(a) suggests that the consumer apply for a particular credit contract with a particular credit provider; or
(b) suggests that the consumer apply for an increase to the credit limit of a particular credit contract with a particular credit provider; or
(c) suggests that the consumer remain in a particular credit contract with a particular credit provider; or
(d) assists the consumer to apply for a particular credit contract with a particular credit provider; or
(e) assists the consumer to apply for an increase to the credit limit of a particular credit contract with a particular credit provider; or
(f) suggests that the consumer apply for a particular consumer lease with a particular lessor; or
(g) suggests that the consumer remain in a particular consumer lease with a particular lessor; or
(h) assists the consumer to apply for a particular consumer lease with a particular lessor.
It does not matter whether the person does so on the person’s own behalf or on behalf of another person.
9 Meaning of acts as an intermediary
A person acts as an intermediary if, 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:
(a) acts as an intermediary (whether directly or indirectly) between a credit provider and a consumer wholly or partly for the purposes of securing a provision of credit for the consumer under a credit contract for the consumer with the credit provider; or
(b) acts as an intermediary (whether directly or indirectly) between a lessor and a consumer wholly or partly for the purposes of securing a consumer lease for the consumer with the lessor.
It does not matter whether the person does so on the person’s own behalf or on behalf of another person.
10 Assignees of credit providers, lessors, mortgagees and beneficiaries of a guarantee
(1) For the purposes of this Act (other than the National Credit Code), a person is a credit provider, lessor, mortgagee or beneficiary of a guarantee whether the person is:
(a) the original credit provider, lessor, mortgagee or beneficiary of a guarantee under a credit contract, consumer lease, mortgage or guarantee; or
(b) a person to whom the rights of a credit provider, lessor, mortgagee or beneficiary of a guarantee under a credit contract, consumer lease, mortgage or guarantee have been assigned or passed by law.
Note: For example, a person who is assigned the rights of a credit provider under a credit contract would engage in a credit activity within the meaning of paragraph (a) of item 1 of the table in subsection 6(1).
(2) For the purposes of paragraph (1)(b), it does not matter whether an assignment or passing by law of rights is the first or a subsequent assignment or passing by law of those rights.
Division 4—Other definitions
12 When a business is carried on in this jurisdiction
(1) Division 3 of Part 1.2 of the Corporations Act 2001 applies for the purposes of working out whether a business is carried on in this jurisdiction.
(2) Without limiting subsection (1), a business is taken to be carried on in this jurisdiction by a person if, in the course of carrying on the business, the person engages in conduct that is:
(a) intended to induce people in this jurisdiction to use the goods or services the person provides; or
(b) is likely to have that effect;
whether or not the conduct is intended, or likely, to have that effect in other places as well.
13 Meaning of misleading
(1) A representation made by a person is misleading if:
(a) the representation relates to a future matter (including the doing of, or refusing to do, any act); and
(b) the person does not have reasonable grounds for making the representation.
(2) Subsection (1) does not limit the circumstances in which a representation may be misleading.
14 Meaning of person—generally includes a partnership
(1) This Act (other than the National Credit Code) applies to a partnership as if the partnership were a person, but it applies with the following changes:
(a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;
(b) any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the partnership is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each partner who:
(i) aided, abetted, counselled or procured the relevant act or omission; or
(ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).
Note: For the purposes of paragraph (b), to determine whether the partnership has contravened this Act, see section 325.
(2) For the purposes of this Act (other than the National Credit Code), a change in the composition of a partnership does not affect the continuity of the partnership.
(3) Subsections (1) and (2) have effect subject to:
(a) an express or implied contrary intention in a provision of this Act (other than the National Credit Code); and
(b) the regulations, which may exclude or modify the effect of those subsections in relation to specified provisions.
15 Meaning of person—generally includes multiple trustees
(1) This section applies in relation to a trust during a period while the trust continues to have:
(a) 2 or more trustees; or
(b) a single trustee who was a trustee of the trust at a time when it had 2 or more trustees.
(2) Subject to subsections (3) and (4), during the period this Act (other than the National Credit Code) applies to the trust as if the trustee or trustees of the trust from time to time during the period were a single person (the notional person) that remained the same for the duration of that period.
Note: So, for example, a licence granted under this Act during the period to the trustees of the trust will continue in force, despite a change in the persons who are the trustees.
(3) If, during the period or any part of the period, the trust has 2 or more trustees, this Act (other than the National Credit Code) applies to the trustees as referred to in subsection (2), but it applies with the following changes:
(a) obligations that would be imposed on the notional person are imposed instead on each trustee, but may be discharged by any of the trustees;
(b) any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the notional person is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each trustee who:
(i) aided, abetted, counselled or procured the relevant act or omission; or
(ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the trustee).
Note: For the purposes of paragraph (b), to determine whether the notional person has contravened this Act, see section 325.
(4) If, during the period or any part of the period, the trust has only one trustee, this Act (other than the National Credit Code) applies to the trustee as referred to in subsection (2), but it applies with the following changes:
(a) obligations that would be imposed on the notional person are imposed instead on that single trustee;
(b) any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the notional person is taken (whether for the purposes of criminal or civil liability) to have been a contravention by that single trustee.
(5) Subsections (2), (3) and (4) have effect subject to:
(a) an express or implied contrary intention in a provision of this Act (other than the National Credit Code); and
(b) the regulations, which may exclude or modify the effect of those subsections in relation to specified provisions.
15A Meaning of associate
(1) If a person is associated with a credit provider for the purposes of the National Credit Code:
(a) the person is an associate of the credit provider; and
(b) the credit provider is an associate of the person.
(2) In any other case, a person is an associate of another person in the circumstances prescribed by the regulations.
15B Meaning of mortgage broker
(1) A licensee is a mortgage broker if:
(a) the licensee carries on a business of providing credit assistance in relation to credit contracts secured by mortgages over residential property; and
(b) the licensee does not perform the obligations, or exercise the rights, of a credit provider in relation to the majority of those credit contracts; and
(c) in carrying on the business, the licensee provides credit assistance in relation to credit contracts offered by more than one credit provider.
(2) A credit representative of a licensee is a mortgage broker if:
(a) the credit representative carries on a business of providing credit assistance in relation to credit contracts secured by mortgages over residential property; and
(b) neither the credit representative nor the licensee performs the obligations, or exercises the rights, of a credit provider in relation to the majority of those credit contracts; and
(c) in carrying on the business, the credit representative provides credit assistance in relation to credit contracts offered by more than one credit provider.
15C Meaning of mortgage intermediary
(1) A licensee is a mortgage intermediary if:
(a) the licensee carries on a business of acting as an intermediary in relation to credit contracts secured by mortgages over residential property; and
(b) the licensee does not perform the obligations, or exercise the rights, of a credit provider in relation to the majority of those credit contracts; and
(c) in carrying on the business, the licensee acts as an intermediary in relation to credit contracts offered by more than one credit provider.
(2) A credit representative of a licensee is a mortgage intermediary if:
(a) the credit representative carries on a business of acting as an intermediary in relation to credit contracts secured by mortgages over residential property; and
(b) neither the credit representative nor the licensee performs the obligations, or exercises the rights, of a credit provider in relation to the majority of those credit contracts; and
(c) in carrying on the business, the credit representative acts as an intermediary in relation to credit contracts offered by more than one credit provider.
16 Qualified privilege
(1) If this Act provides that a person has qualified privilege in relation to an act, matter or thing, then the person:
(a) has qualified privilege in proceedings for defamation; or
(b) is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;
in relation to that act, matter or thing.
(2) Malice includes ill will to the person concerned or any other improper motive.
(3) Neither this section nor a provision of this Act that provides as referred to in subsection (1) limits or affects any right, privilege or immunity that a person has, apart from this section or such a provision, as defendant in proceedings, or an action, for defamation.
16A Meaning of control
(1) Control, of a body corporate, is:
(a) having the capacity to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the body corporate; or
(b) directly or indirectly holding more than one half of the issued share capital of the body corporate (not including any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital, and not including MCIs); or
(c) having the capacity to control the composition of the body corporate’s board or governing body; or
(d) having the capacity to determine the outcome of decisions about the body corporate’s financial and operating policies, taking into account:
(i) the practical influence that can be exerted (rather than the rights that can be enforced); and
(ii) any practice or pattern of behaviour affecting the body corporate’s financial or operating policies (whether or not it involves a breach of an agreement or a breach of trust).
(2) Control, of a person other than a body corporate, is:
(a) having the capacity to control the composition of the person’s board or governing body (if any); or
(b) having the capacity to determine the outcome of decisions about the person’s financial and operating policies, taking into account:
(i) the practical influence that can be exerted (rather than the rights that can be enforced); and
(ii) any practice or pattern of behaviour affecting the person’s financial or operating policies (whether or not it involves a breach of an agreement or a breach of trust).
(3) For the purposes of paragraph (1)(b), MCI has the same meaning as in the Corporations Act 2001, and issued has the same meaning as in Chapter 7 of that Act.
16B Meaning of Registrar
A reference in this Act to the Registrar is a reference to:
(a) if only one Commonwealth body is appointed as Registrar under section 212A—that body; or
(b) if more than one Commonwealth body is appointed under that section:
(i) if the reference relates to one or more particular functions or powers—any Commonwealth body so appointed with any of those particular functions or powers; or
(ii) otherwise—any of the Commonwealth bodies appointed under that section.
Part 1‑3—Application of this Act and the Transitional Act
Division 1—Introduction
17 Guide to this Part
This Part deals with the application of this Act and the Transitional Act.
Division 2 is about the constitutional basis and geographical application of those Acts. It also deals with the application of those Acts to the Crown.
Division 3 deals with the interaction between those Acts and laws of the States and Territories.
Division 2—Constitutional basis and application of this Act and the Transitional Act
18 Constitutional basis for this Act and the Transitional Act
Application in a referring State
(1) The application of this Act and the Transitional Act in the referring States is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and
(b) the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.
Application in a Territory
(2) The application of this Act and the Transitional Act in a Territory is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and
(b) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution.
Despite section 2H of the Acts Interpretation Act 1901, this Act and the Transitional Act as applying in the Territory are laws of the Commonwealth.
Application outside Australia
(3) The operation of this Act and the Transitional Act outside Australia is based on:
(a) the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under section 51 of the Constitution; and
(c) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory.
Application in a non‑referring State
(4) The application of this Act and the Transitional Act in a State that is not a referring State is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and
(b) the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.
19 Meaning of referring State
Meaning of referring State
(1) A State is a referring State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State:
(a) has referred the matters covered by subsections (3) and (4) to the Commonwealth Parliament; or
(b) has:
(i) adopted the relevant version of this Act and the relevant version of the Transitional Act; and
(ii) referred the matter covered by subsection (4) to the Commonwealth Parliament.
(2) A State is a referring State even if the State’s referral law provides that:
(a) the reference to the Commonwealth Parliament of a matter covered by subsection (3) or (4) is to terminate in particular circumstances; or
(b) the adoption of the relevant version of this Act or the relevant version of the Transitional Act is to terminate in particular circumstances; or
(c) the reference to the Commonwealth Parliament of the matter covered by subsection (4) does not include:
(i) the matter of making provision with respect to the imposition or payment of State taxes, duties, charges or other imposts, however described; or
(ii) the matter of making provision with respect to the general system for the recording of estates or interests in land and related information; or
(iii) the matter of providing for the priority of interests in real property; or
(iv) the matter of making a law that excludes or limits the operation of a State law, to the extent that the State law makes provision with respect to the creation, holding, transfer, assignment, disposal or forfeiture of a State statutory right; or
(d) the reference to the Commonwealth Parliament of a matter covered by subsection (3) or (4) has effect only: