An officer, agent or employee of a credit provider or other person may be prosecuted for an offence against this Code or the regulations (if liable for the offence) whether or not proceedings have been taken against the credit provider or other person.
201 Offences by corporations
(1) If a corporation contravenes a provision of this Code or the regulations, each officer of the corporation is taken to have contravened the provision if the officer knowingly authorised or permitted the contravention.
(2) An officer of a corporation may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or convicted under the provision.
(3) Nothing in this section affects the liability imposed on a corporation for an offence committed by the corporation against this Code or the regulations.
(4) In this section:
officer means a director of the corporation or a person who is otherwise concerned in its management.
202 Limitations
Despite anything in any Act, proceedings for an offence against this Code or the regulations may be brought within the period of 3 years that next succeeds the commission of the offence or, with the consent of the Attorney‑General, at any later time.
203 Application of section 4K of the Crimes Act 1914
Section 4K of the Crimes Act 1914 does not apply in relation to an offence against this Code or the regulations.
Division 5—Exemptions from this Code
203A Exemptions by ASIC
Exemptions
(1) ASIC may exempt a person, contract, mortgage, guarantee or consumer lease from all or specified provisions of this Code.
(2) An exemption under subsection (1) is not a legislative instrument.
(3) ASIC may, by legislative instrument, exempt a class of persons, contracts, mortgages, guarantees or consumer leases from all or specified provisions of this Code.
Conditions on exemptions
(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.
Publication of exemptions under subsection (1)
(5) An exemption under subsection (1) must be in writing and ASIC must publish notice of it on its website.
203B Exemptions by the regulations
The regulations may:
(a) exempt a person, contract, mortgage, guarantee or consumer lease from all or specified provisions of this Code; or
(b) exempt a class of persons, contracts, mortgages, guarantees or consumer leases from all or specified provisions of this Code.
Part 13—Principal definitions
204 Principal definitions
(1) In this Code:
acceleration clause means:
(a) in relation to a credit contract or mortgage—a term of a credit contract or mortgage providing that:
(i) on the occurrence or non‑occurrence of a particular event, the credit provider becomes entitled to immediate payment of all, or a part, of an amount under the contract that would not otherwise have been immediately payable; or
(ii) whether or not on the occurrence or non‑occurrence of a particular event, the credit provider has a discretion to require repayment of the amount of credit otherwise than by repayments fixed, or determined on a basis stated, in the contract;
but does not include any such term in a credit contract or mortgage that is an on demand facility; or
(b) in relation to a consumer lease—a term of a consumer lease providing that:
(i) on the occurrence or non‑occurrence of a particular event, the lessor becomes entitled to immediate payment of all, or a part, of an amount under the lease that would not otherwise have been immediately payable; or
(ii) whether or not on the occurrence or non‑occurrence of a particular event, the lessor has a discretion to require payment of an amount payable under a lease otherwise than by repayments fixed, or determined on a basis stated, in the lease.
add‑on fee: see subsection 175AA(3).
add‑on risk product has the meaning given by subsection 12DMC(2) of the Australian Securities and Investments Commission Act 2001.
ADI has the same meaning as in the Banking Act 1959.
adjusted credit amount, in relation to a small amount credit contract, means the first amount of credit that is, or is to be, provided under the contract.
Note: Some amounts are to be disregarded in working out the first amount of credit (see subsection (3)).
AFCA scheme has the same meaning as in the Corporations Act 2001.
amend includes:
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication.
amount of credit: see subsection 3(2).
annual cost rate of a credit contract means the annual cost rate of the contract calculated in accordance with section 32B.
annual percentage rate: see section 27.
ASIC means the Australian Securities and Investments Commission.
associated: see subsection (2).
base price: see subsection 175AA(6).
bridging finance contract: a credit contract is a bridging finance contract if:
(a) when the contract is made, the debtor:
(i) reasonably expects to receive a lump sum before the term of the contract ends; and
(ii) intends to discharge the debtor’s obligations under the contract so far as possible with that sum; and
(aa) the term of the contract is 2 years or less; and
(b) the conditions (if any) prescribed by the regulations are met.
Bulk Electronic Clearing System means the system established by the Australian Payments Clearing Association to manage the conduct of the exchange and settlement of bulk electronic low value transactions and includes any replacement system.
business day means a day that is not:
(a) a Saturday or Sunday; or
(b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.
buy now pay later arrangement: see section 13D.
buy now pay later contract: see section 13D.
carried on in this jurisdiction has a meaning affected by section 12 of the National Credit Act.
cash price of goods or services to which a credit contract relates means:
(a) the lowest price that a cash purchaser might reasonably be expected to pay for them from the supplier; or
(b) if the goods or services are not available for cash from the supplier or are only available for cash at the same, or a reasonably similar, price to the price that would be payable for them if they were sold with credit provided—the market value of the goods or services.
commission includes any form of monetary consideration or any form of non‑monetary consideration to which a monetary value can be assigned.
compulsory insurance means:
(a) compulsory third‑party personal injury insurance; or
(b) insurance of a nature declared by the regulations to be compulsory insurance for the purposes of this Code.
constitutional corporation has the same meaning as in section 5 of the National Credit Act.
constitutional trade and commerce has the same meaning as in section 5 of the National Credit Act.
consumer credit insurance means insurance that insures the capacity of the debtor to make repayments under the credit contract, including insurance against sickness of, injury to, or disability or death of, the debtor or against unemployment of the debtor, and also including life insurance (including insurance under a group policy) to cover any outstanding amount on the debtor’s death.
consumer lease: see section 169.
consumer lease fees or charges means fees or charges payable in connection with a consumer lease, but does not include:
(a) enforcement expenses; or
(b) government charges, or duties, on receipts or withdrawals.
consumer lease for household goods means a consumer lease to which Part 11 applies where any of the goods hired under the lease are household goods, but does not include a consumer lease where the goods hired under the lease include:
(a) motor vehicles; or
(b) vehicles that:
(i) are not for use on a road; and
(ii) are of a kind intended primarily for use by persons with restricted mobility; or
(c) goods that are ordinarily used for accommodation (either permanently or temporarily).
continuing credit contract means a credit contract under which:
(a) multiple advances of credit are contemplated; and
(b) the amount of available credit ordinarily increases as the amount of credit is reduced.
contract includes a series or combination of contracts, or contracts and arrangements.
contract document means the document or documents setting out the terms of a contract.
credit: see subsection 3(1).
credit assistance has the same meaning as in section 8 of the National Credit Act.
credit card has the same meaning as in subsection 133BA(2) of the National Credit Act.
credit card contract has the same meaning as in subsection 133BA(1) of the National Credit Act.
credit contract: see section 4.
credit cost amount: see subsection 32B(3).
credit fees and charges means fees and charges payable in connection with a credit contract or mortgage, but does not include:
(a) interest charges (including default charges); or
(b) any fees or charges that are payable to or by a credit provider in connection with a credit contract in connection with which both credit and debit facilities are available if the fees or charges would be payable even if credit facilities were not available (not being annual fees or charges in connection with credit card contracts); or
(c) government charges, or duties, on receipts or withdrawals; or
(d) enforcement expenses.
credit limit has the same meaning as in section 5 of the National Credit Act.
credit provider means a person that provides credit, and includes a prospective credit provider.
credit‑related insurance contract: see section 142.
credit service has the same meaning as in section 7 of the National Credit Act.
daily percentage rate: see section 27.
date of a notice: see section 196.
debtor means a person (other than a guarantor) who is liable to pay for (or to repay) credit, and includes a prospective debtor.
default notice:
(a) in relation to credit contracts, mortgages and guarantees—see section 88; and
(b) in relation to consumer leases—see section 179D.
default rate: see section 27.
definition means a provision of this Code (however expressed) that:
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or expression.
direct debit, in relation to the payment of an amount, means the debiting of an amount against an account with a financial institution that is processed through the Bulk Electronic Clearing System, as specified and authorised in writing by:
(a) in relation to the payment by a debtor of an amount for a credit contract—the debtor; and
(b) in relation to the payment by a lessee of an amount for a consumer lease—the lessee.
dispose of property includes:
(a) sell the property; or
(b) part with possession of the property to the prejudice of the owner or a mortgagee of the property; or
(c) destroy the property.
electronic communication has the same meaning as in section 5 of the National Credit Act.
enforcement expenses, in relation to a mortgage, includes expenses incurred by the mortgagee in preserving or maintaining property subject to the mortgage (including insurance, rates and taxes payable for the property) but only if the expenses are incurred after a breach occurs and are authorised by the mortgage.
enforcement proceedings means:
(a) for a credit contract, consumer lease or guarantee—proceedings in a court to recover a payment due under the contract, lease or guarantee; or
(b) for a consumer lease or mortgage—taking possession of property under the lease or mortgage; or
(c) for a mortgage—taking any other action to enforce the mortgage.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
fail includes refuse.
goods includes:
(a) ships, aircraft or other vehicles; or
(b) animals, including fish; or
(c) minerals, trees or crops, whether on, under or attached to land or not;
but does not include anything declared by the regulations not to be goods for the purposes of this Code.
goods mortgage means a mortgage over goods.
guarantee includes an indemnity (other than one arising under a contract of insurance).
guarantee document means the document or documents setting out the terms of a guarantee.
guarantor includes a prospective guarantor.
hardship notice:
(a) in relation to credit contracts—see subsection 72(1); and
(b) in relation to consumer leases—see subsection 177B(1).
household goods means goods of a kind ordinarily acquired for domestic or household purposes.
information system has the same meaning as in section 5 of the National Credit Act.
insolvent means:
(a) in the case of a natural person—a person who is an insolvent under administration; or
(b) in the case of a corporation—a corporation that is an externally‑administered corporation within the meaning of the Corporations Act 2001.
instrument includes a statutory instrument.
interest, in relation to land or other property, means:
(a) a legal or equitable estate in the land or other property; or
(b) a right, power or privilege over, or in relation to, the land or other property.
key requirement: see Part 6.
land includes any interest in land.
lessee means the lessee under a consumer lease to which Part 11 applies, and includes a prospective lessee.
lessor means the lessor under a consumer lease to which Part 11 applies, and includes a prospective lessor.
linked credit provider: see subsection 127(1).
linked lessor: see subsection 179S(1).
long‑term lease, of a motor vehicle, has the meaning given by subsection 12BA(1) of the Australian Securities and Investments Commission Act 2001.
low cost credit contract: see section 13E.
lowest price, in relation to the cash price of goods or services to which a credit contract relates, means the lowest price including any goods and services tax but unaffected by any discount between the credit provider and the supplier.
market value, of goods or services to which a credit contract or consumer lease relates, means fair market value including any goods and services tax.
medium amount credit contract: a credit contract is a medium amount credit contract if:
(a) the contract is not a continuing credit contract or a low cost credit contract; and
(b) the credit provider under the contract is not an ADI; and
(c) the credit limit of the contract is:
(i) at least $2,001 (or such other amount as is prescribed by the regulations); but
(ii) not more than $5,000 (or such other amount as is prescribed by the regulations); and
(d) the term of the contract is at least 16 days but not longer than 2 years (or such other number of years as is prescribed by the regulations); and
(e) the contract meets any other requirements prescribed by the regulations.
merchant service agreement means an agreement between a credit provider and a supplier of goods and services under which the credit provider agrees to pay to the supplier amounts for goods or services supplied by the supplier and paid by means of credit cards, whether or not the credit cards are issued by the credit provider.
modification includes addition, omission or substitution.
mortgage includes:
(a) any interest in, or power over, property securing obligations of a debtor or guarantor; or
(b) a credit provider’s title to land or goods subject to a sale by instalments; or
(c) a mortgage taken to have been entered into under subsection 9(3);
but does not include a consumer lease to which Part 11 applies.
mortgage document means the document or documents setting out the terms of a mortgage by reference to which the mortgage is created.
mortgagor includes a prospective mortgagor.
motor vehicle has the meaning given by subsection 12BA(1) of the Australian Securities and Investments Commission Act 2001.
National Credit Act means the National Consumer Credit Protection Act 2009 and includes regulations made under section 329 of that Act, but does not include this Code.
number means:
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and a letter.
omit, in relation to a provision of this Code or an Act, includes repeal.
on demand facility means a credit contract or mortgage under which:
(a) the total amount outstanding under the contract or mortgage is repayable at any time on demand by the credit provider; and
(b) there is no agreement, arrangement or understanding between the credit provider and the debtor or mortgagor that repayment will only be demanded on the occurrence or non‑occurrence of a particular event.
penalty includes forfeiture or punishment.
permitted add‑on fee: see subsection 175AA(9).
permitted cap: see subsection 175AA(5).
permitted delivery fee: see subsection 175AA(7).
permitted establishment fee: see paragraph 31A(1)(a).
permitted installation fees: see subsection 175AA(8).
permitted monthly fee: see subsection 31A(2).
postponement request:
(a) in relation to credit contracts, mortgages or guarantees—see subsection 94(1); and
(b) in relation to consumer leases—see subsection 179H(1).
power includes authority.
practising lawyer means a person who is admitted to the legal profession by a federal court or a Supreme Court of a State or Territory and holds a practising certificate (however described) entitling the person to practise that profession.
printed includes typewritten, lithographed or reproduced by any mechanical means.
proceedings means a legal or other action or proceedings.
prohibited credit amount: see subsection 39A(1).
property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.