(a) an offence against Crimes Act 1914; orsection 6 of the

(b) an ancillary offence within the meaning of the Criminal Code;

that relates to the other offence.

annual percentage rate has the same meaning as in section 27 of the National Credit Code.

annual turnover, of a body corporate during a 12-month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12-month period, other than:

supplies made from any of those bodies corporate to any other of those bodies corporate; or

supplies that are input taxed; or

(c) supplies that are not for consideration (and are not taxable supplies under A New Tax System (Goods and Services Tax) Act 1999); orsection 72-5 of the

supplies that are not made in connection with an enterprise that the body corporate carries on; or

supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.

appeal includes:

an application for a new trial; and

proceedings to review or call in question the proceedings, decision or jurisdiction of a court or judge.

approved code of conduct means a code of conduct approved by ASIC by legislative instrument under section 238A, and includes a replacement code of conduct approved under that section.

APRA means the Australian Prudential Regulation Authority.

ASIC means the Australian Securities and Investments Commission.

ASIC Act means the Australian Securities and Investments Commission Act 2001, and includes instruments made under that Act.

ASIC member means a member of ASIC within the meaning of the ASIC Act.

ASIC staff member means a staff member within the meaning of subsection 5(1) of the ASIC Act.

associate: see section 15A.

Australian business law means a law of the Commonwealth, or of a State or Territory, that is a law that regulates, or relates to the regulation of, business or persons engaged in business.

Australian credit licence: see subsection 35(1).

Australian credit licence number means the number given to a licence under section 43.

Australian financial services licence has the same meaning as in the Corporations Act 2001.

authorised, in relation to a credit activity: see subsection 35(2).

avoidance purpose: see subsection 323A(2).

banker has the same meaning as in section 9 of the Corporations Act 2001.

banking group means a relevant group of bodies corporate (within the meaning of the Banking Act 1959) that includes a body corporate covered by paragraph 133CN(1)(a) (about large ADIs).

banned from engaging in a credit activity under a law of a State or Territory: a person is banned from engaging in a credit activity under a law of a State or Territory if:

the person holds a State or Territory credit licence that is suspended (otherwise than by request of the person); or

the person has held a State or Territory credit licence that has been cancelled within the last 7 years (otherwise than by the person’s request); or

an order of a court made under a law of a State or Territory prohibits the person from engaging in a credit activity; or

the person is otherwise prohibited under a law of a State or Territory from engaging in a credit activity.

banning order means an order made under subsection 80(1).

beneficiary of a guarantee means a person who is a party to a guarantee and who has the benefit of the guarantee, and includes a person who is a beneficiary of a guarantee because of section 10.

benefit derived and detriment avoided:

because of an offence—has the meaning given by section 288E; and

because of a contravention of a civil penalty provision—has the meaning given by section 167D.

body regulated by APRA has the same meaning as in subsection 3(2) of the Australian Prudential Regulation Authority Act 1998.

book includes:

a register; and

any other record of information; and

financial reports or financial records, however compiled, recorded or stored; and

a document.

business day has the same meaning as in section 204 of the National Credit Code.

buy now pay later arrangement has the same meaning as in section 13D of the National Credit Code.

buy now pay later contract has the same meaning as in section 13D of the National Credit Code.

carried on in this jurisdiction has a meaning affected by section 12.

civil penalty provision: a subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if:

the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section); or

another provision of this Act specifies that the subsection (or section) is a civil penalty provision.

coastal sea:

in relation to Australia—means:

the territorial sea of Australia; and

the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;

and includes the airspace over, and the sea-bed and subsoil beneath, any such sea; and

(b) in relation to a State or Territory—means so much of the coastal sea of Australia as is within the area described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 under the heading that refers to that State or Territory.

code of conduct means a code of conduct that relates to any aspect of the activities of: licensees; or credit representatives; being activities in relation to which ASIC has a regulatory responsibility.

licensees; or

credit representatives;

being activities in relation to which ASIC has a regulatory responsibility.

commission includes any financial or other benefit in the nature of a commission.

Commonwealth body means:

(a) an Agency (within the meaning of the Public Service Act 1999); or

a body, whether incorporated or not, established for a public purpose by or under a law of the Commonwealth; or

a person:

holding or performing the duties of an office established by or under a law of the Commonwealth; or

holding an appointment made under a law of the Commonwealth.

Commonwealth credit legislation means this Act and the Transitional Act.

conflicted remuneration: see sections 158N and 158NA.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade and commerce means trade and commerce: between Australia and places outside Australia; or between the States; or between a State and a Territory; or between 2 Territories; or within a Territory. constrained document: see subsection 160CA(1). constrained information: see subsection 160CA(1).

between Australia and places outside Australia; or

between the States; or

between a State and a Territory; or

between 2 Territories; or

within a Territory.

constrained document: see subsection 160CA(1).

constrained information: see subsection 160CA(1).

consumer means a natural person or a strata corporation.

consumer lease means a consumer lease to which Part 11 of the National Credit Code applies.

consumer lease for household goods has the same meaning as in section 204 of the National Credit Code.

continuing credit contract has the same meaning as in section 204 of the National Credit Code.

contravention:

in relation to an offence against a law—includes an ancillary offence relating to the offence against the law; and

in relation to a civil penalty provision—has a meaning affected by section 169.

control has the meaning given by section 16A.

core obligation has the meaning given by subsection 50A(3).

credit has the same meaning as in subsection 3(1) of the National Credit Code.

credit activity: see section 6.

credit assistance: see section 8.

credit book: see subsection 227(4).

credit card: see subsection 133BA(2).

credit card contract: see subsection 133BA(1).

credit card termination entitlement: see subsection 133BT(3).

credit contract has the same meaning as in section 4 of the National Credit Code.

credit information has the same meaning as in the Privacy Act 1988.

credit legislation means:

this Act; and

the Transitional Act; and

Division 2 of Part 2 of the ASIC Act and regulations made for the purpose of that Division; and

any other Commonwealth, State or Territory legislation that covers conduct relating to credit activities (whether or not it also covers other conduct), but only in so far as it covers conduct relating to credit activities.

credit limit of a credit contract means the maximum amount of credit that may be provided under the contract.

credit limit increase invitation, in relation to a credit card contract: see subsection 133BE(5).

credit limit reduction entitlement: see subsection 133BF(3).

credit provider:

(a) when used in Privacy Act 1988; andPart 3-2CA—has the same meaning as in the

otherwise—has the same meaning as in section 204 of the National Credit Code, and includes a person who is a credit provider because of section 10 of this Act.

credit registers: see section 213.

credit reporting body has the same meaning as in the Privacy Act 1988.

credit representative: see subsections 64(2) and 65(2).

credit representative number means the number given to a credit representative under section 72.

credit service: see section 7.

criminal procedure: see section 205.

data standards means standards made by the Registrar under section 212H.

debtor has the same meaning as in section 204 of the National Credit Code.

declaration of contravention means a declaration made under section 166.

designated secrecy provision has the meaning given by subsection 212N(3).

director has the same meaning as in the Corporations Act 2001.

disclosure framework means the disclosure framework made by the Registrar under section 212L.

disqualification order means an order of the court under section 86.

document registers: see section 219.

electronic communication has the same meaning as in the Electronic Transactions Act 1999.

eligible credit account: see section 133CO.

eligible credit reporting body: see subsection 133CN(2).

eligible licensee: see subsection 133CN(1).

enforceable code provision means a provision of an approved code of conduct identified by ASIC under subsection 238A(2).

engage in conduct means:

do an act; or

omit to perform an act.

evidential burden means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

examination, when used in Chapter 6 (which deals with compliance and enforcement), means an examination of a person pursuant to a requirement made under section 253.

expenses includes costs and expenses incurred by ASIC in relation to proceedings brought under section 275 as a result of the investigation.

Federal Court means the Federal Court of Australia.

financial hardship information has the same meaning as in the Privacy Act 1988.

financial records: see subsection 88(2).

financial services licensee has the same meaning as in the Corporations Act 2001.

financial year: see subsection 100(6).

function includes a duty.

give:

when used in Chapter 6 (which deals with compliance and enforcement) in relation to a document—has a meaning affected by section 314; and

when used in relation to information, includes:

explaining or stating a matter; and

identifying a person, matter or thing; and

disclosing information; and

answering a question.

government entity has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

guarantee means a guarantee to which the National Credit Code applies.

hardship notice has the same meaning as in section 204 of the National Credit Code.

head company, of a banking group, means the member of the group covered by paragraph 133CN(1)(a) (about large ADIs).

hearing, when used in Chapter 6 (which deals with compliance and enforcement), means a hearing before ASIC and, in sections 278, 280, 281 and 282 (which are in that Chapter), includes part of such a hearing.

household goods has the same meaning as in section 204 of the National Credit Code.

indirect remuneration means a commission or conflicted remuneration.

individual fine formula means the formula set out in subsection 288C(3).

information system has the same meaning as in the Electronic Transactions Act 1999.

infringement notice means a notice given under section 288J.

initial National Credit Code: see subsection 20(2).

insolvent means:

in the case of a natural person—a person who is an insolvent under administration; or

(b) in the case of a body corporate—a body corporate that is a Chapter 5 body corporate (within the meaning of the Corporations Act 2001); or

(c) in the case of a partnership—a partnership against which a creditor’s petition or a debtor’s petition is presented under Bankruptcy Act 1966.Division 2 or 3 of Part IV of the

investigate means investigate in the course of performing any of ASIC’s functions or exercising any of ASIC’s powers.

involved in: a person is involved in a contravention of a provision of legislation if, and only if, the person:

has aided, abetted, counselled or procured the contravention; or

has induced the contravention, whether by threats or promises or otherwise; or

has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

has conspired with others to effect the contravention.

judgment means a judgment, decree or order, whether final or interlocutory.

Key Facts Sheet:

for a credit card contract—see section 133BB; and

for a standard home loan—see section 133AB.

knowledge, in Division 5 of Part 2-2: see section 53C.

large ADI means an ADI of a kind determined under subsection (1A).

law of a referring State or a Territory means a law of, or in force in, a referring State or a Territory but does not include a law of the Commonwealth in force in the referring State or the Territory.

law of a State or Territory means a law of, or in force in, a State or Territory but does not include a law of the Commonwealth in force in the State or Territory.

lawyer means a person who is admitted to the legal profession by a federal court or a Supreme Court of a State or Territory.

lessee means the lessee under a consumer lease.

lessor has the same meaning as in section 204 of the National Credit Code, and includes a person who is a lessor because of section 10.

licence means an Australian credit licence.

licensee means a person who holds a licence.

licensing anniversary: see subsection 53(7).

linked: for when a credit card is linked to a credit card contract, see subsection 133BA(3).

lodge with ASIC: see section 216.

low cost credit contract has the same meaning as in section 13E of the National Credit Code.

lower court means:

the Federal Circuit and Family Court of Australia (Division 2); or

a court of a State or Territory that is not a superior court.

malice: see subsection 16(2).

mandatory code of conduct means a code of conduct that is declared by regulations under section 238F to be mandatory.

mandatory credit information: see section 133CP.

matter includes an act, an omission, a body, a person or a thing.

misleading: see section 13.

mortgage means a mortgage to which the National Credit Code applies.

mortgage broker: see section 15B.

mortgagee means the mortgagee under a mortgage, and includes a person who is a mortgagee because of section 10.

mortgage intermediary: see section 15C.

mortgagor means the mortgagor under a mortgage.

National Credit Code means Schedule 1 to this Act, and includes: regulations made under section 329 for the purposes of that Schedule; and instruments made under that Schedule.

regulations made under section 329 for the purposes of that Schedule; and

instruments made under that Schedule.

officer of the Commonwealth has the same meaning as in paragraph 75(v) of the Constitution.

official employment means:

appointment or employment by the Commonwealth, or the performance of services for the Commonwealth; or

the exercise of powers or performance of functions under a delegation by the Registrar.

Part 3-2CA body: see section 133CZF.

payment period, in relation to an infringement notice, has the meaning given by section 288M.

pecuniary penalty order means an order made under section 167.

person has a meaning affected by section 14 (which deals with partnerships) and section 15 (which deals with multiple trustees).

personal information has the same meaning as in the Privacy Act 1988.

power includes an authority.

premises includes:

a structure, building, aircraft, vehicle or vessel; and

any land or place (whether enclosed or built in or not); and

a part of a structure, building, aircraft, vehicle, vessel or of such a place.

prescribed State or Territory order means an order under a law of a State or Territory, being an order of a kind prescribed by the regulations.

proceedings:

(a) when used in Chapter 6 (which deals with compliance and enforcement)—has the same meaning as the definition of proceeding in subsection 5(1) of the ASIC Act; and

otherwise—means proceedings, whether criminal or civil, before a court.

proscribed referral: see subsection 160G(2).

protected information means information: obtained by a person in the course of the person’s official employment; and disclosed to the person or another person, or obtained by the person or another person: under, or in relation to, this Act; or under another law of the Commonwealth; in connection with particular functions or powers of the Registrar. qualified privilege has a meaning affected by section 16. receiving court: see section 191. recklessness, in Division 5 of Part 2-2: see section 53C. record, when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, means the whole or part of a record made under section 258 of statements made at the examination.

obtained by a person in the course of the person’s official employment; and

disclosed to the person or another person, or obtained by the person or another person:

under, or in relation to, this Act; or

under another law of the Commonwealth;

in connection with particular functions or powers of the Registrar.

qualified privilege has a meaning affected by section 16.

receiving court: see section 191.

recklessness, in Division 5 of Part 2-2: see section 53C.

record, when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, means the whole or part of a record made under section 258 of statements made at the examination.

Reference Checking and Information Sharing Protocol means the protocol determined by ASIC under subsection 47(3A).

referred credit matter: see subsection 20(1).

referring State: see section 19.

registered company auditor has the same meaning as in section 9 of the Corporations Act 2001.

Registrar has the meaning given by section 16B.

related body corporate has the same meaning as in section 9 of the Corporations Act 2001.

related criminal justice process decision: see section 188.

relevant criminal law: see subsection 204(5).

relevant superior court, in relation to a lower court, means:

if the lower court is the Federal Circuit and Family Court of Australia (Division 2)—the Federal Court; or

if the lower court is a court of a State or Territory—the Supreme Court of the State or Territory.

relinquishment order means an order made under subsection 167C(1).

repayment date: see subsection 133CD(3).

reportable situation has the meaning given by section 50A.

representative of a person means:

if the person is a licensee:

an employee or director of the licensee; or

an employee or director of a related body corporate of the licensee; or

a credit representative of the licensee; or

any other person acting on behalf of the licensee; or

otherwise:

an employee or director of the person; or

an employee or director of a related body corporate of the person; or

any other person acting on behalf of the person.

residential property has the same meaning as in section 204 of the National Credit Code.

reverse mortgage has the same meaning as in section 13A of the National Credit Code.

reverse mortgage information statement means a document relating to reverse mortgages that complies with the regulations.

scheme means:

any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or

any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise; or

any combination of 2 or more things that are schemes because of paragraph (a) or (b).

secrecy provision has the meaning given by subsection 212N(2).

senior manager has the same meaning as in section 9 of the Corporations Act 2001.

sensitive information has the same meaning as in the Privacy Act 1988.

serious fraud means an offence involving fraud or dishonesty, being an offence: against a law of the Commonwealth, or of a State or Territory, or any other law; and punishable by imprisonment for life or for a period, or maximum period, of at least 3 months. short-term credit contract: a credit contract is a short-term credit contract if: the contract is not a continuing credit contract or a low cost credit contract; and the credit provider under the contract is not an ADI; and the credit limit of the contract is $2,000 (or such other amount as is prescribed by the regulations) or less; and the term of the contract is 15 days or less; and the contract meets any other requirements prescribed by the regulations. small amount credit contract: a credit contract is a small amount credit contract if: the contract is not a continuing credit contract or a low cost credit contract; and the credit provider under the contract is not an ADI; and the credit limit of the contract is $2,000 (or such other amount as is prescribed by the regulations) or less; and the term of the contract is at least 16 days but not longer than 1 year (or such other number of years as is prescribed by the regulations); and the debtor’s obligations under the contract are not, and will not be, secured; and the contract meets any other requirements prescribed by the regulations. standard home loan: see subsection 133AA(1). State, when used in a geographical sense, includes the coastal sea of the State. statement, when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination. state of mind: the state of mind of a person includes: the knowledge, intention, opinion, belief or purpose of the person; and the person’s reasons for the intention, opinion, belief or purpose.

against a law of the Commonwealth, or of a State or Territory, or any other law; and

punishable by imprisonment for life or for a period, or maximum period, of at least 3 months.

short-term credit contract: a credit contract is a short-term credit contract if:

the contract is not a continuing credit contract or a low cost credit contract; and

the credit provider under the contract is not an ADI; and

the credit limit of the contract is $2,000 (or such other amount as is prescribed by the regulations) or less; and

the term of the contract is 15 days or less; and

the contract meets any other requirements prescribed by the regulations.

small amount credit contract: a credit contract is a small amount credit contract if:

the contract is not a continuing credit contract or a low cost credit contract; and

the credit provider under the contract is not an ADI; and

the credit limit of the contract is $2,000 (or such other amount as is prescribed by the regulations) or less; and

the term of the contract is at least 16 days but not longer than 1 year (or such other number of years as is prescribed by the regulations); and

the debtor’s obligations under the contract are not, and will not be, secured; and

the contract meets any other requirements prescribed by the regulations.

standard home loan: see subsection 133AA(1).

State, when used in a geographical sense, includes the coastal sea of the State.

statement, when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination.

state of mind: the state of mind of a person includes:

the knowledge, intention, opinion, belief or purpose of the person; and

the person’s reasons for the intention, opinion, belief or purpose.

State or Territory credit licence means a licence or registration that: is granted under a law of a State or Territory; and authorises the licensee or registered person to engage in a credit activity.

is granted under a law of a State or Territory; and

authorises the licensee or registered person to engage in a credit activity.

strata corporation has the same meaning as in section 204 of the National Credit Code.

subject to an infringement notice, in relation to an offence provision or civil penalty provision, has the meaning given by section 288K.

subscriber, in relation to an approved code of conduct:

means a person or entity that agrees, in a way required by the applicant for the code’s approval, to be bound by the code; and

if a person or entity no longer agrees to be bound by the code—includes the person or entity during the period that the person or entity did agree to be so bound.

superior court means any of the following courts: the Federal Court; the Supreme Court of a State or Territory. supply requirements: see section 133CQ.

the Federal Court;

the Supreme Court of a State or Territory.

supply requirements: see section 133CQ.

taxation law has the same meaning as in the Income Tax Assessment Act 1997.

Territory:

means the following:

the Australian Capital Territory;

the Jervis Bay Territory;

the Northern Territory;

Norfolk Island;

the Territory of Christmas Island;

the Territory of Cocos (Keeling) Islands; and

when used in a geographical sense—includes the Territory’s coastal sea (if any).

this Act includes instruments made under this Act.

this jurisdiction: see subsections 21(2) and (3).

transfer matter: see section 191.

transferring court: see section 191.

Transitional Act means the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009, and includes instruments made under that Act.

tribunal means:

a tribunal in Australia; or

any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence.

unsolicited communication to a consumer: see subsection 133CF(2).

unsuitability assessment policy has the meaning given by subsection 133BXG(1).

use of a credit card: see subsection 133BA(4).

value of a credit contract, mortgage, guarantee or consumer lease: see section 199.

virtual enquiry technology means any technology that allows a person to appear at all or part of a hearing, examination or other enquiry without being physically present at the hearing, examination or other enquiry.

within the authority: a representative’s conduct is within the authority of a person if:

for a representative who is an employee of the person or of a related body corporate of the person—the conduct is within the scope of the employee’s employment; or

for a representative who is a director of the person or of a related body corporate of the person—the conduct is within the scope of the director’s duties as director; or

for a representative who is a credit representative of the person—the conduct is within the scope of the authorisation of the credit representative under subsection 64(1) or 65(1); or

otherwise—the conduct is within the scope of the authority given by the person.

witness means a person appearing at the hearing to give evidence.

written record, when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, means:

a record of the examination:

that is made in writing; or

as reduced to writing; or

a part of such a record.

the original credit provider, lessor, mortgagee or beneficiary of a guarantee under a credit contract, consumer lease, mortgage or guarantee; or

a person to whom the rights of a credit provider, lessor, mortgagee or beneficiary of a guarantee under a credit contract, consumer lease, mortgage or guarantee have been assigned or passed by law.

intended to induce people in this jurisdiction to use the goods or services the person provides; or

is likely to have that effect;

whether or not the conduct is intended, or likely, to have that effect in other places as well.

the representation relates to a future matter (including the doing of, or refusing to do, any act); and

the person does not have reasonable grounds for making the representation.

obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;

any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the partnership is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each partner who:

aided, abetted, counselled or procured the relevant act or omission; or

was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

an express or implied contrary intention in a provision of this Act (other than the National Credit Code); and

the regulations, which may exclude or modify the effect of those subsections in relation to specified provisions.

2 or more trustees; or

a single trustee who was a trustee of the trust at a time when it had 2 or more trustees.

obligations that would be imposed on the notional person are imposed instead on each trustee, but may be discharged by any of the trustees;

any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the notional person is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each trustee who:

aided, abetted, counselled or procured the relevant act or omission; or

was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the trustee).

obligations that would be imposed on the notional person are imposed instead on that single trustee;

any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the notional person is taken (whether for the purposes of criminal or civil liability) to have been a contravention by that single trustee.

an express or implied contrary intention in a provision of this Act (other than the National Credit Code); and

the regulations, which may exclude or modify the effect of those subsections in relation to specified provisions.

(a) the person is an associate of the credit provider; and

(b) the credit provider is an associate of the person.

the licensee carries on a business of providing credit assistance in relation to credit contracts secured by mortgages over residential property; and

the licensee does not perform the obligations, or exercise the rights, of a credit provider in relation to the majority of those credit contracts; and

in carrying on the business, the licensee provides credit assistance in relation to credit contracts offered by more than one credit provider.

the credit representative carries on a business of providing credit assistance in relation to credit contracts secured by mortgages over residential property; and

neither the credit representative nor the licensee performs the obligations, or exercises the rights, of a credit provider in relation to the majority of those credit contracts; and

in carrying on the business, the credit representative provides credit assistance in relation to credit contracts offered by more than one credit provider.

the licensee carries on a business of acting as an intermediary in relation to credit contracts secured by mortgages over residential property; and

the licensee does not perform the obligations, or exercise the rights, of a credit provider in relation to the majority of those credit contracts; and

in carrying on the business, the licensee acts as an intermediary in relation to credit contracts offered by more than one credit provider.

the credit representative carries on a business of acting as an intermediary in relation to credit contracts secured by mortgages over residential property; and

neither the credit representative nor the licensee performs the obligations, or exercises the rights, of a credit provider in relation to the majority of those credit contracts; and

in carrying on the business, the credit representative acts as an intermediary in relation to credit contracts offered by more than one credit provider.

has qualified privilege in proceedings for defamation; or

is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;

in relation to that act, matter or thing.

having 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 body corporate; or

directly or indirectly holding more than one half of the issued share capital of the body corporate (not including any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital, and not including MCIs); or

having the capacity to control the composition of the body corporate’s board or governing body; or

having the capacity to determine the outcome of decisions about the body corporate’s financial and operating policies, taking into account:

the practical influence that can be exerted (rather than the rights that can be enforced); and

any practice or pattern of behaviour affecting the body corporate’s financial or operating policies (whether or not it involves a breach of an agreement or a breach of trust).

having the capacity to control the composition of the person’s board or governing body (if any); or

having the capacity to determine the outcome of decisions about the person’s financial and operating policies, taking into account:

the practical influence that can be exerted (rather than the rights that can be enforced); and

any practice or pattern of behaviour affecting the person’s financial or operating policies (whether or not it involves a breach of an agreement or a breach of trust).

the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.

Application in a Territory

the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution.

Despite Acts Interpretation Act 1901, this Act and the Transitional Act as applying in the Territory are laws of the Commonwealth.section 2H of the

Application outside Australia

the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution; and

the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory.

Application in a non-referring State

the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and

the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.

has referred the matters covered by subsections (3) and (4) to the Commonwealth Parliament; or

has:

adopted the relevant version of this Act and the relevant version of the Transitional Act; and

referred the matter covered by subsection (4) to the Commonwealth Parliament.

the reference to the Commonwealth Parliament of a matter covered by subsection (3) or (4) is to terminate in particular circumstances; or

the adoption of the relevant version of this Act or the relevant version of the Transitional Act is to terminate in particular circumstances; or

the reference to the Commonwealth Parliament of the matter covered by subsection (4) does not include:

the matter of making provision with respect to the imposition or payment of State taxes, duties, charges or other imposts, however described; or

the matter of making provision with respect to the general system for the recording of estates or interests in land and related information; or

the matter of providing for the priority of interests in real property; or

the matter of making a law that excludes or limits the operation of a State law, to the extent that the State law makes provision with respect to the creation, holding, transfer, assignment, disposal or forfeiture of a State statutory right; or

the reference to the Commonwealth Parliament of a matter covered by subsection (3) or (4) has effect only:

if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference under section 51(xxxvii) of the Constitution); or

if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

Reference covering the relevant versions of this Act and the Transitional Act

in the case where the Parliament of the State has referred to the Commonwealth Parliament the matters covered by subsection (3)—that reference terminates; or

in the case where the Parliament of the State has adopted the relevant version of this Act and the relevant version of the Transitional Act—the adoption of the relevant version of this Act or the relevant version of the Transitional Act terminates.

Effect of terminating amendment reference

the State’s amendment reference terminates; and

subsection (7) does not apply to the termination.

the termination is effected by the Governor of that State fixing a day by Proclamation as the day on which the reference terminates; and

the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the Proclamation is published; and

that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.

Definitions

the relevant version of this Act; and

the relevant version of the Transitional Act;

to the extent to which they deal with matters that are included in the legislative powers of the Parliaments of the States.

relevant version of the Transitional Act means the Transitional Act as originally enacted.

relevant version of this Act means:

if, at the time the State’s referral law was enacted, this Act had not been enacted—this Act as originally enacted; or

(b) otherwise—this Act as originally enacted, and as later amended by the National Consumer Credit Protection Amendment Act 2010.

State law means:

any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time; or

the general law, being the principles and rules of common law and equity to the extent that they have effect in the State from time to time.

State statutory right means a right, entitlement or authority that is granted by or under any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time, other than a right, entitlement or authority that relates to: (a) credit covered by paragraph (a) of the definition of referred credit matter; or a consumer lease covered by paragraph (b) of that definition.

(a) credit covered by paragraph (a) of the definition of referred credit matter; or

a consumer lease covered by paragraph (b) of that definition.

credit, being credit the provision of which would be covered by the expression “provision of credit to which this Code applies” in the initial National Credit Code;

consumer leases, being consumer leases each of which would be covered by the expression “consumer lease to which Part 11 applies” in the initial National Credit Code.

each referring State (including its coastal sea); and

each Territory (including its coastal sea).

if all of the States are referring States—the whole of Australia; or

if one or more States are not referring States—Australia (other than any State that is not a referring State).

Application outside this jurisdiction

natural persons whether:

resident in this jurisdiction or not; and

resident in Australia or not; and

Australian citizens or not; and

all bodies corporate and unincorporated bodies whether:

formed or carrying on a business in this jurisdiction or not; and

formed or carrying on a business in Australia or not.

the Crown in right of the Commonwealth;

the Crown in all of its other capacities.

an act or omission of a person is both an offence against the Commonwealth credit legislation and an offence against the law of a State or Territory; and

the person is convicted of either of those offences;

the person is not liable to be convicted of the other of those offences.

the whole of the Commonwealth credit legislation; or

a specified provision of the Commonwealth credit legislation; or

the Commonwealth credit legislation other than a specified provision; or

the Commonwealth credit legislation otherwise than to a specified extent.

none of the provisions of the Commonwealth credit legislation (other than this section) applies in or in relation to the State or Territory with respect to the matter if the declaration is one to which paragraph (1)(a) applies; and

the specified provision of the Commonwealth credit legislation does not apply in or in relation to the State or Territory with respect to the matter if the declaration is one to which paragraph (1)(b) applies; and

the provisions of the Commonwealth credit legislation (other than this section and the specified provisions) do not apply in or in relation to the State or Territory with respect to the matter if the declaration is one to which paragraph (1)(c) applies; and

the provisions of the Commonwealth credit legislation (other than this section and otherwise than to the specified extent) do not apply in or in relation to the State or Territory with respect to the matter if the declaration is one to which paragraph (1)(d) applies.

prohibit the doing of an act; or

impose a liability (whether civil or criminal) for doing an act;

if the displacement provision specifically permits, authorises or requires the doing of that act.

the Commonwealth provision; and

the displacement provision to the extent to which the displacement provision would, apart from this subsection, be inconsistent with the Commonwealth provision.

provisions of the Commonwealth credit legislation do not apply to a matter that is dealt with by a law of a referring State or a Territory specified in the regulations; or

no inconsistency arises between the operation of a provision of the Commonwealth credit legislation and the operation of a provision of a law of a referring State or a Territory specified in the regulations.

does not apply to:

a person specified in the regulations; or

a body specified in the regulations; or

circumstances specified in the regulations; or

a person or body specified in the regulations in the circumstances specified in the regulations; or

does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with a law of a referring State or a Territory; or

does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with a law of a referring State or a Territory; or

does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with a law of a referring State or a Territory; or

does not impose an obligation on a person to the extent to which complying with that obligation would require the person not to comply with an obligation imposed on the person under a law of a referring State or a Territory; or

authorises a person to do something for the purposes of the Commonwealth credit legislation that the person:

is authorised to do under a law of a referring State or a Territory; and

would not otherwise be authorised to do under the Commonwealth credit legislation; or

will be taken to be satisfied if a law of a referring State or a Territory is satisfied.

the person is subject to a requirement under subsection (1); and

the person engages in conduct; and

the conduct contravenes the requirement.

Defences

(a) the person engages in the credit activity on behalf of another person (the principal); and

the person is:

an employee or director of the principal or of a related body corporate of the principal; or

a credit representative of the principal; and

the person’s conduct in engaging in the credit activity is within the authority of the principal; and

the principal holds a licence authorising the principal to engage in the credit activity.

(a) the person engages in the credit activity on behalf of another person (the principal); and

the person is a representative of the principal; and

the person’s conduct in engaging in the credit activity is within the authority of the principal; and

the principal is exempted from subsections (1) and (2) under paragraph 109(1)(a), 109(3)(a) or 110(1)(a).

that the person holds a licence; or

that the person holds a licence authorising the person to engage in a particular credit activity; or

that a credit activity engaged in by the person or by someone else is exempt from a requirement to hold a licence; or

that, in engaging in a credit activity, the person acts on behalf of another person; or

that conduct, or proposed conduct, of the person is within the authority of a licensee;

if that is not the case.

the person is subject to a requirement under subsection (1) or (2); and

the person engages in conduct; and

the conduct contravenes the requirement.

engage in a credit activity; and

in the course of engaging in that credit activity, conduct business with another person who is engaging in a credit activity;

if, by engaging in the credit activity, the other person contravenes section 29 (which deals with the requirement to be licensed).

Offence

the person is subject to a requirement under subsection (1); and

the person engages in conduct; and

the conduct contravenes the requirement.

the person is subject to a requirement under subsection (1); and

the person engages in conduct; and

the conduct contravenes the requirement.

the person has applied for the licence in accordance with section 36; and

ASIC has no reason to believe that the person is likely to contravene the obligations that will apply under section 47 if the licence is granted; and

the requirement in section 37A (fit and proper person test) is satisfied in relation to the applicant and the licence applied for; and

the person meets any other requirements prescribed by the regulations.

False, misleading or incomplete information

the application for the licence, or any information, audit report or statement lodged with ASIC in accordance with subsection (4), was false in a material particular or materially misleading; or

there was an omission of a material matter from the application or the information, audit report or statement.

ASIC may request information etc. from applicant

information specified in the notice in relation to any matters that ASIC may have regard to in deciding whether to grant the licence;

an audit report, prepared by a suitably qualified person specified in the notice, in relation to matters that ASIC may have regard to in deciding whether to grant the licence;

if ASIC proposes to grant the applicant a licence—a statement that either:

informs ASIC of any material changes in any information provided to ASIC in, or in connection with, the application; or

confirms that there have been no such changes.

a notice under subsection (4), and the information, audit report or statement requested in the notice, may relate to any person mentioned in section 37A in relation to the applicant and the licence applied for; and

subsection (7) applies in relation to such a request even if the applicant is unable to comply with the request.

withdraw a request under subsection (4); or

extend the time specified in the notice.

that the first person is not a fit and proper person to engage in the credit activities authorised by the licence;

(b) if the first person is a body corporate—that an officer (within the meaning of the Corporations Act 2001) of the first person is not a fit and proper person to perform one or more functions as an officer of a person that engages in the credit activities authorised by the licence;

if the first person is a partnership or the multiple trustees of a trust:

that any of the partners or trustees are not fit and proper persons to engage in the credit activities authorised by the licence; or

(ii) that any of the senior managers of the partnership or the trust are not fit and proper persons to perform one or more functions as an officer (within the meaning of the Corporations Act 2001) of a person that engages in the credit activities authorised by the licence;

that any person who controls the first person is not a fit and proper person to control a person that engages in the credit activities authorised by the licence;

(e) if a controller mentioned in paragraph (d) is a body corporate—that an officer (within the meaning of the Corporations Act 2001) of the controller is not a fit and proper person to perform one or more functions as an officer of an entity (as defined by section 64A of that Act) that controls a person that engages in the credit activities authorised by the licence;

if a controller mentioned in paragraph (d) is a partnership or the multiple trustees of a trust:

that any of the partners or trustees are not fit and proper persons to control a person that engages in the credit activities authorised by the licence; or

(ii) that any of the senior managers of the partnership or the trust are not fit and proper persons to perform one or more functions as an officer (within the meaning of the Corporations Act 2001) of an entity (as defined by section 64A of that Act) that controls a person that engages in the credit activities authorised by the licence.

a paragraph of subsection 37A(1);

paragraph 80(1)(f).

whether any of the following of the person has ever been suspended or cancelled:

a licence, or a registration under the Transitional Act;

an Australian financial services licence;

whether any of the following has ever been made against the person:

a banning order, or a disqualification order under Part 2-4;

(ii) a banning order, or a disqualification order, under Corporations Act 2001;Division 8 of Part 7.6 of the

(c) if the person is an individual—whether the person has ever been disqualified under the Corporations Act 2001, or any other law of the Commonwealth or of a State or Territory, from managing corporations;

whether the person has ever been banned from engaging in a credit activity under a law of a State or Territory;

(e) whether the person has ever been linked to a refusal or failure to give effect to a determination made by AFCA (within the meaning of the Corporations Act 2001);

if the person is not the multiple trustees of a trust—whether the person has ever been insolvent;

if the person is the multiple trustees of a trust—whether a trustee of the trust has ever been insolvent;

whether, in the last 10 years, the person has been convicted of an offence;

any relevant information given to ASIC by a State or Territory, or an authority of a State or Territory, in relation to the person;

any other matter prescribed by the regulations;

any other matter ASIC considers relevant.

the person is a natural person against whom a prescribed State or Territory order is in force; or

the person is a body corporate, and a prescribed State or Territory order is in force against a director, secretary or senior manager of the body corporate who would perform duties in relation to the credit activities to be authorised by the licence; or

the person is a partnership or the trustees of a trust, and a prescribed State or Territory order is in force against a partner or trustee who would perform duties in relation to the credit activities to be authorised by the licence.

ASIC’s decision on the application; and

if the decision is to grant the applicant a licence—the day on which the licence takes effect; and

if the decision is not to grant the applicant a licence—the reasons for the decision.

a person is granted a licence; and

the person holds an Australian financial services licence;

then the Australian credit licence number that ASIC gives to the licence held by that person must be the same number as the person’s Australian financial services licence number.

impose conditions, or additional conditions, on a licence; and

vary or revoke conditions imposed on a licence.

on its own initiative; or

if the licensee lodges an application with ASIC for the imposition, variation or revocation.

to appear, or be represented, at a hearing before ASIC that takes place in private; and

to make submissions to ASIC in relation to the conditions.

This subsection does not apply to ASIC imposing conditions when the licence is granted, or imposing or varying conditions in accordance with an application under paragraph (2)(b).

Condition in relation to credit activities authorised

ASIC cannot:

impose, vary or revoke a condition on the licence that, in ASIC’s opinion, has or would have the result of preventing the APRA body from being able to carry on all or any of its usual activities (being activities in relation to which APRA has regulatory or supervisory responsibilities); or

vary a condition so that it would, in ASIC’s opinion, become a condition that would have a result as described in subparagraph (i);

unless ASIC has first consulted APRA about the proposed action;

if ASIC imposes, varies or revokes a condition on the licence and paragraph (a) does not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

Special procedures for ADIs

subject to paragraphs (b) and (c), the powers that ASIC would otherwise have under section 45:

(i) to impose, vary or revoke a condition on the licence that, in ASIC’s opinion, has or would have the result of preventing the ADI from being able to carry on all or any of its banking business (within the meaning of the Banking Act 1959); or

to vary a condition so that it would, in ASIC’s opinion, become a condition that would have a result as described in subparagraph (i);

are instead powers of the Minister;

the following provisions apply in relation to a power to which paragraph (a) applies:

the procedures for the exercise of the power are the same as would apply if ASIC could exercise the power, except that the Minister must not exercise the power unless he or she has first considered advice from ASIC on the proposed action, being advice given after ASIC has consulted APRA about the proposed action;

ASIC (rather than the Minister) must still conduct any hearing required under paragraph 45(5)(a) and receive any submissions under paragraph 45(5)(b);

if ASIC imposes, varies or revokes a condition on the licence and paragraph (a) does not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

impose conditions, or additional conditions, on the licence; or

vary or revoke conditions imposed on the licence.

However, this section does not apply in relation to a power to which paragraph 46(2)(a) applies.

information specified in the notice in relation to any matters that ASIC must have regard to for the purposes of deciding whether the requirement in section 37A is satisfied as mentioned in subsection (2) of this section;

an audit report, prepared by a suitably qualified person specified in the notice, in relation to matters that ASIC must have regard to for the purposes of deciding whether the requirement in section 37A is satisfied as mentioned in subsection (2) of this section;

if ASIC proposes to grant the application—a statement that either:

informs ASIC of any material changes in any information provided to ASIC in, or in connection with, the application; or

confirms that there have been no such changes.

a notice under subsection (3), and the information, audit report or statement requested in the notice, may relate to any person mentioned in section 37A in relation to the applicant and the licence as proposed to be varied; and

subsection (6) applies in relation to such a request even if the applicant is unable to comply with the request.

withdraw the request; or

extend the time specified in the notice.

to appear, or be represented, at a hearing before ASIC that takes place in private; and

to make submissions to ASIC in relation to the matter.

do all things necessary to ensure that the credit activities authorised by the licence are engaged in efficiently, honestly and fairly; and

have in place adequate arrangements to ensure that clients of the licensee are not disadvantaged by any conflict of interest that may arise wholly or partly in relation to credit activities engaged in by the licensee or its representatives; and

comply with the conditions on the licence; and

comply with the credit legislation; and

take reasonable steps to ensure that its representatives comply with the credit legislation; and

comply with the Reference Checking and Information Sharing Protocol; and

maintain the competence to engage in the credit activities authorised by the licence; and

ensure that its representatives are adequately trained, and are competent, to engage in the credit activities authorised by the licence; and

have an internal dispute resolution procedure that:

complies with standards and requirements made or approved by ASIC in accordance with the regulations; and

covers disputes in relation to the credit activities engaged in by the licensee or its representatives; and

(ha) give to ASIC the same information it would be required to give under subparagraph 912A(1)(g)(ii) of the Corporations Act 2001 if it were a financial services licensee; and

be a member of the AFCA scheme; and

have compensation arrangements in accordance with section 48; and

have adequate arrangements and systems to ensure compliance with its obligations under this section, and a written plan that documents those arrangements and systems; and

unless the licensee is a body regulated by APRA:

have available adequate resources (including financial, technological and human resources) to engage in the credit activities authorised by the licence and to carry out supervisory arrangements; and

have adequate risk management systems; and

comply with any other obligations that are prescribed by the regulations.

Assessment of whether compliance is adequate

standards or requirements made by ASIC; or

approvals given by ASIC.

Reference Checking and Information Sharing Protocol

(a) if the individual becomes a representative of a licensee (recruiting credit licensee), the individual will:

provide credit assistance in relation to credit contracts secured by mortgages over residential property; and

be a mortgage broker or a director, employee or agent of a mortgage broker; or

(b) a mortgage intermediary (prospective mortgage intermediary) is acting, or will act, as an intermediary in relation to a licensee where the individual is, or is a former, current or prospective representative of, that licensee, and in that capacity the individual:

provides, provided or will provide credit assistance in relation to credit contracts secured by mortgages over residential property; and

is, was or will be a mortgage broker or a director, employee or agent of a mortgage broker; or

(c) if the individual becomes a representative of a financial services licensee (recruiting financial services licensee), the individual will provide personal advice to retail clients about relevant financial products.

(3AA) The Reference Checking and Information Sharing Protocol may provide for any or all of the following to share information about the individual with the recruiting credit licensee, the prospective mortgage intermediary or the recruiting financial services licensee:

if the individual is a licensee—the individual;

if the individual is a former or current representative of a licensee—that licensee;

if a mortgage intermediary has previously acted or is acting as an intermediary in relation to a licensee where the individual is, or is a former or current representative of, that licensee—that mortgage intermediary;

(3AB) The Reference Checking and Information Sharing Protocol may provide, in a case covered by paragraph (3A)(a) or (b), for the recruiting credit licensee or the prospective mortgage intermediary to request information about the individual from any or all of the following:

if the individual is a licensee or a financial services licensee—the individual;

if the individual is a former or current representative of a licensee—that licensee;

if the individual is a former or current representative of a financial services licensee—that financial services licensee;

if a mortgage intermediary has previously acted or is acting as an intermediary in relation to a licensee where the individual is, or is a former or current representative of, that licensee—that mortgage intermediary.

(3AC) The Reference Checking and Information Sharing Protocol may provide for keeping and retaining records of information shared, and the circumstances under which that information is shared.

(a) require or permit personal information (within the meaning of the Privacy Act 1988) to be shared, other than with the consent of the individual to whom the information relates; or

require information to be shared in relation to conduct that occurred more than 5 years before the information is shared.

satisfy any requirements prescribed by the regulations; or

are approved in writing by ASIC.

Approval of arrangements by ASIC

the credit activities authorised by the licence; and

whether the arrangements will continue to cover persons after the licensee ceases to engage in credit activities, and the length of time for which that cover will continue; and

any other matters that are prescribed by the regulations.

the credit activities engaged in by the licensee or its representatives; or

for the purposes of considering whether the requirement in section 37A (fit and proper person test) is satisfied in relation to the licensee and the licence—any matters mentioned in section 37B in relation to a person mentioned in a paragraph of subsection 37A(1).

may be given at any time; and

may be given to one or more particular licensees, or to each licensee in one or more classes of licensee, or to all licensees; and

may require all the same information, or may contain differences as to the information they require; and

may require a statement containing information to be given on a periodic basis, or each time a particular event or circumstance occurs, without ASIC having to give a further written notice.

Notice to licensee to obtain an audit report

the person is subject to a requirement under subsection (6); and

the person engages in conduct; and

the conduct contravenes the requirement.

Strict liability offence

the person is subject to a requirement under subsection (6); and

the person engages in conduct; and

the conduct contravenes the requirement.

the person is subject to a requirement to give ASIC information under subsection (2); and

the person engages in conduct; and

the conduct contravenes the requirement.

Strict liability offence

the person is subject to a requirement to give ASIC information under subsection (2); and

the person engages in conduct; and

the conduct contravenes the requirement.

the licensee or a representative of the licensee has breached a core obligation and the breach is significant;

(b) the licensee or a representative of the licensee is no longer able to comply with a core obligation and the breach, if it occurs, will be significant;

the licensee or a representative of the licensee conducts an investigation into whether there is a reportable situation of the kind mentioned in paragraph (a) or (b) and the investigation continues for more than 30 days;

an investigation described in paragraph (c) discloses that there is no reportable situation of the kind mentioned in paragraph (a) or (b).

in the course of engaging in a credit activity, the licensee or a representative of the licensee has engaged in conduct constituting gross negligence; or

the licensee or a representative of the licensee has committed serious fraud; or

any other circumstances prescribed by the regulations for the purposes of this paragraph exist.

an obligation under section 47, other than the obligation under paragraph 47(1)(d);

the obligation under paragraph 47(1)(d), so far as it relates to this Act, the Transitional Act and Division 2 of Part 2 of the ASIC Act and regulations made for the purpose of that Division;

the obligation under paragraph 47(1)(d), so far as it relates to Commonwealth legislation that is:

(i) covered by paragraph (d) of the definition of credit legislation in subsection 5(1); and

specified in regulations made for the purposes of this subparagraph;

an obligation of a representative of the licensee under this Act, the Transitional Act, Division 2 of Part 2 of the ASIC Act or regulations made for the purpose of that Division.

the breach is constituted by the commission of an offence under any law and the commission of the offence is punishable on conviction by a penalty that may include imprisonment for a maximum period of:

if the offence involves dishonesty—3 months or more; or

in any other case—12 months or more; or

the breach is constituted by a contravention of a civil penalty provision under any law, other than a civil penalty provision prescribed by the regulations for the purposes of this paragraph; or

the breach is constituted by a contravention of a key requirement (as defined for the purposes of the National Credit Code), other than a key requirement prescribed by the regulations for the purposes of this paragraph; or

the breach is constituted by a contravention of subsection 12DA(1) of the ASIC Act (misleading or deceptive conduct in relation to a financial service); or

the breach results, or is likely to result, in material loss or damage to a credit activity client of the licensee; or

any other circumstances prescribed by the regulations for the purposes of this paragraph exist.

the number or frequency of similar breaches;

the impact of the breach on the licensee’s ability to engage in credit activities covered by the licence;

the extent to which the breach indicates that the licensee’s arrangements to ensure compliance with those obligations are inadequate;

any other matters prescribed by regulations made for the purposes of this paragraph.

contraventions of specified provisions;

specified matters.

is a party to a credit contract, or will be a party to a proposed credit contract, in relation to which the licensee, or a representative of the licensee, performs the obligations, or exercises the rights, of a credit provider; or

is a person to whom the licensee, or a representative of the licensee, provides a credit service; or

is a party to a consumer lease, or will be a party to a proposed consumer lease, in relation to which the licensee, or a representative of the licensee, performs the obligations, or exercises the rights, of a lessor; or

is a mortgagor under a mortgage, or will be the mortgagor under a proposed mortgage, in relation to which the licensee, or a representative of the licensee, performs the obligations, or exercises the rights of a mortgagee; or

is the guarantor under a guarantee, or will be the guarantor under a proposed guarantee, in relation to which the licensee, or a representative of the licensee, performs the obligations, or exercises the rights, of a beneficiary under the guarantee; or

is a person in relation to whom the licensee, or a representative of the licensee, engages in a prescribed activity mentioned in item 6 of the table in subsection 6(1).

the licensee must lodge a report in relation to the reportable situation with ASIC; and

the report must be lodged in accordance with this section.

Offence

the person is subject to a requirement under subsection (1); and

the person engages in conduct; and

the conduct contravenes the requirement.

Report must be in the approved form

the licensee is a body regulated by APRA; and

the licensee has given a report to APRA that contains all of the information that is required in a report under this section in relation to the reportable situation.

the licensee is a body regulated by APRA; and

the auditor or actuary of the licensee gives APRA a written report about a matter to which the reportable situation relates; and

the report is given before, or within 10 business days after, the licensee first knows that, or is reckless with respect to whether, there are reasonable grounds to believe that the reportable situation has arisen.

a reportable situation has arisen in relation to another licensee of the kind mentioned in:

paragraph 50A(1)(a) or (b) (significant breach or likely breach of a core obligation); or

subsection 50A(2) (gross negligence or serious fraud); and

one of the following is an individual who has engaged in conduct that forms part of the reportable situation:

the other licensee;

an employee of the other licensee or of a related body corporate of the other licensee, acting within the scope of the employee’s employment;

a director of the other licensee or of a related body corporate of the other licensee, acting within the scope of the director’s duties as director;

another representative of the other licensee acting within the scope of the representative’s authority given by the licensee; and

the individual is a mortgage broker.

Report must be in the approved form

the existence of the reportable situation; and

all of the information that is required in a report under this section in relation to the reportable situation.

A copy of the report must be given to the other licensee

reports lodged with ASIC during the financial year under section 50B in relation to reportable situations of the kind mentioned in paragraphs 50A(1)(a) and (b) (breaches and likely breaches of core obligations); and

reports lodged with APRA during the financial year, as described in subsections 50B(6) and (7), in relation to reportable situations of the kind mentioned in paragraphs 50A(1)(a) and (b) (breaches and likely breaches of core obligations); and

the entities in relation to which those reports are lodged with ASIC or APRA.

be published within 4 months after the end of the financial year; and

be published on ASIC’s website; and

(c) include the information (if any) prescribed by the regulations, which may include personal information (within the meaning of the Privacy Act 1988) in relation to a licensee who is an individual; and

if the regulations prescribe how the information is to be organised—be organised in accordance with the regulations.

the person is subject to a requirement to give ASIC or an authorised person assistance under subsection (1); and

the person engages in conduct; and

the conduct contravenes the requirement.

Assistance may include showing ASIC credit books etc.

the licensee, or a representative of the licensee, provides or has provided credit assistance to the affected consumer in relation to a credit contract secured by a mortgage over residential property; and

the licensee, or the representative of the licensee, is a mortgage broker; and

there are reasonable grounds to believe that a reportable situation has arisen in relation to the licensee as mentioned in:

paragraph 50A(1)(a) (significant breach of a core obligation); or

subsection 50A(2) (gross negligence or serious fraud); and

there are reasonable grounds to suspect that:

(i) the affected consumer has suffered or will suffer loss or damage as a result of the reportable situation; and

the affected consumer has a legally enforceable right to recover the loss or damage from the licensee.

Form and period for giving notice

be given in writing within 30 days after the licensee first knows of, or is reckless with respect to, the circumstances mentioned in paragraphs (1)(a), (b), (c) and (d); and

if ASIC has approved the form in which the notice must be given:

be in the approved form; and

include the information, statements, explanations or other matters required by the form; and

be accompanied by any other material required by the form.

Qualified privilege

(a) the licensee, or a representative of the licensee, has provided credit assistance to a consumer (the affected consumer) in relation to a credit contract secured by a mortgage over residential property; and

the licensee, or the representative of the licensee, is a mortgage broker; and

there are reasonable grounds to believe that a reportable situation has arisen in relation to the licensee as mentioned in:

paragraph 50A(1)(a) (significant breach of a core obligation); or

subsection 50A(2) (gross negligence or serious fraud); and

there are reasonable grounds to suspect that:

(i) the affected consumer has suffered or will suffer loss or damage as a result of the reportable situation; and

the affected consumer has a legally enforceable right to recover the loss or damage from the licensee.

Period within which investigation must be commenced

identify the conduct that gave rise to the reportable situation; and

quantify the loss or damage that there are reasonable grounds to believe:

the affected consumer has suffered or will suffer as a result of the reportable situation; and

the affected consumer has a legally enforceable right to recover from the licensee; and

do anything else prescribed by the regulations for the purposes of this paragraph.

Completing the investigation

in writing within 10 days after the investigation is completed; and

if ASIC has approved the form in which the notice must be given:

in the approved form; and

that includes the information, statements, explanations or other matters required by the form; and

that is accompanied by any other material required by the form.

the affected consumer has suffered or will suffer loss or damage as a result of the reportable situation; and

the affected consumer has a legally enforceable right to recover the loss or damage from the licensee;

the licensee must take reasonable steps to pay the affected consumer an amount equal to the loss or damage within 30 days after the investigation is completed.

Nothing affects right of affected consumer to pursue legally enforceable rights

the person is subject to a requirement in relation to records under subsection (1); and

the person engages in conduct; and

the conduct contravenes subsection (1).

Subdivision D—Miscellaneous

include in the document the licensee’s Australian credit licence number; and

identify in the document that the number is the licensee’s Australian credit licence number.

Strict liability offence

the person is subject to a requirement under subsection (2) to include and identify its Australian credit licence number in a document; and

the person engages in conduct; and

the conduct contravenes the requirement.

if the licensee is a single natural person—the licensee; or

if the licensee is a body corporate—a person of a kind prescribed by the regulations; or

if the licensee is a partnership or the trustees of a trust—a partner or trustee who performs duties in relation to credit activities.

Requirement to ensure compliance certificate is lodged

the person is subject to a requirement under subsection (1) or (4); and

the person engages in conduct; and

the conduct contravenes the requirement.

in the approved form; and

before the end of 30 business days after the day the entity starts to control, or stops controlling, the licensee.

Strict liability offence

the person is subject to a requirement under subsection (1) to lodge a notification with ASIC; and

the person engages in conduct; and

the conduct contravenes the requirement.

in the approved form; and

before the end of 15 business days after the end of the 6 months.

Strict liability offence

the person is subject to a requirement under subsection (1) to lodge a notification with ASIC; and

the person engages in conduct; and

the conduct contravenes the requirement.

the licensee lodges with ASIC an application for the suspension or cancellation; or

the licensee ceases to engage in credit activities; or

any of the matters set out in subsection (2) applies to any of the following persons:

the licensee;

if the licensee is a body corporate—a director, secretary or senior manager of the body corporate;

if the licensee is a partnership or the trustees of a trust—a partner or trustee; or

(d) in the case of a licensee that is a leviable entity (within the meaning of the ASIC Supervisory Cost Recovery Levy Act 2017)—the following have not been paid in full at least 12 months after the due date for payment:

an amount of levy (if any) payable in respect of the licensee;

an amount of late payment penalty payable (if any) in relation to the levy;

an amount of shortfall penalty payable (if any) in relation to the levy; or

(e) in the case of a licensee that is liable to pay an instalment of levy (within the meaning of the Financial Services Compensation Scheme of Last Resort Levy (Collection) Act 2023)—the following have not been paid in full at least 12 months after the due date for payment:

the amount of the instalment of levy;

the amount of any late payment penalty in relation to the instalment of levy;

the amount of any shortfall penalty payable in relation to the instalment of levy.

(a) the licensee is required to pay an amount to a person in accordance with a relevant AFCA determination (within the meaning of the Corporations Act 2001); and

the CSLR operator (within the meaning of that Act) has paid, under section 1063 of that Act, an amount of compensation to the person for the relevant AFCA determination.

if the person is not the trustees of a trust—the person is insolvent;

if the person is a natural person:

the person is convicted of serious fraud; or

the person is incapable of managing his or her affairs because of physical or mental incapacity; or

a prescribed State or Territory order is in force against the person.

the licensee has contravened an obligation under section 47 (which deals with general conduct obligations of licensees); or

ASIC has reason to believe that the licensee is likely to contravene an obligation under that section; or

the requirement in section 37A (fit and proper person test) is not satisfied in relation to the licensee and the licence; or

the application for the licence:

was false in a material particular or materially misleading; or

omitted a material matter; or

any information, audit report or statement lodged with ASIC in accordance with a request under subsection 37(4) in relation to the application for the licence:

was false in a material particular or materially misleading; or

omitted a material matter; or

an application made by the licensee under paragraph 45(2)(b) in relation to the licence:

was false in a material particular or materially misleading; or

omitted a material matter; or

any information, audit report or statement lodged with ASIC in accordance with a request under subsection 46A(3) in relation to an application made by the licensee under paragraph 45(2)(b) in relation to the licence:

was false in a material particular or materially misleading; or

omitted a material matter.

to appear, or be represented, at a hearing before ASIC that takes place in private; and

to make submissions to ASIC on the matter.

ASIC cannot suspend or cancel the licensee’s licence if doing so would, in ASIC’s opinion, have the result of preventing the APRA body from being able to carry on all or any of its usual activities (being activities in relation to which APRA has regulatory or supervisory responsibilities), unless ASIC has first consulted APRA about the proposed action;

if ASIC suspends or cancels the licensee’s licence and paragraph (a) does not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

Special procedures for ADIs

a licensee is an ADI; or

(b) a related body corporate of a licensee is an ADI, and cancellation or suspension of the licensee’s licence would, in ASIC’s opinion, have the result of preventing the ADI from being able to carry on all or any of its banking business (within the meaning of the Banking Act 1959);

then the following provisions have effect:

subject to paragraph (d), the powers that ASIC would otherwise have under this Division to cancel or suspend the licensee’s licence, or to revoke a suspension to which this subsection applied, are instead powers of the Minister;

the procedures for the exercise of a power to which paragraph (c) applies are the same as would apply if ASIC could exercise the power, except that the Minister must not exercise the power unless he or she has first considered advice from ASIC on the proposed action, being advice given after ASIC has consulted APRA about the proposed action;

ASIC (rather than the Minister) must still conduct any hearing required under paragraph 55(4)(a) and receive any submissions under paragraph 55(4)(b).

Subdivision B—Variations

is of no effect if subsection (5) applies to it when it is given; and

ceases to have effect if and when subsection (5) starts to apply to it after it is given;

to the extent that subsection (5) applies.

a person to engage in a credit activity that is not authorised by the licensee’s licence; or

a person to engage in a credit activity, and a banning order or disqualification order under Part 2-4 is in force against the person in relation to the credit activity; or

a person who is not a member of the AFCA scheme to engage in a credit activity in relation to a contract that is not a low cost credit contract; or

a person who is not a member of the AFCA scheme to collect, on the licensee’s behalf, repayments made by a debtor under a low cost credit contract; or

a person who is banned from engaging in a credit activity under a law of a State or Territory; or

a natural person who has been convicted, within the last 10 years, of serious fraud; or

a natural person against whom a prescribed State or Territory order is in force; or

a person that is a body corporate, if a prescribed State or Territory order is in force against a director, secretary or senior manager of the body corporate who would perform duties in relation to the credit activities specified in the authorisation; or

a person that is a partnership or the trustees of a trust, if a prescribed State or Territory order is in force against a partner or trustee who would perform duties in relation to the credit activities specified in the authorisation.

is of no effect if subsection (6) applies to it when it is given; and

ceases to have effect if and when subsection (6) starts to apply to it after it is given;

to the extent that subsection (6) applies.

a natural person to engage in a credit activity that is not authorised by the licensee’s licence; or

a natural person to engage in a credit activity, and a banning order or disqualification order under Part 2-4 is in force against the natural person in relation to the credit activity; or

a natural person who is not a member of the AFCA scheme to engage in a credit activity in relation to a contract that is not a low cost credit contract; or

a natural person who is not a member of the AFCA scheme to collect, on the licensee’s behalf, repayments made by a debtor under a low cost credit contract; or

a natural person who is banned from engaging in a credit activity under a law of a State or Territory; or

a natural person who has been convicted, within the last 10 years, of serious fraud; or

a natural person against whom a prescribed State or Territory order is in force; or

a natural person in relation to the authorisation of whom the licensee has not given its written consent in accordance with subsection (4).

each of those licensees has consented to the person also being the credit representative of each of the other licensees; or

each of the licensees is a related body corporate of each of the other licensees.

is of no effect if it contravenes subsection (1) when it is given; and

ceases to have effect if and when it starts to contravene subsection (1) after it is given.

is of no effect if it contravenes subsection (1) when it is given; and

ceases to have effect if and when it starts to contravene subsection (1) after it is given.

the licensee in relation to whom the authorisation was given; or

the body corporate that gave the authorisation;

giving written notice to the credit representative.

the person is subject to a requirement under subsection (1); and

the person engages in conduct; and

the conduct contravenes the requirement.

has authorised a credit representative under subsection 64(1) or 65(1); and

becomes aware of a matter because of which the authorisation of the credit representative has ceased to have effect under this Division;

the person must, as soon as practicable:

revoke the authorisation; or

vary the authorisation so that it is no longer, to any extent, of no effect under this Division.

Offence

the person is required to vary or revoke an authorisation under subsection (1); and

the person engages in conduct; and

the conduct contravenes subsection (1).

a person authorises a natural person as a credit representative of a licensee under subsection 65(1) (which deals with sub-authorisations); and

the consent of the licensee to the authorisation was given in relation to a specified class of natural persons;

then the person must, within 15 business days of the authorisation, give the licensee written notice of the authorisation in accordance with subsection (3).

Details to be included in notice

the name and business address of the credit representative;

details of the authorisation, including the date on which it was made and what the credit representative is authorised to do on behalf of the licensee;

details of the external dispute resolution scheme of which the credit representative is a member;

details of each other licensee on behalf of whom the credit representative is a credit representative.

Requirement to notify ASIC of change in details etc.

a person authorises a credit representative under subsection 64(1) or 65(1); and

either:

any of the details that are referred to in subsection (3) in relation to the credit representative changes; or

the person revokes the authorisation;

then the person must, within 10 business days of the change or revocation, lodge with ASIC a written notice of the change or revocation.

the person is subject to a requirement to give a notice under subsection (1), (2) or (4); and

the person engages in conduct; and

the conduct contravenes the requirement.

the credit representative; and

the person who authorised the credit representative.

the licensee making a decision about what action (if any) to take in relation to the representative, as a consequence of receiving the information; or

the licensee taking action pursuant to such a decision.

the person is subject to a requirement under subsection (3) or (5); and

the person engages in conduct; and

the conduct contravenes the requirement.

Qualified privilege

for a purpose connected with:

a licensee making a decision about what action (if any) to take in relation to the representative, as a consequence of receiving some or all of the information; or

a licensee taking action pursuant to that decision; or

proving in proceedings in that court that particular action taken by a licensee in relation to the representative was taken pursuant to that decision; or

in proceedings in that court, in so far as the proceedings relate to an alleged contravention of this section; or

in proceedings about giving to a court false information some, at least, of which was the information given under this section.

takes action by way of making, terminating or varying the terms and conditions of an agreement; or

otherwise takes action in relation to an agreement;

to the extent that the agreement relates to the representative acting on behalf of the licensee.

a reference in it to a court were a reference to a court of a country outside Australia; and

paragraph (8)(b) were omitted.

the representative is the representative of one of the licensees only in relation to a particular class of credit activity; and

the conduct relates to that class of credit activity;

that licensee is responsible for the conduct, as between that licensee and the client, whether or not the conduct is within the authority of the licensee.

Conduct covered by multiple authorities

the representative is the representative of more than one of the licensees in relation to a particular class of credit activity; and

the conduct relates to that class of credit activity; and

the conduct is within the authority of:

(i) only one of those licensees (the authorising licensee); or

(ii) 2 or more of those licensees (the authorising licensees);

then:

if subparagraph (c)(i) applies—the authorising licensee is responsible for the conduct, as between that licensee and the client; or

if subparagraph (c)(ii) applies—the authorising licensees are jointly and severally responsible for the conduct, as between themselves and the client.

All other cases

any criminal responsibility; or

any civil liability under a provision of this Act apart from this Division;

on a licensee that would not otherwise be imposed on the licensee.

provides for a representative of a licensee to indemnify the licensee for a liability of the licensee in relation to the representative; or

provides for a licensee, for whom a representative acts, to indemnify another licensee for a liability in relation to the representative.

if ASIC suspends or cancels a licence of the person; or

if the person becomes insolvent; or

for a natural person—if the person is convicted of fraud; or

if the person has:

contravened any credit legislation; or

been involved in a contravention of a provision of any credit legislation by another person; or

if ASIC has reason to believe that the person is likely to:

contravene any credit legislation; or

be involved in a contravention of a provision of any credit legislation by another person; or

if ASIC has reason to believe that the person is not a fit and proper person to:

engage in one or more credit activities; or

(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001) of another person who engages in credit activities; or

control another person who engages in credit activities; or

if ASIC has reason to believe that the person is not adequately trained, or is not competent, to:

engage in one or more credit activities; or

(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001) of another person who engages in credit activities; or

control another person who engages in credit activities; or

(fb) if the person has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA (within the meaning of the Corporations Act 2001) relating to a complaint that relates to:

credit activities; or

(ii) a financial services business (within the meaning of the Corporations Act 2001); or

if all of the following apply:

(i) an individual who holds a licence, a partner in a partnership, a body corporate or a trustee of a trust is required to pay an amount in accordance with a relevant AFCA determination (within the meaning of the Corporations Act 2001);

the CSLR operator (within the meaning of that Act) has paid, under section 1063 of that Act, an amount of compensation for the relevant AFCA determination;

at the time the payment is made by the CSLR operator, the person is the individual licensee, a partner in the partnership, an officer (within the meaning of that Act) of the body corporate or the trustee of the trust; or

if subsection (3) applies to the person in relation to 2 or more corporations; or

if a prescribed State or Territory order is in force against the person; or

in any other circumstances prescribed by the regulations.

(a) the person was an officer (within the meaning of the Corporations Act 2001) of the corporation when the corporation was:

engaging in credit activities; or

(ii) carrying on a financial services business (within the meaning of the Corporations Act 2001); and

the corporation was wound up either:

while the person was such an officer of the corporation; or

within the 12 months after the person ceased to be such an officer of the corporation; and

(c) a liquidator lodged a report under subsection 533(1) of the Corporations Act 2001 (including that subsection as applied by section 526-35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006) about the corporation’s inability to pay its debts.

Person to be given an opportunity to be heard

to appear, or be represented, at a hearing before ASIC that takes place in private; and

to make submissions to ASIC on the matter.

either:

ASIC has not delegated its power to make the banning order to a Financial Services and Credit Panel; or

ASIC exercises its power to make the banning order despite such a delegation; and

subsection (6) or (6A) applies.

ASIC’s grounds for making a banning order against a person include that ASIC has suspended or cancelled a licence of the person (see paragraph (1)(a)); and

the suspension or cancellation took place without a hearing under section 54.

ASIC’s grounds for making a banning order against a person include that the person has been convicted of fraud (see paragraph (1)(c)); and

the person has been convicted of serious fraud.

Copy of banning order to be given to the person

engaging in any credit activities;

engaging in specified credit activities in specified circumstances or capacities;

(c) controlling, whether alone or in concert with one or more other entities (as defined by Corporations Act 2001), another person who engages in credit activities;section 64A of the

(d) performing any function involved in the engaging in of credit activities (including as an officer (within the meaning of the Corporations Act 2001), manager, employee, contractor or in some other capacity);

performing specified functions involved in the engaging in of credit activities.

if the sole ground for the banning order is because paragraph 80(1)(fc) applies—for a specified period of up to 5 years; or

otherwise—either permanently or for a specified period.

to do specified acts; or

to do specified acts in specified circumstances;

that the order would otherwise prohibit them from doing.

the person is subject to a requirement under subsection (1); and

the person engages in conduct; and

the conduct contravenes the requirement.

on its own initiative; or

if the person against whom the order was made lodges with ASIC an application for the variation or cancellation.

to appear, or be represented, at a hearing before ASIC that takes place in private; and

to make submissions to ASIC on the matter.

in the case of the making of a banning order—set out a copy of the banning order; or

in the case of the variation of a banning order—set out a copy of the banning order as varied.

cancels a licence of the person; or

makes a banning order against the person that is to operate permanently.

one or more orders disqualifying the person, permanently or for a specified period, from doing one or more of the following:

engaging in any credit activities;

engaging in specified credit activities in specified circumstances or capacities;

(iii) controlling, whether alone or in concert with one or more other entities (as defined by Corporations Act 2001), another person who engages in credit activities;section 64A of the

(iv) performing any function involved in the engaging in of credit activities (including as an officer (within the meaning of the Corporations Act 2001), manager, employee, contractor or in some other capacity);

performing specified functions involved in the engaging in of credit activities; or

any other order the court considers appropriate.

keep financial records that correctly record and explain the transactions and financial position of any business of engaging in credit activities carried on by the licensee; and

keep those records in accordance with this Division; and