtors.
25
121 Directions pending court's decision
26
(1) The court may, before disposing of an application by a debtor or
27
guarantor for an order under this Division, make such directions as
28
it considers appropriate to protect the interests of the debtor or
29
guarantor concerned.
30
Schedule 1 National Cred it Code
Part 6 Civ il penalties for defaults of credit providers
Division 1 Civil penalties for breach of key disclosure and other requirements
Section 122
404 National Consumer Credit Protection Bill 2009 No. , 2009
(2) Subject to any such directions of the court, the application does not
1
prevent:
2
(a) any proceedings for the enforcement of the debtor's
3
obligations (or the obligations of a guarantor) from being
4
taken; or
5
(b) any rights over property the subject of a mortgage from being
6
exercised.
7
(3) For the purposes of this section, a reference to the disposal of an
8
application includes a reference to its withdrawal by the applicant.
9
(4) A credit provider affected by a direction of the court may apply to
10
the court for variation of the direction. The court may, on such an
11
application being made, vary or revoke the direction or refuse to
12
vary or revoke the direction.
13
122 Offences
14
Nothing in this Division affects the liability of a person for an
15
offence against this Code or the regulations.
16
123 Time limit for application for orders under this Division
17
(1) Proceedings under this Division for a declaration of contravention
18
and the imposition of a penalty for a contravention may not be
19
brought after 6 years from the day the contravention happened.
20
(2) Subsection (1) applies despite any Act relating to the limitation of
21
time for commencing actions.
22
(3) In this section:
23
contravention means contravention of a key requirement.
24
25
National Credit Code Schedule 1
Civil penalties for defaults of credit prov iders Part 6
Other civ il penalties Division 2
Section 124
National Consumer Credit Protection Bill 2009 No. , 2009 405
Division 2--Other civil penalties
1
124 Civil effect of other contraventions
2
(1) If a credit provider contravenes a requirement of or made under
3
this Code (other than one for which a civil effect is specifically
4
provided by Division 1 or by any other provision of this Code), the
5
court may order the credit provider to make restitution or pay
6
compensation to any person affected by the contravention and, in
7
that event, may make any consequential order it considers
8
appropriate in the circumstances.
9
(2) An application for the exercise of the court's powers under this
10
section may be made by ASIC or by any person affected by the
11
contravention.
12
13
Schedule 1 National Cred it Code
Part 7 Related sale contracts
Division 1 Interpretation and application
Section 125
406 National Consumer Credit Protection Bill 2009 No. , 2009
Part 7--Related sale contracts
1
Division 1--Interpretation and application
2
125 Meaning of sale contract
3
For the purposes of this Code, a sale contract is a contract for any
4
one or more of the following:
5
(a) a contract for the sale of goods;
6
(b) a contract for the supply of services.
7
126 Sale contracts to which this Part applies
8
This Part applies to or in respect of a sale contract or proposed sale
9
contract only if the sale of the goods or supply of services
10
concerned is financed, or is proposed to be financed, wholly or
11
partly by the provision of credit to which this Code applies.
12
127 Linked credit provide rs and tied cre dit contracts
13
(1) For the purposes of this Code, a linked credit provider of a
14
supplier means a credit provider:
15
(a) with whom the supplier has a contract, arrangement or
16
understanding relating to the supply to the supplier of goods
17
in which the supplier deals, relating to the business carried on
18
by the supplier of supplying goods or services or relating to
19
the provision to persons to whom goods or services are
20
supplied by the supplier of credit in respect of payment for
21
those goods or services; or
22
(b) to whom the supplier, by arrangement with the credit
23
provider, regularly refers persons for the purpose of obtaining
24
credit; or
25
(c) whose forms of contract or forms of application or offers for
26
credit are, by arrangement with the credit provider, made
27
available to persons by the supplier; or
28
(d) with whom the supplier has a contract, arrangement or
29
understanding under which contracts or applications or offers
30
National Credit Code Schedule 1
Related sale contracts Part 7
Interpretation and application Division 1
Section 127
National Consumer Credit Protection Bill 2009 No. , 2009 407
for credit from the credit provider may be signed by persons
1
at the premises of the supplier.
2
(2) For the purposes of this Code, a tied continuing credit contract is a
3
continuing credit contract under which a credit provider provides
4
credit in respect of the payment by a debtor for goods or services
5
supplied by a supplier in relation to whom the credit provider is a
6
linked credit provider.
7
(3) For the purposes of this Code, a tied loan contract is a credit
8
contract (other than a continuing credit contract) entered into
9
between a credit provider and a debtor where:
10
(a) the credit provider knows or ought reasonably to know that
11
the debtor enters into the credit contract wholly or partly for
12
the purposes of payment for the goods or services supplied
13
by a supplier; and
14
(b) at the time the credit contract is entered into the credit
15
provider is a linked credit provider of the supplier.
16
17
Schedule 1 National Cred it Code
Part 7 Related sale contracts
Division 2 Liab ility of cred it providers for suppliers' mis representations
Section 128
408 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Liability of credit providers for suppliers'
1
misrepresentations
2
128 Credit provider liable with respect to supplier's
3
misrepresentations etc. about tied cre dit contract
4
(1) If there is a tied loan contract or a tied continuing credit contract in
5
respect of a sale contract, any representation, warranty or statement
6
made (whether orally or in writing) by the supplier, or any person
7
acting on behalf of the supplier, to the debtor in relation to the tied
8
loan contract or tied continuing credit contract gives the debtor the
9
same rights against the credit provider as the debtor would have
10
had if it had been made by the credit provider.
11
(2) Without prejudice to any other rights or remedies to which a credit
12
provider may be entitled, a credit provider is entitled to be
13
indemnified by the person who made the representation, warranty
14
or statement, and any person on whose behalf it was made, against
15
any damage suffered by the credit provider through the operation
16
of this section.
17
18
National Credit Code Schedule 1
Related sale contracts Part 7
Liability of credit p roviders in relation to goods Division 3
Section 129
National Consumer Credit Protection Bill 2009 No. , 2009 409
Division 3--Liability of credit providers in relation to
1
goods
2
129 Right to damages under sale contract against both supplier and
3
linked credit provider (cf. section 73 of the Trade
4
Practices Act 1974)
5
General right to damages
6
(1) If:
7
(a) a supplier supplies goods, or causes goods to be supplied, to a
8
linked credit provider of the supplier and a debtor enters into
9
a contract with the linked credit provider for the provision of
10
credit in respect of the supply by way of sale of the goods to
11
the debtor; or
12
(b) a debtor enters into a contract with a linked credit provider of
13
a supplier for the provision of credit in respect of the supply
14
by the supplier of goods or services, or goods and services, to
15
the debtor;
16
and the debtor suffers loss or damage as a result of
17
misrepresentation, breach of contract, or failure of consideration in
18
relation to the sale contract, the supplier and the linked credit
19
provider are, subject to this Division, jointly and severally liable to
20
the debtor for the amount of the loss or damage, and the debtor
21
may recover that amount by action in accordance with this section
22
in a court of competent jurisdiction.
23
Credit provider's defences
24
(2) A linked credit provider of a particular supplier is not liable to a
25
debtor by virtue of subsection (1) in proceedings arising under that
26
subsection if the credit provider establishes:
27
(a) that the credit provided by the credit provider to the debtor
28
was the result of an approach made to the credit provider by
29
the debtor that was not induced by the supplier; or
30
(b) if the proceedings relate to a contract of sale with respect to
31
which a tied loan contract applies, that:
32
(i) after due inquiry before becoming a linked credit
33
provider of the supplier, the credit provider was
34
Schedule 1 National Cred it Code
Part 7 Related sale contracts
Division 3 Liab ility of cred it providers in relation to goods
Section 130
410 National Consumer Credit Protection Bill 2009 No. , 2009
satisfied that the reputation of the supplier in respect of
1
the supplier's financial standing and business conduct
2
was good; and
3
(ii) after becoming a linked credit provider of the supplier,
4
but before the tied loan contract was entered into, the
5
linked credit provider had not had cause to suspect that
6
the debtor might, if the contract was entered into, be
7
entitled to recover an amount of loss or damage suffered
8
as a result of misrepresentation, breach of contract or
9
failure of consideration in relation to the contract as
10
referred to in subsection (1); and
11
(iii) after becoming a linked credit provider of the supplier,
12
but before the tied loan contract was entered into, the
13
credit provider had not had cause to suspect that the
14
supplier might be unable to meet the supplier's
15
liabilities as and when they fell due; or
16
(c) if the proceedings relate to a contract of sale with respect to
17
which a tied continuing credit contract entered into by the
18
linked credit provider applies, that, having regard to:
19
(i) the nature and volume of business carried on by the
20
linked credit provider; and
21
(ii) such other matters as appear to be relevant in the
22
circumstances of the case;
23
the linked credit provider, before becoming aware of the
24
contract of sale, or of proposals for the making of the
25
contract of sale (whichever the linked credit provider first
26
became aware of), had not had cause to suspect that a person
27
entering into such a contract with the supplier might be
28
entitled to claim damages against, or recover a sum of money
29
from, the supplier for misrepresentation, breach of contract or
30
failure of consideration as referred to in subsection (1).
31
130 Limits on debtor's right of action against linked credit provider
32
(cf. section 73 of the Trade Practices Act 1974)
33
Debtor may raise credit provider's liability
34
(1) Subject to subsection (2), in relation to a contract referred to in
35
paragraph 129(1)(a) or (b), in which a credit provider claims
36
National Credit Code Schedule 1
Related sale contracts Part 7
Liability of credit p roviders in relation to goods Division 3
Section 130
National Consumer Credit Protection Bill 2009 No. , 2009 411
damages or an amount of money from a debtor, the debtor may set
1
up the liability of the credit provider under section 129 in
2
diminution or extinction of the debtor's liability.
3
Proceedings to be brought against both supplier and linked credit
4
provider
5
(2) Subject to subsection (3), a debtor may not, in respect of a liability
6
for which, by reason of section 129, a supplier and a linked credit
7
provider are jointly and severally liable:
8
(a) bring proceedings to recover an amount of loss or damage
9
from the credit provider; or
10
(b) where proceedings are brought against the debtor by the
11
linked credit provider, make a counterclaim or exercise the
12
right conferred by subsection (1) against the credit provider;
13
unless the debtor brings the action against the supplier and the
14
credit provider jointly or, in the case of a counterclaim or right
15
conferred by subsection (1), claims in the proceedings against the
16
supplier in respect of the liability by third-party proceedings or
17
otherwise.
18
When joint proceedings not required
19
(3) Subsection (2) and paragraphs (5)(a) and (6)(a) do not apply in
20
relation to proceedings where:
21
(a) the supplier is insolvent, cannot be located after reasonable
22
inquiry, or has died or been dissolved; or
23
(b) in the opinion of the court in which the proceedings are
24
taken, it is not reasonably likely that a judgment obtained
25
against the supplier would be satisfied and the court has, on
26
the application of the debtor, declared that subsection (2) and
27
paragraphs (5)(a) and (6)(a) do not apply in relation to the
28
proceedings.
29
Limit of credit provider's liability
30
(4) The liability of a linked credit provider to a debtor for damages or
31
a sum of money in respect of a contract referred to in subsection
32
129(1) is not to exceed the sum of:
33
Schedule 1 National Cred it Code
Part 7 Related sale contracts
Division 3 Liab ility of cred it providers in relation to goods
Section 130
412 National Consumer Credit Protection Bill 2009 No. , 2009
(a) the amount of credit under the tied loan contract or tied
1
continuing credit contract; and
2
(b) the amount of interest (if any) or damages in the nature of
3
interest allowed or awarded against the linked credit provider
4
by the court; and
5
(c) the amount of costs (if any) awarded by the court against the
6
linked credit provider or supplier or both.
7
Enforcement of judgment against linked credit provider
8
(5) Where in proceedings arising under section 129, judgment is given
9
against a supplier and a linked credit provider, the judgment:
10
(a) must not be enforced against the linked credit provider unless
11
a written demand made on the supplier for satisfaction of the
12
judgment has remained unsatisfied for not less than 30 days;
13
and
14
(b) may be enforced against the linked credit provider only to the
15
extent of the amount calculated in accordance with this
16
section, or so much of the judgment debt as has not been
17
satisfied by the supplier, whichever is the lesser.
18
Enforcement of right against linked credit provider
19
(6) Where in proceedings in respect of the liability arising under
20
section 129, a right conferred by subsection (1) is established
21
against a linked credit provider, the debtor:
22
(a) may not receive the benefit of the right unless judgment has
23
been given against the supplier and linked credit provider, a
24
written demand has been made on the supplier for
25
satisfaction of the judgment and the demand has remained
26
unsatisfied for not less than 30 days; and
27
(b) may receive the benefit only to the extent of the amount
28
calculated in accordance with this section or so much of the
29
judgment debt as has not been satisfied by the supplier,
30
whichever is the lesser.
31
National Credit Code Schedule 1
Related sale contracts Part 7
Liability of credit p roviders in relation to goods Division 3
Section 131
National Consumer Credit Protection Bill 2009 No. , 2009 413
131 Liability of supplier to linked credit provider (cf. section 73 of
1
the Trade Practices Act 1974)
2
Unless the linked credit provider and supplier otherwise agree, the
3
supplier is liable to the linked credit provider for the amount of a
4
loss suffered by the linked credit provider, being an amount not
5
exceeding the maximum amount of the linked credit provider's
6
liability under subsection 130(4) and, unless the court otherwise
7
determines, the amount of costs (if any) reasonably incurred by the
8
linked credit provider in defending the proceedings by reason of
9
which the liability was incurred.
10
132 Inte rest may be awarded (cf. section 73 of the Trade Practices
11
Act 1974)
12
(1) Despite any other law, where, in proceedings arising under
13
section 129, judgment is given against a supplier and a linked
14
credit provider or against a linked credit provider for an amount of
15
loss or damage, the court in which the proceedings are taken must,
16
on the application of the debtor, unless good cause is shown to the
17
contrary, award interest to the debtor against the supplier and credit
18
provider or against the credit provider, as the case may be, on the
19
whole or a part of the amount from the time when the debtor
20
became entitled to recover the amount until the date on which the
21
judgment is given, at a rate prescribed by the regulations.
22
(2) In determining whether good cause is shown against awarding
23
interest under this section on the whole or part of an amount of loss
24
or damage, the court is to take into account any payment made into
25
court by the supplier or credit provider.
26
133 Subrogation of credit provider (cf. section 73 of the Trade
27
Practices Act 1974)
28
If a judgment given in proceedings arising under section 129 is
29
enforced against a linked credit provider of a particular supplier,
30
the credit provider is subrogated to the extent of the judgment so
31
enforced to any rights that the debtor would have had but for the
32
judgment against the supplier or any other person in respect of the
33
loss or damage suffered by the debtor as a result of the
34
Schedule 1 National Cred it Code
Part 7 Related sale contracts
Division 3 Liab ility of cred it providers in relation to goods
Section 133
414 National Consumer Credit Protection Bill 2009 No. , 2009
misrepresentation, breach of contract or failure of consideration in
1
relation to the contract from which the liability arose.
2
3
National Credit Code Schedule 1
Related sale contracts Part 7
Termination of related transactions Division 4
Section 134
National Consumer Credit Protection Bill 2009 No. , 2009 415
Division 4--Termination of related transactions
1
134 Termination of sale contract which is conditional on obtaining
2
credit
3
(1) If a purchaser of goods or services makes it known to a supplier
4
that credit is required in order to pay for the goods or services and
5
the purchaser, after making reasonable endeavours to do so, fails to
6
obtain credit on reasonable terms, the purchaser is entitled to
7
terminate the sale contract.
8
(2) A purchaser may terminate a sale contract under this section even
9
though goods or services have already been supplied under the
10
contract but, if practicable, goods supplied under the sale contract
11
must be returned to the supplier.
12
(3) If a sale contract is terminated under this section:
13
(a) the supplier is entitled to:
14
(i) reasonable compensation for damage to, or deterioration
15
of, goods supplied under the sale contract (other than
16
fair wear and tear) up to the date of their return to the
17
supplier or, if they are not returned, the cash price of the
18
goods; and
19
(ii) the reasonable value of the services supplied under the
20
sale contract up to the date of termination; and
21
(b) the purchaser is entitled (subject to the supplier's entitlement
22
referred to above) to the return of money paid under the sale
23
contract.
24
(4) This section does not apply to a sale contract for the supply of
25
rights in relation to, and interests in, real property unless the
26
supplier was aware that the purchaser intended to obtain the credit
27
from the supplier or from a linked credit provider of the supplier.
28
135 Termination of (or recredit under) tied cre dit contract if sale
29
contract terminated
30
(1) If a sale contract is rescinded or discharged (whether under this
31
Code or any other law) and there is a tied loan contract or a tied
32
continuing credit contract made with the purchaser by a linked
33
Schedule 1 National Cred it Code
Part 7 Related sale contracts
Division 4 Termination of related transactions
Section 135
416 National Consumer Credit Protection Bill 2009 No. , 2009
credit provider of the supplier under the sale contract, the debtor is
1
entitled:
2
(a) in the case of a tied loan contract--to terminate the credit
3
contract; or
4
(b) in the case of a tied continuing credit contract--to be credited
5
with the amount of credit in relation to the sale contract and
6
the interest charges attributable to that amount.
7
(2) If a tied loan contract is terminated under this section, any related
8
guarantee or mortgage is terminated to the extent to which it
9
secures obligations under the contract or any related guarantee.
10
(3) If a tied loan contract is terminated under this section, the credit
11
provider is entitled to recover from the debtor any part of the
12
amount of credit that has not been paid to the supplier and the
13
debtor is entitled to recover from the credit provider any interest
14
charges or other amounts paid by the debtor under the credit
15
contract.
16
(4) If a mortgage or guarantee is terminated under this section, the
17
credit provider is entitled to recover from the mortgagor or
18
guarantor any part of the amount of credit that has not been paid to
19
the supplier and that is secured by the mortgage or guarantee, and
20
the mortgagor or guarantor is entitled to recover from the credit
21
provider any other amounts paid by the mortgagor or guarantor.
22
(5) If a tied loan contract is terminated under this section, the credit
23
provider is entitled to recover from the supplier (subject to any
24
agreement between them) the amount of any loss suffered by the
25
credit provider as a result of the operation of this section.
26
(6) A supplier who knows that a sale contract referred to in
27
subsection (1) has been rescinded or discharged must forthwith
28
give the credit provider under any tied loan contract or tied
29
continuing credit contract notice of the termination.
30
Criminal penalty: 50 penalty units.
31
(7) This section does not apply if the credit is provided as a result of an
32
approach by the debtor that was not induced by the supplier or
33
credit provider.
34
National Credit Code Schedule 1
Related sale contracts Part 7
Termination of related transactions Division 4
Section 136
National Consumer Credit Protection Bill 2009 No. , 2009 417
(8) This section applies:
1
(a) to the exercise by a purchaser of a right under this Code or
2
any other law to rescind or discharge a sale contract; and
3
(b) to a tied loan contract or a tied continuing credit contract, but
4
only if the sale contract was the principal purpose for which
5
the credit was provided.
6
136 Termination of linked maintenance services contract if credit
7
contract terminated
8
(1) If:
9
(a) there is a tied loan contract or a tied continuing credit
10
contract made with the debtor by a linked credit provider of
11
the supplier under a sale contract to supply maintenance
12
services; and
13
(b) the tied loan contract or tied continuing credit contract is
14
terminated (whether under this Code or any other law) before
15
the end of the term of the sale contract;
16
the debtor is entitled to terminate the sale contract to supply
17
maintenance services and recover from the supplier a proportionate
18
rebate of consideration paid under the sale contract.
19
(2) In any such case, the credit provider must inform the debtor in
20
accordance with the regulations of the debtor's rights under this
21
section.
22
Criminal penalty: 50 penalty units.
23
(3) Subsection (2) is an offence of strict liability.
24
Note:
For strict liability, see section 6.1 of the Criminal Code.
25
(4) The regulations may prescribe the manner of calculating the
26
proportionate rebate of consideration for the purposes of this
27
section.
28
(5) This section does not apply if the credit is provided as a result of an
29
approach by the debtor that was not induced by the supplier or
30
credit provider.
31
Schedule 1 National Cred it Code
Part 7 Related sale contracts
Division 4 Termination of related transactions
Section 137
418 National Consumer Credit Protection Bill 2009 No. , 2009
137 Termination of contract under this Part to be in writing
1
An entitlement to terminate a sale contract or credit contract that is
2
conferred by a provision of this Part may be exercised only by
3
notice in writing to the other party to the contract.
4
138 Powe rs of court with respect to termination of contract under
5
this Part
6
The court may, on the application of any interested party, make
7
orders:
8
(a) declaring whether a purported termination of a contract under
9
this Part is valid; and
10
(b) for the adjustment of rights following termination of a
11
contract under this Part.
12
139 Part 5 not to apply to termination of contract under this Part
13
Part 5 does not apply to the termination of a contract under this
14
Part.
15
16
National Credit Code Schedule 1
Related sale contracts Part 7
Other provisions Division 5
Section 140
National Consumer Credit Protection Bill 2009 No. , 2009 419
Division 5--Other provisions
1
140 Requirement as to source of credit for goods or services
2
(1) A supplier must not require a purchaser of goods or services to
3
apply for, or obtain, credit from a particular credit provider.
4
Criminal penalty: 100 penalty units.
5
(2) Subsection (1) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
141 Prohibition on payment for goods or services by postdated bills
8
of exchange or notes which exceed cash price of goods or
9
services
10
(1) A supplier must not demand or accept payment from the purchaser
11
for goods or services supplied under a sale contract in the form of a
12
postdated bill of exchange or promissory note given by the
13
purchaser if the face value of the bill or note exceeds the cash price
14
of the goods or services.
15
Criminal penalty: 100 penalty units.
16
(2) Subsection (1) does not apply unless the postponement of the debt
17
to the supplier constitutes a provision of credit to which this Code
18
applies.
19
(3) Subsection (1) is an offence of strict liability.
20
Note:
For strict liability, see section 6.1 of the Criminal Code.
21
22
Schedule 1 National Cred it Code
Part 8 Related insurance contracts
Section 142
420 National Consumer Credit Protection Bill 2009 No. , 2009
Part 8--Related insurance contracts
1
2
142 Inte rpretation and application
3
(1) For the purposes of this Code, a credit-related insurance contract
4
is a contract for insurance of any of the following kinds in
5
connection with a credit contract:
6
(a) insurance over mortgaged property;
7
(b) consumer credit insurance;
8
(c) insurance of a nature prescribed for the purposes of this
9
section by the regulations.
10
(2) This Code does not apply to insurance over mortgaged property
11
that:
12
(a) is insurance for an extended period of warranty for goods; or
13
(b) is insurance over property that is not mortgaged to secure
14
obligations under the credit contract.
15
(3) This Code does not apply to consumer credit insurance in
16
connection with a credit contract unless the contract for consumer
17
credit insurance insures the obligations of the debtor under the
18
credit contract.
19
143 Requirement to take out insurance or to insure with particular
20
insure r or on particular terms
21
(1) A credit provider or a supplier must not:
22
(a) require a debtor or guarantor to take out insurance or to pay
23
the cost of insurance taken out or arranged by the credit
24
provider or supplier; or
25
(b) represent to a debtor or guarantor that the debtor or guarantor
26
is required to pay the cost of any such insurance;
27
unless the insurance is compulsory insurance, mortgage indemnity
28
insurance, insurance over mortgaged property or insurance of a
29
nature and extent approved for the purposes of this section by the
30
regulations.
31
Criminal penalty: 100 penalty units.
32
National Credit Code Schedule 1
Related insurance contracts Part 8
Section 144
National Consumer Credit Protection Bill 2009 No. , 2009 421
(2) A credit provider or a supplier must not, in connection with a credit
1
contract or a sale contract in relation to which there is a tied loan
2
contract or a tied continuing credit contract:
3
(a) require a debtor or guarantor to take out insurance with a
4
particular insurer (unless the insurer is the only insurer
5
providing insurance of the relevant kind or the requirement is
6
exempted from the operation of this section by the
7
regulations); or
8
(b) make any unreasonable requirement as to the terms on which
9
the debtor or guarantor is to take out insurance.
10
Criminal penalty: 100 penalty units.
11
(3) Subsections (1) and (2) are offences of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
Civil effect
14
(4) If the credit provider or supplier contravenes this section, the
15
insured is entitled to recover the whole of the premium paid under
16
the contract from the credit provider or supplier, as the case
17
requires.
18
144 Financing of insurance pre miums over mortgaged property
19
(1) A credit provider must not knowingly provide credit to the debtor
20
to pay the premium or finance the premium on insurance taken out
21
by the debtor over mortgaged property for a period of insurance
22
exceeding 1 year, but may provide credit for or finance successive
23
premiums for periods of 1 year or less.
24
Criminal penalty: 100 penalty units.
25
(2) The credit provider must not knowingly debit the premium to the
26
debtor's account more than 30 days before the beginning of the
27
period of insurance to which it relates.
28
Criminal penalty: 100 penalty units.
29
Schedule 1 National Cred it Code
Part 8 Related insurance contracts
Section 145
422 National Consumer Credit Protection Bill 2009 No. , 2009
Civil effect
1
(3) If a credit provider contravenes subsection (1), the insured is
2
entitled to recover the whole of the premium paid under the
3
contract from the credit provider. If a credit provider contravenes
4
subsection (2), the insured is entitled to recover the amount of
5
premium debited in contravention of the subsection.
6
145 Commission for consume r credit insurance
7
(1) This section applies to commission paid by an insurer in
8
connection with consumer credit insurance taken out by the debtor,
9
or for which an amount is paid by the debtor.
10
(2) The total of any such commission accepted by all or any of the
11
following:
12
(a) the credit provider;
13
(b) the supplier under a sale contract in relation to which there is
14
a tied loan contract or a tied continuing credit contract;
15
(c) the agent of the credit provider or supplier;
16
must not exceed, in amount or value, 20% of the premium
17
(excluding government charges).
18
(3) A credit provider or any such supplier or agent must not accept,
19
and an insurer must not pay, a commission exceeding, in amount or
20
value, the maximum allowed under this section.
21
Criminal penalty: 100 penalty units.
22
(4) Subsection (3) is an offence of strict liability.
23
Note:
For strict liability, see section 6.1 of the Criminal Code.
24
Civil effect
25
(5) If a credit provider or supplier contravenes this section, the insured
26
is entitled to recover the whole amount or value of the commission
27
from the credit provider or the supplier, as the case requires.
28
National Credit Code Schedule 1
Related insurance contracts Part 8
Section 146
National Consumer Credit Protection Bill 2009 No. , 2009 423
146 Supply of copy of credit-related insurance contract by insurer
1
(1) If the premium under a credit-related insurance contract is financed
2
under the credit contract, the insurer must ensure that a copy of the
3
policy of insurance is given to the debtor within 14 days after
4
acceptance of the insurance proposal by the insurer.
5
Criminal penalty: 100 penalty units.
6
(2) In the case of any such contract of insurance entered into by the
7
credit provider in which the debtor has a beneficial interest, the
8
credit provider must ensure that a written notice containing
9
particulars of the insurance prescribed by the regulations is given
10
to the debtor within 14 days after the beneficial interest is acquired
11
by the debtor.
12
Criminal penalty: 100 penalty units.
13
(3) Subsections (1) and (2) do not apply to compulsory insurance.
14
(4) Subsections (1) and (2) are offences of strict liability.
15
Note:
For strict liability, see section 6.1 of the Criminal Code.
16
147 Rejection of debtor's proposal for insurance
17
(1) If a credit provider proposes to finance the amount payable by the
18
debtor under or in connection with a credit-related insurance
19
contract and the proposal for insurance is rejected by an insurer,
20
the insurer must inform the debtor and the credit provider of its
21
rejection.
22
(2) Unless the insurance is to be arranged with another insurer, the
23
credit provider must ensure that any amount paid by the debtor is
24
refunded or credited in full.
25
Criminal penalty: 100 penalty units.
26
(3) Subsection (2) is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
(4) The credit provider may, in turn, recover the amount paid to the
29
debtor from the insurer, if an amount has been paid to the insurer
30
Schedule 1 National Cred it Code
Part 8 Related insurance contracts
Section 148
424 National Consumer Credit Protection Bill 2009 No. , 2009
by the debtor under or in connection with the proposed insurance
1
contract.
2
148 Termination of consumer cre dit insurance contract if credit
3
contract terminated
4
(1) On termination of a credit contract, any relevant credit-related
5
insurance contract financed under the credit contract for consumer
6
credit insurance in force is also terminated.
7
(2) If a credit contract is terminated, the credit provider is required to
8
pay the debtor or credit the debtor with a proportionate rebate of
9
premium paid under any relevant credit-related insurance contract
10
for consumer credit insurance in force immediately before the
11
credit contract is terminated.
12
(3) The credit provider may, in turn, recover the amount paid to the
13
debtor from the insurer.
14
(4) The regulations may prescribe the manner of calculating the
15
proportionate rebate of premium for the purposes of this section,
16
including the rebate payable where this section does not apply to
17
the whole of a credit-related insurance contract.
18
(5) This section has effect despite any provision of the credit-related
19
insurance contract.
20
(6) This section does not apply to a credit-related insurance contract,
21
to the extent that it provides a benefit in the event of the death of
22
the debtor, if a credit contract is terminated on the death of a
23
debtor. However, it does apply to the credit-related insurance
24
contract to the extent that it provides other benefits.
25
149 Termination of insurance contract over mortgaged property if
26
credit contract terminated
27
(1) If a credit contract is terminated before the end of the term of a
28
credit-related insurance contract over mortgaged property financed
29
under the credit contract or before any such insurance contract is
30
otherwise terminated, the debtor is entitled to terminate the
31
National Credit Code Schedule 1
Related insurance contracts Part 8
Section 149
National Consumer Credit Protection Bill 2009 No. , 2009 425
insurance contract and recover from the insurer a proportionate
1
rebate of premium paid under the insurance contract.
2
(2) On the termination of the credit contract, the credit provider must
3
inform the debtor in accordance with the regulations of the debtor's
4
rights under this section.
5
Criminal penalty: 50 penalty units.
6
(3) Subsection (2) is an offence of strict liability.
7
Note:
For strict liability, see section 6.1 of the Criminal Code.
8
(4) The regulations may prescribe the manner of calculating the
9
proportionate rebate of premium for the purposes of this section.
10
(5) An entitlement under this section to terminate an insurance
11
contract may be exercised only by notice in writing to the insurer.
12
(6) This section has effect despite any provision of the credit-related
13
insurance contract.
14
15
Schedule 1 National Cred it Code
Part 9 Advertising and related conduct
Section 150
426 National Consumer Credit Protection Bill 2009 No. , 2009
Part 9--Advertising and related conduct
1
2
150 Adve rtising
3
General principle
4
(1) A person must not publish, or cause to be published, an
5
advertisement that states or implies that credit is available unless
6
the advertisement complies with:
7
(a) this section; and
8
(b) if, under Part 10, the comparison rate is included--Division 2
9
of that Part.
10
Criminal penalty: 100 penalty units.
11
Regulations
12
(2) The advertisement must not contain a statement of a kind
13
prohibited by the regulations. It must contain any statement
14
required by the regulations.
15
Annual percentage rate
16
(3) The advertisement need not contain an annual percentage rate, but
17
must do so if the advertisement states the amount of any
18
repayment. If the advertisement contains an annual percentage rate
19
and credit fees and charges are payable, the advertisement must:
20
(a) state that fees and charges are payable; or
21
(b) specify the amount of the fees and charges payable; or
22
(c) specify the amount of some of the fees and charges payable
23
and state that other fees and charges are payable.
24
Civil effect
25
(4) A person who suffers loss as a result of a contravention by another
26
person of this section may recover the amount of the loss against
27
that other person or any other person involved in the contravention.
28
National Credit Code Schedule 1
Advertising and related conduct Part 9
Section 151
National Consumer Credit Protection Bill 2009 No. , 2009 427
151 Persons liable for advertisements
1
(1) A person is, in the absence of proof to the contrary, taken to have
2
caused an advertisement to be published if:
3
(a) the person provides credit, owns or has an interest in any
4
goods, or supplies or has an interest in the supply of any
5
goods or services, which the advertisement promotes; and
6
(b) the advertisement specifies the name, business name,
7
address, telephone number, facsimile number or post office
8
box number of the person or the person's agent.
9
(2) It is a defence to a charge under section 150 of causing an
10
advertisement that does not comply with that section to be
11
published if the person charged proves that he or she could not, by
12
the exercise of reasonable care, have prevented the noncompliance
13
to which the offence relates.
14
152 Defence
15
A printer, publisher or proprietor of a newspaper, a licensee of a
16
commercial broadcasting or television station, an exhibitor of a
17
film, or a person acting with the authority of any of them, does not
18
commit an offence under section 150 unless he or she suspected, or
19
had reason to suspect, that publishing the advertisement would
20
constitute an offence.
21
153 Inte rest rates which may be disclosed
22
(1) A person must not disclose an interest rate:
23
(a) in an advertisement that states or implies that credit is
24
available; or
25
(b) to a debtor before the debtor enters into a credit contract;
26
unless the interest rate is expressed as a nominal percentage rate
27
per annum or is the comparison rate calculated as prescribed by the
28
regulations and accompanied by the warnings set out in the
29
regulations.
30
Criminal penalty: 100 penalty units.
31
(2) Subsection (1) is an offence of strict liability.
32
Schedule 1 National Cred it Code
Part 9 Advertising and related conduct
Section 154
428 National Consumer Credit Protection Bill 2009 No. , 2009
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
154 False or misleading representations
2
(1) A person must not make a false or misleading representation in
3
relation to a matter that is material to entry into a credit contract or
4
a related transaction or in attempting to induce another person to
5
enter into a credit contract or related transaction.
6
Criminal penalty: 50 penalty units.
7
(2) It is a defence to prosecution for an offence against this section if a
8
person charged proves that he or she reasonably believed that the
9
representation was not false or misleading.
10
Civil effect
11
(3) A person who suffers loss as a result of a contravention by another
12
person of this section may recover the amount of the loss from that
13
other person or any other person involved in the contravention.
14
155 Harassment
15
A credit provider or supplier must not harass a person in
16
attempting to get that person to apply for credit or to enter into a
17
credit contract or a related transaction.
18
Criminal penalty: 100 penalty units.
19
156 Canvassing of credit at home
20
(1) A credit provider must not visit (personally or in the person of an
21
employee or agent) a place of residence for the purpose of inducing
22
a person who resides there to apply for or obtain credit, except by
23
prior arrangement by the credit provider with a person who resides
24
there.
25
Criminal penalty: 100 penalty units.
26
(2) A person who visits another's residence for the purpose of offering
27
goods or services for sale and who offers to provide or arrange for
28
the provision of credit to finance the sale will not be taken to have
29
National Credit Code Schedule 1
Advertising and related conduct Part 9
Section 156
National Consumer Credit Protection Bill 2009 No. , 2009 429
called for the purpose of inducing a person to apply for or obtain
1
credit.
2
3
Schedule 1 National Cred it Code
Part 10 Co mparison rates
Division 1 Preliminary
Section 157
430 National Consumer Credit Protection Bill 2009 No. , 2009
Part 10--Comparison rates
1
Division 1--Preliminary
2
157 Object of Part
3
(1) The object of this Part is to assist consumers to identify the true
4
cost of credit offered by credit providers.
5
(2) In order to achieve that object, this Part makes it mandatory for
6
credit providers to include the comparison rate in advertisements
7
for consumer credit (other than under continuing credit contracts)
8
if an interest rate is advertised.
9
(3) The comparison rate will reflect the total cost of credit arising from
10
interest charges and other prescribed credit fees and charges.
11
158 Part not to apply to continuing cre dit contracts
12
(1) This Part does not apply to advertising or other matters about the
13
provision of credit under continuing credit contracts.
14
(2) Accordingly, a reference in this Part to the provision of credit (or
15
to a credit contract or related matters) does not include a reference
16
to the provision of credit under a continuing credit contract (or to a
17
continuing credit contract or matters related to such a contract).
18
159 Definitions
19
In this Part:
20
consumer credit product means any form of facility for the
21
provision of credit (other than under a continuing credit contract)
22
provided to debtors by a credit provider.
23
credit advertisement means an advertisement in any form or
24
medium that states or implies that credit is available, but (for the
25
avoidance of doubt) does not include:
26
(a) notices or other documents required or authorised to be given
27
under this Code; or
28
(b) a publication that only lists reference rates.
29
National Credit Code Schedule 1
Co mparison rates Part 10
Preliminary Division 1
Section 159
National Consumer Credit Protection Bill 2009 No. , 2009 431
name, of a consumer credit product, means the usual name or
1
description by which the credit provider describes or advertises the
2
product.
3
4
Schedule 1 National Cred it Code
Part 10 Co mparison rates
Division 2 Co mparison rate in cred it advertising
Section 160
432 National Consumer Credit Protection Bill 2009 No. , 2009
Division 2--Comparison rate in credit advertising
1
160 Comparison rate mandatory in advertisements containing
2
annual percentage rate
3
(1) A credit advertisement must contain the relevant comparison rate
4
in accordance with this Part if it contains an annual percentage rate.
5
(2) A credit advertisement may contain the relevant comparison rate in
6
accordance with this Part even if it does not contain an annual
7
percentage rate.
8
Note:
Section 150(1) makes it an offence (penalty--100 penalty units) if a
9
person publishes a credit advertisement that does not comply with this
10
Division.
11
161 The relevant comparison rate
12
(1) The relevant comparison rate for the purposes of section 160 is the
13
comparison rate calculated for whichever of the designated
14
amounts and terms most closely represents the typical amount of
15
credit and term initially provided by the credit provider for the
16
consumer credit product being advertised.
17
(2) The designated amounts and terms are the amounts and terms
18
prescribed by a regulation for the purposes of this section.
19
(3) The credit advertisement may contain more than one relevant
20
comparison rate.
21
162 Information about comparison rate
22
(1) The credit advertisement must clearly state the name of the
23
consumer credit product, the amount of credit and the term to
24
which each comparison rate applies.
25
(2) If the comparison rate is calculated for an amount of credit
26
prescribed by a regulation for the purposes of this subsection, the
27
credit advertisement must clearly state:
28
(a) that the comparison rate is for a secured loan if it has been
29
calculated on the basis that a mortgage or guarantee is taken
30
by the credit provider; or
31
National Credit Code Schedule 1
Co mparison rates Part 10
Co mparison rate in credit advertising Division 2
Section 163
National Consumer Credit Protection Bill 2009 No. , 2009 433
(b) that the comparison rate is for an unsecured loan if it has not
1
been so calculated.
2
The word "secured" or "unsecured" in connection with the amount
3
of credit for which the comparison rate is calculated is a sufficient
4
description for the purposes of this subsection.
5
163 Warning about comparison rate
6
(1) A comparison rate in a credit advertisement must be accompanied
7
by a warning about the accuracy of the comparison rate that is
8
prescribed by a regulation.
9
(2) The warning may be given in conjunction with the basis on which
10
the comparison rate is calculated, that is, that the comparison rate
11
is accurate only for the specified amount of credit and specified
12
term.
13
164 Other require ments for comparison rate
14
(1) A comparison rate in any credit advertisement must be identified as
15
a comparison rate.
16
(2) A comparison rate in any credit advertisement must not be less
17
prominent than:
18
(a) any annual percentage rate stated in the advertisement; and
19
(b) the amount of any repayment stated in the advertisement.
20
(3) The following applies to credit advertisements on television, the
21
internet or other electronic display medium:
22
(a) if the annual percentage rate is in spoken form and not
23
displayed on the screen in text, the comparison rate must also
24
be in spoken form;
25
(b) if the annual percentage rate is displayed on the screen in
26
text, the comparison rate must also be displayed on the screen
27
in text and may be in spoken form;
28
(c) if the comparison rate is in spoken form, the warning and
29
other information may be either in spoken form or displayed
30
on the screen in text;
31
Schedule 1 National Cred it Code
Part 10 Co mparison rates
Division 2 Co mparison rate in cred it advertising
Section 164
434 National Consumer Credit Protection Bill 2009 No. , 2009
(d) if the comparison rate is displayed on the screen in text, the
1
warning and other information must also be displayed on the
2
screen in text.
3
4
National Credit Code Schedule 1
Co mparison rates Part 10
Co mparison rate in other documents Division 3
Section 165
National Consumer Credit Protection Bill 2009 No. , 2009 435
Division 3--Comparison rate in other documents
1
165 Comparison rates in documents other than credit advertising
2
If a document, other than a credit advertisement, contains a
3
comparison rate, Division 2 applies (with necessary changes) in
4
relation to the comparison rate as if it were in a credit
5
advertisement.
6
7
Schedule 1 National Cred it Code
Part 10 Co mparison rates
Division 4 Miscellaneous
Section 166
436 National Consumer Credit Protection Bill 2009 No. , 2009
Division 4--Miscellaneous
1
166 Calculation of comparison rates
2
(1) A regulation may make provision about the way in which
3
comparison rates are to be calculated for the purposes of this Part.
4
(2) For the purposes of calculating the relevant comparison rate, credit
5
fees or charges are not ascertainable and need not be included in
6
the calculation if their imposition or amount is dependent on events
7
that may or may not happen (unless a regulation under this section
8
otherwise provides).
9
167 Compliance grace period following changes in interest or fees
10
A credit advertisement does not cease to comply with this Part
11
merely because of a change in the annual percentage rate or in any
12
credit fees or charges during the period of 7 days after the change
13
takes effect.
14
168 Regulations--exemptions and othe r matters
15
A regulation may make provision about the following:
16
(a) exempting any class of persons or matters from the operation
17
of any provision of this Part;
18
(b) requirements with which a credit advertisement containing a
19
comparison rate must comply.
20
21
National Credit Code Schedule 1
Consumer leases Part 11
Interpretation and application Division 1
Section 169
National Consumer Credit Protection Bill 2009 No. , 2009 437
Part 11--Consumer leases
1
Division 1--Interpretation and application
2
169 Meaning of consumer lease
3
For the purposes of this Code, a consumer lease is a contract for
4
the hire of goods by a natural person or strata corporation under
5
which that person or corporation does not have a right or obligation
6
to purchase the goods.
7
170 Consumer leases to which this Part applies
8
(1) This Part applies to a consumer lease if, when the lease is entered
9
into:
10
(a) the goods are hired wholly or predominantly for personal,
11
domestic or household purposes; and
12
(b) a charge is or may be made for hiring the goods and the
13
charge together with any other amount payable under the
14
consumer lease exceeds the cash price of the goods; and
15
(c) the lessor hires the goods in the course of a business of hiring
16
goods carried on in this jurisdiction or as part of or
17
incidentally to any other business of the lessor carried on in
18
this jurisdiction.
19
(2) If this Part applies to a consumer lease:
20
(a) this Part applies to all transactions or acts under the lease
21
whether or not they take place in this jurisdiction; and
22
(b) this Part continues to apply even though the lessee ceases to
23
carry on a business in this jurisdiction.
24
(3) For the purposes of this section, the amount payable under a
25
consumer lease includes any agreed or residual value of the goods
26
at the end of the lease or on termination of the lease by the lessor
27
or lessee, but does not include:
28
(a) any amount payable for services that are incidental to the hire
29
of the goods under the lease; or
30
Schedule 1 National Cred it Code
Part 11 Consumer leases
Division 1 Interpretation and application
Section 171
438 National Consumer Credit Protection Bill 2009 No. , 2009
(b) any amount that ceases to be payable on the termination of
1
the contract following the exercise of a right of cancellation
2
by the lessee at the earliest opportunity.
3
(4) For the purposes of this section, the predominant purpose for
4
which goods are hired is:
5
(a) the purpose for which more than one half of the goods are
6
intended to be used; or
7
(b) if the same goods are intended to be used for different
8
purposes, the purpose for which the goods are intended to be
9
most used.
10
171 Consumer leases to which this Part does not apply
11
Short term or indefinite leases
12
(1) This Part does not apply to a consumer lease for a fixed period of 4
13
months or less or for an indefinite period.
14
Employment-related leases
15
(2) This Part does not apply to a consumer lease under which goods
16
are hired by an employee in connection with the employee's
17
remuneration or other employment benefits.
18
Regulations may exclude leases
19
(3) The regulations may exclude from the application of all or any
20
provisions of this Part consumer leases of a class specified in the
21
regulations.
22
ASIC may exclude leases
23
(4) ASIC may exclude, from the application of all or any provisions of
24
this Part, a consumer lease specified by ASIC.
25
(5) An exemption under subsection (4) is not a legislative instrument.
26
(6) ASIC may, by legislative instrument, exclude from the application
27
of all or any provisions of this Part, consumer leases of a class
28
specified in the instrument.
29
National Credit Code Schedule 1
Consumer leases Part 11
Interpretation and application Division 1
Section 172
National Consumer Credit Protection Bill 2009 No. , 2009 439
172 Presumptions relating to application of this Part
1
(1) In any proceedings (whether brought under this Code or not) in
2
which a party claims that a lease is a consumer lease to which this
3
Part applies, it is presumed to be such unless the contrary is
4
established.
5
(2) It is presumed for the purposes of this Code that goods hired under
6
a lease are not hired wholly or predominantly for personal,
7
domestic or household purposes if the lessee declares, before
8
entering the lease, that the goods are hired wholly or
9
predominantly for business purposes, unless the contrary is
10
established.
11
(3) However, the declaration is ineffective if, when the declaration was
12
made, the lessor or a person (the prescribed person) of a kind
13
prescribed by the regulations:
14
(a) knew, or had reason to believe; or
15
(b) would have known, or had reason to believe, if the lessor or
16
prescribed person had made reasonable inquiries about the
17
purpose for which the goods were hired;
18
that the goods were in fact hired wholly or predominantly for
19
personal, domestic or household purposes.
20
(4) If the declaration is ineffective under subsection (3), paragraph
21
170(1)(a) is taken to be satisfied in relation to the lease.
22
(5) A declaration under this section is to be substantially in the form (if
23
any) required by the regulations and is ineffective for the purposes
24
of this section if it is not.
25
(6) A person commits an offence if:
26
(a) the person engages in conduct; and
27
(b) the conduct induces a debtor to make a declaration under this
28
section that is false or misleading in a material particular; and
29
(c) the declaration is false or misleading in a material particular.
30
Criminal penalty: 100 penalty units, or 2 years imprisonment, or
31
both.
32
(7) Strict liability applies to paragraph (6)(c).
33
Schedule 1 National Cred it Code
Part 11 Consumer leases
Division 1 Interpretation and application
Section 172
440 National Consumer Credit Protection Bill 2009 No. , 2009
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
2
National Credit Code Schedule 1
Consumer leases Part 11
Form of and information to be included in consumer leases Division 2
Section 173
National Consumer Credit Protection Bill 2009 No. , 2009 441
Division 2--Form of and information to be included in
1
consumer leases
2
173 Form of consumer lease
3
(1) A consumer lease must be in the form of a written lease document
4
signed by the lessee and containing the information required by
5
this Division.
6
(2) The regulations may make provision for or with respect to the form
7
of consumer leases and the way they are expressed.
8
(3) A lessor must not enter into a consumer lease that contravenes a
9
requirement of this section or regulations made under this section.
10
Criminal penalty: 100 penalty units.
11
(4) Subsection (3) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
174 Disclosures in consumer leases
14
(1) A consumer lease must contain the following matters, if
15
ascertainable:
16
(a) a description or identification of the goods hired under the
17
lease;
18
(b) the amount or value of any consideration to be paid or
19
provided by the lessee before the delivery of those goods;
20
(c) the amount of any stamp duty or other government charge
21
(other than on receipts or withdrawals) payable by the lessee
22
in respect of the lease;
23
(d) the amount of any other charges not included in the rental
24
payable under the lease, and a description of those charges;
25
(e) the amount of each rental payment to be made by the lessee
26
under the lease, the date on which the first rental payment is
27
due and either the dates on which subsequent rental payments
28
are due or the interval between rental payments;
29
(f) the number of rental payments to be made by the lessee, and
30
the total amount of rental payable under the lease;
31
Schedule 1 National Cred it Code
Part 11 Consumer leases
Division 2 Form of and info rmation to be included in consumer leases
Section 175
442 National Consumer Credit Protection Bill 2009 No. , 2009
(g) a statement of the conditions on which the lessee may
1
terminate the lease;
2
(h) a statement of the liabilities (if any) of the lessee on
3
termination of the lease.
4
(2) A consumer lease is taken to comply with this section despite any
5
omission or other error if the court is satisfied that the omission or
6
error is not of such a nature as to mislead the lessee to his or her
7
disadvantage.
8
(3) A lessor must not enter into a consumer lease that contravenes a
9
requirement of this section.
10
Criminal penalty: 100 penalty units.
11
(4) Subsection (3) is an offence of strict liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
175 Copy of lease etc. for lessee
14
(1) A lessor must, within 14 days after entering into a consumer lease,
15
give to the lessee a copy of the consumer lease, together with a
16
statement in the form prescribed by the regulations explaining the
17
rights and obligations of a lessee.
18
Criminal penalty: 50 penalty units.
19
(2) Subsection (1) does not apply if the lessor has previously given the
20
lessee a copy of the consumer lease to keep.
21
(3) Subsection (1) is an offence of strict liability.
22
Note:
For strict liability, see section 6.1 of the Criminal Code.
23
(4) Section 194 applies to this section as if references in that section to
24
the credit provider were references to the lessor or a lease broker
25
and as if references in that section to the debtor were references to
26
the lessee.
27
176 Further goods and deferrals or waivers under consume r leases
28
The provision of further goods under a consumer lease or a change
29
in a consumer lease as a result of a deferral or waiver of payment
30
National Credit Code Schedule 1
Consumer leases Part 11
Form of and information to be included in consumer leases Division 2
Section 176
National Consumer Credit Protection Bill 2009 No. , 2009 443
of an amount payable under a consumer lease is not to be treated as
1
creating a new consumer lease for the purposes of this Part or as
2
creating a credit contract, if the provision of the further goods or
3
the deferral or waiver is permitted by this Code or the consumer
4
lease.
5
6
Schedule 1 National Cred it Code
Part 11 Consumer leases
Division 3 Other provisions applicable to consumer leases
Section 177
444 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--Other provisions applicable to consumer leases
1
177 Application of certain Code provisions to consumer leases
2
(1) The following provisions of this Code apply in relation to a
3
consumer lease in the same way as they apply in relation to credit
4
contracts:
5
(a) Division 3 of Part 4 (relating to changes to contracts on the
6
grounds of hardship and unjust transactions), other than
7
section 78;
8
(b) sections 98 to 101 (relating to information as to mortgaged
9
goods, entry to residential property to take possession of
10
goods and orders by the court for entry and possession);
11
(c) Part 12 (relating to miscellaneous matters).
12
(2) For the purposes of the application of those provisions:
13
(a) references to a credit provider are to be read as references to
14
a lessor; and
15
(b) references to a debtor are to be read as references to a lessee;
16
and
17
(c) references to a credit contract or contract are to be read as
18
references to a consumer lease; and
19
(d) references to mortgaged goods are to be read as references to
20
goods hired under a consumer lease.
21
(3) For the purposes of the application of Division 3 of Part 4, the
22
words "(without a change being made to the annual percentage rate
23
or rates)" are taken to be omitted from section 72 wherever
24
occurring.
25
178 Notice of repossession
26
(1) A lessor must not exercise any right under a consumer lease to take
27
possession of goods subject to the lease unless the lessor has given
28
the lessee 30 days' written notice of the lessor's intention to do so.
29
Criminal penalty: 50 penalty units.
30
(2) However, the lessor is not required to give the notice in accordance
31
with this section if:
32
National Credit Code Schedule 1
Consumer leases Part 11
Other provisions applicable to consumer leases Division 3
Section 179
National Consumer Credit Protection Bill 2009 No. , 2009 445
(a) the right arises under a lease granted for a fixed term at the
1
end of that term; or
2
(b) the lessor believes on reasonable grounds that the lessee has
3
disposed of goods hired under the lease, or intends to dispose
4
of such goods, contrary to the terms of the lease; or
5
(c) the lessor has made reasonable attempts to locate the lessee
6
but without success; or
7
(d) the lessee is insolvent; or
8
(e) the court authorises the lessor to do so.
9
(3) Subsection (1) is an offence of strict liability.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
179 Termination of lease
12
(1) A lessee may, at any time before the end of a consumer lease, end
13
the lease by returning the goods hired under the lease to the lessor
14
during ordinary business hours or at such other time as may be
15
agreed with the lessor or fixed by the court on the application of
16
the lessee.
17
(2) The amount payable by a lessee on the termination of a consumer
18
lease under this section before the end of its fixed term is:
19
(a) the amount payable under the lease on such a termination; or
20
(b) the amount determined in accordance with the principles (if
21
any) set out in the regulations for the purposes of this section;
22
whichever is the lesser.
23
24
Schedule 1 National Cred it Code
Part 12 Miscellaneous
Division 1 Tolerances and assumptions
Section 180
446 National Consumer Credit Protection Bill 2009 No. , 2009
Part 12--Miscellaneous
1
Division 1--Tolerances and assumptions
2
180 Tolerances and assumptions relating to information
3
Disclosures generally
4
(1) Information disclosed in a precontractual statement, contract
5
document, mortgage document or guarantee, statement, notice or
6
consumer lease, or otherwise disclosed for the purposes of this
7
Code, is taken to be correctly disclosed if:
8
(a) it is within tolerances allowed by the regulations; and
9
(b) the disclosure is made as at a date stated in it.
10
Disclosure of interest charges
11
(2) Disclosures for the purposes of this Code relating to interest
12
charges may be made on the following assumptions (and such
13
other assumptions under this section as are applicable):
14
(a) that, in the case of an annual percentage rate or default rate,
15
there will be no variation in the rate as disclosed over the
16
whole term of the contract or any shorter term for which it
17
applies;
18
(b) if a change to a variable rate is provided for by the contract,
19
that the variable rate applicable over the term for which it
20
applies is the same as the equivalent variable rate as at the
21
date disclosure is made;
22
(c) that the debtor will make the repayments required by the
23
contract at the times required by the contract.
24
Disclosure of repayments
25
(3) Disclosures for the purposes of this Code relating to repayments
26
may be made on the assumption that the debtor will pay the
27
repayments required by the contract at the times required by the
28
contract and on such other assumptions under this section as are
29
applicable.
30
National Credit Code Schedule 1
Miscellaneous Part 12
Tolerances and assumptions Division 1
Section 181
National Consumer Credit Protection Bill 2009 No. , 2009 447
Disclosures of credit fees and charges
1
(4) Disclosures relating to credit fees and charges for the purposes of
2
this Code may be made on the following assumptions (and on such
3
other assumptions under this section as are applicable):
4
(a) that there will be no change in the credit fees and charges as
5
so disclosed and no new fees or charges imposed;
6
(b) that the debtor will pay the fees and charges required by the
7
contract at the times required by the contract.
8
Disclosures in consumer leases
9
(5) Disclosures for the purposes of this Code relating to consideration,
10
charges and payments in a consumer lease may be made on the
11
assumptions that there will be no change in the matters disclosed
12
and no new charges imposed.
13
When information is ascertainable
14
(6) Information required to be disclosed for the purposes of this Code,
15
which is not otherwise ascertainable, is taken to be ascertainable if
16
it is ascertainable, as at the date the disclosure is made, on the basis
17
of assumptions set out in this section or in the regulations.
18
Disclosure of names
19
(7) Information disclosed for the purposes of this Code as to a name is
20
taken to be correctly disclosed if the information is sufficient to
21
identify the person concerned.
22
181 Tolerances relating to contracts and other documents
23
An amount of interest, a fee or charge or any other amount
24
charged, payable or calculated under or in connection with a credit
25
contract, mortgage, guarantee or consumer lease is, for the
26
purposes of this Code, taken to comply with this Code if the
27
amount is within tolerances allowed by the regulations.
28
Schedule 1 National Cred it Code
Part 12 Miscellaneous
Division 1 Tolerances and assumptions
Section 182
448 National Consumer Credit Protection Bill 2009 No. , 2009
182 Regulations
1
The regulations may vary an assumption set out in this Division
2
and may provide for additional assumptions.
3
4
National Credit Code Schedule 1
Miscellaneous Part 12
Documentary provisions Division 2
Section 183
National Consumer Credit Protection Bill 2009 No. , 2009 449
Division 2--Documentary provisions
1
183 Form of notices
2
(1) The regulations may prescribe the form of any notices required or
3
authorised to be given under this Code and may require such
4
notices to contain specified information.
5
(2) A notice required to be given by a mortgagee under this Code may
6
include information required to be given in the same situation
7
under an Act, and the notice may be included in any notice given
8
under that Act.
9
(3) A notice required or authorised to be given under this Code is to be
10
in writing unless this Code or the regulations otherwise provide.
11
184 Legibility and language
12
(1) A credit contract, mortgage or guarantee or a notice given by a
13
credit provider under this Code, other than a document transmitted
14
by electronic communication:
15
(a) must be easily legible; and
16
(b) to the extent that it is printed or typed must conform with the
17
provisions of the regulations as to print or type; and
18
(c) must be clearly expressed.
19
(2) A credit contract, mortgage or guarantee or a notice given by a
20
credit provider under this Code, if transmitted by electronic
21
communication:
22
(a) must be easily legible; and
23
(b) must conform with the provisions of the regulations, if any,
24
as to content, legibility and accompanying information; and
25
(c) must be clearly expressed.
26
(3) If the court is satisfied, on application by ASIC, that a provision of
27
a credit contract, mortgage or guarantee or a notice given by a
28
credit provider under this Code does not comply with the
29
requirements of this section, it may prohibit the credit provider
30
from using a provision in the same or similar terms in future credit
31
contracts, mortgages or guarantees or notices.
32
Schedule 1 National Cred it Code
Part 12 Miscellaneous
Division 2 Docu mentary provisions
Section 185
450 National Consumer Credit Protection Bill 2009 No. , 2009
(4) A credit provider that contravenes a prohibition imposed under
1
subsection (3) commits an offence.
2
Criminal penalty (subsection (4)): 100 penalty units.
3
185 Copies of contracts and other documents
4
(1) A credit provider must in accordance with this section, at the
5
written request of a debtor, mortgagor or guarantor, provide to the
6
debtor, mortgagor or guarantor a copy of:
7
(a) the credit contract, mortgage or guarantee; or
8
(b) any credit-related insurance contract in the credit provider's
9
possession; or
10
(c) a notice previously given to the debtor, mortgagor or
11
guarantor under this Code.
12
Criminal penalty: 30 penalty units.
13
(2) The copy must be provided:
14
(a) within 14 days, if the original came into existence one year or
15
less before the request is given; or
16
(b) within 30 days, if the original came into existence more than
17
one year before the request is given.
18
Note:
Section 196 provides for the date on which notice is taken to be given.
19
(3) A credit provider must provide a copy of a notice which requires a
20
debtor, mortgagor or guarantor to take action if requested in
21
accordance with subsection (1) even though the contract has been
22
discharged or terminated but only if the request is made within 2
23
years of the discharge or termination.
24
Criminal penalty: 30 penalty units.
25
(4) Subsections (1) and (3) are offences of strict liability.
26
Note:
For strict liability, see section 6.1 of the Criminal Code.
27
186 Signing of documents
28
(1) It is sufficient compliance with a requirement under this Code that
29
a document be signed by a person if the person's signature is
30
National Credit Code Schedule 1
Miscellaneous Part 12
Documentary provisions Division 2
Section 187
National Consumer Credit Protection Bill 2009 No. , 2009 451
written on the document by another person by or under the
1
authority of the person required to sign.
2
(2) This section has effect subject to section 199 (Conduct of agents
3
and related matters).
4
187 Electronic transactions and documents
5
(1) Without limiting the provisions of this Code, it is declared that any
6
contract, mortgage or guarantee referred to in this Code may be
7
made in accordance with the Electronic Transactions Act 1999.
8
(2) Without limiting the provisions of this Code, it is declared that any
9
requirement or permission by or under this Code, however
10
expressed:
11
(a) to give information in writing; or
12
(b) to provide a signature; or
13
(c) to produce a document; or
14
(d) to record information in writing; or
15
(e) to retain a document;
16
may be met in accordance with the Electronic Transactions Act
17
1999.
18
Example: Giving information would include the requirement under subsection
19
36(1) to provide a statement of amount owing.
20
Note 1:
Subsection 9(5) of the Electronic Transactions Act 1999 has a
21
definition relating to the giving of information. That definition
22
provides, generally, that giving information includes, but is not limited
23
to, the following:
24
(a) making an application;
25
(b) making or lodging a claim;
26
(c) giving, sending or serving a notification;
27
(d) lodging a return;
28
(e) making a request;
29
(f) making a declaration;
30
(g) lodging or issuing a certificate;
31
(h) making, varying or cancelling an election;
32
(i) lodging an objection;
33
(j) giving a statement of reasons.
34
Note 2:
See regulations made under the Electronic Transactions Act 1999 for
35
exemptions relating to electronic transactions.
36
37
Schedule 1 National Cred it Code
Part 12 Miscellaneous
Division 3 General provisions
Section 188
452 National Consumer Credit Protection Bill 2009 No. , 2009
Division 3--General provisions
1
188 Assignment by credit provide r
2
(1) If the rights of a credit provider under a credit contract, mortgage
3
or guarantee are assigned or pass by law to another person, this
4
Code from then on applies to that other person and does not impose
5
any further obligation on the credit provider.
6
(2) The debtor, mortgagor or guarantor has and may exercise the same
7
rights in respect of the credit contract, mortgage or guarantee
8
against the assignee as the debtor, mortgagor or guarantor has
9
against the credit provider.
10
(3) Subsection (1) does not apply while the credit provider continues
11
to receive payments from the debtor, or would continue to do so if
12
the debtor complied with the credit contract.
13
189 Assignment by debtor, mortgagor or guarantor
14
(1) If the rights of a debtor, mortgagor or guarantor under a credit
15
contract, mortgage or guarantee are assigned or pass by law to
16
another person, this Code from then on applies to that other person
17
and does not confer any further rights on the debtor, mortgagor or
18
guarantor.
19
(2) Subsection (1) does not apply if the rights are assigned or pass by
20
law to a corporation which is neither a trustee for the debtor,
21
mortgagor or guarantor nor an executor of the debtor's,
22
mortgagor's or guarantor's estate.
23
(3) Subsection (1) does not affect a requirement which is made of a
24
debtor or mortgagor under section 52.
25
190 Appropriation of payments
26
(1) A debtor who is liable to a credit provider under 2 or more credit
27
contracts may require the credit provider by written notice to apply
28
a payment to a particular one of those contracts or to divide the
29
payment between them in a specified manner.
30
National Credit Code Schedule 1
Miscellaneous Part 12
General provisions Division 3
Section 191
National Consumer Credit Protection Bill 2009 No. , 2009 453
(2) A credit provider that contravenes a requirement under this section
1
commits an offence.
2
Criminal penalty: 30 penalty units.
3
(3) Subsection (2) is an offence of strict liability.
4
Note:
For strict liability, see section 6.1 of the Criminal Code.
5
(4) A debtor may not make a requirement under this section if the
6
debtor and the credit provider have previously agreed as to the
7
application of the payment concerned in relation to the credit
8
contracts under which the debtor is liable to the credit provider.
9
191 Contracting out
10
(1) A provision of a contract or other instrument by which a person
11
seeks to avoid or modify the effect of this Code is void.
12
(2) A provision of a contract or other instrument by which a person
13
seeks to have the debtor, mortgagor or guarantor indemnify the
14
credit provider for any loss or liability arising under this Code is
15
void.
16
(3) A credit provider that is a party to any such contract or other
17
instrument commits an offence.
18
Criminal penalty: 100 penalty units.
19
(4) Subsection (3) is an offence of strict liability.
20
Note:
For strict liability, see section 6.1 of the Criminal Code.
21
(5) Subsection (2) does not affect the operation of subsection 60(2).
22
192 Indemnities
23
(1) An indemnity for any liability under this Code is not void, and
24
cannot be declared void, on the grounds of public policy, despite
25
any rule of law to the contrary.
26
(2) The liabilities to which this section applies include the following:
27
(a) a liability for any criminal or civil penalty incurred by any
28
person under this Code;
29
Schedule 1 National Cred it Code
Part 12 Miscellaneous
Division 3 General provisions
Section 193
454 National Consumer Credit Protection Bill 2009 No. , 2009
(b) a payment in settlement of a liability or alleged liability
1
under this Code;
2
(c) a liability under another indemnity for any liability under this
3
Code.
4
(3) This section is subject to subsection 191(2).
5
(4) This section does not derogate from any other rights and remedies
6
that exist apart from this section.
7
193 Effect of noncompliance
8
(1) A credit contract, mortgage or guarantee or any other contract is
9
not illegal, void or unenforceable because of a contravention of this
10
Code unless this Code contains an express provision to that effect.
11
(2) Except as provided by this section, this Code does not derogate
12
from rights and remedies that exist apart from this Code.
13
194 Giving notice or other document
14
Application
15
(1) This section applies as follows:
16
(a) this section applies (subject to this subsection) to notices or
17
other documents that are required to be given for the
18
purposes of this Code;
19
(b) this subsection and subsections (3) and (7) apply, but the
20
remainder of this section does not apply, to precontractual
21
statements and notices given under section 16;
22
(c) subsections (4), (5) and (6) do not apply to default notices;
23
(d) this section applies despite the provisions of any other section
24
of this Code (except subsections 36(4) and 83(4)) to the
25
contrary.
26
Note:
Examples of notices or other documents to which this section applies
27
are those required to be given under sections 20, 33, 36, 43, 56, 57 and
28
83.
29
National Credit Code Schedule 1
Miscellaneous Part 12
General provisions Division 3
Section 194
National Consumer Credit Protection Bill 2009 No. , 2009 455
Unsuccessful attempts by credit provider
1
(2) A credit provider is relieved from the obligation to give a notice or
2
other document to a person if:
3
(a) the credit provider has previously made a reasonable (but
4
unsuccessful) attempt to give a notice or other document in
5
accordance with this Code by leaving it at, or by sending it
6
by post or electronic communication to the appropriate
7
address of the person under section 195; and
8
(b) the credit provider has reasonable grounds for believing that
9
the person can no longer be contacted at that address.
10
Joint debtors etc--general obligation
11
(3) In the case of joint debtors, mortgagors or guarantors, a notice or
12
other document must be given to each debtor, mortgagor or
13
guarantor, except as provided by this section.
14
Joint debtors etc--nomination of one of them
15
(4) A notice or other document may be given to any 2 or more joint
16
debtors, mortgagors or guarantors by being given to one of the
17
joint debtors, mortgagors or guarantors nominated by them to
18
receive the notice or other document on their behalf. The notice or
19
other document need not be addressed to all of them.
20
Joint debtors etc--same address
21
(5) A single copy of a notice or other document may be given to any 2
22
or more joint debtors, mortgagors or guarantors at the same address
23
if each of them has consented to a single copy being given and the
24
notice or other document is addressed jointly to them. The
25
procedure prescribed by this subsection is an alternative to the
26
procedure prescribed by subsection (4).
27
Nominated persons generally
28
(6) A notice or other document may be given to a person by being
29
given to any other person nominated by the person to receive the
30
notice or other document on his or her behalf. However--
31
Schedule 1 National Cred it Code
Part 12 Miscellaneous
Division 3 General provisions
Section 195
456 National Consumer Credit Protection Bill 2009 No. , 2009
(a) a debtor, mortgagor or guarantor cannot nominate the credit
1
provider or a person associated with the credit provider; and
2
(b) a mortgagor cannot nominate the debtor if the mortgage is
3
given by a guarantor; and
4
(c) a guarantor cannot nominate the debtor.
5
Lawyers
6
(7) A notice or other document may be given to a person by being
7
given to a lawyer acting for the person in the matter concerned.
8
Withdrawal of nomination or consent
9
(8) A nomination or consent under this section ceases to have effect if
10
it is withdrawn by the person who made or gave it.
11
Form of nomination or consent
12
(9) A nomination or consent under this section (or the withdrawal of
13
any such nomination or consent) must be in the form required by
14
the regulations.
15
195 Manner of giving notice or other document
16
(1) If this Code requires or permits a notice or other document to be
17
given to a person who is a debtor, mortgagor or guarantor, the
18
appropriate address of the person is:
19
(a) an address nominated in writing by that person to the person
20
giving the notice or other document; or
21
(b) if there is no such nomination, the address of the place of
22
residence of that person last known to the person giving the
23
notice or other document.
24
Note:
A nominated address may be an electronic address.
25
(2) An appropriate address of any other person is:
26
(a) an address nominated in writing by that person to the person
27
giving the notice or other document; or
28
(b) the address of the place of residence or business of that
29
person last known to the person giving the notice or other
30
document.
31
National Credit Code Schedule 1
Miscellaneous Part 12
General provisions Division 3
Section 196
National Consumer Credit Protection Bill 2009 No. , 2009 457
Note:
A nominated address may be an electronic address.
1
(3) If a person nominates an address under paragraph (1)(a) or (2)(a),
2
the person may, by notice in writing to the person giving the notice
3
or other document referred to in subsection (1), change the
4
nominated address or cancel the nomination.
5
(4) A nomination under this section ceases to have effect if it is
6
cancelled by the person who made it.
7
196 Date of notice or other document
8
(1) For the purposes of this Code a notice or other document is taken
9
to be given:
10
(a) in the case of a notice or other document given personally--
11
on the date it bears or the date it is received by the addressee,
12
whichever is the later; or
13
(b) in the case of a notice or other document sent by post--on
14
the date it bears or the date when it would have been
15
delivered in the ordinary course of post, whichever is the
16
later; or
17
(c) in the case of a notice or other document given by electronic
18
communication--at the time that subsection 14(3) of the
19
Electronic Transactions Act 1999 provides is the time of
20
receipt of the electronic communication.
21
(2) For the purposes of this Code, the date of a notice or other
22
document is the date it is taken to be given in accordance with this
23
section.
24
197 Extensions of time
25
The court may extend a period if authorised by this Code to do so
26
even though the period has elapsed.
27
198 Orde rs of court
28
An order of the court in force under this Code, including such an
29
order as varied from time to time, has effect according to its tenor.
30
Schedule 1 National Cred it Code
Part 12 Miscellaneous
Division 3 General provisions
Section 199
458 National Consumer Credit Protection Bill 2009 No. , 2009
199 Conduct of agents and related matte rs
1
(1) The conduct of an officer, agent or employee of a credit provider
2
acting within his or her actual or ostensible authority will be
3
imputed to the credit provider and taken to be conduct of the credit
4
provider.
5
(2) A person cannot authorise a credit provider, or a person associated
6
with a credit provider, to enter into a credit contract, mortgage or
7
guarantee on the person's behalf. This subsection does not prevent
8
a credit provider from authorising a person associated with the
9
credit provider to enter into a credit contract on behalf of the credit
10
provider.
11
(3) A credit provider or person associated with a credit provider that
12
purports to act as agent of a debtor, mortgagor or a guarantor in
13
entering into a credit contract or a mortgage or guarantee commits
14
an offence.
15
Criminal penalty: 50 penalty units.
16
(4) A credit provider is not, for the purposes of this Code, taken to
17
know or have reason to believe something because an officer,
18
agent or employee of the credit provider does so, unless the
19
knowledge or reason to believe that thing is acquired by the officer,
20
agent or employee acting in that capacity and in connection with
21
the transaction concerned.
22
23
National Credit Code Schedule 1
Miscellaneous Part 12
Provisions relating to offences Division 4
Section 200
National Consumer Credit Protection Bill 2009 No. , 2009 459
Division 4--Provisions relating to offences
1
200 Offences by officers, agents or employees
2
An officer, agent or employee of a credit provider or other person
3
may be prosecuted for an offence against this Code or the
4
regulations (if liable for the offence) whether or not proceedings
5
have been taken against the credit provider or other person.
6
201 Offences by corporations
7
(1) If a corporation contravenes a provision of this Code or the
8
regulations, each officer of the corporation is taken to have
9
contravened the provision if the officer knowingly authorised or
10
permitted the contravention.
11
(2) An officer of a corporation may be proceeded against and
12
convicted under a provision pursuant to this section whether or not
13
the corporation has been proceeded against or convicted under the
14
provision.
15
(3) Nothing in this section affects the liability imposed on a
16
corporation for an offence committed by the corporation against
17
this Code or the regulations.
18
(4) In this section:
19
officer means a director of the corporation or a person who is
20
otherwise concerned in its management.
21
202 Limitations
22
Despite anything in any Act, proceedings for an offence against
23
this Code or the regulations may be brought within the period of 3
24
years that next succeeds the commission of the offence or, with the
25
consent of the Attorney-General, at any later time.
26
203 Application of section 4K of the Crimes Act 1914
27
Section 4K of the Crimes Act 1914 does not apply in relation to an
28
offence against this Code or the regulations.
29
Schedule 1 National Cred it Code
Part 13 Principal definitions
Section 204
460 National Consumer Credit Protection Bill 2009 No. , 2009
Part 13--Principal definitions
1
2
204 Principal definitions
3
(1) In this Code:
4
acceleration clause: see section 92.
5
ADI has the same meaning as in the Banking Act 1959.
6
amend includes:
7
(a) omit or omit and substitute; or
8
(b) alter or vary; or
9
(c) amend by implication.
10
amount of credit: see subsection 3(2).
11
annual percentage rate: see section 27.
12
approved external dispute resolution scheme has same meaning as
13
in section 11 of the National Credit Act.
14
ASIC means the Australian Securities and Investments
15
Commission.
16
associated: see subsection (2).
17
Australia means the Commonwealth of Australia but, when used in
18
a geographical sense, does not include an external Territory.
19
business day means a day that is not:
20
(a) a Saturday or Sunday; or
21
(b) a public holiday, special holiday or bank holiday in the place
22
in which any relevant act is to be or may be done.
23
carried on in this jurisdiction has a meaning affected by
24
section 12 of the National Credit Act.
25
cash price of goods or services to which a credit contract relates
26
means:
27
National Credit Code Schedule 1
Principal defin itions Part 13
Section 204
National Consumer Credit Protection Bill 2009 No. , 2009 461
(a) the lowest price that a cash purchaser might reasonably be
1
expected to pay for them from the supplier; or
2
(b) if the goods or services are not available for cash from the
3
supplier or are only available for cash at the same, or a
4
reasonably similar, price to the price that would be payable
5
for them if they were sold with credit provided--the market
6
value of the goods or services.
7
commission includes any form of monetary consideration or any
8
form of non-monetary consideration to which a monetary value can
9
be assigned.
10
Commonwealth means the Commonwealth of Australia but, when
11
used in a geographical sense, does not include an external
12
Territory.
13
compulsory insurance means:
14
(a) compulsory third-party personal injury insurance; or
15
(b) insurance of a nature declared by the regulations to be
16
compulsory insurance for the purposes of this Code.
17
consumer credit insurance means insurance that insures the
18
capacity of the debtor to make repayments under the credit
19
contract, including insurance against sickness of, injury to, or
20
disability or death of, the debtor or against unemployment of the
21
debtor, and also including life insurance (including insurance under
22
a group policy) to cover any outstanding amount on the debtor's
23
death.
24
consumer lease: see section 169.
25
continuing credit contract means a credit contract under which:
26
(a) multiple advances of credit are contemplated; and
27
(b) the amount of available credit ordinarily increases as the
28
amount of credit is reduced.
29
contract includes a series or combination of contracts, or contracts
30
and arrangements.
31
contract document means the document or documents setting out
32
the terms of a contract.
33
Schedule 1 National Cred it Code
Part 13 Principal definitions
Section 204
462 National Consumer Credit Protection Bill 2009 No. , 2009
credit: see subsection 3(1).
1
credit contract: see section 4.
2
credit fees and charges means fees and charges payable in
3
connection with a credit contract or mortgage, but does not
4
include:
5
(a) interest charges (including default charges); or
6
(b) any fees or charges that are payable to or by a credit provider
7
in connection with a credit contract in connection with which
8
both credit and debit facilities are available if the fees or
9
charges would be payable even if credit facilities were not
10
available (not being annual fees or charges in connection
11
with continuing credit contracts under which credit is
12
ordinarily obtained only by the use of a card); or
13
(c) government charges, or duties, on receipts or withdrawals; or
14
(d) enforcement expenses.
15
credit provider means a person that provides credit, and includes a
16
prospective credit provider.
17
credit-related insurance contract: see section 142.
18
credit service has the same meaning as in section 7 of the National
19
Credit Act.
20
daily percentage rate: see section 27.
21
date of a notice: see section 196.
22
debtor means a person (other than a guarantor) who is liable to pay
23
for (or to repay) credit, and includes a prospective debtor.
24
default notice: see Part 5.
25
default rate: see section 27.
26
definition means a provision of this Code (however expressed)
27
that:
28
(a) gives a meaning to a word or expression; or
29
(b) limits or extends the meaning of a word or expression.
30
National Credit Code Schedule 1
Principal defin itions Part 13
Section 204
National Consumer Credit Protection Bill 2009 No. , 2009 463
dispose of property includes:
1
(a) sell the property; or
2
(b) part with possession of the property to the prejudice of the
3
owner or a mortgagee of the property; or
4
(c) destroy the property.
5
electronic communication has the same meaning as in the
6
Electronic Transactions Act 1999.
7
enforcement expenses, in relation to a mortgage, includes
8
expenses incurred by the mortgagee in preserving or maintaining
9
property subject to the mortgage (including insurance, rates and
10
taxes payable for the property) but only if the expenses are
11
incurred after a breach occurs and are authorised by the mortgage.
12
enforcement proceedings, in relation to a credit contract or a
13
guarantee or mortgage, means:
14
(a) proceedings in a court to recover a payment due under the
15
contract or a guarantee; or
16
(b) taking possession of property under a mortgage or taking any
17
other action to enforce a mortgage.
18
fail includes refuse.
19
goods includes:
20
(a) ships, aircraft or other vehicles; or
21
(b) animals, including fish; or
22
(c) minerals, trees or crops, whether on, under or attached to land
23
or not;
24
but does not include anything declared by the regulations not to be
25
goods for the purposes of this Code.
26
goods mortgage means a mortgage over goods.
27
guarantee includes an indemnity (other than one arising under a
28
contract of insurance).
29
guarantee document means the document or documents setting out
30
the terms of a guarantee.
31
guarantor includes a prospective guarantor.
32
Schedule 1 National Cred it Code
Part 13 Principal definitions
Section 204
464 National Consumer Credit Protection Bill 2009 No. , 2009
insolvent means:
1
(a) in the case of a natural person--a person who is an insolvent
2
under administration within the meaning of the Corporations
3
Act 2001; or
4
(b) in the case of a corporation--a corporation that is an
5
externally-administered corporation within the meaning of
6
the Corporations Act 2001.
7
instrument includes a statutory instrument.
8
interest, in relation to land or other property, means:
9
(a) a legal or equitable estate in the land or other property; or
10
(b) a right, power or privilege over, or in relation to, the land or
11
other property.
12
key requirement: see Part 6.
13
land includes any interest in land.
14
linked credit provider: see subsection 127(1).
15
lowest price, in relation to the cash price of goods or services to
16
which a credit contract relates, means the lowest price including
17
any goods and services tax but unaffected by any discount between
18
the credit provider and the supplier.
19
market value, of goods or services to which a credit contract
20
relates, means fair market value including any goods and services
21
tax.
22
merchant service agreement means an agreement between a credit
23
provider and a supplier of goods and services under which the
24
credit provider agrees to pay to the supplier amounts for goods or
25
services supplied by the supplier and paid by means of credit cards,
26
whether or not the credit cards are issued by the credit provider.
27
modification includes addition, omission or substitution.
28
mortgage includes:
29
(a) any interest in, or power over, property securing obligations
30
of a debtor or guarantor; or
31
National Credit Code Schedule 1
Principal defin itions Part 13
Section 204
National Consumer Credit Protection Bill 2009 No. , 2009 465
(b) a credit provider's title to land or goods subject to a sale by
1
instalments; or
2
(c) a mortgage taken to have been entered into under subsection
3
9(3);
4
but does not include a consumer lease to which Part 11 applies.
5
mortgage document means the document or documents setting out
6
the terms of a mortgage by reference to which the mortgage is
7
created.
8
mortgagor includes a prospective mortgagor.
9
National Credit Act means the National Consumer Credit
10
Protection Act 2009 and includes regulations made under
11
section 329 of that Act, but does not include this Code.
12
number means:
13
(a) a number expressed in figures or words; or
14
(b) a letter; or
15
(c) a combination of a number so expressed and a letter.
16
omit, in relation to a provision of this Code or an Act, includes
17
repeal.
18
penalty includes forfeiture or punishment.
19
power includes authority.
20
printed includes typewritten, lithographed or reproduced by any
21
mechanical means.
22
proceedings means a legal or other action or proceedings.
23
property means any legal or equitable estate or interest (whether
24
present or future, vested or contingent, or tangible or intangible) in
25
real or personal property of any description (including money), and
26
includes things in action.
27
provision, in relation to this Code or an Act, means words or other
28
matter that form or forms part of this Code or the Act, and
29
includes:
30
Schedule 1 National Cred it Code
Part 13 Principal definitions
Section 204
466 National Consumer Credit Protection Bill 2009 No. , 2009
(a) a Chapter, Part, Division, Subdivision, section, subsection,
1
paragraph, subparagraph, subsubparagraph or Schedule of or
2
to this Code or the Act; or
3
(b) a section, clause, subclause, item, column, table or form of or
4
in a Schedule to this Code or the Act; or
5
(c) the long title and any preamble to the Act.
6
purchaser means:
7
(a) in relation to goods--a person who purchases, or proposes to
8
purchase, the goods; or
9
(b) in relation to services--a person who contracts, or proposes
10
to contract, to obtain services.
11
reference rate means a benchmark, index or other reference rate.
12
referring State has the same meaning as in section 19 of the
13
National Credit Act.
14
regulation means a regulation made or in force for the purposes of
15
this Code.
16
repeal includes:
17
(a) revoke or rescind; or
18
(b) repeal by implication; or
19
(c) abrogate or limit the effect of this Code or instrument
20
concerned; or
21
(d) exclude from, or include in, the application of this Code or
22
instrument concerned any person, subject matter or
23
circumstance.
24
residential property means:
25
(a) land on which a dwelling is or will be affixed for residential
26
purposes; or
27
(b) a lease of land on which a dwelling is or will be affixed for
28
residential purposes, being a lease that:
29
(i) is a Crown lease (within the meaning of the Income Tax
30
Assessment Act 1997); and
31
(ii) gives the lessee reasonable security of tenure; or
32
(c) a licence in relation to land on which a dwelling is or will be
33
affixed for residential purposes, being a licence that:
34
National Credit Code Schedule 1
Principal defin itions Part 13
Section 204
National Consumer Credit Protection Bill 2009 No. , 2009 467
(i) is granted by the Commonwealth, a State or a Territory;
1
and
2
(ii) gives the licensee reasonable security of tenure; or
3
(d) a share that:
4
(i) is in a company that is the legal owner of the land on
5
which a dwelling is or will be affixed for residential
6
purposes; and
7
(ii) gives the person who legally owns the share a right to
8
occupy the dwelling; or
9
(e) a right to occupy a dwelling in an aged care facility or
10
retirement village;
11
(f) an equity of redemption in relation to land on which a
12
dwelling is or will be affixed for residential purposes.
13
retained credit fees and charges means credit fees and charges
14
retained by the credit provider, other than credit fees and charges
15
passed on to (or retained in reimbursement of an amount paid to):
16
(a) a third party that is not a related body corporate (for the
17
purposes of the Corporations Act 2001) of the credit
18
provider; or
19
(b) a financial institution that is such a related body corporate in
20
respect of the provision of banking services that are provided
21
to the credit provider by the financial institution on the same
22
terms as those services are ordinarily provided to customers
23
who are not related to or associated with the financial
24
institution.
25
sale contract: see section 125.
26
services includes:
27
(a) rights in relation to, and interests in, real property; or
28
(b) insurance; or
29
(c) professional services; or
30
(d) a right to services;
31
but does not include the provision of credit or a right to credit or
32
services provided under a consumer lease.
33
sign includes the affixing of a seal or the making of a mark.
34
Note:
See section 186.
35
Schedule 1 National Cred it Code
Part 13 Principal definitions
Section 204
468 National Consumer Credit Protection Bill 2009 No. , 2009
statutory instrument means an instrument (including a regulation)
1
made or in force under or for the purposes of this Code, and
2
includes an instrument made or in force under any such instrument.
3
strata corporation means:
4
(a) a body corporate incorporated in relation to land subdivided
5
wholly or mainly for residential purposes under a law of the
6
Commonwealth, a State or a Territory providing for strata,
7
cluster, precinct or other subdivision of land; or
8
(b) a body corporate whose issued shares confer a right to
9
occupy land for residential purposes.
10
supplier means a supplier of goods or services.
11
supply includes agree to supply.
12
termination of a contract includes the discharge or rescission of the
13
contract.
14
this Code means this Schedule and includes regulations made for
15
the purposes of this Schedule.
16
this jurisdiction has the same meaning as in section 21 of the
17
National Credit Act.
18
tied continuing credit contract: see subsection 127(2).
19
tied loan contract: see subsection 127(3).
20
unpaid balance: see section 27.
21
unpaid daily balance: see section 27.
22
word includes any symbol, figure or drawing.
23
writing includes any mode of representing or reproducing words in
24
a visible form.
25
Note:
See section 187.
26
(2) For the purposes of this Code, a person is associated with a credit
27
provider if:
28
(a) the person and the credit provider are related bodies
29
corporate for the purposes of the Corporations Act 2001; or
30
National Credit Code Schedule 1
Principal defin itions Part 13
Section 204
National Consumer Credit Protection Bill 2009 No. , 2009 469
(b) the person is a supplier in respect of whom the credit
1
provider is a linked credit provider; or
2
(c) the person is an officer, agent or employee of the credit
3
provider, or of any such related body corporate or supplier,
4
acting in that capacity.
5
6
Schedule 1 National Cred it Code
Part 14 Miscellaneous provisions relating to interpretation
Division 1 Preliminary
Section 205
470 National Consumer Credit Protection Bill 2009 No. , 2009
Part 14--Miscellaneous provisions relating to
1
interpretation
2
Division 1--Preliminary
3
205 Displacement of Part by contrary intention
4
The application of this Part may be displaced, wholly or partly, by
5
a contrary intention appearing in this Code.
6
7
National Credit Code Schedule 1
Miscellaneous provisions relating to interpretation Part 14
General Division 2
Section 206
National Consumer Credit Protection Bill 2009 No. , 2009 471
Division 2--General
1
206 Material that is, and is not, part of this Code
2
(1) The heading to a Part, Division or Subdivision into which this
3
Code is divided is part of this Code.
4
(2) Punctuation in this Code is part of this Code.
5
(3) A heading to a section or subsection of this Code does not form
6
part of this Code.
7
(4) Notes included in this Code (including footnotes and endnotes) do
8
not form part of this Code.
9
207 References to particular Acts and to enactme nts
10
In this Code:
11
(a) an Act of the Commonwealth may be cited by its short title;
12
and
13
(b) an Act of a State or Territory may be cited:
14
(i) by its short title; or
15
(ii) in another way sufficient in an Act of the State or
16
Territory for the citation of such an Act;
17
together with a reference to the State or Territory.
18
208 Compliance with forms
19
(1) If a form is prescribed or approved by or for the purpose of this
20
Code, strict compliance with the form is not necessary and
21
substantial compliance is sufficient.
22
(2) If a form prescribed or approved by or for the purpose of this Code
23
requires:
24
(a) the form to be completed in a specified way; or
25
(b) specified information or documents to be included in,
26
attached to or given with the form; or
27
(c) the form, or information or documents included in, attached
28
to or given with the form, to be verified in a specified way;
29
Schedule 1 National Cred it Code
Part 14 Miscellaneous provisions relating to interpretation
Division 2 General
Section 208
472 National Consumer Credit Protection Bill 2009 No. , 2009
the form is not properly completed unless the requirement is
1
complied with.
2
3
National Credit Code Schedule 1
Miscellaneous provisions relating to interpretation Part 14
Terms and references Division 3
Section 209
National Consumer Credit Protection Bill 2009 No. , 2009 473
Division 3--Terms and references
1
209 Provisions relating to defined terms and gende r and numbe r
2
(1) If this Code defines a word or expression, other parts of speech and
3
grammatical forms of the word or expression have corresponding
4
meanings.
5
(2) Definitions in or applicable to this Code apply except so far as the
6
context or subject matter otherwise indicates or requires.
7
(3) In this Code, words indicating a gender include each other gender.
8
(4) In this Code:
9
(a) words in the singular include the plural; and
10
(b) words in the plural include the singular.
11
210 Meaning of may and must etc.
12
(1) In this Code, the word may, or a similar word or expression, used
13
in relation to a power indicates that the power may be exercised or
14
not exercised, at discretion.
15
(2) In this Code, the word must, or a similar word or expression, used
16
in relation to a power indicates that the power is required to be
17
exercised.
18
(3) This section has effect despite any rule of construction to the
19
contrary.
20
211 Effect of express references to bodies corporate and indiv iduals
21
In this Code, a reference to a person generally (whether the
22
expression "person", "party", "someone", "anyone", "no-one",
23
"one", "another" or "whoever" or another expression is used):
24
(a) does not exclude a reference to a body corporate or an
25
individual merely because elsewhere in this Code there is
26
particular reference to a body corporate (however expressed);
27
and
28
Schedule 1 National Cred it Code
Part 14 Miscellaneous provisions relating to interpretation
Division 3 Terms and references
Section 212
474 National Consumer Credit Protection Bill 2009 No. , 2009
(b) does not exclude a reference to an individual or a body
1
corporate merely because elsewhere in this Code there is
2
particular reference to an individual (however expressed).
3
212 Reference to certain provisions of Code
4
If a provision of this Code refers:
5
(a) to a Part or section by a number and without reference to this
6
Code--the reference is a reference to the Part or section,
7
designated by the number, of this Code; or
8
(b) to a Division, Subdivision, subsection, paragraph,
9
subparagraph or subsubparagraph by a number and without
10
reference to this Code--the reference is a reference to:
11
(i) the Division, designated by the number, of the Part in
12
which the reference occurs; and
13
(ii) the Subdivision, designated by the number, of the
14
Division in which the reference occurs; and
15
(iii) the subsection, designated by the number, of the section
16
in which the reference occurs; and
17
(iv) the paragraph, designated by the number, of the section,
18
subsection, or other provision in which the reference
19
occurs; and
20
(v) the subparagraph, designated by the number, of the
21
paragraph in which the reference occurs; and
22
(vi) the subsubparagraph, designated by the number, of the
23
subparagraph in which the reference occurs;
24
as the case requires.
25
213 Reference to provisions of this Code or an Act is inclusive
26
In this Code, a reference to a portion of this Code or an Act
27
includes:
28
(a) a reference to the Chapter, Part, Division, Subdivision,
29
section, subsection or other provision of this Code or the Act
30
referred to that forms the beginning of the portion; and
31
(b) a reference to the Chapter, Part, Division, Subdivision,
32
section, subsection or other provision of this Code or the Act
33
referred to that forms the end of the portion.
34
National Credit Code Schedule 1
Miscellaneous provisions relating to interpretation Part 14
Terms and references Division 3
Section 213
National Consumer Credit Protection Bill 2009 No. , 2009 475
Example: A reference to "sections 5 to 9" includes both section 5 and section 9.
1
It is not necessary to refer to "sections 5 to 9 (both inclusive)" to
2
ensure that the reference is given an inclusive interpretation.
3
4
Schedule 1 National Cred it Code
Part 14 Miscellaneous provisions relating to interpretation
Division 4 Functions and powers
Section 214
476 National Consumer Credit Protection Bill 2009 No. , 2009
Division 4--Functions and powers
1
214 Powe r to make instrume nt or decision includes power to ame nd
2
or repeal
3
If this Code authorises or requires the making of an instrument or
4
decision:
5
(a) the power includes power to amend or repeal the instrument
6
or decision; and
7
(b) the power to amend or repeal the instrument or decision is
8
exercisable in the same way, and subject to the same
9
conditions, as the power to make the instrument or decision.
10
215 Matters for which statutory instruments may make provision
11
(1) If this Code authorises or requires the making of a statutory
12
instrument in relation to a matter, a statutory instrument made
13
under this Code may make provision for the matter by applying,
14
adopting or incorporating (with or without modification) the
15
provisions of:
16
(a) an Act or statutory instrument; or
17
(b) another document (whether of the same or a different kind);
18
as in force at a particular time or as in force from time to time.
19
(2) If a statutory instrument applies, adopts or incorporates the
20
provisions of a document, the statutory instrument applies, adopts
21
or incorporates the provisions as in force from time to time, unless
22
the statutory instrument otherwise expressly provides.
23
(3) A statutory instrument may:
24
(a) apply generally to all persons, matters or things or be limited
25
in its application to:
26
(i) particular persons, matters or things; or
27
(ii) particular classes of persons, matters or things; or
28
(b) otherwise apply generally or be limited in its application by
29
reference to specified exceptions or factors.
30
(4) A statutory instrument may:
31
(a) apply differently according to different specified factors; or
32
National Credit Code Schedule 1
Miscellaneous provisions relating to interpretation Part 14
Functions and powers Division 4
Section 216
National Consumer Credit Protection Bill 2009 No. , 2009 477
(b) otherwise make different provision in relation to:
1
(i) different persons, matters or things; or
2
(ii) different classes of persons, matters or things.
3
(5) A statutory instrument may authorise a matter or thing to be from
4
time to time determined, applied or regulated by a specified person
5
or body.
6
(6) If this Code authorises or requires a matter to be regulated by
7
statutory instrument, the power may be exercised by prohibiting by
8
statutory instrument the matter or any aspect of the matter.
9
(7) If this Code authorises or requires provision to be made with
10
respect to a matter by statutory instrument, a statutory instrument
11
made under this Code may make provision with respect to a
12
particular aspect of the matter despite the fact that provision is
13
made by this Code in relation to another aspect of the matter or in
14
relation to another matter.
15
(8) A statutory instrument may provide for the review of, or a right of
16
appeal against, a decision made under the statutory instrument, or
17
this Code, and may, for that purpose, confer jurisdiction on any
18
court, tribunal, person or body.
19
(9) A statutory instrument may require a form prescribed by or under
20
the statutory instrument, or information or documents included in,
21
attached to or given with the form, to be verified by statutory
22
declaration.
23
216 Presumption of validity and power to make
24
(1) All conditions and preliminary steps required for the making of a
25
statutory instrument are presumed to have been satisfied and
26
performed in the absence of evidence to the contrary.
27
(2) A statutory instrument is taken to be made under all powers under
28
which it may be made, even though it purports to be made under
29
this Code or a particular provision of this Code.
30
Schedule 1 National Cred it Code
Part 14 Miscellaneous provisions relating to interpretation
Division 4 Functions and powers
Section 217
478 National Consumer Credit Protection Bill 2009 No. , 2009
217 Exercise of powe rs between enactment and comme ncement
1
(1) If a provision of this Code (the empowering provision) that does
2
not commence on its enactment would, had it commenced, confer a
3
power:
4
(a) to make an appointment; or
5
(b) to make a statutory instrument of a legislative or
6
administrative character; or
7
(c) to do another thing;
8
then:
9
(d) the power may be exercised; and
10
(e) anything may be done for the purpose of enabling the
11
exercise of the power or of bringing the appointment,
12
instrument or other thing into effect;
13
before the empowering provision commences.
14
(2) If a provision of an Act (the empowering provision) that does not
15
commence on its enactment would, had it commenced, amend a
16
provision of this Code so that it would confer a power:
17
(a) to make an appointment; or
18
(b) to make a statutory instrument of a legislative or
19
administrative character; or
20
(c) to do another thing;
21
then:
22
(d) the power may be exercised; and
23
(e) anything may be done for the purpose of enabling the
24
exercise of the power or of bringing the appointment,
25
instrument or other thing into effect;
26
before the empowering provision commences.
27
(3) If:
28
(a) this Code has commenced and confers a power to make a
29
statutory instrument (the basic instrument-making power);
30
and
31
(b) a provision of an Act that does not commence on its
32
enactment would, had it commenced, amend this Code so as
33
to confer additional power to make a statutory instrument
34
(the additional instrument-making power);
35
National Credit Code Schedule 1
Miscellaneous provisions relating to interpretation Part 14
Functions and powers Division 4
Section 217
National Consumer Credit Protection Bill 2009 No. , 2009 479
then:
1
(c) the basic instrument-making power and the additional
2
instrument-making power may be exercised by making a
3
single instrument; and
4
(d) any provision of the instrument that required an exercise of
5
the additional instrument-making power is to be treated as
6
made under subsection (2).
7
(4) If an instrument, or a provision of an instrument, is made under
8
subsection (1) or (2) that is necessary for the purpose of:
9
(a) enabling the exercise of a power mentioned in the subsection;
10
or
11
(b) bringing an appointment, instrument or other thing made or
12
done under such a power into effect;
13
the instrument or provision takes effect:
14
(c) on the making of the instrument; or
15
(d) on such later day (if any) on which, or at such later time (if
16
any) at which, the instrument or provision is expressed to
17
take effect.
18
(5) If:
19
(a) an appointment is made under subsection (1) or (2); or
20
(b) an instrument, or a provision of an instrument, made under
21
subsection (1) or (2) is not necessary for a purpose mentioned
22
in subsection (4);
23
the appointment, instrument or provision takes effect:
24
(c) on the commencement of the relevant empowering provision;
25
or
26
(d) on such later day (if any) on which, or at such later time (if
27
any) at which, the appointment, instrument or provision is
28
expressed to take effect.
29
(6) Anything done under subsection (1) or (2) does not confer a right,
30
or impose a liability, on a person before the relevant empowering
31
provision commences.
32
(7) After the enactment of a provision mentioned in subsection (2) but
33
before the provision's commencement, this section applies as if the
34
references in subsections (2) and (5) to the commencement of the
35
Schedule 1 National Cred it Code
Part 14 Miscellaneous provisions relating to interpretation
Division 4 Functions and powers
Section 217
480 National Consumer Credit Protection Bill 2009 No. , 2009
empowering provision were references to the commencement of
1
the provision mentioned in subsection (2) as amended by the
2
empowering provision.
3
(8) In the application of this section to a statutory instrument, a
4
reference to the enactment of the instrument is a reference to the
5
making of the instrument.
6
7
National Credit Code Schedule 1
Miscellaneous provisions relating to interpretation Part 14
Distance, time and age Division 5
Section 218
National Consumer Credit Protection Bill 2009 No. , 2009 481
Division 5--Distance, time and age
1
218 Matters relating to distance, time and age
2
(1) In the measurement of distance for the purposes of this Code, the
3
distance is to be measured along the shortest road ordinarily used
4
for travelling.
5
(2) If a period beginning on a given day, act or event is provided or
6
allowed for a purpose by this Code, the period is to be calculated
7
by excluding the day, or the day of the act or event, and:
8
(a) if the period is expressed to be a specified number of clear
9
days or at least a specified number of days--by excluding the
10
day on which the purpose is to be fulfilled; and
11
(b) in any other case--by including the day on which the
12
purpose is to be fulfilled.
13
(3) If the last day of a period provided or allowed by this Code for
14
doing anything is not a business day in the place in which the thing
15
is to be or may be done, the thing may be done on the next business
16
day in the place.
17
(4) If the last day of a period provided or allowed by this Code for the
18
filing or registration of a document is a day on which the office is
19
closed where the filing or registration is to be or may be done, the
20
document may be filed or registered at the office on the next day
21
that the office is open.
22
(5) If no time is provided or allowed for doing anything, the thing is to
23
be done as soon as possible, and as often as the prescribed occasion
24
happens.
25
(6) If, in this Code, there is a reference to time, the reference is, in
26
relation to the doing of anything in a State or Territory, a reference
27
to the legal time in the State or Territory.
28
(7) For the purposes of this Code, a person attains an age in years at
29
the beginning of the person's birthday for the age.
30