financial services licensee has the same meaning as in the Corporations Act 2001.
financial year: see subsection 100(6).
function includes a duty.
give:
(a) when used in Chapter 6 (which deals with compliance and enforcement) in relation to a document—has a meaning affected by section 314; and
(b) when used in relation to information, includes:
(i) explaining or stating a matter; and
(ii) identifying a person, matter or thing; and
(iii) disclosing information; and
(iv) answering a question.
government entity has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.
guarantee means a guarantee to which the National Credit Code applies.
hardship notice has the same meaning as in section 204 of the National Credit Code.
head company, of a banking group, means the member of the group covered by paragraph 133CN(1)(a) (about large ADIs).
hearing, when used in Chapter 6 (which deals with compliance and enforcement), means a hearing before ASIC and, in sections 278, 280, 281 and 282 (which are in that Chapter), includes part of such a hearing.
household goods has the same meaning as in section 204 of the National Credit Code.
indirect remuneration means a commission or conflicted remuneration.
individual fine formula means the formula set out in subsection 288C(3).
information system has the same meaning as in the Electronic Transactions Act 1999.
infringement notice means a notice given under section 288J.
initial National Credit Code: see subsection 20(2).
insolvent means:
(a) in the case of a natural person—a person who is an insolvent under administration; or
(b) in the case of a body corporate—a body corporate that is a Chapter 5 body corporate (within the meaning of the Corporations Act 2001); or
(c) in the case of a partnership—a partnership against which a creditor’s petition or a debtor’s petition is presented under Division 2 or 3 of Part IV of the Bankruptcy Act 1966.
investigate, in relation to ASIC, means investigate in the course of performing any of ASIC’s functions or exercising any of ASIC’s powers.
involved in: a person is involved in a contravention of a provision of legislation if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
judgment means a judgment, decree or order, whether final or interlocutory.
Key Facts Sheet:
(a) for a credit card contract—see section 133BB; and
(b) for a standard home loan—see section 133AB.
knowledge, in Division 5 of Part 2‑2: see section 53C.
large ADI means an ADI of a kind determined under subsection (1A).
law of a referring State or a Territory means a law of, or in force in, a referring State or a Territory but does not include a law of the Commonwealth in force in the referring State or the Territory.
law of a State or Territory means a law of, or in force in, a State or Territory but does not include a law of the Commonwealth in force in the State or Territory.
lawyer means a person who is admitted to the legal profession by a federal court or a Supreme Court of a State or Territory.
lessee means the lessee under a consumer lease.
lessor has the same meaning as in section 204 of the National Credit Code, and includes a person who is a lessor because of section 10.
licence means an Australian credit licence.
licensee means a person who holds a licence.
licensing anniversary: see subsection 53(7).
linked: for when a credit card is linked to a credit card contract, see subsection 133BA(3).
lodge with ASIC: see section 216.
low cost credit contract has the same meaning as in section 13E of the National Credit Code.
lower court means:
(a) the Federal Circuit and Family Court of Australia (Division 2); or
(b) a court of a State or Territory that is not a superior court.
malice: see subsection 16(2).
mandatory code of conduct means a code of conduct that is declared by regulations under section 238F to be mandatory.
mandatory credit information: see section 133CP.
matter includes an act, an omission, a body, a person or a thing.
misleading: see section 13.
mortgage means a mortgage to which the National Credit Code applies.
mortgage broker: see section 15B.
mortgagee means the mortgagee under a mortgage, and includes a person who is a mortgagee because of section 10.
mortgage intermediary: see section 15C.
mortgagor means the mortgagor under a mortgage.
National Credit Code means Schedule 1 to this Act, and includes:
(a) regulations made under section 329 for the purposes of that Schedule; and
(b) instruments made under that Schedule.
officer of the Commonwealth has the same meaning as in paragraph 75(v) of the Constitution.
official employment means:
(a) appointment or employment by the Commonwealth, or the performance of services for the Commonwealth; or
(b) the exercise of powers or performance of functions under a delegation by the Registrar.
Part 3‑2CA body: see section 133CZF.
payment period, in relation to an infringement notice, has the meaning given by section 288M.
pecuniary penalty order means an order made under section 167.
penalty unit has the same meaning as in section 4AA of the Crimes Act 1914.
person has a meaning affected by section 14 (which deals with partnerships) and section 15 (which deals with multiple trustees).
personal information has the same meaning as in the Privacy Act 1988.
power includes an authority.
premises includes:
(a) a structure, building, aircraft, vehicle or vessel; and
(b) any land or place (whether enclosed or built in or not); and
(c) a part of a structure, building, aircraft, vehicle, vessel or of such a place.
prescribed State or Territory order means an order under a law of a State or Territory, being an order of a kind prescribed by the regulations.
proceedings:
(a) when used in Chapter 6 (which deals with compliance and enforcement)—has the same meaning as the definition of proceeding in subsection 5(1) of the ASIC Act; and
(b) otherwise—means proceedings, whether criminal or civil, before a court.
proscribed referral: see subsection 160G(2).
protected information means information:
(a) obtained by a person in the course of the person’s official employment; and
(b) disclosed to the person or another person, or obtained by the person or another person:
(i) under, or in relation to, this Act; or
(ii) under another law of the Commonwealth;
in connection with particular functions or powers of the Registrar.
qualified privilege has a meaning affected by section 16.
receiving court: see section 191.
recklessness, in Division 5 of Part 2‑2: see section 53C.
record, when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, means the whole or part of a record made under section 258 of statements made at the examination.
Reference Checking and Information Sharing Protocol means the protocol determined by ASIC under subsection 47(3A).
referred credit matter: see subsection 20(1).
referring State: see section 19.
registered company auditor has the same meaning as in section 9 of the Corporations Act 2001.
Registrar has the meaning given by section 16B.
related body corporate has the same meaning as in section 9 of the Corporations Act 2001.
related criminal justice process decision: see section 188.
relevant criminal law: see subsection 204(5).
relevant superior court, in relation to a lower court, means:
(a) if the lower court is the Federal Circuit and Family Court of Australia (Division 2)—the Federal Court; or
(b) if the lower court is a court of a State or Territory—the Supreme Court of the State or Territory.
relinquishment order means an order made under subsection 167C(1).
repayment date: see subsection 133CD(3).
reportable situation has the meaning given by section 50A.
representative of a person means:
(a) if the person is a licensee:
(i) an employee or director of the licensee; or
(ii) an employee or director of a related body corporate of the licensee; or
(iii) a credit representative of the licensee; or
(iv) any other person acting on behalf of the licensee; or
(b) otherwise:
(i) an employee or director of the person; or
(ii) an employee or director of a related body corporate of the person; or
(iii) any other person acting on behalf of the person.
residential property has the same meaning as in section 204 of the National Credit Code.
reverse mortgage has the same meaning as in section 13A of the National Credit Code.
reverse mortgage information statement means a document relating to reverse mortgages that complies with the regulations.
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise; or
(c) any combination of 2 or more things that are schemes because of paragraph (a) or (b).
secrecy provision has the meaning given by subsection 212N(2).
senior manager has the same meaning as in section 9 of the Corporations Act 2001.
sensitive information has the same meaning as in the Privacy Act 1988.
serious fraud means an offence involving fraud or dishonesty, being an offence:
(a) against a law of the Commonwealth, or of a State or Territory, or any other law; and
(b) punishable by imprisonment for life or for a period, or maximum period, of at least 3 months.
short‑term credit contract: a credit contract is a short‑term credit contract if:
(a) the contract is not a continuing credit contract or a low cost credit contract; and
(b) the credit provider under the contract is not an ADI; and
(c) the credit limit of the contract is $2,000 (or such other amount as is prescribed by the regulations) or less; and
(d) the term of the contract is 15 days or less; and
(e) the contract meets any other requirements prescribed by the regulations.
small amount credit contract: a credit contract is a small amount credit contract if:
(a) the contract is not a continuing credit contract or a low cost credit contract; and
(b) the credit provider under the contract is not an ADI; and
(c) the credit limit of the contract is $2,000 (or such other amount as is prescribed by the regulations) or less; and
(d) the term of the contract is at least 16 days but not longer than 1 year (or such other number of years as is prescribed by the regulations); and
(e) the debtor’s obligations under the contract are not, and will not be, secured; and
(f) the contract meets any other requirements prescribed by the regulations.
standard home loan: see subsection 133AA(1).
State, when used in a geographical sense, includes the coastal sea of the State.
statement, when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination.
state of mind: the state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
State or Territory credit licence means a licence or registration that:
(a) is granted under a law of a State or Territory; and
(b) authorises the licensee or registered person to engage in a credit activity.
strata corporation has the same meaning as in section 204 of the National Credit Code.
subject to an infringement notice, in relation to an offence provision or civil penalty provision, has the meaning given by section 288K.
subscriber, in relation to an approved code of conduct:
(a) means a person or entity that agrees, in a way required by the applicant for the code’s approval, to be bound by the code; and
(b) if a person or entity no longer agrees to be bound by the code—includes the person or entity during the period that the person or entity did agree to be so bound.
superior court means any of the following courts:
(a) the Federal Court;
(b) the Supreme Court of a State or Territory.
supply requirements: see section 133CQ.
taxation law has the same meaning as in the Income Tax Assessment Act 1997.
Territory:
(a) means the following:
(i) the Australian Capital Territory;
(ii) the Jervis Bay Territory;
(iii) the Northern Territory;
(iv) Norfolk Island;
(v) the Territory of Christmas Island;
(vi) the Territory of Cocos (Keeling) Islands; and
(b) when used in a geographical sense—includes the Territory’s coastal sea (if any).
this Act includes instruments made under this Act.
this jurisdiction: see subsections 21(2) and (3).
transfer matter: see section 191.
transferring court: see section 191.
Transitional Act means the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009, and includes instruments made under that Act.
tribunal means:
(a) a tribunal in Australia; or
(b) any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence.
unsolicited communication to a consumer: see subsection 133CF(2).
unsuitability assessment policy has the meaning given by subsection 133BXG(1).
use of a credit card: see subsection 133BA(4).
value of a credit contract, mortgage, guarantee or consumer lease: see section 199.
virtual enquiry technology means any technology that allows a person to appear at all or part of a hearing, examination or other enquiry without being physically present at the hearing, examination or other enquiry.
within the authority: a representative’s conduct is within the authority of a person if:
(a) for a representative who is an employee of the person or of a related body corporate of the person—the conduct is within the scope of the employee’s employment; or
(b) for a representative who is a director of the person or of a related body corporate of the person—the conduct is within the scope of the director’s duties as director; or
(c) for a representative who is a credit representative of the person—the conduct is within the scope of the authorisation of the credit representative under subsection 64(1) or 65(1); or
(d) otherwise—the conduct is within the scope of the authority given by the person.
witness, in relation to a hearing before ASIC, means a person appearing at the hearing to give evidence.
written record, when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, means:
(a) a record of the examination:
(i) that is made in writing; or
(ii) as reduced to writing; or
(b) a part of such a record.
(1A) The Minister may, by legislative instrument, determine the kinds of ADIs that are large ADIs.
(2) In this Act (other than the National Credit Code), a reference to a provision is a reference to a provision of this Act, unless the contrary intention appears.
Division 3—Definitions relating to the meaning of credit activity
6 Meaning of credit activity
(1) The following table sets out when a person engages in a credit activity.
Meaning of credit activity
Item Topic A person engages in a credit activity if:
1 credit contracts (a) the person is a credit provider under a credit contract; or(b) the person carries on a business of providing credit, being credit the provision of which the National Credit Code applies to; or(c) the person performs the obligations, or exercises the rights, of a credit provider in relation to a credit contract or proposed credit contract (whether the person does so as the credit provider or on behalf of the credit provider); or
2 credit service the person provides a credit service; or
3 consumer leases (a) the person is a lessor under a consumer lease; or(b) the person carries on a business of providing consumer leases; or(c) the person performs the obligations, or exercises the rights, of a lessor in relation to a consumer lease or proposed consumer lease (whether the person does so as the lessor or on behalf of the lessor); or
4 mortgages (a) the person is a mortgagee under a mortgage; or(b) the person performs the obligations, or exercises the rights, of a mortgagee in relation to a mortgage or proposed mortgage (whether the person does so as the mortgagee or on behalf of the mortgagee); or
5 guarantees (a) the person is the beneficiary of a guarantee; or(b) the person performs the obligations, or exercises the rights, of another person who is a beneficiary of a guarantee or proposed guarantee, in relation to the guarantee or proposed guarantee (whether the person does so on the person’s own behalf or on behalf of the other person); or
6 prescribed activities the person engages in an activity prescribed by the regulations in relation to credit, being credit the provision of which the National Credit Code applies to, or would apply to if the credit were provided.
(2) A subclass of any of the conduct referred to in the table in subsection (1) is also a credit activity.
Note: For example, ASIC could impose a condition on a licence under subsection 45(6) that provides that a person is authorised to be a credit provider only under particular types of credit contracts (such as credit card contracts).
7 Meaning of credit service
A person provides a credit service if the person:
(a) provides credit assistance to a consumer; or
(b) acts as an intermediary.
8 Meaning of credit assistance
A person provides credit assistance to a consumer if, by dealing directly with the consumer or the consumer’s agent in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person: