Credit (Commonwealth Powers) Act 2009

The Act directly affects three groups: the Tasmanian Parliament and Executive, the Commonwealth Parliament, and persons subject to consumer credit regulation in Tasmania. The Tasmanian Parliament surrenders its legislative competence over the referred matters; it cannot validly enact new laws on consumer credit within the scope of the reference while the reference is in force (because the Commonwealth has covered the field, and the State has referred power to the Commonwealth). The Governor and Minister gain a termination power (s 5) but that power is rarely exercised in practice. The Commonwealth Parliament obtains a constitutional source of power for the National Consumer Credit Protection Act and its amendments, and can rely on that power to bind Tasmanian credit providers, consumers, and lessors. Credit providers and consumers are affected indirectly: the Act enables the Commonwealth regime to apply in Tasmania, which imposes licensing, disclosure, responsible lending, and enforcement obligations. Small businesses offering credit (e.g., buy-now-pay-later providers, pawnbrokers, or retailers with in-house finance) are affected because the definition of “referred credit matter” encompasses virtually all consumer credit and consumer leases as defined in the initial Code. Legal practitioners and compliance professionals must look to Commonwealth rather than state law when advising on consumer credit matters in Tasmania. Courts and tribunals are affected because jurisdiction over credit disputes now rests under Commonwealth legislation, and the Act provides evidentiary shortcuts for proving the tabled text (s 7). The Act also affects the Tasmanian Department of Justice, which is assigned administration of the Act (s 8), though in practice that administration is minimal once the referral is made because the substantive regulatory work is done by the Commonwealth’s Australian Securities and Investments Commission (ASIC). The Act does not impose direct duties on individuals; its duty is on the State to maintain the referral and on the Governor to follow publication procedures for termination. However, the indirect effects on credit markets are significant: the referral removed Tasmania’s ability to tailor consumer credit regulation to local conditions, increasing uniformity but also eliminating regulatory competition between states.

The Act creates few duties and rights in its own text. Its primary duty is on the Tasmanian Governor: the power to fix a day for termination of the references by proclamation published in the Gazette (s 5(1)). This is a discretionary power, not a mandatory duty. The Governor may also revoke a termination proclamation, but only if the revocation is published before the fixed termination day (s 5(3)). That revocation does not prevent a further proclamation (s 5(4)). The Act imposes an obligation on the Governor to respect the constitutional limits: the reference has effect only to the extent the matter is not within the Commonwealth’s existing legislative powers (s 4(2)(a)) and is within the State’s powers (s 4(2)(b)). This is a structural limitation, not a duty enforceable by any party, but it does mean that if the Commonwealth later acquires constitutional power over consumer credit through another head (e.g., a referral by all other states or a High Court reinterpretation of the corporations power), the Tasmanian reference may become redundant. The Act also confers a right on the Commonwealth to make laws under the reference, but that right is conditional on the continued existence of the reference. If the amendment reference is terminated, the Commonwealth can no longer make express amendments under the amendment reference, but laws already made continue (s 6(1)). The initial reference may survive even if the amendment reference is terminated (s 5(5)). The Act does not create any private rights of action. It does not give consumers or credit providers any right to challenge the validity of Commonwealth laws made under the referral, except by the usual constitutional challenge (which would fall to the High Court). The evidence provision (s 7) confers a right on a party to use a certificate from the Clerk of the Tasmanian House of Assembly as evidence of the tabled text, which is a procedural convenience. The administration assignment (s 8) is a duty on the Minister and Department. Notably, the Act does not contain any provision requiring the State to give notice to the Commonwealth before terminating, nor any cooling-off period. The termination can be immediate once the proclamation is gazetted, which creates uncertainty for businesses that rely on a stable regulatory framework.

The Act itself creates no penalties. It does not criminalise any conduct, nor does it impose civil pecuniary penalties. Enforcement of the consumer credit regime flows from the Commonwealth National Consumer Credit Protection Act, which the referral enables. That Act contains penalties for unlicensed credit activity, breaches of responsible lending obligations, and false or misleading statements. Those penalties are enforceable by ASIC in federal courts and in state courts with invested federal jurisdiction. The Tasmanian referral does, however, affect enforcement indirectly: because the Commonwealth now covers the field, state consumer credit laws (such as the former Tasmanian Consumer Credit Code) are effectively supplanted. Any attempt by Tasmania to enforce a state credit law on referred matters would be inconsistent with the Commonwealth law and invalid under section 109 of the Constitution. The referral thus shifts enforcement from state tribunals and courts to federal bodies. The Act contains a provision (s 4(4)) stating that the Commonwealth may also rely on its own legislative powers (other than the referral) to affect the National Credit legislation, including by making Commonwealth Credit instruments. Those instruments may themselves contain penalty provisions. The termination provisions in section 5 could be seen as a soft enforcement mechanism: if the Commonwealth amends the Code in a way Tasmania dislikes, the State can threaten to terminate the amendment reference, but that would create regulatory fragmentation and is politically difficult. No penalty attaches to a failure to comply with the Act itself because there is no primary conduct to regulate. The Act is merely a constitutional gateway. For practical purposes, enforcement of credit laws in Tasmania is now entirely in the hands of the Commonwealth and its agencies, subject to any limitations in the referral. The Act includes no savings or transitional provisions for state enforcement actions pending at the time of referral; those are left to the Commonwealth transitional act (which is part of the tabled text).

The Credit (Commonwealth Powers) Act 2009 is a state law that enables the operation of Commonwealth legislation. Its primary interaction is with the National Consumer Credit Protection Act 2009 (Cth) and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth). The referral ensures those Commonwealth Acts apply in Tasmania despite the Commonwealth otherwise lacking full constitutional power. The Act also interacts with the Tasmanian Constitution Act 1934 and other state laws that allocate legislative and executive power. Section 4(2) makes clear that the reference only operates if the matter is not already within Commonwealth power and is within state power. This preserves the existing federal balance. The Act does not repeal any Tasmanian credit laws; instead, it makes them inoperative to the extent of inconsistency with Commonwealth law. The Transitional and Consequential Provisions Bill (part of the tabled text) deals with the phasing out of state codes. The Act also interacts with the Administrative Arrangements Act 1990 (Tas), which governs the assignment of responsibilities to ministers and departments. Section 8 of this Act uses the mechanism in that Act to assign administration until a formal order is made. The Act’s evidence provision (s 7) interacts with the rules of evidence in both state and federal proceedings, providing a shortcut for proving the tabled text. The Act does not interact with any specific international instruments; it is purely domestic. The referral mechanism is mirrored in other states (New South Wales, Victoria, Queensland, South Australia, etc.), and the interaction between multiple state referrals creates a uniform national scheme. However, each state’s referral act is independent, so the Tasmanian Act operates alongside other state referral acts but does not rely on them. The termination provisions allow Tasmania to unilaterally withdraw, which would cause the Commonwealth law to cease applying in Tasmania to the extent it relies on the referral. That would force the Commonwealth to rely on its own powers, potentially leaving gaps. The Act also interacts with the Commonwealth’s power to refer matters back to the states (the mirror legislation), but that is not addressed in this Act.

The text provided is the version as at 12 April 2026 (inforce date). The Act does not appear to have been amended. The original Act was passed in 2009, and no amendments are recorded in the source. The Act’s provisions are largely procedural and constitutional in nature, so substantive amendment would be unusual unless Tasmania wished to alter the scope of the referral or the termination mechanism. The Act relies on the definition of “tabled text” which refers to Bills tabled in 2009; that definition is static. The amendment reference allows the Commonwealth to amend the National Credit legislation, but that does not constitute an amendment of the Tasmanian Act itself. The Tasmanian Act remains unchanged as a referral statute. If the Commonwealth made amendments that Tasmania found unacceptable, the State could terminate the amendment reference, but that would not require amending this Act - the Governor’s proclamation power is already there. Thus, the Act is likely to remain substantively intact unless the State decides to repeal or replace it.

The source does not mention any litigation. There is no recorded case in the text. Given that the Act is a procedural referral statute, challenges to its validity are unlikely. The High Court has considered the validity of similar referral acts in other contexts (e.g., the War Crimes Act referral) but not specifically this Act. The Act’s definition of “substantially in the terms” in section 4(1)(a) could be litigated if the Commonwealth enacted a Code that deviates significantly from the tabled text. A party could argue that the Commonwealth law is not “substantially” in the terms of the tabled text and thus not within the referral, rendering it invalid. No such case has been reported. The termination mechanism in section 5 has not been judicially tested, though the power is clear. The interaction between sections 4(4) and the referral limits could be disputed: whether a Commonwealth amendment that relies on both the referral and another head of power is valid. Again, no case exists in the source. Practical litigation on credit matters in Tasmania occurs under the Commonwealth Act, not this Act. The evidence provision (s 7) may have been used in proceedings but not in a reported case that interprets it. Overall, the Act has a negligible litigation history.

Several features of the Act can trap the unwary. First, the definition of “referred credit matter” is not self-contained; it incorporates the expressions from the initial National Credit Code, which itself defines credit and consumer leases in detail. That Code is not reproduced in this Act, so practitioners must cross-reference the 2009 Bill to understand the scope. If the Commonwealth later amends the Code to expand the definition of credit (e.g., to include buy-now-pay-later arrangements that were not contemplated in 2009), the amendment reference would allow that expansion only if it is an “express amendment” of the Code. But if the expansion goes beyond what the initial National Credit Code would have covered - that is, if the expanded definition is not “relating to credit” as contemplated - it might fall outside the referred credit matter definition. This creates uncertainty. Second, the amendment reference covers only “express amendments” of the National Credit legislation. The Commonwealth may attempt to affect the Code through non-textual means, such as regulations that effectively change the Code’s operation without amending its text. Section 4(4)(b) acknowledges that the Code may be affected otherwise than by express amendment, but only if the Commonwealth has power to do so apart from the reference. If the Commonwealth lacks that power, those non-textual changes would not apply in Tasmania. Third, the termination provisions allow the Governor to fix a day for termination. However, the Act does not require the Governor to give any notice to the Commonwealth or to the Tasmanian Parliament before doing so. A sudden termination could create chaos for businesses operating on the assumption that Commonwealth law applies. The revocation power (s 5(2)) can mitigate that, but only if exercised before the fixed day. Fourth, section 6 deals with the case where the amendment reference terminates before the initial reference. In that scenario, the National Credit legislation as in operation immediately before termination continues to apply, including as subsequently amended or affected by laws made under the amendment reference before termination (s 6(1)(b)(i)). This means that even after the amendment reference ends, the Commonwealth could commence an amendment that was enacted before termination but comes into operation after termination. That could be a trap: an amendment passed before termination but with a delayed commencement will still apply in Tasmania. Fifth, the evidence certificate under section 7 is admissible as evidence of the tabled text, but it is not conclusive proof - other evidence may rebut it (s 7(2)). A party seeking to challenge the accuracy of the tabled text might need to locate the original Bills as tabled, which may not be readily accessible. Finally, the Act’s administration assignment to the Minister for Corrections and Consumer Protection and the Department of Justice (s 8) is only until a formal order under the Administrative Arrangements Act is made. If that order is never made, the assignment remains. Practitioners seeking to confirm which agency handles referral matters should check current administrative arrangements rather than rely solely on this section.

Compliance with the Credit (Commonwealth Powers) Act itself is straightforward because the Act imposes no substantive obligations on private entities. The duty is on the State to maintain the reference and on the Governor to follow proclamation procedures for termination. For practical compliance with the consumer credit regime, credit providers, lessors, and intermediaries in Tasmania must comply with the National Consumer Credit Protection Act 2009 (Cth) as amended from time to time, which the referral enables. That means obtaining an Australian credit licence from ASIC unless an exemption applies, complying with responsible lending obligations (including making reasonable inquiries about a consumer’s financial situation), providing prescribed disclosure documents (credit guides, quotes, contracts), and adhering to the National Credit Code (Schedule 1 to the Commonwealth Act). The fact that the Tasmanian referral is in place means that state-based credit laws are inoperative, so businesses do not need to comply with any separate Tasmanian credit legislation. However, they must ensure their activities fall within the scope of the referred credit matter; if they engage in credit that is not consumer credit (e.g., business loans above certain thresholds), it may not be regulated by the Commonwealth regime, and state laws could still apply. Therefore, businesses should conduct a characterisation analysis: is the credit provided to a natural person for personal, domestic or household purposes? If yes, the Commonwealth regime applies. For consumer leases, determine if the lessee is a natural person and the lease is for a term of more than four months (or otherwise covered by Part 11 of the Code). To comply with the Act as a state entity, the Governor and Minister should ensure any termination proclamation is gazetted and, if revoked, that the revocation occurs before the fixed day. The Clerk of the House of Assembly should retain certified copies of the tabled text for evidentiary purposes. For legal practitioners advising on constitutional matters, the key compliance point is to verify that any Commonwealth amendment to the National Credit legislation that purports to apply in Tasmania is either an express amendment (within the amendment reference) or supported by another constitutional power. If neither, the amendment may be invalid in Tasmania. The Act does not require any reporting or filing. There is no application form. The Act is self-executing upon commencement. The main practical step is to ensure that all affected parties are aware that the referral is in force and that Commonwealth credit law applies in Tasmania.