(d) another term (whether or not in English) that is of similar import to a word mentioned in paragraph (a), (b) or (c).
Civil penalty: 5,000 penalty units.
Defences
(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.
Civil penalty: 5,000 penalty units.
Defences
(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:
(a) a constrained document; or
(b) information contained in a constrained document; or
(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
Requirement
(1) A person must not use or disclose:
(a) a constrained document; or
(b) information contained in a constrained document; or
(c) constrained information.
Civil penalty: 5,000 penalty units.
Offence
(2) A person commits an offence if:
(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.
Criminal penalty: 100 penalty units.
Strict liability offence
(3) A person commits an offence if the person uses or discloses:
(a) a constrained document; or
(b) information contained in a constrained document; or
(c) constrained information.
Criminal penalty: 10 penalty units.
(4) Subsection (3) is an offence of strict liability.
Defence
(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
160D Prohibition on giving misleading information etc.
Prohibition on giving misleading information etc.
(1) A person (the giver) must not, in the course of engaging in a credit activity, give information or a document to another person if the giver knows, or is reckless as to whether, the information or document is:
(a) false in a material particular; or
(b) materially misleading.
Civil penalty: 5,000 penalty units.
Offence
(2) A person commits an offence if:
(a) the person gives information or a document to another person; and
(b) the person does so in the course of engaging in a credit activity; and
(c) the information or document is false in a material particular or materially misleading.
Criminal penalty: 5 years imprisonment.
Division 4—Giving authorisation for deductions by employer of debtor or lessee
160E Requirements for giving authorisation to employer
(1) This section applies to a credit provider or lessor giving, or intending to give, an employer of a debtor or lessee who is party to a credit contract or consumer lease with the credit provider or lessor an instrument that:
(a) was made by the debtor or lessee; and
(b) authorises the employer to:
(i) make one or more deductions from one or more amounts payable by the employer in relation to the performance of work by the debtor or lessee; and
(ii) pay the deductions to the credit provider or lessor.
Credit provider or lessor must give statement to employer
(2) If the credit contract or consumer lease is of a kind prescribed by the regulations, the credit provider or lessor must give the employer a statement, in the form prescribed by the regulations for that kind of contract or lease, with the instrument.
Civil penalty: 5,000 penalty units.
Credit provider or lessor must give 7 days’ notice to defaulting debtor or lessee
(3) If the debtor or lessee is in default under the credit contract or consumer lease, the credit provider or lessor must give the debtor or lessee at least 7 days’ notice, in a form prescribed by the regulations, of the intention of the credit provider or lessor to give the instrument to the employer.
Civil penalty: 5,000 penalty units.
(4) To avoid doubt, subsection (3) does not apply if there are not regulations in force prescribing a form for the purposes of that subsection.
Subsections (2) and (3) do not apply to some credit contracts
(5) Subsections (2) and (3) do not apply in relation to a credit contract for the provision of credit relating to the provision of goods or services to the debtor in connection with the debtor’s remuneration, or other benefits, for the debtor’s employment.
Division 5—Periods for determining unsuitability in respect of credit card contracts
160F Periods for determining unsuitability in respect of credit card contracts
(1) ASIC may, by legislative instrument, determine a period for the purposes of the following provisions:
(a) paragraph 118(3AA)(b);
(b) paragraph 119(3A)(b);
(c) paragraph 123(3AA)(b);
(d) paragraph 124(3A)(b);
(e) paragraph 131(3AA)(b);
(f) paragraph 133(3AA)(b).
(2) Without limiting subsection (1), a legislative instrument referred to in that subsection may determine different periods in relation to the following:
(a) different classes of credit card contracts;
(b) different credit limits;
(c) different rates of interest.
Division 6—Proscribed referrals
160G Prohibition on proscribed referrals
Prohibition
(1) A licensee that carries on a business of providing credit under small amount credit contracts must not make a proscribed referral if:
(a) the licensee is a constitutional corporation; or
(b) the referral is made in the course of carrying on that business; or
(c) the referral is made in the course of carrying on the business of banking, other than State banking (within the meaning of paragraph 51(xiii) of the Constitution) not extending beyond the limits of the State concerned; or
(d) the referral is made using a service to which paragraph 51(v) of the Constitution applies.
Civil penalty: 5,000 penalty units.
What is a proscribed referral?
(2) A referral of one or more persons (the referred persons) to another person or persons (the recipients of the referral) is a proscribed referral if, at the time when the referral is made, it is reasonable to believe that one or more of the referred persons would or might, as a direct or indirect result of the referral (including as a result of conduct that any of the recipients of the referral engages in as a result of the referral), enter into a contract or arrangement that satisfies the following conditions:
(a) under the contract or arrangement, credit is to be, or may be, provided to the referred person;
(b) the provision of that credit under the contract or arrangement would not be a provision of credit to which the National Credit Code applies.
Note: For the kinds of provision of credit to which the National Credit Code does or does not apply, see sections 5, 6, 13B and 13C of that Code.
(3) For the purposes of subsection (2), a recipient of a proscribed referral need not be a person who would or might be a provider of credit under a contract or arrangement of the kind mentioned in that subsection.
(4) For the purposes of subsection (2), a referral of one or more persons to another person or persons includes (but is not limited to) the provision of information about the first‑mentioned person or persons to the second‑mentioned person or persons, whether or not the first‑mentioned person or persons are aware of the provision of that information.
(5) To avoid doubt, it does not matter for the purposes of subsection (2) whether any person actually has, or had, the belief mentioned in that subsection.
Part 3‑7—Exemptions and modifications relating to this Chapter
Division 1—Introduction
161 Guide to this Part
This Part is about exemptions from, and modifications of, the provisions of this Chapter.
Division 2 deals with how exemptions and modifications may be made by ASIC or by the regulations.
Division 2—Exemptions and modifications relating to this Chapter
162 Provisions to which this Part applies
The provisions to which this Part applies are:
(a) this Chapter; and
(b) definitions in this Act, as they apply to references in this Chapter; and
(c) instruments made for the purposes of this Chapter.
163 Exemptions and modifications by ASIC
(1) ASIC may:
(a) exempt:
(i) a person; or
(ii) a person and all of the person’s credit representatives;
from all or specified provisions to which this Part applies; or
(b) exempt a credit contract from all or specified provisions to which this Part applies; or
(c) exempt a consumer lease from all or specified provisions to which this Part applies; or
(d) declare that provisions to which this Part applies apply in relation to a person, credit contract or consumer lease as if specified provisions were omitted, modified or varied as specified in the declaration.
(2) An exemption or declaration under subsection (1) is not a legislative instrument.
(3) ASIC may, by legislative instrument:
(a) exempt a class of persons from all or specified provisions to which this Part applies; or
(b) exempt a class of credit contracts from all or specified provisions to which this Part applies; or
(c) exempt a class of consumer leases from all or specified provisions to which this Part applies; or
(d) declare that provisions to which this Part applies apply in relation to a class of persons, credit contracts or consumer leases, as if specified provisions were omitted, modified or varied as specified in the declaration.
(4) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The court may order the person to comply with the condition in a specified way. Only ASIC may apply to the court for the order.
(5) An exemption or declaration under subsection (1) must be in writing and ASIC must publish notice of it on its website.
(6) If conduct (including an omission) of a person would not have constituted an offence if a particular declaration under paragraph (1)(d) or (3)(d) had not been made, that conduct does not constitute an offence unless, before the conduct occurred:
(a) the text of the declaration was published by ASIC on its website; or
(b) ASIC gave written notice setting out the text of the declaration to the person;
(in addition to complying with the requirements of the Legislation Act 2003 if the declaration is made under subsection (3)).
(7) In a prosecution for an offence to which subsection (6) applies, the prosecution must prove that paragraph (6)(a) or (b) was complied with before the conduct occurred.
164 Exemptions and modifications by the regulations
The regulations may:
(a) exempt a person or class of persons from all or specified provisions to which this Part applies; or
(b) exempt a credit contract or a class of credit contracts from all or specified provisions to which this Part applies; or
(c) exempt a consumer lease or a class of consumer leases from all or specified provisions to which this Part applies; or
(d) provide that the provisions to which this Part applies apply as if specified provisions were omitted, modified or varied as specified in the regulations.
Chapter 4—Remedies
Part 4‑1—Civil penalty provisions
Division 1—Introduction
165 Guide to this Part
This Part is about civil penalty provisions. Civil penalty provisions impose obligations on certain persons. Civil remedies may be sought in relation to contraventions of these provisions.
Division 2 authorises the court to make a declaration that a person has contravened a civil penalty provision and order the person to pay a pecuniary penalty. Only ASIC may apply to the court for the declaration or order.
Division 3 has general provisions relating to civil penalty provisions, including rules about evidence and procedure.
Division 2—Declarations and pecuniary penalty orders for contraventions of civil penalty provisions
166 Declaration of contravention of civil penalty provision
Application for declaration of contravention
(1) Within 6 years of a person contravening a civil penalty provision, ASIC may apply to the court for a declaration that the person contravened the provision.
Declaration of contravention
(2) The court must make the declaration if it is satisfied that the person has contravened the provision.
(3) The declaration must specify the following:
(a) the court that made the declaration;
(b) the civil penalty provision that was contravened;
(c) the person who contravened the provision;
(d) the conduct that constituted the contravention.
Declaration of contravention conclusive evidence
(4) The declaration is conclusive evidence of the matters referred to in subsection (3).
167 Court may order person to pay pecuniary penalty for contravening civil penalty provision
Application for order
(1) Within 6 years of a person contravening a civil penalty provision, ASIC may apply to the court for an order that the person pay the Commonwealth a pecuniary penalty.