41Avoidance purposes relating to product intervention orders

#### 41 Avoidance purposes relating to product intervention orders (1) This regulation is made for the purposes of subsection 323B(3) of the Act. Changes in behaviour (2) In determining, for the purposes of section 323A of the Act, whether it would be reasonable to conclude that a purpose of a person (the assessed person) entering into or carrying out (to any extent) a scheme was to avoid the application of a product intervention order made under Part 6‑7A that applies to the assessed person or to an associate of the assessed person, regard must be had to whether the conditions in subregulation (3) or (4) are satisfied. > Note: For associate, see section 15A of the Act. (3) For the purposes of subregulation (2), the conditions in this subregulation are that: (a) the product intervention order applies to the assessed person; and (b) before the order was made, the assessed person had engaged in conduct that would have contravened, or would be likely to have contravened, the order if it had been engaged in after the order was made; and (c) the assessed person has not contravened, is not likely to have contravened, or purports not to have contravened, the order by: (i) entering into or carrying out the scheme; or (ii) any conduct engaged in after entering into or carrying out the scheme. (4) For the purposes of subregulation (2), the conditions in this subregulation are that: (a) the product intervention order applies to an associate of the assessed person; and (b) before the order was made, the associate had engaged in conduct that would have contravened, or would be likely to have contravened, the order if it had been engaged in after the order was made; and (c) the associate has not contravened, is not likely to have contravened, or purports not to have contravened, the order by any conduct engaged in by the associate after the assessed person entered into or carried out the scheme. Detrimental conduct (5) In determining, for the purposes of section 323A of the Act, whether it would be reasonable to conclude that a purpose of a person (the assessed person) entering into or carrying out (to any extent) a scheme was to avoid the application of a product intervention order made under Part 6‑7A of the Act that applies to the assessed person or to an associate of the assessed person, regard must also be had to whether the conditions in subregulation (6) or (7) are satisfied. > Note: For associate, see section 15A of the Act. (6) For the purposes of subregulation (5), the conditions in this subregulation are that: (a) the product intervention order was made in part on the basis that ASIC was satisfied that a credit product or proposed credit product (or class of credit products or proposed credit products) had resulted in, or would result in or would be likely to result in, significant detriment of a certain kind to consumers; and (b) the order applies to the assessed person; and (c) the assessed person has not contravened, is not likely to have contravened, or purports not to have contravened, the order by: (i) entering into or carrying out the scheme; or (ii) any conduct engaged in after entering into or carrying out the scheme; and (d) any of the following conduct has resulted in, or will or is likely to result in, significant detriment to consumers that is of the same or of a similar kind to the detriment referred to paragraph (a) of this subregulation: (i) conduct of the assessed person in entering into or carrying out the scheme; (ii) conduct engaged in by the assessed person, or by an associate of the assessed person, after the assessed person entered into or carried out the scheme. (7) For the purposes of subregulation (5), the conditions in this subregulation are that: (a) the product intervention order was made in part on the basis that ASIC was satisfied that a credit product or proposed credit product (or class of credit products or proposed credit products) had resulted in, or would result in or would be likely to result in, significant detriment of a certain kind to consumers; and (b) the order applies to an associate of the assessed person; and (c) the associate has not contravened, is not likely to have contravened, or purports not to have contravened, the order by any conduct engaged in by the associate after the assessed person entered into or carried out the scheme; and (d) any of the following conduct has resulted in, or will or is likely to result in, significant detriment to consumers that is of the same or of a similar kind to the detriment referred to paragraph (a) of this subregulation: (i) conduct of the assessed person in entering into or carrying out the scheme; (ii) conduct engaged in by the assessed person, or by an associate of the assessed person, after the assessed person entered into or carried out the scheme. Definitions (8) In this regulation: > carry out, in relation to a scheme, includes continuing to carry out the scheme. > credit product has the same meaning as in Part 6‑7A of the Act.