157Guide to this Part

157  Guide to this Part This Part has rules that apply to credit representatives when they act on behalf of a licensee under Part 3‑1, 3‑2, 3‑3 or 3‑4. These rules are aimed at better informing consumers. Division 2 requires a credit representative to give its credit guide to a consumer. The credit guide has information about the credit representative. Division 2—Credit guide of credit representatives 158  Credit guide of credit representatives  (1) If a credit representative of a licensee gives a consumer the licensee’s credit guide when acting on behalf of the licensee under Part 3‑1, 3‑2, 3‑3 or 3‑4, the credit representative must at the same time give the consumer the credit representative’s credit guide in accordance with subsection (2). Exceptions—credit activity relating to low cost credit contracts  (1A) Subsection (1) does not apply if the credit representative gives the consumer the licensee’s credit guide:  (a) for the purpose of satisfying subsection 113(1) in connection with the provision of credit assistance to the consumer in relation a low cost credit contract; or  (b) for the purpose of satisfying subsection 126(1) in connection with entry into a low cost credit contract with the consumer; or  (c) for the purpose of satisfying subsection 127(1) in connection with the assignment to the licensee of rights or obligations of a credit provider under a low cost credit contract. Form and content of credit guide  (2) The credit representative’s credit guide must:  (c) specify the credit representative’s name and contact details; and  (d) specify the credit representative’s credit representative number; and  (i) any fees that are payable by a consumer to the credit representative for acting as a credit representative; and  (ii) any charges that are payable by a consumer to the credit representative for matters associated with acting as a credit representative; and  (i) if there are 6 or fewer licensees for whom the credit representative is a credit representative—the names of those licensees; and  (ii) if there are more than 6 licensees for whom the credit representative is a credit representative—the names of the 6 licensees for whom the credit representative reasonably believes it conducts the most business; and  (iii) the credit activities the credit representative is authorised to engage in on behalf of the licensees referred to in subparagraph (i) or (ii); and  (i) any indirect remuneration the credit representative is likely to receive, directly or indirectly, from those licensees; and  (h) give information about the credit representative’s procedure for resolving disputes with a consumer, including contact details for a consumer to access the AFCA scheme; and  (i) comply with any other requirements prescribed by the regulations.  (4) The credit representative must give the consumer the credit representative’s credit guide in the manner (if any) prescribed by the regulations. Part 3‑5A—Mortgage brokers and mortgage intermediaries Subdivision A—Guide to this Part 158K  Guide to this Part This Part imposes obligations on mortgage brokers and mortgage intermediaries. Mortgage brokers must act in the best interests of consumers when providing credit assistance in relation to credit contracts. Where there is a conflict of interest, mortgage brokers must give priority to consumers in providing credit assistance in relation to credit contracts. Mortgage brokers and mortgage intermediaries must not accept conflicted remuneration. Employers, credit providers and mortgage intermediaries must not give conflicted remuneration to mortgage brokers or mortgage intermediaries. The circumstances in which these bans on conflicted remuneration apply are to be set out in the regulations. Subdivision B—Interpretation 158KA  Doing acts   A reference in this Part to doing an act or thing includes a reference to causing or authorising the act or thing to be done. 158KB  Circumstances in which a secondary representative is taken to be acting within actual or apparent authority  (1) This section applies if a person (the secondary representative) is authorised as a credit representative of a licensee by a credit representative that is a body corporate (the primary representative).  (2) For the purposes of this Part, the secondary representative is taken to be acting within the scope of the secondary representative’s actual or apparent authority from the licensee if the secondary representative is acting within the actual or apparent scope of the authority given by the primary representative to engage in specified credit activities on behalf of the licensee. 158KC  Obligations under this Part in addition to other obligations   The obligations imposed on a person under this Part are in addition to any other obligations to which the person is subject under this Act or any other law. Division 2—Best interests obligations Subdivision A—Licensees that provide credit assistance in relation to credit contracts 158L  Application of this Subdivision  (1) This Subdivision applies in relation to credit assistance provided by a licensee to a consumer in relation to a credit contract if the licensee is a mortgage broker.  (2) However, this Subdivision does not apply in relation to credit assistance provided to a consumer in relation to a credit contract by a credit representative acting within the scope of the credit representative’s actual or apparent authority from the licensee. Note 1: A credit representative in these circumstances is covered by Subdivision B of this Division. Note 2: The conduct of any other representative, acting within the scope of actual or apparent authority from the licensee, is taken to have been engaged in also by the licensee: see sections 324 and 325. 158LA  Licensee must act in the best interests of the consumer   The licensee must act in the best interests of the consumer in relation to the credit assistance. 158LB  Conflict between consumer’s interests and those of the licensee etc.   If the licensee knows, or reasonably ought to know, that there is a conflict between the interests of the consumer and the interests of:  (a) the licensee; or  (b) an associate of the licensee; or  (c) a representative of the licensee; or  (d) an associate of a representative of the licensee; the licensee must give priority to the consumer’s interests when providing the credit assistance. Subdivision B—Credit representatives that provide credit assistance in relation to credit contracts 158LD  Application of this Subdivision   This Subdivision applies in relation to credit assistance provided to a consumer in relation to a credit contract by a credit representative acting within the scope of the credit representative’s actual or apparent authority from a licensee, if either the credit representative or the licensee is a mortgage broker. 158LE  Credit representative must act in the best interests of the consumer  (1) The credit representative must act in the best interests of the consumer in relation to the credit assistance. 158LF  Conflict between consumer’s interests and those of the credit representative etc.  (1) If the credit representative knows, or reasonably ought to know, that there is a conflict between the interests of the consumer and the interests of:  (a) the licensee; or  (b) an associate of the licensee; or  (c) the credit representative; or  (d) an associate of the credit representative; or  (e) another representative of the licensee; or  (f) an associate of another representative of the licensee; the credit representative must give priority to the consumer’s interests when providing the credit assistance. Division 4—Conflicted remuneration Subdivision A—What is conflicted remuneration? 158N  Conflicted remuneration   Conflicted remuneration means:  (a) any benefit, whether monetary or non‑monetary, that:  (i) is given to a licensee, or a representative of a licensee, who provides credit assistance to consumers; and  (ii) because of the nature of the benefit or the circumstances in which it is given, could reasonably be expected to influence the credit assistance provided to consumers; or  (b) any benefit, whether monetary or non‑monetary, that:  (i) is given to a licensee, or a representative of a licensee, who acts as an intermediary; and  (ii) because of the nature of the benefit or the circumstances in which it is given, could reasonably be expected to influence whether the licensee or representative acts as an intermediary, or how the licensee or representative acts as an intermediary. 158NA  Regulations may further define conflicted remuneration   The regulations may prescribe:  (a) circumstances, in addition to those set out in section 158N, in which a benefit given to a licensee or a representative of a licensee is conflicted remuneration; and  (b) circumstances in which a benefit given to a licensee or a representative of a licensee is not conflicted remuneration. Subdivision B—Ban on accepting conflicted remuneration 158NB  Licensee must not accept conflicted remuneration   A licensee must not accept conflicted remuneration in circumstances prescribed by the regulations if:  (a) the licensee is a mortgage broker; or  (b) the licensee is a mortgage intermediary. 158NC  Credit representative must not accept conflicted remuneration  (1) A credit representative of a licensee must not accept conflicted remuneration in circumstances prescribed by the regulations if the credit representative or the licensee is: Subdivision C—Ban on giving conflicted remuneration 158ND  Employer must not give employees conflicted remuneration  (1) An employer of a licensee must not give the licensee conflicted remuneration in circumstances prescribed by the regulations if the licensee is:  (2) An employer of a representative of a licensee must not give the representative conflicted remuneration in circumstances prescribed by the regulations if the licensee or the representative is: 158NE  Credit provider must not give conflicted remuneration  (1) A credit provider must not give a licensee conflicted remuneration in circumstances prescribed by the regulations if the licensee is:  (2) A credit provider must not give a representative of a licensee conflicted remuneration in circumstances prescribed by the regulations if the licensee or the representative is: 158NF  Mortgage intermediary must not give conflicted remuneration  (1) A mortgage intermediary must not give a licensee conflicted remuneration in circumstances prescribed by the regulations if the licensee is:  (2) A mortgage intermediary must not give a representative of a licensee conflicted remuneration in circumstances prescribed by the regulations if the licensee or the representative is: 158T  Anti‑avoidance   A person must not, either alone or together with one or more other persons, enter into, begin to carry out or carry out a scheme if:  (a) it would be concluded that the person, or any of the persons, who entered into, began to carry out or carried out the scheme or any part of the scheme did so for the sole purpose or for a purpose (that is not incidental) of avoiding the application of any provision of this Part in relation to any person or persons (whether or not a person or persons who entered into, began to carry out or carried out the scheme or any part of the scheme); and  (b) the scheme or the part of the scheme has achieved, or apart from this section, would achieve, that purpose. Part 3‑6—Debt collectors