23ASIC’s role in relation to appeal, review or enforcement proceedings

23 ASIC’s role in relation to appeal, review or enforcement proceedings (1) ASIC has the functions and powers in relation to appeal, review or enforcement proceedings that are expressed to be conferred on it by or under a law of the Commonwealth or a Territory. (2) ASIC also has the functions and powers in relation to appeal, review or enforcement proceedings that are expressed to be conferred on it by or under a law of a referring State. However, ASIC: (a) is not subject to any directions in the performance of such functions or the exercise of such powers; and (b) is not under a duty to perform such functions or exercise such powers. (3) If a Minister of a referring State or a Territory appoints a person (other than ASIC) to bring or continue appeal, review or enforcement proceedings in the State or Territory, ASIC may give the person any information and documents that ASIC has in relation to the proceedings. (4) In this item: appeal, review or enforcement proceedings means: (a) appeal or review proceedings; or (b) enforcement proceedings; in relation to an order made by a court. Note: This item does not apply to tribunal orders or proceedings. Schedule 2—Registration of persons to engage in credit activities Part 1—Introduction 1 Guide to this Schedule This Schedule is about the registration of persons to engage in credit activities. Registration is a transitional authorisation to engage in credit activities. It applies in the period before all persons who engage in credit activities are required to be licensed under Chapter 2 of the National Credit Act. Regulations made under section 6 may also deal with transitional matters relating to the registration of persons to engage in credit activities. Those regulations may provide for matters in addition to those provided in this Schedule and they may modify how this Schedule applies. This Part deals with how certain provisions of Part 1‑2 (which deals with definitions) of the National Credit Act apply in relation to this Schedule. Divisions 1 and 2 of Part 2 set out requirements that apply to persons who engage in credit activities during particular transitional periods. Division 3 of Part 2 deals with how the requirements in Division 3 of Part 2‑1 (which deals with certain requirements in relation to credit activities) of the National Credit Act apply in relation to registered persons. Part 3 deals with how a person becomes registered, the conditions on registration, the obligations of a registered person, and the suspension and cancellation of registration. Part 4 deals with how other provisions of the National Credit Act apply in relation to registered persons. These provisions include Part 2‑3 (which deals with credit representatives and other representatives), Part 2‑4 (which deals with banning and disqualification) and Divisions 2 and 4 of Part 2‑5 (which deal with financial records and auditors) of the National Credit Act. Part 5 deals with exemptions from, and modifications of, certain provisions of this Schedule. Part 6 allows regulations to provide for infringement notices in relation to the civil penalty provisions and offences in this Schedule. 2 Application of Part 1‑2 of the National Credit Act Part 1‑2 (which deals with definitions) of the National Credit Act applies as if the references in sections 10, 14, 15 and 16 to “this Act” were references to “this Act and Schedule 2 to the Transitional Act”. Note: Expressions that are defined in the National Credit Act (other than the new Credit Code) have the same meanings in this Act as they have in the National Credit Act: see subsection 4(2). Part 2—Transitional prohibitions relating to credit activities Division 1—Prohibition that applies only from commencement to 31 December 2010, or later prescribed day 3 Application of this Division (b) ends on 31 December 2010, or a later day prescribed by the regulations. 4 Prohibition on engaging in credit activities if not registered or licensed during the period Prohibition on engaging in credit activities if not registered or licensed (1) A person must not engage in a credit activity unless: (a) the person is registered to engage in the credit activity; or (b) the person holds a licence authorising the person to engage in the credit activity. (2) A person commits an offence if: (a) the person is subject to a requirement under subitem (1); and Criminal penalty: 200 penalty units, or 2 years imprisonment, or both. Defences (3) For the purposes of subitems (1) and (2), it is a defence if: (b) the person is: (i) an employee or director of the principal or of a related body corporate of the principal; or (ii) a credit representative of the principal; and (d) the principal is registered to engage in the credit activity, or holds a licence authorising the principal to engage in the credit activity. Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (3): see subsection 13.3(3) of the Criminal Code. (4) For the purposes of subitems (1) and (2), it is a defence if: (b) the person is a representative of the principal; and (d) the principal is exempted from subitems (1) and (2) under paragraph 41(1)(a), 41(3)(a) or 42(a). Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (4): see subsection 13.3(3) of the Criminal Code. Division 2—Prohibition that applies only from 1 January 2011, or later prescribed day, to the transition end day 5 Application of this Division (a) starts immediately after the end of the period referred to in item 3; and 6 Prohibition on engaging in credit activities in certain circumstances during the period Prohibition on engaging in credit activities in certain circumstances (1) A person must not engage in a credit activity unless: (a) the person: (i) is registered to engage in the credit activity; and (ii) has applied for a licence authorising the person to engage in the credit activity in accordance with section 36 of the National Credit Act; or (b) the person holds a licence authorising the person to engage in the credit activity. (2) A person commits an offence if: (a) the person is subject to a requirement under subitem (1); and Criminal penalty: 200 penalty units, or 2 years imprisonment, or both. Defences (3) For the purposes of subitems (1) and (2), it is a defence if: (b) the person is: (i) an employee or director of the principal or of a related body corporate of the principal; or (ii) a credit representative of the principal; and (d) the principal: (i) is registered to engage in the credit activity, and has applied for a licence authorising the principal to engage in the credit activity in accordance with section 36 of the National Credit Act; or (ii) holds a licence authorising the principal to engage in the credit activity. Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (3): see subsection 13.3(3) of the Criminal Code. (4) For the purposes of subitems (1) and (2), it is a defence if: (b) the person is a representative of the principal; and (d) the principal is exempted from subitems (1) and (2) under paragraph 41(1)(a), 41(3)(a) or 42(a). Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (4): see subsection 13.3(3) of the Criminal Code. Division 3—Application of Division 3 of Part 2‑1 of the National Credit Act in relation to registered persons and this Schedule 7 Application of this Division (a) starts at commencement; and 8 Application of section 30 of the National Credit Act Section 30 (which deals with prohibitions on holding out and advertising etc.) of the National Credit Act applies as if: (a) the reference in paragraph 30(1)(a) of the National Credit Act to a person holding a licence were a reference to a person holding a licence or being registered; and (b) the reference in paragraph 30(1)(b) of the National Credit Act to a person holding a licence authorising the person to engage in a particular credit activity were a reference to a person holding a licence authorising the person to engage in a particular credit activity, or being registered to engage in a particular credit activity; and (c) the reference in paragraph 30(1)(c) of the National Credit Act to a requirement to hold a licence were a reference to a requirement to hold a licence or be registered; and (d) the reference in paragraph 30(1)(e) of the National Credit Act to a licensee were a reference to a licensee or registered person; and (e) the reference in subsection 30(2) of the National Credit Act to contravening section 29 of the National Credit Act were a reference to contravening section 29 of the National Credit Act or item 4 or 6 of this Schedule. 9 Application of section 31 of the National Credit Act Section 31 (which deals with a prohibition on conducting business with unlicensed persons) of the National Credit Act applies as if: (a) the reference in subsection 31(1) to a licensee were a reference to a registered person or licensee; and (b) the reference in subsection 31(1) to contravening section 29 of the National Credit Act were a reference to contravening section 29 of the National Credit Act or item 4 or 6 of this Schedule. 10 Application of section 32 of the National Credit Act Section 32 (which deals with a prohibition on charging a fee etc.) of the National Credit Act applies as if the reference in subsection 32(1) to section 29 of that Act were a reference to section 29 of that Act or item 4 or 6 of this Schedule. Part 3—Registration of persons who engage in credit activities Division 1—How to become registered 11 Applying to be registered (1) A person may apply to be registered by lodging an application with ASIC. (2) The application must be lodged during the period that: (a) starts on 1 April 2010, or a later day prescribed by the regulations; and (b) ends on 30 June 2010, or a later day prescribed by the regulations. (3) The application must be in the approved form.