National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009

1 Short title

This Act may be cited as the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009.

2 Commencement

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4 Dictionary

In this Act:

appeal or review proceedings means proceedings by way of appeal, or otherwise seeking review, of the order.

carried over instrument means a contract or other instrument that: was made before commencement; and was in force immediately before commencement; and the old Credit Code of a referring State or a Territory applied to immediately before commencement. carried over provision of the old Credit Code of a referring State or a Territory means a provision of the old Credit Code of that State or Territory that: was in force immediately before commencement; and corresponds to a provision of the new Credit Code. Chapter 3 start day: see subitem 19(1) of Schedule 1 to this Act. civil penalty provision: a subitem of a Schedule to this Act (or an item of a Schedule to this Act that is not divided into subitems) 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 subitem (or item); or another provision of this Act specifies that the subitem (or item) is a civil penalty provision.

was made before commencement; and

was in force immediately before commencement; and

the old Credit Code of a referring State or a Territory applied to immediately before commencement.

carried over provision of the old Credit Code of a referring State or a Territory means a provision of the old Credit Code of that State or Territory that:

was in force immediately before commencement; and

corresponds to a provision of the new Credit Code.

Chapter 3 start day: see subitem 19(1) of Schedule 1 to this Act.

civil penalty provision: a subitem of a Schedule to this Act (or an item of a Schedule to this Act that is not divided into subitems) 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 subitem (or item); or

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

commencement means the start of 1 July 2010, or a later day prescribed by the regulations.

contract or other instrument includes credit contracts, mortgages, guarantees, consumer leases and sale contracts.

corresponds: see section 5.

enforcement proceedings, in relation to an order made by a court or tribunal, means:

proceedings to enforce the order; or

any other proceedings in relation to a contravention of the order.

interlocutory application means an application that: is made during the course of proceedings; and is for an order that is incidental to the principal object of those proceedings, including, for example: an order about the conduct of those proceedings; or an order assisting a party to those proceedings to present their case in those proceedings; or an order protecting or otherwise dealing with property that is the subject matter of those proceedings; but not including an order making a final determination of existing rights or liabilities.

is made during the course of proceedings; and

is for an order that is incidental to the principal object of those proceedings, including, for example:

an order about the conduct of those proceedings; or

an order assisting a party to those proceedings to present their case in those proceedings; or

an order protecting or otherwise dealing with property that is the subject matter of those proceedings;

but not including an order making a final determination of existing rights or liabilities.

interlocutory order means:

an order made in relation to an interlocutory application; or

an order or direction about the conduct of proceedings.

interlocutory proceedings means proceedings: dealing only with; or to the extent it deals with; an interlocutory application.

dealing only with; or

to the extent it deals with;

an interlocutory application.

liability includes a duty or obligation.

made includes issued, given or published.

National Credit Act means the National Consumer Credit Protection Act 2009 and includes instruments made under that Act.

new Credit Code means Schedule 1 to the National Credit Act and includes: regulations made under section 329 of the National Credit Act for the purposes of that Schedule; and instruments made under subsection 6(14) or (17) of that Schedule.

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

instruments made under subsection 6(14) or (17) of that Schedule.

old Credit Code means the following: (a) for New South Wales—the Consumer Credit (New South Wales) Code, and the Consumer Credit (New South Wales) Regulations, within the meaning of the Consumer Credit (New South Wales) Act 1995 of New South Wales, as in force from time to time before commencement; (b) for Victoria—the Consumer Credit (Victoria) Code, and the Consumer Credit (Victoria) Regulations, within the meaning of the Consumer Credit (Victoria) Act 1995 of Victoria, as in force from time to time before commencement; (c) for Queensland—the Consumer Credit (Queensland) Code, and the Consumer Credit (Queensland) Regulations, within the meaning of the Consumer Credit (Queensland) Act 1994 of Queensland, as in force from time to time before commencement; (d) for Western Australia—the Consumer Credit (Western Australia) Code, and the Consumer Credit (Western Australia) Code Regulations, within the meaning of the Consumer Credit (Western Australia) Act 1996 of Western Australia, as in force from time to time before commencement; (e) for South Australia—the Consumer Credit (South Australia) Code, and the Consumer Credit (South Australia) Regulations, within the meaning of the Consumer Credit (South Australia) Act 1995 of South Australia, as in force from time to time before commencement; (f) for Tasmania—the Consumer Credit (Tasmania) Code, and the Consumer Credit (Tasmania) Regulations, within the meaning of the Consumer Credit (Tasmania) Act 1996 of Tasmania, as in force from time to time before commencement; (g) for the Australian Capital Territory—the Consumer Credit (Australian Capital Territory) Code, and the Consumer Credit (Australian Capital Territory) Regulations, within the meaning of the Consumer Credit Act 1995 of the Australian Capital Territory, as in force from time to time before commencement; (h) for the Northern Territory—the Consumer Credit (Northern Territory) Code, and the Consumer Credit (Northern Territory) Regulations, within the meaning of the Consumer Credit (Northern Territory) Act 1995 of the Northern Territory, as in force from time to time before commencement. old right or liability: see subitem 11(1) or 12(1) of Schedule 1 to this Act.

(a) for New South Wales—the Consumer Credit (New South Wales) Code, and the Consumer Credit (New South Wales) Regulations, within the meaning of the Consumer Credit (New South Wales) Act 1995 of New South Wales, as in force from time to time before commencement;

(b) for Victoria—the Consumer Credit (Victoria) Code, and the Consumer Credit (Victoria) Regulations, within the meaning of the Consumer Credit (Victoria) Act 1995 of Victoria, as in force from time to time before commencement;

(c) for Queensland—the Consumer Credit (Queensland) Code, and the Consumer Credit (Queensland) Regulations, within the meaning of the Consumer Credit (Queensland) Act 1994 of Queensland, as in force from time to time before commencement;

(d) for Western Australia—the Consumer Credit (Western Australia) Code, and the Consumer Credit (Western Australia) Code Regulations, within the meaning of the Consumer Credit (Western Australia) Act 1996 of Western Australia, as in force from time to time before commencement;

(e) for South Australia—the Consumer Credit (South Australia) Code, and the Consumer Credit (South Australia) Regulations, within the meaning of the Consumer Credit (South Australia) Act 1995 of South Australia, as in force from time to time before commencement;

(f) for Tasmania—the Consumer Credit (Tasmania) Code, and the Consumer Credit (Tasmania) Regulations, within the meaning of the Consumer Credit (Tasmania) Act 1996 of Tasmania, as in force from time to time before commencement;

(g) for the Australian Capital Territory—the Consumer Credit (Australian Capital Territory) Code, and the Consumer Credit (Australian Capital Territory) Regulations, within the meaning of the Consumer Credit Act 1995 of the Australian Capital Territory, as in force from time to time before commencement;

(h) for the Northern Territory—the Consumer Credit (Northern Territory) Code, and the Consumer Credit (Northern Territory) Regulations, within the meaning of the Consumer Credit (Northern Territory) Act 1995 of the Northern Territory, as in force from time to time before commencement.

old right or liability: see subitem 11(1) or 12(1) of Schedule 1 to this Act.

order of a court or tribunal includes any judgment, conviction or sentence of the court or tribunal.

preserved instrument means an instrument that, because of item 10 of Schedule 1 to this Act, has effect after commencement as if it were made under the new Credit Code.

primary proceedings means proceedings other than interlocutory proceedings.

proceedings means proceedings, whether criminal or civil, before a court or tribunal.

registered means registered under item 12 of Schedule 2 to this Act.

registered person means a person who is registered under item 12 of Schedule 2 to this Act.

registered to engage in a credit activity: a person is registered to engage in a credit activity if the person is registered, and the registration authorises the person to engage in the credit activity.

registrable corporation has the same meaning as in section 7 of the Financial Sector (Collection of Data) Act 2001.

registration means registration under item 12 of Schedule 2 to this Act.

representative of a person means:

if the person is a registered person:

a credit representative of the registered person; or

an employee or director of the registered person; or

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

any other person acting on behalf of the registered person; or

in any other case:

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.

right includes an interest or status.

sale contract: has the same meaning as in section 125 of the new Credit Code.

substituted right or liability: see subitem 11(2) or 12(3) of Schedule 1 to this Act.

this Act includes instruments made under this Act.

transition end day means 30 June 2011, or a later day prescribed by the regulations.

tribunal means tribunal in Australia.

In this Act, expressions that are defined in the National Credit Act (other than in the new Credit Code) have the same meanings as they have in that Act.

5 Meaning of corresponds

(1) A provision (the old provision) of the old Credit Code of a referring State or a Territory corresponds to a provision (the new provision) of the new Credit Code (and vice versa) if:

the old provision and the new provision are substantially the same, unless the regulations specify that the 2 provisions do not correspond; or

the regulations specify that the 2 provisions correspond.

Note: The range of provisions of the new Credit Code that may be corresponding provisions for the purposes of this Act is affected by item 12 of Schedule 1 to this Act, which takes certain provisions of the old Credit Code to be included in the new Credit Code.

For the purposes of paragraph (1)(a), differences of all or any of the following kinds are not sufficient to mean that 2 provisions are not substantially the same:

differences in the numbering of the provisions;

differences of a minor technical nature (for example, differences in punctuation, or differences that are attributable to the correction of incorrect cross references) or of style;

the fact that:

the old provision allowed a tribunal to exercise powers but the new provision only allows a court to do so; or

the old provision allowed proceedings to be brought in a tribunal but the new provision only allows proceedings to be brought in a court; or

the old provision allowed or required a particular agency to exercise powers or perform functions but the new provision allows or requires ASIC to do so;

other differences that are attributable to the fact that the new Credit Code applies as a Commonwealth law;

other differences of a kind prescribed by the regulations.

Subsection (2) is not intended to otherwise limit the circumstances in which 2 provisions are, for the purposes of paragraph (1)(a), substantially the same.

The regulations may provide that a specified provision of the old Credit Code of a referring State or a Territory does, or does not, correspond to a specified provision of the new Credit Code.

6 Regulations may deal with transitional matters

The Governor-General may make regulations prescribing matters:

required or permitted by this Act to be prescribed; or

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

The regulations may prescribe matters of a transitional nature (including matters of an application or saving nature):

arising out of the enactment of the National Credit Act; or

relating to the transition from the application of provisions of the old Credit Codes, or related laws, of the referring States and the Territories to the application of provisions of the National Credit Act.

The regulations have effect despite anything else in this Act.

The regulations may provide that certain provisions of this Act are taken to be modified as set out in the regulations. Those provisions then have effect as if they were so modified.

(4) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to regulations made under this section.

If:

(a) regulations are expressed to commence on a date (the registration date) before the regulations are registered under the Legislation Act 2003; and

a person engaged in conduct before the registration date; and

apart from the retrospective effect of the regulations, the conduct would not have contravened:

this Act; or

the National Credit Act (including the new Credit Code) as it applies because of this Act;

then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened either of those Acts.

The provisions of this Act that provide for regulations to deal with matters do not limit each other.

7 Acquisition of property

A provision of this Act does not apply, and is taken never to have applied, to the extent that the operation of the provision would result in an acquisition of property from a person otherwise than on just terms.

(2) In subsection (1), acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.