159Guide to this Part

159  Guide to this Part This Part has rules that apply to a person who is authorised to collect payments under a credit contract or consumer lease from a debtor or lessee. These rules are aimed at better informing consumers. Division 2 requires the person to give the person’s credit guide to the consumer. The credit guide has information about the person. Division 2—Credit guide of debt collectors 160  Credit guide of debt collectors  (1) A person who is a licensee or credit representative must, as soon as practicable after it becomes authorised by a credit provider to collect, on the credit provider’s behalf, repayments made by a debtor under a credit contract, give the debtor the person’s credit guide in accordance with subsection (3).  (2) A person who is a licensee or credit representative must, as soon as practicable after it becomes authorised by a lessor to collect, on the lessor’s behalf, payments made by a lessee under a consumer lease, give the lessee the person’s credit guide in accordance with subsection (3).  (3) The person’s credit guide must:  (c) specify the person’s name and contact details; and  (d) if the person is a licensee—specify the person’s Australian credit licence number; and  (e) if the person is a credit representative and has been allocated a credit representative number—specify the person’s credit representative number; and  (f) give information about the person’s procedure for resolving disputes with a consumer, including contact details for a consumer to access:  (i) if the person is a licensee—the person’s internal dispute resolution procedure; and  (ii) in all cases—the AFCA scheme; and  (4) The regulations may prescribe information that need not be included in the credit guide, despite subsection (3).  (5) The person must give the consumer the person’s credit guide in the manner (if any) prescribed by the regulations. Part 3‑6A—Miscellaneous rules 160A  Guide to this Part This Part has a number of miscellaneous rules that require responsible lending conduct when engaging in credit activities or particular types of credit activities. Some of these rules apply to a person even if the person is not required to be licensed. Division 2 prohibits licensees from making particular representations when providing a credit service to a consumer. Division 2A restricts the use and disclosure of certain documents and information. Division 3 prohibits a person (whether licensed or not) from giving false or misleading information in the course of engaging in a credit activity. Division 4 may require a credit provider or lessor (whether licensed or not) to give notice when, and in some cases before, giving an employer of a debtor or lessee an authorisation by the debtor or lessee to make deductions from amounts payable by the employer to the debtor or lessee. Division 5 provides that ASIC may determine periods for the purpose of determining the unsuitability of credit card contracts. Division 6 prohibits licensees that carry on a business of providing credit under small amount credit contracts from making certain kinds of referrals (called proscribed referrals) in certain circumstances. Division 2—Representations 160B  “Independent”, “impartial” or “unbiased” etc.  (1) A licensee must not, in providing or offering to provide a credit service to a consumer, use any of the following terms (either alone or in combination with other words or letters) in a representation to the consumer about the licensee, the service or the licensee’s actions in providing the service:  (a) the word “independent”;  (b) the word “impartial”;  (c) the word “unbiased”;  (d) another term (whether or not in English) that is of similar import to a word mentioned in paragraph (a), (b) or (c).  (2) For the purposes of subsection (1), it is a defence if:  (a) the licensee does not receive any of the following:  (i) indirect remuneration (apart from indirect remuneration that is rebated in full to the licensee’s clients);  (ii) other gifts or benefits from a credit provider or a lessor that may reasonably be expected to influence the licensee; and  (b) in providing a credit service, the licensee operates free from direct or indirect restrictions relating to the credit contracts and consumer leases to which the service relates (except restrictions imposed on the licensee by this Act or by an Australian credit licence); and  (c) in providing a credit service, the licensee operates without any conflicts of interest that might:  (i) arise from the licensee’s associations or relationships with credit providers and lessors; and  (ii) reasonably be expected to influence the licensee in providing the service; and  (d) neither of the following persons receives any indirect remuneration, gift, or benefit, covered by paragraph (a):  (i) the licensee’s employer (if any);  (ii) any other person prescribed (whether by reference to a class of person or otherwise) by the regulations.  (3) For the purposes of subsection (1), it is a defence if the representation uses any of the terms in the negative (for example, a representation that the licensee is not independent). 160C  “Financial counsellor” etc.  (1) A licensee must not, in providing or offering to provide a credit service to a consumer, use any of the following terms (either alone or in combination with other words or letters) in a representation to the consumer about the licensee, the service or the licensee’s actions in providing the service:  (a) the phrase “financial counsellor”;  (b) the phrase “financial counselling”;  (c) another term (whether or not in English) that:  (i) is of similar import to a phrase mentioned in paragraph (a) or (b); and  (ii) is prescribed by the regulations.  (2) For the purposes of subsection (1), it is a defence if regulations made for the purposes of paragraph 110(1)(a) exempt the licensee from section 29 in relation to a credit activity because the licensee engages in the activity as part of a financial counselling service.  (3) For the purposes of subsection (1), it is a defence if:  (a) the licensee is providing, or offering to provide, the credit service on behalf of another person (the principal); and  (b) the licensee is a representative of the principal; and  (c) regulations made for the purposes of paragraph 110(1)(a) exempt the principal from section 29 in relation to a credit activity because the principal engages in the activity as part of a financial counselling service; and  (d) the licensee’s actions in providing or offering to provide the credit service are within the authority of the principal.  (4) For the purposes of subsection (1), it is a defence if the representation uses any of the terms in the negative (for example, a representation that the licensee is not a financial counsellor). Division 2A—Use or disclosure of certain documents and information 160CA  Application of this Division  (1) This Division applies to a person who:  (a) is or was a licensee who has received or obtained a document (a constrained document) prescribed by the regulations, or information (constrained information) prescribed by the regulations, in connection with:  (i) a proposed small amount credit contract; or  (ii) a small amount credit contract; or  (iii) a proposed consumer lease for household goods; or  (iv) a consumer lease for household goods; or  (b) is or was a licensee who has obtained information (also constrained information) as required under subsection 117(1A), 130(1A), 140(1A) or 153(1A) for the purposes of verifying a consumer’s financial situation; or  (c) has received or obtained a constrained document, or constrained information, from a person described in paragraph (a) or (b) of this subsection.  (2) However, this Division does not apply to a person in relation to:  (c) constrained information; that is about the financial affairs of the person (either alone or with others). 160CB  Prohibition on use or disclosure of certain documents and information  (1) A person must not use or disclose:  (c) constrained information.  (a) the person uses or discloses a document or information; and  (b) any of the following apply:  (i) the document is a constrained document;  (ii) the information is contained in a constrained document;  (iii) the information is constrained information.  (3) A person commits an offence if the person uses or discloses:  (c) constrained information. Criminal penalty: 10 penalty units.  (5) For the purposes of subsection (1), (2) or (3) it is a defence if the use or disclosure by the person is:  (a) a disclosure to another person (the recipient) of:  (i) a constrained document; or  (ii) information contained in a constrained document; or  (iii) constrained information;   that is about the financial affairs of the recipient (either alone or with others); or  (b) necessary for the person to comply with the person’s obligations under this Act; or  (c) required or authorised by or under a law of the Commonwealth, or of a State or Territory, or a court or tribunal order; or  (d) for the purposes of considering a hardship notice; or  (e) for the purposes of assisting ASIC to perform its functions or exercise its powers; or  (f) for the purposes of allowing the operator of the AFCA scheme to perform its functions or exercise its powers. Note: For the purposes of subsection (2) or (3), a defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code). Division 3—Giving misleading information