credit advertisement means an advertisement in any form or medium that states or implies that credit is available, but (for the avoidance of doubt) does not include:
(a) notices or other documents required or authorised to be given under this Code; or
(b) a publication that only lists reference rates.
name, of a consumer credit product, means the usual name or description by which the credit provider describes or advertises the product.
Division 2—Comparison rate in credit advertising
160 Comparison rate mandatory in advertisements containing annual percentage rate
(1) A credit advertisement must contain the relevant comparison rate in accordance with this Part if it contains an annual percentage rate.
(2) A credit advertisement may contain the relevant comparison rate in accordance with this Part even if it does not contain an annual percentage rate.
Note: Section 150(1) makes it an offence (penalty—100 penalty units) if a person publishes a credit advertisement that does not comply with this Division.
161 The relevant comparison rate
(1) The relevant comparison rate for the purposes of section 160 is the comparison rate calculated for whichever of the designated amounts and terms most closely represents the typical amount of credit and term initially provided by the credit provider for the consumer credit product being advertised.
(2) The designated amounts and terms are the amounts and terms prescribed by a regulation for the purposes of this section.
(3) The credit advertisement may contain more than one relevant comparison rate.
162 Information about comparison rate
(1) The credit advertisement must clearly state the name of the consumer credit product, the amount of credit and the term to which each comparison rate applies.
(2) If the comparison rate is calculated for an amount of credit prescribed by a regulation for the purposes of this subsection, the credit advertisement must clearly state:
(a) that the comparison rate is for a secured loan if it has been calculated on the basis that a mortgage or guarantee is taken by the credit provider; or
(b) that the comparison rate is for an unsecured loan if it has not been so calculated.
The word “secured” or “unsecured” in connection with the amount of credit for which the comparison rate is calculated is a sufficient description for the purposes of this subsection.
163 Warning about comparison rate
(1) A comparison rate in a credit advertisement must be accompanied by a warning about the accuracy of the comparison rate that is prescribed by a regulation.
(2) The warning may be given in conjunction with the basis on which the comparison rate is calculated, that is, that the comparison rate is accurate only for the specified amount of credit and specified term.
164 Other requirements for comparison rate
(1) A comparison rate in any credit advertisement must be identified as a comparison rate.
(2) A comparison rate in any credit advertisement must not be less prominent than:
(a) any annual percentage rate stated in the advertisement; and
(b) the amount of any repayment stated in the advertisement.
(3) The following applies to credit advertisements on television, the internet or other electronic display medium:
(a) if the annual percentage rate is in spoken form and not displayed on the screen in text, the comparison rate must also be in spoken form;
(b) if the annual percentage rate is displayed on the screen in text, the comparison rate must also be displayed on the screen in text and may be in spoken form;
(c) if the comparison rate is in spoken form, the warning and other information may be either in spoken form or displayed on the screen in text;
(d) if the comparison rate is displayed on the screen in text, the warning and other information must also be displayed on the screen in text.
Division 3—Comparison rate in other documents
165 Comparison rates in documents other than credit advertising
If a document, other than a credit advertisement, contains a comparison rate, Division 2 applies (with necessary changes) in relation to the comparison rate as if it were in a credit advertisement.
Division 4—Miscellaneous
166 Calculation of comparison rates
(1) A regulation may make provision about the way in which comparison rates are to be calculated for the purposes of this Part.
(2) For the purposes of calculating the relevant comparison rate, credit fees or charges are not ascertainable and need not be included in the calculation if their imposition or amount is dependent on events that may or may not happen (unless a regulation under this section otherwise provides).
167 Compliance grace period following changes in interest or fees
A credit advertisement does not cease to comply with this Part merely because of a change in the annual percentage rate or in any credit fees or charges during the period of 7 days after the change takes effect.
168 Regulations—exemptions and other matters
A regulation may make provision about the following:
(a) exempting any class of persons or matters from the operation of any provision of this Part;
(b) requirements with which a credit advertisement containing a comparison rate must comply.
Part 11—Consumer leases
Division 1—Interpretation and application
169 Meaning of consumer lease
For the purposes of this Code, a consumer lease is a contract for the hire of goods by a natural person or strata corporation under which that person or corporation does not have a right or obligation to purchase the goods.
170 Consumer leases to which this Part applies
(1) This Part applies to a consumer lease if, when the lease is entered into:
(a) the goods are hired wholly or predominantly for personal, domestic or household purposes; and
(b) a charge is or may be made for hiring the goods and the charge together with any other amount payable under the consumer lease exceeds the cash price of the goods; and
(c) the lessor hires the goods in the course of a business of hiring goods carried on in this jurisdiction or as part of or incidentally to any other business of the lessor carried on in this jurisdiction.
(2) If this Part applies to a consumer lease:
(a) this Part applies to all transactions or acts under the lease whether or not they take place in this jurisdiction; and
(b) this Part continues to apply even though the lessee ceases to carry on a business in this jurisdiction.
(3) For the purposes of this section, the amount payable under a consumer lease includes any agreed or residual value of the goods at the end of the lease or on termination of the lease by the lessor or lessee, but does not include:
(a) any amount payable for services that are incidental to the hire of the goods under the lease; or
(b) any amount that ceases to be payable on the termination of the contract following the exercise of a right of cancellation by the lessee at the earliest opportunity.
(4) For the purposes of this section, the predominant purpose for which goods are hired is:
(a) the purpose for which more than one half of the goods are intended to be used; or
(b) if the same goods are intended to be used for different purposes, the purpose for which the goods are intended to be most used.
171 Consumer leases to which this Part does not apply
Short term leases
(1) This Part does not apply to a consumer lease for a fixed period of 4 months or less.
Leases for an indefinite period
(1A) This Part does not apply to a consumer lease for an indefinite period unless:
(a) the lessor is a constitutional corporation at the time that the lease is entered into; or
(b) the lease was entered into in the course of constitutional trade and commerce; or
(c) the lease was entered into using postal, telegraphic, telephonic or other like services (within the meaning of paragraph 51(v) of the Constitution).
Employment‑related leases
(2) This Part does not apply to a consumer lease under which goods are hired by an employee in connection with the employee’s remuneration or other employment benefits.
Regulations may exclude leases
(3) The regulations may exclude from the application of this Part consumer leases of a class specified in the regulations.
ASIC may exclude leases
(4) ASIC may exclude, from the application of this Part, a consumer lease specified by ASIC.
(5) An exemption under subsection (4) is not a legislative instrument.
(6) ASIC may, by legislative instrument, exclude from the application of this Part, consumer leases of a class specified in the instrument.
172 Presumptions relating to application of this Part
(1) In any proceedings (whether brought under this Code or not) in which a party claims that a lease is a consumer lease to which this Part applies, it is presumed to be such unless the contrary is established.
(2) It is presumed for the purposes of this Code that goods hired under a lease are not hired wholly or predominantly for personal, domestic or household purposes if the lessee declares, before entering the lease, that the goods are hired wholly or predominantly for business purposes, unless the contrary is established.
(3) However, the declaration is ineffective if, when the declaration was made, the lessor or a person (the prescribed person) of a kind prescribed by the regulations:
(a) knew, or had reason to believe; or
(b) would have known, or had reason to believe, if the lessor or prescribed person had made reasonable inquiries about the purpose for which the goods were hired;
that the goods were in fact hired wholly or predominantly for personal, domestic or household purposes.
(4) If the declaration is ineffective under subsection (3), paragraph 170(1)(a) is taken to be satisfied in relation to the lease.
(5) A declaration under this section is to be substantially in the form (if any) required by the regulations and is ineffective for the purposes of this section if it is not.
(6) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct induces a debtor to make a declaration under this section that is false or misleading in a material particular; and
(c) the declaration is false or misleading in a material particular.
Criminal penalty: 2 years imprisonment.
(7) Strict liability applies to paragraph (6)(c).
Note: For strict liability, see section 6.1 of the Criminal Code.
Division 2—Form of and information to be included in consumer leases
173 Form of consumer lease
(1) A consumer lease must be in the form of a written lease document:
(a) signed by the lessor and the lessee; and
(b) containing the information required by this Division.
(1A) Subject to subsection (2), a consumer lease may consist of one or more separate documents.
(2) The regulations may make provision for or with respect to the form of consumer leases and the way they are expressed.
(2A) In the case of a lease document consisting of more than one document, it is sufficient compliance with this section if one of the documents is duly signed and the other documents are referred to in the signed document.
(3) A lessor must not enter into a consumer lease that contravenes a requirement of this section or regulations made under this section.
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.
173A Other forms of consumer lease
(1) The regulations may authorise other ways of making a consumer lease that do not involve a written document.
(2) In that case, the provisions of this Division apply with such modifications as are prescribed by the regulations.
174 Disclosures in consumer leases
(1) A consumer lease must contain the following matters, if ascertainable:
(a) a description or identification of the goods hired under the lease;
(b) the amount or value of any consideration to be paid or provided by the lessee before the delivery of those goods;
(c) the amount of any stamp duty or other government charge (other than on receipts or withdrawals) payable by the lessee in respect of the lease;
(d) the amount of any other charges not included in the rental payable under the lease, and a description of those charges;
(e) the amount of each rental payment to be made by the lessee under the lease, the date on which the first rental payment is due and either the dates on which subsequent rental payments are due or the interval between rental payments;
(f) the number of rental payments to be made by the lessee, and the total amount of rental payable under the lease;
(g) a statement of the conditions on which the lessee may terminate the lease;
(h) a statement of the liabilities (if any) of the lessee on termination of the lease.
(1A) A consumer lease for household goods must also contain:
(a) the base price of the goods hired under the consumer lease; and
(b) the difference between:
(i) the base price of the goods hired under the lease; and
(ii) the total amount payable by the lessee in connection with the lease (including any applicable taxes and any add‑on fees, but not including an amount described in subsection 175AA(4)); and
(c) any other information required by the regulations.
Note: A penalty may be imposed for contravention of a key requirement in this subsection: see Part 6.
(2) A consumer lease is taken to comply with this section despite any omission or other error if the court is satisfied that the omission or error is not of such a nature as to mislead the lessee to his or her disadvantage.
(3) A lessor must not enter into a consumer lease that contravenes a requirement of this section.
Civil penalty: 5,000 penalty units.
(4) A lessor commits an offence of strict liability if the lessor enters into a consumer lease that contravenes a requirement of this section.
Criminal penalty: 100 penalty units.
174A Alteration of consumer lease document
(1) An alteration of (including an addition to) a new consumer lease document by the lessor after it is signed by the lessee is ineffective unless the lessee has agreed in writing to the alteration.
(2) This section does not apply to an alteration having the effect of reducing the lessee’s liabilities under the consumer lease.
175 Copy of lease etc. for lessee
(1) A lessor must, within 14 days after entering into a consumer lease, give to the lessee a copy of the consumer lease, together with a statement in the form prescribed by the regulations explaining the rights and obligations of a lessee.
Criminal penalty: 50 penalty units.
(2) Subsection (1) does not apply if the lessor has previously given the lessee a copy of the consumer lease to keep.
(3) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) Section 194 applies to this section as if references in that section to the credit provider were references to the lessor or a lease broker and as if references in that section to the debtor were references to the lessee.
Division 4—Fees and charges
175A Prohibited consumer lease fees or charges
The regulations may specify:
(a) consumer lease fees or charges; or
(b) classes of consumer lease fees or charges;
that are prohibited for the purposes of this Code.
175AA Cap on fees and charges for consumer leases
Overall cap for every consumer lease
(1) A lessor must not enter into, or vary, a consumer lease so that the total amount that would be payable by the lessee in connection with the lease (including any applicable taxes and any add‑on fees) is more than the permitted cap for the lease.
Note: A penalty may be imposed for contravention of a key requirement in this subsection: see Part 6.
Monthly cap for consumer lease for indefinite period
(2) A lessor must not enter into, or vary, a consumer lease for an indefinite period so that the total amount that would be payable by the lessee in connection with the lease (including any applicable taxes and any add‑on fees) in any month is more than 1/48 of the permitted cap for the lease.
Note: A penalty may be imposed for contravention of a key requirement in this subsection: see Part 6.
What is an add‑on fee?
(3) An add‑on fee for a consumer lease is any fee or charge (whether an interest charge or not) for which the following conditions are met:
(a) the fee or charge is one that:
(i) the lessee is liable to pay to the lessor; or
(ii) the lessee is liable to pay to another person under an agreement facilitated by or on behalf of the lessor or the other person;
(b) the fee or charge relates to a service or product that either:
(i) facilitates or complements the lessee’s use of the goods hired under the consumer lease; or
(ii) is marketed or offered by the lessor or another person as being complementary to the lessee’s use of the goods hired under the consumer lease;
(c) either:
(i) failure by the lessee to pay the fee or charge, or to acquire a service or product to which the fee or charge relates, affects the lessee’s rights or obligations under the consumer lease; or
(ii) the lessor or another person has represented to the lessee that failure by the lessee to pay the fee or charge, or to acquire a service or product to which the fee or charge relates, will or may affect the lessee’s rights or obligations under the consumer lease.
Amounts that do not count against caps
(4) For the purposes of subsections (1) and (2), the following amounts are not included in the total amount payable by the lessee in connection with the consumer lease:
(a) a fee or charge that is payable in the event of a default in payment under the consumer lease;
(b) enforcement expenses of an amount not exceeding the amount which could be recovered by the lessor under subsection 179R(1).
What is the permitted cap?
(5) The permitted cap for a consumer lease is the sum of the following amounts:
(a) the base price of the goods hired under the consumer lease;