National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2010
10BThe conditions on the registration — referrals
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10B The conditions on the registration — referrals
(1) For subitem 14 (7) of Schedule 2 to the Act, the registration is subject to the conditions set out in this regulation if the registered person engages in a credit activity, on or after 1 October 2010, as a consequence of being a registered person described in subregulation 16 (5).
Note The registered person, or a representative of the registered person, provides the credit activity to a person by contacting the person after a referral by the referrer described in subregulation 16 (5).
Register of referrers
(2) The registered person must keep a register of the referrers described in subregulation 16 (5):
(a) with which the registered person has an agreement of the kind described in paragraph 16 (5) (a); or
(b) who have been made a written offer of the kind described in sub-subparagraph 16 (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 16 (5) (c) (ii) under the agreement.
Note The conduct is giving to the licensee, registered person or representative the consumer’s name.
(4) The referrer must make the register available to ASIC on request.
Contact after referral
(5) The registered person may only contact the consumer described in subregulation 16 (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 registered person contacts the consumer in person, the registered person must begin the discussion with the consumer (after the registered person 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 commission 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 registered person contacts the consumer by letter or email, the registered person must include statements to the following effect at the start of the letter or email:
Section 10B - National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2010 - The conditions on the registration — referrals | Zoe
(a) the registered person 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.
Part 4 Exemptions and modifications
Division 1 Exemptions
Subdivision 1.1 Persons exempt from being registered
11 Persons exempt from being registered — general
(1) For paragraph 42 (a) of Schedule 2 to the Act, this regulation exempts certain persons engaging in a credit activity from:
Note Item 4 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person is registered or holds a licence authorising the person to engage in the credit activity.
Note: Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person is:
Note If the person also engages in a credit activity that is not the subject of an exemption under the Act, the person is not exempted in relation to that credit activity.
(a) the person engages in a credit activity while:
(i) performing functions, or exercising powers, as a trustee within the meaning of the Bankruptcy Act 1966; or
(ii) performing functions, or exercising powers, incidental to the person’s appointment as a trustee; or
(b) the person engages in a credit activity while:
(i) performing functions, or exercising powers, as a receiver, receiver and manager, provisional liquidator, or liquidator (whether appointed by a court or otherwise); or
(ii) performing functions, or exercising powers, incidental to the person’s appointment as a receiver, receiver and manager, provisional liquidator or liquidator; or
(c) the person engages in a credit activity while performing functions, or exercising powers, as a person appointed by a court to engage in a credit activity; or
(d) the person engages in a credit activity while performing functions, or exercising powers, as the Public Trustee acting under a law of a State or Territory; or
(e) the person engages in a credit activity while:
(i) performing functions, or exercising powers, as an administrator within the meaning of the Corporations Act 2001; or
(ii) performing functions, or exercising powers, incidental to the person’s appointment as an administrator; or
(f) the person engages in a credit activity while:
(i) performing functions, or exercising powers, as a controlling trustee within the meaning of section 187 of the Bankruptcy Act 1966; or
(ii) performing functions, or exercising powers, incidental to the person’s appointment as a controlling trustee; or
(g) the person engages in a credit activity while:
(i) performing functions, or exercising powers, as a trustee or person administering a compromise or arrangement between a body corporate and another person or person; or
(ii) performing functions, or exercising powers, incidental to the person’s appointment as a trustee or person of that kind; or
(h) the person engages in a credit activity while performing functions, or exercising powers, as a personal representative of a deceased person other than a deceased licensee; or
(i) subject to subregulation (4), the person engages in a credit activity while performing functions, or exercising powers, as a personal representative of a deceased licensee; or
(j) the person engages in a credit activity while performing functions, or exercising powers, as a registered debt agreement administrator preparing and administering a debt agreement under Part IX of the Bankruptcy Act 1966.
(4) Paragraph (3) (i) only applies until the first of the following events takes place:
(a) the end of 6 months after the death of the registered person;
(b) the removal or discharge of the personal representative;
(c) the final distribution of the registered person’s estate.
(5) A person is exempted if:
(a) the person (the financial counselling agency) engages in the credit activity as part of a financial counselling service; and
(b) no remuneration (whether by way of commission or otherwise) is payable to, or on behalf of, the financial counselling agency by any person in relation to any action by, or on behalf of, the client arising from:
(c) no remuneration (whether by way of commission or otherwise) is payable to, or on behalf of, a representative of the financial counselling agency by any person in relation to any action by, or on behalf of, the client arising from:
(d) no remuneration (whether by way of commission or otherwise) is payable to, or on behalf of, an associate of the financial counselling agency by any person in relation to any action by, or on behalf of, the client arising from:
(e) no fees or charges (however described) are payable by or on behalf of the client in relation to the credit activity or any other aspect of the financial counselling service; and
(f) the financial counselling agency:
(i) does not engage in a credit activity that is not covered by paragraphs (a) to (e); and
(ii) takes all reasonable steps to ensure that none of its representatives engages in a credit activity that is not covered by paragraphs (a) to (e); and
(g) the financial counselling agency takes all reasonable steps to ensure that each person who engages in credit activities on its behalf:
(i) is a member of, or is eligible to be a member of, a financial counselling association; and
(ii) has undertaken appropriate training to ensure that the person has adequate skills and knowledge to engage satisfactorily in the credit activity and any other aspect of the provision of the financial counselling service.
(6) A person is exempted if:
(a) the person:
(i) is a related body corporate of a registered person; and
(ii) is engaging in credit activities only on behalf of the registered person; and
(iii) is engaging in credit activities only because its employees and directors are engaging in credit activities on behalf of the registered person; and
(b) the credit activities in which the person engages are not those mentioned in:
(i) paragraph (a) or (b) of item 1 of the table in subsection 6 (1) of the National Credit Act; or
(ii) paragraph (a) or (b) of item 3 of the table in subsection 6 (1) of the National Credit Act.
(7) A person is exempted if the person is a public body or authority, or a local government body or authority, constituted under an Act of the Commonwealth or a State or Territory.
(8) Subject to subregulation (9), if a person is authorised to engage in particular credit activities by:
(a) an Act of the Commonwealth or a State or Territory (other than the Act, the National Credit Act or an Act mentioned in subregulation (10)); or
(b) a licence or registration issued or granted under an Act of the Commonwealth or a State or Territory (other than the Act, the National Credit Act or an Act mentioned in subregulation (10));
the person is exempted to the extent that the person is engaging in the credit activities in which the person is authorised to engage under that Act, licence or registration.
(9) If a person would have been exempted under regulation 12 except that 12 calendar months have passed since the day this Chapter commences, the person is not exempted under subregulation (8).
Note Subregulation 12 (4) provides that a person to whom subregulation 12 (3) applies is only exempted for 12 calendar months starting on the day this Chapter commences.
(10) For paragraphs (8) (a) and (b), the Acts are:
(a) the Finance Brokers Control Act 1975 (WA); and
(b) the Credit (Administration) Act 1984 (WA); and
(c) the Consumer Credit (Administration) Act 1996 (ACT).
(11) A person is exempted if:
(a) the person is an organisation that provides services and makes benefits available to members of:
(i) the organisation; or
(ii) a program or facility operated or conducted by or within the organisation; and
(b) an incidental benefit of membership of the organisation, program or facility is that members are eligible:
(i) to apply for a particular credit contract or consumer lease offered by a licensee, registered person or exempt special purpose funding entity; or
(ii) to obtain services or benefits under a particular credit contract or consumer lease offered by a licensee, registered person or exempt special purpose funding entity; and
(d) the organisation provides credit services (within the meaning given by section 7 of the National Credit Act) in relation to the particular credit contract or consumer lease to members or persons likely to become members under a contract or agreement with the licensee or registered person; and
(e) it would not ordinarily be the case that:
(i) the credit to be provided under the credit contract is provided predominantly for the payment for services, goods or benefits provided by the organisation or an associate of the organisation; or
(ii) the goods to be hired under the consumer lease are supplied by the organisation or an associate of the organisation.
(12) A person is exempted if:
(a) either:
(i) the person:
(A) is a charitable body (within the same meaning as in ASIC Class Order [CO 02/184]); and
(B) is engaging in credit activities by providing a credit service in relation to credit contracts or consumer leases provided by a licensed or registered credit provider or lessor or an exempt special purpose funding entity that is a credit provider or lessor; or
(ii) the person:
(A) is not a charitable body (within the same meaning as in ASIC Class Order [CO 02/184]); and
(B) is engaging in credit activities by providing a credit service in relation to credit contracts or consumer leases provided by an ADI; and
(b) the credit contracts or consumer leases are offered as part of a program designed for low income consumers who are entitled:
(i) to hold a Health Care Card or Pension Concession Card; or
(ii) to receive Family Tax Benefit Part A; and
(c) the only remuneration (whether by way of commission or otherwise) is payable to, or on behalf of, the person by any other person in relation to any action by, or on behalf of, the client arising from providing the credit service is payments made by a third party that has no existing relationship with the client.
(13) A person is exempted if:
(a) the person engages in credit activities mentioned in:
(i) paragraph (c) of item 1 of the table in subsection 6 (1) of the National Credit Act; or
(ii) paragraph (c) of item 3 of the table in subsection 6 (1) of the National Credit Act; or
(iii) paragraph (b) of item 4 of the table in subsection 6 (1) of the National Credit Act; or
(iv) paragraph (b) of item 5 of the table in subsection 6 (1) of the National Credit Act; and
(b) the person engages in the credit activities while performing the statutory obligations of a credit provider, lessor, mortgagee or beneficiary of a guarantee under:
(i) the Privacy Act 1988; or
(ii) the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.