(ca) a natural person who is not a member of the AFCA scheme to collect, on the licensee’s behalf, repayments made by a debtor under a low cost credit contract; or
(d) a natural person who is banned from engaging in a credit activity under a law of a State or Territory; or
(e) a natural person who has been convicted, within the last 10 years, of serious fraud; or
(f) a natural person against whom a prescribed State or Territory order is in force; or
(g) a natural person in relation to the authorisation of whom the licensee has not given its written consent in accordance with subsection (4).
(7) To avoid doubt, an authorisation under subsection (1) is taken, for the purposes of sections 66 to 72, to be given by the body corporate, not the licensee.
66 Credit representative of 2 or more licensees
(1) One person can be the credit representative of 2 or more licensees, but only if:
(a) each of those licensees has consented to the person also being the credit representative of each of the other licensees; or
(b) each of the licensees is a related body corporate of each of the other licensees.
(2) An authorisation:
(a) is of no effect if it contravenes subsection (1) when it is given; and
(b) ceases to have effect if and when it starts to contravene subsection (1) after it is given.
67 A person cannot be a credit representative in relation to credit activities authorised by a person’s licence
(1) A person must not authorise another person to engage in a credit activity as a credit representative under subsection 64(1) or 65(1) if the other person holds a licence authorising the person to engage in the credit activity.
(2) An authorisation:
(a) is of no effect if it contravenes subsection (1) when it is given; and
(b) ceases to have effect if and when it starts to contravene subsection (1) after it is given.
68 Variation and revocation of authorisations and sub‑authorisations
Variation and revocation of authorisations
(1) An authorisation under subsection 64(1) may be varied or revoked at any time by the licensee giving written notice to the credit representative.
Variation and revocation of sub‑authorisations
(2) An authorisation under subsection 65(1) may be varied or revoked at any time by:
(a) the licensee in relation to whom the authorisation was given; or
(b) the body corporate that gave the authorisation;
giving written notice to the credit representative.
(3) If a person varies or revokes an authorisation under subsection (2), that person must give the other person who could have varied or revoked the authorisation written notice of the variation or revocation.
69 Obligation not to give authorisation that has no effect
Requirement not to give authorisation
(1) A person must not purport to authorise a credit representative under subsection 64(1) or 65(1) if, at the time the person first purports to give the authorisation, it is of no effect, to any extent, under this Division.
Civil penalty: 5,000 penalty units.
Offence
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 2 years imprisonment.
70 Obligation to vary or revoke authorisation that ceases to have effect
Requirement to vary or revoke authorisation
(1) If a person:
(a) has authorised a credit representative under subsection 64(1) or 65(1); and
(b) becomes aware of a matter because of which the authorisation of the credit representative has ceased to have effect under this Division;
the person must, as soon as practicable:
(c) revoke the authorisation; or
(d) vary the authorisation so that it is no longer, to any extent, of no effect under this Division.
Civil penalty: 5,000 penalty units.
Offence
(2) A person commits an offence if:
(a) the person is required to vary or revoke an authorisation under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes subsection (1).
Criminal penalty: 2 years imprisonment.
71 Obligation to notify ASIC etc. about credit representatives
Requirement to notify ASIC when credit representative authorised
(1) If a person authorises a credit representative under subsection 64(1) or 65(1), the person must, within 15 business days of the authorisation, lodge with ASIC a written notice in accordance with subsection (3).
Civil penalty: 5,000 penalty units.
Requirement to notify licensee of sub‑authorisation
(2) If:
(a) a person authorises a natural person as a credit representative of a licensee under subsection 65(1) (which deals with sub‑authorisations); and
(b) the consent of the licensee to the authorisation was given in relation to a specified class of natural persons;
then the person must, within 15 business days of the authorisation, give the licensee written notice of the authorisation in accordance with subsection (3).
Civil penalty: 5,000 penalty units.
Details to be included in notice
(3) The notice must include the following details:
(a) the name and business address of the credit representative;
(b) details of the authorisation, including the date on which it was made and what the credit representative is authorised to do on behalf of the licensee;
(c) details of the external dispute resolution scheme of which the credit representative is a member;
(d) details of each other licensee on behalf of whom the credit representative is a credit representative.
Requirement to notify ASIC of change in details etc.
(4) If:
(a) a person authorises a credit representative under subsection 64(1) or 65(1); and
(b) either:
(i) any of the details that are referred to in subsection (3) in relation to the credit representative changes; or
(ii) the person revokes the authorisation;
then the person must, within 10 business days of the change or revocation, lodge with ASIC a written notice of the change or revocation.
Civil penalty: 5,000 penalty units.
(5) A notice given under subsection (1), (2) or (4) must be in the approved form.
Exceptions—sub‑authorisations relating to low cost credit contracts
(5A) Subsections (1) and (4) do not apply to an authorisation under subsection 65(1) (which deals with sub‑authorisations) that authorises a person to engage in credit activities in relation to a low cost credit contract.
Strict liability offence
(6) A person commits an offence if:
(a) the person is subject to a requirement to give a notice under subsection (1), (2) or (4); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 60 penalty units.
(7) Subsection (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
72 Credit representative numbers
(1) Within a reasonable period after receiving a notice under subsection 71(1) of the authorisation of a credit representative, ASIC must allocate the credit representative a unique credit representative number.
(2) ASIC must give written notice of the credit representative number to:
(a) the credit representative; and
(b) the person who authorised the credit representative.
(3) This section does not apply in relation to a credit representative that has already been allocated a credit representative number.
Division 3—Information about representatives
73 ASIC may give licensee information about representatives
ASIC may give licensee information about representatives
(1) If ASIC considers it appropriate to do so, it may give information to a licensee about a person whom ASIC believes is, or will be, a representative of the licensee. However, ASIC may only do so if it believes, on reasonable grounds, that the information is true.
Requirements about use of information
(2) A licensee to whom information is given under subsection (1) may make use of, make a record of, or give to another person, the information for a purpose connected with:
(a) the licensee making a decision about what action (if any) to take in relation to the representative, as a consequence of receiving the information; or
(b) the licensee taking action pursuant to such a decision.
(3) A licensee to whom information is given under subsection (1) must not make use of, make a record of, or give to another person, the information other than as permitted by subsection (2).
Civil penalty: 5,000 penalty units.
(4) A person to whom information has been given for a purpose or purposes under subsection (2) or this subsection may make use of, make a record of, or give to another person, that information for that purpose or any of those purposes.
(5) A person to whom information has been given for a purpose or purposes under subsection (2) or (4) must not make use of, make a record of, or give to another person, the information other than as permitted by subsection (4).
Civil penalty: 5,000 penalty units.
Offence
(6) A person commits an offence if:
(a) the person is subject to a requirement under subsection (3) or (5); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 1 year imprisonment.
Qualified privilege
(7) A person has qualified privilege in relation to an act done by the person under subsection (2) or (4).
Use of information obtained under this section in court
(8) A person to whom information is given in accordance with this section must not give any of the information to a court, or produce in a court a document that sets out some or all of the information, except:
(a) for a purpose connected with:
(i) a licensee making a decision about what action (if any) to take in relation to the representative, as a consequence of receiving some or all of the information; or
(ii) a licensee taking action pursuant to that decision; or
(iii) proving in proceedings in that court that particular action taken by a licensee in relation to the representative was taken pursuant to that decision; or
(b) in proceedings in that court, in so far as the proceedings relate to an alleged contravention of this section; or
(c) in proceedings about giving to a court false information some, at least, of which was the information given under this section.
(9) For the purposes of subsection (8), a licensee takes action in relation to a representative if the licensee:
(a) takes action by way of making, terminating or varying the terms and conditions of an agreement; or
(b) otherwise takes action in relation to an agreement;
to the extent that the agreement relates to the representative acting on behalf of the licensee.
(10) Subsection (8) also has the effect it would have if:
(a) a reference in it to a court were a reference to a court of a country outside Australia; and
(b) paragraph (8)(b) were omitted.
Division 4—Liability of licensees for representatives
74 Application of this Division
This Division applies to any conduct of a representative of a licensee:
(a) that relates to a credit activity; and
(b) on which a third person (the client) could reasonably be expected to rely; and
(c) on which the client in fact relied in good faith.
75 Responsibility if representative of only one licensee
If the representative is the representative of only one licensee, the licensee is responsible, as between the licensee and the client, for the conduct of the representative, whether or not the representative’s conduct is within the authority of the licensee.
76 Representatives of multiple licensees
When this section applies
(1) This section applies if the representative is the representative of more than one licensee.
Conduct covered by only one authority
(2) If:
(a) the representative is the representative of one of the licensees only in relation to a particular class of credit activity; and
(b) the conduct relates to that class of credit activity;
that licensee is responsible for the conduct, as between that licensee and the client, whether or not the conduct is within the authority of the licensee.
Conduct covered by multiple authorities
(3) If:
(a) the representative is the representative of more than one of the licensees in relation to a particular class of credit activity; and
(b) the conduct relates to that class of credit activity; and
(c) the conduct is within the authority of:
(i) only one of those licensees (the authorising licensee); or
(ii) 2 or more of those licensees (the authorising licensees);
then:
(d) if subparagraph (c)(i) applies—the authorising licensee is responsible for the conduct, as between that licensee and the client; or
(e) if subparagraph (c)(ii) applies—the authorising licensees are jointly and severally responsible for the conduct, as between themselves and the client.
All other cases
(4) In any other case, all of the licensees are jointly and severally responsible for the conduct, as between themselves and the client, whether or not the representative’s conduct is within the authority of any of them.
77 Responsibility extends to loss or damage suffered by client
The responsibility of a licensee under this Division extends so as to make the licensee liable to the client in relation to any loss or damage suffered by the client as a result of the representative’s conduct.
78 Effect of this Division
(1) If a licensee is responsible for the conduct of its representative under this Division, the client has the same remedies against the licensee that the client has against the representative.
(2) The licensee and the representative (along with any other licensees that are also responsible) are all jointly and severally liable to the client in relation to those remedies.
(3) However, nothing in this Division imposes:
(a) any criminal responsibility; or
(b) any civil liability under a provision of this Act apart from this Division;
on a licensee that would not otherwise be imposed on the licensee.
(4) This Division does not relieve a representative of a licensee of any liability that the representative has to the client or the licensee.
(5) An agreement has no effect in so far as it purports to alter or restrict the operation of section 75, 76 or 77.
(6) However, subsection (5) does not apply to the extent that the agreement:
(a) provides for a representative of a licensee to indemnify the licensee for a liability of the licensee in relation to the representative; or
(b) provides for a licensee, for whom a representative acts, to indemnify another licensee for a liability in relation to the representative.
(7) A licensee must not make, or offer to make, an agreement that has, or would have, no effect under subsection (5).
Part 2‑4—Banning or disqualification of persons from engaging in credit activities
Division 1—Introduction
79 Guide to this Part
This Part is about banning or disqualifying persons from:
(a) engaging in credit activities; or
(b) controlling others who engage in credit activities; or
(c) performing some or any functions involved in others engaging in credit activities.
The bans are orders made by ASIC under Division 2.
The disqualifications are orders made by the court under Division 3.
Division 2—Banning orders
80 ASIC’s power to make a banning order
Making a banning order
(1) ASIC may, in writing, make one or more orders (banning orders) against a person:
(a) if ASIC suspends or cancels a licence of the person; or
(b) if the person becomes insolvent; or
(c) for a natural person—if the person is convicted of fraud; or
(d) if the person has:
(i) contravened any credit legislation; or
(ii) been involved in a contravention of a provision of any credit legislation by another person; or
(e) if ASIC has reason to believe that the person is likely to:
(i) contravene any credit legislation; or
(ii) be involved in a contravention of a provision of any credit legislation by another person; or
(f) if ASIC has reason to believe that the person is not a fit and proper person to:
(i) engage in one or more credit activities; or
(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001) of another person who engages in credit activities; or
(iii) control another person who engages in credit activities; or
(fa) if ASIC has reason to believe that the person is not adequately trained, or is not competent, to:
(i) engage in one or more credit activities; or
(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001) of another person who engages in credit activities; or
(iii) control another person who engages in credit activities; or
(fb) if the person has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA (within the meaning of the Corporations Act 2001) relating to a complaint that relates to:
(i) credit activities; or
(ii) a financial services business (within the meaning of the Corporations Act 2001); or
(fba) if all of the following apply:
(i) an individual who holds a licence, a partner in a partnership, a body corporate or a trustee of a trust is required to pay an amount in accordance with a relevant AFCA determination (within the meaning of the Corporations Act 2001);
(ii) the CSLR operator (within the meaning of that Act) has paid, under section 1063 of that Act, an amount of compensation for the relevant AFCA determination;
(iii) at the time the payment is made by the CSLR operator, the person is the individual licensee, a partner in the partnership, an officer (within the meaning of that Act) of the body corporate or the trustee of the trust; or
(fc) if subsection (3) applies to the person in relation to 2 or more corporations; or
(g) if a prescribed State or Territory order is in force against the person; or
(h) in any other circumstances prescribed by the regulations.
(1A) Subsection (1) has effect subject to subsection (4).