This is a compilation of ASIC Credit (AFCA transition) Instrument 2018/448 as in force on 23 August 2018. It includes any commenced amendment affecting the legislative instrument to that date.
This compilation was prepared by the Australian Securities and Investments Commission.
The notes at the end of this compilation (the endnotes) include information
about amending instruments and the amendment history of each amended provision.
This is the ASIC Credit (AFCA transition) Instrument 2018/448.
3 Authority
This instrument is made under paragraph 163(3)(d) of National Consumer Credit Protection Act 2009 and subsection 203A(3) of the National Credit Code.
Note: The National Credit Code is found in Schedule 1 to the National Consumer Credit Protection Act 2009.
4 Definitions
(1) In this instrument:
Act means the National Consumer Credit Protection Act 2009.
AFCA scheme has the same meaning as in Chapter 7 of the Corporations Act 2001.
Amending Regulations means the Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Regulations 2018.
Code means the National Credit Code, which is found in Schedule 1 to the Act.
Regulations means the National Consumer Credit Protection Regulations 2010.
(2) An expression used in Part 2 of this instrument and in the Act has the same meaning as in the Act.
(3) An expression used in Part 3 of this instrument and in the Code has the same meaning as in the Code.
Part 2—Declaration
5 Credit guides
(1) The provisions to which Part 3-7 of the Act applies apply in relation to a licensee (the provider) and a credit representative (the provider) as if paragraphs 113(2)(h), 126(2)(e), 127(2)(e), 136(2)(h), 149(2)(e), 150(2)(e) and 160(3)(f) of the Act were modified or varied as follows:
(a) in the introductory words after “information”, insert “(that may be up to date or after 1 November 2018, reflect the position immediately before that date)”; and
(b) in subparagraph (ii), omit “scheme;”, substitute “scheme or the approved external dispute resolution scheme that was relevant before 1 November 2018;”.
(2) The provisions to which Part 3-7 of the Act applies apply in relation to a credit representative (the provider) as if paragraph 158(2)(h) of the Act were modified or varied as follows:
(a) after “information”, insert, “(that may be up to date or after 1 November 2018, reflect the position immediately before that date)”; and
(b) omit “scheme;”, substitute “scheme or the approved external dispute resolution scheme that was relevant before 1 November 2018;”
(3) The declarations in subsection (1) and (2) apply in relation to a provider giving a credit guide before 1 July 2019 where:
(a) if the credit guide is given on or after 1 November 2018—section 6 applies to the provider; and
(b) a credit guide in the same terms was first given by the provider before the commencement of this instrument.
6 Requirement for relying on relief
(1) This section applies to a provider if on and from 1 November 2018:
(a) where the provider has a website—the provider makes available on the website current information (the AFCA information) about the AFCA scheme and how that scheme may be accessed; and
(b) subject to subsection (2), the AFCA information is included in any document which:
(i) purports to describe dispute resolution arrangements applicable in relation to the credit activities engaged in by the provider (whether or not it also includes other matters); and
(ii) is made available by the provider to other people in relation to whom the provider has or may engage in credit activities; and
(c) the documentation relating to the provider’s internal dispute resolution procedure includes the AFCA information.
(2) Paragraph (1)(b) does not apply to a document required to be given by or under the Act.
Part 3—Exemption
7 Forms
(1) A credit provider (the provider) does not have to comply with any of the following:
(a) paragraph 16(1)(b) and subsection 16(2) (to the extent it relates to the requirement in paragraph 16(1)(b)) of the Code in relation to a credit contract; and
(b) paragraph 56(1)(b) of the Code in relation to a guarantee.
(2) A lessor (the provider) does not have to comply with subsection 175(1) of the Code to the extent the subsection requires a statement to be given explaining the rights and obligations of a lessee in relation to a consumer lease.
Where the exemptions apply
(3) The exemption in paragraph (1)(a) applies to a provider where:
(a) subject to paragraph (b), the provider has complied with the requirements of paragraph 16(1)(b) and subsection 16(2) of the Code that would have applied but for the amendments made by the Amending Regulations to Form 5 in Schedule 1 of the Regulations; and
(b) to the extent those requirements relate to an external dispute resolution provider, the provider has complied with the requirements in relation to the external dispute resolution scheme that was relevant before 1 November 2018; and
(c) section 6 applies to the provider.
(4) The exemption in paragraph (1)(b) applies to a provider where:
(a) subject to paragraph (b), the provider has complied with the requirements of paragraph 56(1)(b) of the Code that would have applied but for the amendments made by the Amending Regulations to Form 9 in Schedule 1 of the Regulations; and
(b) to the extent those requirements relate to an external dispute resolution provider, the provider has complied with the requirements in relation to the external dispute resolution scheme that was relevant before 1 November 2018; and
(c) section 6 applies to the provider.
(5) The exemption in subsection (2) applies to a provider where:
(a) subject to paragraph (b), the provider has complied with the requirements of subsection 175(1) of the Code that would have applied but for the amendments made by the Amending Regulations to Form 17 in Schedule 1 of the Regulations; and
(b) to the extent those requirements relate to an external dispute resolution provider, the provider has complied with the requirements in relation to the external dispute resolution scheme that was relevant before 1 November 2018; and
(c) section 6 applies to the provider.
8 Period during which exemptions apply
The exemptions in section 7 apply during the period from 1 November 2018 to 30 June 2019.
Endnotes
Endnote 1—Instrument history
Instrument number
Date of FRL registration
Date of commencement
Application, saving or transitional provisions
2018/448
30/5/2018 (see F2018L00678)
31/5/2018
2018/665
22/8/2018 (see F2018L01149
23/8/2018
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Endnote 2—Amendment history
Note: ad. = added or inserted am. = amended LA = Legislation Act 2003 rep. = repealed rs. = repealed and substituted