Chapter 1 Preliminary
1 Name of Regulations [see Note 1]
These Regulations are the
National Consumer Credit Protection
Regulations 2010.
2 Commencement
These Regulations
commence on 1 July 2010.
3 Definitions
(1) In these Regulations:
Act means the National Consumer Credit Protection Act 2009.
annual percentage rate has the same meaning
as in section 27 of the Code.
associate has the meaning given by regulation 4.
Australian ADI has the meaning given by section 9 of the Corporations
Act.
authorised contact means
contact with a consumer by a person in relation to the supply of goods or
services by the person to the consumer, if the contact is made:
(a) no later than 3 months after the consumer
provided his or her contact details:
(i) to the
person; and
(ii) for the
purpose of being contacted about the supply of the goods or services; or
(b) by posting to, or
leaving at, a residential address written promotional material about goods or
services; or
(c) in relation to the
possible return of goods supplied to the consumer or the possible provision of
replacement goods to the consumer.
carried over instrument has the meaning given by subsection 4 (1) of the
Transitional Act.
Code means the
National Credit Code.
Corporations Act
means the Corporations Act 2001.
credit card means:
(a) a card of a kind commonly known as a credit
card; or
(b) a card of a kind that persons carrying on
business commonly issue to their customers, or prospective customers, for use
in obtaining goods or services from those persons on credit; or
(c) anything else that may be used as a card
mentioned in paragraph (a) or (b).
credit card contract means a continuing
credit contract (as defined in section 204 of the Code) under which credit is
ordinarily obtained only by the use of a credit card.
default rate has the same meaning as in
section 27 of the Code.
exempt public authority means a body corporate that is incorporated within
Australia or an external Territory and is:
(a) a public
authority; or
(b) an instrumentality
or agency of the Crown in right of the Commonwealth, in right of a State or in
right of a Territory.
exempt special purpose funding entity means a
special purpose funding entity that is engaging in a credit activity and is
exempt, under regulation 23B or 23C, from the requirement to hold a licence.
financial counselling
association has the same meaning as in
ASIC Class Order [CO 03/1063].
financial counselling
service means a counselling and
advocacy service provided predominantly for the purpose of assisting
individuals who are in financial difficulty to resolve their problems.
foreign company means either of the following:
(a) a body corporate
that is incorporated in an external Territory, or outside Australia and the
external Territories, and is not:
(i) a
corporation sole; or
(ii) an
exempt public authority;
(b) an unincorporated
body that:
(i) is
formed in an external Territory or outside Australia and the external
Territories; and
(ii) under
the law of its place of formation, may sue or be sued, or may hold property in
the name of its secretary or of an officer of the body duly appointed for that
purpose; and
(iii) does not
have its head office or principal place of business in Australia.
fundraising special purpose entity has the
meaning given by section 5 of the Act as modified by item 3.2 of Schedule 3.
inappropriate person means:
(a) a person in relation to whom:
(i) a prescribed State or Territory
order is in force; or
(ii) a banning or disqualification
order under Division 8 of Part 7.6 of the Corporations Act 2001 is in
force; or
(b) a person who is banned from engaging in a
credit activity under:
(i) a law of a State or Territory; or
(ii) Part 2-4 of the Act; or
(c) a person who has been convicted of a serious
fraud during the last 10 years; or
(d) a person who is disqualified from managing a
corporation under Part 2D.6 of the Corporations Act 2001; or
(e) a person:
(i) who is registered to engage in
credit activities under Schedule 2 of the Transitional Act; and
(ii) whose registration is suspended
under a provision of item 23 of Schedule 2 to the Transitional Act, other than
under paragraph 23 (1) (a) or (b); or
(f) a person:
(i) who has been registered to engage
in credit activities under Schedule 2 of the Transitional Act; and
(ii) whose registration has been
cancelled under a provision of item 23 of Schedule 2 to the Transitional Act,
other than paragraph 23 (1) (a) or (b); or
(g) a person:
(i) who is the holder of an Australian
credit licence; and
(ii) whose licence is suspended on a
ground mentioned in subsection 54 (1) of the Act, other than a ground
mentioned in paragraph 54 (1) (a) or (b); or
(h) a person:
(i) who has been the holder of an
Australian credit licence; and
(ii) whose licence has been cancelled
on a ground mentioned in subsection 54 (1) of the Act, other than a ground
mentioned in paragraph 54 (1) (a) or (b).
(i) a person:
(i) who is the holder of an Australian
financial services licence; and
(ii) whose licence is suspended on a
ground mentioned in section 915B of the Corporations Act 2001, other
than a ground mentioned in any of the following paragraphs:
(A) paragraph 915B (1) (a)
or (e);
(B) paragraph 915B (2) (a)
or (d);
(C) paragraph 915B (3) (a)
or (d);
(D) paragraph 915B (4) (a)
or (d); or
(j) a person:
(i) who has been the holder of an
Australian financial services licence; and
(ii) whose licence has been cancelled
on a ground mentioned in section 915B of the Corporations Act 2001,
other than a ground mentioned in any of the following paragraphs:
(A) paragraph
915B (1) (a) or (e);
(B) paragraph
915B (2) (a) or (d);
(C) paragraph
915B (3) (a) or (d);
(D) paragraph
915B (4) (a) or (d).
lawyer, for the purpose of regulation 24 has the meaning
given by the modified definition of lawyer set out in
subregulation 24 (10).
linked credit provider, for the purpose of regulation 23A, has the meaning given
by the modified definition of linked credit provider set out in
regulation 25C.
linked credit provider or
lessor, for the purpose of regulation
23, has the meaning given by the modified definition of linked credit
provider set out in regulation 25B.
managed contract — see regulation 26.
mortgage manager — see regulation 26.
non-standard business
premises means business premises that are not physically separate from
premises regularly used by consumers for purposes other than being contacted in
relation to the supply of goods or services.
officer of a body corporate has the meaning given by the definition of officer
of a corporation (as it relates to a body corporate) in section 9 of the
Corporations Act.
product designer — see regulation 26.
public officer, of a body corporate, means a person
appointed under section 252 of the Income Tax Assessment Act 1936 as it relates
to a body corporate.
registered debt agreement
administrator means a person
registered by the Insolvency and Trustee Service Australia as a debt agreement
administrator under Part IX of the Bankruptcy Act 1966.
registered person has the same meaning as in the Transitional Act.
securitisation entity has the meaning given
by section 5 of the Act as modified by item 3.4 of Schedule 3.
services, for the purposes of regulations 23 and 23A, has the
meaning given by the modified definition of services set out in
regulation 25D.
servicing agreement has the meaning given by section 5 of the Act as
modified by item 3.4 of Schedule 3.
substantial holding has the meaning given by the definition of that term (as
it relates to a body corporate) in section 9 of the Corporations Act.
trail commission — see regulation 26.
unlicensed carried over
instrument lender has the meaning
given by modified subsection 5 (1) of the Act as set out in item 2.4 of
Schedule 2.
unsolicited contact includes contact with a
consumer by a person or an associate of the person in relation to the supply of
goods and services by the person to the consumer:
(a) in the following circumstances:
(i) the contact is the first contact
made by the person;
(ii) the contact is made in person from
a non-standard business premises; or
(b) in the following circumstances:
(i) the contact is made by the person
or an associate of the person;
(ii) the contact is not the first
contact made by the person or an associate of the person;
(iii) the first contact was made in
person from a non‑standard business premises; or
(c) in the following circumstances:
(i) the consumer provided the
consumer’s contact details to the person for the sole purpose of being
contacted by the person in relation to the supply of goods or services by the
person to the consumer;
(ii) the contact is not the first
contact made by the person;
(iii) the contact is made on or after
the day 3 months after the consumer provided the contact details;
(iv) the contact is not authorised contact;
or
(d) in the following circumstances:
(i) the consumer did not provide the
consumer’s contact details to the person for the sole purpose of being
contacted by the person in relation to the supply of goods or services by the
person to the consumer;
(ii) the contact is not described in
paragraph (a) or (b);
(iii) the contact is not authorised
contact.
volume bonus arrangement — see
regulation 26.
(2) In these Regulations, a
person is associated with a lessor if:
(a) the person and the
lessor are related bodies corporate for the purposes of the Corporations Act;
or
(b) the person is an
officer, agent or employee of the lessor, or of any such related body
corporate, acting in that capacity; or
(c) the person is a
supplier in respect of whom the lessor is a linked lessor.
(3) In these Regulations, a provision of the Act modified in
accordance with Division 2 of Part 2-4 and Schedule 2 is referred to as modified.
4 Meaning of associate
(1) This regulation has effect
for the purposes of interpreting a reference (the associate reference),
in relation to a person (the primary person), to an associate.
(2) A person is not an
associate of the primary person except as provided in this regulation.
(3) Nothing in this regulation
limits the generality of anything else in it.
(4) If the primary person is
a body corporate, the associate reference includes a reference to:
(a) a director or
secretary of the body; and
(b) a related body
corporate; and
(c) a director or
secretary of a related body corporate.
(5) An associate reference
includes a reference to:
(a) a person in
partnership with whom the primary person engages in a credit activity; and
(b) subject to
subregulation (8), a person who is a partner of the primary person otherwise
than because of the engaging in a credit activity in partnership with the
primary person; and
(c) a trustee of a
trust in relation to which the primary person benefits, or is capable of
benefiting; and
(d) a director of a
body corporate of which the primary person is also a director and that engages
in a credit activity; and
(e) subject to
subregulation (8), a director of a body corporate of which the primary person
is also a director and that does not engage in a credit activity; and
(f) a person in
concert with whom the primary person is acting, or proposes to act, in respect
of the matter to which the associate reference relates; and
(g) a person with whom
the primary person is, or proposes to become, associated, whether formally or
informally, in any other way, in respect of the matter to which the associate
reference relates.
(6) If the primary person has
entered, or proposes to enter, into a transaction, or has done, or proposes to
do, any act or thing, in order to become associated with another person as
mentioned in an applicable provision of this regulation, the associate
reference includes a reference to that other person.
(7) A person is not an
associate of another person by virtue of subregulation (5), or by virtue
of subregulation (6) as it applies in relation to subregulation (5), merely
because one or both of the following occurs:
(a) one gives advice
to the other, or acts on the other’s behalf, in the proper performance of the
functions attaching to a professional capacity or a business relationship;
(b) one, as a client,
gives specific instructions to the other, whose ordinary business includes
engaging in credit activities, to enter into a credit contract on the client’s
behalf in the ordinary course of that business.
(8) For the purposes of
proceedings in relation to a matter mentioned in these Regulations in which it
is alleged that a person (person 1) was an associate of another
person by virtue of paragraph (5) (b) or (e), person 1 is not taken to
have been an associate of the other person in relation to a matter by virtue of
that paragraph unless it is proved that person 1 knew, or ought to have known,
at that time, the material particulars of that matter.
(9) A reference to an
associate, in relation to an entity (other than a body corporate) that:
(a) engages in a
credit activity; and
(b) is constituted by 2
or more persons;
includes a reference to an associate of
any of those persons.
5 Prescribed
orders
For the definition of prescribed State or
Territory order in subsection 5 (1) of the Act, orders made under
an Act specified in the following table are prescribed.
|
Item
|
Act
|
|
New South Wales
|
|
1.1
|
Crimes (Criminal Organisations Control) Act 2009
|
|
Queensland
|
|
3.1
|
Criminal Organisation Act 2009
|
|
South Australia
|
|
5.1
|
Serious and Organised Crime (Control) Act 2008
|
6 Forms
(1) A reference in these
Regulations to a form of a particular number is a reference to the form of that
number in Schedule 1.
(2) The number of a form need
not appear on a document that is required to comply with the form.
(3) A reference to a provision
of the Code, or of these Regulations, to which a form relates need not appear
on a document that is required to comply with the form.
(4) The expression ‘credit
provider’, ‘debtor’, ‘lessor’ or ‘lessee’ in a form may be replaced by the name
of:
(a) the credit
provider, debtor, lessor or lessee; or
(b) another expression
that is explained in the form.
(5) A document that is
required to comply with a form need not contain any matter that is not relevant
to the credit contract, mortgage, guarantee or consumer lease concerned. The
consequential renumbering of items is permissible.
Note Section 208 of the Code makes provision
with respect to forms. The section provides, among other things, that strict
compliance with a form is not necessary and substantial compliance is
sufficient.
Chapter 2 Licensing of persons
who engage in credit activities
Part 2‑1 Australian
credit licences
7 How to get an Australian credit
licence — requirements for a foreign entity to appoint local agent
(1) For paragraph
37 (1) (e) of the Act, a foreign entity that:
(a) is not a
registered foreign company; and
(b) applies for an
Australian credit licence;
must meet the requirements in
subregulations (2) and (3).
(2) The foreign entity must:
(a) have appointed,
as an agent, a person who is:
(i) an
individual or a company; and
(ii) a
resident in this jurisdiction; and
(iii) authorised
to accept, on the foreign entity’s behalf, service of process and notices; and
(b) lodge, with the
application, a memorandum of appointment or a power of attorney that is duly
executed by or on behalf of the foreign entity and states the name and address
of the agent.
(3) If the memorandum of
appointment, or power of attorney, lodged under paragraph (2) (b) was executed
on behalf
of the foreign entity, the foreign entity must also lodge a copy declared in
writing to be a true copy of the document authorising the execution.
(4) In this regulation:
registered foreign
company has the meaning given by
section 9 of the Corporations Act 2001.
7A When
licence may be granted — continuous credit activity
For paragraph 37 (1) (e) of the Act, a
requirement in relation to a person who:
(a) is a credit provider, lessor, mortgagee or
beneficiary of a guarantee in relation to a carried over instrument immediately
before 1 July 2010; and
(b) intends to engage in a credit activity in
relation to the carried over instrument on or after 1 July 2010; and
(c) intends to engage in a credit activity
otherwise than in relation to the carried over instrument on or after
1 July 2010;
is that the person must apply under section 36 of the Act for a
licence to engage in the credit activities mentioned in paragraphs (b) and (c).
8 How to get an Australian credit
licence — streamlined process for particular classes of applicants
(1) For section 39 of the
Act, if an applicant is:
(a) in the class of
applicants mentioned in subregulation (2); and
(b) is applying for a
licence to engage in credit activities of the kind in which the person is authorised
to engage under a law of a State or Territory;
paragraph 37 (1) (b) of the Act applies
in relation to the applicant only to the extent that ASIC must consider whether
it has reason to believe that the applicant is likely to contravene the obligations
that will apply under paragraphs 47 (1) (i) and (j) of the Act if the
licence is granted.
(2) The class of applicants
is persons:
(a) who have applied
for an Australian credit licence; and
(b) who are authorised
to engage in credit activities under a law of a State or Territory; and
(c) who,
under the law of the State or Territory, or under a condition imposed on the
person by a licensing authority under the law of the State or Territory:
(i) are
required to comply with the following requirements:
(A) the
person must comply with the law;
(B) the
person must have sufficient or adequate resources to ensure the person can
comply with the law;
(C) the
person must be responsible for ensuring that all representatives of the person
comply with the law;
(D) the
person must arrange or provide credit that is appropriate for consumers;
(E) the
person must act honestly and fairly in
the person’s dealings with borrowers and lenders;
(F) the
person must ensure that the person and all representatives of the person are
competent to engage in the credit activities the person is authorised to engage
in;
(G) if
the person is acting as an agent on behalf of a consumer, the person must act
in the best interests of the person’s principal; and
(ii) are not
required to be supervised by another person; and
(d) who may be banned
from engaging in credit activities under the law of the State or Territory; and
(e) who have provided
to ASIC a written statement in
the approved form that the person will comply with the person’s obligations
under the Act.
(3) For section 39 of the Act,
paragraph 37 (1) (c) of the Act does not apply in relation to the
class of applicants mentioned in subregulation (4) to the extent that the
applicant is applying for a licence to engage in credit activities of the kind
the person was authorised to engage in under a law of a State or Territory.
(4) The class of applicants
is persons who:
(a) are in the class
of applicants mentioned in subregulation (2); and
(b) are authorised to
engage in credit activities under a law of a State or Territory that:
(i) requires
the person to demonstrate that the person is a fit and proper person (however
described); or
(ii) deems
the person to be ineligible to engage in credit activities if the person is not
a fit and proper person (however described).
(5) For section 39 of the
Act, if an applicant is in the class of applicants mentioned in subregulation
(7) or (8):
(a) section 37 of the
Act does not apply in relation to the applicant; and
(b) if:
(i) the
applicant applies under section 36 of the Act for a licence; and
(ii) the
application includes a statement, in accordance with the requirements of the
approved form, to the effect that the applicant will, if granted the licence,
comply with the applicant’s obligations as a licensee;
ASIC must
grant the applicant a licence.
(6) If ASIC grants the
applicant a licence under subregulation (5), the licence must authorise the
licensee to engage in credit activities that equate, as closely as possible, to
the credit activities in relation to which the application was made.
(7) The class of applicants
is persons who:
(a) are authorised as
a general insurer by APRA under section 12 of the Insurance Act 1973;
and
(b) are included on the
Register of General Insurers and Authorised NOHCs; and
(c) offer lenders
mortgage insurance products; and
(d) engage in credit
activities only:
(i) as an
assignee in relation to providing the mortgage insurance products; or
(ii) as the
credit provider under the doctrine of subrogation in relation to providing the
mortgage insurance products.
(8) The class of applicants is
persons who:
(a) are registered by
APRA under section 21 of the Life Insurance Act 1995; and
(b) engage in credit
activities in relation to the provision of credit only because of the operation
of the terms and conditions of:
(i) a life
policy (within the same meaning as in that Act) that was entered into before 1
July 2010 by the person; or
(ii) a
document issued or given by the person in relation to a life policy (within the
same meaning as in that Act) that was entered into before 1 July 2010 by the
person.
9 The conditions on the licence
(1) For section 45 of
the Act, an Australian credit licence is subject to the conditions set out in
this regulation.
(2) If:
(a) there is a change
in a matter particulars of which are entered in the credit register for
licensees; and
(b) the change is not a
direct consequence of an act by ASIC;
the licensee must lodge particulars of
the change with ASIC, in the approved form, within 10 business days after the
change occurs.
(3) If:
(a) there is a change
in a matter particulars of which are entered in the credit register for credit
representatives; and
(b) the change is not
required to be reported in accordance with section 71 of the Act; and
(c) the change is not
a direct consequence of an act by ASIC;
the licensee must ensure that particulars
of the change are lodged with ASIC in the approved form within 15 business days
after the change occurs.
(4) The licensee must ensure
that each credit representative of the licensee that may give an authorisation
to an individual is aware of the requirements in section 71 of the Act.
(5) The licensee must ensure
that, before the licensee authorises an individual to engage in a credit
activity on its behalf as mentioned in section 64 of the Act, reasonable
inquiries are made to establish:
(a) the individual’s
identity; and
(b) whether the
individual has already been allocated a number by ASIC as a credit
representative.
(6) The licensee must ensure
that, before a body corporate that is a credit representative of the licensee
authorises an individual
to engage in a credit activity on behalf of the licensee as mentioned in
section 65 of the Act, reasonable inquiries are made to establish:
(a) the individual’s
identity; and
(b) whether the
individual has already been allocated a number by ASIC as a credit
representative.
(7) The licensee must ensure
that, if:
(a) ASIC has allocated
a number to a credit representative; and
(b) the licensee, or a
body corporate that has authorised an individual to engage in a credit activity
on behalf of
the licensee as mentioned in section 65 of the Act, lodges a document with ASIC
that refers to the credit representative;
the document refers to the number.
(8) The licensee must provide
evidence of an authorisation of any of its credit representatives:
(a) on request by any
person; and
(b) free of charge; and
(c) as soon as
practicable after receiving the request and, in any event, within 10 business
days after the day on which it received the request.
(9) The licensee must take
reasonable steps to ensure that each of its credit representatives supplies
evidence of its authorisation by the licensee:
(a) on request by any
person; and
(b) free of charge; and
(c) as soon as
practicable after receiving the request and, in any event, within 10 business
days after the day on which the credit representative received the request.
(10) If the licensee becomes
aware of any change in control of the licensee, the licensee must lodge with
ASIC particulars of the change, in the approved form, not later than 10
business days after the change.
(11) For subregulation (10):
(a) a change in
control, in relation to a licensee, includes a transaction, or a series of
transactions in a period of 12 months, that results in a person having
control of the licensee, either alone or together with associates of the
person; and
(b) control, in
relation to a licensee, means:
(i) if the
licensee is a body corporate:
(A) the
capacity to cast, or control the casting of, more than one half of the maximum
number of votes that might be cast at a general meeting of the licensee; or
(B) directly
or indirectly holding more than one half of the issued share capital of the
licensee (not including any part of the issued share capital that carries no
right to participate beyond a specified amount in a distribution of either
profits or capital); or
(ii) the
capacity to control the composition of the licensee’s board or governing body;
or
(iii) the
capacity to determine the outcome of decisions about the licensee’s financial
and operating policies.
(12) For subparagraph
(11) (b) (iii), the following matters must be taken into account in
determining whether a person has the capacity to determine the outcome of
decisions about the licensee’s financial and operating policies:
(a) the practical
influence the person can exert (rather than the rights it can enforce);
(b) any practice or
pattern of behaviour affecting the licensee’s financial or operating
policies (whether or not it involves a breach of an agreement or a breach of
trust).
(13) On the request of any
person, the licensee must make available, within 10 business days, evidence of
its Australian credit licence for inspection by that person.
(14) If:
(a) the licensee is
not a body regulated by APRA; and
(b) an event occurs
that may make a material adverse change to the financial position of the
licensee by comparison with its financial position:
(i) at the
time of the application for the Australian credit licence; or
(ii) as
described in documents lodged with ASIC after the application for the
Australian credit licence;
the licensee must lodge with ASIC in the
approved form a notice setting out particulars of the event as soon as
practicable, and in any case not later than 3 business days, after the licensee
becomes aware of the event.
9AA The
conditions on the licence — special purpose funding entity
(1) For subsection 45 (7) of the Act, the licence
is subject to the conditions set out in this regulation if the licensee is a
party to a servicing agreement with a special purpose funding entity.
(2) The licensee must lodge with ASIC a notice, in an
approved form, stating that the licensee is a party to a servicing agreement
with a special purpose funding entity.
(3) For subregulation
(2):
(a) if the servicing agreement was entered into
before 1 July 2010, the licensee must notify ASIC no later than 30 business
days after 1 July 2010; and
(b) if the servicing agreement was entered into
on or after 1 July 2010, the licensee must lodge with ASIC a notice, in an
approved form and stating that the service agreement was entered into, no later
than 20 business days after the servicing agreement was entered into.
(4) If the licensee ceases to be a party to a servicing
agreement with a special purpose funding entity, the licensee:
(a) must lodge with ASIC a notice, in an
approved form, stating that the licensee has ceased to be a party to the
servicing agreement with the entity; and
(b) must lodge the notice no later than 15
business days after the licensee ceases to be a party.
(5) The licensee:
(a) must lodge with ASIC a notice, in an
approved form, setting out any action by a natural person in a position to
control or influence the special purpose funding entity that has or may have
the effect of directing the licensee to act inconsistently with:
(i) the licensee’s licence conditions;
or
(ii) the credit legislation; and
(b) must lodge the notice no later than 15 business
days after the action occurs.
9AB Conditions
for licensee — referrals
(1) For subsection 45 (7) of the Act, a licensee
who engages in a credit activity, on or after 1 October 2010, as a consequence
of being a licensee described in subregulation 25 (5) is subject to the
conditions set out in this regulation.
Note The licensee, or a representative of
the licensee, provides the credit activity to a person by contacting the person
after a referral by the referrer described in subregulation 25 (5).
Register of referrers
(2) The licensee must keep, or have access to, a
register of the referrers described in subregulation 25 (5):
(a) with which the licensee
has an agreement of the kind described in paragraph 25 (5) (a); or
(b) who have been made a written offer of the
kind described in sub-subparagraph 25 (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 25 (5) (c) (ii)
under the agreement.
Note The conduct
is giving to the licensee, registered person or representative the consumer’s
name.
(4) The licensee must make the register available to
ASIC on request.
Contact after referral
(5) The licensee may only contact the consumer described
in subregulation 25 (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 licensee contacts the consumer in person, the
licensee must begin the discussion with the consumer (after the licensee 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 licensee contacts the consumer by letter or
email, the licensee must include statements to the following effect at the
start of the letter or email:
(a) the licensee 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.
9A Conditions for unlicensed carried over
instrument lender — credit register
(1) For modified section 45 of
the Act, an unlicensed carried over instrument lender is subject to the
conditions set out in this regulation.
(2) If:
(a) there is a change
in a matter, particulars of which are entered in the credit register for
unlicensed carried over instrument lenders; and
(b)
the change is not a direct consequence of an act by ASIC;
the lender must lodge particulars of the
change with ASIC, in the approved form, no later than 10 business days after
the change occurs.
(3) If the lender becomes
aware of any change in control of the lender, the lender must lodge with ASIC
particulars of the change, in the approved form, not later than 10 business
days after the change.
(4) For subregulation (3):
(a) a change in control,
in relation to a lender, includes a transaction, or a series of transactions in
a period of 12 months, that results in a person having control of the lender,
either alone or together with associates of the person; and
(b) control, in relation to a lender, means:
(i) if
the lender is a body corporate:
(A) the
capacity to cast, or control the casting of, more than one half of the maximum
number of votes that might be cast at a general meeting of the lender; or
(B) directly
or indirectly holding more than one half of the issued share capital of the
lender (not including any part of the issued share capital that carries no
right to participate beyond a specified amount in a distribution of either
profits or capital); or
(ii) the
capacity to control the composition of the lender’s board or governing body; or
(iii) the
capacity to determine the outcome of decisions about the lender’s financial
and operating policies.
(5) For subparagraph (4) (b) (iii), the
following matters must be taken into account in determining whether a person
has the capacity to determine the outcome of decisions about the lender’s financial
and operating policies:
(a) the practical
influence the person can exert (rather than the rights it can enforce);
(b) any practice or
pattern of behaviour affecting the lender’s financial
or operating policies (whether or not it involves a breach of an agreement or a
breach of trust).
(6) If:
(a) the lender is not
a body regulated by APRA; and
(b) an event occurs that may make a material
adverse change to the financial position of the lender by comparison with its
financial position:
(i) at the time it became an
unlicensed carried over instrument lender; or
(ii) as described in documents lodged
with ASIC after it became an unlicensed carried over instrument lender;
the lender must lodge with ASIC in the
approved form a notice setting out particulars of the event as soon as
practicable, and in any case not later than 3 business days, after the lender
becomes aware of the event.
10 Obligations of licensees — alternative
dispute resolution systems
(1) For subparagraph 47 (1) (h) (i)
of the Act, ASIC must take the following matters into account when considering
whether to make or approve standards or requirements relating to internal
dispute resolution:
(a) Australian
Standard AS ISO 10002:
(i) known as
Complaints Handling; and
(ii) published
by Standards Australia; and
(iii) as in
force when this regulation commences;
(b) any other matter
ASIC considers relevant.
(2) ASIC may:
(a) vary or revoke a
standard or requirement that it has made in relation to an internal dispute
resolution procedure; and
(b) vary or revoke the
operation of a standard or requirement that it has approved in its application
to an internal dispute resolution procedure.
(3) For
paragraph 47 (1) (i) of the Act, ASIC must take the following matters
into account when considering whether to approve an external dispute resolution
scheme:
(a) the accessibility
of the dispute resolution scheme;
(b) the independence of
the dispute resolution scheme;
(c) the fairness of
the dispute resolution scheme;
(d) the accountability
of the dispute resolution scheme;
(e) the efficiency of
the dispute resolution scheme;
(f) the effectiveness
of the dispute resolution scheme;
(g) any other matter
ASIC considers relevant.
(4) ASIC may:
(a) specify a period
for which an approval of an external dispute resolution scheme is in force; and
(b) make an approval of
an external dispute resolution scheme subject to conditions specified in the
approval, including conditions relating to the conduct of an independent review
of the operation of the scheme; and
(c) vary or revoke:
(i) an
approval of an external dispute resolution scheme; or
(ii) the
specification of a period for which an approval is in force; or
(iii) a
condition to which an approval of an external dispute resolution scheme is
subject.
(5) For
paragraph 110 (a) of the Act, a licensee who engages in credit
activities in the capacity of any of the following:
(a) a trustee
appointed under the will or on the intestacy of a person;
(b) a trustee
appointed under an express trust if:
(i) the
settlor is an individual; and
(ii) the
interest in the trust is not a credit contract;
(c) an
attorney appointed under an enduring power of attorney;
is exempt
from the requirements in paragraph 47 (1) (i) of the Act in relation
to the credit activities if complaints about the credit provided by the
licensee may be made to the Ombudsman of a State or Territory.
11 Obligations of licensees — foreign entity
must continue to have local agent
(1) For paragraph
47 (1) (m) of the Act, a foreign entity that:
(a) is not a foreign
company; and
(b) is a licensee;
must meet the requirements in
subregulation (2).
(2) The
foreign entity must:
(a) at
all times, have an agent who is:
(i) an
individual or a company; and
(ii) resident
in this jurisdiction; and
(iii) authorised
to accept, on the foreign entity’s behalf, service of process and notices; and
(b) notify
ASIC of any change to:
(i) the agent; or
(ii) the
name or address of the agent;
not
later than
1 month after the change; and
(c) make
arrangements that ensure that ASIC may treat a document as being served on the
foreign entity by leaving it at, or by sending
it by post to:
(i) an
address of the agent that has been notified to ASIC; or
(ii) if a
notice or notices of a change or alteration to that address has or have been
given to ASIC — the address shown in the most recent notice.
12 Obligations of licensees — requirements
for compensation arrangements
(1) For paragraph 48 (2) (a)
of the Act, and unless the licensee is an exempt licensee, the arrangements
mentioned in subsection 48 (1) of the Act are subject to the
requirement that the licensee hold professional indemnity insurance cover that
is adequate, having regard to:
(a) the licensee’s
membership of an approved external dispute resolution scheme (or schemes)
mentioned in paragraph 47 (1) (i) of the Act, taking account of
the maximum liability that has, realistically, some potential to arise in
connection with:
(i) any
particular claim against the licensee; and
(ii) all
claims in respect of which the licensee could be found to have liability; and
(b) relevant
considerations in relation to the engaging in a credit activity by the
licensee, including:
(i) the
volume of business involved in the credit activity; and
(ii) the
number and kind of clients; and
(iii) the
kind, or kinds, of credit activities involved; and
(iv) the
number of representatives of the licensee.
(2) For paragraph 48 (3) (c)
of the Act, a matter to which ASIC must have regard, before approving
particular arrangements under paragraph 48 (2) (b) of the Act, is
whether those arrangements would provide coverage that is adequate, having
regard to matters of the kind mentioned in subregulation (1).
(3) In this regulation:
exempt licensee means any of the following:
(a) a company or
institution of any of the following kinds:
(i) a
general insurance company authorised by APRA under section 12 of the Insurance
Act 1973, and included on the Register of General Insurers and Authorised
NOHCs;
(ii) a life
insurance company registered with APRA under section 21 of the Life
Insurance Act 1995;
(iii) an
authorised deposit‑taking institution;
(b) a licensee:
(i) that is
related (within the meaning of section 50 of the Corporations Act) to a company
or institution mentioned in paragraph (a); and
(ii) in
respect of which the company or institution has provided a guarantee that:
(A) ensures
payment of the obligations of the licensee to an extent that is adequate within
the meaning of subregulation (1); and
(B) is
approved in writing by ASIC;
(c) a licensee whose
license:
(i) is
subject to a condition under subsection 45 (6) of the Act that the
licensee is only authorised to engage in credit activities mentioned in item 1,
3, 4 or 5 in the table in subsection 6 (1) of the Act; and
(ii) is not
subject to a condition that the licensee hold professional indemnity insurance;
(d) a licensee who:
(i) has a
licence to provide a credit service within the meaning given by section 7 of
the Act; and
(ii) will
only provide the credit service in relation to:
(A) credit
contracts for which the licensee is the credit provider; or
(B) consumer
leases for which the licensee is the lessor.
Note For paragraph (b), a decision to refuse
to approve a guarantee is a reviewable decision under section 327 of the Act.
13 Obligations of licensees — offence in
relation to failure to cite licence number in documents
(1) For subsection 52 (2)
of the Act, the following kinds of documents are prescribed:
(a) a document that is
required to be created or produced in accordance with Chapter 3 of the Act;
(b) a printed
advertisement that relates to the provision of credit to which the Code would
apply;
(c) a document that is
required to be created, produced, given or published by a provision of the
Code;
(d) a document lodged
with ASIC that relates to the provision of credit to which the Code would
apply.
Note Under subsection 52 (3) of the Act,
a person commits an offence if:
(a) the person is subject to a
requirement to include and identify its Australian credit licence number in a
document prescribed by the regulations; and
(b) the person engages in
conduct; and
(c) the conduct contravenes the
requirement.
(2) For the purposes of
paragraph (1) (b), if a printed advertisement identifies more than 1
licensee, or uses a word or description that covers more than 1 licensee,
subsection 52 (2) of the Act is modified to provide that only 1 of the
licensees must comply with paragraphs 52 (2) (a) and (b) of the Act.
Note Paragraph 110 (c) of the Act provides that the
regulations may provide that Chapter 2 of the Act applies as if specified
provisions were omitted, modified or varied as specified in the regulations.
14 Obligations of licensees — who compliance
certificate must be signed by
For paragraph 53 (3) (b)
of the Act, the following persons are prescribed:
(a) if the body
corporate is not an ADI:
(i) the Chief
Executive Officer of the body corporate; or
(ii) if the
body corporate does not have a Chief Executive Officer — the person who:
(A) is
responsible for managing the affairs of the body corporate; and
(B) has
authority to make decisions in relation to the allocation of resources so that
the body corporate complies with the Act;
(b) if the body
corporate is an ADI:
(i) the Chief
Executive Officer of the body corporate; or
(ii) a person
who satisfies the criteria to be fit and proper to hold a responsible person
position under Prudential Standard APS 520.
Note Prudential Standard APS 520 is in
Schedule 1 to the Banking (prudential standard) determination No. 1 of
2006—Prudential Standard APS 520 Fit and Proper.
15 When a licence can be suspended, cancelled or
varied — grounds to suspend or cancel licence
For paragraph 55 (2) (e)
of the Act, the following are matters that ASIC must have regard to:
(a) a licensee failing
to lodge an annual compliance certificate under section 53 of the Act;
(b) a licensee lodging
an annual compliance certificate that contains information that:
(i) is false
or misleading; or
(ii) can not
reasonably be believed to be true by the person signing the certificate under
subsection 53 (3) of the Act.
Part 2‑2 Authorisation of credit representatives
16 Sub‑authorisation by body corporate
For paragraph 110 (c) of
the Act, paragraph 65 (6) (c) of the Act is modified to include after ‘scheme’
the words ‘and is not an employee or director of the body corporate’.
Note Paragraph 110 (c) of the Act provides
that the regulations may provide that Chapter 2 of the Act applies as if
specified provisions were omitted, modified or varied as specified in the
regulations.
Part 2‑3 Financial records, trust accounts and audit reports
17 Information and matters to be contained in a
trust account audit report
For paragraph 100 (3)
(b) of the Act, the trust account audit report must include a statement about
the following matters:
(a) whether, in the
opinion of the auditor, the licensee’s trust accounts have been kept regularly
and properly maintained;
(b) whether the auditor
received all necessary records, information and explanations from the licensee;
(c) whether, in the
opinion of the auditor, the licensee’s trust accounts provide a true and fair
view of the transactions recorded and the balance at the end of the relevant
period;
(d) any other matter in
relation to the trust accounts which should, in the opinion of the auditor, be
communicated to ASIC.
18 Eligibility of auditors to prepare trust
account audit report
(1) For subsection
100 (4) of the Act, a person is ineligible to prepare a trust account
audit report for a credit service licensee if:
(a) the person does
not meet the requirements of regulation 19; or
(b) the person is not
an authorised audit company (within the meaning given by section 9 of the
Corporations Act); or
(c) the person owes
an amount to, or is owed an amount by:
(i) the
credit service licensee; or
(ii) if the
credit service licensee is a body corporate — a related body corporate of
the credit service licensee; or
(d) a body corporate
in which the person has a substantial holding owes an amount to, or is owed an
amount by:
(i) the
credit service licensee; or
(ii) if the
credit service licensee is a body corporate — a related body corporate of
the credit service licensee; or
(e) if the credit
service licensee is a body corporate — the person is:
(i) an
officer of the body corporate; or
(ii) a
partner or employee of an officer of the body corporate.
(2) For paragraph (1) (c), a
debt owed by an individual to a body corporate is to be disregarded if:
(a) the body
corporate is:
(i) an
Australian ADI; or
(ii) a body
corporate registered under the Life Insurance Act 1995; and
(b) the debt arose
because of a loan that the body corporate made to the individual in the
ordinary course of the body corporate’s ordinary business; and
(c) the individual
used the amount of the loan to pay the whole or part of the purchase price of
premises that the individual uses as his or her principal place of residence.
(3) For subparagraphs (1) (e)
(i) and (ii), a person is taken to be an officer of a body corporate if:
(a) the person is an
officer of a related body corporate; or
(b) unless ASIC directs
that this paragraph does not apply in relation to the person — the person
has, at any time within the immediately preceding period of 12 months, been an
officer or promoter of the body corporate or of a related body corporate.
(4) For this regulation, a
person is not taken to be an officer of a body corporate by reason only:
(a) of being or having
been the liquidator of the body corporate or of a related body corporate; or
(b) of having been
appointed as an auditor of the body corporate or of a related body corporate;
or
(c) of being a public
officer of the body corporate for any purpose relating to taxation; or
(d) of being or having
been authorised to accept service of process or any notices on behalf of the
body corporate or a related body corporate.
19 Auditors who prepare audit reports
(1) For paragraph
106 (c) of the Act, this regulation:
(a) sets out who is
eligible to be an auditor for the purpose of preparing the audit reports
mentioned in paragraph 102 (1) (b) of
the Act; and
(b) sets out when a
person may be appointed as an auditor.
Note Paragraph 106 (c) of the Act
provides that the regulations may make provision in relation to the auditors
that prepare the audit reports mentioned in paragraphs 106 (a) and (b) of
the Act.
Eligibility to be an auditor
(2) A person is eligible to
be appointed as an auditor for the purpose mentioned in paragraph (1) (a) only
if:
(a) the person is a
registered company auditor or an authorised audit company (within the meaning given by section 9 of the Corporations
Act); and
(b) the person:
(i) is not
an employee, director or partner:
(A) of
the licensee; or
(B) of
any other person carrying on a business of engaging in credit activities; and
(ii) is not
carrying on a business of engaging in credit activities.
Appointment
as an auditor
(3) A
licensee must:
(a) within 3 months of
being required to open a trust account, appoint
a person who meets the requirements of subregulation (2) to be the licensee’s
auditor; and
(b) lodge with ASIC a
notice, in the approved form, of the appointment within 14 days after
appointing the person.
(4) If a person is appointed as
a licensee’s auditor, the appointment is continuous until the first of the
following events occurs:
(a) the licensee is no
longer required to keep a trust account;
(b) the auditor dies or
otherwise ceases to engage in the business of being an auditor;
(c) the auditor is
unable to perform his or her duties as the licensee’s auditor;
(d) ASIC approves the
auditor’s resignation;
(e) ASIC approves a
request by the licensee to replace the person as an auditor.
(5) If a person ceases to be
a licensee’s auditor under paragraph (4) (b), (c), (d) or (e), the
licensee must:
(a) within 28 days of
the cessation of the appointment, appoint another person who meets the
requirements of subregulation (2) to be the licensee’s auditor; and
(b) lodge with
ASIC a notice, in the approved form, of the
appointment within 14 days after appointing the person.
Part 2-4 Exemptions and modifications
Division 1 Exemptions
Subdivision 1.1 Persons exempt
from being licensed
20 Persons exempt from requiring a licence —
general [see Note
2]
(1) For paragraph
110 (a) of the Act, this regulation exempts certain persons
engaging in a credit activity from:
(a) section 29 of 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 Section 29 of the Act provides that a
person must not engage in a credit activity if the person does not hold 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) A person is exempted if:
(a) the person engages in a credit activity
while:
(i) performing functions, or
exercising powers, as a trustee within the meaning of the Bankruptcy
Act 1966; or
(ii) performing functions, or
exercising powers, incidental to the person’s appointment as a trustee; or
(b) the person engages in a credit activity
while:
(i) performing functions, or
exercising powers, as a controller within the meaning of the Corporations
Act 2001, provisional liquidator, or liquidator (whether appointed by a
court or otherwise); or
(ii) performing functions, or
exercising powers, incidental to the person’s appointment as a controller,
provisional liquidator or liquidator; or
(c) the person engages in a credit activity
while performing functions, or exercising powers, as a person appointed by a
court to engage in a credit activity; or
(d) the person engages in a credit activity while
performing functions, or exercising powers, as the Public Trustee acting under
a law of a State or Territory; or
(e) the person engages in a credit activity
while:
(i) performing functions, or
exercising powers, as an administrator within the meaning of the Corporations
Act 2001; or
(ii) performing functions, or
exercising powers, incidental to the person’s appointment as an administrator;
or
(f) the person engages in a credit activity
while:
(i) performing functions, or
exercising powers, as a controlling trustee within the meaning of section 187
of the Bankruptcy Act 1966; or
(ii) performing functions, or
exercising powers, incidental to the person’s appointment as a controlling
trustee; or
(fa) the person engages in a credit activity
while:
(i) performing functions, or
exercising powers, as a trustee of a personal insolvency agreement under Part X
of the Bankruptcy Act 1966; or
(ii) performing functions, or
exercising powers, incidental to the person’s appointment as a trustee of a
personal insolvency agreement; or
(g) the person engages in a credit activity
while:
(i) performing functions, or
exercising powers, as a trustee or person administering a compromise or
arrangement between a body corporate and another person or person; or
(ii) performing functions, or
exercising powers, incidental to the person’s appointment as a trustee or
person of that kind; or
(h) the person engages in a credit activity while
performing functions, or exercising powers, as a personal representative of a
deceased person other than a deceased licensee; or
(i) subject to subregulation (4), the person
engages in a credit activity while performing functions, or exercising powers,
as a personal representative of a deceased licensee; or
(j) the person engages in a credit activity
while performing functions, or exercising powers, as a registered debt
agreement administrator preparing and administering a debt agreement under Part
IX of the Bankruptcy Act 1966; or
(k) the person engages in a credit activity
while:
(i) performing functions, or
exercising powers, as a registered trustee under Part X of the Bankruptcy
Act 1966 in the ordinary course of
activities as a registered trustee that is reasonably regarded as a necessary
part of those activities; or
(ii) performing functions, or
exercising powers, incidental to the person’s appointment as a registered
trustee; or
(l) the person engages in a credit activity
while:
(i) performing functions, or
exercising powers, as a registered liquidator within the meaning of the Corporations
Act 2001 in the ordinary course of activities as
a registered liquidator that is reasonably regarded as a necessary part of
those activities; or
(ii) performing functions, or
exercising powers, incidental to the person’s appointment as a registered
liquidator.
(4) Paragraph (3) (i)
only applies until the first of the following events occurs:
(a) the end of 6
months after the death of the licensee;
(b) the removal or
discharge of the personal representative;
(c) the final
distribution of the licensee’s estate.
(5) A person is exempted if:
(a) the person (the financial
counselling agency) engages in the credit activity as part of a
financial counselling service; and
(b) no remuneration
(whether by way of commission or otherwise) is payable to, or on behalf of, the
financial counselling agency by any person in relation to any action by, or on
behalf of, the client arising from:
(i) engaging
in the credit activity; or
(ii) any
other aspect of the provision of the financial counselling service; and
(c) no remuneration
(whether by way of commission or otherwise) is payable to, or on behalf of, a
representative of the financial counselling agency by any person in relation to
any action by, or on behalf of, the client arising from:
(i) engaging
in the credit activity; or
(ii) any
other aspect of the provision of the financial counselling service; and
(d) no remuneration
(whether by way of commission or otherwise) is payable to, or on behalf of, an
associate of the financial counselling agency by any person in relation to any
action by, or on behalf of, the client arising from:
(i) engaging
in the credit activity; or
(ii) any
other aspect of the provision of the financial counselling service; and
(e) no fees or charges
(however described) are payable by or on behalf of the client in relation to
the credit activity or any other aspect of the financial counselling service;
and
(f) the financial
counselling agency:
(i) does not
engage in a credit activity that is not covered by paragraphs (a) to (e); and
(ii) takes
all reasonable steps to ensure that none of its representatives engages in a
credit activity that is not covered by paragraphs (a) to (e); and
(g) the financial
counselling agency takes all reasonable steps to ensure that each person who
engages in credit activities on its behalf:
(i) is a
member of, or is eligible to be a member of, a financial counselling
association; and
(ii) has
undertaken appropriate training to ensure that the person has adequate skills
and knowledge to engage satisfactorily in the credit activity and any other
aspect of the provision of the financial counselling service.
(6) A person is exempted if:
(a) the person:
(i) is a
related body corporate of a licensee; and
(ii) is
engaging in credit activities only on behalf of the licensee; and
(iii) is engaging
in credit activities only because its employees and directors are engaging in
credit activities on behalf of the licensee; and
(b) the credit
activities in which the person engages are not those mentioned in:
(i) paragraph
(a) or (b) of item 1 of the table in subsection 6 (1) of the Act; or
(ii) paragraph
(a) or (b) of item 3 of the table in subsection 6 (1) of the Act.
(7) A person is exempted if
the person is a public body or authority, or a local government body or
authority, constituted under an Act of the Commonwealth or a State or
Territory.
(8) Subject to subregulation
(9), if a person is authorised to engage in particular credit activities by:
(a) an Act of the
Commonwealth or a State or Territory (other than the Act, the Transitional Act
or an Act mentioned in subregulation (10)); or
(b) a licence or
registration issued or granted under an Act of the Commonwealth or a State or
Territory (other than
the Act, the Transitional Act or an Act mentioned in subregulation (10));
the person is exempted to the extent that
the person is engaging in the credit activities in which the person is
authorised to engage under that Act, licence or registration.
(10) For paragraphs
(8) (a) and (b), the Acts are:
(a) the Finance
Brokers Control Act 1975 (WA); and
(b) the Credit
(Administration) Act 1984 (WA); and
(c) the Consumer
Credit (Administration) Act 1996 (ACT).
(11) A person is exempted if:
(a) the person is an
organisation that provides services and makes benefits available to members of:
(i) the
organisation; or
(ii) a
program or facility operated or conducted by or within the organisation; and
(b) an incidental
benefit of membership of the organisation, program or facility is that members
are eligible:
(i) to apply
for a particular credit contract or consumer lease offered by a licensee or a
registered person; or
(ii) to
obtain services or benefits under a particular credit contract or consumer
lease offered by a licensee or a registered person; and
(d) the organisation
provides credit services (within the meaning given by section 7 of the Act) in
relation to the particular credit contract or consumer lease to members or
persons likely to become members under a contract or agreement with the
licensee or registered person; and
(e) it would not
ordinarily be the case that:
(i) the
credit to be provided under the credit contract
is provided predominantly for the payment for services, goods or benefits
provided by the organisation or an associate of the organisation; or
(ii) the
goods to be hired under the consumer lease are supplied by the organisation or
an associate of the organisation.
(12) A person is exempted if:
(a) either:
(i) the
person:
(A) is
a charitable body (within the same meaning as in ASIC Class Order [CO
02/184]); and
(B) is
engaging in credit activities by providing a credit service in relation to
credit contracts or consumer leases provided by a licensed or registered credit
provider or lessor or an exempt special purpose funding entity that is a
credit provider or lessor; or
(ii) the
person:
(A) is
not a charitable body (within the same meaning as in ASIC Class Order [CO
02/184]); and
(B) is
engaging in credit activities by providing a credit service in relation to
credit contracts or consumer leases provided by an ADI; and
(b) the credit
contracts or consumer leases are offered as part of a program designed for low
income consumers who are entitled:
(i) to hold
a Health Care Card or Pension Concession Card; or
(ii) to
receive Family Tax Benefit Part A; and
(c) the only
remuneration (whether by way of commission or otherwise) payable to, or on
behalf of, the person by any other person in relation to any action by, or on
behalf of, the client arising from providing the credit service is payments
made by a third party that has no existing relationship with the client.
(13) A person is exempted if:
(a) the person
engages in credit activities mentioned in:
(i) paragraph
(c) of item 1 of the table in subsection 6 (1) of the Act; or
(ii) paragraph
(c) of item 3 of the table in subsection 6 (1) of the Act; or
(iii) paragraph
(b) of item 4 of the table in subsection 6 (1) of the Act; or
(iv) paragraph
(b) of item 5 of the table in subsection 6 (1) of the Act; and
(b) the person engages
in the credit activities while performing the statutory obligations of a credit
provider, lessor, mortgagee or beneficiary of a guarantee under:
(i) the Privacy
Act 1988; or
(ii) the Anti‑Money
Laundering and Counter‑Terrorism Financing Act 2006.
21 Persons exempt from requiring a licence —
debt collectors [see
Note 2]
(1) For paragraph
110 (a) of the Act, this regulation exempts certain persons
engaging in a credit activity from:
(a) section 29 of 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 Section 29 of the Act provides that a
person must not engage in a credit activity if the person does not hold 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) A person is exempted if:
(a) the person
engages in a credit activity mentioned in:
(i) paragraph (c)
of item 1 of the table in subsection 6 (1) of the Act, on behalf of the
credit provider who is a licensee, registered person or exempt special
purpose funding entity; or
(ii) paragraph
(c) of item 3 of the table in subsection 6 (1) of the Act, on behalf of
the lessor who is a licensee, registered person or exempt special
purpose funding entity; or
(iii) paragraph (b)
of item 4 of the table in subsection 6 (1) of the Act, on behalf of the
mortgagee who is a licensee, registered person or exempt special purpose
funding entity; or
(iv) paragraph (b)
of item 5 of the table in subsection 6 (1) of the Act, on behalf of the
other person who is a licensee, registered person or exempt special
purpose funding entity; and
(b) the person only
performs the obligations, or exercises the rights, mentioned in those
paragraphs in relation to:
(i) demanding
and receiving payments from:
(A) borrowers
or guarantors under credit contracts; or
(B) lessees
under consumer leases; and
(ii) enforcing
rights in relation to taking possession of:
(A) property
secured by a mortgage; or
(B) goods
hired under a consumer lease; and
(c) either:
(i) the
person:
(A) holds
a licence or authorisation to engage
in an activity mentioned in paragraph (a) under one or more of the Acts
mentioned in subregulation (5); or
(B) is
authorised to act on behalf of a person who holds a licence or authorisation of
a kind mentioned in sub-subparagraph (A); or
(ii) the
person:
(A) is
not required to hold a licence or authorisation, or be authorised to act on
behalf of a person who holds a licence or authorisation, to engage in an
activity mentioned in paragraph (a) in a State or Territory; and
(B) is
not prohibited from engaging in an activity mentioned in paragraph (a) by an
order of a court or a law of the State or Territory; and
(d) the person is
authorised in writing by a registered person or a licensee to engage in an
activity mentioned in paragraph (a).
(5) For subparagraph
(3) (c) (i), the Acts are the following:
(a) the Commercial
Agents and Private Inquiry Agents Act 2004 (NSW);
(b) the Private
Agents Act 1966 (Vic);
(c) the Property
Agents and Motor Dealers Act 2000 (Qld);
(d) the Debt
Collectors Licensing Act 1964 (WA);
(e) the Security
and Investigation Agents Act 1995 (SA);
(f) the Security
and Investigations Agents Act 2002 (Tas);
(g) the Commercial
and Private Agents Licensing Act (NT).
22 Persons exempt from requiring a licence —
third parties
(1) For
paragraph 110 (a) of the Act, this regulation exempts certain
persons engaging in a credit activity from:
(a) section 29 of 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 Section 29 of the Act provides that a
person must not engage in a credit activity if the person does not hold a
licence authorising the person to engage in the credit activity.
Subsection 29 (3) provides, among
other things, that it is a defence if the person is a credit representative of
a person who holds a licence.
(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) A person is exempted if:
(a) the
person engages in a credit activity by selling, storing or transporting
property of a debtor, lessor, mortgagor or guarantor on behalf of:
(i) a credit
provider who is a licensee, registered person or exempt special purpose
funding entity; or
(ii) a
mortgagee who is a licensee, registered person or exempt special purpose
funding entity; or
(iii) a person
who is the beneficiary of a guarantee who is a licensee, registered
person or exempt special purpose funding entity; or
(iv) a lessor
who is a licensee, registered person or exempt special purpose funding
entity; or
(b) the person engages
in a credit activity by giving or sending to a debtor, lessee, mortgagor or
guarantor, on behalf of:
(i) a credit
provider who is a licensee, registered person or exempt special purpose
funding entity; or
(ii) a
mortgagee who is a licensee, registered person or exempt special purpose
funding entity; or
(iii) a person
who is the beneficiary of a guarantee who is a licensee, registered
person or exempt special purpose funding entity; or
(iv) a lessor
who is a licensee, registered person or exempt special purpose funding
entity;
a notice or
document that the person mentioned in subregulation (i), (ii), (iii) or (iv) is
obliged by law to give or send to the debtor, lessee, mortgagor or guarantor.
23 Persons
exempt from requiring a licence — suppliers of goods or services
(1) For paragraph 110 (a) of the Act, this
regulation exempts certain persons from:
(a) section 29 of the
Act; and
(b) definitions in the
Act as they apply to references in the provision mentioned in paragraph (a);
and
(c) instruments
made for the purpose of any of the provisions mentioned in paragraphs (a) and
(b).
Note Section 29 of the Act provides that a
person must not engage in a credit activity if the person does not hold 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) A person is exempted if:
(a) the person is:
(i) a
supplier of goods or services (the supplier); or
(ii) a
related body corporate of the supplier; or
(iii) engaging
in a credit activity primarily on the premises of the supplier with the
agreement of the supplier; and
(b) the person is:
(i) on
behalf of a relevant credit provider for a credit contract or proposed credit
contract, performing the obligations or exercising the rights of the relevant
credit provider in relation to the contract or proposed contract; or
(ii) on behalf
of a relevant lessor for a consumer lease or proposed consumer lease,
performing the obligations or exercising the rights of the lessor under the
lease or proposed lease; or
(iii) on
behalf of a relevant mortgagee for a mortgage or proposed mortgage, performing
the obligations or exercising the rights of the mortgagee under the mortgage or
proposed mortgage; or
(iv) on
behalf of a relevant beneficiary of a guarantee or proposed guarantee,
performing the obligations or exercising the rights of the beneficiary in
relation to the guarantee or proposed guarantee; or
(v) providing
credit services in relation to a credit contract or consumer lease offered or
provided by a relevant credit provider or relevant lessor; and
(c) if:
(i) the
person is acting on behalf of the credit provider for a credit contract or
proposed credit contract that is a loan contract or engaging in credit services
in relation to a loan contract; and
(ii) the
credit provided under the loan contract or the credit that would be provided if
the loan contract were entered into will wholly or predominantly be used to pay
for goods or services supplied by the supplier; and
(d) if:
(i) the
person is acting on behalf of the credit provider of a credit contract or
proposed credit contract that is a continuing credit contract or engaging in
credit services in relation to a continuing contract; and
(ii) the
credit initially provided under the continuing credit contract or the credit
that would be initially provided under the continuing credit contract if it
were entered into will wholly or predominantly be used to pay for goods or
services supplied by the supplier; and
(e) if:
(i) the
person is acting on behalf of a lessor for a consumer lease or proposed
consumer lease or engaging in credit services in relation to a consumer lease;
and
(ii) payments
made under the lease or payments that would be made under the lease if the
lease were entered into will wholly or predominantly be used to pay the lessor
for the hire of goods supplied by the supplier.
(4) The person is not exempted
if the person supplies goods or services to the consumer as a result of
unsolicited contact with the consumer.
(5) In this regulation:
relevant credit provider for a credit
contract or proposed credit contract, means the credit provider for the
contract or proposed contract if the credit provider is a:
(a) licensee,
registered person or exempt special purpose funding entity; and
(b) linked credit
provider or lessor of the supplier mentioned in subparagraph (3) (a) (i).
relevant lessor
for a consumer lease or proposed consumer lease, means the lessor under the
lease or proposed lease if the lessor is a:
(a) licensee,
registered person or exempt special purpose funding entity; and
(b) linked credit
provider or lessor of the supplier mentioned in subparagraph (3) (a) (i).
relevant mortgagee
for a mortgage or proposed mortgage, means the mortgagee under the mortgage
or proposed mortgage if the mortgagee is a:
(a) licensee,
registered person or exempt special purpose funding entity; and
(b) linked credit
provider or lessor of the supplier mentioned in subparagraph (3) (a) (i).
relevant beneficiary
of a guarantee or proposed guarantee, means the beneficiary of the
guarantee or proposed guarantee if the beneficiary is a:
(a) licensee,
registered person or exempt special purpose funding entity; and
(b) linked credit
provider or lessor of the supplier mentioned in subparagraph (3) (a) (i).
23A Persons exempt from requiring a
licence — suppliers of goods or services with branded or co-branded credit
card
(1) For paragraph 110 (a) of the Act, this
regulation exempts certain persons engaging in a credit activity from:
(a) section 29 of the
Act; and
(b) definitions in the
Act as they apply to references in the provision mentioned in paragraph (a);
and
(c) instruments
made for the purpose of any of the provisions mentioned in paragraphs (a) and
(b).
Note Section 29 of the Act provides that a person must not
engage in a credit activity if the person does not hold 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
in relation to a continuing credit contract under which a credit card is
provided.
Note If the person also engages in a credit activity that is not
the subject of an exemption under the Act or the Transitional Act, the person
is not exempted in relation to that credit activity.
(3) The person is exempted if:
(a) the person is:
(i) a
supplier of goods or services; or
(ii) a
related body corporate of a supplier of goods or services; or
(iii) engaging in a credit activity on
behalf of the supplier of goods or services; and
(b) the
person meets the requirements of subregulation (4) or (5).
(4) For paragraph (3) (b),
the requirements are that the person is performing the obligations or
exercising the rights of a credit provider in relation to a credit contract or
proposed credit contract:
(a) on behalf of the
credit provider who is a linked credit provider of the supplier and is a
licensee, registered person or exempt special purpose funding entity; and
(b) in relation to a continuing credit contract
under which a credit card is:
(i) provided
or would be provided if the contract were entered into; and
(ii) branded
or co-branded with the name of the supplier or a related body corporate of the
supplier or any other words, phrases, initials or logo associated with the
supplier or related body corporate.
(5) For paragraph (3) (b), the requirements are that
the person is providing credit services in relation to a continuing credit card
contract under which a credit card is provided or would be provided if the
contract were entered into and the:
(a) credit provider
for the continuing credit contract is a linked credit provider of the supplier
and is a licensee, registered person or exempt special purpose funding
entity; and
(b) credit card is
branded or co-branded with the name of the supplier or a related body corporate
of the supplier or any other words, phrases, initials or logo associated with
the supplier or related body corporate.
(6) The person is exempted if the person engages in
credit activities on the premises of the supplier.
23B Persons
exempt from requiring a licence — fund raising special purpose entity
(1) For paragraph 110 (a) of the Act, this regulation
applies in relation to a fund raising special purpose entity if:
(a) it engages in a credit activity; and
(b) it is party to a servicing agreement; and
(c) it is a member of an approved external
dispute resolution scheme; and
(d) if it is a body corporate — no director or
secretary of the body corporate is an inappropriate person; and
(e) if it is a trust — no trustee of the trust
is an inappropriate person.
(2) The fund raising special purpose entity is exempted
from:
(a) section 29 of the Act; and
(b) definitions in the Act, as they apply to
references in the provision mentioned in paragraph (a); and
(c) instruments made for the purpose of any of
the provisions mentioned in paragraphs (a) and (b).
Note Section 29 of the Act provides that
a person must not engage in a credit activity if the person does not hold a
licence authorising the person to engage in the credit activity.
(3) The fund raising special purpose entity is exempted
only to the extent that it is engaging in the specified credit activity.
Note 1 If the fund raising special
purpose entity also engages in a credit activity that is not the subject of an
exemption under the Act or the Transitional Act, it is not exempted in relation
to that credit activity.
Note 2 Under subsection 109 (3) of the
Act, ASIC may declare that instruments made under Chapter 2 of the Act apply in
relation to a credit activity (other than an exempt credit activity in relation
to a specified credit contract, mortgage, guarantee or consumer lease), or a
class of persons or credit activities as if specified provisions were omitted,
modified or varied as specified in the declaration.
23C Persons
exempt from requiring a licence — securitisation entity
(1) For paragraph 110 (a) of the Act, this regulation
applies in relation to a securitisation entity if:
(a) it engages in a credit activity; and
(b) it is party to a servicing agreement; and
(c) on and after 1 October 2010, it is a member
of an approved external dispute resolution scheme; and
(d) if it is a body corporate — no director or
secretary of the body corporate is an inappropriate person; and
(e) if it is a trust — no trustee of the trust
is an inappropriate person.
(2) The securitisation entity is exempted from:
(a) section 29 of the Act; and
(b) definitions in the Act, as they apply to
references in the provision mentioned in paragraph (a); and
(c) instruments made for the purpose of any of
the provisions mentioned in paragraphs (a) and (b).
Note Section 29 of the Act provides that
a person must not engage in a credit activity if the person does not hold a
licence authorising the person to engage in the credit activity.
(3) The securitisation entity is exempted only to the
extent that it is engaging in the specified credit activity.
Note 1 If the
securitisation entity also engages in a credit activity that is not the
subject of an exemption under the Act or the Transitional Act, it is not exempted
in relation to that credit activity.
Note 2 Under subsection 109 (3) of the
Act, ASIC may declare that instruments made under Chapter 2 of the Act apply in
relation to a credit activity (other than an exempt credit activity in relation
to a specified credit contract, mortgage, guarantee or consumer lease), or a
class of persons or credit activities as if specified provisions were omitted,
modified or varied as specified in the declaration.
23D Persons
exempt from requiring a licence — employment agencies
(1) For paragraph 110 (a) of the Act, this regulation
exempts certain persons engaging in a credit activity from:
(a) section 29 of 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 Section 29 of the Act provides that
a person must not engage in a credit activity if the person does not hold 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 25H or 25I.
Note Regulation 25H relates to temporary
staff. Regulation 25I relates to locums.
(4) For paragraph 110 (c) of the Act, the
provisions of the Act to which Part 2-6 of Chapter 2 of the Act applies apply
in relation to the person as if subsection 29 (4) of the Act were omitted.
Subdivision 1.2 Activities
exempt from being credit activities under the Act
24 Activities exempt from being credit activities
[see Note 2]
(1) For paragraphs
110 (b) and (c) of the Act, this regulation:
(a) exempts certain
credit activities, or classes of credit activities, from all of the provisions
to which Part 2-6 of the Act applies; and
(b) modifies
specified provisions for the purposes of the exemption mentioned in paragraph
(a).
Note Section 108 of the Act identifies
the provisions to which Part 2‑6 of the Act applies.
(2) Subject
to subregulation (3), the following credit activities are exempted:
(a) the providing of
credit assistance by a lawyer in his or her professional capacity in relation
to matters of law, legal interpretation or the application of the law to any
facts;
(b) the providing of
any credit assistance not mentioned in paragraph (a) by a lawyer in the
ordinary course of activities as a lawyer that is reasonably regarded as a
necessary part of those activities.
(3) For subregulation (2), the
credit activity is exempted only if the lawyer providing the credit assistance
does not hold out or advertise to consumers that he or she is able to provide
credit services.
(4) A credit activity, other
than the provision of credit assistance mentioned in subregulation (2), is
exempted if it is engaged in by a lawyer in the following circumstances:
(a) the lawyer is
acting:
(i) on the
instructions of a client, an associate of the client or a relative of the
client; and
(ii) in his
or her professional capacity; and
(iii) in the
ordinary course of his or her activities as a lawyer;
(b) the credit activity
can reasonably be regarded as a necessary part of those activities;
(c) the lawyer has
not received, and will not receive, from the client or from another person on
behalf of the client a benefit in connection with those activities other than:
(i) the
payment of professional charges in relation to those activities; and
(ii) reimbursement
for expenses incurred or payment on account of expenses to be incurred on
behalf of the client, an associate of the client or a relative of the client;
(d) the lawyer does not
hold out or advertise to consumers that he or she is able to provide credit
services.
(5) A
credit activity is exempted if:
(a) it
is engaged in by a tax agent in the following circumstances:
(i) the tax
agent is registered under Part 2 of the Tax Agent Services Act 2009;
(ii) the tax
agent engages in the credit activity in the ordinary course of activities as a
tax agent; and
(b) it is a credit
activity mentioned in item 2 of the table in subsection 6 (1) of the Act;
and
(c) it does not
involve providing a certificate or assessment (however described) relating to
whether a consumer will be able to meet financial obligations under a credit
contract or consumer lease.
(6) A credit activity is
exempted if:
(a) the credit
activity consists only of a person (person 1) passing on,
publishing, distributing or otherwise disseminating a document that was
provided or approved by another person (person 2); and
(b) person 2:
(i) is not
acting on behalf of person 1; and
(ii) is a
licensee or registered person; and
(c) person 1 is not
otherwise required to hold an Australian credit licence to engage in credit
activities; and
(d) either:
(i) for a
consumer in relation to the credit activity mentioned in paragraph (a):
(A) person
1 advises the consumer that person 2 is a licensee or registered person; and
(B) if
person 2 is a licensee — person 1 gives the consumer the licence number of
person 2; and
(C) if person 2 is an exempt
special purpose funding entity — person 1 gives the consumer the licence
number of the licensee who is party to the servicing agreement with the entity;
or
(ii) a
reasonable person would not consider that person 1 is the licensee or
registered person in relation to credit activities being engaged in by person
2; and
(e) person 2 approved
the content of the document.
(7) A credit activity is
exempted if:
(a) the credit
activity consists only of a person (person 1) allowing another
person (person 2) to use person 1’s business name, logo or trade
mark in relation to:
(i) the
passing on, publishing, distributing or other dissemination of a document; or
(ii) a credit
contract, consumer lease, mortgage or guarantee provided or offered by person
2; or
(iii) a credit
activity engaged in by person 2; and
(b) person 2:
(i) is not
acting on behalf of person 1; and
(ii) is a
licensee or registered person; and
(c) person 1 is not
otherwise required to hold an Australian credit licence to engage in credit
activities; and
(d) either:
(i) for
a consumer in relation to a credit activity mentioned in paragraph (a):
(A) the
person performing the credit activity advises the consumer that person 2 is a
licensee or registered person; and
(B) if
person 2 is a licensee — the person performing the credit activity gives
the consumer the licence number of person 2; and
(C) if person 2 is an exempt
special purpose funding entity — person 1 gives the consumer the licence
number of the licensee who is party to the servicing agreement with the entity;
or
(ii) a
reasonable person would not consider that person 1 is the licensee or
registered person in relation to credit activities being engaged in by person
2.
(8) A
credit activity is exempted if:
(a) the
credit activity consists only of a person (the provider) giving
to another person (the inquirer), in response to a request made
by the inquirer to the provider, information about:
(i) the
cost, or an estimate of the likely cost, of a credit contract or a consumer
lease offered by a licensee or a registered person; or
(ii) terms
and conditions of a credit contract or a consumer lease offered by a licensee
or a registered person; and
(b) the provider could
have complied with the request by giving the inquirer equivalent information
about one or more other credit contracts or consumer leases offered by a
licensee or a registered person; and
(c) the provider did
not give the inquirer that equivalent information.
(9) A credit activity is
exempted if it is engaged in by a clerk or cashier in the ordinary course of
activities as a clerk or cashier.
(10) For paragraph 110 (c)
of the Act, the definition of lawyer in subsection 5 (1) of the
Act is modified for the purposes of
this regulation to provide that lawyer means a duly qualified
legal practitioner and, in relation to a person, means such a practitioner
acting for the person.
Subdivision 1.3 Persons exempt
from matters other than being licensed
24A ADI
or registrable corporation exempt from responsible lending contract obligations
— loan application received before 1 January 2011
(1) For paragraph 164 (a) of the Act, this
regulation exempts certain persons engaging in a credit activity from Parts 3-2
and 3-4 of the Act.
(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.
Applications for credit or consumer lease made before 1 January
2011
(3) A person is exempted if the person:
(a) is an ADI or a registrable corporation under
the Financial Sector ( Collection of Data) Act 2001; and
(b) engages in the credit activity in relation to
an application for credit or a consumer lease which the person received from a
consumer during the period starting on 1 October 2010 and ending on 31 December
2010.
(4) The exemption ceases on 1 April 2011.
Division 2 Modifications
25 Activities exempt from requiring a licence
(1) For paragraph
110 (b) of the Act, this regulation exempts certain credit
activities from:
(a) section 29 of 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 Section 29 of the Act provides that a
person must not engage in a credit activity if the person does not hold a licence
authorising the person to engage in the credit activity.
(2) A credit activity is
exempted if:
(a) the activity
consists only of:
(i) a person
(person 1) informing another person (person 2) 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) person 1
giving person 2 information about how person 2 may contact the licensee,
registered person or representative; and
(b) at the time the
activity is engaged in, person 1 discloses to person 2:
(i) any
benefits, including commission, that person 1, or an associate of person 1, may
receive in respect of the activity; and
(ii) any
benefits, including commission, that person 1, or an associate of person 1, may
receive that are attributable to the activity; and
(c) the disclosure
mentioned in paragraph (b) is provided in the same form as the information
mentioned in paragraph (a).
(2A) A credit activity is exempted if:
(a) the activity consists only of:
(i) a person (person 1)
informing another person (person 2) 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) person 1 giving person 2
information about how person 2 may contact the licensee, registered person or
representative; and
(iii) person 1 making arrangements
enabling person 2
to contact the licensee, registered person or representative by means of a link
that can be accessed from a website provided by or for person 1 or an
associate of person 1; and
(b) at the time the activity is engaged in,
person 1 discloses to person 2:
(i) any benefits, including
commission, that person 1, or an associate of person 1, may receive in respect
of the activity; and
(ii) any benefits, including
commission, that person 1, or an associate of person 1, may receive that are
attributable to the activity; and
(c) the disclosure mentioned in paragraph (b) is
provided in the same form as the information mentioned in subparagraph (a) (ii).
(3) A credit activity is
exempted if it is a credit activity engaged in in respect of the provision of
credit mentioned in:
(a) subsection
6 (9) or (11) of the Code; or
(b) regulation 52, 54,
55, 56, 57, 60, 61 or 63.
(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 a 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 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 and contact
details 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 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.
25A Modifications —
credit representatives
For paragraph 110 (c) of the Act, section 67
of the Act applies as if it were modified by adding the following subsections
after subsection 67 (2):
‘(3) However, if:
(a) a person (person 1)
purports to authorise a registered person (within the meaning of the
Transitional Act) to engage in a credit activity as a credit representative
under subsection 64(1) or 65(1); and
(b) at the time of making the
purported authorisation, person 1 reasonably believes that the registered
person will engage in the credit activity only as a credit representative;
the authorisation has effect when it is given and is taken
not to contravene subsection (1).
(4) If the registered person does not request
the cancellation of the registered person’s registration within 15 business
days after the day on which the authorisation is given, the authorisation
mentioned in subsection (3) ceases to have effect at the end of the 15 business
days.’.
25B Modification — meaning of linked credit
provider or linked lessor for regulation 23
For paragraph 110 (c) of the Act and
regulation 23, the definition of linked credit provider of a
supplier in subsection 127 of the Code applies as if it were modified to
provide that a linked credit provider or a linked lessor of
a supplier means a credit provider or lessor:
(a) with whom the supplier has a contract,
arrangement or understanding relating to:
(i) the
supply to the supplier of goods in which the supplier deals; or
(ii) the
business of supplying goods or services carried on by the supplier; or
(iii) the provision of a credit
contract or consumer lease:
(A) to
persons to whom goods or services are supplied by the supplier; and
(B) for
payment for the goods or services; or
(b) to whom the
supplier, by arrangement with the credit provider or lessor, regularly refers
persons for the purpose of obtaining credit or being provided with a consumer
lease; or
(c) whose:
(i) forms of
contract; or
(ii) forms of
application; or
(iii) offers
for credit; or
(iv) offers to
be provided with a consumer lease;
are, by
arrangement with the credit provider or lessor, made available to persons by
the supplier; or
(d) with whom the supplier has a contract,
arrangement or understanding under which:
(i) contracts;
or
(ii) applications;
or
(iii) offers
for credit; or
(iv) offers to
be provided with a consumer lease;
from the
credit provider or lessor may be signed by persons at the premises of the
supplier.
25C Modification —
meaning of linked credit provider for regulation 23A
For paragraph 110 (c)
of the Act and regulation 23A, the definition of linked credit provider
of a supplier in subsection 127 (1) of the Code applies as if it were
modified to provide that a linked credit provider of a supplier
means a credit provider:
(a) with whom the
supplier has a contract, arrangement or understanding relating to:
(i) the
supply to the supplier of goods in which the supplier deals; or
(ii) the
business of supplying goods or services carried on by the supplier; or
(iii) the provision of credit:
(A) to
persons to whom goods or services are supplied by the supplier; and
(B) for
payment for the goods or services; or
(b) to whom the
supplier, by arrangement with the credit provider, regularly refers persons for
the purpose of obtaining credit; or
(c) whose:
(i) forms of
contract; or
(ii) forms of
application; or
(iii) offers
for credit;
are, by
arrangement with the credit provider, made available to persons by the
supplier; or
(d) with whom the supplier has a contract,
arrangement or understanding under which:
(i) contracts;
or
(ii) applications;
or
(iii) offers
for credit;
from the
credit provider may be signed by persons at the premises of the supplier.
25D Modification — meaning of services for
regulations 23 and 23A
For paragraph 110 (c) of the Act, the definition
of services in subsection 204 (1) of the Code is modified
for the purposes of regulations 23 and 23A to provide that services:
(a) includes:
(i) insurance;
or
(ii) professional
services; or
(iii) a right
to services; and
(b) does not include:
(i) rights
in relation to, and interest in, real property; or
(ii) services
relating to a credit contract or consumer lease that is regulated under the
National Credit Code, or would be regulated under the National Credit Code if
entered into, other than credit services.
25E Modifications — unlicensed carried over
instrument lender
For paragraph 110 (c)
of the Act, the provisions of the Act to which
Part 2-6 of the Act applies, apply in relation to an unlicensed carried over
instrument lender as if the provisions were modified as set out in Schedule 2.
Note Unlicensed
carried over instrument lender is
defined in modified section 5 of the Act as mentioned in item 2.4 of Schedule
2.
25F Modifications —
ADI in relation to carried over instrument
For paragraph 110 (c) of the Act, section 38
of the Act applies to an ADI in relation to a carried over instrument as if it
were modified by substituting the following section:
38 When a license may be granted—ADI in relation to carried over
instrument
(1) ASIC must grant a licence to an ADI in
relation to a carried over instrument if (and must not grant a licence unless)
the requirements mentioned in subsection (2), (3) or (4) are met.
(2) For subsection (1), the requirements are,
if the ADI:
(a) is a credit provider, lessor,
mortgagee or beneficiary of a guarantee in relation to a carried over
instrument (engages in the first credit activity) immediately before 1 July
2010; and
(b) intends to engage in a credit
activity (the second credit activity) other than the first credit activity on
or after 1 July 2010; and
(c) applies under section 36 for a
licence to engage in the first credit activity and the second credit activity;
and
(d) includes a statement in the
application (in accordance with the requirements of the approved form) to the
effect that the ADI will, if granted the licence, comply with its obligations
as a licensee.
(3) For subsection (1), the requirements are,
if the ADI:
(a) is a credit provider, lessor,
mortgagee or beneficiary of a guarantee in relation to a carried over
instrument immediately before 1 July 2010; and
(b) does not intend to engage in a
credit activity other than in relation to a carried over instrument on or after
1 July 2010; and
(c) applies under section 36 for a licence
to engage in a credit activity in relation to a carried over instrument; and
(d) includes a statement in the
application (in accordance with the requirements of the approved form) to the
effect that the ADI will, if granted the licence, comply with its obligations
as a licensee.
(4) For subsection (1), the requirements are,
if the ADI:
(a) was not a credit provider, lessor,
mortgagee or beneficiary of a guarantee in relation to a carried over
instrument immediately before 1 July 2010; and
(b) applies under section 36 for a
licence; and
(c) includes a statement in the
application (in accordance with the requirements of the approved form) to the
effect that the ADI will, if granted the licence, comply with its obligations
as a licensee.
(5) The license must only authorise the ADI
to engage in credit activities that equate (as closely as possible) to the
credit activities in relation to which the application was made.
25G Modifications
— special purpose funding entity
(1) For paragraphs 110 (c) and 164 (d) of the Act, the
provisions to which Parts 2-6 and 3-7 of the Act apply apply in relation to:
(a) a special purpose funding entity; or
(b) a licensee or registered person who is a
party to a servicing agreement with a special purpose funding entity;
as if the provisions were modified as set out in Schedule 3.
(2) For paragraph (1) (a), each modification in
Schedule 3 applies in relation to the special purpose funding entity from the
time, or to the extent, that the obligation would apply to the licensee or
registered person mentioned in paragraph (1) (b), in accordance with:
(a) item 19 of Schedule 1 to the Transitional
Act; or
(b) item 36 of
Schedule 2 to that Act;
if the licensee or registered person were the credit provider or
the lessor.
25H Modifications —
temporary staff
(1) For paragraphs 110 (c) and 164 (d) of the
Act, this regulation applies in relation to a person if:
(a) the person’s services
are used by a licensee or registered person for a period
of not more than 24 months (including any extension or rollover of a contract
of engagement); and
(b) the person performs substantially the same
duties as an employee of the licensee or registered person; and
(c) the person is subject to the same, or
substantially the same, control and direction as an employee when the person is
engaging in credit activities; and
(d) the person was not engaged because the person
possesses particular skills or experience that would prevent the licensee or
registered person from exercising the control and supervision over the person,
when the person is engaging in credit activities, that the licensee or
registered person can exercise over its employees; and
(e) the person is not remunerated predominantly
by way of commission; and
(f) the licensee or registered person does not
hold out or represent to consumers that the person is acting other than as an
employee.
(2) The provisions of the Act to which Part 2-6 and Part
3-7 of the Act apply apply as if paragraph 65 (6) (c) and sections 71
and 158 of the Act were omitted.
25I Modifications —
locums
(1) For paragraph 110 (c) of the Act, this
regulation applies to a person who:
(a) is engaged to replace an employee of a
licensee or 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 the employee when the person is engaging in
credit activities.
(2) The provisions of the Act to which Part 2-6 of
Chapter 2 of the Act applies apply as if each provision that refers to an
employee of a licensee or registered person were modified by referring to:
(a) an employee; and
(b) a person described in subregulation (1).
25J Modification
— exempted persons
(1) For paragraph 110 (c) of the Act, this
regulation applies to:
(a) a person who is exempted from provisions of
the Act under subregulation 20 (11), 25 (4) or (5); and
(b) a person who acts on behalf of the person.
(2) Section 33 of the Act applies as if it were modified
to include provision for section 128 of the Code to apply to any
representation, warranty or statement made (whether orally or in writing) by
the person in relation to a credit contract or consumer lease:
(a) offered by a licensee or registered person;
and
(b) to which the person’s exemption relates.
25K Modification —
credit card contracts
(1) For paragraph 164 (d) of the Act, this
regulation applies to a licensee that enters into a credit contract with a
consumer in the form of issuing a credit card.
(2) The provisions of the Act to which Part 3-7 of the
Act applies apply as if paragraph 128 (a) were modified to read:
‘(a) provide a consumer with a credit
card for the purpose of entering a credit contract that is formed or entered
by:
(i) the
use by a consumer of the credit card to obtain credit from the licensee; or
(ii) the
activation by a consumer of the credit card by arrangement with the licensee;’.
25L Modification —
assignees of credit providers, lessors, mortgagees and beneficiaries of a
guarantee
For paragraph 164 (d) of the Act, the
provisions of the Act
to which Part 3-7 of the Act applies apply as if section 10
were modified by adding the following subsection after subsection 10 (2):
‘(3) A person
mentioned in paragraph (1)(b) is not a credit provider, lessor, mortgagee or
beneficiary of a guarantee under a credit contract, consumer lease, mortgage or
guarantee while the original credit provider, lessor, mortgagee or beneficiary
of the guarantee under the credit contract, consumer lease, mortgage or
guarantee continues to receive payments from the debtor, or would continue to
do so if the debtor complied with the credit contract, consumer lease, mortgage
or guarantee.’.
Chapter 3 Responsible lending conduct
Part 3.1 Preliminary
26 Definitions
In this Chapter:
disclosure document means any of the
following:
(a) a credit guide mentioned in section 113,
126, 127, 136, 149, 150, 158 or 160 of the Act;
(b) a credit proposal disclosure document
mentioned in section 121 of the Act;
(c) a lease proposal disclosure document
mentioned in section 144 of the Act;
(d) a quote mentioned in section 114 or 137 of
the Act.
(e) a precontractual statement or an information
statement mentioned in section 16 of the National Credit Code.
interest rate means the interest rate or
rates applicable to:
(a) a type of home loan; or
(b) a home loan chosen by a consumer.
Note For the characteristics of a home
loan that is a standard form of credit contract, see regulation 28LA.
lender means a person or entity who:
(a) may determine the pricing of a standard home
loan; and
(b) produces the Key Facts Sheet for that home
loan.
licensee — see section 4.1 of Schedule
4.
managed contract means a credit contract or
consumer lease entered into as a result of credit assistance provided by a
mortgage manager under the terms of an agreement the mortgage manager has with
a credit provider, lessor or third party to manage the contract or lease.
mortgage manager means a licensee who has a
written agreement with:
(a) a credit provider or lessor; or
(b) a third party who is authorised to act for a
credit provider or lessor (under a written agreement with the credit provider
or lessor); and
under the terms of which:
(c) the licensee
is required to manage the relationship with the consumer on a day-to-day basis
for the credit provider or lessor in accordance with the credit provider’s,
lessor’s or third party’s policies and procedures; and
(d) the credit contracts, consumer leases and
associated documentation used by the licensee are branded or co‑branded with
the name of the licensee.
product designer means a licensee who
engages in a credit activity only through a written agreement with a credit
provider or lessor under the terms of which:
(a) the licensee manages a pool of funds from
which credit contracts or consumer leases are provided; and
(b) the licensee receives commission that is
worked out in relation to the net profit from operating the pool of funds; and
(c) the licensee has responsibility for creating
the policy for usage of the credit contracts or consumer leases, including the
eligibility requirements for consumers.
relevant provision of the Act is a section of
the Act which requires a disclosure document to be provided to a consumer.
trail commission means a commission that is
contingent on a consumer’s conduct after the consumer has entered into a credit
contract or consumer lease, and includes commission that is dependent on the
amount of a repayment, or the number of repayments, made by the consumer under
the contract or lease.
volume bonus arrangement means an
arrangement between:
(a) a credit provider, lessor or other person (the
payer); and
(b) a licensee or
credit representative (the payee);
under which the amount of commission payable by the payer to the
payee increases as the total volume of business arranged by the payee with the
payer increases.
Part 3.2 Requirements
about credit guides
26A Credit
guide of licensee — to include further information
(1) This regulation is made for the following
provisions of the Act:
(a) paragraphs 113 (2) (j) and (3) (b)
(credit guide of credit assistance providers for credit contracts);
(b) paragraphs 136 (2) (j) and (3) (b)
(credit guide of credit assistance providers for consumer leases).
Payments to third parties
(2) The licensee’s credit guide must state if a
commission is likely to be paid by the licensee to a third party for the
introduction of credit business or business proposed to be financed by the
credit contract or consumer lease and, if a commission is likely to be paid,
include the following:
(a) information about the classes of persons to
whom such commission may be payable;
(b) a statement that the consumer may, on
request, obtain a reasonable estimate of the amount of commission and how it is
worked out.
Volume bonus arrangements
(3) The licensee’s credit guide must include the
following information for each credit provider, lessor or other person with
whom the licensee has a volume bonus arrangement:
(a) a statement that there is a volume bonus
arrangement in place with the credit provider, lessor or other person;
(b) a statement that the licensee may receive
additional commission depending on the total volume of business that the licensee
arranges with the credit provider, lessor or other person;
(c) the person by whom the commission is
payable;
(d) the person to whom the commission is payable.
Mortgage managers
(4) If a mortgage manager is likely to provide credit
assistance to the consumer in relation to a managed contract, the mortgage
manager’s credit guide must include the following information:
(a) an explanation of the relationship between
the mortgage manager and the credit provider, lessor or third party;
(b) whether the mortgage manager will charge the
consumer a fee for providing a credit service.
Product designers
(5) A product designer’s credit guide must include the
following information:
(a) an explanation of the relationship between
the product designer and the credit provider or lessor;
(b) whether the product designer will charge the
consumer a fee for providing a credit service.
26B Credit
guide of credit provider or lessor — information about mortgage managers
and product designers
(1) This regulation is made for the following
provisions of the Act:
(a) paragraph 126 (2) (g) (credit
guide of credit providers);
(b) paragraph 149 (2) (g) (credit guide
of lessors).
(2) If a licensee is likely to enter into a credit
contract or consumer lease with a consumer as a result of a mortgage manager or
a product designer providing credit assistance to the consumer, the licensee’s
credit guide must include the information in subregulation (3).
(3) The licensee must include an explanation of the
relationship between:
(a) the licensee and the mortgage manager; or
(b) the licensee and the product designer.
27 Credit
guide of licensees — when information about fees, charges and commission
is not required
(1) This regulation is made for the following
provisions of the Act:
(a) paragraph 113 (3) (a) (credit
guide of credit assistance providers for credit contracts);
(b) paragraph 136 (3) (a) (credit guide
of credit assistance providers for consumer leases).
(2) The information mentioned in subparagraphs 113 (2) (e) (iii)
and (g) (ii) and (iii), or 136 (2) (e) (iii) and (g) (ii)
and (iii), of the Act need not be included in the licensee’s credit guide if:
(a) the credit guide includes a statement that
the consumer may obtain information from the licensee about:
(i) how fees and charges payable by
the consumer are worked out; and
(ii) a reasonable estimate of the
commission likely to be received, directly or indirectly, by the licensee and
how the commission is worked out; and
(b) the licensee has in place arrangements to
make the information available when requested by the consumer.
Credit card contracts
(3) The information mentioned in subparagraphs 113 (2) (g) (ii)
and (iii) of the Act need not be included in the licensee’s credit guide if:
(a) the commission is payable in relation to a
credit card contract; and
(b) the credit guide includes the maximum amount
of commission payable on entering into the contract; and
(c) if any additional commission is payable
during the life of the contract — the credit guide includes a statement
that additional commission is payable, and includes either:
(i) a reasonable estimate of the
amount of the additional commission; or
(ii) if
the amount of additional commission depends on the consumer’s use of the credit
card — information about factors contributing to the amount of commission.
27A Credit
guide of credit representatives — to include further information
(1) This regulation is made for paragraph 158 (2) (i)
of the Act (credit guide of credit representatives).
Commissions paid to third parties
(2) The credit representative’s credit guide must state
if a commission is likely to be paid by the credit representative to a third
party for the introduction of credit business or business proposed to be
financed by the credit contract or consumer lease and, if a commission is
likely to be paid, include the following:
(a) information about the classes of persons to
whom such commission may be payable;
(b) a statement that the consumer may, on
request, obtain a reasonable estimate of the amount of commission and how it is
worked out.
Information about credit providers or lessors
(3) The credit representative’s credit guide must give
the following information:
(a) if there are 6 or fewer credit providers or
lessors that the credit representative conducts business with when providing
credit assistance in relation to credit contracts or consumer leases — the
names of the credit providers or lessors;
(b) if there are more than 6 credit providers or
lessors that the credit representative conducts business with when providing
credit assistance in relation to credit contracts or consumer leases — the
names of the 6 credit providers or lessors with whom the credit representative
reasonably believes it conducts the most business.
Volume bonus arrangements
(4) The credit representative’s credit guide must
include the following information for each credit provider, lessor or other
person with whom the credit representative has a volume bonus arrangement:
(a) a statement that there is a volume bonus
arrangement in place with the credit provider, lessor or other person;
(b) a statement that the credit representative
may receive additional commission depending on the total volume of business
that the credit representative arranges with the credit provider, lessor or
other person;
(c) the person by whom the commission is
payable;
(d) the person to whom the commission is payable.
(5) However, the information in subregulations (3) and
(4) is not required to be given if the credit representative’s credit guide is
combined in a single document with the licensee’s credit guide.
27B Credit
guide of credit representatives — when information about fees, charges and
commission not required
(1) This regulation is made for paragraph 158 (3) (a)
of the Act (credit guide of credit representatives).
(2) The information mentioned in subparagraph 158 (2) (e) (iii)
or (g) (ii) or (iii) of the Act need not be included in the credit guide
if:
(a) the credit guide includes a statement that
the consumer may obtain information from the credit representative about:
(i) how fees and charges payable by
the consumer are worked out; and
(ii) a reasonable estimate of the
commission likely to be received, directly or indirectly, by the credit
representative and how the commission is worked out; and
(b) the credit representative has in place
arrangements to make the information available when requested by the consumer.
28 Credit
guide of credit representatives — contact details for an approved external
dispute resolution scheme
For paragraph 158 (3) (a) of the Act, if:
(a) a credit representative is not required to
be a member of an approved external dispute resolution scheme; and
(b) the credit representative is not a member of
an approved external dispute resolution scheme;
the credit representative is not required to include in the credit
representative’s credit guide the contact details for a consumer to access an
approved external dispute resolution scheme under paragraph 158 (2) (h)
of the Act.
28B Credit
guide — circumstances where not required to update information
(1) This regulation is made for subsections 126 (3),
149 (3) and 160 (4) and paragraphs 113 (3) (a), 136 (3) (a)
and 158 (3) (a) of the Act.
(2) If information contained in a credit guide changes
and requires updating, the updated information, other than the information
mentioned in subregulation (3), need not be included in the credit guide given
to a consumer if:
(a) the updated information is less than 93 days
old; and
(b) the consumer is given a credit guide that
contains information that was correct and in accordance with the requirements
in the Act at the time it was published.
(3) For subregulation (2), the information is contact
details for a consumer to access an approved external dispute resolution
scheme, if the person is required to give those contact details.
Note Regulation 28 sets out circumstances
where a credit representative is not required to give contact details for a
consumer to access an approved external dispute resolution scheme.
Part 3.3 Requirements
about quotes
28C Circumstances
where no quote required
For subsection 114 (2A) or 137 (2A) of
the Act, the circumstances are that:
(a) the licensee’s credit guide includes a
statement that the licensee does not impose fees or charges on consumers for
providing credit assistance and other services; or
(b) both the following apply:
(i) before the licensee provides
credit assistance to a consumer, the licensee does not intend to impose a fee
or charge on the consumer for providing the credit assistance or other
services;
(ii) the licensee’s proposal disclosure
document includes a statement that no fee or charge has been imposed on the
consumer for credit assistance and other services provided by the licensee to
the consumer.
28D Quote
for providing credit assistance — licensee to give information about fees
and charges
(1) This regulation is made for the following
provisions of the Act:
(a) paragraph 114 (2) (f) (quote by
credit assistance providers for credit contracts);
(b) paragraph 137 (2) (f) (quote by
credit assistance providers for consumer leases).
(2) The information given by a licensee under paragraph
114 (2) (d) or 137 (2) (d) of the Act must be described as
follows:
(a) for each fee and each charge payable to the
licensee that the licensee does not describe under paragraph (b):
(i) identify the fee or charge as a
fee or charge payable to the licensee; and
(ii) include a clear explanation of the
type of fee or charge; and
(iii) if the fee or charge is not a fixed
amount — explain the method used for working out the amount of the fee or
charge; and
(iv) if the method mentioned under
subparagraph (iii) is expressed as a mathematical formula — include a
clear explanation of the formula with the formula; and
(v) include a reasonable estimate of
the maximum amount of the fee or charge, expressed as required by paragraph
(c); and
(vi) state how frequently the fee or
charge is to be paid; and
(vii) describe the circumstances when the
fee or charge will or will not be payable; and
Note A fee
payable to a credit representative of a licensee is a fee payable to the
licensee.
(b) if the fee or charge is payable to the
licensee for payment to another person on the consumer’s behalf — for each
fee and each charge that the licensee does not describe under paragraph (a):
(i) identify the fee or charge as a
fee or charge; and
(ii) include a clear explanation of the
type of fee or charge; and
(iii) include a reasonable estimate of
the maximum amount of the fee or charge, expressed as required by paragraph
(c); and
(c) the maximum amount of each fee or each charge,
if known, must be expressed in dollars or, if unknown, in one of the following
ways:
(i) as a proportion of the amount
borrowed or total rental payments and a dollar amount;
(ii) as a percentage of the amount
borrowed or total rental payments and a dollar amount;
(iii) if payable periodically — as
a maximum amount for each period and as a maximum amount for the life of the
credit contract or consumer lease, both as dollar amounts; and
(d) include a statement that clearly identifies
the amounts as a quote.
(3) The quote must include the maximum amount of fees or
charges that will be payable by the consumer to another person, whether or not
a credit contract or consumer lease is entered into.
(4) The information mentioned in subregulations (2) and
(3) must be set out in a way that is easy for the consumer to understand
without being required to do any working out or to look elsewhere for
additional information.
Part 3.4 Requirements
about proposal disclosure documents
28E Proposal disclosure document — information
about fees and charges
(1) This regulation is made for the following
provisions of the Act:
(a) paragraph 121 (2) (f) (credit
proposal disclosure document of credit assistance providers for credit
contracts);
(b) paragraph 144 (2) (e) (lease
proposal disclosure document of credit assistance providers for consumer
leases).
(2) The information given by a licensee under paragraph
121 (2) (a) or 144 (2) (a) of the Act must be described as
follows:
(a) for each fee and each charge payable to the
licensee:
(i) identify the fee or charge as a
fee or charge payable to the licensee; and
(ii) include a clear explanation of the
type of fee or charge; and
(iii) if the fee or charge is not a
fixed amount — explain the method used for working out the amount of the
fee or charge; and
(iv) if the method mentioned under
subparagraph (iii) is expressed as a mathematical formula — include a
clear explanation of the formula with the formula; and
(v) include the amount of the fee or
charge, expressed as required by paragraph (b); and
(vi) state how frequently the fee or
charge is to be paid; and
(vii) describe the circumstances when the
fee or charge will or will not be payable; and
Note A fee
payable to a credit representative of a licensee is a fee payable to the
licensee.
(b) the amount of each fee or charge must be
expressed in one of the following ways:
(i) in dollars;
(ii) as a proportion of the amount
borrowed or total rental payments, expressed in dollars;
(iii) as a range of amounts, expressed
in dollars;
(iv) as a percentage of the amount
borrowed or total rental payments and a dollar amount.
(3) The information given by a licensee, for the credit
provider
or lessor, and any other person about whom information must
be given, under paragraphs 121 (2) (c) and (d), or 144 (2) (c)
and (d), of the Act, must be described as follows:
(a) for each fee and each charge payable to the
credit provider, lessor or other person:
(i) name the person to whom the fee or
charge is payable personally or on behalf of another person; and
(ii) identify the fee or charge as a
fee or charge; and
(iii) include a clear explanation of the
type of fee or charge; and
(iv) if the fee or charge is not a fixed
amount — explain the method used for working out the amount of the fee or
charge; and
(v) if the method mentioned under
subparagraph (iv) is expressed as a mathematical formula — include a clear
explanation of the formula with the formula; and
(vi) if the amount of the fee or charge
is a reasonable estimate of the fee or charge — state that it is an
estimate, and express the amount as required by paragraph (b); and
(vii) state how frequently the fee or
charge is to be paid; and
(viii) describe the circumstances when the
fee or charge will or will not be payable; and
(b) the reasonable estimate of the amount of
each fee or charge must be expressed in one of the following ways:
(i) in dollars;
(ii) as a proportion of the amount
borrowed or total rental payments and a dollar amount;
(iii) as a range of amounts, expressed
in dollars;
(iv) as a percentage of the amount
borrowed or total rental payments and a dollar amount.
(4) The licensee’s proposal disclosure document must
clearly state that the consumer will be liable to pay the fees and charges.
(5) The information mentioned in subregulations (2) to
(4) must be set out in a way that is easy for the consumer to understand
without being required to do any working out or to look elsewhere for
additional information.
28F Proposal
disclosure document — when information about fees and charges not required
(1) This regulation is made for the following
provisions of the Act:
(a) subsection 121 (3A) (credit proposal
disclosure document of credit assistance providers for credit contracts);
(b) subsection 144 (3A) (lease proposal
disclosure document of credit assistance providers for consumer leases).
(2) The licensee’s proposal disclosure document need
not contain the information mentioned in subparagraphs 28E (2) (a) (iii)
to (vii) and (3) (a) (iv) to (viii) if:
(a) the amount of the fee or charge has
previously been disclosed in the licensee’s quote for providing credit
assistance and the amount has not changed; and
(b) the quote was given to the consumer no more
than 30 days before the day the licensee is required to provide the consumer
with the proposal disclosure document; and
(c) the proposal disclosure document includes a
statement with the fees and charges that the consumer should refer to the quote
for more information about the fees and charges.
28G Proposal
disclosure document — information about commissions
(1) This regulation is made for the following
provisions of the Act:
(a) paragraph 121 (2) (f) and
subsections 121 (3) and (3A) (credit proposal disclosure document of
credit assistance providers for credit contracts);
(b) paragraph 144 (2) (e) and
subsections 144 (3) and (3A) (lease proposal disclosure document of credit
assistance providers for consumer leases).
(2) A description of the amounts of commissions must
include the following:
(a) for each kind of commission forming part of
the total amount of commission, a detailed description of the commission,
including the following:
(i) identification of each kind of
commission as commission;
(ii) a clear explanation of the kind of
commission;
(iii) the person by whom each kind of
commission is payable;
(iv) the person to whom each kind of
commission is payable;
(v) a reasonable estimate of the amount
of each kind of commission, expressed as required by paragraph (b);
Example for subparagraph (ii)
A commission that is a benefit
described as an advertising subsidy or attendance at a conference.
(b) the reasonable estimate of the amount of
each kind of commission must be expressed in one of the following ways:
(i) in dollars;
(ii) as a proportion of the amount
borrowed or total rental payments and a dollar amount;
(iii) as a range of amounts, expressed
in dollars;
(iv) as a percentage of the amount
borrowed or total rental payments and a dollar amount;
(v) if the commission is in the form of
a benefit — the estimated value of the benefit, expressed in dollars;
(c) a reasonable estimate of the total amount
of commission, expressed in dollars, likely to be received by each of the
following:
(i) the licensee;
(ii) a credit representative of the
licensee;
(d) a reasonable
estimate of the total amount of commission, expressed in dollars and based on
the amounts estimated for each kind of commission forming part of the total
amount of commissions.
Note Commission is defined in
subsection 5 (1) of the Act to include any financial or other benefit in
the nature of a commission.
(3) The information mentioned in subregulation (2) must
be set out in a way that is easy for the consumer to understand without being
required to do any working out or to look elsewhere for additional information.
Information not required to be included
(4) The proposal disclosure document need not contain
the information mentioned in paragraph (2) (c) for an employee or a
director of the licensee (even if the employee or director is a credit
representative of the licensee).
Assumptions
(5) For this regulation, a reasonable estimate of an
amount of commission may be made on the following assumptions:
(a) that the consumer will enter into the credit
contract or consumer lease on the terms known to the licensee as at the time
the consumer is given the proposal disclosure document;
(b) that the consumer will make the repayments
required by the credit contract or consumer lease at the times required by the
contract or lease;
(c) that, for an
annual percentage rate or default rate, there will be no variation in the rate
as disclosed over the whole term of the credit contract or any shorter term for
which the contract applies;
(d) if the credit contract provides for a change
to a variable rate, that the variable rate applicable over the term for which
it applies is the same as the equivalent variable rate as at the time the consumer
is given the proposal disclosure document;
(e) that, if the commission, or any part of the
commission, is contingent on other credit assistance provided by, or activities
conducted by, the licensee, the licensee may rely on credit assistance
provided, or activities conducted, previously by the licensee for a similar
period of time;
(f) that the method used to estimate the
commission in the proposal disclosure document will not change.
Payments to third parties
(6) The licensee’s proposal disclosure document must
state if a commission is likely to be paid by the licensee to a third party for
the introduction of credit business or business proposed to be financed by the
credit contract or consumer lease and, if so, must include information about:
(a) the person by whom each commission is
payable; and
(b) the person to whom each commission is
payable; and
(c) the amount of commission, if known, or a
reasonable estimate of the amount of commission, expressed in accordance with
paragraph (2) (b).
Example of a third party
A commission that is payable
to a real estate agent who refers a consumer to the licensee.
(7) The licensee’s proposal disclosure document need
not contain the information mentioned in paragraph (6) (c) if:
(a) the amount of commission is contingent on
the conduct of other consumers who may be referred to the licensee; and
(b) the proposal disclosure document includes
information about factors contributing to the amount of commission payable by
the consumer.
Volume bonus arrangements
(8) The licensee’s proposal disclosure document must set
out a reasonable estimate of the maximum amount of commission likely to be
received by the licensee in relation to the credit contract or consumer lease
that will result from a volume bonus arrangement.
28H Proposal
disclosure documents — when information about commissions not required
(1) This regulation is made for the following
provisions of the Act:
(a) subsection 121 (3A) (credit proposal
disclosure document of credit assistance providers for credit contracts);
(b) subsection 144 (3A) (lease proposal
disclosure document of credit assistance providers for consumer leases).
Mortgage managers
(2) Subregulation (3) applies to commission worked out
on the difference between the interest rate charged to the mortgage manager by
the credit provider or lessor and the interest rate payable by the consumer.
(3) The information mentioned in subparagraph 28G (2) (a) (v)
and paragraphs 28G (2) (c) and (d) need not be included for the
commission in the mortgage manager’s proposal disclosure document if all of the
following apply:
(a) the mortgage manager provided credit
assistance to the consumer in relation to a managed contract;
(b) the mortgage manager told the consumer:
(i) about the mortgage manager’s
written agreement with the credit provider, lessor or third party; and
(ii) that the mortgage manager is not
acting for the consumer in relation to the managed contract;
(c) the maximum cost of the managed contract at
the time the mortgage manager provides the credit assistance, and the interest
rate to be charged, are published on the credit provider’s or lessor’s website;
(d) the mortgage manager cannot increase the
interest rate above the interest rate that is published under paragraph (c).
Product designers
(4) A product designer’s proposal disclosure document
need not include the information mentioned in subparagraph 28G (2) (a) (v)
and paragraphs 28G (2) (c) and (d) for commission worked out in
relation to the net profit from operating the pool of funds from which credit
contracts or consumer leases are provided.
Trail commissions
(5) For trail commission that is payable in more than
one instalment, the licensee’s proposal disclosure document need not contain
the information mentioned in subparagraph 28G (2) (a) (v) or
paragraph 28G (2) (c) if:
(a) the proposal disclosure document includes a
reasonable estimate of the highest instalment of trail commission the licensee
can expect to receive; and
(b) the highest instalment of trail commission is
expressed in accordance with paragraph 28G (2) (b); and
(c) the following assumptions apply to the
calculation of the highest instalment of trail commission:
(i) the assumptions mentioned in
subregulation 28G (5); or
(ii) other assumptions set out in the
licensee’s proposal disclosure document.
Part 3.5 Other
obligations
28J Obligations
of credit providers before entering credit contracts or increasing credit
limits
For section 128 of the Act, if:
(a) the credit to be provided under the credit
contract will be used for the purchase of a residential property; and
(b) the credit will be secured by a mortgage over
the property;
the period is 120 days.
Note Section 128 of the Act
provides that a licensee must not enter into a credit contract with a consumer,
or increase the credit limit of a credit contract with a consumer, on a day
unless the licensee has, within 90 days (or other period prescribed by the
regulations) before the day, made an unsuitability assessment and made
particular inquiries and verification.
28L Manner
of giving disclosure documents
(1) This regulation is made for the following provisions
of the Act:
(a) subsection 113 (4) (credit guide of
credit assistance providers in relation to credit contracts);
(b) subsection 114 (3) (quote by credit
assistance providers in relation to credit contracts);
(c) subsection 121 (4) (credit
proposal disclosure document of credit assistance providers in relation to
credit contracts);
(d) subsection 126 (4) (credit guide of
credit providers in relation to credit contracts);
(e) subsection 127 (4) (credit guide of
assignee credit providers in relation to credit contracts);
(f) subsection 136 (4) (credit guide of
credit assistance providers in relation to consumer leases);
(g) subsection 137 (3) (quote by credit
assistance providers in relation to consumer leases);
(h) subsection 144 (4) (lease proposal
disclosure document of credit assistance providers in relation to consumer
leases);
(i) subsection 149 (4) (credit guide of
lessors in relation to consumer leases);
(j) subsection 150 (4) (credit guide of
assignee lessors in relation to consumer leases);
(k) subsection 158 (4) (credit guide of
credit representatives);
(l) subsection 160 (5) (credit guide of
debt collectors).
(m) section 18 of Schedule 1 (credit provider’s
contract document).
(2) In this regulation:
licensee includes a person who is a credit
representative of a licensee.
(3) A licensee may, with the consent of the consumer,
give a disclosure document to the consumer by:
(a) making the document available for a
reasonable period on the licensee’s information system for retrieval by
electronic communication by the consumer; and
(b) promptly notifying the consumer by electronic
communication that the document is available for retrieval on that information
system and the nature of document; and
(c) providing the consumer with the ability to
retrieve the document by electronic communication.
(4) A consumer may consent to the giving of documents
by electronic communication only after being told that, if consent is given:
(a) paper documents may no longer be given; and
(b) electronic communications must be regularly
checked for documents; and
(c) consent to the giving of documents by
electronic communication may be withdrawn at any time.
(5) If a disclosure document is given by sending it to
a nominated electronic address or in a manner described in this regulation:
(a) it must be in a format that allows it to be
saved to an electronic file and to be printed; and
(b) at the time it was sent or was made available
on the licensee’s information system, it would have been reasonable to expect
that the intended recipient would be able to save it to an electronic file and
print it.
(6) If a disclosure document is not given to a consumer
personally, or to a person acting on the consumer’s behalf, the licensee must
be reasonably satisfied that the consumer has received the disclosure document
before engaging in further credit activities in relation to the consumer’s
credit contract or consumer lease.
(7) For subregulation (6), a person is not acting on the
consumer’s behalf if the person is engaging in credit activities.
(8) The licensee may be reasonably satisfied that a
consumer has received a disclosure document (unless the consumer advises the
licensee otherwise):
(a) if the disclosure document is a credit guide
and was made available to the consumer for retrieval on the licensee’s
information system — when the consumer tells the licensee that he or she
has accessed the document on the information system; or
(b) in any other case — if the disclosure
document was properly addressed to the consumer and sent to that address
(including an electronic address or fax number).
(9) Two or more disclosure documents may be combined in
a single document only if all other requirements of the Act and these
Regulations are met.
28LA Standard
home loans
For subsection 133AA (2) of the Act, a
standard form of credit contract is a contract for a home loan that:
(a) is described in the table; and
(b) obliges the
consumer to make repayments that repay principal and interest for the full term
of the home loan.
|
Item
|
Type of loan
|
Characteristics
|
|
1
|
Variable rate home loan
|
The interest rate on the entire loan balance may vary at
the lender’s discretion
|
|
2
|
Fixed rate home loan
|
The interest rate on the entire loan balance is fixed for
the whole or part of the loan
|
28LB Key
Facts Sheets
(1) For section 133AB of the Act, Schedule 5 sets out:
(a) the Key Facts Sheet for a standard home
loan; and
(b) requirements for how the information in a Key
Facts Sheet is to be prepared for a particular consumer and loan.
(2) A Key Facts Sheet that is given to a consumer or
published online must meet the following requirements:
(a) the Key Facts Sheet must be in A4 size;
(b) all text in the Key Facts Sheet must be black
on a white background, unless otherwise specified in this regulation;
(c) the text, except the heading, in the
‘Description of this home loan’ box must be black on a light blue background;
(d) the headings to all boxes must be white on a
blue background;
(e) all other headings must be blue on a white
background.
(3) However, if a lender is not able to print the Key
Facts Sheet using a colour printer, the lender may print a Key Facts Sheet in
black and white.
Part 3.6 Modifications
and exemptions
28M Modifications
Disclosure requirements
(1) For paragraph 164 (d) of the Act, the
provisions to which Part 3-7 of Chapter 3 of the Act applies, apply as if
the provisions were modified as set out in Schedule 4.
Extended time period for consumer assessment
(2) Subregulation (3) applies to a licensee to whom
the rights of a credit provider under a credit contract have been assigned.
(3) For paragraph 164 (d) of the Act:
(a) paragraph 132 (2) (c) of the Act is
modified by omitting ‘7 business days’ and inserting ‘15 business days’;
and
(b) paragraph 132 (2) (d) is modified
by omitting ’21 business days’ and inserting ‘25 business days’.
(4) Subregulation (5) applies to a licensee to whom the
rights of a lessor under a consumer lease have been assigned.
(5) For paragraph 164 (d) of the Act:
(a) paragraph 155 (2) (c) of the Act is
modified by omitting ‘7 business days’ and inserting ‘15 business days’;
and
(b) paragraph 155 (2) (d)
is modified by omitting ’21 business days’ and inserting ‘25 business
days’.
Note Paragraph 164 (d) of the Act
provides that the regulations may provide that Chapter 3 of the Act applies as
if specified provisions were omitted, modified or varied as specified in the
regulations.
28N Exemption —
requirement to provide disclosure documents
(1) For paragraph 164 (a)
of the Act, a person who is a licensee or a credit representative engaging in a
credit activity is exempted from a relevant provision of the Act, other than
section 114 or 137, if:
(a) the person gives the consumer information,
in writing, about the contact details for a consumer to access the approved
external dispute resolution scheme of which the person is a member; or
(b) the person has given the information
mentioned in paragraph (a) to the consumer within the previous 90 days.
(2) The information mentioned in paragraph (1) (a)
may be given to the consumer as follows:
(a) in the manner set out in regulation 28L;
(b) together with some or all of the information
mentioned in a relevant provision of the Act.
(3) For paragraph 164 (a) of the Act, a person who
is a credit representative to whom regulation 28 applies is exempted from a
relevant provision of the Act.
Note Regulation 28 sets out circumstances
where a credit representative is not required to give contact details for a
consumer to access an approved external dispute resolution scheme.
Quotes
(4) For paragraph 164 (a) of the Act, a licensee
providing credit assistance to a consumer is exempted from sections 114
and 137 of the Act if:
(a) before the licensee provides credit
assistance to a consumer, the licensee has entered into a written contract with
the consumer setting out the maximum amount that will be payable by the
consumer to the licensee in relation to the licensee’s credit assistance and
other services; or
(b) both the
following apply:
(i) before
the licensee provides credit assistance to a consumer, the licensee does not
intend to impose a fee or charge on the consumer for providing the credit
assistance or other services;
(ii) the licensee does not impose a fee
or charge on the consumer for the licensee’s credit assistance and other
services.
(5) This regulation ceases to have effect on 1 October
2011.
28P Circumstances
where credit guide not required
Franchisees
(1) For paragraph 164 (a) of the Act, a person who
is a credit representative is exempted from subsection 158 (1) of the Act
if:
(a) the person is authorised by:
(i) a licensee; or
(ii) a body corporate that is a credit representative
of a licensee;
to engage in specified credit activities on behalf of the licensee;
and
(b) the person is:
(i) a franchisee of the licensee under
a franchise agreement with the licensee; or
(ii) an employee or director of a
franchisee of the licensee who has a franchise agreement with the licensee; and
(c) the franchise agreement:
(i) subjects the person to the
policies of the licensee; and
(ii) requires compliance by the person
with the policies of the licensee that were made to give effect to the
licensee’s obligations under the licensee’s Australian credit licence; and
(d) the credit guide of the licensee explains
that the licensee takes responsibility for the credit activities engaged in by
the person (or class of persons of which the person is a member).
Previous dealings with consumer
(2) For paragraph 164 (a) of the Act, a person who
is a licensee or a credit representative is exempted from subsections 113 (1),
126 (1), 136 (1), 149 (1), 158 (1) or 160 (1) or (2)
of the Act if:
(a) the person has, in the previous 12 months,
given the consumer the person’s credit guide in accordance with the
requirements in the Act; and
(b) if the person would have been required to
give contact details for a consumer to access an approved external dispute
resolution scheme — the person’s contact details for access to the scheme
of which the person is a member have not changed.
Note Regulation 28 sets out circumstances
where a credit representative is not required to give contact details for a consumer
to access an approved external dispute resolution scheme.
Debt collectors
(3) For paragraph 164 (a) of the Act, a person who
is a licensee or a credit representative is exempted from subsection 160 (1)
or (2) of the Act if:
(a) the person has given the consumer the
person’s credit guide in accordance with the requirements of section 113, 136
or 158 of the Act; and
(b) the credit guide relates to:
(i) the same credit contract as that
under which the person is authorised by the credit provider to collect, on
behalf of the credit provider, repayments made by the consumer under the credit
contract; or
(ii) the same consumer lease as that
under which the person is authorised by the lessor to collect, on behalf of the
lessor, payments made by the consumer under the consumer lease.
Product designers
(4) For paragraph 164 (a) of the Act, a person who
is a product designer is exempted from subsection 113 (1), 136 (1),
158 (1) or 160 (1) or (2) of the Act if the credit provider or lessor
has complied with regulation 26B.
28Q Exemption
— credit assistance provider with shared responsibility for credit contract
(1) For paragraph 164 (a) of the Act, this
regulation applies to a person in the following circumstances:
(a) the person is:
(i) a credit assistance provider that:
(A) is an ADI; and
(B) holds an Australian
credit licence, or has applied for an Australian credit licence in an
application on which ASIC has not made a decision; and
(C) engages in conduct under
an agreement with the credit provider; or
(ii) a credit representative of a
credit assistance provider mentioned in subparagraph (i);
(b) the credit provider:
(i) is an ADI; and
(ii) holds an Australian credit licence
or has applied for an Australian credit licence;
(c) the agreement between the credit provider
and the credit assistance provider allows the credit provider to use the credit
assistance provider’s name or any other words, phrases, initials or logo
associated with the credit assistance provider on the credit contract and any letter
or other material;
(d) the credit assistance provider:
(i) provides credit assistance in
relation to a credit contract connected with the agreement mentioned in
paragraph (c) between the credit provider and the provider of credit
assistance; and
(ii) gives to the credit provider the
consumer’s details and any other information requested by the credit provider
(if it is a reasonable request) in order to enable the credit provider to make
an assessment about the credit contract under section 130 of the Act.
(2) The credit assistance provider is exempted from
Division 4 and Division 6 of Part 3-1 of the Act in relation to:
(a) a credit contract connected with the
agreement mentioned in paragraph (1) (c) between the credit provider and
the provider of credit assistance; and
(b) an increase in the credit limit of the credit
contract.
(3) Despite subregulation (2):
(a) the credit assistance provider is jointly
and severally liable with the credit provider to pay any compensation which the
credit provider is ordered to pay to the consumer under section 178 of the Act
as a consequence of a breach by the credit provider of Division 4 of Part 3-2
of the Act in relation to a credit contract (including an increase in the
credit limit of a contract) connected with the agreement mentioned in
paragraph (1) (c) between the credit provider and the provider of
credit assistance; and
(b) without prejudice to any other rights or
remedies to which a credit provider may be entitled, the credit assistance
provider is entitled to be indemnified by the credit provider against any loss
or damage suffered by the credit assistance provider through the operation of
paragraph (a).
28R Exemption —
intermediary’s requirement to provide proposal disclosure document
(1) For paragraph 164 (a) of the Act, a person
mentioned in subregulation 28Q (1) is exempted from a requirement in
section 121 and 144 of the Act in the circumstances set out in this regulation.
(2) The exemption applies if:
(a) the consumer is not liable to pay to the
person any fees or charges in relation to the credit contract or consumer
lease; and
(b) at the time, or as soon as practicable after,
the person gives credit assistance the person tells the consumer, in writing,
that no fees or charges will be payable.
(3) If the credit contract is a credit card contract,
the consumer must be given information about:
(a) any commissions that the person is likely to
receive, directly or indirectly, from credit providers in relation to credit
contracts for which the person has provided credit assistance; and
(b) the maximum amount of commission payable by
the consumer on entering into the contract; and
(c) if any additional commission is payable
during the life of the contract — a statement that additional commission is
payable, and either:
(i) a reasonable estimate of the
amount of the additional commission; or
(ii) if the amount of additional
commission depends on the consumer’s use of the credit card — information
about how the commission is worked out.
(4) If the contract is not a credit card contract, the
consumer must be given a reasonable estimate of the total amount of any
commissions that the person is likely to receive in relation to the credit
contract or consumer lease, and the method used for working out that amount.
(5) The information mentioned in subregulations (3) and
(4) must be given, in writing, no more than 15 business days before the day the
person would have been required to provide the consumer with a proposal
disclosure document.
Chapter 4 Administration —
registers relating to credit activities
29 Credit registers — licensees, credit
representatives and registered persons
(1) For subsection 213 (2)
of the Act, ASIC must include the following details for each licensee included
in a credit register of licensees:
(a) the licensee’s
name (including the licensee’s principal business name, if any);
(b) the principal
business address of the licensee;
(c) the date on which
the licensee’s Australian credit licence was granted;
(d) the number of the
licensee’s Australian credit licence;
(e) if the licensee
has an ABN — the ABN;
(f) details of any
conditions on the licensee’s Australian credit licence, including details of
the credit activities or classes of credit activities that the licensee is
authorised to engage in;
(g) the name of the
approved external dispute resolution scheme of which the licensee is a member;
(h) any other
information that ASIC believes should be included in the register.
(2) Subregulation (3) applies
in relation to:
(a) credit
representatives of licensees; and
(b) credit
representatives of registered persons.
(3) For
subsection 213 (2) of the Act, ASIC must include the following details for
each credit representative included in a credit register of credit representatives:
(a) the
credit representative’s name (including the credit representative’s principal
business name, if any);
(b) the credit
representative’s principal business address;
(c) the number
allocated to the credit representative by ASIC;
(d) the name of each
licensee or registered person for which the credit representative is a credit
representative;
(e) the:
(i) number
of the Australian credit licence of each licensee; and
(ii) number
allocated by ASIC to each registered person;
for which the
credit representative is a credit representative;
(f) if the credit
representative has an ABN — the ABN;
(g) the date of the
credit representative’s authorisation by the licensee or registered person;
(h) the name of the
approved external dispute resolution scheme of which the credit representative
is a member;
(i) any other
information that ASIC believes should be included in the register.
(4) For subsection 213 (2)
of the Act, ASIC must include the following details for each registered person
included in a credit register of registered persons:
(a) the registered
person’s name (including the registered person’s principal business name, if
any);
(b) the principal
business address of the registered person;
(c) the date on which
the registered person’s name was entered on the credit register as a registered
person;
(d) the number
allocated to the registered person by ASIC;
(e) if the registered
person has an ABN — the ABN;
(f) details of any
conditions on the registered person’s registration, including details of the
credit activities or classes of credit activities that the registered person is
authorised to engage in;
(g) the name of the
approved external dispute resolution scheme of which the registered person is a
member;
(h) any other information
that ASIC believes should be included in the register.
(5) For paragraphs
(1) (b), (3) (b) and (4) (b), if:
(a) the person’s
principal business address is the person’s residential address; and
(b) ASIC determines, in
writing, that including the person’s residential address in a register would
put at risk the personal safety of the person or members of the person’s
family; and
(c) the person
provides an alternative address:
(i) that is
in Australia; and
(ii) that is
not a post office box or an electronic address; and
(iii) that has
a connection with the credit activities engaged in by the person; and
(iv) at which
documents can be served on the person;
ASIC may include the alternative address
in the register.
(6) If ASIC includes a
person’s alternative address in the register under subregulation (5), the
person must, in the approved form:
(a) lodge with ASIC
notice of the person’s residential address; and
(b) lodge with ASIC
notice of any change in the person’s residential address within 14 days after
the change.
(7) If:
(a) ASIC includes a
person’s alternative address in the register under subregulation (5); and
(b) a court gives a
judgment for payment of a sum of money against the person;
ASIC may give details of the person’s
residential address to an officer of the court for the purposes of enforcing
the judgment debt.
30 Credit registers — persons against whom
banning order or disqualification order is made
(1) For
subsection 213 (2) of the Act, ASIC must include the following
details for each person against whom a banning order is made under Division 2
of Part 2‑4 of the Act in a credit register of persons against whom a banning
order is made:
(a) the person’s name;
(b) the day on which
the banning order took effect;
(c) whether the banning
order is permanent or for a fixed period;
(d) if the banning
order is for a fixed period — the period;
(e) the terms of the
banning order;
(f) whether the
banning order has been varied or cancelled;
(g) if the banning
order has been varied:
(i) the date
of the variation; and
(ii) the
terms of the variation;
(h) if the banning
order has been cancelled — the date of the cancellation;
(i) any other
information that ASIC believes should be included in the register.
(2) For subsection
213 (2) of the Act, ASIC must include
the following details for each person against whom a disqualification order is
made under Division 3 of Part 2‑4 of the Act in a credit register of persons
against whom a disqualification order is made:
(a) the person’s name;
(b) the day on which
the disqualification order took effect;
(c) whether the
disqualification order is permanent or for a fixed period;
(d) if the
disqualification order is for a fixed period — the period;
(e) the terms of the
disqualification order;
(f) whether the
disqualification order has been varied or revoked;
(g) if the
disqualification order has been varied:
(i) the date
of the variation; and
(ii) the
terms of the variation;
(h) if the
disqualification order has been revoked — the date of the revocation;
(i) any other
information that ASIC believes should be included in the register.
(3) For subsection
213 (2) of the Act, ASIC must include the following details for
each person who is banned from engaging in a credit activity under a law of a
State or Territory in a credit register of persons who are banned under a law
of a State or Territory:
(a) the person’s name;
(b) the day on which
the ban took effect;
(c) whether the ban is
permanent or for a fixed period;
(d) if the ban is for a
fixed period — the period;
(e) the terms of the
ban;
(f) whether the ban
has been varied or cancelled;
(g) if the ban has
been varied:
(i) the date
of the variation; and
(ii) the
terms of the variation;
(h) if the ban has been
cancelled — the date of the cancellation;
(i) any other
information that ASIC believes should be included in the register.
30A Credit register — unlicensed carried over
instrument lender
(1) For subsection 213 (2) of the Act, ASIC must
include the following details for each unlicensed carried over instrument
lender in a credit register for unlicensed carried over instrument lenders:
(a) the lender’s name
(including the lender’s principal business name, if any);
(b) the postal address
of the lender;
(c) if the principal
business address of the lender is different from the postal address — the
principal business address;
(d) if the lender has
an ABN — the ABN;
(e) if the lender
is required to engage in credit activities through a registered person or
licensee under section 74 of the Act:
(i) the
reason why the lender is required to engage in the credit activities through
the registered person or licensee; and
(ii) the name
of the registered person or licensee;
(f) if the lender is a
member of an approved external dispute resolution scheme — the name of the
scheme.
(2) For paragraph (1) (d), ASIC may include in the
credit register an alternative address to the lender’s principal business
address if:
(a) the lender’s
principal business address is the lender’s residential address; and
(b) ASIC determines, in
writing, that including the lender’s residential address in the register would
put at risk the personal safety of the lender or members of the lender’s
family; and
(c) the lender provides an alternative address:
(i) that is
in Australia; and
(ii) that is
not a post office box or an electronic address; and
(iii) that has
a connection with the credit activities engaged in by the lender.
(3) If ASIC includes a lender’s alternative address in
the register, the lender must, in the approved form, lodge with ASIC notice of:
(a) the lender’s
residential address; and
(b) any change of the
lender’s address no later than 14 days after the change.
(4) ASIC may give details of the lender’s residential
address to an officer of a court for the purposes of enforcing a judgement debt
if:
(a) ASIC includes the
lender’s alternative address in the register; and
(b) the court gives a
judgement for payment of a sum of money against the person.
Chapter 5 Compliance and
enforcement
31 Investigations — distribution of report
For paragraph
251 (2) (d) of the Act, the following are prescribed:
(a) the Australian
Competition and Consumer Commission;
(b) APRA;
(c) the Australian
Taxation Office;
(d) the CEO of the
Australian Transaction Reports and Analysis Centre;
(e) an authority of a
State or Territory having functions and powers similar to those of the Director
of Public Prosecutions;
(f) the police force
or service of each State and the Northern Territory;
(g) the Department of
Commerce (Office of Fair Trading) of New South Wales;
(h) the Department of
Justice (Consumer Affairs Victoria) of Victoria;
(i) the Department of
Employment, Economic Development and Innovation of Queensland;
(j) the Department of
Commerce of Western Australia;
(k) the Office of
Consumer and Business Affairs of South Australia;
(l) the Office of
Consumer Affairs and Fair Trading of Tasmania;
(m) the Department of
Justice and Community Safety (Office of Regulatory Services) of the Australian
Capital Territory;
(n) the Department of
Justice of the Northern Territory;
(o) the Australian
Federal Police.
32 Examination of person — form of notice
requiring assistance and appearance for examination
For subsection 253 (2) of
the Act, Form 1 is prescribed.
33 Inspection of books and audit information‑gathering
powers — evidence of authority
If:
(a) an ASIC member or
ASIC staff member produces a document issued by ASIC; and
(b) the document states
that the person is authorised by ASIC under section 268 of the Act;
the document is evidence of:
(c) the authority of
the person to require other persons to produce books or give information under
subsection 268 (1); and
(d) any limitation on
that authority that is specified in the document under that subsection.
34 Hearings — form of summons to appear
before ASIC
For subsection 284 (1) of
the Act, Form 2 is prescribed.
35 Miscellaneous provisions — allowances and
expenses
(1) For subsections
317 (1) and (2) of the Act, a person who:
(a) appears for examination
under section 253 of the Act; or
(b) appears pursuant to
a summons issued under section 284 of the Act;
is entitled to be paid the allowances and
expenses set out in this regulation.
(2) A person summoned to
appear as a witness before ASIC because of his or her professional, scientific
or other special skill or knowledge must be paid:
(a) if the person is
remunerated in his or her occupation by wages, salary or fees — an amount
equal to the amount of wages, salary or fees not paid to the person because of
his or her attendance for the appearance; and
(b) in any other
case — an amount of not less than $81, or more than $407, for each day on
which he or she so attends.
(3) A person summoned to
appear as a witness before ASIC, other than a witness mentioned in
subregulation (2), must be paid:
(a) if the person is
remunerated in his or her occupation by wages, salary or fees — an amount
equal to the amount of wages, salary or fees not paid to the person because of
his or her attendance for the appearance; and
(b) in any other
case — an amount of not less than $46, or more than $76, for each day on
which he or she so attends.
(4) A person summoned to
appear as a witness before ASIC must be paid a reasonable amount for allowances
for:
(a) transport between
the usual place of residence of the person and the place that he or she attends
for the appearance; and
(b) if he or she is
required to be absent overnight from his or her usual place of residence —
meals and accommodation during the absence.
Chapter 6 Miscellaneous
Part 6‑1 Court
proceedings
36 Where proceedings may be brought
(1) For section 330 of the
Act, this regulation sets out where court proceedings may be brought.
(2) This regulation does not
apply to a court proceeding if the court proceeding is:
(a) commenced by ASIC;
or
(b) a class action or
representative action on behalf of consumers from more than 1 State or
Territory; or
(c) commenced by a
credit provider under section 112 of the Code for an order under section 113 of
the Code.
(3) Subject to subregulation
(4), a court proceeding must be brought in a court of the State or Territory
where the debtor, mortgagor or guarantor ordinarily resides, if the court
proceeding:
(a) is in relation
to:
(i) a credit
contract; or
(ii) a consumer
lease; or
(iii) a
mortgage; or
(iv) a
guarantee;
regulated under
the Act; and
(b) involves a debtor,
mortgagor or guarantor.
(4) For subregulation (3), if
it is not known where the debtor, mortgagor or guarantor ordinarily resides,
the court proceeding must be brought in a court of the State or Territory where
the debtor, mortgagor or guarantor ordinarily resided at the time the credit
contract, consumer lease, mortgage or guarantee was made.
(5) Subject to subregulation
(6), a court proceeding should be filed in the registry of a court of the State
or Territory where the debtor, mortgagor or guarantor ordinarily resides, if
the court proceeding:
(a) is in relation
to:
(i) a credit
contract; or
(ii) a
consumer lease; or
(iii) a
mortgage; or
(iv) a
guarantee;
regulated under
the Act; and
(b) involves a debtor,
mortgagor or guarantor; and
(c) is brought in the
Federal Court or the Federal Magistrate’s Court.
(6) For subregulation (5), if
it is not known where the debtor, mortgagor or guarantor ordinarily resides,
the court proceeding must be filed in the registry of a court of the State or
Territory where the debtor, mortgagor or guarantor ordinarily resided at the
time the credit contract, consumer lease, mortgage or guarantee was made.
(7) Subregulation (8) applies
if a court proceeding is in relation to a credit contract:
(a) that is not a
standard form contract (within the meaning of section 12BK of the Australian
Securities and Investments Commission Act 2001); and
(b) that states that a
court proceeding in relation to the credit contract must be brought in a court
of a particular State or Territory.
(8) For subregulation (7):
(a) subregulations (3)
to (6) do not apply to the court proceedings; and
(b) the court
proceeding must be brought in a court of the State or Territory stated in the
credit contract.
(9) The court proceedings
mentioned in subregulations (3), (4) and (8) may be transferred to a court of
another State or Territory under Part 4‑3, Division 2, Subdivision C of the
Act.
Part 6‑2 Infringement notices
37 Purpose of Part
6‑2
(1) The
purpose of this Part is to set out a scheme under section 331 of the Act
under which:
(a) a person who is
alleged to have committed an offence against the Act that is stated to be an
offence of strict liability may pay a penalty to the Commonwealth as an
alternative to prosecution; and
(b) a person who is
alleged to have contravened a civil penalty provision may pay a penalty to the
Commonwealth as an alternative to civil proceedings.
(2) This Part does not
require an infringement notice to be given
to a person for the alleged commission of an offence or contravention of a
civil penalty provision.
(3) This Part does not affect
the liability of a person to prosecution for the commission of an alleged
offence or contravention of a civil penalty provision if an infringement notice
is not given to the person.
(4) This Part does not affect
the liability of a person to prosecution for the commission of an alleged
offence or contravention of a civil penalty provision if:
(a) an infringement
notice is given to the person; and
(b) the person does not
pay the penalty stated in the notice in accordance with regulation 44.
(5) This Part does not limit
or otherwise affect:
(a) the penalty that a
court could impose on the person for the offence; or
(b) the penalty that a
court could impose on the person for contravention of the civil penalty
provision.
38 Definitions for Part 6‑2
In this Part:
infringement notice means an infringement notice under regulation 39.
infringement notice
offence means:
(a) an offence against
the Act that is stated to be an offence of strict liability; or
(b) a contravention of
1 of the following civil penalty provisions in the Act:
(i) subsection
30 (1) or (2);
(ii) subsection
32 (1);
(iii) subsection
51 (1);
(iv) subsection
73 (3) or (5);
(v) subsection
88 (1);
(vi) subsection
95 (1);
(vii) subsection
98 (1);
(viii) subsection
99 (1), (2) or (3);
(ix) subsection
100 (1) or (2);
(x) subsection
114 (1), (4), (5) or (6);
(xi) subsection
115 (1) or (2);
(xii) subsection
117 (1);
(xiii) subsection
118 (1);
(xiv) subsection
119 (1);
(xv) subsection
121 (1);
(xvi) subsection
122 (1);
(xvii) subsection
123 (1);
(xviii) subsection
124 (1);
(xix) section
128;
(xx) subsection
130 (1);
(xxi) subsection
131 (2);
(xxii) subsection
133 (1);
(xxiii) subsection
137 (1), (4), (5) or (6);
(xxiv) subsection
138 (1) or (2);
(xxv) subsection
140 (1);
(xxvi) subsection
141 (1);
(xxvii) subsection
142 (1);
(xxviii) subsection
144 (1);
(xxix) subsection
145 (1);
(xxx) subsection
146 (1);
(xxxi) subsection
147 (1);
(xxxii) section
151;
(xxxiii) subsection
153 (1);
(xxxiv) subsection
154 (2);
(xxxv) subsection
156 (1);
(xxxvi) subsection
229 (1).
nominated person, in relation to an infringement notice, means the person
specified in the notice as the nominated person.
Note The nominated person is responsible for the administration
of the infringement notice for the purposes of the payment of a penalty and the
withdrawal of the notice.
recipient, in relation to an infringement notice, means the person
to whom the notice is given under regulation 39.
39 When an infringement notice can be given
Alleged commission of offence against
the Act
(1) If ASIC has reasonable
grounds to believe that a person has committed an offence against the Act that
is stated to be an offence of strict liability, ASIC may give to the person an
infringement notice relating to the alleged commission of the offence.
(2) The infringement notice
must be given within 12 months after the day on which the offence is alleged to
have been committed.
(3) If an infringement notice
given to a person in relation to the alleged commission of a particular offence
is withdrawn, ASIC may give the person a new infringement notice in relation to
the alleged commission.
Example for subregulation (3)
An infringement notice given to
a person in relation to the alleged commission of a particular offence may be
withdrawn, and a new infringement notice given to the person in relation to
that alleged commission, if the original infringement notice contained an
error.
Alleged contravention of civil penalty
provision
(4) If ASIC has reasonable
grounds to believe that a person has contravened a civil penalty provision
mentioned in paragraph (b) of the definition of infringement notice
offence in regulation 38, ASIC may give to the person an infringement
notice relating to the alleged contravention.
(5) The infringement notice
must be given within 12 months after the day on which the civil penalty
provision is alleged to have been contravened.
(6) If an infringement notice
given to a person in relation to the alleged contravention of a particular
civil penalty provision is withdrawn, ASIC may give the person a new
infringement notice in relation to the alleged contravention.
Example for subregulation (6)
An infringement notice given to
a person in relation to the alleged contravention of a particular civil penalty
provision may be withdrawn, and a new infringement notice given to the person
in relation to that alleged contravention, if the original infringement notice
contained an error.
40 Contents of
infringement notice
An
infringement notice:
(a) must be in
accordance with Form 3; and
(b) may contain any other
information that ASIC considers necessary.
41 Amount of penalty if infringement notice given
(1) The penalty payable under
an infringement notice for an alleged commission of an offence against the Act
that is stated to be an offence of strict liability is:
(a) for an
individual — one‑fifth of the maximum penalty that a court could
impose on the person for that offence; and
(b) for a body
corporate — the maximum penalty that a court could impose on an
individual for that offence.
(2) The
penalty payable under an infringement notice for an alleged contravention of a
civil penalty provision mentioned in paragraph (b) of the definition of infringement
notice offence in regulation 38 is:
(a) for an
individual — 50 penalty units; and
(b) for a body corporate —
250 penalty units.
Note Under section 331 of the Act:
(a) the penalty for an offence
against the Act that is stated to be an offence of strict liability must not
exceed one‑fifth of the maximum penalty that a court could impose on the person
for that offence; and
(b) the penalty for a
contravention of a civil penalty provision must not exceed one‑fortieth of the
maximum penalty that a court could impose on the person for contravention of
that provision.
42 Extension of time to pay penalty
(1) Within 28 days after
receiving an infringement notice, the recipient may apply, in writing, to the
nominated person for a further period of up to 28 days in which to pay the
penalty stated in the notice.
(2) The application must:
(a) specify the
infringement notice’s unique identification code; and
(b) set out the reasons
for the application.
(3) Within 14 days after
receiving the application, the nominated person must:
(a) grant or refuse a
further period not longer than the period sought (but less than 28 days); and
(b) notify the
recipient in writing of the decision and, if the decision is a refusal, the
reasons for the decision.
(4) If the nominated person
has not granted, or refused to grant, the further period within 14 days after
receiving the application, the nominated person is taken to have refused to
grant the further period.
43 Payment of penalty by instalments
(1) Within 28 days after
receiving an infringement notice, the recipient may apply, in writing, to the
nominated person for permission to pay the amount of the infringement notice
penalty by instalments.
(2) The application must:
(a) specify the
infringement notice’s unique identification code; and
(b) set out the reasons
for the application; and
(c) specify the amount
and frequency of the instalments that the recipient proposes to pay.
(3) Within 14 days after
receiving the application, the nominated person must:
(a) grant or refuse to
grant permission for payment by instalments; and
(b) give the recipient
written notice of the decision, including:
(i) if
permission is granted — the amount and frequency of the instalments; and
(ii) if
permission is refused — the reasons for refusal.
(4) If the nominated person
has not granted, or refused to grant, permission for payment by instalments
within 14 days after receiving the application, the nominated person is taken
to have refused to grant permission for payment by instalments.
44 Time for payment of penalty
(1) The
penalty stated in an infringement notice must be paid within:
(a) 28 days after the
day on which the notice is given to the recipient; or
(b) another period
required by this regulation.
(2) If the recipient applies
for a further period of time in which to pay the penalty, and the application
is granted, the penalty must be paid within the further period allowed.
(3) If the recipient applies
for a further period of time in which to pay the penalty, and the application
is refused or is taken to have been refused, the penalty must be paid within
the later of:
(a) 7 days after:
(i) the
notice of the refusal is given to the recipient; or
(ii) the
application is taken to have been refused; and
(b) 28 days after the
day on which the infringement notice was given to the recipient.
(4) If the recipient applies
for permission to pay the penalty by instalments, and permission is granted,
the penalty must be paid in accordance with the permission.
(5) If the recipient applies
for permission to pay the penalty by instalments, and permission is refused or
is taken to have been refused, the penalty must be paid within the later of:
(a) 7 days after:
(i) the
notice of the refusal is given to the recipient; or
(ii) the
application is taken to have been refused; and
(b) 28 days after the
day on which the infringement notice was given to the recipient.
(6) If the recipient applies
for the notice to be withdrawn, and the application is refused or is taken to
have been refused, the penalty must be paid within the later of:
(a) 7 days after:
(i) the
notice of the refusal is given to the recipient; or
(ii) the
application is taken to have been refused; and
(b) 28 days after the
day on which the infringement notice was given to the recipient.
45 Effect of payment of penalty
Alleged commission of offence against
the Act
(1) If:
(a) an infringement
notice is given in relation to an alleged commission of an offence against the
Act that is stated to be an offence of strict liability; and
(b) the infringement
notice is not withdrawn; and
(c) the recipient pays
the penalty stated in the notice in accordance with regulation 44;
the consequences mentioned in
subregulation (2) apply.
(2) The effects are:
(a) any liability of
the recipient for the alleged offence is discharged; and
(b) no prosecution may
be brought against the recipient for the alleged offence; and
(c) the recipient is
not taken to have admitted guilt in respect of the alleged offence; and
(d) the recipient is
not taken to have been convicted of the offence.
Alleged contravention of civil penalty
provision
(3) If:
(a) an infringement
notice is given in relation to an alleged contravention of a civil penalty
provision; and
(b) the infringement
notice is not withdrawn; and
(c) the recipient pays
the penalty stated in the notice in accordance with regulation 44;
the consequences mentioned in
subregulation (4) apply.
(4) The effects are:
(a) any liability of
the recipient for the alleged contravention is discharged; and
(b) no civil
proceedings may be brought by the Commonwealth against the recipient for the
alleged contravention; and
(c) the recipient is
not taken to have admitted guilt in respect of the alleged contravention; and
(d) the recipient is
not taken to have been found guilty of the contravention.
Note A consumer is not prevented from commencing a civil
proceeding against the recipient under section 178 or 179 of the Act. ASIC is
not prevented from applying for an order on behalf of a plaintiff in accordance
with those sections.
46 Withdrawal of infringement notice by nominated
person
(1) Within 28 days after
receiving an infringement notice, the recipient may apply, in writing, to the
nominated person for the infringement notice to be withdrawn.
(2) The application must:
(a) specify the
infringement notice’s unique identification code; and
(b) set out the reasons
for the application.
(3) Within 14 days after
receiving the application, the nominated person must:
(a) withdraw or refuse
to withdraw the notice; and
(b) notify the
recipient in writing of the decision and, if the decision is a refusal, the
reasons for the decision.
(4) Without limiting
subregulation (3), the nominated person may withdraw the infringement
notice after taking into account the following matters:
(a) whether the
recipient:
(i) has been
previously convicted of an offence against the Act; or
(ii) has been
previously found to have contravened a civil penalty provision;
(b) the circumstances
in which the commission or contravention set out in the infringement notice
offence specified in the notice is alleged to have occurred;
(c) whether
an infringement notice has previously been given to the recipient in relation
to an infringement notice offence of the same kind as the offence specified in
the notice, and in relation to which the recipient paid the penalty under the
notice;
(d) any other relevant
matter.
(5) If the nominated person
has not withdrawn, or refused to withdraw, the notice within 14 days after
receiving the application, the nominated person is taken to have refused to
withdraw the notice.
47 Withdrawal of infringement notice by ASIC
(1) ASIC may withdraw an
infringement notice given by ASIC without an application under
regulation 46 having been made.
(2) Without limiting
subregulation (1), ASIC may withdraw the infringement notice after taking
into account a matter mentioned in paragraph 46 (4) (a), (b), (c) or
(d).
48 Notice of withdrawal of infringement notice
(1) A notice withdrawing an
infringement notice must include the following information:
(a) the full name, or
surname and initials, and address of the recipient;
(b) the date the
infringement notice was given;
(c) the infringement
notice’s unique identification code.
(2) The notice must also state
that the notice is withdrawn.
49 Refund of penalty
If an infringement notice
is withdrawn after the penalty stated in it has been paid, the Commonwealth
must refund the amount of the penalty to the person who paid it.
Chapter 7 Matters in relation to
the National Credit Code
Part 7‑1 Exemptions,
declarations and other matters
50 Continued application of Part 12 of the Code
and interpretation provisions
(1) This regulation applies
despite a statement in a provision of this Part that:
(a) the Code does not
apply to a particular matter; or
(b) the Code, other
than a particular provision or provisions (the prescribed provision or
provisions), does not apply to a particular matter; or
(c) a particular
provision or provisions of the Code (the prescribed provision or
provisions) does not apply to a particular matter.
(2) The Code applies in
relation to the particular matter and the prescribed provision or provisions to
the extent necessary for the interpretation of the particular matter and the
prescribed provision or provisions.
(3) Part 12 of the Code
applies in relation to the particular matter and the prescribed provision or
provisions to the extent the context permits.
51 Exempt credit — maximum account charges
For subsection
6 (5) of the Code, the prescribed maximum charge is:
(a) for the period of
12 months after the continuing credit contract is made — $200; and
(b) for
any subsequent period of 12 months — $125.
Note Subsection 6 (5) of the Code
provides that the Code does not apply to the provision of credit under a
continuing credit contract if the only charge that is or may be made for providing
the credit is a periodic or other fixed charge that does not vary according to
the amount of credit provided. However, the Code applies if the charge exceeds
the maximum charge (if any) prescribed by the regulations.
52 Additional exempt credit
The Code, other than
Division 3 of Part 4 and Part 5, does not apply to a contract, other than a
continuing credit contract, to the extent that the contract provides for the
provision of credit in the following circumstances:
(a) the amount of
credit to be provided does not at any time exceed $50;
(b) there is no
insurance financed under the contract;
(c) there is no
mortgage or guarantee taken by the credit provider;
(d) the annual
percentage rate for the contract does not exceed the maximum annual percentage
rate (if any) for the contract if it were a contract to which the Code applies.
Note Section 203B of the Code provides, among other things, that
the regulations may exempt a contract or a class of contracts from all or
specified provisions of the Code.
53 GIO Finance Limited’s No Interest Loan
Scheme — exemption from Code
(1) This regulation applies to
the scheme (the No Interest Loan Scheme) that is operated by GIO
Finance Limited ACN 002 812 704 in accordance with the deed of
agreement executed on 26 June 1992 by the New South Wales Minister for Further
Education, Training and Employment and GIO Finance Limited.
(2) The Code does not apply to
the provision of credit under the No Interest Loan Scheme.
Note Subsection 6 (13) of the Code provides that the
regulations may exclude the provision of credit of any class from the Code.
54 Rental Purchase Plan — exemption from
certain provisions of Code
The Code, other than
sections 76 to 81, does not apply to a contract to the extent that the contract
provides for the provision of credit under the Queensland Government scheme
known as the Rental Purchase Plan Scheme, and formerly known as the H.O.M.E.
Shared Scheme.
Note Section 203B of the Code provides, among other things, that
the regulations may exempt a contract or a class of contracts from all or
specified provisions of the Code.
55 Partnership loans — exemption from certain
provisions of Code
(1) The Code, other than:
(a) Part 1; and
(b) Division 3 of Part
4; and
(c) Divisions 4 and 5
of Part 5; and
(d) Part 7;
does not apply to a contract to the
extent that the contract provides for the provision of credit by a firm, or by
a related body corporate of the firm, to a partner of the firm, whether or not
the credit is provided to the partner with another person.
(2) However, for a credit
provider who provides credit in the course of a business of providing credit to
which the Code applies to partners of a firm and to others, this regulation
applies only to the provision of credit on terms that are more favourable to
the debtor than the terms on which the credit provider provides credit to which
the Code applies to persons who are not partners of the firm.
(3) In this regulation:
(a) a partner of a
firm includes a former partner of a firm and an employee or former employee of
the firm; and
(b) a
related body corporate of a firm is a body corporate that is ultimately wholly
owned by all or some of the partners of the firm or by other persons on their
behalf.
Note Section 203B of the Code provides, among other things, that
the regulations may exempt a contract or a class of contracts from all or
specified provisions of the Code.
56 Student loans — exemption from certain
provisions of Code
(1) The Code, other than
subsection 61 (1) and sections 76 to 81, does not apply to a
contract to the extent that the contract provides for the provision of credit
by a higher educational institution, or by an association of students of the
institution, to a student of the institution on the grounds of hardship or of
an emergency.
(2) However, subsection (1)
applies only if the institution or association gives the debtor and any
guarantor the following things before the contract for the provision of credit
is entered into by the debtor or the guarantee is signed by the guarantor:
(a) a statement of the
costs of the provision of credit, which must include any fees or charges
payable and the interest rate applicable and may include other information;
(b) a copy of the terms
and conditions of the contract for the provision of credit.
(3) In this regulation:
association of students, of a higher educational institution, means a union, guild
or other association of students:
(a) of the
institution; or
(b) of the institution
and of other higher educational institutions.
higher educational
institution means an institution
within the meaning given by section 4 of the Higher Education Funding Act
1988.
Note Section 203B of the Code provides, among other things,
that the regulations may exempt a contract or a class of contracts from all or
specified provisions of the Code.
57 Loans for conservation of heritage items —
exemption from Code
(1) The Code does not apply to
the provision of credit under section 106 of the Heritage Act 1977
(NSW).
(2) The Code does not apply to
the provision of credit under section 12 of the Heritage Act 1993 (SA),
but only in respect of loans made from the State Heritage Fund to owners of
land constituting places entered in the State Heritage Register established
under that Act.
(3) The Code does not apply to
the provision of credit under section 140 of the Heritage Act 1995
(Vic).
Note Subsection 6 (13) of the Code provides that the
regulations may exclude the provision of credit of any class from the Code.
58 ADIs — exemption from Code
The Code does not apply
to the provision of credit by an ADI limited by the contract to a total period
not exceeding 62 days.
Note Subsection 6 (13) of the Code provides that the
regulations may exclude the provision of credit of any class from the Code.
59 Estate administrators — exemption from
certain provisions of Code
(1) The Code, other than
sections 76 to 81, does not apply to a public official or a public body
authorised by any law or court to administer a person’s estate, to the extent
that the public official or public body is providing credit to the person’s
estate, whether or not the person is deceased.
(2) In this regulation:
estate includes trust property.
public body includes a corporation owned or controlled by:
(a) the Commonwealth;
or
(b) a State or
Territory; or
(c) an
authority of the Commonwealth or a State or Territory.
Note Section 203B of the Code provides, among other things, that
the regulations may exempt a person or a class of persons from all or specified
provisions of the Code.
60 Credit under Aged Care Act 1997 —
exemption from certain provisions of Code
The Code, other than sections
72 to 74 and 76 to 81, does not apply to an approved provider (within the same
meaning as in the Aged Care Act 1997) to the extent that the approved
provider is providing credit that is made and regulated under that Act.
Note Section 203B of the Code provides, among other things, that
the regulations may exempt a person or a class of persons from all or specified
provisions of the Code.
61 Firefighter’s Benefit Fund of WA
Incorporated — exemption from certain provisions of Code
The Code, other than
Division 3 of Part 2, Division 3 of Part 4 and Divisions 1 and 2 of Part 5,
does not apply to a contract to the extent that the contract provides for the
provision of credit to a person by the Firefighter’s Benefit Fund of WA
Incorporated (the fund) in the following
circumstances:
(a) the person is a
member of the fund;
(b) the application
form by which the person applies for the credit states an annual percentage
rate for the credit;
(c) the contract:
(i) fixes,
for the whole term of the contract, an annual percentage rate that is the same
as the rate stated in the application form; and
(ii) does not
provide for varying the rate.
Note Section 203B of the Code provides, among other things, that
the regulations may exempt a contract or a class of contracts from all or
specified provisions of the Code.
62 Charge card contracts — exemption of
certain contracts from Code
(1) The Code does not apply
to the provision of credit under a charge card contract made available by any
of the following credit providers:
(a) American Express
Australia Limited ACN 108 952 085;
(b) American Express
International Inc. ARBN 000 618 208;
(c) Diners Club Pty
Limited ACN 004 343 051;
(d) Motorcharge Limited
ACN 008 962 132.
Examples
1 American
Express Platinum Card.
2 Diners Club
Personal Card.
3 Motorcharge
Card.
(2) In subsection (1):
charge card contract means a credit contract under which:
(a) credit is
ordinarily obtained by the use of a card; and
(b) multiple advances
of credit are contemplated; and
(c) the provision of
an advance of credit is limited to a total period of not more than 62 days; and
(d) monthly or other
periodic statements of account are provided to the debtor; and
(e) liquidated damages
or charges for late payment are payable by the debtor if the debtor does not
repay an advance of credit mentioned in a monthly or other periodic statement
of account within a stated period.
Note Subsection 6 (13) of the Code provides that the
regulations may exclude the provision of credit of any class from the Code.
63 Credit providers providing credit to
directors — exemption from certain provisions of Code
(1) The Code, other than:
(a) Part 1; and
(b) Part 4; and
(c) Division 3 of Part
5; and
(d) Divisions 4 and 5
of Part 7; and
(e) Parts 12, 13 and
14;
does not apply to a credit provider, or a
related body corporate of a credit provider, to the extent that the credit
provider or related body corporate is providing credit to a director of the
credit provider, other than a former director, whether or not the credit is
provided to the director with another person.
(2) However, for a credit
provider who provides credit in the course of a business of providing credit to
which the Code applies to directors and to others, this regulation applies only
to the provision of credit on terms that are more favourable to the debtor than
the terms on which the credit provider provides credit to which the Code
applies to persons who are not directors of the employer.
Note Section 203B of the Code provides, among
other things, that the regulations may exempt a person or a class of persons
from all or specified provisions of the Code.
64 Mortgages — exemptions from Code
(1) The Code does not apply
to the following mortgages:
(a) a mortgage
relating to perishable goods, livestock, primary produce or food stuffs;
(b) a banker’s right to
combine accounts;
(c) a lien or charge
arising by operation of any Act or law or by custom.
(2) However, sections 16 and
17 of the Code (relating to disclosures) apply in respect of a mortgage
mentioned in paragraph (1) (a).
(3) Section 91 of the Code
does not apply to any mortgage relating to goods that are lawfully in the
possession of the credit provider.
Note This regulation is made under subsection 7 (3)
of the Code.
65 Guarantees — exemption from Code
The Code does not apply
to any guarantee by the supplier under a tied loan contract or tied continuing
credit contract.
Note This regulation is made under subsection
8 (3) of the Code.
65A Indigenous
Business Australia — exemption from certain provisions of Code
The Code, other than
sections 72 to 81, does not apply to Indigenous Business Australia.
Note 1 Section 203B of the Code provides, among other things, that
the regulations may exempt a person or a class of persons from all or specified
provisions of the Code.
Note 2 Indigenous Business Australia is
the former Aboriginal and Torres Strait Islander Commercial
Development Corporation, renamed in accordance with subsection 145 (1) of
the Aboriginal and Torres Strait Islander Act 2005.
65B Exemption —
providing credit in relation to a residential investment property
(1) Section 16 of the Code does not apply to a person to
the extent that:
(a) the person enters into a credit contract as
a credit provider; and
(b) the credit is provided or intended to be
provided
wholly or predominantly for a purpose mentioned in subparagraph 5 (1) (b) (ii)
or (iii) of the Code; and
(c) the person made the offer in relation to the
contract before 1 July 2010; and
(d) the borrower accepted the offer on or after 1
July 2010.
Note Section 203B of the Code provides,
among other things, that the regulations may exempt a person or a class of
persons from all or specified provisions of the Code.
(2) This regulation ceases to have effect on 1 October
2010.
65C Residential
investment property loans — exemption from Code
The Code does not apply to the provision of credit
if:
(a) the credit is provided for either of the
following purposes:
(i) to purchase, renovate or improve
residential property for investment purposes; or
(ii) predominantly to refinance credit
that has been provided wholly or predominantly to purchase, renovate or improve
residential property for investment purposes; and
(b) the credit is not provided for the purpose of
investment in a single residence; and
(c) the total amount if the credit provided, or
to be provided, is more than $5 000 000.
Note Subsection 6 (13) of the Code
provides that the regulations may exclude the
provision of credit of any class from the Code.
66 Deemed mortgages for goods lease with option to
purchase
For paragraph
9 (3) (f) of the Code, the terms and conditions of a mortgage are set
out in Form 4.
Note Section 9 of the Code treats a goods
lease with an option to purchase to be a sale of goods by instalments for the
purposes of the Code.
If the lease is a credit contract
because of subsection 5 (1) of the Code, a mortgage containing the terms
and conditions set out in the regulations is taken by paragraph
9 (3) (f) of the Code to have been entered into between the person to
whom the goods are hired and the supplier as security for payments to the
supplier by the hirer.
67 Prescribed person in relation to a declaration
For subsection 13 (3) of
the Code, the prescribed person is:
(a) if the person who
obtained the declaration from the debtor was the credit provider — a person
associated with the credit provider; or
(b) if the person who
obtained the declaration from the debtor was a person associated with the
credit provider — the person associated with the credit provider; or
(c) if the person who
obtained the declaration from the debtor was not the credit provider or a
person associated with the credit provider — any of the following:
(i) a person
who obtained the declaration from the debtor;
(ii) a person
who referred the debtor to the person who obtained the declaration (whether the
referral was for the purpose of obtaining the declaration or otherwise);
(iii) a person
who suggested that the debtor apply for the provision of credit, and the
suggestion was made during the course of, as part of, or incidentally to, a
business carried on in this jurisdiction by the person;
(iv) a person
who assisted the debtor to apply for the provision of credit, and the
assistance was given during the course of, as part of, or incidentally to, a
business carried on in this jurisdiction by the person.
68 Declaration of
purposes for which credit provided
(1) For
subsection 13 (5) of the Code, the form of the declaration is:
‘I/We
declare that the credit to be provided to me/us by the credit provider is to be
applied wholly or predominantly for:
·
business purposes; or
·
investment purposes other than
investment in residential property.’
(2) The declaration must contain the following
warning immediately below the words of the declaration mentioned in
subregulation (1) or, if the declaration is to be made by electronic
communication, prominently displayed when (but not after) the person signs:
|
IMPORTANT
You
should only sign this declaration if this loan is wholly or
predominantly for:
·
business purposes; or
·
investment purposes other than
investment in residential property.
By signing this declaration you may lose
your protection under the National Credit Code.
|
(3) The declaration must
contain:
(a) the signature of
each person making the declaration; and
(b) either:
(i) the date
on which the declaration is signed; or
(ii) the date
on which it is received by the credit provider.
Note The Code applies only to credit provided
or intended to be provided for:
(a) personal, domestic or
household purposes; or
(b) the purchase, renovation or
improvement of residential property used for investment purposes; or
(c) the refinancing of credit
that has been provided wholly or predominantly for the purchase, renovation or
improvement of residential property used for investment purposes.
Subsection 13 (2) of the
Code provides that credit is presumed not to be provided for Code purposes if
the debtor declares, before entering into the credit contract, that the credit
is to be applied wholly or predominantly for business or investment purposes
(or for both purposes), other than investment in residential property.
The declaration is not effective unless
it is substantially in the form required by the regulations.
69 Direct debit default notices — exemption for
credit providers
(1) Subsection 87 (2) of
the Code does not apply to a credit provider if the default mentioned in
subsection 87 (1) of the Code is rectified before the credit provider is
required to give the direct debit default notice under subsection 87 (2).
(2) If:
(a) the default is
rectified before the credit provider is required to give the direct debit
default notice under subsection 87 (2) of the Code; and
(b) the credit provider
does not give the direct debit default notice;
the default is not taken to be the first
occasion the default occurs for paragraph 87 (1) (c) of the Code.
Note Section 203B of the Code provides, among other things, that
the regulations may exempt a person or a class of persons from all or specified
provisions of the Code.
Part 7‑2 Credit contracts
70 Statement about debtor’s statutory rights and
obligations
(1) For paragraph
16 (1) (b) of the Code, an information statement must:
(a) be in writing; and
(b) be in accordance
with Form 5.
(2) The information statement
may be in the form of a separate document or a part of the credit contract
document.
Note Paragraph 16 (1) (b) of the
Code requires a credit provider to give a prospective debtor an information
statement in the form required by the regulations of the debtor’s statutory
rights and statutory obligations.
The statement must be given before the
contract is entered into or before the debtor makes an offer to enter into the
contract, whichever first occurs.
In accordance with subregulation
6 (5), the information need not contain any matter set out in Form 5 if it
is not relevant to the credit contract concerned. For example, information
about mortgages is not required for an unsecured loan.
71 Comparison rate
(1) This regulation applies
if:
(a) a credit provider,
before entering into a credit contract, informs the debtor of the comparison
rate in accordance with subsection 16 (3) of the Code; or
(b) a person publishes,
or causes to be published, an advertisement that states or implies that credit
is available and includes in the advertisement the comparison rate in
accordance with Part 10 of the Code.
(2) The comparison rate must
be calculated as a nominal rate per annum, together with the compounding
frequency, in accordance with this regulation.
(3) The comparison rate is
calculated using the formula:
where:
n is the number of repayments per annum to be made under the
credit contract (annualised if the term of the contract is less than 12
months), except that:
(a) if repayments are
to be made weekly, n is 52.18; and
(b) if repayments are
to be made fortnightly, n is 26.09; and
(c) if the contract
does not provide for a constant interval between repayments, n is
to be derived from the interval selected for the purposes of the definition of j.
r is the solution of:
where:
Aj is the amount of credit to be provided under the contract
at time j (the value of j for the provision of the
first amount of credit is taken to be zero).
Cj is the fee or charge (if any) payable by the debtor at time
j in addition to the repayments Rj,
being a credit fee or charge (other than a government fee, charge or duty) that
is ascertainable when the comparison rate is disclosed (whether or not the
credit fee or charge is payable if the credit is not provided).
j is the time, measured
as a multiple (not necessarily integral) of the interval between contractual
repayments that will have elapsed since the first amount of credit is provided
under the credit contract, except that if the contract does not provide for a
constant interval between repayments an interval of any kind is to be selected
by the credit provider as the unit of time.
Rj is the repayment to be made at time j.
t is the time, measured
as a multiple of the interval between contractual repayments (or other interval
so selected) that will elapse between the time when the first amount of credit
is provided and the time when the last repayment is to be made under the
contract.
(4) The comparison rate must
be correct to at least the nearest one hundredth of 1% per annum.
(5) In the application of the
above formulae, reasonable approximations may be made if it would be
impractical or unreasonably onerous to make a precise calculation.
Example
If repayments are to be made on
a fixed day each month, it may be assumed that repayments will be made on that
day each month even though the credit contract provides for payment on the
preceding or succeeding business day when the due date is not a business day.
(6) The tolerances and
assumptions under sections 180 to 182 of the Code apply to the calculation of
the comparison rate.
(7) The comparison rate must
be accompanied by a statement of the amount of credit on which it is based and
the term for which credit is provided.
(8) In the case of a
comparison rate under subsection 16 (3) of the Code:
(a) the amount of
credit is to be the amount (or the maximum amount) required by the debtor; and
(b) the term for which
credit is provided is to be the term (or the maximum term) required by the
debtor; and
(c) the amount of
credit, in the case of a continuing credit contract, is not to exceed the
credit limit required by the debtor.
(9) If the debtor does not
make a requirement in relation to a matter mentioned in paragraph (8) (a), (b)
or (c), the credit provider may determine the matter.
(10) In the case of a
comparison rate under Part 10 of the Code:
(a) the amount of
credit and term are to be typical of the type of credit contract offered in the
advertisement; and
(b) a number of
comparison rates may be included in the advertisement for different credit
contracts if the amount of credit and term applicable to each of the rates are
clearly stated.
(11) At
the time that the debtor is informed of the comparison rate under subsection
16 (3) of the Code, the debtor must be given the following warning by the
credit provider in writing:
‘WARNING: This
comparison rate applies only to the example or examples given. Different
amounts and terms will result in different comparison rates. Costs such as
redraw fees or early repayment fees, and cost savings such as fee waivers, are
not included in the comparison rate but may influence the cost of the loan.’
(12) An advertisement that
contains a comparison rate in accordance with Part 10 of the Code must include
a warning that the comparison rate is accurate only for the example given.
(13) A warning under this
regulation must be given immediately after the comparison rate is given.
Note 1 Subsection 16 (3) of
the Code provides that the credit provider may inform the debtor of the
comparison rate before entering into the contract.
Note 2 Part 10 of the Code provides that a
person who publishes an advertisement about the availability of credit may
include in the advertisement the comparison rate. If the credit provider or
person does so, the comparison rate must be calculated as prescribed by the
regulations and be accompanied by the warnings set out in the regulations.
72 Pre‑contractual statement
(1) For subsection
16 (4) of the Code, the following financial information (relevant
financial information) mentioned in section 17 of the Code, which is to
be contained in the precontractual statement, is prescribed:
(a) for subsection
17 (3) (Amount of credit):
(i) the
amount of credit agreed to be provided (if ascertainable); or
(ii) if the
amount is not ascertainable — the maximum amount of credit agreed to be
provided, or the credit limit under the contract (if any);
(b) for subsection
17 (4) (Annual percentage rate or rates) — the information mentioned
in the subsection, other than the information mentioned in subparagraph
17 (4) (c) (iii);
(c) for subsection
17 (5) (Calculation of interest charges) — the maximum duration of
any interest free period under the credit contract;
(d) for subsection
17 (6) (Total amount of interest charges payable) — the information
mentioned in the subsection;
(e) for subsection
17 (7) (Repayments) — the information mentioned in the subsection;
(f) for subsection
17 (8) (Credit fees and charges) — the information mentioned in
paragraphs 17 (8) (a) and (b), but only in respect of:
(i) retained
credit fees and charges (being credit fees and charges retained by the credit
provider and not passed on to or retained in reimbursement of an amount paid to
a third party); and
(ii) lenders
mortgage insurance.
(2) The relevant financial
information is to be set out:
(a) separately from
the remainder of the information under section 17 of the Code that is to be set
out in the precontractual statement; and
(b) in tabular form
(the financial table), in either portrait or landscape format.
(3) Additional information
may be included in the financial table, but only in the following
circumstances:
(a) any information
mentioned in subsection 17 (3), (4), (5) or (8) of the Code that is
not relevant financial information may be included with the relevant financial
information;
(b) any other
information mentioned in subsection 17 (2) or subsections 17 (9) to
(16) of the Code may be included after the relevant financial information and
any information included under paragraph (a).
(4) If the relevant financial
information relates to more than one type of credit facility, the information
may be set out in a single financial table or in separate financial tables.
(5) The financial table is to
be set out at the beginning of the precontractual statement, after any formal cover
page or pages that have no substantive content.
(6) However:
(a) if the
precontractual statement is not a separate document, the financial table is to
be set out at the beginning of the proposed contract document; and
(b) the financial table
may be preceded by information necessary to identify the loan.
(7) If the precontractual
statement consists of more than one document, the financial table need not be
repeated.
(8) If any of the relevant
financial information can change under the credit contract because of a
unilateral change by the credit provider:
(a) a clear statement
must be made in the financial table that it is subject to change and that the
change can be made without the debtor’s consent; and
(b) a single statement
may be made for 2 or more items of information that are subject to change.
(9) An expression may be used
for the purposes of the relevant financial information if the expression is
defined in the precontractual statement.
(10) The relevant date of
disclosure of the information in the financial table may be set out in the
financial table.
(11) This regulation does not
prevent a repetition of the relevant financial information in the financial
table in any other form in connection with the remainder of the information
under section 17 of the Code that is to be set out in the precontractual
statement.
Note Paragraph 16 (1) (a) of the
Code requires a credit provider to give a prospective debtor a precontractual
statement setting out matters required by section 17 of the Code to be included
in the credit contract document. The precontractual statement must be given
before the credit contract is entered into or before the debtor makes an offer
to enter into the contract, whichever first occurs.
Under subsection 16 (4) of the Code,
the regulations may specify the financial information that is to be contained
in the precontractual statement, and prescribe the form in which the
information must appear.
73 Additional disclosures about insurance financed
by contract
For paragraph 17 (15) (c)
of the Code, the term of each credit‑related insurance contract, if
ascertainable, is prescribed.
Note Subsection 17 (15) of the Code sets
out the disclosures to be made about credit‑related insurance contracts that
are to be financed under the credit contract. Paragraph 17 (15) (c)
enables the regulations to prescribe additional particulars about the insurance
that is to be disclosed.
74 Additional disclosures about credit contracts
to be signed by debtor
(1) For subsection
17 (16) of the Code, the information and warnings set out in Form 6 or 7,
as relevant, are prescribed, but only if the credit contract document is to be
signed by the debtor.
(2) Form 6 is the relevant
form if the document signed by the debtor constitutes an offer.
(3) Form 7 is the relevant
form if the document signed by the debtor constitutes the acceptance of an
offer by the credit provider.
(4) The information and
warnings mentioned in subsection (1):
(a) are to be in the
relevant form (including in the form of boxes); and
(b) must:
(i) be set
out immediately above, and on the same page as, each place where the debtor (or
at least one of the debtors) is to sign the contract document; or
(ii) if a
contract is made by electronic communication — be prominently displayed
when, but not after, the debtor (or if 2 or more debtors, each debtor) signs.
Note 1 Section 17 of the Code sets out the
matters to be included in the credit contract document. Subsection 17 (16)
requires the contract document to contain any additional information or
warnings required by the regulations.
Note 2 Section 18 of the Code requires a
contract document to conform to the requirements of the regulations as to its
form and the way it is expressed.
75 Deduction of amount for interest charges
Subsection 25 (1) of
the Code does not apply to the deduction of an amount for the first payment of
interest charges under a credit contract, but only if the deduction relates to
interest charges for a period that is less than the normal period for which interest
charges are to be periodically debited to the debtor’s account.
Note 1 Subsection
25 (1) of the Code provides, among other things, that a credit provider
must not deduct from a payment to, or in accordance with the instructions of,
the debtor an amount for interest charges under the credit contract.
Note 2 Subsection
25 (3) of the Code authorises the making of regulations that exempt from
that prohibition the deduction of an amount for the first payment of interest
charges.
76 Calculation of unpaid daily balances
(1) This regulation applies to
the calculation of average unpaid daily balances if interest charges under a
credit contract are determined under subsection 28 (2) of the Code for a
month, a quarter or a half‑year by applying the relevant fraction of the annual
percentage rate.
(2) The actual unpaid daily
balances for each day in the month, quarter or half‑year concerned are to be
added together and divided by the total number of days in the whole of that
month, quarter or half‑year.
(3) If the annual percentage
rate applies to part (but not the whole) of the month, quarter or half‑year,
the calculation of the average unpaid daily balances for that part is to be
made by adding together the actual unpaid daily balances for each day in that
part and dividing the sum obtained by the total number of days in that month,
quarter or half‑year.
(4) If the last day or days of
the month, quarter or half‑year fall on a non‑business day or days, the average
unpaid daily balances for the month, quarter or half‑year may be calculated
without reference to the unpaid daily balances for the non‑business day or
days.
(5) In the event mentioned in
subregulation (4), the unpaid daily balances for the non‑business day or days
must be included in the next month, quarter or half‑year for the purposes of
calculating the average unpaid daily balances for that next month, quarter or
half‑year.
Note Subsection 28 (1) of the Code limits
the maximum amount of an interest charge that may be imposed or provided under a
credit contract generally to an amount determined by applying the daily
percentage rate to the unpaid daily balances (as defined in section 27 of the
Code).
However, subsection 28 (2) of the
Code allows an interest charge for a month, a quarter or half‑year to be
determined by applying the annual percentage rate or rates, divided by:
(a) 12 (for a month); or
(b) by 4 (for a quarter); or
(c) by 2 (for a half‑year);
to the
relevant average unpaid daily balances for the period. The regulations may
provide for the calculation of unpaid daily balances in these circumstances.
77 Early debit or payment of interest charges
Subsection 29 (1) of
the Code does not apply to the first payment of interest charges under a credit
contract, but only if it relates to interest charges for a period that is less
than the normal period for which interest charges are to be periodically
debited to the debtor’s account.
Note 1 Subsection 29 (1) of the
Code provides that a credit provider must not require payment of or debit an interest
charge at any time before the end of a day to which the interest charge
applies.
Note 2 Subsection 29 (3) of the Code authorises the making of regulations that
exempt from that prohibition the first payment of interest charges under the
credit contract.
78 Interest charges in relation to residential
investment property
(1) This regulation applies to
a provision of credit that is provided or intended to be provided wholly or
predominantly:
(a) to purchase,
renovate or improve residential property for investment purposes; or
(b) subject to
subregulation (3), to refinance credit that has been provided wholly or
predominantly to purchase, renovate or improve residential property for
investment purposes.
(2) For section 30A of the
Code, Division 3 of Part 2 of the Code applies to the provision of credit as if
section 29 of the Code were omitted.
Note Section 30A of the Code provides, among other things, that
the regulations may provide that Division 3 of Part 2 of the Code applies in
relation to a provision of credit covered by subparagraph 5 (1) (b) (ii)
or (iii) of the Code as if specified provisions were omitted as specified in
the regulations.
(3) For paragraph
(1) (b), this regulation does not apply if, at the time the credit
contract is entered into, the predominant use of the residential property is for
personal, domestic or household purposes.
79 When statement of account not required
For paragraph
33 (3) (b) of the Code, the level is $10.
Note Section 33 of the Code
requires the credit provider to give the debtor periodic statements of account.
Subsection
33 (3) sets out the circumstances in
which a statement is not required to be given.
Paragraph
33 (3) (b) provides that a statement
is not required if no amount has been debited or credited to the debtor’s
account during the statement period and the amount outstanding on the debtor’s
account is zero or below a level fixed by the regulations.
Part 7‑2A Prohibited
credit fees and charges
79A Termination
fees for certain credit contracts
(1) For section 31 of the Code, a credit fee or
charge is prohibited if:
(a) it is provided for
in a credit contract entered into on or after 1 July 2011; and
(b) it is to be paid on
or in relation to the termination of the credit contract, whether the liability
to make the payment is incurred at that time or at an earlier time; and
(c) any of the
amount of credit provided under the credit contract is secured over residential
property.
(2) However, subregulation (1) does not apply to:
(a) a credit fee or charge that is:
(i) a break fee; or
(ii) a discharge fee; or
(b) a credit fee or charge that is incurred
before the termination of a credit contract that is terminated before any
credit has been provided under the credit contract.
(3) In this regulation:
break fee means a credit fee or charge that
relates:
(a) only to the early repayment of an amount
provided under a credit contract for a fixed rate loan; and
(b) only to the portion of the loan that is
fixed; and
(c) to the part of the credit provider’s loss,
arising from the early repayment, that is a result of differences in interest
rates.
discharge fee means a credit fee or
charge that only reimburses the credit provider for the reasonable
administrative cost of terminating the credit contract.
fixed rate loan means a credit contract under
which the
annual percentage rate is fixed, for an agreed term, for the whole or a part of
the amount due under the credit contract.
(4) For the definition of discharge fee, a cost is a reasonable
administrative cost only if it does not exceed a reasonable estimate of
the average reasonable administrative cost to the credit provider of
terminating that class of credit contract.
Part 7‑3 Related mortgages and guarantees
80 Mortgage arising from certain home ownership
schemes — exemption from subsection 50 (1) of the Code
(1) This regulation applies
to:
(a) the home
ownership scheme operated by the Mt Newman Joint Venturers, being:
(i) BHP
Billiton Minerals Pty Ltd ACN 008 694 782; and
(ii) Mitsui‑Itochu
Iron Pty Ltd ACN 088 702 761; and
(iii) CI
Minerals Australia Pty Ltd ACN 009 256 259; and
(b) the home ownership
scheme operated by the Mount Goldsworthy Mining Associates Joint Venturers,
being:
(i) BHP
Billiton Minerals Pty Ltd ACN 008 694 782; and
(ii) Mistsui
Iron Ore Corporation Pty Ltd ACN 050 157 456; and
(iii) CI
Minerals Australia Pty Ltd ACN 009 256 259;
that assist employees, whether alone or
jointly with one or more other persons, to purchase land owned respectively by
the Mt Newman Joint Venturers and the Mount Goldsworthy Mining Associates Joint
Venturers.
(2) Subsection 50 (1) of
the Code does not apply to any mortgage created over an interest that is
acquired by an employee under a contract for the purchase of land entered into
by the employee, whether alone or jointly with one or more other persons, under
a home ownership scheme to which this regulation applies.
(3) In this regulation:
employee means:
(a) if BHP Billiton
Iron Ore Pty Ltd ACN 008 700 981 is the manager of the Mt Newman Joint Venture
or the Mount Goldsworthy Mining Associates Joint Venture:
(i) an
employee of that corporation; or
(ii) an
employee of a corporation that is a related body corporate in relation to BHP
Billiton Iron Ore Pty Ltd; or
(b) if BHP Billiton Iron
Ore Pty Ltd ceases to manage the Mt Newman Joint Venture or the Mount
Goldsworthy Mining Associates Joint Venture — an employee of the person
for the time being exercising the functions of the manager of the Mt Newman
Joint Venture or of the Mount Goldsworthy Mining Associates Joint Venture.
Note Section 50 of the Code provides that a
mortgage can not be created over employees’ remuneration or employment benefits
or benefits under a superannuation scheme unless the regulations permit it to
do so.
81 Form of guarantees
(1) For section 55 of the
Code, a guarantee must contain the warning set out in Form 8.
(2) The warning must comply
with the following requirements:
(a) it must be in the
form of a box as indicated in Form 8;
(b) it must be set out
immediately above, and on the same page as, the place where the guarantor (or
at least 1 of the guarantors) is to sign the guarantee document;
(c) if the guarantors
are to sign the guarantee document on separate pages, it must be set out in
that way on each page.
Note Section 55 of the Code requires a guarantee to be in
writing signed by the guarantor. Subsection 55 (3) provides that the
regulations may make provision for or with respect to the content of guarantees
and the way they are expressed.
82 Explanation about guarantor’s rights and
obligations
(1) For paragraph
56 (1) (b) of the Code, the document explaining the rights and
obligations of a guarantor must be in accordance with Form 9.
(2) The document may be a
separate document or a part of the guarantee document.
Note Paragraph 56 (1) (b) of the
Code requires a credit provider to give a prospective guarantor an explanation
in the form required by the regulations of the guarantor’s rights and
obligations. The explanation must be given before the obligations under the
relevant credit contract are secured by the guarantee.
Part 7‑4 Changes to obligations under credit contracts, mortgages and
guarantees
83 Information about increases in the amount of
credit
(1) For subsection
71 (3) of the Code, as much of the following information as is
ascertainable is prescribed in respect of a credit contract (other than a
continuing credit contract):
(a) the date of the
change in the contract;
(b) the unpaid daily
balance at the date of the notice;
(c) the amount by
which the amount of credit will be increased in accordance with the agreement;
(d) the persons, bodies
or agents (including the credit provider) to whom the amount mentioned in
paragraph (c) is to be paid and the amounts payable to them;
(e) the total of the
amounts mentioned in paragraphs (b) and (c);
(f) details of any
change to the annual percentage rate;
(g) details of any
credit fees or charges that will be payable after the change in the contract;
(h) current repayment
details, being:
(i) the
number of repayments yet to be made; and
(ii) the
amount of each of those repayments; and
(iii) the
total amount of those repayments yet to be paid;
(i) the repayment
details once the agreement is made, being:
(i) the
number of repayments yet to be made once the agreement is made; and
(ii) the
amount of each of those repayments; and
(iii) the
total amount of those repayments; and
(iv) details
of any changes in the times or frequency of repayment;
(j) if
commission is to be paid by or to the credit provider for the introduction of
credit business or business financed by the increased amount of credit under
the contract — information of the kind mentioned in subsection
17 (14) of the Code;
(k) the proposed
increase in the term of the contract;
(l) the proposed new
expiry date for the contract.
Note 1 Subsection 71 (1) of the Code
requires a credit provider to give notice to the other party of a change to a
credit contract, mortgage or guarantee that has been agreed to by the credit
provider and the other party. The notice must be given within 30 days after the
date of the agreement.
Note 2 Subsection 71 (3) of the Code
provides that, if the parties propose to increase the amount of credit by
agreement, the credit provider must also give to the debtor, before the
agreement is made, a written notice containing the information required by the
regulations.
(2) Despite subregulation (1),
the matter in paragraphs (1) (h) and (i) relating to the total amount of
repayments need only be included in the written notice given under subsection
71 (3) of the Code if the contract concerned would, on the assumptions
under sections 180 and 182 of the Code, be paid out within 7 years of the
date on which credit is first provided under the contract.
Part 7‑5 Ending and enforcing credit contracts, mortgages and
guarantees
84 Information after surrender of goods
For subsection
85 (3) of the Code, the information required to be contained in a notice
must include the information set out in Form 10.
Note Section 85 of the Code enables a debtor
of goods sold by instalments or mortgagor to surrender the goods. Subsection
85 (3) requires a credit provider to give a debtor or mortgagor a written
notice containing the estimated value of the goods and any other information
required by the regulations.
85 Notice after direct debit default occurs
For subsection
87 (3) of the Code, the information required to be contained in a direct
debit default notice is the information set out in Form 11.
86 Notice after default occurs
For paragraphs
88 (3) (f) and (g) of the Code, the information set out in Form 12 is
prescribed.
87 Consent to enter premises
For subsection
99 (2) of the Code, consent by the occupier of premises to entry to the
premises is taken to have been given only if the following requirements have
been complied with:
(a) a request to the
occupier for entry to the premises must be made by the credit provider or agent
by application in writing or by calling at the premises concerned;
(b) if the request is made
personally, it may only be made between the hours of 8 am and 8 pm on
any day other than a Sunday or public holiday;
(c) the consent in
writing must be in accordance with Form 13 and signed by the occupier;
(d) the document of
consent is not to be presented to the occupier for signature with, or as part
of, any other document (unless the other document, or the remainder of the
other document, contains only the provisions of section 99 of the Code).
Note 1 Subsection 99 (1) of the Code
provides that a credit provider, or an agent of the credit provider, must not
enter any part of premises used for residential purposes for the purpose of
taking possession of mortgaged goods under a goods mortgage unless the court
has authorised entry or the occupier of the premises (after being informed in
writing of the provisions of section 99) consented in writing to the entry.
Note 2 Under subsection 99 (2) of the Code,
the regulations may provide procedures for the purposes of section 99 and set
out circumstances in which consent is or is not taken to have been given.
88 Statement about mortgagor’s rights and
obligations
For paragraph
102 (1) (c) of the Code, a statement of a mortgagor’s rights and
obligations must be a written statement in accordance with Form 14.
Note Subsection 102 (1) of the Code
requires a credit provider that has taken possession of goods under a mortgage
to give the mortgagor certain information, including a statement of the
mortgagor’s rights and obligations in the form set out in the regulations.
89 Information about proceeds of sale of mortgaged
goods
For subsection
104 (3) of the Code, the information required to be given to a mortgagor
is an itemised account of each deduction made from the gross amount realised on
the sale to arrive at the net proceeds of sale.
Note Subsection 104 (3) of the Code
requires a credit provider that sells mortgaged goods to give the mortgagor a
written notice stating the gross amount realised on the sale, the net proceeds
of the sale and certain other information, including other information required
by the regulations.
Part 7‑6 Related sale contracts
90 Rate of interest on damages
For subsection
132 (1) of the Code, the prescribed rate of interest in respect of the
relevant credit contract is the annual percentage rate under that contract as
at:
(a) the date of the
judgment; or
(b) if the contract was
not still in force at that date — the date immediately before the contract
was terminated.
Note Subsection 132 (1) of the Code
allows interest to be paid on damages awarded under the linked credit provider
provisions of the Code. The rate of interest is to be the rate prescribed by
the regulations.
91 Informing debtor of rights
For subsection
136 (2) of the Code, the information given by the credit provider to the
debtor must be:
(a) a written
statement in accordance with Form 15; and
(b) given to the debtor
within 21 days after the termination of the tied loan contract or the tied
continuing credit contract.
Note 1 Subsection 136 (1) of the Code
provides for the termination of a linked maintenance services contract if a
credit contract is terminated.
Note 2 Subsection 136 (2) of the Code
requires the credit provider in that case to inform the debtor in accordance
with the regulations of the debtor’s rights under section 136.
92 Rebate of consideration
For subsection
136 (4) of the Code, the proportionate rebate of consideration is
calculated using the formula:
where:
C is the amount of the
charges under the maintenance services
contract financed under the
credit contract.
S is the number of whole
months in the unexpired portion of
the period for which maintenance
was agreed to be provided.
T is the number of whole
months for which maintenance was
agreed to be provided.
Note 1 Subsection 136 (1) of the Code
provides that, if a debtor terminates a linked maintenance services contract
because of the termination of the credit contract, the debtor is entitled to a
proportionate rebate of consideration under the maintenance services contract.
Note 2 Subsection 136 (4) of the
Code provides that the regulations may prescribe the manner of calculating that
proportionate rebate of consideration.
Part 7‑7 Related insurance contracts
93 Particulars of insurance entered into by credit
provider
(1) For subsection
146 (2) of the Code, the prescribed particulars of the insurance that a
credit provider is to give to the debtor are the key features of the credit‑related
insurance contract.
(2) The key features of the
contract are the following:
(a) the name of the
insurer;
(b) the kind of
insurance, the risks insured against and the exclusions;
(c) the beneficiaries
under the policy;
(d) the expiry date of
the policy;
(e) the premium
payable (to the extent ascertainable);
(f) the fees and
charges payable (to the extent ascertainable);
(g) the person by whom,
and the person with whom, a claim may be made in respect of the policy, and the
manner of making such a claim.
(3) A particular mentioned in
subregulation (2) may be given by providing a copy of the policy containing the
particular.
Note Subsection 146 (2) of the Code
provides that, if a credit provider enters into a credit‑related insurance
contract in which the debtor has a beneficial interest, the credit provider
must ensure that a written notice containing particulars of the insurance
prescribed by the regulations is given to the debtor within 14 days after the
beneficial interest is acquired by the debtor.
Credit‑related insurance consists of
insurance over mortgaged property or consumer credit insurance.
94 Proportionate rebate of consumer credit
insurance premium
For
subsection 148 (4) of the Code, the proportionate rebate of premium is calculated
using the formula:
where:
P is the amount of the premium paid (not including any
amount payable in respect of a government charge).
S is the number of whole months in the unexpired portion of
the period for which insurance was agreed to be provided.
T is the number of whole months for which insurance was
agreed to be provided.
95 Notice of right to cancel mortgaged property
insurance
For subsection
149 (2) of the Code, the information given to the debtor by the credit
provider must be a written statement in accordance with Form 16.
Note Section 149 of the Code provides that if
a credit contract is terminated before the end of the term of a credit‑related
insurance contract over mortgaged property financed under the credit contract,
the debtor may terminate the insurance contract and recover from the insurer a
proportionate rebate of premium. Subsection 149 (2) provides that a
credit provider must inform the debtor, in accordance with the regulations, of
the debtor’s rights under section 149. The information is to be given on the
termination of the credit contract.
96 Proportionate rebate of premium for insurance
over mortgaged property
For subsection
149 (4) of the Code, the manner of calculating the proportionate rebate of
premium is to calculate the sum of:
(a) the amount of
premium paid in respect of any period of the insurance contract that has not
yet commenced; and
(b) 90% of the
proportion of the amount of the premium for insurance paid in respect of the
current period of the insurance contract attributable to the unexpired portion
of that period consisting of whole months.
Note Subsection 149 (4) of the Code
provides that the regulations may prescribe the manner of calculating the
proportionate rebate of premium for the purposes of section 149.
Part 7‑8 Comparison rates
97 Relevant comparison rate where annual
percentage rate stated
For subsection
161 (2) of the Code, the designated amounts and terms for which a
comparison rate is to be calculated are:
(a) $250 for a term of
2 weeks; and
(b) $1 000 for a
term of 6 months; and
(c) $2 500 for a
term of 2 years; and
(d) $10 000 for a
term of 3 years; and
(e) $30 000 for a
term of 5 years; and
(f) $150 000 for
a term of 25 years.
98 Information about whether comparison rate
relates to secured loan
For subsection
162 (2) of the Code, the following amounts of credit are prescribed as
amounts for which a statement must be made as to whether a comparison rate is
for a secured loan or an unsecured loan:
(a) $10 000;
(b) $30 000.
99 Warnings about comparison rate
(1) For subsection
163 (1) of the Code, the warning about the accuracy of a comparison rate
in a credit advertisement must:
(a) include the short
statement or long statement; and
(b) be given in the
same form as the comparison rate is given unless the credit advertisement is on
television, the internet or other electronic display medium.
Note Subsection 164 (3) of the Code
explains the way in which the warning must be given for a credit advertisement
on an electronic display medium.
(2) The warning may also contain
a statement that the credit provider does not provide credit for an amount, or
a term, or both, specified in a credit advertisement or comparison rate
schedule.
(3) The long statement is:
‘WARNING: This
comparison rate applies only to the example or examples given. Different
amounts and terms will result in different comparison rates. Costs such as
redraw fees or early repayment fees, and cost savings such as fee waivers, are
not included in the comparison rate but may influence the cost of the loan.’
(4) The short statement is:
‘WARNING: This
comparison rate is true only for the examples given and may not include all
fees and charges. Different terms, fees or other loan amounts might result in a
different comparison rate.’
100 Calculation of comparison rates
(1) For section 166 of the
Code, comparison rates are to be calculated in accordance with this regulation.
(2) The comparison rate must
be calculated as a nominal rate per annum, together with the compounding
frequency.
(3) The comparison rate is
calculated using the formula:
where:
n is the number of repayments per annum to be made under the
credit contract (annualised if the term of the contract is less than 12
months), except that:
(a) if repayments are
to be made weekly, n is 52.18; and
(b) if repayments are
to be made fortnightly, n is 26.09; and
(c) if the contract
does not provide for a constant interval between repayments, n is
to be derived from the interval selected for the purposes of the definition of j.
r is the solution of the
following:
where:
Aj is the amount of credit to be provided under the contract
at time j (the value of j for the provision of the
first amount of credit is taken to be zero).
Cj is the fee or charge (if any) payable by the debtor at
time j in addition to the repayments Rj, being a
credit fee or charge (other than a government fee, charge or duty) that is
ascertainable when the comparison rate is disclosed (whether or not the credit
fee or charge is payable if the credit is not provided).
j is the time, measured as a multiple (not necessarily
integral) of the interval between contractual repayments that will have elapsed
since the first amount of credit is provided under the credit contract, except
that if the contract does not provide for a constant interval between
repayments an interval of any kind is to be selected by the credit provider as
the unit of time.
Rj is the repayment to be made at time j.
t is the time, measured as a multiple of the interval
between contractual repayments (or other interval so selected) that will elapse
between the time when the first amount of credit is provided and the time when
the last repayment is to be made under the contract.
(4) The comparison rate must
be correct to at least the nearest one hundredth of 1% per annum.
(5) In the application of the
formulae, reasonable approximations may be made if it would be impractical or
unreasonably onerous to make a precise calculation.
Example
If repayments are to be made on
a fixed day each month, it may be assumed that repayments will be made on that
day each month even though the credit contract provides for payment on the
preceding or succeeding business day when the due date is not a business day.
(6) The tolerances and assumptions
under sections 180 to 182 of the Code apply to the calculation of the
comparison rate.
(7) The comparison rate must
be accompanied by a statement of the amount of credit on which it is based and
the term for which credit is provided.
Part 7‑9 Consumer leases
102 Consumer lease excluded from application of Part
11 of the Code
(1) For subsection 171 (3) of
the Code, a consumer lease is excluded from the application of Part 11 of the
Code if the consumer lease is in the class of consumer leases mentioned in
subregulation (2).
(2) The class of consumer
leases is consumer leases under which:
(a) the lessee is a
director of the lessor; and
(b) the director hires
goods from the lessor in connection with the director’s remuneration or other
financial benefits derived from acting as a director.
103 Prescribed person in relation to declarations
For subsection 172 (3)
of the Code, the prescribed person is:
(a) if the person who
obtained the declaration from the lessee was the lessor — a person associated
with the lessor; or
(b) if the person who
obtained the declaration from the lessee was a person associated with the
lessor — the person associated with the lessor; or
(c) if the person who
obtained the declaration from the lessee was not the lessor or a person
associated with the lessor — any of the following:
(i) a person
who obtained the declaration from the lessee;
(ii) a person
who referred the lessee to the person who obtained the declaration (whether the
referral was for the purpose of obtaining the declaration or otherwise);
(iii) a person
who suggested that the lessee apply for a consumer lease, and the suggestion
was made during the course of, as part of, or incidentally to, a business
carried on in this jurisdiction by the person;
(iv) a person
who assisted the lessee to apply for a consumer lease, and the assistance was
given during the course of, as part of, or incidentally to, a business carried
on in this jurisdiction by the person.
104 Declaration about purpose of lease
(1) For subsection
172 (5) of the Code, the form of the declaration is:
‘I/We declare that the
goods to be hired by me/us from the lessor are to be hired wholly or
predominantly for business purposes.’
(2) The declaration must
contain the following warning immediately below the words of the declaration
mentioned in subregulation (1) or, if the consumer lease is to be made by
electronic communication, prominently displayed when (but not after) the person
signs:
IMPORTANT
You should only sign this
declaration if the goods are hired wholly or predominantly for business
purposes.
By signing this declaration you may lose
your protection under the National Credit Code.
(3) The declaration must
contain:
(a) the signature of
each person making the declaration; and
(b) either the date on
which the declaration is signed or the date on which it is received by the
lessor.
Note The Code applies to consumer leases only
if the goods are hired for personal, domestic or household purposes. Subsection
172 (2) of the Code provides that goods hired under a consumer lease are
presumed not to be hired for those purposes if the lessee declares, before
hiring the goods, that the goods are hired wholly or predominantly for business
purposes.
The declaration is not effective unless
it is substantially in the form required by the regulations.
105 Explanation about rights and obligations of
consumer lessees
(1) For subsection
175 (1) of the Code, a statement must:
(a) be in writing; and
(b) be in accordance
with Form 17.
(2) The statement may be in
the form of a separate document or a part of the consumer lease document.
Note Section
175 of the Code requires a lessor under a consumer lease to give a lessee a
statement in the form required by the regulations explaining the lessee’s rights
and obligations.
The statement must be given within 14
days after entering into the lease.
Part 7‑10 Miscellaneous
106 Tolerances relating to disclosures
(1) For paragraph
180 (1) (a) of the Code:
(a) information about
a percentage rate that contains more than 4 decimal places is within
permissible tolerances if it is rounded‑off to not less than 4 decimal places
(so long as it is correct to the nearest fourth decimal place); and
(b) information about
any amount payable that includes a fraction of a cent is within permissible
tolerances if it is rounded‑off to the nearest whole cent.
(2) For paragraph
180 (1) (a) of the Code, information about any amount payable that:
(a) depends for its
accuracy on an interest charge that is correct only because of a permissible
tolerance under subsection (1); and
(b) is not inaccurate
for any other reason;
is also within permissible tolerances.
(3) For this regulation and
regulation 107:
(a) a percentage rate
may be rounded up to the nearest highest fourth decimal place only if the part
of the rate being rounded up exceeds 0.00005; and
(b) a fraction of a
cent may be rounded up to the nearest highest whole cent only if the fraction
being rounded up exceeds 0.5 cents.
Note Section 180 of the Code provides
that information disclosed in a precontractual statement or contract document
etc under the Code is taken to be correctly disclosed if it is within
tolerances allowed by the regulations and the disclosure is made as at a date
stated in it.
(4) For paragraph
180 (1) (a) of the Code, information disclosed about:
(a) interest charges
or repayments payable; or
(b) credit
fees or charges that are government fees or government charges;
is within permissible tolerances if it
overstates the amount or amounts payable.
(5) However, an overstatement
mentioned in subregulation (4):
(a) does not affect
the amounts payable under the credit contract; and
(b) is not within
permissible tolerances for section 181 of the Code unless it is within
permissible tolerances because of regulation 107.
107 Tolerances relating to amounts payable etc
(1) For section 181 of the
Code:
(a) if the daily or
other percentage rate to be used for the calculation of an amount of interest
contains more than 4 decimal places, the amount of interest is within
permissible tolerances if the rate used for the calculation is rounded‑off to
not less than 4 decimal places (so long as it is correct to the nearest fourth
decimal place); and
(b) an amount charged,
payable or calculated that includes a fraction of a cent is within permissible
tolerances if it is rounded‑off to the nearest whole cent; and
(c) if the credit
provider is authorised by a law of the Commonwealth to charge (or obtain
reimbursement in respect of) an amount of duty in the nature of receipts or
financial institutions duty that is not within a permissible tolerance under
paragraph (a) or (b), that amount is within permissible tolerances.
(2) For section 181 of the
Code, an amount which depends for
its accuracy on an interest charge that is correct only because of a
permissible tolerance under subsection (1) (and is
not inaccurate for any other reason) is within permissible tolerances.
Note Section 181 of the Code provides that all
amounts charged, payable or calculated under or in connection with a credit
contract, mortgage, guarantee or consumer lease comply with the Code if they
are within tolerances allowed by the regulations.
108 Additional assumptions relating to disclosures
(1) Disclosures for the
purposes of the Code relating to interest charges, repayments, and fees and
charges may, if any repayment is to be made, or interest charge, or fee or
charge, is to be paid or debited, on a particular day, be made on the
assumption that:
(a) the repayment will
be made, or the interest charge, or fee or charge, paid or debited, on that day
even though it is not a business day; and
(b) the contract
provides that the repayment is to be made, or the interest charge, or fee or
charge, paid or debited, on the next preceding or succeeding business day.
(2) Disclosures for the
purposes of the Code relating to repayments and interest charges may also be
made on the assumption that the amount of credit will be provided:
(a) on the date
nominated for that purpose in the pre‑contractual statement given under section
16 of the Code; or
(b) if no date is
nominated — on the relevant date of disclosure set out in the financial
statement as mentioned in subregulation 72 (10); or
(c) if no date is so
set out — the date on which the statement is given to the debtor.
(3) Subregulation (2) does
not apply to:
(a) a continuing
credit contract; or
(b) a credit contract
under which credit is provided progressively and the dates on which the credit
is to be provided are not ascertainable.
109 Contracts linked to loan account offset
arrangements
(1) Disclosures for the
purposes of the Code relating to a credit contract linked to a loan account
offset arrangement may be made on the assumption that the contract is not
linked to the arrangement.
(2) If the amount of interest
charges under a credit contract is affected by a loan account offset
arrangement during a statement period:
(a) the statement of
account is to disclose the net interest charge debited under the credit
contract during the statement period; and
(b) the statement of
account must also show the amount by which the net interest differs from the
interest charge that would otherwise have been payable under the credit
contract if the interest charge had not been affected by the loan account
offset arrangement.
110 Requirements for print or type
For paragraph
184 (1) (b) of the Code, print or type must be not less than 10
point.
Note Paragraph 184 (1) (b) of the
Code provides that a credit contract, guarantee or notice given by a credit
provider under the Code, to the extent that it is printed or typed, must
conform with the provisions of the regulations as to print or type.
111 Notices
(1) For subsection
194 (9) of the Code, a nomination under subsection 194 (4) or
(6) of the Code must be in the following form:
(a) the nomination
must contain the words:
‘I/We nominate [full
name of person nominated] to receive notices and other documents under the
National Credit Code on behalf of me/all of us.’;
(b) the nomination
must contain a prominent statement:
(i) that
each debtor, mortgagor or guarantor is entitled to receive a copy of any notice
or other document under the Code; and
(ii) that, by
signing the form, the debtor, mortgagor or guarantor is giving up the right to
be provided with information direct from the credit provider;
(c) the
nomination must contain a prominent statement that any person who has signed
the form can advise the credit provider at any time in writing that the person
wishes to cancel the nomination.
(2) For subsection 194 (9) of
the Code, a consent under subsection 194 (5) of the Code must be in the
following form:
(a) the consent must
contain the words:
‘We
consent to notices and other documents under the National Credit Code being
sent jointly to us at [address for service].’;
(b) the consent must
contain a prominent statement:
(i) that
each debtor, mortgagor or guarantor is entitled to receive a copy of any notice
or other document under the Code; and
(ii) that, by
signing the form, the debtor, mortgagor or guarantor is giving up the right to
be provided with information separately from the credit provider;
(c) the consent must
contain a prominent statement that any person who has signed the form can
advise the credit provider at any time in writing that the person wishes to
cancel the consent.
111A Exemption
from Code — persons who are not members of approved external dispute
resolution scheme
(1) For section 203B of the Code, this regulation
applies to:
(a) a person who is an unlicensed carried over instrument
lender; and
(b) a person who is exempt under section 109 or
110 of the Act from the requirement to hold a licence; and
(c) a person who is exempt under item 41 or 42
of Schedule 2 to the Transitional Act from the requirement to be registered;
who is not a member of an approved external dispute resolution
scheme.
(2) For the avoidance of doubt, the person is exempt
from a provision of the Code mentioned in subregulation (3) to the extent that
the provision would otherwise require the person to disclose information about
rights under or access to an approved external dispute resolution scheme.
(3) For subregulation (2) a provision of the Code is
any of the following provisions of the Code:
(aa) subparagraph 72 (3) (b) (i);
(ab) subparagraph 72 (3) (b) (ii);
(a) subsection 85 (3);
(b) subsection 87 (3);
(c) paragraph 88 (3) (g);
(d) paragraph 102 (1) (c);
(e) subsection 136 (2);
(f) subsection 149 (2);
(g) subsection 175 (1).
Part 7‑11 Saving and transitional provisions — reliance on State
and Territory Consumer Credit Codes
112 References in documents to Consumer Credit Code of a State or Territory
(1) If a person is
required to provide or use a form prescribed by these Regulations, the person
may provide or use a form (the equivalent form) that:
(a) is
prescribed by regulations made under the Consumer Credit Code of a State or
Territory mentioned in
subregulation (2); and
(b) has the
same effect, or is the same in substance, as the form prescribed by these
Regulations.
(2) The Consumer Credit Codes
of the States and Territories are the following:
(a) the Consumer
Credit (New South Wales) Code mentioned in the Consumer Credit (New
South Wales) Act 1995;
(b) the Consumer Credit
(Victoria) Code mentioned in the Consumer Credit (Victoria) Act 1995;
(c) the Consumer
Credit (Queensland) Code mentioned in (and appendixed to) the Consumer
Credit (Queensland) Act 1994;
(d) the Consumer
Credit (Western Australia) Code mentioned in the Consumer Credit
(Western Australia) Act 1996;
(e) the Consumer
Credit (South Australia) Code mentioned in the Consumer Credit (South
Australia) Act 1995;
(f) the Consumer
Credit (Tasmania) Code mentioned in the Consumer Credit (Tasmania) Act 1996;
(g) the Consumer Credit
(Australian Capital Territory) Code mentioned in the Consumer Credit Act
1995 (ACT);
(h) the Consumer Credit
(Northern Territory) Code mentioned in the Consumer Credit (Northern
Territory) Act 1995.
(3) If:
(a) a
person is required to provide or use a form prescribed by these Regulations;
and
(b) under
subregulation (1), the person provides or uses an equivalent form; and
(c) the
form prescribed by these Regulations requires the person to provide more
information than required by the equivalent form;
the person may provide the
additional information in a separate document with the equivalent form.
(4) Subregulations
(1) and (3) cease to have effect at the end of the period of 2 years starting
when this regulation commences.
Schedule
1 Forms
(subregulation 6 (1))
Form 1 Notice requiring
reasonable assistance in connection with an investigation and appearance at an
examination
subsection 253 (2) of
the Act
regulation 32 of the
Regulations
To: 1
In relation to an investigation of 2
you are notified that under subsection 253 (2) of the National Consumer Credit Protection Act 2009 (the Act) you are required:
(a) to give the Australian Securities and Investments
Commission (ASIC) all reasonable assistance in connection
with the investigation; and
(b) to appear at 3 on
4
at
5
before 6
for examination on oath or
affirmation and to answer questions put to you in relation to the
investigation.
Please note the provisions of subsection
257 (1) of the Act (relating to legal representation) and section 295 of the
Act (relating to self‑incrimination). The effect of those provisions is set out
at the end of this form.
Dated 4
Signature of person authorised
by ASIC to conduct the
examination:
NOTICE OF RELEVANT STATUTORY PROVISIONS
1. Subsection 257 (1) of the Act
provides that a person who is required to submit to an examination is entitled
to have his or her lawyer attend the examination. It also provides that the
person’s lawyer may address the inspector or ask the person questions about
matters raised with the person by the inspector.
2. (1) You must not fail to comply
with this notice without reasonable excuse (see subsection 290 (1) of the Act).
(2) It is not a reasonable excuse
for failure to comply with this notice that giving information or signing a
record or producing a book might tend to incriminate you or expose you to a
penalty (see subsection 295 (1) of the Act).
(3) However, if:
(a) before
making an oral statement or signing a record in answer to this notice you claim
that making the statement or signing the record might tend to incriminate you
or expose you to a penalty; and
(b) making
the statement or signing the record might in fact tend to incriminate you or
expose you to a penalty;
the statement,
or the fact that you have signed the record, is not admissible in evidence in any
criminal proceedings, or proceedings for the imposition of a penalty, against
you other than proceedings in respect of the falsity of the statement or the
record.
(4) The right
to make a claim of this kind is not available to a body corporate (see section 295 of the Act).
1 Insert full name and address of
the person to whom the notice is to be given.
2 Insert the nature of the matter to which the
investigation relates.
3 Insert time of day.
4 Insert date.
5 Insert full particulars of the
address of the place at which the requirement is to be satisfied.
6 Insert full name of the person
conducting the examination.
Form 2 Summons to witness
subsection 284 (1) of
the Act
regulation 34 of the
Regulations
In the matter of 1
To: 2
at 3you
are summoned to appear before the Australian Securities and Investments
Commission (ASIC)
on 4
at 5
and thereafter to attend from day to day until the hearing in this matter
is completed or you are excused or released from further attendance by a member
of ASIC.
You are required to produce the following
document(s) at the hearing:
6.
Dated 4
Signature of person authorised by
ASIC to issue summons:
1 Insert description of matter.
2 Insert full name and address of the person to be
summoned to appear.
3 Insert time of day.
4 Insert date.
5 Insert full particulars of the address of the place
where the hearing is to be held.
6 Insert description(s) of the documents that are to be
produced at the hearing.
Form 3 Infringement notice
section 331 of the Act
paragraph 40 (a) of the
Regulations
Date of issue:
Unique identification code:
TO [name and address of recipient]:
1. I, [name of authorised ASIC
officer giving the infringement notice], give this infringement notice
under regulation 39 of the National
Consumer Credit Protection Regulations 2010.
*2. I have reasonable
grounds to believe that you have committed the following offence:
[Details of alleged offence,
including the provision of the Act that creates the offence, the
nature of the offence, the time and date of the alleged offence, and the place
of the alleged offence.]
*2. I have reasonable
grounds to believe that you have contravened the following civil penalty
provision:
[Details of alleged
contravention, including the provision of the Act, the nature of the
contravention, the time and date of the alleged contravention, and the place of
the alleged contravention.]
* Omit if not applicable.
Penalty under this notice
3. The penalty for the alleged offence
under this notice is [dollar amount in
figures] for an
individual or [dollar amount in figures] for a body corporate.
This penalty can be paid by [methods
of payment].
*4. If you pay the penalty stated in
this notice within the time for payment mentioned below then (unless this
notice is subsequently withdrawn and any penalty paid refunded):
(a) any
liability you have for the commission of the alleged offence will be
discharged; and
(b) you will not be prosecuted for the alleged offence;
and
(c) you will not be taken to have admitted guilt in
respect of the alleged offence; and
(d) you will not be taken to have been convicted of the
alleged offence.
*4. If you pay the penalty stated in
this notice within the time for payment mentioned below then (unless this
notice is subsequently withdrawn and any penalty paid refunded):
(a) any
liability you have for the alleged contravention of the provision will be
discharged; and
(b) no civil
proceedings will be brought
against you by the Commonwealth for the alleged contravention; and
(c) you will not be taken to have admitted guilt
in respect of the alleged contravention; and
(d) you will not be taken to have been found guilty of
the alleged contravention.
* Omit if not applicable.
Consequences of failure to pay penalty
under this notice
*5. If you do not pay the penalty specified
in this notice within the time for payment mentioned below, you may be
prosecuted for the alleged offence.
*5. If you do not pay the penalty
specified in this notice within the time for payment mentioned below,
civil proceedings may be brought against you for the alleged contravention.
* Omit if not applicable.
6. The maximum penalty that a court
may impose for this offence is [insert] penalty units for an
individual and [insert] penalty units for a body corporate.
Time for payment
7. The time for payment
is:
(a) within 28 days after the day on which the notice is
given to you; or
(b) if you apply for a further period of time in which
to pay the penalty, and the application is granted — within the further
period allowed; or
(c) if you apply for a further period of time in which
to pay the penalty, and the application is refused or is taken to have been
refused — within the later of:
(i) 7 days after:
(A) the
day you receive the notice of refusal; or
(B) the
application is taken to have been refused; and
(ii) 28 days after the day on which
the infringement notice was given to you; or
(d) if you apply for permission to pay the penalty by
instalments, and the permission is granted — in accordance with the
permission; or
(e) if you apply for permission to pay the penalty by
instalments, and the permission is refused or is taken to have been
refused — within the later of:
(i) 7 days after:
(A) the
day you receive the notice of refusal; or
(B) the
application is taken to have been refused; and
(ii) 28 days after the day on which
the infringement notice was given to you; or
(f) if you apply for the notice to be withdrawn, and
the application is refused or is taken to have been refused — within the
later of:
(i) 7 days after:
(A) the
day you receive the notice of refusal; or
(B) the
application is taken to have been refused; and
(ii) 28
days after the day on which the infringement notice was given to you.
Further penalty for continuing offence
*8. If the commission of the alleged
offence continues beyond [date of alleged offence], a further
penalty may be imposed even if the penalty imposed by this notice is paid.
*8. If the alleged contravention of the
civil penalty provision continues beyond [date of alleged offence],
a further penalty may be imposed even if the penalty imposed by this notice is
paid.
* Omit if not applicable.
Applying to have this
notice withdrawn
9. Within 28 days after you receive
this notice, you may apply to [name and/or position title] to have this
notice withdrawn.
The person is the nominated
person for this notice.
Applying for more time to
pay the penalty under this notice
10. Within 28 days after you receive
this notice, you may apply to the nominated person for a further period of up
to 28 days in which to pay the penalty under this notice.
Applying to pay the penalty under this
notice by instalments
11. Within 28 days after you receive
this notice, you may apply to the nominated person for permission to pay the
penalty under this notice by instalments.
Requirements for applications
12. An application to have this notice
withdrawn, or for more time to pay the penalty under this notice, or for
permission to pay the penalty under this notice by instalments:
(a) must be in writing; and
(b) must include the unique identification
code set out at the top of this notice; and
(c) must include your reasons
for making the application; and
(d) for an application for
permission to pay the penalty under this notice by instalments — include
the proposed amount and frequency of instalments; and
(e) may be made by [methods
of making application].
Signature
of authorised ASIC
officer issuing the notice
Form 4 Prescribed terms and conditions of mortgage
paragraph
9 (3) (f) of the Code
regulation 66 of the
Regulations
1 In this mortgage —
Code means the National Credit Code.
goods means the goods hired under the hire contract.
hire contract means the contract for the hire of goods as a consequence
of which the mortgagor and the supplier are deemed by paragraph 9 (3) (f)
of the Code to have entered into this mortgage.
mortgagor means the person to whom the goods are hired under the
hire contract.
supplier means the person from whom the goods are hired under the
hire contract.
2 The mortgagor
gives and the supplier takes a mortgage of the goods.
3 The mortgagor’s
right or obligation to purchase the goods, which is contained in the hire
contract, is extinguished.
4 Subject to item
5, the supplier may take possession of the goods, or may take possession of,
and sell, the goods if —
(a) the supplier was
induced by fraud on the part of the mortgagor to enter into the hire contract;
or
(b) the mortgagor,
contrary to a term of the hire contract, has attempted to assign or dispose of
the goods; or
(c) the mortgagor,
contrary to a term of the hire contract, has —
(i) failed
to keep the goods in good order and repair; or
(ii) failed
to keep the goods insured or registered; or
(d) the mortgagor has
made default in the payment of any instalment or other monetary sum due under
the hire contract; or
(e) the mortgagor has
made default in any other obligation under the hire contract which is likely to
affect directly the value of the supplier’s security; or
(f) the mortgagor has
returned the goods to the supplier, or has given notice in writing to the
supplier, that the mortgagor can not continue to observe the obligations
imposed by the hire contract.
5 Nothing in item
4 affects the operation of any statute or any principle of law or equity
applicable to the rights and duties of the mortgagor or supplier in relation to
each other.
Form 5 Information statement
paragraph
16 (1) (b) of the Code
regulation 70 of the
Regulations
Things
you should know about your proposed credit contract
This statement
tells you about some of the rights and obligations of yourself and your credit
provider. It does not state the terms and conditions of your contract.
If you have any
concerns about your contract, contact the credit provider and, if you still
have concerns, your credit provider’s external dispute resolution scheme, or
get legal advice.
The contract
1 How can I get
details of my proposed credit contract?
Your credit
provider must give you a precontractual statement containing certain
information about your contract. The precontractual statement, and this
document, must be given to you before —
·
your contract is entered into; or
·
you make an offer to enter into the
contract;
whichever
happens first.
2 How can I get
a copy of the final contract?
If the contract
document is to be signed by you and returned to your credit provider, you must
be given a copy to keep. Also, the credit provider must give you a copy of the
final contract within 14 days after it is made. This rule does not, however,
apply if the credit provider has previously given you a copy of the contract
document to keep.
If you want
another copy of your contract, write to your credit provider and ask for one.
Your credit provider may charge you a fee. Your credit provider has to give you
a copy —
·
within 14 days of your written request
if the original contract came into existence 1 year or less before your
request; or
·
otherwise within 30 days of your
written request.
3 Can I
terminate the contract?
Yes. You can
terminate the contract by writing to the credit provider so long as —
·
you have not obtained any credit under
the contract; or
·
a card or other means of obtaining
credit given to you by your credit provider has not been used to acquire goods
or services for which credit is to be provided under the contract.
However, you
will still have to pay any fees or charges incurred before you terminated the
contract.
4 Can I pay my
credit contract out early?
Yes. Pay your
credit provider the amount required to pay out your credit contract on the day
you wish to end your contract.
5 How can I find
out the pay out figure?
You can write
to your credit provider at any time and ask for a statement of the pay out
figure as at any date you specify. You can also ask for details of how the
amount is made up.
Your credit
provider must give you the statement within 7 days after you give your request
to the credit provider. You may be charged a fee for the statement.
6 Will I pay
less interest if I pay out my contract early?
Yes. The
interest you can be charged depends on the actual time money is owing. However,
you may have to pay an early termination charge (if your contract permits your
credit provider to charge one) and other fees.
7 Can my
contract be changed by my credit provider?
Yes, but only
if your contract says so.
8 Will I be told
in advance if my credit provider is going to make a change in the contract?
That depends on
the type of change. For example —
·
you get at least same day notice for a
change to an annual percentage rate. That notice may be a written notice to you
or a notice published in a newspaper.
·
you get 20 days advance written notice
for —
·
a change in the way in which interest
is calculated; or
·
a change in credit fees and charges; or
·
any other changes by your credit
provider;
except where
the change reduces what you have to pay or the change happens automatically
under the contract.
9 Is there
anything I can do if I think that my contract is unjust?
Yes. You should
first talk to your credit provider. Discuss the matter and see if you can come
to some arrangement.
If that is not
successful, you may contact your credit provider’s external dispute resolution
scheme. External dispute resolution is a free service established to provide
you with an independent mechanism to resolve specific complaints. Your credit
provider’s external dispute resolution provider is (name of external dispute
resolution provider) and can be contacted at [insert telephone number,
email/website and postal address].
Alternatively,
you can go to court. You may wish to get legal advice, for example from your
community legal centre or Legal Aid.
You can also
contact ASIC, the regulator, for information
on 1300 300 630 or through ASIC’s website at http://www.asic.gov.au.
Insurance
10 Do I have to
take out insurance?
Your credit
provider can insist you take out or pay the cost of types of insurance
specifically allowed by law. These are compulsory third party personal injury
insurance, mortgage indemnity insurance or insurance over property covered by
any mortgage. Otherwise, you can decide if you want to take out insurance or not. If you take
out insurance, the credit provider can not insist that you use any particular
insurance company.
11 Will I get
details of my insurance cover?
Yes, if you
have taken out insurance over mortgaged property or consumer credit insurance
and the premium is financed by your credit provider. In that case the insurer
must give you a copy of the policy within 14 days after the insurer has
accepted the insurance proposal.
Also, if you
acquire an interest in any such insurance policy which is taken out by your
credit provider then, within 14 days of that happening, your credit provider
must ensure you have a written notice of the particulars of that insurance.
You can always
ask the insurer for details of your insurance contract. If you ask in writing,
your insurer must give you a statement containing all the provisions of the
contract.
12 If the insurer
does not accept my proposal, will I be told?
Yes, if the
insurance was to be financed by the credit contract. The insurer will inform
you if the proposal is rejected.
13 In that case,
what happens to the premiums?
Your credit
provider must give you a refund or credit unless the insurance is to be
arranged with another insurer.
14 What happens if
my credit contract ends before any insurance contract over mortgaged property?
You can end the
insurance contract and get a proportionate rebate of any premium from the
insurer.
Mortgages
15 If my contract
says I have to give a mortgage, what does this mean?
A mortgage
means that you give your credit provider certain rights over any property you
mortgage. If you default under your contract, you can lose that property and
you might still owe money to the credit provider.
16 Should I get a
copy of my mortgage?
Yes. It can be
part of your credit contract or, if it is a separate document, you will be
given a copy of the mortgage within 14 days after your mortgage is entered
into.
However, you
need not be given a copy if the credit provider has previously given you a copy
of the mortgage document to keep.
17 Is there
anything that I am not allowed to do with the property I have mortgaged?
The law says you
can not assign or dispose of the property unless you have your credit
provider’s, or the court’s, permission. You must also look after the property.
Read the mortgage document as well. It will usually have other terms and
conditions about what you can or can not do with the property.
18 What can I do
if I find that I can not afford my repayments and there is a mortgage over
property?
See the answers to questions 22 and 23.
Otherwise you may —
·
if the mortgaged property is
goods — give the property back to your credit provider, together with a
letter saying you want the credit provider to sell the property for you;
·
sell the property, but only if your
credit provider gives permission first;
OR
·
give the property to someone who may
then take over the repayments, but only if your credit provider gives
permission first.
If your credit
provider won’t give permission, you can contact their external dispute
resolution scheme for help.
If you have a
guarantor, talk to the guarantor who may be able to help you.
You should
understand that you may owe money to your credit provider even after the
mortgaged property is sold.
19 Can my credit
provider take or sell the mortgaged property?
Yes, if you
have not carried out all of your obligations under your contract.
20 If my credit
provider writes asking me where the mortgaged goods are, do I have to say where
they are?
Yes. You have 7
days after receiving your credit provider’s request to tell your credit
provider. If you do not have the goods you must give your credit provider all
the information you have so they can be traced.
21 When can my
credit provider or its agent come into a residence to take possession of
mortgaged goods?
Your credit
provider can only do so if it has the court’s approval or the written consent
of the occupier which is given after the occupier is informed in writing of the
relevant section in the National Credit Code.
General
22 What do I do if
I can not make a repayment?
Get in touch
with your credit provider immediately. Discuss the matter and see if you can
come to some arrangement. You can ask your credit provider to change your
contract in a number of ways —
·
to extend the term of your contract and
reduce payments; or
·
to extend the term of your contract and
delay payments for a set time; or
·
to delay payments for a set time.
23 What if my
credit provider and I can not agree on a suitable arrangement?
If the credit
provider refuses your request to change the repayments, you can ask the credit
provider to review this decision if you think it is wrong.
If the credit
provider still refuses your request you can complain to the external dispute
resolution scheme that your credit provider belongs to. Further details about
this scheme are set out below in question 25.
24 Can my credit
provider take action against me?
Yes, if you are
in default under your contract. But the law says that you can not be unduly
harassed or threatened for repayments. If you think you are being unduly
harassed or threatened, contact the credit provider’s external dispute
resolution scheme or ASIC, or get legal advice.
25 Do I have any
other rights and obligations?
Yes. The law
will give you other rights and obligations. You should also READ YOUR CONTRACT
carefully.
IF YOU HAVE
ANY COMPLAINTS ABOUT YOUR CREDIT CONTRACT, OR WANT MORE INFORMATION, CONTACT
YOUR CREDIT PROVIDER. YOU MUST ATTEMPT TO RESOLVE YOUR COMPLAINT WITH YOUR
CREDIT PROVIDER BEFORE CONTACTING YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE
RESOLUTION SCHEME. IF YOU HAVE A COMPLAINT WHICH REMAINS UNRESOLVED AFTER
SPEAKING TO YOUR CREDIT PROVIDER YOU CAN CONTACT YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION SCHEME OR GET LEGAL ADVICE.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS. YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION PROVIDER IS [INSERT NAME OF EXTERNAL DISPUTE
RESOLUTION PROVIDER] AND CAN BE CONTACTED AT [INSERT TELEPHONE NUMBER, EMAIL/WEBSITE AND
POSTAL ADDRESS].
PLEASE KEEP
THIS INFORMATION STATEMENT. YOU MAY WANT SOME INFORMATION FROM IT AT A LATER
DATE.
Form 6 Disclosure about credit contracts
subsection 17 (16) of
the Code
subregulation 74 (2)
of the Regulations
|
IMPORTANT
|
|
BEFORE YOU SIGN
* READ THIS CONTRACT
DOCUMENT so that you know exactly what contract you are entering into and
what you will have to do under the contract.
* You
should also read the information statement: ‘THINGS YOU SHOULD KNOW ABOUT
YOUR PROPOSED CREDIT CONTRACT’.
* Fill in or cross out
any blank spaces.
* Get a copy of this
contract document.
* Do not sign
this contract document if there is anything you do not understand.
|
|
THINGS YOU MUST KNOW
* You can withdraw this
offer at any time before the credit provider accepts it. When the credit
provider does accept it, you are bound by it. However, you may end the
contract before you obtain credit, or a card or other means is used to obtain
goods or services for which credit is to be provided under the contract, by
telling the credit provider in writing, but you will still be liable for any
fees or charges already incurred.
* You do not
have to take out consumer credit insurance unless you want to. However, if
this contract document says so, you must take out insurance over any
mortgaged property that is used as security, such as a house or car.
* If you take out
insurance, the credit provider can not insist on any particular insurance
company.
* If this contract
document says so, the credit provider can vary the annual percentage rate
(the interest rate), the repayments and the fees and charges and can add new
fees and charges without your consent.
* If this contract
document says so, the credit provider can charge a fee if you pay out your
contract early.
|
Form 7 Disclosure about credit contracts
subsection 17 (16) of
the Code
subregulation 74 (3)
of the Regulations
|
IMPORTANT
|
|
BEFORE YOU SIGN
* READ THIS CONTRACT
DOCUMENT so that you know exactly what contract you are entering into and
what you will have to do under the contract.
* You should also read
the information statement: ‘THINGS YOU SHOULD KNOW ABOUT YOUR PROPOSED CREDIT
CONTRACT’.
* Fill in or cross out
any blank spaces.
* Get a copy of this
contract document.
* Do not sign
this contract document if there is anything you do not understand.
|
|
THINGS YOU MUST KNOW
* Once you sign this
contract document, you will be bound by it. However, you may end the contract
before you obtain credit, or a card or other means is used to obtain goods or
services for which credit is to be provided under the contract, by telling
the credit provider in writing, but you will still be liable for any fees or
charges already incurred.
* You do not
have to take out consumer credit insurance unless you want to. However, if
this contract document says so, you must take out insurance over any
mortgaged property that is used as security, such as a house or car.
* If you take out
insurance, the credit provider can not insist on any particular insurance
company.
* If this contract
document says so, the credit provider can vary the annual percentage rate
(the interest rate), the repayments and the fees and charges and can add new
fees and charges without your consent.
* If this contract
document says so, the credit provider can charge a fee if you pay out your
contract early.
|
Form 8 Disclosure about guarantee
section 55 of the Code
regulation 81 of the
Regulations
|
IMPORTANT
|
|
BEFORE YOU SIGN
* READ THIS GUARANTEE
AND THE CREDIT CONTRACT DOCUMENT.
* You should also read
the information statement: ‘THINGS YOU SHOULD KNOW ABOUT GUARANTEES’.
* You should obtain
independent legal advice.
* You should also
consider obtaining independent financial advice.
* You should make your
own inquiries about the credit worthiness, financial position and honesty of
the debtor.
|
|
THINGS YOU MUST KNOW
* Understand that, by
signing this guarantee, you may become personally responsible instead of, or
as well as, the debtor to pay the amounts which the debtor owes and the
reasonable expenses of the credit provider in enforcing the guarantee.
* If the debtor does
not pay you must pay. This could mean you lose everything you own including
your home.
* You may be able to
withdraw from this guarantee or limit your liability. Ask your legal adviser
about this before you sign this guarantee.
* You are not bound by
a change to the credit contract, or by a new credit contract, that increases
your liabilities under the guarantee unless you have agreed in writing and
have been given written particulars of the change or a copy of the new credit
contract document.
|
Form 9 Information statement
section
56 (1) (b) of the Code
regulation 82 of the
Regulations
Things
you should know about guarantees
This
information tells you about some of the rights and obligations of yourself and
the credit provider. It does not state the terms and conditions of your
guarantee.
Guarantees
1 What is a
guarantee?
A promise by
you that the person who is getting credit under a credit contract (the debtor)
will keep to all the terms and conditions. If that person does not do so, you
promise to pay the credit provider all the money owing on the contract (and any
reasonable enforcement expenses) as soon as the money is asked for, up to the
limit, if any, stated in the guarantee. If you do not pay, then the credit
provider can take enforcement action against you which may result in the forced
sale of any property owned by you such as your house.
2 How do I know
how much the debtor is borrowing and how the credit charges are worked out?
These details
are on the copy of the credit contract or proposed credit contract that you
should be given before you sign the guarantee.
3 What documents
should I be given?
Before you sign
the guarantee you should get —
·
the document you are reading now; and
·
a copy of the credit contract or
proposed credit contract.
Your
guarantee is not enforceable unless you get a copy of the credit contract or
proposed credit contract before you sign.
Within 14 days
after you sign the guarantee and give it to the credit provider, the credit
provider must give you a copy of —
·
the signed guarantee (if you do
not already have a copy of the guarantee); and
·
the credit contract or proposed credit
contract (if you do not already have a copy of the contract).
4 Can I get a
statement of the amount that the debtor owes?
Yes. You can
ask the credit provider at any time for a statement of the amount the debtor
currently owes or any amounts credited or debited during a period you specify
or any amounts which are overdue and when they became overdue or any amount
payable and the date it became due.
The credit
provider must give you the requested information —
·
within 14 days if all the information
requested related to a period 1 year or less before your request is given; or
·
otherwise within 30 days.
This statement
must be given to you in writing if you ask for it in writing but otherwise may
be given orally.
You may be
charged a fee for the statement.
You are not
entitled to more than 1 written statement every 3 months.
5 How can I find
out the payout figure?
You can write
to the credit provider at any time and ask for a statement of the amount
required to pay out the credit contract as at any date you specify. You can
also ask for details of the items that make up the amount.
The credit
provider must give you the statement within 7 days after you give your request
to the credit provider. You may be charged a fee for the statement.
6 What other
information can I get?
You can write
to the credit provider and ask for a copy of —
·
the guarantee; or
·
any credit‑related insurance contract
(such as insurance on mortgaged property) the credit provider has; or
·
a notice previously given to you, the
debtor or the mortgagor under the National Credit Code.
The credit
provider must give you the requested copy —
·
within 14 days of your written request
if the contract came into existence 1 year or less before the request was given
to the credit provider; or
·
otherwise within 30 days.
The credit
provider may charge you a fee.
Your request
can be made any time up to 2 years after the end of the credit contract.
7 Can I withdraw
from my guarantee?
You can
withdraw from your guarantee at any time by written notice to the credit
provider if the final credit contract is materially different from the proposed
credit contract given to you before you signed the guarantee.
8 Can I limit my
guarantee?
Yes, if it
relates to a continuing credit contract (such as a credit card contract or an
overdraft). In that case you can give the credit provider a notice limiting the
guarantee so that it only applies to —
·
credit previously given to the debtor;
and
·
any other amount you agree to
guarantee.
9 Can my
guarantee also apply to any future contracts?
No, unless the
credit provider has given you a copy of the proposed new credit contract and
you have given your written acceptance.
10 If my guarantee
says I have to give a mortgage, what does this mean?
A mortgage
means that you give the credit provider certain rights over any property you
mortgage. If you default under your guarantee, you can lose that property and
you might still owe money to the credit provider.
11 Should I get a
copy of my mortgage?
Yes. It can be
part of your guarantee or, if it is a separate document, you will be given a
copy of the mortgage within 14 days after your mortgage is entered into.
12 Is there
anything that I am not allowed to do with the property I have mortgaged?
The law says
you can not assign or dispose of the property unless you have the credit
provider’s, or the court’s, permission. You must also look after the property.
Read the mortgage document as well. It will usually have other terms and
conditions about what you can or can not do with the property.
13 What can I do
if I find that I can not afford to pay out the credit contract and there is a
mortgage over my property?
See the answer
to question 22.
Otherwise
you may —
·
if the mortgaged property is
goods — give the property back to your credit provider, together with a
letter saying you want the credit provider to sell the property for you;
·
sell the property, but only if the
credit provider gives permission first;
OR
·
give the property to someone who may
then pay all amounts owing under the guarantee or give a similar guarantee, but
only if the credit provider gives permission first.
If the credit
provider won’t give permission, you may contact the credit provider’s external
dispute resolution scheme for help. You should understand that you may owe
money to the credit provider even after the mortgaged property is sold.
External
dispute resolution is a free service established to provide you with an
independent mechanism to resolve specific complaints. Your credit provider’s
external dispute resolution provider is (name of external dispute resolution
provider) and can be contacted at [insert telephone number, email/website
and postal address].
14 Can the credit
provider take or sell the mortgaged property?
Yes, if you
have not carried out all of your obligations under your guarantee.
15 If the credit
provider writes asking me where the mortgaged goods are, do I have to say where
they are?
Yes. You have 7
days after receiving the credit provider’s request to tell the credit provider.
If you do not have the goods you must give the credit provider all the
information you have so they can be traced.
16 When
can the credit provider or its agent come into a residence to take possession
of mortgaged goods?
The credit
provider can only do so if it has the court’s approval or the written consent
of the occupier which is given after the occupier is informed in writing of the
relevant section in the National Credit Code.
17 If the debtor
defaults, do I get any warning that the credit provider wants to take action
against the debtor?
In most cases
both you and the debtor get at least 30 days from the date of a notice in
writing to do something about the matter. The notice must advise —
·
why the credit provider wants to take
action; and
·
what can be done to stop it (if the
default can be remedied); and
·
that if the same sort of default is
committed within 30 days of the date of the notice and is not remedied
within that period, the credit provider can take action without further notice.
You should
immediately discuss any warning notice with the debtor and consider getting
independent legal advice and/or financial advice.
However, there
will be no warning notice if —
·
there is a good reason to think the
debtor committed a fraud to persuade the credit provider to enter into the
contract; or
·
the credit provider has been unable to
locate the debtor after making reasonable efforts to do so; or
·
the court says so; or
·
there is a good reason to think that
the debtor has, or will, remove or dispose of mortgaged goods without the
credit provider’s consent, or that urgent action is necessary to protect
mortgaged property.
18 When
can the credit provider enforce a judgment against me?
When —
·
the credit provider has judgment
against the debtor and if the judgment amount has still not been met 30 days
after the credit provider has asked the debtor in writing to pay it; or
·
the court says so because recovery from
the debtor is unlikely; or
·
the credit provider has been unable to
locate the debtor after making reasonable efforts to do so; or
·
the debtor is insolvent.
19 If the debtor
can not be found and the credit provider intends to take legal action against
me do I get any warning?
You may not.
See the answer to question 17.
20 Can the credit
provider take action against me without first taking action against the debtor?
Yes, but the
credit provider will not be able to enforce any judgement against you except in
the circumstances described in the answer to question 18.
21 How much do I
have to pay the credit provider if the debtor defaults?
You have to pay
what the debtor owes the credit provider, subject to any limit provided in the
guarantee, plus the credit provider’s reasonable expenses in making you honour
your contract of guarantee.
General
22 What can I do
if I am asked to pay out the credit contract and I can not pay it all at once?
Talk to the
credit provider and see if some arrangement can be made about paying.
If you can not
come to a suitable arrangement, contact your credit provider’s external dispute
resolution scheme.
There are other
people, such as financial counsellors, who may be able to help.
23 If I pay out
money for a debtor, is there any way I can get it back?
You can sue the
debtor, but remember, if the debtor can not pay the credit provider, he or she
probably can not pay you back for a while, if at all.
24 What happens if
I go guarantor for someone who is under 18 when he or she signs a credit contract?
You are
responsible for the full debt if the contract of guarantee has a clear and
obvious warning. The warning has to tell you that the courts might not let you
sue the debtor if you have to pay out the credit contract for him or her.
25 Do I have any
other rights and obligations?
Yes. The law
does give you other rights and obligations. You should also READ YOUR
GUARANTEE carefully.
IF YOU HAVE
ANY DOUBTS, OR WANT MORE INFORMATION, CONTACT YOUR CREDIT PROVIDER. YOU MUST
ATTEMPT TO RESOLVE YOUR COMPLAINT WITH YOUR CREDIT PROVIDER BEFORE CONTACTING
YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE RESOLUTION SCHEME. IF YOU HAVE A
COMPLAINT WHICH REMAINS UNRESOLVED AFTER SPEAKING TO YOUR CREDIT PROVIDER YOU
CAN CONTACT YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE RESOLUTION SCHEME OR GET
LEGAL ADVICE.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS. YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION PROVIDER IS [INSERT NAME OF EXTERNAL DISPUTE
RESOLUTION PROVIDER] AND CAN BE CONTACTED AT [INSERT TELEPHONE NUMBER,
EMAIL/WEBSITE AND POSTAL ADDRESS].
PLEASE KEEP
THIS INFORMATION STATEMENT. YOU MAY WANT SOME INFORMATION FROM IT AT A LATER
DATE.
Form 10 Information after surrender of mortgaged goods
subsection 85 (3) of the
Code
regulation 84 of the
Regulations
TO: .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(name
of mortgagor)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of mortgagor)
FROM:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
(name
of credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Australian
credit licence number)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of credit provider)
.
. . . . . . . . . . . . . . .
Date
CONTACT
PERSON: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . ..
(name,
telephone number and address)
You have
returned mortgaged goods to the credit provider/asked the credit provider to
sell the mortgaged goods.*
This information
tells you some of your rights and obligations and some of the options open to
you.
Details you should know
Description of
the goods: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date you
returned the goods to the credit provider/asked the credit provider to sell the
goods*: . . . . . . . . . . . . . . . . . . . . . . .
The cost of
enforcing the mortgage up to the date you returned the goods to the credit
provider/asked the credit provider to sell the goods* is $ . . . . . . . . . . .
. . .
The cost of the
goods being in the credit provider’s possession is $. . . . . . . . . . . . . .
. . .
per . . . . . .
. . . . . . . . . . . **
The credit
provider’s estimate of the value of the goods is $ . .
How to get the goods returned or
not sold
YOU CAN GET
THE GOODS BACK OR STOP THEM BEING SOLD BY THE CREDIT PROVIDER IF YOU ASK THE
CREDIT PROVIDER AND IF THE REPAYMENTS AND OTHER OBLIGATIONS UNDER THE CREDIT
CONTRACT HAVE BEEN MET. YOUR REQUEST MUST BE MADE IN WRITING WITHIN
21 DAYS OF THIS NOTICE BEING GIVEN TO YOU.
If you do nothing, you
may lose the goods.
Sale of goods
The law says
that the credit provider must get the best price reasonably obtainable for the
goods.
If you want to,
you can introduce a buyer to the credit provider. This has to be done in
writing within 21 days after the date of this notice and the buyer must be
willing to pay the credit provider’s estimate of the value of the goods or any
greater amount for which the credit provider has obtained a written offer to buy
the goods.
The credit
provider must offer to sell the goods to the buyer you have introduced.
Your letter
introducing the buyer has to reach the credit provider before the goods are
sold. If you post the letter, it is best to send it by certified or registered
mail. Then you can check that it was delivered. If you take it to the credit
provider’s office, you should get an employee of the credit provider to sign
and date something to say that your letter has been received. Make sure you
keep anything that was signed by that employee.
Once the 21 day
period has expired, the credit provider must sell the goods as soon as
reasonably practicable unless you and the credit provider agree on some other
time for sale.
As mentioned
above, the goods must be sold for the best price reasonably obtainable.
Finalising the contract
As soon as the
goods are sold, the total amount payable under the credit contract becomes due.
The credit provider must credit you with the proceeds of the sale less —
·
the amount owing under your mortgage
(which can not be more than the amount owing under the contract); and
·
any amount owing under a prior mortgage
of the goods; and
·
any amount owing under a subsequent
mortgage of the goods which the credit provider knows about; and
·
the credit provider’s reasonable
expenses of enforcing the mortgage; and
·
the expenses reasonably incurred by the
credit provider in connection with the possession and sale of the mortgaged
goods.
After the goods
are sold the credit provider must give you a notice setting out certain
information including —
·
what the sale price was; and
·
the net proceeds of the sale; and
·
the amount credited to you; and
·
the amount required to pay out the
credit contract or the amount due under the guarantee.
General
You should discuss
this matter with the credit provider as soon as possible. You should know that
even after the goods are sold, you will still have to pay the credit provider
any amount still outstanding. You may be able to work out some alternative
arrangement about your contract if you are the debtor. For example, you could
ask the credit provider —
·
to extend the term of the contract and
either reduce the amount of each payment accordingly or defer payments for a
specified period; or
·
to simply defer payments for a specified
period.
The name and
telephone number of the person to contact is on the front of this document.
If you can not
come to a suitable arrangement with the credit provider, contact the credit
provider’s external dispute resolution scheme immediately. If you are the
debtor and have been unemployed, sick or there is another good
reason why you are having problems making payments under your contract,
then your contract may be able to be varied under the law to meet your
situation.
IF YOU
HAVE ANY DOUBTS, OR WANT MORE INFORMATION, CONTACT YOUR CREDIT PROVIDER. YOU
MUST ATTEMPT TO RESOLVE YOUR COMPLAINT WITH YOUR CREDIT PROVIDER BEFORE
CONTACTING YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE RESOLUTION SCHEME. IF YOU
HAVE A COMPLAINT WHICH REMAINS UNRESOLVED AFTER SPEAKING TO YOUR CREDIT
PROVIDER YOU CAN CONTACT YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE RESOLUTION
SCHEME.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS. YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION PROVIDER IS [INSERT NAME OF EXTERNAL DISPUTE
RESOLUTION PROVIDER] AND CAN BE CONTACTED AT [INSERT TELEPHONE NUMBER,
EMAIL/WEBSITE AND POSTAL ADDRESS].
Alternatively, you can seek legal advice, for example from
a community legal centre or Legal Aid. There are other people, such as
financial counsellors, who may be able to help.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .
(signature of credit provider or person signing on behalf of
credit provider)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . .
(name of person signing)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . .
(position of person signing)
* Omit whichever is not applicable.
** Indicate the daily, monthly or other rate at which
enforcement expenses may accrue.
Form 11 Direct debit default notice
subsection 87 (3) of the
Code
regulation 85 of the
Regulations
DIRECT
DEBITS FROM YOUR BANK ACCOUNT
A
direct debit repayment has been dishonoured (not paid). Contact us [insert
telephone number or email address] to arrange to make your payment. Check
your direct debit request before your next payment is due. Make sure you
understand how your direct debit works and what to do if you have a problem.
Are
you unable to make a payment?
If
you can not make a payment, you should contact us immediately. Depending on
your circumstances, we may make changes to the repayments under your contract
to help you repay the debt.
You
can ask us to:
·
extend the term of your contract and
reduce repayments; or
·
extend the term of your contract and
delay payments for a set time; or
·
delay payments for a set time without
extending the term of your contract.
If
we refuse your request, you can ask us to reconsider. If we still refuse, you
can go to [insert name of relevant external dispute resolution scheme]
by [insert contact details and method(s) for lodging complaints]. You
should apply as soon as we refuse your request or if we do not respond to you
within 21 days.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS.
Alternatively,
you can seek legal advice, for example from a community legal centre or Legal
Aid. There are other people, such as financial counsellors, who may be able to
help.
Some
useful tips on direct debits
Make
sure you have the correct account number. Ensure that you have not given
the wrong account number, or that the direct debit has not been dishonoured due
to the account being changed or closed.
Read your
Direct Debit Request Service Agreement carefully. Make sure you understand
how much we will withdraw from your account and when we will withdraw it.
Contact us if you need to change the dates on which the direct debit occurs.
Have
adequate funds in your account to meet your payments. This will ensure you
don’t default again or incur a fee for not having sufficient funds in your
account.
Check your
bank statements. Make sure we are withdrawing the correct amount at the
right time.
Cancelling
your direct debit. In most situations, you can cancel a direct debit with
us or with the bank or financial institution where your account is held
(provided you comply with any specific requirements). However, you need to make
sure you have made alternative payment arrangements with us so that you do not
default on your payment. Your instruction to cancel a direct debit may have to
be in writing. Contact your bank or financial institution a few days after you
have sent your written notification to check that the direct debit has been
cancelled.
Resolving
a problem with your direct debit. If you have a problem with a direct debit
you can make a complaint to us or to the bank or financial institution where
your account is held. You can also contact our external dispute resolution
scheme for assistance in resolving the complaint if you were unable to resolve
it with us. Our external dispute resolution scheme is [insert name of
external dispute resolution scheme] and can be contacted at [insert
telephone number, email/website and postal address].
Get
further information. If you have questions about direct debit authorities,
talk to your bank or financial institution.
Form 12 Information
about debtor’s rights after default
paragraphs 88 (3) (f) and
(g) of the Code
regulation 86 of the
Regulations
If
you cannot make a repayment:
1. Contact
us immediately
Contact us [insert
telephone number or email address for dealing
with financial hardship applications] to discuss your situation. If there
is a reason why you cannot make repayments we may be able to help you by
agreeing to vary your contract. The sooner you contact us the easier it will be
to assist you.
You
have specific legal rights to request changes be made to your contract to help
you repay the debt if:
·
you cannot make repayments due to
hardship (for example, illness, unemployment or some other good reason); and
·
you expect to be able to make the
repayments if the terms of your contract are changed; and
·
you entered into your contract:
¾
on or after 1 July 2010 and the amount you have borrowed
is less than $500 000; or
¾
before 1 July 2010 and the amount you have borrowed is
less than the relevant threshold.*
You may request
that we:
·
extend the term of your contract and
reduce repayments; or
·
extend the term of your contract and
delay payments for a set time; or
·
delay payments for a set time without
extending the term of your contract.
Alternatively,
you may request that we negotiate with you to postpone any further action that
we may take against you.
If you do not
contact us before [insert default notice period end date], we may
commence further action against you.
IMPORTANT
There is no
guarantee that we will agree to change your contract or postpone any further
action.
After we
receive your application, we will provide you with a written notice within 21
days stating whether or not we agree to the change.
R
If we agree, you will receive a written notice detailing the agreement within
30 days.
T
If we refuse, we will provide you with reasons. You have the right to have the
decision reviewed.
2. Right
to review
If we refuse
your request to change your contract, you can ask us to reconsider. If we still
refuse, or if we do not respond to your request within 21 days, you can go to [insert
name of relevant external dispute resolution scheme] by [insert contact
details and method(s) for lodging complaints]. You should apply as soon as we refuse your request or
fail to respond.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS.
If we fail to
respond, we may have breached our obligation to you. You can contact ASIC on
1300 300 630 or through ASIC’s website at http://www.asic.gov.au.
Alternatively,
if we refuse, you can ask a court to make changes to your contract.
You can also
ask a court to delay enforcement action against you. You may wish to get legal
advice, for example from a community legal centre or Legal Aid, on how to go
about this.
There
are other people, such as financial counsellors, who may be able to help.
* You can find out what the
relevant threshold is by contacting us or referring to ASIC’s website at http://
www.asic.gov.au or contacting ASIC on 1300 300 630.
Form 13 Consent to enter premises
subsection 99 (2) of
the Code
regulation 87 of the
Regulations
.
. . . . . . . . . . . . . .
Date
TO: .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(name
of credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Australian
credit licence number)
FROM:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
(name
of occupier)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of occupier’s premises)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(‘the premises’)
I consent to
the credit provider entering the premises for the purpose of taking possession
of the mortgaged goods described below.
The mortgaged goods are:*
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
|
IMPORTANT
YOU HAVE THE RIGHT TO REFUSE CONSENT. IF YOU
DO THE CREDIT PROVIDER MAY GO TO COURT FOR PERMISSION TO ENTER THE PREMISES.
|
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(signature
of occupier giving consent)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(name, address and signature of credit provider’s
representative by whom the consent was obtained)
* Insert brief details of the mortgaged goods.
Form 14 Notice after taking possession of mortgaged goods
paragraph 102 (1) (c) of
the Code
regulation 88 of the
Regulations
.
. . . . . . . . . . . . . .
Date
TO: .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(name
of mortgagor)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of mortgagor)
FROM:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
(name
of credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Australian
credit licence number)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(name, telephone and address)
This
information tells you some of your rights and obligations and some of the
options open to you.
Details you should know
Description of
the goods: . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date the goods
were taken: . . . . . . . . . . . . . . . . . . . . . . . . . . .
The goods were
taken because:. . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. .
The cost of
enforcing the mortgage up to the date the goods were taken is $. . . . . . . .
. . .
The cost of the
goods remaining in the credit provider’s possession is $. . . . . . . . . .
.per. . . . . . . . . . . . *
The credit
provider’s estimate of the value of the goods is $. . . . . . . . . . .
How to get the goods back
IF YOU WANT
THE GOODS BACK YOU MUST DO ONE OF THE THINGS LISTED BELOW AS SOON AS POSSIBLE.
IF YOU DO NOT ACT WITHIN 21 DAYS AFTER THE DATE OF THIS NOTICE, THE CREDIT
PROVIDER MAY SELL THE GOODS. IT IS ALSO POSSIBLE THAT THE GOODS MIGHT BE SOLD
EARLIER IF THE CREDIT PROVIDER GETS A COURT ORDER.
Either
You
can get the goods back if you pay $ . . . . . . . . . and there is no
repetition of the default that caused the goods to be taken. This amount of $ .
. . . . . . . . . . . . is calculated as follows —
Arrears . . . .
. . . . . . . . . $ . . . . . . . . . . . . .
Enforcement
expenses . $ . . . . . . . . . . . . .
TOTAL. . . .
. . . . . . . . . $ . . . . . . . . . . . . .
OR
You can pay out
the credit contract. If you do this you can get the goods back and you do not
have any further obligations.
To give you an
idea of what the amount required to pay out the credit contract may be, 2
figures are given below. The first is the amount required to pay out the
contract at the date of this notice. The second is the amount required
calculated 21 days from that date. Any difference is the result of further
payments or charges that fall due between the 2 dates.
1 Amount required
to pay out
the credit
contract on / / $
2 Amount required
to pay out
the credit
contract on / / $
If you do nothing, you will lose
the goods.
Sale of goods
The law says
that the credit provider must get the best price reasonably obtainable for the
goods.
If you want to,
you can introduce a buyer to the credit provider. This has to be done in
writing within 21 days after the date of the notice you receive and the buyer
must be willing to pay the credit provider’s estimate of the value of the goods
or any greater amount for which the credit provider has obtained a written
offer to buy the goods.
The credit
provider must offer to sell the goods to the buyer you have introduced.
Your letter introducing
the buyer has to reach the credit provider before the goods are sold. If you
post the letter, it is best to send it by certified or registered mail then you
can check that it was delivered. If you take it to the credit provider’s
office, you should get an employee to sign and date something to say that your
letter has been received. Make sure you keep anything that was signed by the
employee.
Once the 21 day
period has expired, the credit provider must sell the goods as soon as
reasonably practicable unless —
·
you and the credit provider agree on
some other time for sale; or
·
legal proceedings have been taken which
prevent the sale.
As mentioned
above, the goods must be sold for the best price reasonably obtainable.
Finalising the contract
As soon as the
goods are sold, the total amount payable under the contract becomes due.
However, the credit provider will have to deduct from what you owe any amount
the credit provider gets for the goods less —
·
the amount owing under your mortgage
(which can not be more than the amount owing under the contract); and
·
any amount owing under a prior mortgage
of the goods; and
·
any amount owing under a subsequent
mortgage of the goods which the credit provider knows about; and
·
the credit provider’s reasonable expenses
of enforcing the mortgage.
After the goods
are sold, the credit provider must give you a notice setting out certain
information including —
·
what the sale price was; and
·
the net proceeds of the sale after the
amounts mentioned above have been deducted; and
·
the amount due under the credit
contract or the amount of any surplus due to you; and
·
details of any further recovery action
that might be taken against you under the credit contract if you are the
debtor.
General
You should
discuss this matter with the credit provider as soon as possible. You should
know that after the goods have been sold, you will still have to pay the credit
provider any amount still outstanding. You may be able to work out some
alternative arrangement about the contract and mortgage. For example, if your
are the debtor, you could ask the credit provider —
·
to extend the term of the contract and
either reduce the amount of each payment accordingly or defer payments for a
specified period; or
·
to simply defer payments for a specified
period.
The name,
telephone number and address of the person to contact is on the front of this
form.
If you can not
come to a suitable arrangement with the credit provider, contact the credit
provider’s external dispute resolution scheme immediately. If you are the
debtor and have been unemployed, sick or there is another good
reason why you are having problems with your contract, then your contract
may be able to be varied under the law to meet your situation.
IF YOU HAVE
ANY DOUBTS, OR WANT MORE INFORMATION, CONTACT YOUR CREDIT PROVIDER. YOU MUST
ATTEMPT TO RESOLVE YOUR COMPLAINT WITH YOUR CREDIT PROVIDER BEFORE CONTACTING
YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE RESOLUTION SCHEME. IF YOU HAVE A
COMPLAINT WHICH REMAINS UNRESOLVED AFTER SPEAKING TO YOUR CREDIT PROVIDER YOU
CAN CONTACT YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE RESOLUTION SCHEME.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS. YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION PROVIDER IS [INSERT NAME OF EXTERNAL DISPUTE
RESOLUTION PROVIDER] AND CAN BE CONTACTED AT [INSERT TELEPHONE NUMBER,
EMAIL/WEBSITE AND POSTAL ADDRESS].
Alternatively, you can seek legal advice, for example from
a community legal centre or Legal Aid. There are other people, such as
financial counsellors, who may be able to help.
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(signature of credit provider or person signing on behalf
of
credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(name of person signing)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(position of person signing)
* Indicate the daily, monthly or other rate at
which enforcement expenses accrue.
Form 15 Notice of right to terminate maintenance services contract
subsection 136 (2) of the
Code
regulation 91 of the
Regulations
.
. . . . . . . . . . . . . .
Date
TO: .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(name
of debtor)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of debtor)
FROM:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
(name
of credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Australian
credit licence number)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The law says
that you must be told, now that your credit contract has terminated, that you
can also —
·
terminate your maintenance services
contract with
. . . . . . . .
. . . . . . .dated . . . . . . . . . . . . . . . . .
. . . . . . .
. . . . . . . . . . . . . . * (supplier); and
·
recover from the supplier a
proportionate rebate of the amount you have paid under the maintenance services
contract.
You
must tell the supplier in writing if you want to terminate the maintenance
services contract.
The
proportionate rebate must be calculated in accordance with the law.
IF YOU HAVE ANY DOUBTS, OR WANT MORE INFORMATION, CONTACT
YOUR CREDIT PROVIDER. YOU MUST ATTEMPT TO RESOLVE YOUR COMPLAINT WITH YOUR
CREDIT PROVIDER BEFORE CONTACTING YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE
RESOLUTION SCHEME. IF YOU HAVE A COMPLAINT WHICH REMAINS UNRESOLVED AFTER
SPEAKING TO YOUR CREDIT PROVIDER YOU CAN CONTACT YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION SCHEME OR GET LEGAL ADVICE.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS. YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION PROVIDER IS [INSERT NAME OF EXTERNAL DISPUTE
RESOLUTION PROVIDER] AND CAN BE CONTACTED AT [INSERT TELEPHONE NUMBER,
EMAIL/WEBSITE AND POSTAL ADDRESS].
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .
(signature of credit provider or person signing on behalf
of
credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(name of person signing)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(position of person signing)
* Insert name and address of supplier under the
maintenance services contract.
Form 16 Notice of right to cancel mortgaged property insurance
subsection 149 (2) of the
Code
regulation 95 of the
Regulations
.
. . . . . . . . . . . . . .
Date
TO: .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(name
of debtor)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of debtor)
FROM:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
(name
of credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Australian
credit licence number)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(address
of credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The law says
that you must be told, now that your credit contract has terminated, that you
can also —
·
terminate your insurance contract over
mortgaged property financed under the credit contract; and
·
recover from the insurer a
proportionate rebate of premium paid under the insurance contract.
Your
insurer will not terminate the insurance contract unless you ask the insurer in
writing to do so. If you terminate the insurance, you will not be covered in
the event of loss or damage to the property.
According
to our records your insurer is . . . . . . . . . . . . . . . .
The
mortgaged property is —
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The
proportionate rebate of insurance must be calculated in accordance with the
law.
IF YOU HAVE ANY DOUBTS, OR WANT MORE INFORMATION, CONTACT
YOUR CREDIT PROVIDER. YOU MUST ATTEMPT TO RESOLVE YOUR COMPLAINT WITH YOUR
CREDIT PROVIDER BEFORE CONTACTING YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE
RESOLUTION SCHEME. IF YOU HAVE A COMPLAINT WHICH REMAINS UNRESOLVED AFTER
SPEAKING TO YOUR CREDIT PROVIDER YOU CAN CONTACT YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION SCHEME OR GET LEGAL ADVICE.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS. YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION PROVIDER IS [INSERT NAME OF EXTERNAL DISPUTE
RESOLUTION PROVIDER] AND CAN BE CONTACTED AT [INSERT TELEPHONE NUMBER, EMAIL/WEBSITE
AND POSTAL ADDRESS].
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(signature of credit provider or person signing on behalf
of
credit provider)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(name of person signing)
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . .
(position of person signing)
Form 17 Information statement
subsection 175 (1) of
the Code
regulation 105 of the
Regulations
Things
you should know about your consumer lease
This statement
tells you about some of the rights and obligations of yourself and your lessor.
It does not state the terms and conditions of your lease.
The
lease
1 How can I get
details of my lease?
Your lessor
must give you a copy of your consumer lease with this statement. Both documents
must be given to you within 14 days after the lessor enters into the
consumer lease, unless you already have a copy of the consumer lease.
If you want
another copy of your lease write to your lessor and ask for one. Your lessor
may charge you a fee. Your lessor has to give you a copy —
·
within 14 days of your written request
if the contract came into existence 1 year or less before your request; or
·
otherwise within 30 days.
2 What should my
lease tell me?
You should read
your lease carefully.
Your lease
should tell you about your obligations, and include information on matters such
as —
·
details of the goods which have been
hired; and
·
any amount you have to pay before the
goods are delivered; and
·
stamp duty and other government charges
you have to pay; and
·
charges you have to pay which are not
included in the rental payments; and
·
the amount of each rental payment; and
·
the date on which the first rental
payment is due and either the dates of the other rental payments or the
interval between them; and
·
the number of rental payments; and
·
the total amount of rent; and
·
when you can end your lease; and
·
what your obligations are (if any) when
your lease ends.
This
information only has to be included in your lease if it is possible to give it
at the relevant times.
If your lease
does not tell you all these details, contact your credit provider’s external
dispute resolution scheme, or get legal advice, for example from a community
legal centre or Legal Aid, as you may have rights against your lessor.
3 Can I end my
lease early?
Yes. Simply
return the goods to your lessor. The goods may be returned in ordinary business
hours or at any other time you and the lessor agree on or the court decides.
4 What will I
have to pay if I end my lease early?
The amount the
lease says you have to pay.
If you have
made rental payments in advance then it is possible that your lessor might owe
you money if you return the goods early.
5 Can my lease
be changed by my lessor?
Yes, but only
if your lease says so.
6 Is there
anything I can do if I think that my lease is unjust?
Yes. You should
talk to your lessor. Discuss the matter and see if you can come to some
arrangement.
If that is not
successful, you may contact your credit provider’s external dispute resolution
scheme.
EXTERNAL
DISPUTE RESOLUTION IS A FREE SERVICE ESTABLISHED TO PROVIDE YOU WITH AN
INDEPENDENT MECHANISM TO RESOLVE SPECIFIC COMPLAINTS. YOUR CREDIT PROVIDER’S
EXTERNAL DISPUTE RESOLUTION PROVIDER IS [INSERT NAME OF EXTERNAL DISPUTE
RESOLUTION PROVIDER] AND CAN BE CONTACTED AT [INSERT TELEPHONE NUMBER,
EMAIL/WEBSITE AND POSTAL ADDRESS].
Alternatively,
you can go to court. You may also wish to get legal advice, for example from a
community legal centre or Legal Aid, and/or make a complaint to ASIC. ASIC can
be contacted on 1300 300 630 or through ASIC’s website at http://www.asic.gov.au.
The
goods
7 If my lessor
writes asking me where the goods are, do I have to say where they are?
Yes. You have 7
days after receiving your lessor’s request to tell your lessor. If you do not
have the goods you must give your lessor all the information you have so they
can be traced.
8 When can my
lessor or its agent come into a residence to take possession of the goods?
Your lessor can
only do so if it has the court’s approval or the written consent of the
occupier which is given after the occupier is informed in writing of the
relevant section in the National Credit Code.
General
9 What do I do
if I can not make a rental payment?
Get in touch
with your lessor immediately. Discuss the matter and see if you can come to
some arrangement.
You can ask
your lessor to change your lease in a number of ways —
·
to extend the term of your lease and
reduce rental payments; or
·
to extend the term of your lease and
delay rental payments for a set time; or
·
to delay rental payments for a set
time.
10 What if my
lessor and I can not agree on a suitable arrangement?
If the lessor
refuses your request to change the rental payments, you can ask your lessor to
review this decision if you think it is wrong.
If the lessor
still refuses your request, you can complain to the external dispute resolution
scheme that your lessor belongs to. Further details about this scheme are set
out below in question 12.
11 Can my lessor
take action against me?
Yes, if you are
in default under your lease. But the law says that you can not be unduly
harassed or threatened for rental payments. If you think you are being unduly
harassed or threatened, contact your credit provider’s external dispute
resolution scheme or ASIC, or get legal advice.
12 Do I have any
other rights and obligations?
Yes. The law
will give you other rights and obligations. You should also READ YOUR LEASE
carefully.
IF YOU HAVE
ANY DOUBTS, OR WANT MORE INFORMATION, CONTACT YOUR CREDIT PROVIDER. YOU MUST
ATTEMPT TO RESOLVE YOUR COMPLAINT WITH YOUR CREDIT PROVIDER BEFORE CONTACTING
YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE RESOLUTION SCHEME. IF YOU HAVE A
COMPLAINT WHICH REMAINS UNRESOLVED AFTER SPEAKING TO YOUR CREDIT PROVIDER YOU
CAN CONTACT YOUR CREDIT PROVIDER’S EXTERNAL DISPUTE RESOLUTION SCHEME OR GET
LEGAL ADVICE.
PLEASE KEEP
THIS INFORMATION STATEMENT. YOU MAY WANT SOME INFORMATION FROM IT AT A LATER
DATE.
Schedule
2 Modifications —
carried over instruments
(regulation 25E)
2.1 Subsection 5 (1),
after definition of carried on in this jurisdiction
insert
carried over instrument has the meaning
given by subsection 4 (1) of the Transitional Act.
2.2 Subsection 5 (1),
after definition of prescribed State or Territory order
insert
prescribed unlicensed carried over instrument lender
has the meaning given by section 5A.
2.3 Subsection 5 (1),
after definition of registered company auditor
insert
registered person has the meaning given by subsection
4 (1) of the Transitional Act.
2.4 Subsection 5 (1),
after definition of tribunal
insert
unlicensed carried over instrument lender
means a credit provider or lessor who:
(a) was a credit provider or lessor in
relation to a carried over instrument immediately before 1 July 2010; and
(b) on and after 1 July 2010 has been
the credit provider or lessor in relation to the carried over instrument on a
continuous basis; and
(c) is not any of the following
persons:
(i) a licensee;
(ii) a registered person;
(iii) a person exempt from
the requirement to hold a licence under this Act or to be a registered person
under the Transitional Act.
2.5 After section 5
insert
5A Meaning of prescribed
unlicensed carried over instrument lender
(1) A prescribed unlicensed carried over
instrument lender means a person:
(a) for whom:
(i) a prescribed State or
Territory order is in force; or
(ii) a banning or disqualification
order under Division 8 of Part 7.6 of the Corporations Act 2001 is in
force; or
(iii) a judgement has been
entered against as a result of a civil action taken by an agency of a State or
Territory government under the old Credit Code in the last 10 years; or
(b) who is banned from engaging in a
credit activity under:
(i) a
law of a State or Territory; or
(ii) Part
2-4; or
(c) who is disqualified from managing
a corporation under Part 2D.6 of the Corporations Act 2001; or
(d) who has been convicted of a
serious fraud during the last 10 years; or
(e) who is incapable of managing his
or her affairs because of physical or mental incapacity; or
(f) who is not a trustee of a trust
and who is insolvent; or
(g) who is or has been registered to engage
in credit activities under Schedule 2 to the Transitional Act and whose
registration was suspended or cancelled under item 23 of Schedule 2 to the
Transitional Act, other than under paragraph 23(1)(a) or (b); or
(h) who is or has been the holder of
an Australian credit licence and whose licence is suspended or was cancelled
under section 54, other than under paragraph 54(1)(a) or (b); or
(i) who is or has been the holder of
an Australian financial services licence and whose licence is suspended or was
cancelled under section 915B of the Corporations Act 2001, other than
under any of the following paragraphs of that Act:
(i) paragraphs 915B(1)(a) or
(e);
(ii) paragraphs 915B(2)(a) or
(d);
(iii) paragraphs 915B(3)(a) or
(d);
(iv) paragraphs 915B(4)(a) or
(d).
(2) In this section person
means:
(a) if the person is a natural person—that
person; and
(b) if the person is a body corporate—each
director or secretary of the body corporate; and
(c) if the person is a partnership or a
trustee of a trust—each partner of the partnership or each trustee of the
trust.
2.6 Chapter 2, heading
substitute
Chapter 2—Unlicensed carried over instrument
lenders
2.7 Part 2-1, Divisions 1 and 2
omit
2.8 Section 30
omit
2.9 Subsection 31 (1)
omit
A licensee
insert
An unlicensed carried
over instrument lender
2.10 Sections 32 and 33
omit
2.11 Part 2-2, heading
substitute
Part 2‑2—Obligations of unlicensed carried over
instrument lenders
2.12 Part 2-2, Divisions 1 to 3
omit
2.12A Part 2-2, Division 4
heading
substitute
Division 4—Conditions for unlicensed
carried over instrument lender
2.13 Section 45
substitute
45 Conditions for unlicensed
carried over instrument lender
(1) This section applies to an unlicensed
carried over instrument lender who engages in a credit activity in relation to
a carried over instrument.
(2) The lender in relation to the credit
activity in relation to the instrument is subject to the conditions prescribed
in the regulations.
2.14 Section 46
omit
2.15 Part 2-2, Division 5, heading
substitute
Division 5—General
obligations
2.16 Section 47, heading
substitute
47 General
conduct obligations of unlicensed carried over instrument lender
2.17 Subsection 47 (1)
substitute
(1) An unlicensed carried over instrument
lender must:
(a) do all things necessary to ensure
that the credit activities engaged in in relation to the carried over
instrument are engaged in efficiently, honestly and fairly; and
(b) have in place adequate
arrangements to ensure that its clients are not disadvantaged by any conflict of
interest in relation to a carried over instrument that may arise wholly or
partly in relation to credit activities engaged in by it or its
representatives; and
(c) ensure that its representatives
are adequately trained and competent to engage in the credit activities in
relation to the carried over instrument; and
(d) maintain its competence to engage
in the credit activities in relation to the carried over instrument; and
(e) have
an internal dispute resolution procedure that:
(i) complies with standards
and requirements made or approved by ASIC in accordance with section 48; and
(ii) covers disputes in
relation to the credit activities the lender engages in in relation to the
carried over instrument; and
(f) if the lender is not a member of
an approved external dispute resolution scheme:
(i) keep a register of
complaints in relation to carried over instruments and include the information
mentioned in subsection (1A); and
(ii) keep a register of
applications by a debtor for changes to the terms a credit contract under
section 72 of the National Credit Code and include the information mentioned in
subsection (1B); and
(iii) keep a register of
requests by a debtor, mortgagor or guarantor to negotiate a postponement of
enforcement proceedings in relation to the credit contract, mortgage or
guarantee under section 94 of the National Credit Code and include the
information mentioned in subsection (1C); and
(g) have adequate arrangements and
systems to ensure compliance with its obligations under this section, and a
written plan documenting those arrangements and systems; and
(h) unless the unlicensed carried over
instrument lender is a body regulated by APRA:
(i) have adequate
resources (including financial, technological and human resources) available so
it can engage in credit activities in relation to the carried over instrument
and to carry out supervisory arrangements; and
(ii) have adequate risk
management systems.
(1A) For the purposes of subparagraph (1)(f)
(i), the information is:
(a) the name of the person making the
complaint; and
(b) the date the complaint was made;
and
(c) details of the substance of the
complaint; and
(d) details of the outcome of the
compliant.
(1B) For the
purposes of subparagraph (1)(f)(ii), the information is:
(a) the name of the person making the
application; and
(b) the date the application was made;
and
(c) details of the information
included in the application; and
(d) details of the written notice
given under subsection 72(3) of the National Credit Code.
(1C) For the purposes of subparagraph
(1)(f)(iii), the information is:
(a) the name of the person making the
request; and
(b) the date the request was made; and
(c) details of the information
included in the request; and
(d) details of the written notice
given under subsection 94(2) of the National Credit Code.
2.18 Subsection 47 (2)
omit
For the purposes of
paragraphs (1)(b), (g), (k) and (l),
insert
For the purposes of
paragraphs (1)(b), (c), (g) and (h),
2.18A Subsection 47 (2)
omit
licensee
insert
unlicensed carried over instrument
lender
2.19 Subsection
47 (3), including subsection heading
omit
2.20 Section 48
substitute
48
Standards or requirements for internal dispute resolution approved or made by
ASIC
(1) ASIC must take the following matters into
account when considering whether to approve standards or requirements for
internal dispute resolution for an unlicensed carried over instrument lender:
(a) Australian Standard AS ISO 10002-2006:
(i) known as Complaints
Handling; and
(ii) published by Standards
Australia; and
(iii) as in force when this
Act commences;
(b) any other matters ASIC considers
relevant.
(2) ASIC may vary or revoke:
(a) a standard or requirement that it
has made in relation to an internal dispute resolution procedure; and
(b) the operation of a standard or
requirement that it has approved in its application to an internal dispute
resolution procedure.
2.21 Section 49, heading
substitute
49
Obligation to provide a statement or audit report
2.22 Subsections 49 (1) to (3)
omit each mention of
licensee
insert
unlicensed carried over
instrument lender
2.23 After subsection 49 (3)
insert
Requirement to lodge audit report
(3A) An unlicensed carried over instrument
lender who is not a member of an approved external dispute resolution scheme
must lodge with ASIC an audit report, prepared by a suitably qualified person
and in accordance with subsection (10), about whether the lender has complied
with the following requirements in relation to a carried over instrument for
the lender:
(a) if the carried over instrument is
a credit contract—the requirements mentioned in section 17 of the National Credit
Code;
(b) if the carried over instrument is
a consumer lease—the requirements mentioned in section 174 of the National
Credit Code.
Civil penalty: 2,000 penalty units.
2.24 Subsections 49 (5) and (6)
omit each mention of
licensee
insert
unlicensed carried over
instrument lender
2.25 After subsection 49 (9)
insert
When audit report due
(10) For subsection (3A), the unlicensed carried
over instrument lender must lodge the audit report with ASIC on or before 31 December
2010. ASIC may extend the day by giving written notice to the lender.
2.26 Subsections 50 (1) and
(2), including subsection headings and penalty
substitute
Requirement to give information
(1) ASIC may request an unlicensed carried
over instrument lender to give ASIC information about the registers the lender
is required to keep under paragraph 47(1)(f).
(2) If ASIC requests the lender give ASIC the
information mentioned in subsection (1), the lender must give ASIC the
information.
Civil penalty: 2,000 penalty units.
2.26A Subsection 51 (1)
omit each mention of
licensee
insert
unlicensed carried over instrument
lender
2.27 Section 52
substitute
52
Obligation to lodge certain matters with ASIC
Requirement to lodge report of contravention or likely
contravention
(1) If an
unlicensed carried over instrument lender is not a member of an approved
external dispute resolution scheme and the lender becomes aware of a contravention,
or a likely contravention, mentioned in subsection (2), the lender must lodge a
written report with ASIC on the matter:
(a) as soon as practicable; and
(b) in
any case no later than 10 business days after becoming aware of the
contravention or likely contravention.
Civil penalty: 2,000 penalty units.
When there is a contravention or likely contravention
(2) For the purposes of subsection (1), there
is a contravention, or a likely contravention, if:
(a) the unlicensed carried over
instrument lender contravenes, or is likely to contravene, this Act, the
Transitional Act or the ASIC Act; and
(b) the
contravention, or likely contravention, is significant having regard to the
following:
(i) the number and
frequency of similar previous contraventions;
(ii) the impact of the
contravention, or likely contravention, on the lender’s ability to engage in
the credit activities;
(iii) the extent to which
the contravention, or likely contravention, indicates that the lender’s
arrangements to ensure compliance with its obligations under this Part are
inadequate;
(iv) the actual or potential
financial loss to consumers, or the lender itself, arising from the
contravention, or likely contravention.
(3) For the purposes of subsection (2), an
unlicensed carried over instrument lender is likely to contravene an obligation
referred to in that subsection if, and only if, the person is not longer able
to comply with the obligation.
Offence
(4) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes the
requirement.
Criminal penalty: 25 penalty units, or
6 months imprisonment, or both.
Strict liability offence
(5) A person
commits an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes the
requirement.
Criminal penalty: 10
penalty units.
(6) Subsection (5) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
2.28 Subsection 53 (1)
omit
A licensee must, no
later than 45 days after the licensee’s licence anniversary in each year,
insert
An unlicensed carried
over instrument lender must, no later than 15 August in 2011 and each
subsequent year,
2.29 Subsection 53 (1)
omit
to the licensee.
insert
to the unlicensed
carried over instrument lender.
2.30 Paragraph 53 (3) (a)
omit each mention of
licensee
insert
unlicensed carried over
instrument lender
2.31 Paragraph 53 (3) (b)
substitute
(b) if the unlicensed carried over
instrument lender is a body corporate—a kind of person mentioned in subsection
53(7); or
2.32 Paragraph 53 (3) (c)
omit
licensee
insert
unlicensed carried over
instrument lender
2.33 Subsection 53 (4)
omit
licensee
insert
unlicensed carried over
instrument lender
2.34 Subsection 53 (7),
including subsection heading
substitute
Kinds of persons
(7) For paragraph (3)(b), the kinds of
persons are:
(a) if the body corporate is not an
ADI:
(i) the Chief Executive
Officer of the body corporate; or
(ii) if the body corporate
does not have a Chief Executive Officer—the person who:
(A) is
responsible for managing the affairs of the body corporate; and
(B) has
authority to make decisions in relation to the allocation of resources so that
the body corporate complies with the Act; and
(b) if
the body corporate is an ADI:
(i) the Chief Executive
Officer of the body corporate; or
(ii) a person who satisfies
the criteria to be a fit and proper person to hold a responsible person
position under Prudential Standard APS 520.
Note: Prudential Standard APS 520 is in Schedule 1
to the Banking (prudential standard) determination No. 1 of 2006 —
Prudential Standard APS 520 Fit and Proper.
2.35 Division 6, Part 2-2
omit
2.36 Part 2-3, heading
substitute
Part 2‑3—Representatives of unlicensed carried
over instrument lender
2.37 Part 2-3, Divisions 1 and 2
omit
2.38 Section 73, including the
heading and subsection headings
omit each mention of
licensee
insert
unlicensed carried over
instrument lender
2.39 Part 2-3, Division 4
substitute
Division 4—Appointment of licensee or registered
person to act on behalf of prescribed unlicensed carried over instrument lender
74
Obligation for prescribed unlicensed carried over instrument lender to appoint
licensee or registered person
(1) This section applies to a prescribed
unlicensed carried over instrument lender on or after 1 July 2010.
(2) The
prescribed unlicensed carried over instrument lender:
(a) must not engage in a credit activity
in relation to a carried over instrument (other than the credit activity that
is engaged in solely by the lender being the credit provider under a credit
contract or the lessor under a consumer lease); and
(b) must appoint, in writing, a
licensee or registered person as the lender’s representative to engage in a
credit activity in relation to the carried over instrument (other than the
credit activity that is engaged in solely by the lender being the status of the
credit provider under a credit contract or the lessor under a consumer lease)
on behalf of the lender.
Civil penalty: 2,000
penalty units.
Note: Having the status of a credit provider under a
credit contract or a lessor under a consumer lease is itself a credit activity.
Offence
(3) A person commits an offence if:
(a) the
person is subject to a requirement under subsection (2); and
(b) the person engages in conduct; and
(c) the conduct contravenes the
requirement.
Criminal penalty: 25 penalty units, or
6 months imprisonment, or both.
Strict liability offence
(4) A person commits an offence if:
(a) the
person is subject to a requirement under subsection (2); and
(b) the
person engages in conduct; and
(c) the conduct contravenes the
requirement.
Criminal penalty: 10
penalty units.
(5) Subsection (4) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal
Code.
75 Lodgment obligations for prescribed unlicensed carried over
instrument lender
(1) If a licensee or registered person is
appointed by a prescribed unlicensed carried over instrument lender to act on
the lender’s behalf, the lender must lodge with ASIC, no later than 15 business
days after the appointment is made:
(a) a copy of the appointment under
section 74; and
(b) a document, in an approved form,
setting out the following information:
(i) the basis, under
section 5A, on which the lender is a prescribed unlicensed carried over
instrument lender;
(ii) the licensee’s or
registered person’s name (including the licensee’s or registered person’s
principal business name if any);
(iii) the postal address of
the licensee or registered person;
(iv) if the principal
business address of the licensee or registered person is different from the
postal address—the principal business address.
Civil
penalty: 2,000 penalty units.
Offence
(2) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes the
requirement.
Criminal penalty: 25 penalty units, or
6 months imprisonment, or both.
Strict liability offence
(3) A person
commits an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes the
requirement.
Criminal penalty: 10
penalty units.
(4) Subsection
(3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal
Code.
75A Obligation
for prescribed unlicensed carried over instrument lender if appointment of
licensee or registered person ceases
(1) This section applies if a licensee or registered
person is appointed, in accordance with paragraph 74(2)(b), by a prescribed
unlicensed carried over instrument lender to engage in a credit activity
mentioned in that paragraph on behalf of the lender.
(2) The appointment is continuous until the first of
the following events occurs:
(a) the licensee,
or registered person dies or otherwise ceases to engage in the business;
(b) the licensee, or
registered person is unable to perform its duties.
(3) If the licensee’s or registered person’s
appointment ceases under subsection (2):
(a) section 74 applies to the
prescribed unlicensed carried over instrument lender as if it required the
lender to appoint another licensee or registered person to engage in a credit
activity, as described in paragraph 74(2)(b), on behalf of the lender no later
than 15 business days after the previous appointment ceased; and
(b) section 75 applies to the
prescribed unlicensed carried over instrument lender in relation to the
appointment.
75B Obligation
if person ceases to be prescribed unlicensed carried over instrument lender
(1) If a person is a prescribed unlicensed
carried over instrument lender because a matter mentioned in subsection 5A (1)
applies to the person and the matter ceases to apply to the person, the person
must lodge with ASIC a notice, in an approved form and no later than 15
business days after the day on which the matter ceases to apply to the person,
that the matter has ceased to apply to the person.
Civil penalty: 2,000 penalty
units.
Offence
(2) A person commits an
offence if:
(a) the person is
subject to a requirement under subsection (1); and
(b) the person
engages in conduct; and
(c) the conduct
contravenes the requirement.
Criminal penalty: 25 penalty units, or 6 months
imprisonment, or both.
Strict liability
offence
(3) A person commits an
offence if:
(a) the person is
subject to a requirement under subsection (1); and
(b) the person
engages in conduct; and
(c) the conduct
contravenes the requirement.
Criminal penalty: 10
penalty units.
(4) Subsection (3) is an
offence of strict liability.
Note: For strict liability,
see section 6.1 of the Criminal Code.
76
Lodgement obligation for licensee or registered person acting on behalf of
prescribed unlicensed carried over instrument lender
(1) If a licensee or registered person is
appointed by a prescribed unlicensed carried over instrument lender to act on
the lender’s behalf, the licensee or registered person must lodge with ASIC a
notice, in an approved form, of the appointment no later than 15 business days
after the appointment.
Civil penalty: 2,000
penalty units.
Offence
(2) A person
commits an offence if:
(a) the
person is subject to a requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes the
requirement.
Criminal penalty: 25 penalty units, or
6 months imprisonment, or both.
Strict liability offence
(3) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the
conduct contravenes the requirement.
Criminal penalty: 10
penalty units.
(4) Subsection (3) is an offence of strict
liability.
Note: For strict liability, see section 6.1 of the Criminal
Code.
2.39B Part 2-4
omit
2.39C Part 2-5, heading
substitute
Part
2-5—Financial records and audit reports
2.40 Section 87
omit
2.40A Subsection 88 (1)
omit
A licensee
insert
An unlicensed carried over
instrument lender
2.40B Subsection 88 (1)
omit
licensee.
insert
lender.
2.40C Paragraph 88 (2) (c)
omit
2.40D Subsection 88 (4)
omit
A licensee
insert
An unlicensed carried over
instrument lender
2.40E Subsection 88 (4)
omit
licensee.
insert
lender.
2.41 Sections 90 to 92
omit each mention of
licensee
insert
unlicensed carried over
instrument lender
2.42 Section 94, heading
substitute
94
Financial records taken to be made with unlicensed carried over instrument
lender’s authority
2.43 Section 94
omit
licensee.
insert
unlicensed carried over
instrument lender.
2.44 Subsection 95 (1)
omit
A licensee
insert
An unlicensed carried
over instrument lender
2.45 Subsection 96 (2)
omit each mention of
licensee
insert
unlicensed carried over
instrument lender
2.46 Part
2-5, Division 3
omit
2.47 Subsection 102 (1)
substitute
(1) An auditor (the auditor)
who prepares an audit report required under subsection 49(3) or 49(3A) in
relation to an unlicensed carried over instrument lender has a right of access
at all reasonable times to the financial records or other credit books of the
lender for purposes relating to the audit report.
2.48 Subsections 102 (2) and
(3)
omit each mention of
licensee
insert
unlicensed carried over instrument lender
2.49 Section 103
omit each mention of
licensee
insert
unlicensed carried over instrument lender
2.50 Paragraph 104 (1) (b)
omit
licensee
insert
unlicensed carried over instrument lender
2.51 Paragraph 104 (2) (a)
omit
licensee
to meet the licensee’s obligations as a licensee; or
insert
unlicensed carried over instrument lender
to meet its obligations under section 47 or the National Credit Code; or
2.52 Paragraph 104 (2) (b)
substitute
(b) constitutes or may constitute a contravention
of section 47 or Division 2; or
2.53 Section 105
omit each mention of
licensee
insert
unlicensed carried over instrument lender
2.53A Paragraph 106 (b)
omit
Schedule
3 Modifications — special purpose
funding entity
(regulation 25G)
3.1 Section 5, after definition of contravention
insert
court has the same meaning as it has in Part 4-3.
3.2 Section 5, after definition of function
insert
fund raising special
purpose entity means a body
corporate or trust that:
(a) has the sole purpose of raising funds in
order to be:
(i) a credit provider for a credit
contract; or
(ii) a lessor for a consumer lease; and
(b) raises funds
from persons other than natural persons; and
(c) only engages
in credit activities as a credit provider under a credit contract or a lessor
under a consumer lease; and
(d) does
not have any employees; and
(e) is not a
licensee or registered person.
3.3 Section 5, after definition of registered company
auditor
insert
registered person has the meaning given by section 4 of the
Transitional Act.
3.4 Section 5, after definition of representative
insert
securitisation entity means a body corporate or trust that:
(a) carries on a
business consisting of managing by way of a securitisation transaction some or
all of the economic risk associated with assets, liabilities or investments
(whether the body corporate or trust assumes the risk from another person or
creates the risk itself); and
(b) is an
insolvency remote special purpose funding entity according to the criteria of
an internationally recognised rating agency that are applicable to the circumstances
of the body corporate or trust (regardless of whether the agency has determined
that the body corporate or trust satisfies the criteria); and
(c) raises
substantially all of its funds by issuing securitisation products on terms that
the funds raised would be applied to the business mentioned in paragraph (a);
and
(d) is a credit
provider under a credit contract or a lessor under a consumer lease.
securitisation product means a debt instrument or an interest in a managed
investment scheme (within the meaning of section 9 of the Corporations Act
2001).
servicing agreement means an agreement:
(a) that is
between:
(i) a
special purpose funding entity; and
(ii) a
licensee or registered person; and
(b) under which
the licensee or registered person, on behalf of the special purpose funding
entity, performs obligations, or exercises the rights of:
(i) a
credit provider in relation to a credit contract or proposed credit contract;
or
(ii) a
lessor in relation to a consumer lease or proposed consumer lease; or
(iii) a
mortgagee in relation to a mortgage or proposed mortgage; or
(iv) a
person who is a beneficiary of a guarantee or proposed guarantee in relation to
the guarantee or proposed guarantee.
special purpose
funding entity means a fund raising special purpose entity or a
securitisation entity.
3.5 Subsection 29 (4)
omit
3.6 Subsection 45 (1), including the subheading
substitute
ASIC may impose,
vary or revoke conditions on licensee who is party to a servicing agreement
(1) ASIC may, at any time:
(a) impose
conditions or additional conditions on a licensee who is a party to a servicing
agreement with a special purpose funding entity, including a condition
requiring the licensee to cease engaging in a credit activity on behalf of a
special purpose funding entity; and
(b) vary or revoke
conditions imposed on the licensee.
3.7 Section 46
omit
3.8 Before section 74
insert in Division 4
74A Definitions for this Division
In this Division:
represented person means a special purpose
funding entity that is exempt from the requirement to be licensed under the
Credit Act or exempt from the requirement to be registered under the
Transitional Act.
representative includes a licensee or
registered person who is a party to a servicing agreement with a special
purpose funding entity.
3.9 Section 74
omit
licensee
insert
represented person
3.10 Section 75, heading
substitute
75 Responsibility if
representative of only one represented person
3.11 Section 75
omit each mention of
licensee
insert
represented person
3.12 Section 76, heading
substitute
76 Representatives of
multiple represented persons
3.13 Subsections 76 (1) and (2)
omit each mention of
licensee
insert
represented person
3.14 Subsection 76 (2)
omit
licensees
insert
represented persons
3.15 Paragraph 76 (3) (a)
omit
licensees
insert
represented persons
3.16 Paragraph 76 (3) (c)
substitute
(c) the conduct
is within the authority of:
(i) only
one of those represented persons (the authorising represented person);
or
(ii) 2
or more of those represented persons (the authorising represented persons);
3.17 Paragraph 76 (3) (d)
omit
authorising licensee
insert
authorising represented person
3.18 Paragraph 76 (3) (d)
omit
licensee
insert
represented person
3.19 Paragraph 76 (3) (e)
omit
authorising licensees
insert
authorising represented persons
3.21 Section 77
omit each mention of
licensee
insert
represented person
3.22 Section 78
omit each mention of
licensee
insert
represented person
3.23 Subsection 78 (2)
omit
licensees
insert
represented persons3.24 Section
112
substitute
112 Application of this
Part
This Part does not
apply in relation to credit assistance provided by a licensee or registered
person in relation to a credit contract if:
(a) a special
purpose funding entity is or will be the credit provider under the contract;
and
(b) the licensee
or registered person is party to a servicing agreement with the special purpose
funding entity.
3.25 Section 125
substitute
125 Definition for this Part
In this Part:
licensee means a licensee or registered person.
3.26 Subsection 126 (1)
substitute
(1) As soon as
practicable after it becomes apparent to an exempt special purpose funding
entity that it is likely to enter a credit contract with a consumer who will be
the debtor under the contract, the entity must take reasonable steps to ensure
that the licensee who is a party to a servicing agreement with the entity gives
the consumer the licensee’s credit guide in accordance with subsection (2).
Civil
penalty: 2,000 penalty units.
3.27 Subsection 127 (1)
substitute
(1) If an exempt special
purpose funding entity has been assigned any rights or obligations of a credit
provider under a credit contract and the licensee is acting on behalf of the
entity, the entity must take reasonable steps to ensure that the licensee:
(a) gives the
debtor under the contract the licensee’s credit guide in accordance with
subsection (2); and
(b) gives the
credit guide to the debtor as soon as practicable after the entity has been
assigned the rights or obligations.
Civil
penalty: 2,000 penalty units.
3.28 Section 128
omit
A
licensee
insert
An
exempt special purpose funding entity
3.28A Section 128
omit
the
licensee
insert
the
exempt special purpose funding entity
3.29 Section 129
omit each mention of
licensee
insert
exempt special purpose funding
entity
3.30 Section 130
omit each mention of
licensee
insert
exempt special purpose funding
entity
3.31 Section 131
omit each mention of
licensee
insert
exempt special purpose funding
entity
3.32 Section 132
omit each mention of
licensee
insert
exempt special purpose funding
entity
3.33 Section 133
omit each mention of
licensee
insert
exempt special purpose funding
entity
3.34 Section 134
omit
3.35 Section 135
substitute
135 Application of this Part
This Part does not
apply in relation to credit assistance provided by a licensee or registered
person in relation to a consumer lease if:
(a) an exempt
special purpose funding entity will be the lessor under the lease; and
(b) the licensee
or registered person is party to a servicing agreement with the exempt special
purpose funding entity.
3.36 Section 148
substitute
148 Definition for this Part
In this Part:
licensee means a licensee or registered person.
3.37 Subsection 149 (1)
substitute
(1) As soon as
practicable after it becomes apparent to an exempt special purpose funding
entity that a licensee with whom it has a servicing agreement is likely to
enter a consumer lease with a consumer who will be the lessee under the lease,
the entity must take reasonable steps to ensure that the licensee gives the
consumer the licensee’s credit guide in accordance with subsection (2).
Civil penalty: 2,000 penalty units.
3.38 Subsection 150 (1)
substitute
(1) If an exempt special
purpose funding entity has been assigned any rights or obligations of a lessor
under a consumer lease and a licensee is acting on behalf of the entity, the
entity must take reasonable steps to ensure that the licensee:
(a) gives the
lessee under the lease the licensee’s credit guide in accordance with subsection
(2); and
(b) gives the
credit guide to the lessee as soon as practicable after the entity has been
assigned the rights or obligations.
Civil penalty: 2,000 penalty units.
3.39 Section 151
omit
A
licensee
insert
An exempt special purpose funding entity
3.39A Section 151
omit
the
licensee
insert
the exempt special purpose funding
entity
3.40 Section 152
omit each mention of
licensee
insert
exempt special purpose funding entity
3.41 Section 153
omit
licensee
insert
special purpose funding entity
3.42 Section 154
omit each mention of
licensee
insert
special purpose funding entity
3.43 Section 155
omit each mention of
licensee
insert
special purpose funding entity
3.44 Section 156
omit
licensee
insert
special purpose funding entity
3.45 After section 159
insert
159A Application of this Part
This Part does not apply in relation to a licensee
or registered person who is authorised by a credit provider or lessor to
collect repayments if:
(a) the credit provider or lessor is a special
purpose funding entity; and
(b) the licensee or registered person is party to
a servicing agreement with the special purpose funding entity.
Schedule
4 Modifications — responsible
lending conduct
(regulation 28M)
4.1 Subsection 5 (1), definition of licensee
substitute
licensee means:
(a) a person who holds a licence; or
(b) a person who has applied for a licence before
1 January 2011 in an application on which ASIC has not made a decision.
4.2 After paragraph 114 (1) (e)
insert
(ea) the licensee is not required to give the
consumer a quote in the circumstances prescribed by the regulations; and
4.3 After subsection 114 (2)
insert
(2A) The regulations may prescribe circumstances where a
licensee is not required to give the consumer a quote in accordance with
subsection (2).
4.4 After subsection 114 (4)
insert
No demanding payment if no quote given
(4A) The licensee must not request or demand payment
of an amount for the licensee’s credit assistance if the licensee has not given
the consumer a quote in accordance with subsection (2).
Civil penalty: 2,000
penalty units.
4.5 Paragraph 121 (2) (e)
omit
made.
insert
made;
4.6 After paragraph 121 (2) (e)
insert
(f) any other information prescribed by the
regulations.
4.7 After subsection 121 (3)
insert
(3A) The regulations may prescribe information that need
not be included in the credit proposal disclosure document, despite subsection
(2).
4.8 After paragraph 137 (1) (d)
insert
(da) the licensee is not required to give the
consumer a quote in the circumstances prescribed by the regulations; and
4.9 After subsection 137 (2)
insert
(2A) The regulations may prescribe circumstances in which a
licensee is not required to give the consumer a quote in accordance with
subsection (2).
4.10 After subsection 137 (4)
insert
No demanding payment if no quote given
(4A) The licensee must not request or demand payment of an
amount for the licensee’s credit assistance if the licensee has not given the
consumer a quote in accordance with subsection (2).
Civil penalty: 2,000
penalty units.
4.11 Paragraph 144 (2) (d)
omit
lease.
insert
lease;
4.12 After paragraph 144 (2) (d)
insert
(e) any other information prescribed by the
regulations.
4.13 After subsection 144 (3)
insert
(3A) The regulations may prescribe information that need
not be included in the lease proposal disclosure document, despite subsection
(2).
Schedule
5 Key Facts Sheets
(regulation 28LB)
Part
1 Model of Key Facts Sheets
This
Key Facts Sheet is an Australian Government requirement under the National
Consumer Credit Protection Act 2009
KEY
FACTS ABOUT THIS HOME LOAN
|
Date
produced: [date]
|
[lender logo]
Australian credit licence number: [lender’s ACL number] 1
|
THIS IS NOT AN OFFER OF CREDIT. This Key Facts Sheet
is provided to help you compare this home loan with the home loans of other
lenders.
|
What you have told us
|
|
Loan Amount:
Term of the home loan:
Interest type:
Lender and product name:
|
[loan amount]
[loan term]
[fixed or variable] 2
[lender and product name]
|
HOW DOES THIS HOME LOAN COMPARE?
|
Description of this home loan
|
|
Repayment method
|
Principal and interest 3
|
|
Repayment frequency
|
Monthly (other repayment options
are available) 4
|
|
Interest rate
|
5 [variable interest rate] per annum
[fixed interest rate] per annum
fixed for [number] years, then a variable rate currently [variable interest
rate] per annum
[variable interest rate] per
annum for [number] years, then [discount interest rate] per annum
[introductory interest rate] per
annum for [number] years, then a variable rate currently [variable interest
rate] per annum
|
|
Personalised comparison rate: (interest rate including
fees)
|
[Personalised comparison rate] per annum 6
|
|
Estimated cost of this home
loan
|
|
Total amount to be paid back (including the loan amount
and fees)
|
[repaid
amount] 7
|
|
This means you will pay back
|
[amount] for
every $1 borrowed 8
|
|
Establishment fees
|
[establishment fees] 9
|
|
Ongoing fees
|
[monthly fees] 11 per month
[annual fees] 12 per year
|
|
10 Repayment per month (including ongoing fees)
|
[monthly
repayment] 13
|
|
10 Repayment per year (including ongoing fees)
|
[yearly
repayment] 14
|
|
10 Repayment per month for first [number] 15
years (including ongoing fees)
|
[monthly
repayment] 13
|
|
10 Repayment per year for first [number] 15 years
(including ongoing fees)
|
[yearly
repayment] 14
|
|
10 Repayment per month after [number] 15 years
(including ongoing fees)
|
[monthly
repayment] 13
|
|
10 Repayment per year after [number] 15 years
(including ongoing fees)
|
[yearly
repayment] 14
|
|
There may be circumstances in which other
fees are payable. Fees applicable for the loan you apply for will be shown in
the loan contract. You can also obtain a list of fees applicable to this type
of loan from our branches 16 or through our website at [lender’s
website].
Other loan set-up fees, such as valuation
fees and lender’s mortgage insurance, and Government charges, such as
registration fees and stamp duty on property transfer, have not been
included. These will be determined after application.
Additional fees may be payable if you
choose to repay your fixed rate home loan early. 17
|
|
18 What happens at the end of the fixed rate period?
|
|
At the end of the fixed rate period you
may be able to fix the rate at a new fixed interest rate for a further
period. If a further fixed rate is not entered into, the rate will convert to
the applicable variable interest rate. Under the current variable interest
rate, if interest rates do not change, your monthly repayment would
[increase/decrease] by around [change in repayment]
|
|
18 What happens if
interest rates increase?
|
|
This is a variable rate loan. If your interest rate was to increase by 1%
per annum, your monthly repayment would increase by around [change in
repayment 2]. 19
This is a fixed rate loan. Your repayments will not
change during the fixed rate period. After the fixed rate period, if the
variable interest rate was to increase by 1% per annum, from the current
variable interest rate of [variable interest rate], your monthly repayment
would increase by around [change in repayment]. 18
|
|
How can I repay my loan
faster?
|
|
This loan allows you to make
additional repayments to pay off your home loan faster. If you increased your
monthly repayments by $200 a month to [monthly repayment + $200] you
would repay the loan in [new loan term], instead of [loan term], based on the
current variable interest rate stated in this Key Facts Sheet. 19
This loan allows you to make
additional repayments to pay off your loan faster but such repayments may
attract a fee. You should ask your lender about the fee before making
additional repayments. 19
This loan does not allow you to
make additional repayments to pay off your home loan faster. 19
Altering the frequency of
repayments may also help repay the loan faster.
|
|
How to find the best deal for
you
|
|
To obtain the best deal for you, it is important to shop
around and compare interest rates, fees and features before you apply for a
home loan. Choosing the best home loan for you may save you money. For more
information about how to get the best deal on your home loan visit the ASIC
consumer website at www.moneysmart.gov.au.
|
FURTHER
INFORMATION ABOUT THIS KEY FACTS SHEET
Which
home loan is right for you?
When choosing a
home loan, it’s important to work out what you want from your loan and how much
it will cost you. Given the wide range of loans on offer – with different
interest rates, product features and fees – it pays to shop around to find the
loan that fits your needs and circumstances. Some loans offer features that may
be appropriate for your situation and result in savings over the life of the
loan.
Some features
you may wish to consider include:
• ability
to split your loan between fixed and variable interest rates;
• ability
to make extra repayments;
• an
offset account;
• a
redraw facility; and
• linked
credit card and savings accounts.
But compare the
costs and benefits of these features before you agree to them.
For more
information on choosing the right home loan for you, you may also wish to visit
the ASIC consumer website at www.moneysmart.gov.au.
Where
can I find out more about this loan?
If you want more
information on the terms used in this document or about this home loan, please
contact us [lender’s contact details], or visit our website at [lender’s
contact website].
This
Key Facts Sheet is an Australian Government requirement.
The Australian
Government requires all lenders selling standard home loans to give you a Key
Facts Sheet like this one when you ask for one and provide the necessary
information.
Key Facts Sheets
contain information presented in the same way to help you compare and select
the most appropriate home loan for you. You should request Key Facts Sheets when
shopping around for a home loan to help you find the home loan that is right
for you.
This Key Facts
Sheet is not an offer of credit. The lender is not obliged to provide you with
the home loan described in this Key Facts Sheet. You will need to apply for the
loan and meet our lending criteria before we can determine whether you are
eligible for this loan.
You should also
be aware:
• the
interest rates and fees and charges are those that apply as at the date of
production of this Key Facts Sheet.
• the
amount required to be paid does not include fees which are dependent on events
that may not occur (for example, late payment fees if you do not make
repayments on time).
• the
amount of the repayments shown in this Key Facts Sheet will change if interest
rates, fees and charges change and if a different loan type, loan term or loan
amount is used.
What
is the personalised comparison rate?
The personalised
comparison rate helps you understand what the total cost of your home loan
might be, taking into account known fees and charges that will apply (other
than government fees, charges or duties) by building those costs into the
interest rate. It also helps you understand the impact of fixed or introductory
rates of interest on the total amount of interest you could pay over the life
of the loan.
Part 2 Information
about preparing a Key Facts Sheet
Notes in model of Key Facts Sheet
2.1 A lender that prepares a Key Facts Sheet for a
particular consumer must include the following information at the numbers
marked in the model in Part 1:
1 If the lender is an ACL holder – this is the
lender’s ACL number. If the lender is not an ACL holder, no ACL number is
required. However, the lender must disclose that the credit provider’s ACL will
be provided in the credit contract. The lender is exempted from the requirement
to set out its ACN or ABN in subsection 153(2) of the Corporations Act 2001
on the Key Facts Sheet.
2 This must be an interest type in the table in
regulation 28LA. If a fixed loan is specified, the term of the fixed rate
period must also be indicated.
3 Under regulation 28LA, the repayments under
the home loan must repay principal and interest for the full term of the loan.
4 The repayment frequency must be based on
monthly repayments.
5 This is the current interest rate applicable
to the loan on the date on which the Key Facts Sheet is produced. If discounts
to this interest rate apply, the discount and the period in which it will apply
must also be disclosed here. Only one of the 4 paragraphs in this box is
required. Omit the paragraphs that do not apply to the loan this Key Facts
Sheet relates to.
6 This rate must be calculated in accordance
with the formula in subregulation 100 (3) but using the designated amounts
provided by the consumer under sections 133AC and 133AD of the Act. This rate
includes each fee or charge (if any) payable by the debtor at the time each
repayment is made, being a credit fee or charge (other than a government fee,
charge or duty) that is ascertainable when the comparison rate is disclosed
(whether or not the credit fee or charge is payable if the credit is not
provided). The tolerances in subregulations 100 (4), (5) and (6) also
apply to this rate.
7 This is the sum of the principal and all
interest and fees certain to be payable over the life of the home loan. The fees
include each fee or charge (if any) payable by the debtor at the time each
repayment is made, being a credit fee or charge (other than a government fee,
charge or duty) that is ascertainable when the comparison rate is disclosed
(whether or not the credit fee or charge is payable if the credit is not
provided).
8 This is the total amount to be paid back,
divided by the loan amount, expressed as a dollar amount for every dollar
borrowed.
9 These are the fees and charges, paid to the
lender on the commencement of the loan, used for the purpose of calculating the
Personalised Comparison Rate.
10 If the home loan is a variable rate loan or a
fixed rate loan with a term that expires at the end of the fixed rate period,
only the first 2 sections (‘Repayment per month (including ongoing fees)’ and
‘Repayment per year (including ongoing fees)’) are required. If the home loan
is any other type of standard home loan, the remaining sections are required.
11 This is any fee paid each month to the lender
on a regular and ongoing basis.
12 This is any fee paid each year to the lender
on a regular and ongoing basis. It does not include the monthly ongoing fee in
note 11.
13 This is the sum of amounts payable per month
on the home loan and any fees that are charged in that month.
14 This is the sum of the amounts payable per
year on the home loan and any fees that are charged during the year.
15 This is the length of the fixed rate period
for fixed loans, the length of the discount rate period for introductory rate loans,
and the length of the period before the discounted rate applies for discounting
rate loans.
16 The reference to the lender’s branches in
this sentence may be removed if not applicable.
17 Only include if break fees are payable on the
loan.
18 Omit this section if the interest rate will
be fixed for the entire term of the loan.
19 Only one of these paragraphs is required.
Omit the paragraph that does not apply to the loan this Key Facts Sheet relates
to.
Assumptions
2.2 The tolerances and assumptions under section 180 of
the Code apply to the calculation of any amounts in this Key Facts Sheet.
Publication online
2.3 If a Key Facts Sheet is published online, links must
be provided to the websites mentioned in the Key Facts Sheet.
Adopting the Key Facts Sheet for non-prescribed purposes
2.4 A lender may produce a Key Facts Sheet for home loans
if Part 3-2A of the Credit Act does not require the lender to provide a
Key Facts Sheet. A lender that provides such a Key Facts Sheet must, to a
reasonable extent, comply with the requirements for producing the Key Facts
Sheet, but must omit any reference to the production of the Key Facts Sheet
being an Australian Government requirement.