NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 (NO. 134, 2009)

Commonwealth Numbered Acts

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NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 (NO. 134, 2009)

TABLE OF PROVISIONS

CHAPTER 1--Introduction

PART 1-1--INTRODUCTION

1. Short title
2. Commencement
3. The National Credit Code

PART 1-2--DEFINITIONS

Division 1--Introduction

4. Guide to this Part

Division 2--The Dictionary

5. The Dictionary

Division 3--Definitions relating to the meaning of credit activity

6. Meaning of credit activity
7. Meaning of credit service
8. Meaning of credit assistance
9. Meaning of acts as an intermediary
10. Assignees of credit providers, lessors, mortgagees and beneficiaries of a guarantee

Division 4--Other definitions

11. Meaning of approved external dispute resolution scheme
12. When a business is carried on in this jurisdiction
13. Meaning of misleading
14. Meaning of person--generally includes a partnership
15. Meaning of person--generally includes multiple trustees
16. Qualified privilege

PART 1-3--APPLICATION OF THIS ACT AND THE TRANSITIONAL ACT

Division 1--Introduction

17. Guide to this Part

Division 2--Constitutional basis and application of this Act and the Transitional Act

18. Constitutional basis for this Act and the Transitional Act
19. Meaning of referring State
20. Meaning of referred credit matter
21. General application of this Act and the Transitional Act
22. When Acts bind Crown

Division 3--Interaction between the Commonwealth credit legislation and State and Territory laws

23. Concurrent operation intended
24. When Commonwealth credit legislation does not apply
25. Avoiding direct inconsistency between Commonwealth and State and Territory laws
26. Regulations to deal with interaction between laws

CHAPTER 2--Licensing of persons who engage in credit activities

PART 2-1--REQUIREMENT TO BE LICENSED TO ENGAGE IN CREDIT ACTIVITIES

Division 1--Introduction

27. Guide to this Part

Division 2--Engaging in credit activities without a licence

28. Application of this Division
29. Prohibition on engaging in credit activities without a licence

Division 3--Other prohibitions relating to the requirement to be licensed and to credit activities

30. Prohibitions on holding out and advertising etc.
31. Prohibition on conducting business with unlicensed persons
32. Prohibition on charging a fee etc.
33. Prohibition on giving misleading information etc.

PART 2-2--AUSTRALIAN CREDIT LICENCES

Division 1--Introduction

34. Guide to this Part

Division 2--Australian credit licences

35. Australian credit licences

Division 3--How to get an Australian credit licence

36. Applying for a licence
37. When a licence may be granted--applicants other than ADIs
38. When a licence may be granted--ADIs
39. Regulations may prescribe streamlined process for other applicants
40. Licences must not be granted to certain applicants
41. Applicant must be given hearing before refusal of licence
42. Notice of grant or refusal of licence and date of effect
43. Australian credit licence numbers
44. Basis on which licence is granted

Division 4--Conditions on an Australian credit licence

45. The conditions on the licence
46. Licence conditions--special procedures for APRA-regulated bodies

Division 5--Obligations of licensees

47. General conduct obligations of licensees
48. Requirements for compensation arrangements
49. Obligation to provide a statement or obtain an audit report if directed by ASIC
50. Obligation to give ASIC information required by the regulations
51. Obligation to provide ASIC with assistance if reasonably requested
52. Obligation to cite Australian credit licence number
53. Obligation to lodge annual compliance certificate

Division 6--When a licence can be suspended, cancelled or varied

Subdivision A--Suspensions and cancellations

54. Suspension or cancellation without hearing
55. Suspension or cancellation after offering a hearing
56. Suspension and cancellation--special procedures for APRA-regulated bodies

Subdivision B--Variations

57. Varying licences

Subdivision C--Miscellaneous rules about suspensions, cancellations and variations

58. Effect of suspension
59. Revocation of suspension
60. Date of effect, notice and publication of variation, cancellation or suspension etc.
61. Statement of reasons
62. ASIC may allow licence to continue in force

PART 2-3--CREDIT REPRESENTATIVES AND OTHER REPRESENTATIVES OF LICENSEES

Division 1--Introduction

63. Guide to this Part

Division 2--Authorisation of credit representatives

64. Licensee may authorise credit representatives
65. Credit representative that is a body corporate may sub-authorise natural persons as credit representatives
66. Credit representative of 2 or more licensees
67. A person cannot be a credit representative in relation to credit activities authorised by a person's licence
68. Variation and revocation of authorisations and sub-authorisations
69. Obligation not to give authorisation that has no effect
70. Obligation to vary or revoke authorisation that ceases to have effect
71. Obligation to notify ASIC etc. about credit representatives
72. Credit representative numbers

Division 3--Information about representatives

73. ASIC may give licensee information about representatives

Division 4--Liability of licensees for representatives

74. Application of this Division
75. Responsibility if representative of only one licensee
76. Representatives of multiple licensees
77. Responsibility extends to loss or damage suffered by client
78. Effect of this Division

PART 2-4--BANNING OR DISQUALIFICATION OF PERSONS FROM ENGAGING IN CREDIT ACTIVITIES

Division 1--Introduction

79. Guide to this Part

Division 2--Banning orders

80. ASIC's power to make a banning order
81. What is a banning order?
82. Effect of banning orders
83. Variation or cancellation of banning orders
84. Date of effect, notice and publication of banning order, variation or cancellation
85. Statement of reasons

Division 3--Disqualification by the court

86. Disqualification by the court

PART 2-5--FINANCIAL RECORDS, TRUST ACCOUNTS AND AUDIT REPORTS

Division 1--Introduction

87. Guide to this Part

Division 2--Financial records of licensees

88. Obligation to keep financial records
89. How financial records are to be kept
90. Language of financial records
91. Location of financial records
92. Information to be shown in financial records
93. Regulations may impose additional requirements
94. Financial records taken to be made with licensee's authority
95. Obligation to retain financial records for 7 years
96. Financial records are prima facie evidence of matters

Division 3--Trust accounts of credit service licensees

97. Application of this Division
98. Obligation for credit service licensees to maintain trust account
99. Obligations in relation to trust account money
100. Obligation to lodge trust account statement and trust account audit report
101. Time of lodgment of trust account statement and trust account audit report

Division 4--Matters relating to audit reports

102. Auditor's right of access to records, information etc.
103. Auditor's fees and expenses
104. Auditor to report on certain matters
105. Qualified privilege for auditor etc.
106. Regulations in relation to audit reports etc.

PART 2-6--EXEMPTIONS AND MODIFICATIONS RELATING TO THIS CHAPTER

Division 1--Introduction

107. Guide to this Part

Division 2--Exemptions and modifications relating to this Chapter

108. Provisions to which this Part applies
109. Exemptions and modifications by ASIC
110. Exemptions and modifications by the regulations

CHAPTER 3--Responsible lending conduct

PART 3-1--LICENSEES THAT PROVIDE CREDIT ASSISTANCE IN RELATION TO CREDIT CONTRACTS

Division 1--Introduction

111. Guide to this Part
112. Application of this Part

Division 2--Credit guide of credit assistance providers

113. Credit guide of credit assistance providers

Division 3--Quote for providing credit assistance etc

114. Quote for providing credit assistance etc.

Division 4--Obligations of credit assistance providers before providing credit assistance for credit contracts

115. Obligations of credit assistance providers before providing credit assistance for credit contracts
116. Preliminary assessment of unsuitability of the credit contract
117. Reasonable inquiries etc. about the consumer
118. When the credit contract must be assessed as unsuitable--entering contract or increasing the credit limit
119. When the credit contract must be assessed as unsuitable--remaining in credit contract
120. Providing the consumer with the preliminary assessment

Division 5--Fees, commissions etc

121. Fees, commissions etc. relating to credit contracts
122. No profiting from fees etc. paid to third parties

Division 6--Prohibition on suggesting, or assisting with, unsuitable credit contracts

123. Prohibition on suggesting or assisting consumers to enter, or increase the credit limit under, unsuitable credit contracts
124. Prohibition on suggesting to consumers to remain in unsuitable credit contracts

PART 3-2--LICENSEES THAT ARE CREDIT PROVIDERS UNDER CREDIT CONTRACTS

Division 1--Introduction

125. Guide to this Part

Division 2--Credit guide of credit providers

126. Credit guide of credit providers
127. Credit guide of credit providers who are assignees

Division 3--Obligations of credit providers before entering credit contracts or increasing credit limits

128. Obligations of credit providers before entering credit contracts or increasing credit limits
129. Assessment of unsuitability of the credit contract
130. Reasonable inquiries etc. about the consumer
131. When credit contract must be assessed as unsuitable
132. Giving the consumer the assessment

Division 4--Prohibition on entering, or increasing the credit limit of, unsuitable credit contracts

133. Prohibition on entering, or increasing the credit limit of, unsuitable credit contracts

PART 3-3--LICENSEES THAT PROVIDE CREDIT ASSISTANCE IN RELATION TO CONSUMER LEASES

Division 1--Introduction

134. Guide to this Part
135. Application of this Part

Division 2--Credit guide of credit assistance providers

136. Credit guide of credit assistance providers

Division 3--Quote for providing credit assistance etc

137. Quote for providing credit assistance etc.

Division 4--Obligations of credit assistance providers before providing credit assistance for consumer leases

138. Obligations of credit assistance providers before providing credit assistance for consumer leases
139. Preliminary assessment of unsuitability of the consumer lease
140. Reasonable inquiries etc. about the consumer
141. When the consumer lease must be assessed as unsuitable--entering lease
142. When the consumer lease must be assessed as unsuitable--remaining in lease
143. Providing the consumer with the preliminary assessment

Division 5--Fees, commissions etc

144. Fees, commissions etc. relating to consumer leases
145. No profiting from fees etc. paid to third parties

Division 6--Prohibition on suggesting, or assisting with, unsuitable consumer leases

146. Prohibition on suggesting, or assisting with, unsuitable consumer leases
147. Prohibition on suggesting to consumers to remain in unsuitable consumer leases

PART 3-4--LICENSEES THAT ARE LESSORS UNDER CONSUMER LEASES

Division 1--Introduction

148. Guide to this Part

Division 2--Credit guide of lessors

149. Credit guide of lessors
150. Credit guide of lessors who are assignees

Division 3--Obligations of lessors before entering consumer leases

151. Obligations of lessors before entering consumer leases
152. Assessment of unsuitability of the consumer lease
153. Reasonable inquiries etc. about the consumer
154. When consumer lease must be assessed as unsuitable
155. Giving the consumer the assessment

Division 4--Prohibition on entering unsuitable consumer leases

156. Prohibition on entering unsuitable consumer leases

PART 3-5--CREDIT REPRESENTATIVES

Division 1--Introduction

157. Guide to this Part

Division 2--Credit guide of credit representatives

158. Credit guide of credit representatives

PART 3-6--DEBT COLLECTORS

Division 1--Introduction

159. Guide to this Part

Division 2--Credit guide of debt collectors

160. Credit guide of debt collectors

PART 3-7--EXEMPTIONS AND MODIFICATIONS RELATING TO THIS CHAPTER

Division 1--Introduction

161. Guide to this Part

Division 2--Exemptions and modifications relating to this Chapter

162. Provisions to which this Part applies
163. Exemptions and modifications by ASIC
164. Exemptions and modifications by the regulations

CHAPTER 4--Remedies

PART 4-1--CIVIL PENALTY PROVISIONS

Division 1--Introduction

165. Guide to this Part

Division 2--Declarations and pecuniary penalty orders for contraventions of civil penalty provisions

166. Declaration of contravention of civil penalty provision
167. Court may order person to pay pecuniary penalty for contravening civil penalty provision

Division 3--General provisions relating to civil penalty provisions

168. Contravening a civil penalty provision is not an offence
169. Involvement in contravention treated in same way as actual contravention
170. Civil evidence and procedure rules for proceedings relating to civil penalty provisions
171. Criminal proceedings before civil proceedings
172. Criminal proceedings during civil proceedings
173. Criminal proceedings after civil proceedings
174. Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings
175. Civil double jeopardy

PART 4-2--POWER OF THE COURT TO GRANT REMEDIES

Division 1--Introduction

176. Guide to this Part

Division 2--Power of the court to grant remedies

177. Injunctions
178. Compensation orders
179. Other orders to compensate loss or damage
180. Orders in relation to unlawful credit activities
181. Preference must be given to compensate consumers
182. Adverse publicity orders
183. Relief from liability for contravention of civil penalty provision
184. Multiple remedies may be granted

PART 4-3--JURISDICTION AND PROCEDURE OF COURTS

Division 1--Introduction

185. Guide to this Part

Division 2--Civil proceedings

Subdivision A--Application of this Division

186. Application of this Division

Subdivision B--Conferral of civil jurisdiction

187. Civil jurisdiction of courts
188. Jurisdiction--decisions to prosecute and related criminal justice process decisions made by Commonwealth officers
189. Cross-jurisdictional appeals
190. Courts to act in aid of each other

Subdivision C--Transfers between courts

191. Transfers--application of Subdivision
192. Transfers--exercise of transfer power
193. Transfers--criteria for transfer
194. Transfers--how initiated
195. Transfers--documents and procedure
196. Transfers--conduct of proceedings
197. Transfers--entitlement to practise as a lawyer
198. Transfers--limitation on appeals

Subdivision D--Other matters

199. Plaintiffs may choose small claims procedure
200. Costs only if proceedings brought vexatiously etc.
201. Civil proceedings not to be stayed
202. Standard of proof in civil proceedings

Division 3--Criminal proceedings

Subdivision A--Application of this Division

203. Application of this Division

Subdivision B--Conferral of criminal jurisdiction

204. Criminal jurisdiction of courts
205. Criminal proceedings--laws to be applied
206. Criminal proceedings--how taken
207. Certain persons to assist in prosecutions
208. Privilege against self-incrimination not available to bodies corporate in criminal proceedings

Division 4--Proceedings generally

209. ASIC's power to intervene in proceedings
210. Evidence of contravention
211. Power of court to punish for contempt of court

CHAPTER 5--Administration

PART 5-1--REGISTERS RELATING TO CREDIT ACTIVITIES

Division 1--Introduction

212. Guide to this Part

Division 2--Registers relating to credit activities

213. Credit registers
214. Inspection and public availability of credit registers

PART 5-2--DOCUMENTS LODGED WITH ASIC OR REQUIRED BY THIS ACT

Division 1--Introduction

215. Guide to this Part

Division 2--Lodgment of documents with ASIC

216. When documents are lodged with ASIC
217. Approved forms for documents to be lodged with ASIC
218. ASIC may refuse to receive document etc.

Division 3--ASIC's register of documents

219. Register of documents lodged with ASIC
220. ASIC may require person to give information for document registers
221. Written document setting out information from document registers is prima facie evidence of matters

Division 4--Other provisions relating to documents lodged with ASIC or required under this Act

222. Certified copy or extract of document lodged with ASIC is admissible in evidence
223. ASIC may destroy or dispose of certain documents
224. Court may order lodgment of document etc.
225. Offences relating to documents lodged with ASIC etc.

PART 5-3--CONCEALMENT OR FALSIFICATION OF CREDIT BOOKS

Division 1--Introduction

226. Guide to this Part

Division 2--Prohibitions relating to the concealment or falsification of credit books

227. Concealing etc. of credit books
228. Falsification of credit books
229. Precautions against falsification of credit books

PART 5-4--FEES IMPOSED BY THE NATIONAL CONSUMER CREDIT PROTECTION

Division 1--Introduction

230. Guide to this Part

Division 2--Fees imposed by the National Consumer Credit Protection

231. Fees are payable to the Commonwealth
232. Lodgment of document without payment of fee
233. Doing act without payment of fee
234. Effect of sections 232 and 233
235. Waiver and refund of fees
236. Debts due to the Commonwealth
237. Payment of fee does not give right to inspect or search

PART 5-5--OTHER ADMINISTRATIVE MATTERS

Division 1--Introduction

238. Guide to this Part

Division 2--Other administrative matters

239. ASIC has general administration of this Act
240. Obstructing or hindering ASIC etc.
241. Approved codes of conduct
242. ASIC may arrange for use of computer programs to make decisions
243. Qualified privilege for information given to ASIC
244. ASIC certificate is prima facie evidence of matters
245. Operator of approved external dispute resolution scheme may give information to ASIC

CHAPTER 6--Compliance and enforcement

PART 6-1--INVESTIGATIONS

Division 1--Introduction

246. Guide to this Part

Division 2--Investigations

247. General powers of investigation
248. Minister may direct investigations
249. Interim report on investigation
250. Final report on investigation
251. Distribution of report

PART 6-2--EXAMINATION OF PERSONS

Division 1--Introduction

252. Guide to this Part

Division 2--Examination of persons

253. Notice requiring appearance for examination
254. Proceedings at examination
255. Requirements made of examinee
256. Examination to take place in private
257. Examinee's lawyer may attend
258. Record of examination
259. Giving to other persons copies of record
260. Copies given subject to conditions
261. Record to accompany report

PART 6-3--INSPECTION OF BOOKS AND AUDIT INFORMATION-GATHERING POWERS

Division 1--Introduction

262. Guide to this Part

Division 2--Inspection of books and audit information-gathering powers

263. When certain powers may be exercised
264. ASIC may inspect books without charge
265. Notice to auditors concerning information and books
266. Notice to produce books about credit activities
267. Notice to produce documents in person's possession
268. ASIC may authorise persons to require production of books, giving of information etc.
269. Application for warrant to seize books not produced
270. Grant of warrant
271. Powers if books produced or seized
272. Powers if books not produced

PART 6-4--PROCEEDINGS AFTER AN INVESTIGATION

Division 1--Introduction

273. Guide to this Part

Division 2--Proceedings after an investigation

274. ASIC may prosecute
275. ASIC may bring civil proceedings

PART 6-5--HEARINGS

Division 1--Introduction

276. Guide to this Part

Division 2--Hearings

277. Power to hold hearings
278. General discretion to hold hearing in public or private
279. Request by person appearing at hearing that it take place in public
280. Certain hearings to take place in private
281. ASIC may restrict publication of certain material
282. Who may be present when hearing takes place in private
283. Involvement of person entitled to appear at hearing
284. Power to summon witnesses and take evidence
285. Proceedings at hearings
286. ASIC to take account of evidence and submissions
287. Reference to court of question of law arising at hearing
288. Protection of ASIC members etc.

PART 6-6--OFFENCES

Division 1--Introduction

289. Guide to this Part

Division 2--Offences

290. Contraventions of requirements made under this Chapter
291. False information
292. Obstructing person executing a warrant under this Chapter
293. Disrupting hearings
294. Concealing books relevant to investigation
295. Self-incrimination
296. Legal professional privilege
297. Powers of court relating to contraventions of this Chapter

PART 6-7--ASIC'S POWERS IN RELATION TO CONTRAVENTIONS OF THIS CHAPTER

Division 1--Introduction

298. Guide to this Part

Division 2--ASIC's powers in relation to contraventions of this Chapter

299. Application of this Part
300. Orders by ASIC relating to credit contracts, mortgages, guarantees or consumer leases
301. Orders under this Part

PART 6-8--EVIDENTIARY USE OF CERTAIN MATERIAL

Division 1--Introduction

302. Guide to this Part

Division 2--Evidentiary use of certain material

303. Statements made at an examination: proceedings against examinee
304. Statements made at an examination: other proceedings
305. Weight of evidence admitted under section 304
306. Objection to admission of statements made at examination
307. Copies of, or extracts from, certain books
308. Report under Part 6-1
309. Exceptions to admissibility of report
310. Material otherwise admissible

PART 6-9--MISCELLANEOUS PROVISIONS RELATING TO COMPLIANCE AND ENFORCEMENT

Division 1--Introduction

311. Guide to this Part

Division 2--Miscellaneous provisions relating to compliance and enforcement

312. Requirement made of a body corporate
313. Evidence of authority
314. Giving documents to natural persons
315. Place and time for production of books
316. Application of Crimes Act and Evidence Act
317. Allowances and expenses
318. Expenses of investigation under Part 6-1
319. Recovery of expenses of investigation
320. Compliance with this Chapter
321. Effect of this Chapter
322. Enforcement of undertakings

CHAPTER 7--Miscellaneous

PART 7-1--MISCELLANEOUS

Division 1--Introduction

323. Guide to this Part

Division 2--Liability of persons for conduct of their agents etc

324. Liability for bodies corporate for conduct of their agents, employees etc.
325. Liability of persons (other than bodies corporate) for the conduct of their agents, employees etc.
326. Regulations for the purposes of this Division

Division 3--Review of ASIC's decisions

327. Review by Administrative Appeals Tribunal of decisions by ASIC under this Act
328. Notice of reviewable decision and review rights

Division 4--Regulations

329. Regulations
330. Regulations--where proceedings may be brought
331. Regulations--infringement notices

Division 5--Other miscellaneous provisions

332. Civil penalty provisions contravened or offences committed partly in and partly out of this jurisdiction
333. Contravention of Act does not generally affect validity of transactions etc.
334. Contracting out etc.
335. Indemnities
336. Acquisition of property
337. Minister may delegate prescribed functions and powers under this Act
SCHEDULE 1 National Credit Code

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