327 Review by Administrative Review Tribunal of decisions by ASIC under this Act
(1) An application may be made to the Administrative Review Tribunal for review of a decision (within the meaning of the Administrative Review Tribunal Act 2024) made by ASIC under this Act other than:
(aa) a decision of ASIC under subsection 54(1B) (which deals with immediate cancellation of a licence); or
(a) a decision of ASIC under subsection 109(3) (which deals with certain exemptions from, and modifications of, Chapter 2); or
(b) a decision of ASIC under subsection 163(3) (which deals with certain exemptions from, and modifications of, Chapter 3); or
(c) a decision of ASIC under section 238A or 238B (which deals with approved codes of conduct); or
(d) a decision of ASIC under Chapter 6 (which deals with compliance and enforcement), except for a decision of ASIC:
(i) to make an order under subsection 300(1) (which deals with orders relating to credit contracts, mortgages, guarantees or consumer leases); or
(ii) to make, or refuse to make, an order under subsection 301(1) (which deals with orders varying or revoking orders made under section 300); or
(iii) to make an order under subsection 301D(1) (which deals with product intervention orders); or
(iv) to amend a product intervention order under section 301J unless, under subsection 301J(6), the amendment must be by legislative instrument; or
(v) to revoke a product intervention order under section 301K unless, under subsection 301K(4), the revocation must be by legislative instrument; or
(e) a decision of ASIC to make a determination under subsection 328(3) (which deals with determinations in relation to notice of reviewable decisions etc.); or
(f) a decision of ASIC under subsection 6(17) of the National Credit Code (which deals with the exclusion of provisions of credit from the application of the National Credit Code); or
(g) a decision of ASIC under subsection 171(6) of the National Credit Code (which deals with the exclusion of consumer leases from the application of the National Credit Code); or
(h) a decision of ASIC under subsection 203A(3) of the National Credit Code (which deals with certain exemptions from the National Credit Code); or
(i) a decision of ASIC under the regulations, unless the regulations specify that an application may be made to the Administrative Review Tribunal for review of the decision.
(1A) An application may also be made to the Administrative Review Tribunal for review of a decision (within the meaning of the Administrative Review Tribunal Act 2024) made by the Registrar under the data standards or disclosure framework.
328 Notice of reviewable decision and review rights
(1) This section applies if ASIC makes a decision to which section 327 applies.
(2) Subject to subsection (3), ASIC must take such steps as are reasonable in the circumstances to give to each person whose interests are affected by the decision notice, in writing or otherwise:
(a) of the making of the decision; and
(b) of the person’s right to have the decision reviewed by the Administrative Review Tribunal.
(3) Subsection (2) does not require ASIC to give notice to a person affected by the decision or to the persons in a class of persons affected by the decision, if ASIC determines that giving notice to the person or persons is not warranted, having regard to:
(a) the cost of giving notice to the person or persons; and
(b) the way in which the interests of the person or persons are affected by the decision.
(4) A determination made under subsection (3) is not a legislative instrument.
(5) A failure to comply with this section does not affect the validity of the decision.
Division 4—Regulations
329 Regulations
The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
330 Regulations—where proceedings may be brought
The regulations may prescribe the location for where court proceedings in relation to the following must be brought:
(a) matters arising under this Act;
(b) credit contracts;
(c) mortgages;
(d) guarantees;
(e) consumer leases.
Division 5—Other miscellaneous provisions
331 Giving information or documents in connection with low cost credit contracts
(1) This section applies in relation to a provision (a covered provision) of this Act or the National Credit Code that requires or permits a person (a giver) to give information or documents (covered material) to another person (a recipient) in connection with a low cost credit contract.
Making covered material available for retrieval on an electronic document retrieval system
(2) Subject to subsection (6), a giver is taken to give covered material to a recipient for the purposes of a covered provision if:
(a) the giver notifies the recipient, in accordance with subsection (3), that the covered material is available for retrieval by the recipient on an electronic document retrieval system (see subsection (5)); and
(b) the giver makes the covered material available for retrieval by the recipient, in accordance with the notification, for a reasonable period after the giver gives the notification to the recipient; and
(c) the covered material is made available for retrieval by the recipient in such a manner that it is reasonable to expect that the recipient will be able to save the covered material to an electronic file and print it.
Note: This subsection does not limit the ways in which a giver may give covered material to a recipient for the purposes of a covered provision.
(3) For the purposes of paragraph (2)(a), the notice must:
(a) explain the nature of the covered material; and
(b) include any information relating to the covered material that the recipient needs in order to be able to retrieve the covered material.
Note: The information mentioned in paragraph (3)(b) might include, for example, the covered material’s electronic address or any password protecting the covered material.
(4) The giver is taken to give the covered material to the recipient at the first time:
(a) that occurs at or after the time the giver gives the recipient the notification mentioned in paragraph (2)(a); and
(b) at which the covered material is available for retrieval by the recipient as mentioned in paragraphs (2)(b) and (c).
(5) For the purposes of this section, covered material is available for retrieval by a recipient on an electronic document retrieval system if the covered material is available on an information system for retrieval by electronic communication by the recipient.
Note: For electronic communication and information system, see subsection 5(1).
Mandatory requirements relating to giving covered material
(6) The giving of information or documents is to be disregarded for the purposes of a covered provision if:
(a) the regulations prescribe requirements relating to the giving of information or documents for the purposes of the covered provision; and
(b) those requirements are not satisfied.
No effect in relation to other kinds of credit contracts
(7) To avoid doubt, if a covered provision requires or permits information or documents to be given in connection with a credit contract that is not a low cost credit contract, this section does not apply in relation to the giving of the information or documents.
Interaction with other provisions
(8) If this section is inconsistent with any other provision of this Act or the National Credit Code that deals with the giving of information or documents in connection with a low cost credit contract (even if the other provision also deals with other matters), then the other provision has no effect to the extent of the inconsistency.
Note: For example, section 187 of the National Credit Code (application of the Electronic Transactions Act 1999) has no effect to the extent that it is inconsistent with subsection (6) of this section.
332 Civil penalty provisions contravened or offences committed partly in and partly out of this jurisdiction
If:
(a) a person does or omits to do an act outside this jurisdiction; and
(b) if that person had done or omitted to do that act in this jurisdiction, the person would, by reason of also having done or omitted to do an act in this jurisdiction, have contravened a civil penalty provision or committed an offence against this Act;
the person contravenes that provision or commits that offence.
333 Contravention of Act does not generally affect validity of transactions etc.
(1) A failure to comply with any requirement of this Act does not affect the validity or enforceability of any transaction, contract, instrument or other arrangement.
(2) Subsection (1) has effect subject to any express provision to the contrary in:
(a) this Act (including regulations made under this Act); or
(b) regulations referred to in subsection (3).
(3) Regulations may provide that a failure to comply with a specified requirement referred to in subsection (1) has a specified effect on the validity or enforceability of a transaction, contract, instrument or arrangement.
334 Contracting out etc.
(1) A provision of a contract or other instrument by which a person seeks to avoid or modify the effect of this Act (other than the National Credit Code) is void.
Note: A similar rule applies for the purposes of the National Credit Code (see section 191 of that Code).
(2) A provision of a contract or other instrument by which a person seeks to have:
(a) a debtor indemnify a credit provider; or
(b) a mortgagor indemnify a mortgagee; or
(c) a guarantor indemnify a beneficiary of a guarantee; or
(d) a lessee indemnify a lessor;
for any loss or liability arising under this Act (other than the National Credit Code) is void.
Note: A similar rule applies for the purposes of the National Credit Code (see section 191 of that Code).
(3) A person commits an offence if:
(a) the person is a credit provider, mortgagee, beneficiary of a guarantee or lessor; and
(b) the person is a party to a contract or other instrument; and
(c) the contract or other instrument is void under subsection (1) or (2).
Criminal penalty: 100 penalty units.
(4) Subsection (3) is an offence of strict liability:
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) Subsection (2) does not affect the operation of subsection 60(2) of the National Credit Code.
335 Indemnities
(1) An indemnity for any liability under this Act (other than the National Credit Code) is not void, and cannot be declared void, on the grounds of public policy, despite any rule of law to the contrary.
Note: A similar rule applies for the purposes of the National Credit Code (see section 192 of that Code).
(2) The liabilities to which this section applies include the following:
(a) a liability for any criminal or civil penalty incurred by any person under this Act (other than the National Credit Code);
(b) a payment in settlement of a liability or alleged liability under this Act (other than the National Credit Code);
(c) a liability under another indemnity for any liability under this Act (other than the National Credit Code).
(3) This section is subject to subsection 334(2).
(4) This section does not derogate from any other rights and remedies that exist apart from this section.
336 Acquisition of property
(1) A provision of this Act does not apply, and is taken never to have applied, to the extent that the operation of the provision would result in an acquisition of property from a person otherwise than on just terms.
(2) In subsection (1), acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.
337 Minister may delegate prescribed functions and powers under this Act
(1) The Minister may, by signed instrument, delegate to:
(a) an ASIC member; or
(b) an ASIC staff member;
such of the Minister’s functions and powers under this Act as are prescribed.
(1A) However, the Minister must not delegate the Minister’s powers under section 301H, 301J, 301K or 301M (which deal with product intervention orders) to a person other than ASIC.
(2) In performing functions or exercising powers under a delegation, the delegate must comply with any directions of the Minister.
Schedule 1—National Credit Code
Note: See section 3 of the National Credit Act.
Part 1—Preliminary
1 Short title
This Code may be cited as the National Credit Code.
2 Interpretation generally
(1) Part 13 contains the principal definitions of words and expressions used in this Code.
(2) Part 14 contains other miscellaneous provisions relating to the interpretation of this Code.
3 Meaning of credit and amount of credit
(1) For the purposes of this Code, credit is provided if under a contract:
(a) payment of a debt owed by one person (the debtor) to another (the credit provider) is deferred; or
(b) one person (the debtor) incurs a deferred debt to another (the credit provider).
(2) For the purposes of this Code, the amount of credit is the amount of the debt actually deferred. The amount of credit does not include:
(a) any interest charge under the contract; or
(b) any fee or charge:
(i) that is to be or may be debited after credit is first provided under the contract; and
(ii) that is not payable in connection with the making of the contract or the making of a mortgage or guarantee related to the contract.
4 Meaning of credit contract
For the purposes of this Code, a credit contract is a contract under which credit is or may be provided, being the provision of credit to which this Code applies.
5 Provision of credit to which this Code applies
(1) This Code applies to the provision of credit (and to the credit contract and related matters) if when the credit contract is entered into or (in the case of precontractual obligations) is proposed to be entered into:
(a) the debtor is a natural person or a strata corporation; and
(b) the credit is provided or intended to be provided wholly or predominantly:
(i) for personal, domestic or household purposes; or
(ii) to purchase, renovate or improve residential property for investment purposes; or
(iii) to refinance credit that has been provided wholly or predominantly to purchase, renovate or improve residential property for investment purposes; and
(c) a charge is or may be made for providing the credit; and
(d) the credit provider provides the credit in the course of a business of providing credit carried on in this jurisdiction or as part of or incidentally to any other business of the credit provider carried on in this jurisdiction.
(2) If this Code applies to the provision of credit (and to the credit contract and related matters):
(a) this Code applies in relation to all transactions or acts under the contract whether or not they take place in this jurisdiction; and
(b) this Code continues to apply even though the credit provider ceases to carry on a business in this jurisdiction.
(3) For the purposes of this section, investment by the debtor is not a personal, domestic or household purpose.
(4) For the purposes of this section, the predominant purpose for which credit is provided is:
(a) the purpose for which more than half of the credit is intended to be used; or
(b) if the credit is intended to be used to obtain goods or services for use for different purposes, the purpose for which the goods or services are intended to be most used.
6 Provision of credit to which this Code does not apply
Short term credit
(1) This Code does not apply to the provision of credit if, under the contract:
(a) the provision of credit is limited to a total period that does not exceed 62 days; and
(b) the maximum amount of credit fees and charges that may be imposed or provided for does not exceed 5% of the amount of credit; and
(c) the maximum amount of interest charges that may be imposed or provided for does not exceed an amount (calculated as if the Code applied to the contract) equal to the amount payable if the annual percentage rate were 24% per annum.
(2) For the purposes of paragraph (1)(b), credit fees and charges imposed or provided for under the contract are taken to include the following, whether or not payable under the contract:
(a) a fee or charge payable by the debtor to any person for an introduction to the credit provider;
(b) a fee or charge payable by the debtor to any person for any service if the person has been introduced to the debtor by the credit provider;
(c) a fee or charge payable by the debtor to the credit provider for any service related to the provision of credit, other than a service mentioned in paragraph (b).
(3) For the purposes of paragraphs (2)(a) and (b), it does not matter whether or not there is an association between the person and the credit provider.
Credit without express prior agreement
(4) This Code does not apply to the provision of credit if, before the credit was provided, there was no express agreement between the credit provider and the debtor for the provision of credit. For example, when a cheque account becomes overdrawn but there is no expressly agreed overdraft facility or when a savings account falls into debit.
Credit for which only account charge payable
(5) This Code does not apply to the provision of credit under a continuing credit contract if the only charge that is or may be made for providing the credit is a periodic or other fixed charge that does not vary according to the amount of credit provided. However, this Code applies if the charge is of a nature prescribed by the regulations for the purposes of this subsection or if the charge exceeds the maximum charge (if any) so prescribed.