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Name of Regulations
1 Name of Regulations
These Regulations are the National Consumer Credit Protection Regulations 2010.
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Commonwealth legislation
These regulations set Australia’s consumer credit rules: who must hold an Australian credit licence, key obligations for licensees (insurance, trust accounts, reporting, AFCA cooperation), and responsible‑lending and disclosure duties to protect borrowers. They ban conflicted mortgage‑broker payments, require licensing and conduct standards for debt‑management services, and impose consumer safeguards like fee caps, standardized forms and warning requirements—working with the National Consumer Credit Protection Act and National Credit Code to curb predatory lending.
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Direct links to the current provisions in National Consumer Credit Protection Regulations 2010.
These Regulations are the National Consumer Credit Protection Regulations 2010.
(1) In these Regulations:
Act means the National Consumer Credit Protection Act 2009.
AFCA (short for the Australian Financial Complaints Authority) has the same meaning as in the Corporations Act.
agreed price, of goods hired under a consumer lease: see subregulation 105AA(2).
annual percentage rate has the same meaning as in section 27 of the Code.
Australian ADI has the meaning given by section 9 of the Corporations Act.
authorised contact means contact with a consumer by a person in relation to the supply of goods or services by the person to the consumer, if the contact is made:
(a) no later than 3 months after the consumer provided his or her contact details:
(i) to the person; and
(ii) for the purpose of being contacted about the supply of the goods or services; or
(b) by posting to, or leaving at, a residential address written promotional material about goods or services; or
(c) in relation to the possible return of goods supplied to the consumer or the possible provision of replacement goods to the consumer.
campaign‑based benefit: see regulation 28VF.
carried over instrument has the meaning given by subsection 4(1) of the Transitional Act.
clawback requirements: see regulation 28VG.
Code means the National Credit Code.
Corporations Act means the Corporations Act 2001.
credit card means:
(a) a card of a kind commonly known as a credit card; or
(b) a card of a kind that persons carrying on business commonly issue to their customers, or prospective customers, for use in obtaining goods or services from those persons on credit; or
(c) anything else that may be used as a card mentioned in paragraph (a) or (b).
credit card contract means a continuing credit contract (as defined in section 204 of the Code) under which credit is ordinarily obtained only by the use of a credit card.
credit reporting assistance: see regulation 4C.
debt management assistance: see regulation 4B.
debt management service: see subregulation 4A(2).
default rate has the same meaning as in section 27 of the Code.
drawdown cap: see subregulation 28VC(1) for the benefits to which the drawdown cap applies.
electronic document retrieval system: see regulation 72C.
excluded amount: see subregulation 28VD(3).
exempt public authority means a body corporate that is incorporated within Australia or an external Territory and is:
(a) a public authority; or
(b) an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.
exempt special purpose funding entity means a special purpose funding entity that is engaging in a credit activity and is exempt, under regulation 23B or 23C, from the requirement to hold a licence.
financial counselling association has the same meaning as in regulation 7.6.01 of the Corporations Regulations 2001.
financial counselling service means a counselling and advocacy service provided predominantly for the purpose of assisting individuals who are in financial difficulty to resolve their problems.
foreign company means either of the following:
(a) a body corporate that is incorporated in an external Territory, or outside Australia and the external Territories, and is not:
(i) a corporation sole; or
(ii) an exempt public authority;
(b) an unincorporated body that:
(i) is formed in an external Territory or outside Australia and the external Territories; and
(ii) under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and
(iii) does not have its head office or principal place of business in Australia.
fund raising special purpose entity has the meaning given by subsection 5(1) of the Act as modified by item 3.2 of Schedule 3.
home renovation or improvement facility: see subregulation 28VC(4).
inappropriate person means:
(a) a person in relation to whom:
(i) a prescribed State or Territory order is in force; or
(ii) a banning or disqualification order under Division 8 of Part 7.6 of the Corporations Act 2001 is in force; or
(b) a person who is banned from engaging in a credit activity under:
(i) a law of a State or Territory; or
(ii) Part 2‑4 of the Act; or
(c) a person who has been convicted of a serious fraud during the last 10 years; or
(d) a person who is disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001; or
(e) a person:
(i) who is registered to engage in credit activities under Schedule 2 of the Transitional Act; and
(ii) whose registration is suspended under a provision of item 23 of Schedule 2 to the Transitional Act, other than under paragraph 23(1)(a) or (b); or
(f) a person:
(i) who has been registered to engage in credit activities under Schedule 2 of the Transitional Act; and
(ii) whose registration has been cancelled under a provision of item 23 of Schedule 2 to the Transitional Act, other than paragraph 23(1)(a) or (b); or
(g) a person:
(i) who is the holder of an Australian credit licence; and
(ii) whose licence is suspended on a ground mentioned in subsection 54(1) of the Act, other than a ground mentioned in paragraph 54(1)(a) or (b); or
(h) a person:
(i) who has been the holder of an Australian credit licence; and
(ii) whose licence has been cancelled on a ground mentioned in subsection 54(1) of the Act, other than a ground mentioned in paragraph 54(1)(a) or (b).
(i) a person:
(i) who is the holder of an Australian financial services licence; and
(ii) whose licence is suspended on a ground mentioned in section 915B of the Corporations Act 2001, other than a ground mentioned in any of the following paragraphs:
(A) paragraph 915B(1)(a) or (e);
(B) paragraph 915B(2)(a) or (d);
(C) paragraph 915B(3)(a) or (d);
(D) paragraph 915B(4)(a) or (d); or
(j) a person:
(i) who has been the holder of an Australian financial services licence; and
(ii) whose licence has been cancelled on a ground mentioned in section 915B of the Corporations Act 2001, other than a ground mentioned in any of the following paragraphs:
(A) paragraph 915B(1)(a) or (e);
(B) paragraph 915B(2)(a) or (d);
(C) paragraph 915B(3)(a) or (d);
(D) paragraph 915B(4)(a) or (d).
lawyer, for the purpose of regulation 24 has the meaning given by the modified definition of lawyer set out in subregulation 24(10).
line of credit facility: see subregulation 28VC(3).
linked credit provider, for the purpose of regulation 23A, has the meaning given by the modified definition of linked credit provider set out in regulation 25C.
linked credit provider or lessor, for the purpose of regulation 23, has the meaning given by the modified definition of linked credit provider set out in regulation 25B.
managed contract—see regulation 26.
maximum drawdown net of offset: see subregulations 28VD(1) and (2).
mortgage manager—see regulation 26.
non‑standard business premises means business premises that are not physically separate from premises regularly used by consumers for purposes other than being contacted in relation to the supply of goods or services.
officer of a body corporate has the meaning given by the definition of officer of a corporation (as it relates to a body corporate) in section 9 of the Corporations Act.
offset account, held by a consumer who is a debtor under a credit contract, has the meaning given by subregulation 28VD(4).
precontractual document means any of the following:
(a) a precontractual statement mentioned in paragraph 16(1)(a) of the Code;
(b) a document forming part of a precontractual statement;
(c) a notice varying a precontractual statement;
(d) an information statement mentioned in paragraphs 16(1)(b) or 16(1A)(b) of the Code.
product designer—see regulation 26.
public officer, of a body corporate, means a person appointed under section 252 of the Income Tax Assessment Act 1936 as it relates to a body corporate.
registered debt agreement administrator means a person registered by the Insolvency and Trustee Service Australia as a debt agreement administrator under Part IX of the Bankruptcy Act 1966.
registered person has the same meaning as in the Transitional Act.
restructuring practitioner has the same meaning as in the Corporations Act.
rural financial counselling service means a counselling and advocacy service provided mainly for the purpose of assisting primary producers, or rural or regional small businesses, who are in financial difficulty.
rural financial counselling service provider means a body that is funded wholly or partly by the Commonwealth, a State or a Territory to provide a rural financial counselling service.
securitisation entity has the meaning given by subsection 5(1) of the Act as modified by item 3.4 of Schedule 3.
services, for the purposes of regulations 23 and 23A, has the meaning given by the modified definition of services set out in regulation 25D.
servicing agreement has the meaning given by subsection 5(1) of the Act as modified by item 3.4 of Schedule 3.
special purpose funding entity has the meaning given by subsection 5(1) of the Act as modified by item 3.4 of Schedule 3.
substantial holding has the meaning given by the definition of that term (as it relates to a body corporate) in section 9 of the Corporations Act.
trail commission—see regulation 26.
unlicensed carried over instrument lender has the meaning given by modified subsection 5(1) of the Act as set out in item 2.4 of Schedule 2.
unsolicited contact includes contact with a consumer by a person or an associate of the person in relation to the supply of goods and services by the person to the consumer:
(a) in the following circumstances:
(i) the contact is the first contact made by the person;
(ii) the contact is made in person from a non‑standard business premises; or
(b) in the following circumstances:
(i) the contact is made by the person or an associate of the person;
(ii) the contact is not the first contact made by the person or an associate of the person;
(iii) the first contact was made in person from a non‑standard business premises; or
(c) in the following circumstances:
(i) the consumer provided the consumer’s contact details to the person for the sole purpose of being contacted by the person in relation to the supply of goods or services by the person to the consumer;
(ii) the contact is not the first contact made by the person;
(iii) the contact is made on or after the day 3 months after the consumer provided the contact details;
(iv) the contact is not authorised contact; or
(d) in the following circumstances:
(i) the consumer did not provide the consumer’s contact details to the person for the sole purpose of being contacted by the person in relation to the supply of goods or services by the person to the consumer;
(ii) the contact is not described in paragraph (a) or (b);
(iii) the contact is not authorised contact.
volume‑based benefit: see regulation 28VE.
volume bonus arrangement—see regulation 26.
year to which the drawdown cap applies in relation to a credit contract: see subregulation 28VC(2).
(2) In these Regulations, a person is associated with a lessor if: (a) the person and the lessor are related bodies corporate for the purposes of the Corporations Act; or (b) the person is an officer, agent or employee of the lessor, or of any such related body corporate, acting in that capacity; or (c) the person is a supplier in respect of whom the lessor is a linked lessor. (3) In these Regulations, a provision of the Act modified in accordance with Division 2 of Part 2‑4 and Schedule 2 is referred to as modified.
(1A) This regulation is made for the purposes of subsection 15A(2) of the Act. (1) This regulation has effect for the purposes of interpreting a reference (the associate reference), in relation to a person (the primary person), to an associate. (2) A person is not an associate of the primary person except as provided in this regulation. (3) Nothing in this regulation limits the generality of anything else in it. (4) If the primary person is a body corporate, the associate reference includes a reference to: (a) a director or secretary of the body; and (b) a related body corporate; and (c) a director or secretary of a related body corporate. (5) An associate reference includes a reference to: (a) a person in partnership with whom the primary person engages in a credit activity; and (b) subject to subregulation (8), a person who is a partner of the primary person otherwise than because of the engaging in a credit activity in partnership with the primary person; and (c) a trustee of a trust in relation to which the primary person benefits, or is capable of benefiting; and (d) a director of a body corporate of which the primary person is also a director and that engages in a credit activity; and (e) subject to subregulation (8), a director of a body corporate of which the primary person is also a director and that does not engage in a credit activity; and (f) a person in concert with whom the primary person is acting, or proposes to act, in respect of the matter to which the associate reference relates; and (g) a person with whom the primary person is, or proposes to become, associated, whether formally or informally, in any other way, in respect of the matter to which the associate reference relates. (6) If the primary person has entered, or proposes to enter, into a transaction, or has done, or proposes to do, any act or thing, in order to become associated with another person as mentioned in an applicable provision of this regulation, the associate reference includes a reference to that other person. (7) A person is not an associate of another person by virtue of subregulation (5), or by virtue of subregulation (6) as it applies in relation to subregulation (5), merely because one or both of the following occurs: (a) one gives advice to the other, or acts on the other’s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship; (b) one, as a client, gives specific instructions to the other, whose ordinary business includes engaging in credit activities, to enter into a credit contract on the client’s behalf in the ordinary course of that business. (8) For the purposes of proceedings in relation to a matter mentioned in these Regulations in which it is alleged that a person (person 1) was an associate of another person by virtue of paragraph (5)(b) or (e), person 1 is not taken to have been an associate of the other person in relation to a matter by virtue of that paragraph unless it is proved that person 1 knew, or ought to have known, at that time, the material particulars of that matter. (9) A reference to an associate, in relation to an entity (other than a body corporate) that: (a) engages in a credit activity; and (b) is constituted by 2 or more persons; includes a reference to an associate of any of those persons.
Prescribed credit activity (1) For the purposes of item 6 of the table in subsection 6(1) of the Act, the provision of a debt management service is a prescribed activity. Meaning of debt management service (2) A person provides a debt management service if the person: (a) provides debt management assistance to a consumer; or (b) provides credit reporting assistance to a consumer.
Providing assistance to debtors (1) A person provides debt management assistance to a consumer if, by dealing directly with the consumer or the consumer’s agent in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person: (a) suggests that the consumer apply for: (i) a change to a credit contract for which the consumer is the debtor; or (ii) a deferral or waiver of an amount under a credit contract for which the consumer is the debtor; or (iii) a postponement relating to a credit contract for which the consumer is the debtor; or (b) assists the consumer to apply for: (i) a change to a credit contract for which the consumer is the debtor; or (ii) a deferral or waiver of an amount under a credit contract for which the consumer is the debtor; or (iii) a postponement relating to a credit contract for which the consumer is the debtor; or (c) suggests that the consumer: (i) make a complaint or claim to the credit provider, AFCA, ASIC or the Information Commissioner, in relation to a credit contract for which the consumer is (or was) the debtor; or (ii) give a hardship notice (within the meaning of the Code) to the credit provider under a credit contract for which the consumer is (or was) the debtor; or (iii) institute proceedings or take any other action in relation to a credit contract for which the consumer is (or was) the debtor; or (d) assists the consumer to: (i) make a complaint or claim to the credit provider, AFCA, ASIC or the Information Commissioner, in relation to a credit contract for which the consumer is (or was) the debtor; or (ii) give a hardship notice (within the meaning of the Code) to the credit provider under a credit contract for which the consumer is (or was) the debtor; or (iii) institute proceedings or take any other action in relation to a credit contract for which the consumer is (or was) the debtor. It does not matter whether the person does so on the person’s own behalf or on behalf of another person. Providing assistance to guarantors (2) A person provides debt management assistance to a consumer if, by dealing directly with the consumer or the consumer’s agent in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person: (a) suggests that the consumer apply for: (i) a change to a guarantee for which the consumer is the guarantor; or (ii) a deferral or waiver of an amount under a guarantee for which the consumer is the guarantor; or (iii) a postponement relating to a guarantee for which the consumer is the guarantor; or (b) assists the consumer to apply for: (i) a change to a guarantee for which the consumer is the guarantor; or (ii) a deferral or waiver of an amount under a guarantee for which the consumer is the guarantor; or (iii) a postponement relating to a guarantee for which the consumer is the guarantor; or (c) suggests that the consumer: (i) make a complaint or claim to the credit provider, AFCA, ASIC or the Information Commissioner, in relation to a guarantee for which the consumer is (or was) the guarantor; or (ii) institute proceedings or take any other action in relation to a guarantee for which the consumer is (or was) the guarantor; or (d) assists the consumer to: (i) make a complaint or claim to the credit provider, AFCA, ASIC or the Information Commissioner, in relation to a guarantee for which the consumer is (or was) the guarantor; or (ii) institute proceedings or take any other action in relation to a guarantee for which the consumer is (or was) the guarantor. It does not matter whether the person does so on the person’s own behalf or on behalf of another person. Fee, charge or other amount must be paid or payable (3) However, a person does not provide debt management assistance unless a fee, charge or other amount is paid or payable by or on behalf of the consumer in relation to the assistance. (4) For the purposes of subregulation (3), it is immaterial if the fee, charge or other amount is paid or payable to the provider of the assistance or to any other person.
Providing assistance to debtors (1) A person provides credit reporting assistance to a consumer if, by dealing directly with the consumer or the consumer’s agent in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person: (a) suggests that the consumer apply for a change to information collected or held by a credit reporting body in relation to a credit contract for which the consumer is (or was) the debtor; or (b) assists the consumer to apply for a change to information collected or held by a credit reporting body in relation to a credit contract for which the consumer is (or was) the debtor; or (c) suggests that the consumer: (i) make a complaint or claim to the credit provider, the credit reporting body, AFCA, ASIC or the Information Commissioner, regarding information collected or held by a credit reporting body in relation to a credit contract for which the consumer is (or was) the debtor; or (ii) institute proceedings or take any other action regarding information collected or held by a credit reporting body in relation to a credit contract for which the consumer is (or was) the debtor; or (d) assists the consumer to: (i) make a complaint or claim to the credit provider, the credit reporting body, AFCA, ASIC or the Information Commissioner, regarding information collected or held by a credit reporting body in relation to a credit contract for which the consumer is (or was) the debtor; or (ii) institute proceedings or take any other action regarding information collected or held by a credit reporting body in relation to a credit contract for which the consumer is (or was) the debtor. It does not matter whether the person does so on the person’s own behalf or on behalf of another person. Providing assistance to guarantors (2) A person provides credit reporting assistance to a consumer if, by dealing directly with the consumer or the consumer’s agent in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person: (a) suggests that the consumer apply for a change to information collected or held by a credit reporting body in relation to a guarantee for which the consumer is (or was) the guarantor; or (b) assists the consumer to apply for a change to information collected or held by a credit reporting body in relation to a guarantee for which the consumer is (or was) the guarantor; or (c) suggests that the consumer: (i) make a complaint or claim to the credit provider, the credit reporting body, AFCA, ASIC or the Information Commissioner, regarding information collected or held by a credit reporting body in relation to a guarantee for which the consumer is (or was) the guarantor; or (ii) institute proceedings or take any other action regarding information collected or held by a credit reporting body in relation to a guarantee for which the consumer is (or was) the guarantor; or (d) assists the consumer to: (i) make a complaint or claim to the credit provider, the credit reporting body, AFCA, ASIC or the Information Commissioner, regarding information collected or held by a credit reporting body in relation to a guarantee for which the consumer is (or was) the guarantor; or (ii) institute proceedings or take any other action regarding information collected or held by a credit reporting body in relation to a guarantee for which the consumer is (or was) the guarantor. It does not matter whether the person does so on the person’s own behalf or on behalf of another person. Fee, charge or other amount must be paid or payable (3) However, a person does not provide credit reporting assistance unless a fee, charge or other amount is paid or payable by or on behalf of the consumer in relation to the assistance. (4) For the purposes of subregulation (3), it is immaterial if the fee, charge or other amount is paid or payable to the provider of the assistance or to any other person.
The credit limit set out in paragraph (c) of the definition of small amount credit contract in subsection 5(1) of the Act is increased by the amount of each of the following as included in the amount of credit to be provided under the contract: (a) the permitted establishment fee for the contract; (b) the first permitted monthly fee payable under the contract.
Note 1: Section 31A of the Code deals with the fees and charges that can be imposed under a small amount credit contract.
Note 2: While this regulation could raise a credit limit to a maximum of $2,480, no more than $2,000 would be available to the consumer under the contract.
For the definition of prescribed State or Territory order in subsection 5(1) of the Act, orders made under an Act specified in the following table are prescribed.
<table cellspacing="0" cellpadding="0" style="width:98.74%; border-collapse:collapse"><tbody><tr><td style="width:10.56%; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Item</span></p></td><td style="width:89.44%; border-top:1.5pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableHeading"><span>Act</span></p></td></tr><tr><td colspan="2" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">New South Wales</span></p></td></tr><tr><td style="width:10.56%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span>1.1</span></p></td><td style="width:89.44%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-style:italic">Crimes (Criminal Organisations Control) Act 2009</span></p></td></tr><tr><td colspan="2" style="border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">Queensland</span></p></td></tr><tr><td style="width:10.56%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span>3.1</span></p></td><td style="width:89.44%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-style:italic">Criminal Organisation Act 2009</span></p></td></tr><tr><td colspan="2" style="border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext" style="page-break-after:avoid"><span style="font-weight:bold">South Australia</span></p></td></tr><tr><td style="width:10.56%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span>5.1</span></p></td><td style="width:89.44%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="Tabletext"><span style="font-style:italic">Serious and Organised Crime (Control) Act 2008</span></p></td></tr></tbody></table>
(1) A reference in these Regulations to a form of a particular number is a reference to the form of that number in Schedule 1. (2) The number of a form need not appear on a document that is required to comply with the form. (3) A reference to a provision of the Code, or of these Regulations, to which a form relates need not appear on a document that is required to comply with the form. (4) The expression ‘credit provider’, ‘debtor’, ‘lessor’ or ‘lessee’ in a form may be replaced by the name of: (a) the credit provider, debtor, lessor or lessee; or (b) another expression that is explained in the form. (5) A document that is required to comply with a form need not contain any matter that is not relevant to the credit contract, mortgage, guarantee or consumer lease concerned. The consequential renumbering of items is permissible.
Note: Section 208 of the Code makes provision with respect to forms. The section provides, among other things, that strict compliance with a form is not necessary and substantial compliance is sufficient.
Chapter 2—Licensing of persons who engage in credit activities
(1) For paragraph 37(1)(e) of the Act, a foreign entity that: (a) is not a registered foreign company; and (b) applies for an Australian credit licence; must meet the requirements in subregulations (2) and (3). (2) The foreign entity must: (a) have appointed, as an agent, a person who is: (i) an individual or a company; and (ii) a resident in this jurisdiction; and (iii) authorised to accept, on the foreign entity’s behalf, service of process and notices; and (b) lodge, with the application, a memorandum of appointment or a power of attorney that is duly executed by or on behalf of the foreign entity and states the name and address of the agent. (3) If the memorandum of appointment, or power of attorney, lodged under paragraph (2)(b) was executed on behalf of the foreign entity, the foreign entity must also lodge a copy declared in writing to be a true copy of the document authorising the execution. (4) In this regulation:
registered foreign company has the meaning given by section 9 of the Corporations Act 2001.
For paragraph 37(1)(e) of the Act, a requirement in relation to a person who: (a) is a credit provider, lessor, mortgagee or beneficiary of a guarantee in relation to a carried over instrument immediately before 1 July 2010; and (b) intends to engage in a credit activity in relation to the carried over instrument on or after 1 July 2010; and (c) intends to engage in a credit activity otherwise than in relation to the carried over instrument on or after 1 July 2010; is that the person must apply under section 36 of the Act for a licence to engage in the credit activities mentioned in paragraphs (b) and (c).
(1) For section 39 of the Act, if an applicant is: (a) in the class of applicants mentioned in subregulation (2); and (b) is applying for a licence to engage in credit activities of the kind in which the person is authorised to engage under a law of a State or Territory; paragraph 37(1)(b) of the Act applies in relation to the applicant only to the extent that ASIC must consider whether it has reason to believe that the applicant is likely to contravene the obligations that will apply under paragraphs 47(1)(i) and (j) of the Act if the licence is granted. (2) The class of applicants is persons: (a) who have applied for an Australian credit licence; and (b) who are authorised to engage in credit activities under a law of a State or Territory; and (c) who, under the law of the State or Territory, or under a condition imposed on the person by a licensing authority under the law of the State or Territory: (i) are required to comply with the following requirements: (A) the person must comply with the law; (B) the person must have sufficient or adequate resources to ensure the person can comply with the law; (C) the person must be responsible for ensuring that all representatives of the person comply with the law; (D) the person must arrange or provide credit that is appropriate for consumers; (E) the person must act honestly and fairly in the person’s dealings with borrowers and lenders; (F) the person must ensure that the person and all representatives of the person are competent to engage in the credit activities the person is authorised to engage in; (G) if the person is acting as an agent on behalf of a consumer, the person must act in the best interests of the person’s principal; and (ii) are not required to be supervised by another person; and (d) who may be banned from engaging in credit activities under the law of the State or Territory; and (e) who have provided to ASIC a written statement in the approved form that the person will comply with the person’s obligations under the Act. (3) For section 39 of the Act, paragraph 37(1)(c) of the Act does not apply in relation to the class of applicants mentioned in subregulation (4) to the extent that the applicant is applying for a licence to engage in credit activities of the kind the person was authorised to engage in under a law of a State or Territory. (4) The class of applicants is persons who: (a) are in the class of applicants mentioned in subregulation (2); and (b) are authorised to engage in credit activities under a law of a State or Territory that: (i) requires the person to demonstrate that the person is a fit and proper person (however described); or (ii) deems the person to be ineligible to engage in credit activities if the person is not a fit and proper person (however described). (5) For section 39 of the Act, if an applicant is in the class of applicants mentioned in subregulation (7) or (8): (a) section 37 of the Act does not apply in relation to the applicant; and (b) if: (i) the applicant applies under section 36 of the Act for a licence; and (ii) the application includes a statement, in accordance with the requirements of the approved form, to the effect that the applicant will, if granted the licence, comply with the applicant’s obligations as a licensee; ASIC must grant the applicant a licence. (6) If ASIC grants the applicant a licence under subregulation (5), the licence must authorise the licensee to engage in credit activities that equate, as closely as possible, to the credit activities in relation to which the application was made. (7) The class of applicants is persons who: (a) are authorised as a general insurer by APRA under section 12 of the Insurance Act 1973; and (b) are included on the Register of General Insurers and Authorised NOHCs; and (c) offer lenders mortgage insurance products; and (d) engage in credit activities only: (i) as an assignee in relation to providing the mortgage insurance products; or (ii) as the credit provider under the doctrine of subrogation in relation to providing the mortgage insurance products. (8) The class of applicants is persons who: (a) are registered by APRA under section 21 of the Life Insurance Act 1995; and (b) engage in credit activities in relation to the provision of credit only because of the operation of the terms and conditions of: (i) a life policy (within the same meaning as in that Act) that was entered into before 1 July 2010 by the person; or (ii) a document issued or given by the person in relation to a life policy (within the same meaning as in that Act) that was entered into before 1 July 2010 by the person.
(1) For section 45 of the Act, an Australian credit licence is subject to the conditions set out in this regulation. (2) If: (a) there is a change in a matter particulars of which are entered in the credit register for licensees; and (b) the change is not a direct consequence of an act by ASIC; the licensee must lodge particulars of the change with ASIC, in the approved form, within 10 business days after the change occurs. (3) If: (a) there is a change in a matter particulars of which are entered in the credit register for credit representatives; and (b) the change is not required to be reported in accordance with section 71 of the Act; and (c) the change is not a direct consequence of an act by ASIC; the licensee must ensure that particulars of the change are lodged with ASIC in the approved form within 15 business days after the change occurs. (4) The licensee must ensure that each credit representative of the licensee that may give an authorisation to an individual is aware of the requirements in section 71 of the Act. (5) The licensee must ensure that, before the licensee authorises an individual to engage in a credit activity on its behalf as mentioned in section 64 of the Act, reasonable inquiries are made to establish: (a) the individual’s identity; and (b) whether the individual has already been allocated a number by ASIC as a credit representative. (6) The licensee must ensure that, before a body corporate that is a credit representative of the licensee authorises an individual to engage in a credit activity on behalf of the licensee as mentioned in section 65 of the Act, reasonable inquiries are made to establish: (a) the individual’s identity; and (b) whether the individual has already been allocated a number by ASIC as a credit representative. (7) The licensee must ensure that, if: (a) ASIC has allocated a number to a credit representative; and (b) the licensee, or a body corporate that has authorised an individual to engage in a credit activity on behalf of the licensee as mentioned in section 65 of the Act, lodges a document with ASIC that refers to the credit representative; the document refers to the number. (8) The licensee must provide evidence of an authorisation of any of its credit representatives: (a) on request by any person; and (b) free of charge; and (c) as soon as practicable after receiving the request and, in any event, within 10 business days after the day on which it received the request. (9) The licensee must take reasonable steps to ensure that each of its credit representatives supplies evidence of its authorisation by the licensee: (a) on request by any person; and (b) free of charge; and (c) as soon as practicable after receiving the request and, in any event, within 10 business days after the day on which the credit representative received the request. (10) If the licensee becomes aware of any change in control of the licensee, the licensee must lodge with ASIC particulars of the change, in the approved form, not later than 10 business days after the change. (11) For subregulation (10): (a) a change in control, in relation to a licensee, includes a transaction, or a series of transactions in a period of 12 months, that results in a person having control of the licensee, either alone or together with associates of the person; and (b) control, in relation to a licensee, means: (i) if the licensee is a body corporate: (A) the capacity to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the licensee; or (B) directly or indirectly holding more than one half of the issued share capital of the licensee (not including any part of the issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or (ii) the capacity to control the composition of the licensee’s board or governing body; or (iii) the capacity to determine the outcome of decisions about the licensee’s financial and operating policies. (12) For subparagraph (11)(b)(iii), the following matters must be taken into account in determining whether a person has the capacity to determine the outcome of decisions about the licensee’s financial and operating policies: (a) the practical influence the person can exert (rather than the rights it can enforce); (b) any practice or pattern of behaviour affecting the licensee’s financial or operating policies (whether or not it involves a breach of an agreement or a breach of trust). (13) On the request of any person, the licensee must make available, within 10 business days, evidence of its Australian credit licence for inspection by that person. (14) If: (a) the licensee is not a body regulated by APRA; and (b) an event occurs that may make a material adverse change to the financial position of the licensee by comparison with its financial position: (i) at the time of the application for the Australian credit licence; or (ii) as described in documents lodged with ASIC after the application for the Australian credit licence; the licensee must lodge with ASIC in the approved form a notice setting out particulars of the event as soon as practicable, and in any case not later than 3 business days, after the licensee becomes aware of the event.
(1) For subsection 45(7) of the Act, the licence is subject to the conditions set out in this regulation if the licensee is a party to a servicing agreement with a special purpose funding entity. (2) The licensee must lodge with ASIC a notice, in an approved form, stating that the licensee is a party to a servicing agreement with a special purpose funding entity. (3) For subregulation (2): (a) if the servicing agreement was entered into before 1 July 2010, the licensee must notify ASIC no later than 30 business days after 1 July 2010; and (b) if the servicing agreement was entered into on or after 1 July 2010, the licensee must lodge with ASIC a notice, in an approved form and stating that the service agreement was entered into, no later than 20 business days after the servicing agreement was entered into. (4) If the licensee ceases to be a party to a servicing agreement with a special purpose funding entity, the licensee: (a) must lodge with ASIC a notice, in an approved form, stating that the licensee has ceased to be a party to the servicing agreement with the entity; and (b) must lodge the notice no later than 15 business days after the licensee ceases to be a party. (5) The licensee: (a) must lodge with ASIC a notice, in an approved form, setting out any action by a natural person in a position to control or influence the special purpose funding entity that has or may have the effect of directing the licensee to act inconsistently with: (i) the licensee’s licence conditions; or (ii) the credit legislation; and (b) must lodge the notice no later than 15 business days after the action occurs.
(1) For subsection 45(7) of the Act, a licensee who engages in a credit activity, on or after 1 October 2010, as a consequence of being a licensee described in subregulation 25(5) is subject to the conditions set out in this regulation.
Note: The licensee, or a representative of the licensee, provides the credit activity to a person by contacting the person after a referral by the referrer described in subregulation 25(5).
Register of referrers (2) The licensee must keep, or have access to, a register of the referrers described in subregulation 25(5): (a) with which the licensee has an agreement of the kind described in paragraph 25(5)(a); or (b) who have been made a written offer of the kind described in sub‑subparagraph 25(5)(b)(ii)(B). (3) The register must include: (a) the referrer’s name and contact details; and (b) the date and means by which the referrer was advised in writing of the way in which the referrer may engage in credit activities under the agreement; and (c) the day on which the referrer first engaged in the conduct described in subparagraph 25(5)(c)(ii) under the agreement.
Note: The conduct is giving to the licensee, registered person or representative the consumer’s name.
(4) The licensee must make the register available to ASIC on request. Contact after referral (5) The licensee may only contact the consumer described in subregulation 25(5) if he or she does so within 10 business days after receiving the referral from the referrer described in that subregulation. (6) If the licensee contacts the consumer in person, the licensee must begin the discussion with the consumer (after the licensee has identified itself) by statements to the following effect: (a) ‘I am contacting you because we have been provided with your contact details by [name of referrer]. Can you confirm that you agreed with [name of referrer] to have us contact you?’; (b) if a payment of indirect remuneration or a financial benefit may be given to the referrer—‘before we continue, I would like to let you know that if you take up any of our products or services, [name of referrer] may receive the following financial benefits [brief description]’; (c) ‘are you happy to continue this discussion?’. (7) If the licensee contacts the consumer by letter or email, the licensee must include statements to the following effect at the start of the letter or email: (a) the licensee is contacting the consumer as a result of being provided with their contact details by the referrer (identifying the referrer by name); (b) the referrer may receive a financial benefit or payment.
(1) For modified section 45 of the Act, an unlicensed carried over instrument lender is subject to the conditions set out in this regulation. (2) If: (a) there is a change in a matter, particulars of which are entered in the credit register for unlicensed carried over instrument lenders; and (b) the change is not a direct consequence of an act by ASIC; the lender must lodge particulars of the change with ASIC, in the approved form, no later than 10 business days after the change occurs. (3) If the lender becomes aware of any change in control of the lender, the lender must lodge with ASIC particulars of the change, in the approved form, not later than 10 business days after the change. (4) For subregulation (3): (a) a change in control, in relation to a lender, includes a transaction, or a series of transactions in a period of 12 months, that results in a person having control of the lender, either alone or together with associates of the person; and (b) control, in relation to a lender, means: (i) if the lender is a body corporate: (A) the capacity to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the lender; or (B) directly or indirectly holding more than one half of the issued share capital of the lender (not including any part of the issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or (ii) the capacity to control the composition of the lender’s board or governing body; or (iii) the capacity to determine the outcome of decisions about the lender’s financial and operating policies. (5) For subparagraph (4)(b)(iii), the following matters must be taken into account in determining whether a person has the capacity to determine the outcome of decisions about the lender’s financial and operating policies: (a) the practical influence the person can exert (rather than the rights it can enforce); (b) any practice or pattern of behaviour affecting the lender’s financial or operating policies (whether or not it involves a breach of an agreement or a breach of trust). (6) If: (a) the lender is not a body regulated by APRA; and (b) an event occurs that may make a material adverse change to the financial position of the lender by comparison with its financial position: (i) at the time it became an unlicensed carried over instrument lender; or (ii) as described in documents lodged with ASIC after it became an unlicensed carried over instrument lender; the lender must lodge with ASIC in the approved form a notice setting out particulars of the event as soon as practicable, and in any case not later than 3 business days, after the lender becomes aware of the event.
(1) For subparagraph 47(1)(h)(i) of the Act, ASIC must take the following matters into account when considering whether to make or approve standards or requirements relating to internal dispute resolution: (a) Australian/New Zealand Standard AS/NZS 10002:2014 Guidelines for complaint management in organizations published jointly by, or on behalf of, Standards Australia and Standards New Zealand, as in force or existing on 29 October 2014; (b) any other matter ASIC considers relevant. (2) ASIC may: (a) vary or revoke a standard or requirement that it has made in relation to an internal dispute resolution procedure; and (b) vary or revoke the operation of a standard or requirement that it has approved in its application to an internal dispute resolution procedure. (5) For the purposes of paragraph 110(1)(a) of the Act, a licensee who engages in credit activities in the capacity of any of the following: (a) a trustee appointed under the will or on the intestacy of a person; (b) a trustee appointed under an express trust if: (i) the settlor is an individual; and (ii) the interest in the trust is not a credit contract; (c) an attorney appointed under an enduring power of attorney; is exempt from the requirements in paragraph 47(1)(i) of the Act in relation to the credit activities if complaints about the credit provided by the licensee may be made to the Ombudsman of a State or Territory.
(1) For paragraph 47(1)(m) of the Act, a foreign entity that: (a) is not a foreign company; and (b) is a licensee; must meet the requirements in subregulation (2). (2) The foreign entity must: (a) at all times, have an agent who is: (i) an individual or a company; and (ii) resident in this jurisdiction; and (iii) authorised to accept, on the foreign entity’s behalf, service of process and notices; and (b) notify ASIC of any change to: (i) the agent; or (ii) the name or address of the agent; not later than 1 month after the change; and (c) make arrangements that ensure that ASIC may treat a document as being served on the foreign entity by leaving it at, or by sending it by post to: (i) an address of the agent that has been notified to ASIC; or (ii) if a notice or notices of a change or alteration to that address has or have been given to ASIC—the address shown in the most recent notice.
(1) For the purposes of paragraph 47(1)(m) of the Act, a licensee must comply with the obligations in subregulation (2). (2) The licensee must take reasonable steps to cooperate with AFCA in resolving any complaint under the AFCA scheme to which the licensee is a party, including by: (a) giving reasonable assistance to AFCA in resolving the complaint; and (b) identifying, locating and providing to AFCA any documents and information that AFCA reasonably requires for the purposes of resolving the complaint; and (c) giving effect to any determination made by AFCA in relation to the complaint. (3) Subregulation (2) does not apply to superannuation complaints (within the meaning of the Corporations Act 2001).
Note: For provisions relating to superannuation complaints, see Division 3 of Part 7.10A of the Corporations Act 2001.
(1) For paragraph 48(2)(a) of the Act, and unless the licensee is an exempt licensee, the arrangements mentioned in subsection 48(1) of the Act are subject to the requirement that the licensee hold professional indemnity insurance cover that is adequate, having regard to: (a) the licensee’s membership of the AFCA scheme, taking account of the maximum liability that has, realistically, some potential to arise in connection with: (i) any particular claim against the licensee; and (ii) all claims in respect of which the licensee could be found to have liability; and (b) relevant considerations in relation to the engaging in a credit activity by the licensee, including: (i) the volume of business involved in the credit activity; and (ii) the number and kind of clients; and (iii) the kind, or kinds, of credit activities involved; and (iv) the number of representatives of the licensee. (2) For paragraph 48(3)(c) of the Act, a matter to which ASIC must have regard, before approving particular arrangements under paragraph 48(2)(b) of the Act, is whether those arrangements would provide coverage that is adequate, having regard to matters of the kind mentioned in subregulation (1). (3) In this regulation:
exempt licensee means any of the following:
(a) a company or institution of any of the following kinds:
(i) a general insurance company authorised by APRA under section 12 of the Insurance Act 1973, and included on the Register of General Insurers and Authorised NOHCs;
(ii) a life insurance company registered with APRA under section 21 of the Life Insurance Act 1995;
(iii) an authorised deposit‑taking institution;
(b) a licensee:
(i) that is related (within the meaning of section 50 of the Corporations Act) to a company or institution mentioned in paragraph (a); and
(ii) in respect of which the company or institution has provided a guarantee that:
(A) ensures payment of the obligations of the licensee to an extent that is adequate within the meaning of subregulation (1); and
(B) is approved in writing by ASIC;
(c) a licensee whose license:
(i) is subject to a condition under subsection 45(6) of the Act that the licensee is only authorised to engage in credit activities mentioned in item 1, 3, 4 or 5 in the table in subsection 6(1) of the Act; and
(ii) is not subject to a condition that the licensee hold professional indemnity insurance;
(d) a licensee who:
(i) has a licence to provide a credit service within the meaning given by section 7 of the Act; and
(ii) will only provide the credit service in relation to:
(A) credit contracts for which the licensee is the credit provider; or
(B) consumer leases for which the licensee is the lessor.
Note: For paragraph (b), a decision to refuse to approve a guarantee is a reviewable decision under section 327 of the Act.
For the purposes of paragraph 50A(4)(b) of the Act: (a) the following civil penalty provisions of the Act are prescribed: (i) subsection 52(2); (ii) subsection 53(1); (iii) subsection 53(4); (iv) subsection 71(1); (v) subsection 71(2); (vi) subsection 71(4); (vii) subsection 88(1); (viii) subsection 113(1); (ix) subsection 120(1); (x) subsection 124B(1); (xi) subsection 126(1); (xii) subsection 127(1); (xiii) subsection 132(2); (xiv) subsection 133AC(2); (xv) subsection 133AD(2); (xvi) subsection 133AE(2); (xvii) subsection 133BC(1); (xviii) subsection 133BD(1); (xix) subsection 133BFA(2); (xx) subsection 133BJ(1); (xxi) subsection 133BU(2); (xxii) subsection 133CR(1); (xxiii) subsection 133CR(3); (xxiv) subsection 133CU(1); (xxv) subsection 133DC(2); (xxvi) subsection 133DD(2); (xxvii) subsection 133DE(1); (xxviii) subsection 133DE(2); (xxix) subsection 136(1); (xxx) subsection 143(1); (xxxi) subsection 149(1); (xxxii) subsection 150(1); (xxxiii) subsection 155(2); (xxxiv) subsection 158(1); (xxxv) subsection 160(1); (xxxvi) subsection 160(2); (xxxvii) subsection 160B(1); (xxxviii) subsection 160C(1); (xxxix) section 238D; and (b) subsection 174(3) of the Code is prescribed; and (c) all civil penalty provisions of Commonwealth legislation that is covered by paragraph (d) of the definition of credit legislation in subsection 5(1) of the Act are prescribed.
For the purposes of paragraph 50A(4)(c) of the Act, the key requirements (within the meaning of the Code) contained in the following provisions of the Code are prescribed: (a) subsection 17(3); (b) subsection 17(4); (c) subsection 17(5); (d) subsection 17(6); (e) paragraphs 17(8)(a) and (b); (f) subsection 17(9); (g) subsection 17(11); (h) paragraphs 17(15)(a) and (b); (i) subsection 17(15A); (j) subsection 34(6); (k) section 35.
(1) For subsection 52(2) of the Act, the following kinds of documents are prescribed: (a) a document that is required to be created or produced in accordance with Chapter 3 of the Act; (b) a printed advertisement that relates to the provision of credit to which the Code would apply; (c) a document that is required to be created, produced, given or published by a provision of the Code; (d) a document lodged with ASIC that relates to the provision of credit to which the Code would apply.
Note: Under subsection 52(3) of the Act, a person commits an offence if:
(a) the person is subject to a requirement to include and identify its Australian credit licence number in a document prescribed by the regulations; and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
(2) For the purposes of paragraph (1)(b), if a printed advertisement identifies more than 1 licensee, or uses a word or description that covers more than 1 licensee, subsection 52(2) of the Act is modified to provide that only 1 of the licensees must comply with paragraphs 52(2)(a) and (b) of the Act.
Note: Paragraph 110(1)(c) of the Act provides that the regulations may provide that Chapter 2 of the Act applies as if specified provisions were omitted, modified or varied as specified in the regulations.
For paragraph 53(3)(b) of the Act, the following persons are prescribed: (a) if the body corporate is not an ADI: (i) the Chief Executive Officer of the body corporate; or (ii) if the body corporate does not have a Chief Executive Officer—the person who: (A) is responsible for managing the affairs of the body corporate; and (B) has authority to make decisions in relation to the allocation of resources so that the body corporate complies with the Act; (b) if the body corporate is an ADI: (i) the Chief Executive Officer of the body corporate; or (ii) a person who satisfies the criteria to be fit and proper to hold a responsible person position under Prudential Standard APS 520.
Note: Prudential Standard APS 520 is in Schedule 1 to the Banking (prudential standard) determination No. 1 of 2006—Prudential Standard APS 520 Fit and Proper.
For paragraph 55(2)(e) of the Act, the following are matters that ASIC must have regard to: (a) a licensee failing to lodge an annual compliance certificate under section 53 of the Act; (b) a licensee lodging an annual compliance certificate that contains information that: (i) is false or misleading; or (ii) can not reasonably be believed to be true by the person signing the certificate under subsection 53(3) of the Act.
For the purposes of paragraph 110(1)(c) of the Act, paragraph 65(6)(c) of the Act is modified to include after ‘the AFCA scheme’ the words ‘and is not an employee or director of the body corporate’.
Note: Paragraph 110(1)(c) of the Act provides that the regulations may provide that Chapter 2 of the Act applies as if specified provisions were omitted, modified or varied as specified in the regulations.
For paragraph 100(3)(b) of the Act, the trust account audit report must include a statement about the following matters: (a) whether, in the opinion of the auditor, the licensee’s trust accounts have been kept regularly and properly maintained; (b) whether the auditor received all necessary records, information and explanations from the licensee; (c) whether, in the opinion of the auditor, the licensee’s trust accounts provide a true and fair view of the transactions recorded and the balance at the end of the relevant period; (d) any other matter in relation to the trust accounts which should, in the opinion of the auditor, be communicated to ASIC.
(1) For subsection 100(4) of the Act, a person is ineligible to prepare a trust account audit report for a credit service licensee if: (a) the person does not meet the requirements of regulation 19; or (b) the person is not an authorised audit company (within the meaning given by section 9 of the Corporations Act); or (c) the person owes an amount to, or is owed an amount by: (i) the credit service licensee; or (ii) if the credit service licensee is a body corporate—a related body corporate of the credit service licensee; or (d) a body corporate in which the person has a substantial holding owes an amount to, or is owed an amount by: (i) the credit service licensee; or (ii) if the credit service licensee is a body corporate—a related body corporate of the credit service licensee; or (e) if the credit service licensee is a body corporate—the person is: (i) an officer of the body corporate; or (ii) a partner or employee of an officer of the body corporate. (2) For paragraph (1)(c), a debt owed by an individual to a body corporate is to be disregarded if: (a) the body corporate is: (i) an Australian ADI; or (ii) a body corporate registered under the Life Insurance Act 1995; and (b) the debt arose because of a loan that the body corporate made to the individual in the ordinary course of the body corporate’s ordinary business; and (c) the individual used the amount of the loan to pay the whole or part of the purchase price of premises that the individual uses as his or her principal place of residence. (3) For subparagraphs (1)(e)(i) and (ii), a person is taken to be an officer of a body corporate if: (a) the person is an officer of a related body corporate; or (b) unless ASIC directs that this paragraph does not apply in relation to the person—the person has, at any time within the immediately preceding period of 12 months, been an officer or promoter of the body corporate or of a related body corporate. (4) For this regulation, a person is not taken to be an officer of a body corporate by reason only: (a) of being or having been the liquidator of the body corporate or of a related body corporate; or (b) of having been appointed as an auditor of the body corporate or of a related body corporate; or (c) of being a public officer of the body corporate for any purpose relating to taxation; or (d) of being or having been authorised to accept service of process or any notices on behalf of the body corporate or a related body corporate.
(1) For paragraph 106(c) of the Act, this regulation: (a) sets out who is eligible to be an auditor for the purpose of preparing the audit reports mentioned in paragraph 102(1)(b) of the Act; and (b) sets out when a person may be appointed as an auditor.
Note: Paragraph 106(c) of the Act provides that the regulations may make provision in relation to the auditors that prepare the audit reports mentioned in paragraphs 106(a) and (b) of the Act.
Eligibility to be an auditor (2) A person is eligible to be appointed as an auditor for the purpose mentioned in paragraph (1)(a) only if: (a) the person is a registered company auditor or an authorised audit company (within the meaning given by section 9 of the Corporations Act); and (b) the person: (i) is not an employee, director or partner: (A) of the licensee; or (B) of any other person carrying on a business of engaging in credit activities; and (ii) is not carrying on a business of engaging in credit activities. Appointment as an auditor (3) A licensee must: (a) within 3 months of being required to open a trust account, appoint a person who meets the requirements of subregulation (2) to be the licensee’s auditor; and (b) lodge with ASIC a notice, in the approved form, of the appointment within 14 days after appointing the person. (4) If a person is appointed as a licensee’s auditor, the appointment is continuous until the first of the following events occurs: (a) the licensee is no longer required to keep a trust account; (b) the auditor dies or otherwise ceases to engage in the business of being an auditor; (c) the auditor is unable to perform his or her duties as the licensee’s auditor; (d) ASIC approves the auditor’s resignation; (e) ASIC approves a request by the licensee to replace the person as an auditor. (5) If a person ceases to be a licensee’s auditor under paragraph (4)(b), (c), (d) or (e), the licensee must: (a) within 28 days of the cessation of the appointment, appoint another person who meets the requirements of subregulation (2) to be the licensee’s auditor; and (b) lodge with ASIC a notice, in the approved form, of the appointment within 14 days after appointing the person.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
These Regulations are the National Consumer Credit Protection Regulations 2010.
(1) In these Regulations:
Act means the National Consumer Credit Protection Act 2009.
AFCA (short for the Australian Financial Complaints Authority) has the same meaning as in the Corporations Act.
agreed price, of goods hired under a consumer lease: see subregulation 105AA(2).
annual percentage rate has the same meaning as in section 27 of the Code.
Australian ADI has the meaning given by section 9 of the Corporations Act.
authorised contact means contact with a consumer by a person in relation to the supply of goods or services by the person to the consumer, if the contact is made:
(a) no later than 3 months after the consumer provided his or her contact details:
(i) to the person; and
(ii) for the purpose of being contacted about the supply of the goods or services; or
(b) by posting to, or leaving at, a residential address written promotional material about goods or services; or
(c) in relation to the possible return of goods supplied to the consumer or the possible provision of replacement goods to the consumer.
campaign‑based benefit: see regulation 28VF.
carried over instrument has the meaning given by subsection 4(1) of the Transitional Act.
clawback requirements: see regulation 28VG.
Code means the National Credit Code.
Corporations Act means the Corporations Act 2001.
credit card means:
(a) a card of a kind commonly known as a credit card; or
(b) a card of a kind that persons carrying on business commonly issue to their customers, or prospective customers, for use in obtaining goods or services from those persons on credit; or
(c) anything else that may be used as a card mentioned in paragraph (a) or (b).
credit card contract means a continuing credit contract (as defined in section 204 of the Code) under which credit is ordinarily obtained only by the use of a credit card.
credit reporting assistance: see regulation 4C.
debt management assistance: see regulation 4B.
debt management service: see subregulation 4A(2).
default rate has the same meaning as in section 27 of the Code.
drawdown cap: see subregulation 28VC(1) for the benefits to which the drawdown cap applies.
electronic document retrieval system: see regulation 72C.
excluded amount: see subregulation 28VD(3).
exempt public authority means a body corporate that is incorporated within Australia or an external Territory and is:
(a) a public authority; or
(b) an instrumentality or agency of the Crown in right of the Commonwealth, in right of a State or in right of a Territory.
exempt special purpose funding entity means a special purpose funding entity that is engaging in a credit activity and is exempt, under regulation 23B or 23C, from the requirement to hold a licence.
financial counselling association has the same meaning as in regulation 7.6.01 of the Corporations Regulations 2001.
financial counselling service means a counselling and advocacy service provided predominantly for the purpose of assisting individuals who are in financial difficulty to resolve their problems.
foreign company means either of the following:
(a) a body corporate that is incorporated in an external Territory, or outside Australia and the external Territories, and is not:
(i) a corporation sole; or
(ii) an exempt public authority;
(b) an unincorporated body that:
(i) is formed in an external Territory or outside Australia and the external Territories; and
(ii) under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and
(iii) does not have its head office or principal place of business in Australia.
fund raising special purpose entity has the meaning given by subsection 5(1) of the Act as modified by item 3.2 of Schedule 3.
home renovation or improvement facility: see subregulation 28VC(4).
inappropriate person means:
(a) a person in relation to whom:
(i) a prescribed State or Territory order is in force; or
(ii) a banning or disqualification order under Division 8 of Part 7.6 of the Corporations Act 2001 is in force; or
(b) a person who is banned from engaging in a credit activity under:
(i) a law of a State or Territory; or
(ii) Part 2‑4 of the Act; or
(c) a person who has been convicted of a serious fraud during the last 10 years; or
(d) a person who is disqualified from managing a corporation under Part 2D.6 of the Corporations Act 2001; or
(e) a person:
(i) who is registered to engage in credit activities under Schedule 2 of the Transitional Act; and
(ii) whose registration is suspended under a provision of item 23 of Schedule 2 to the Transitional Act, other than under paragraph 23(1)(a) or (b); or
(f) a person:
(i) who has been registered to engage in credit activities under Schedule 2 of the Transitional Act; and
(ii) whose registration has been cancelled under a provision of item 23 of Schedule 2 to the Transitional Act, other than paragraph 23(1)(a) or (b); or
(g) a person:
(i) who is the holder of an Australian credit licence; and
(ii) whose licence is suspended on a ground mentioned in subsection 54(1) of the Act, other than a ground mentioned in paragraph 54(1)(a) or (b); or
(h) a person:
(i) who has been the holder of an Australian credit licence; and
(ii) whose licence has been cancelled on a ground mentioned in subsection 54(1) of the Act, other than a ground mentioned in paragraph 54(1)(a) or (b).
(i) a person:
(i) who is the holder of an Australian financial services licence; and
(ii) whose licence is suspended on a ground mentioned in section 915B of the Corporations Act 2001, other than a ground mentioned in any of the following paragraphs:
(A) paragraph 915B(1)(a) or (e);
(B) paragraph 915B(2)(a) or (d);
(C) paragraph 915B(3)(a) or (d);
(D) paragraph 915B(4)(a) or (d); or
(j) a person:
(i) who has been the holder of an Australian financial services licence; and
(ii) whose licence has been cancelled on a ground mentioned in section 915B of the Corporations Act 2001, other than a ground mentioned in any of the following paragraphs:
(A) paragraph 915B(1)(a) or (e);
(B) paragraph 915B(2)(a) or (d);
(C) paragraph 915B(3)(a) or (d);
(D) paragraph 915B(4)(a) or (d).
lawyer, for the purpose of regulation 24 has the meaning given by the modified definition of lawyer set out in subregulation 24(10).
line of credit facility: see subregulation 28VC(3).
linked credit provider, for the purpose of regulation 23A, has the meaning given by the modified definition of linked credit provider set out in regulation 25C.
linked credit provider or lessor, for the purpose of regulation 23, has the meaning given by the modified definition of linked credit provider set out in regulation 25B.
managed contract—see regulation 26.
maximum drawdown net of offset: see subregulations 28VD(1) and (2).
mortgage manager—see regulation 26.
non‑standard business premises means business premises that are not physically separate from premises regularly used by consumers for purposes other than being contacted in relation to the supply of goods or services.
officer of a body corporate has the meaning given by the definition of officer of a corporation (as it relates to a body corporate) in section 9 of the Corporations Act.
offset account, held by a consumer who is a debtor under a credit contract, has the meaning given by subregulation 28VD(4).
precontractual document means any of the following:
(a) a precontractual statement mentioned in paragraph 16(1)(a) of the Code;
(b) a document forming part of a precontractual statement;
(c) a notice varying a precontractual statement;
(d) an information statement mentioned in paragraphs 16(1)(b) or 16(1A)(b) of the Code.
product designer—see regulation 26.
public officer, of a body corporate, means a person appointed under section 252 of the Income Tax Assessment Act 1936 as it relates to a body corporate.
registered debt agreement administrator means a person registered by the Insolvency and Trustee Service Australia as a debt agreement administrator under Part IX of the Bankruptcy Act 1966.
registered person has the same meaning as in the Transitional Act.
restructuring practitioner has the same meaning as in the Corporations Act.
rural financial counselling service means a counselling and advocacy service provided mainly for the purpose of assisting primary producers, or rural or regional small businesses, who are in financial difficulty.
rural financial counselling service provider means a body that is funded wholly or partly by the Commonwealth, a State or a Territory to provide a rural financial counselling service.
securitisation entity has the meaning given by subsection 5(1) of the Act as modified by item 3.4 of Schedule 3.
services, for the purposes of regulations 23 and 23A, has the meaning given by the modified definition of services set out in regulation 25D.
servicing agreement has the meaning given by subsection 5(1) of the Act as modified by item 3.4 of Schedule 3.
special purpose funding entity has the meaning given by subsection 5(1) of the Act as modified by item 3.4 of Schedule 3.
substantial holding has the meaning given by the definition of that term (as it relates to a body corporate) in section 9 of the Corporations Act.
trail commission—see regulation 26.
unlicensed carried over instrument lender has the meaning given by modified subsection 5(1) of the Act as set out in item 2.4 of Schedule 2.
unsolicited contact includes contact with a consumer by a person or an associate of the person in relation to the supply of goods and services by the person to the consumer:
(a) in the following circumstances:
(i) the contact is the first contact made by the person;
(ii) the contact is made in person from a non‑standard business premises; or
(b) in the following circumstances:
(i) the contact is made by the person or an associate of the person;
(ii) the contact is not the first contact made by the person or an associate of the person;
(iii) the first contact was made in person from a non‑standard business premises; or
(c) in the following circumstances:
(i) the consumer provided the consumer’s contact details to the person for the sole purpose of being contacted by the person in relation to the supply of goods or services by the person to the consumer;
(ii) the contact is not the first contact made by the person;
(iii) the contact is made on or after the day 3 months after the consumer provided the contact details;
(iv) the contact is not authorised contact; or
(d) in the following circumstances:
(i) the consumer did not provide the consumer’s contact details to the person for the sole purpose of being contacted by the person in relation to the supply of goods or services by the person to the consumer;
(ii) the contact is not described in paragraph (a) or (b);
(iii) the contact is not authorised contact.
volume‑based benefit: see regulation 28VE.
volume bonus arrangement—see regulation 26.
year to which the drawdown cap applies in relation to a credit contract: see subregulation 28VC(2).
(2) In these Regulations, a person is associated with a lessor if: (a) the person and the lessor are related bodies corporate for the purposes of the Corporations Act; or (b) the person is an officer, agent or employee of the lessor, or of any such related body corporate, acting in that capacity; or (c) the person is a supplier in respect of whom the lessor is a linked lessor. (3) In these Regulations, a provision of the Act modified in accordance with Division 2 of Part 2‑4 and Schedule 2 is referred to as modified.
(1A) This regulation is made for the purposes of subsection 15A(2) of the Act. (1) This regulation has effect for the purposes of interpreting a reference (the associate reference), in relation to a person (the primary person), to an associate. (2) A person is not an associate of the primary person except as provided in this regulation. (3) Nothing in this regulation limits the generality of anything else in it. (4) If the primary person is a body corporate, the associate reference includes a reference to: (a) a director or secretary of the body; and (b) a related body corporate; and (c) a director or secretary of a related body corporate. (5) An associate reference includes a reference to: (a) a person in partnership with whom the primary person engages in a credit activity; and (b) subject to subregulation (8), a person who is a partner of the primary person otherwise than because of the engaging in a credit activity in partnership with the primary person; and (c) a trustee of a trust in relation to which the primary person benefits, or is capable of benefiting; and (d) a director of a body corporate of which the primary person is also a director and that engages in a credit activity; and (e) subject to subregulation (8), a director of a body corporate of which the primary person is also a director and that does not engage in a credit activity; and (f) a person in concert with whom the primary person is acting, or proposes to act, in respect of the matter to which the associate reference relates; and (g) a person with whom the primary person is, or proposes to become, associated, whether formally or informally, in any other way, in respect of the matter to which the associate reference relates. (6) If the primary person has entered, or proposes to enter, into a transaction, or has done, or proposes to do, any act or thing, in order to become associated with another person as mentioned in an applicable provision of this regulation, the associate reference includes a reference to that other person. (7) A person is not an associate of another person by virtue of subregulation (5), or by virtue of subregulation (6) as it applies in relation to subregulation (5), merely because one or both of the following occurs: (a) one gives advice to the other, or acts on the other’s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship; (b) one, as a client, gives specific instructions to the other, whose ordinary business includes engaging in credit activities, to enter into a credit contract on the client’s behalf in the ordinary course of that business. (8) For the purposes of proceedings in relation to a matter mentioned in these Regulations in which it is alleged that a person (person 1) was an associate of another person by virtue of paragraph (5)(b) or (e), person 1 is not taken to have been an associate of the other person in relation to a matter by virtue of that paragraph unless it is proved that person 1 knew, or ought to have known, at that time, the material particulars of that matter. (9) A reference to an associate, in relation to an entity (other than a body corporate) that: (a) engages in a credit activity; and (b) is constituted by 2 or more persons; includes a reference to an associate of any of those persons.
Prescribed credit activity (1) For the purposes of item 6 of the table in subsection 6(1) of the Act, the provision of a debt management service is a prescribed activity. Meaning of debt management service (2) A person provides a debt management service if the person: (a) provid
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