Effect of termination of amendment reference before termination of adoption of Commonwealth Acts 7
Notes
Compilation table 9
Defined terms
Western Australia
Credit (Commonwealth Powers) Act 2010
An Act to adopt the National Consumer Credit Protection Act 2009 (Commonwealth) as amended and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Commonwealth), and to refer certain matters relating to the provision of credit and certain other financial transactions to the Parliament of the Commonwealth, for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth.
The Parliament of Western Australia enacts as follows:
1. Short title
This is the Credit (Commonwealth Powers) Act 2010.
2. Commencement
This Act comes into operation as follows —
(a) sections 1 and 2 — on the day on which this Act receives the Royal Assent;
(b) the rest of the Act — on a day fixed by proclamation.
3. Terms used
In this Act, unless the contrary intention appears —
adoption means the adoption under section 4(1);
amendment reference means the reference under section 6(1);
Commonwealth Credit instrument means any instrument (whether or not of a legislative character) that is made or issued under the National Credit legislation;
express amendment of the National Credit legislation means the direct amendment of the text of the National Credit legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the National Credit legislation;
National Credit legislation means —
(a) the National Consumer Credit Protection Act 2009 (Commonwealth); and
(b) the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Commonwealth),
as in force from time to time;
referred credit matter means a matter relating to either of the following —
(a) credit, being credit the provision of which would be covered by the expression “provision of credit to which this Code applies” in the relevant version of the National Credit Code;
(b) consumer leases, being consumer leases each of which would be covered by the expression “consumer lease to which Part 11 applies” in the relevant version of the National Credit Code;
relevant version of the National Credit Code means the text of Schedule 1 to the National Consumer Credit Protection Act 2009 (Commonwealth) as originally enacted, and as later amended by the National Consumer Credit ProtectionAmendment Act 2010 (Commonwealth);
relevant version of the National Credit legislation means —
(a) the National Consumer Credit Protection Act 2009 (Commonwealth) as originally enacted, and as later amended by the National Consumer Credit Protection Amendment Act 2010 (Commonwealth); and
(b) the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Commonwealth).
4. Adoption of National Credit legislation
(1) The relevant version of the National Credit legislation is adopted within the meaning of section 51(xxxvii) of the Constitution of the Commonwealth.
(2) The adoption has effect for a period —
(a) beginning when this section commences; and
(b) ending at the end of the day fixed under section 5 as the day on which the adoption is to terminate,
but no longer.
5. Termination of the adoption
(1) The Governor may, at any time, by proclamation published in the Gazette, fix a day as the day on which the adoption is to terminate.
(2) The Governor may, by proclamation published in the Gazette, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 4) never to have been published.
(3) A revoking proclamation has effect only if published before the day fixed under subsection (1).
(4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.
6. Reference of matters
(1) Subject to section 7, any referred credit matter is referred to the Parliament of the Commonwealth, but only to the extent of the making of laws with respect to such a matter by making express amendments of the National Credit legislation.
(2) The reference of a matter under subsection (1) has effect only —
(a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth); and
(b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.
(3) Despite any other provision, the reference has effect for a period —
(a) beginning when this section commences; and
(b) ending at the end of the day fixed under section 8 as the day on which the reference is to terminate,
but no longer.
7. Matters excluded from reference
(1) A matter referred by section 6(1) does not include —
(a) the matter of making provision with respect to the imposition or payment of State taxes, duties, charges or other imposts, however described; or
(b) the matter of making provision with respect to the general system for the recording of estates or interests in land and related information; or
(c) the matter of providing for the priority of interests in real property; or
(d) the matter of making a law that excludes or limits the operation of a State law, to the extent that the State law makes provision with respect to the creation, holding, transfer, assignment, disposal or forfeiture of a State statutory right.
(2) In this section —
forfeiture means confiscation, seizure, extinguishment, cancellation, suspension or any other forfeiture;
State law means —
(a) any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time;
(b) the general law, being the principles and rules of common law and equity to the extent that they have effect in the State from time to time;
State statutory right means a right, entitlement or authority that is granted by or under any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time, other than a right, entitlement or authority that relates to —
(a) credit covered by paragraph (a) of the definition of referred credit matter in section 3; or
(b) a consumer lease covered by paragraph (b) of that definition.
8. Termination of references
(1) The Governor may, at any time, by proclamation published in the Gazette, fix a day as the day on which the amendment reference terminates.
(2) The Governor may, by proclamation published in the Gazette, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 6) never to have been published.
(3) A revoking proclamation has effect only if published before the day fixed under subsection (1).
(4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.
9. Amendment of Commonwealth law
For the avoidance of doubt, it is the intention of the Parliament of the State that —
(a) the National Credit legislation may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has on account of a reference of any matters, or the adoption of the relevant version of the National Credit legislation, under section 51(xxxvii) of the Constitution of the Commonwealth; and
(b) the National Credit legislation may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters, or the adoption of the relevant version of the National Credit legislation, under section 51(xxxvii) of the Constitution of the Commonwealth; and
(c) the National Credit legislation may have its operation affected, otherwise than by express amendment, at any time by provisions of Commonwealth Credit instruments.
10. Effect of termination of amendment reference before termination of adoption of Commonwealth Acts
(1) If the amendment reference is terminated but the adoption of the relevant version of the National Credit legislation is not terminated, the termination of the amendment reference does not affect —
(a) laws that were made under the amendment reference (but not repealed) before that termination (whether or not they have come into operation before that termination); or
(b) the continued operation in the State of the National Credit legislation as in operation immediately before that termination or as subsequently amended or affected by —
(i) laws referred to in paragraph (a) that come into operation after that termination; or
(ii) provisions referred to in section 9(b) or (c).
(2) Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless the adoption is terminated.
(3) Subsection (1) does not apply to or in relation to an amendment of the National Credit legislation that is excluded from the operation of this section by the proclamation that terminates the amendment reference.
(4) For the purposes of subsection (1) —
(a) the laws referred to in subsection (1)(a) include Commonwealth Credit instruments; and
(b) the reference in subsection (1)(b) to the National Credit legislation as in operation immediately before the termination of the amendment reference includes that legislation as affected by Commonwealth Credit instruments that have come into operation before that time.
Notes
1 This is a compilation of the Credit (Commonwealth Powers) Act 2010. The following table contains information about that Act 2.
Compilation table
Short title
Number and year
Assent
Commencement
Credit (Commonwealth Powers) Act 2010
13 of 2010
25 Jun 2010
s. 1 and 2: 25 Jun 2010 (see s. 2(a)); Act other than s. 1 and 2: 1 Jul 2010 (see s. 2(b) and Gazette 30 Jun 2010 p. 3187)
2 The Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010 Pt. 2 Div. 2 reads as follows:
Division 2 — Transitional Provisions
Proceedings
(1) Proceedings brought in relation to a provision of the Consumer Credit (Western Australia) Code —
(a) which are not proceedings to which the National Consumer Credit Protection Act 2009 (Commonwealth) Schedule 1 item 4 applies; and
(b) which upon section 4 coming into operation are pending before a court,
are to be dealt with under the Consumer Credit (Western Australia) Act 1996 despite the repeal of that Act.
(2) Proceedings brought in relation to a provision of the Consumer Credit (Western Australia) Code which upon section 4 coming into operation are pending before the State Administrative Tribunal are to be dealt with under the Consumer Credit (Western Australia) Act 1996 despite the repeal of that Act.
Arrangements for conduct of proceedings
(1) The CEO may make an arrangement with ASIC about the conduct of any proceedings to which section 5 applies.
(2) In particular, an arrangement may provide —
(a) for the performance of functions and the exercise of powers conferred by subsection (3) on ASIC; or
(b) for the performance of functions or the exercise of powers of the CEO in relation to the conduct of proceedings to which section 5 applies by staff members of ASIC.
(3) Subject to subsection (4), ASIC has the functions and powers of the CEO in relation to the conduct of proceedings to which section 5 applies.
(4) ASIC must not perform a function or exercise a power conferred by subsection (3) except in accordance with an arrangement under this section.
Information
(1) This section applies to information obtained by the CEO in connection with the administration or enforcement of the Consumer Credit (Western Australia) Act 1996 or the Consumer Credit (Western Australia) Code.
(2) The CEO may —
(a) disclose information to which this section applies; or
(b) give copies of records which contain information to which this section applies and which are in the CEO’s possession or under the CEO’s control,
to ASIC for the purpose of the administration or enforcement of the National Consumer Credit Protection Act 2009 (Commonwealth).
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined term Provision(s)
adoption 3
amendment reference 3
Commonwealth Credit instrument 3
express amendment 3
forfeiture 7(2)
National Credit legislation 3
referred credit matter 3
relevant version of the National Credit Code 3
relevant version of the National Credit legislation 3