147Prohibition on suggesting to consumers to remain in unsuitable consumer leases

147  Prohibition on suggesting to consumers to remain in unsuitable consumer leases Prohibition on suggesting to remain in unsuitable lease  (1) A licensee must not provide credit assistance to a consumer by suggesting that the consumer remain in a particular consumer lease with a particular lessor if the lease is unsuitable for the consumer under subsection (2). When the lease is unsuitable  (2) The lease is unsuitable for the consumer if, at that time the licensee provides the credit assistance:  (a) the consumer is, or is likely to be, unable to comply with the consumer’s financial obligations under the lease, or only able to comply with substantial hardship; or  (b) the lease does not meet the consumer’s requirements or objectives; or  (c) if the regulations prescribe circumstances in which a consumer lease is unsuitable—those circumstances apply to the lease.  (3) For the purposes of paragraph (2)(a), it is presumed that, if the consumer could only comply with the consumer’s financial obligations under the lease by selling the consumer’s principal place of residence, the consumer could only comply with those obligations with substantial hardship, unless the contrary is proved. Information to be used to determine if lease is unsuitable  (4) For the purposes of determining under subsection (2) whether the lease is unsuitable, only information that satisfies both of the following paragraphs is to be taken into account:  (a) the information is about the consumer’s financial situation, requirements or objectives, or any other matter prescribed by the regulations under paragraph 140(1)(d) or (e);  (ii) the licensee would have had reason to believe that the information was true if the licensee had made the inquiries or verification under section 140.  (5) The regulations may prescribe particular situations in which a consumer lease is taken not to be unsuitable for a consumer, despite subsection (2).  (7) For the purposes of subsections (1) and (6), it is a defence if:  (a) the licensee suggested that the consumer remain in the consumer lease because the licensee reasonably believed that there was no other consumer lease that was not unsuitable for the consumer; and  (b) the licensee informed the consumer that there is a procedure under sections 177B and 179H of the National Credit Code for consumers in hardship. Note: For the purposes of subsection (6), a defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).  (8) The regulations may prescribe particular inquiries that must be made, or do not need to be made, for the purposes of paragraph (7)(a). Division 7—Special rules for consumer leases for household goods 147A  Licensee who makes representations about credit assistance in relation to consumer leases for household goods must display and give information  (1) If a licensee represents that the licensee provides, or is able to provide, credit assistance to consumers in relation to consumer leases for household goods, the licensee must:  (2) ASIC may, by legislative instrument, determine one or more of the following matters relating to licensees that make representations described in subsection (1):  (3) In making a determination under subsection (2), ASIC must take into account the risks associated with consumer leases for household goods and the alternatives that may be available to consumers. 147B  Written documentation required in relation to the preliminary assessment for a consumer lease for household goods  (1) If, in a preliminary assessment made for the purposes of paragraph 138(1)(c) or (2)(a), the licensee assesses that a consumer lease for household goods is not unsuitable for a consumer, before providing credit assistance to the consumer by:  (b) assisting the consumer to apply for a particular consumer lease with a particular lessor; or  (c) suggesting that the consumer remain in a particular consumer lease with a particular lessor;  (d) the preliminary assessment; and  (e) the inquiries and verification made for the purposes of paragraph 138(1)(d) or (2)(b) in relation to that preliminary assessment.  (2) ASIC may, by legislative instrument, determine the form in which the matters in paragraphs (1)(d) and (e) are to be documented in writing.  (a) consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010); and Part 3‑4—Licensees that are lessors under consumer leases