Commonwealth Numbered Regulations Commonwealth Numbered Regulations
[1] After regulation 10A
insert
10B The conditions on the registration -- referrals
(1) For subitem 14 (7) of Schedule 2 to the Act, the registration is subject to the conditions set out in this regulation if the registered person engages in a credit activity, on or after 1 October 2010, as a consequence of being a registered person described in subregulation 16 (5).
Note The registered person, or a representative of the registered person, provides the credit activity to a person by contacting the person after a referral by the referrer described in subregulation 16 (5).
Register of referrers
(2) The registered person must keep a register of the referrers described in subregulation 16 (5):
(a) with which the registered person has an agreement of the kind described in paragraph 16 (5) (a); or
(b) who have been made a written offer of the kind described in sub-subparagraph 16 (5) (b) (ii) (B).
(3) The register must include:
(a) the referrer's name and contact details; and
(b) the date and means by which the referrer was advised, in writing, of the way in which the referrer may engage in credit activities under the agreement; and
(c) the day on which the referrer first engaged in the conduct described in subparagraph 16 (5) (c) (ii) under the agreement.
Note The conduct is giving to the licensee, registered person or representative the consumer's name.
(4) The referrer must make the register available to ASIC on request.
Contact after referral
(5) The registered person may only contact the consumer described in subregulation 16 (5) if he or she does so within 10 business days after receiving the referral from the referrer described in that subregulation.
(6) If the registered person contacts the consumer in person, the registered person must begin the discussion with the consumer (after the registered person has identified itself) by statements to the following effect:
(a) 'I am contacting you because we have been provided with your contact details by [name of referrer] . Can you confirm that you agreed with [name of referrer] to have us contact you?';
(b) if a payment of commission or a financial benefit may be given to the referrer -- 'before we continue, I would like to let you know that if you take up any of our products or services, [name of referrer] may receive the following financial benefits [brief description] ';
(c) 'are you happy to continue this discussion?'.
(7) If the registered person contacts the consumer by letter or email, the registered person must include statements to the following effect at the start of the letter or email:
(a) the registered person is contacting the consumer as a result of being provided with their contact details by the referrer (identifying the referrer by name);
(b) the referrer may receive a financial benefit or payment.
[2] Subregulation 14C (1)
omit
paragraph 110 (a) of the Act,
insert
paragraph 42 (a) of Schedule 2 to the Act,
[3] After regulation 14C
insert
14D Persons exempt from requiring registration -- employment agencies
(1) For paragraph 42 (a) of Schedule 2 to the Act, this regulation exempts certain persons engaging in a credit activity from:
(a) items 4 and 6 of Schedule 2 to the Act; and
(b) definitions in the Act, as they apply to references in the provisions mentioned in paragraph (a); and
(c) instruments made for the purposes of any of the provisions mentioned in paragraphs (a) and (b).
Note Item 4 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person is registered or holds a licence authorising the person to engage in the credit activity.
Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person is:
(a) registered and has applied for a licence authorising the person to engage in the credit activity; or
(b) holds a licence authorising the person to engage in the credit activity.
(2) The person is exempted only to the extent that the person is engaging in the specified credit activity.
Note If the person also engages in a credit activity that is not the subject of an exemption under the Act, the person is not exempted in relation to that credit activity.
(3) The person is exempted if the person engages in a credit activity while performing functions, or exercising powers, in the following circumstances:
(a) the person provides a person to a licensee, registered person or a representative of a licensee or registered person; and
(b) that person engages in a credit activity on behalf of the licensee or registered person only as a person described in regulation 16D.
Note Regulation 16D relates to locums and temporary staff.
(4) For paragraph 42 (c) of Schedule 2 to the Act, the provisions of the Act to which Part 5 of Schedule 2 to the Act applies apply in relation to the person as if subitems 4 (4) and 6 (4) of Schedule 2 to the Act were omitted.
[4] After subregulation 16 (3)
insert
(4) A credit activity is exempted if:
(a) a person (the referrer ) engages in a credit activity before 1 October 2010; and
(b) the activity consists only of:
(i) the referrer informing another person (the consumer ) that a licensee or registered person, or a representative of the licensee or registered person, is able to provide a particular credit activity or a class of credit activities; and
(ii) the referrer giving to the licensee, registered person or representative the consumer's name and contact details; and
(iii) the referrer giving to the licensee, registered person or representative a short description of the purpose for which the consumer may want a provision of credit or a consumer lease (if the referrer knows the purpose); and
(c) the referrer is not banned from engaging in the credit activity under:
(i) a law of a State or Territory; or
(ii) Part 2-4 of the National Credit Act; and
(d) at the time the activity is engaged in, the referrer discloses to the consumer:
(i) any benefits, including commission, that the referrer, or an associate of the referrer, may receive in respect of the activity; and
(ii) any benefits, including commission, that the referrer, or an associate of the referrer, may receive that are attributable to the activity; and
(e) the referrer has not required the consumer to pay a fee to any person in relation to the referrer giving to the licensee, registered person or representative the consumer's name; and
(f) the consumer has consented to the referrer giving to the licensee, registered person or representative the consumer's name; and
(g) the referrer engages in the activity as a matter incidental to the carrying on of a business that is not principally making contact with persons for the purpose of giving their names or other details to another person.
(5) A credit activity is exempted if:
(a) a person (the referrer ) engages in a credit activity on or after 1 October 2010 under an agreement with the licensee or registered person or a representative of the licensee or registered person; and
(b) the agreement:
(i) specifies the conduct in which the referrer can engage as conduct to which the exemption applies; and
(ii) is:
(A) in writing only; or
(B) based on an offer made in writing by the licensee, registered person or representative that has been accepted by the referrer; and
(c) the activity consists only of:
(i) the referrer informing another person (the consumer ) that the licensee or registered person, or a representative of the licensee or registered person, is able to provide a particular credit activity or a class of credit activities; and
(ii) the referrer giving to the licensee, registered person or representative the consumer's name within 5 business days after informing the consumer; and
(iii) the referrer giving to the licensee, registered person or representative a short description of the purpose for which the consumer may want a provision of credit or a consumer lease (if the referrer knows the purpose); and
(d) the referrer is not banned from engaging in the credit activity under:
(i) a law of a State or Territory; or
(ii) Part 2-4 of the National Credit Act; and
(e) at the time the activity is engaged in, the referrer discloses to the consumer:
(i) any benefits, including commission, that the referrer, or an associate of the referrer, may receive in respect of the activity; and
(ii) any benefits, including commission, that the referrer, or an associate of the referrer, may receive that are attributable to the activity; and
(f) the referrer has not required the consumer to pay a fee to any person in relation to the referrer giving to the licensee, registered person or representative the consumer's name; and
(g) the consumer has consented to the referrer giving to the licensee, registered person or representative the consumer's name; and
(h) the referrer engages in the activity as a matter incidental to the carrying on of a business that is not principally making contact with persons for the purpose of giving their names or other details to another person; and
(i) the referrer does not conduct a business as part of which the referrer contacts persons face-to-face from non-standard business premises.
[5] Part 4, Division 2, after Subdivision 2.1
insert
Subdivision 2.2 Modifications -- locums and temporary staff
16D Application of Subdivision
This Subdivision is made for paragraph 42 (c) of Schedule 2 to the Act and applies to a person who:
(a) is engaged to replace an employee of a registered person who is absent from work in that capacity and reasonably expected to return to work; and
(b) performs substantially the same duties as the employee; and
(c) is subject to the same, or substantially the same, control and direction as an employee when the person is engaging in credit activities.
16E References to employee
The provisions of the Act to which Part 5 of Schedule 2 to the Act applies apply as if each provision that refers to an employee of a registered person were modified by referring to:
(a) an employee; and
(b) a person described in regulation 16D.
[6] Subregulation 35 (2), second occurring
renumber as subregulation (3)