Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act (other than the National Credit Code):
"acts as an intermediary" : see section 9.
"ADI" has the same meaning as in subsection 5(1) of the Banking Act 1959 .
"adverse publicity order" : see section 182.
"AFCA scheme" has the same meaning as in the Corporations Act 2001 .
"affairs" , in relation to a person that is a body corporate, has the same meaning as in Part 3 of the ASIC Act.
"affidavit" includes affirmation.
"ancillary offence" , in relation to another offence, means:
(a) an offence against section 6 of the Crimes Act 1914 ; or
(b) an ancillary offence within the meaning of the Criminal Code ;
that relates to the other offence.
"annual percentage rate" has the same meaning as in section 27 of the National Credit Code.
"annual turnover" , of a body corporate during a 12 - month period, means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12 - month period, other than:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate; or
(b) supplies that are input taxed; or
(c) supplies that are not for consideration (and are not taxable supplies under section 72 - 5 of the A New Tax System (Goods and Services Tax) Act 1999 ); or
(d) supplies that are not made in connection with an enterprise that the body corporate carries on; or
(e) supplies that are not connected with Australia.
Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in that Act.
"appeal" includes:
(a) an application for a new trial; and
(b) proceedings to review or call in question the proceedings, decision or jurisdiction of a court or judge.
"approved code of conduct" means a code of conduct approved by ASIC by legislative instrument under section 238A, and includes a replacement code of conduct approved under that section.
"APRA" means the Australian Prudential Regulation Authority.
"ASIC" means the Australian Securities and Investments Commission.
"ASIC Act" means the Australian Securities and Investments Commission Act 2001 , and includes instruments made under that Act.
"ASIC member" means a member of ASIC within the meaning of the ASIC Act.
"ASIC staff member" means a staff member within the meaning of subsection 5(1) of the ASIC Act.
"associate" : see section 15A.
"Australian business law" means a law of the Commonwealth, or of a State or Territory, that is a law that regulates, or relates to the regulation of, business or persons engaged in business.
"Australian credit licence" : see subsection 35(1).
"Australian credit licence number" means the number given to a licence under section 43.
"Australian financial services licence" has the same meaning as in the Corporations Act 2001 .
"authorised" , in relation to a credit activity: see subsection 35(2).
"avoidance purpose" : see subsection 323A(2).
"banker" has the same meaning as in section 9 of the Corporations Act 2001 .
"banking group" means a relevant group of bodies corporate (within the meaning of the Banking Act 1959 ) that includes a body corporate covered by paragraph 133CN(1)(a) (about large ADIs).
"banned from engaging in a credit activity under a law of a State or Territory" : a person is banned from engaging in a credit activity under a law of a State or Territory if:
(a) the person holds a State or Territory credit licence that is suspended (otherwise than by request of the person); or
(b) the person has held a State or Territory credit licence that has been cancelled within the last 7 years (otherwise than by the person's request); or
(c) an order of a court made under a law of a State or Territory prohibits the person from engaging in a credit activity; or
(d) the person is otherwise prohibited under a law of a State or Territory from engaging in a credit activity.
"banning order" means an order made under subsection 80(1).
"beneficiary of a guarantee" means a person who is a party to a guarantee and who has the benefit of the guarantee, and includes a person who is a beneficiary of a guarantee because of section 10.
"benefit derived and detriment avoided" :
(a) because of an offence--has the meaning given by section 288E; and
(b) because of a contravention of a civil penalty provision--has the meaning given by section 167D.
"body regulated by APRA" has the same meaning as in subsection 3(2) of the Australian Prudential Regulation Authority Act 1998 .
"book" includes:
(a) a register; and
(b) any other record of information; and
(c) financial reports or financial records, however compiled, recorded or stored; and
(d) a document.
"business day" has the same meaning as in section 204 of the National Credit Code.
"carried on in this jurisdiction" has a meaning affected by section 12.
"civil penalty provision" : a subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if:
(a) the words "civil penalty" and one or more amounts in penalty units are set out at the foot of the subsection (or section); or
(b) another provision of this Act specifies that the subsection (or section) is a civil penalty provision.
"coastal sea:"
(a) in relation to Australia--means:
(i) the territorial sea of Australia; and
(ii) the sea on the landward side of the territorial sea of Australia and not within the limits of a State or internal Territory;
and includes the airspace over, and the sea - bed and subsoil beneath, any such sea; and
(b) in relation to a State or Territory--means so much of the coastal sea of Australia as is within the area described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 under the heading that refers to that State or Territory.
"code of conduct" means a code of conduct that relates to any aspect of the activities of:
(a) licensees; or
being activities in relation to which ASIC has a regulatory responsibility.
"commission" includes any financial or other benefit in the nature of a commission.
Note: Commissions may be conflicted remuneration: see Division 4 of Part 3 - 5A.
"Commonwealth body" means:
(a) an Agency (within the meaning of the Public Service Act 1999 ); or
(b) a body, whether incorporated or not, established for a public purpose by or under a law of the Commonwealth; or
(c) a person:
(i) holding or performing the duties of an office established by or under a law of the Commonwealth; or
(ii) holding an appointment made under a law of the Commonwealth.
"Commonwealth credit legislation" means this Act and the Transitional Act.
"conflicted remuneration" : see sections 158N and 158NA.
"constitutional corporation" means a corporation to which paragraph 51(xx) of the Constitution applies.
"constitutional trade and commerce" means trade and commerce:
(a) between Australia and places outside Australia; or
(b) between the States; or
(c) between a State and a Territory; or
(d) between 2 Territories; or
(e) within a Territory.
"constrained document" : see subsection 160CA(1).
"constrained information" : see subsection 160CA(1).
"consumer" means a natural person or a strata corporation.
"consumer lease" means a consumer lease to which Part 11 of the National Credit Code applies.
"consumer lease for household goods" has the same meaning as in section 204 of the National Credit Code.
"continuing credit contract" has the same meaning as in section 204 of the National Credit Code.
"contravention" :
(a) in relation to an offence against a law--includes an ancillary offence relating to the offence against the law; and
(b) in relation to a civil penalty provision--has a meaning affected by section 169.
"control" has the meaning given by section 16A.
"core obligation" has the meaning given by subsection 50A(3).
"credit" has the same meaning as in subsection 3(1) of the National Credit Code.
"credit activity" : see section 6.
"credit assistance" : see section 8.
"credit book" : see subsection 227(4).
"credit card" : see subsection 133BA(2).
"credit card contract" : see subsection 133BA(1).
"credit card termination entitlement" : see subsection 133BT(3).
"credit contract" has the same meaning as in section 4 of the National Credit Code.
"credit information" has the same meaning as in the Privacy Act 1988 .
"credit legislation" means:
(a) this Act; and
(b) the Transitional Act; and
(c) Division 2 of Part 2 of the ASIC Act and regulations made for the purpose of that Division; and
(d) any other Commonwealth, State or Territory legislation that covers conduct relating to credit activities (whether or not it also covers other conduct), but only in so far as it covers conduct relating to credit activities.
"credit limit" of a credit contract means the maximum amount of credit that may be provided under the contract.
"credit limit increase invitation" , in relation to a credit card contract: see subsection 133BE(5).
"credit limit reduction entitlement" : see subsection 133BF(3).
"credit provider" :
(a) when used in Part 3 - 2CA--has the same meaning as in the Privacy Act 1988 ; and
(b) otherwise--has the same meaning as in section 204 of the National Credit Code, and includes a person who is a credit provider because of section 10 of this Act.
"credit registers" : see section 213.
"credit reporting body" has the same meaning as in the Privacy Act 1988 .
"credit representative" : see subsections 64(2) and 65(2).
"credit representative number" means the number given to a credit representative under section 72.
"credit service" : see section 7.
"criminal procedure" : see section 205.
"data standards" means standards made by the Registrar under section 212H.
"debtor" has the same meaning as in section 204 of the National Credit Code.
"declaration of contravention" means a declaration made under section 166.
"designated secrecy provision" has the meaning given by subsection 212N(3).
"director" has the same meaning as in the Corporations Act 2001 .
"disclosure framework" means the disclosure framework made by the Registrar under section 212L.
"disqualification order" means an order of the court under section 86.
"document registers" : see section 219.
"eligible credit account" : see section 133CO.
"eligible credit reporting body" : see subsection 133CN(2).
"eligible licensee" : see subsection 133CN(1).
"enforceable code provision" means a provision of an approved code of conduct identified by ASIC under subsection 238A(2).
"engage in conduct" means:
(a) do an act; or
(b) omit to perform an act.
"evidential burden" , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
"examination" , when used in Chapter 6 (which deals with compliance and enforcement), means an examination of a person pursuant to a requirement made under section 253.
"expenses" , in relation to an investigation under Part 6 - 1, includes costs and expenses incurred by ASIC in relation to proceedings brought under section 275 as a result of the investigation.
"Federal Court" means the Federal Court of Australia.
"financial hardship information" has the same meaning as in the Privacy Act 1988 .
"financial records" : see subsection 88(2).
"financial services licensee" has the same meaning as in the Corporations Act 2001 .
"financial year" : see subsection 100(6).
"function" includes a duty.
"give" :
(a) when used in Chapter 6 (which deals with compliance and enforcement) in relation to a document--has a meaning affected by section 314; and
(b) when used in relation to information, includes:
(i) explaining or stating a matter; and
(ii) identifying a person, matter or thing; and
(iii) disclosing information; and
(iv) answering a question.
"government entity" has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999 .
"guarantee" means a guarantee to which the National Credit Code applies.
"hardship notice" has the same meaning as in section 204 of the National Credit Code.
"head company" , of a banking group, means the member of the group covered by paragraph 133CN(1)(a) (about large ADIs).
"hearing" , when used in Chapter 6 (which deals with compliance and enforcement), means a hearing before ASIC and, in sections 278, 280, 281 and 282 (which are in that Chapter), includes part of such a hearing.
"household goods" has the same meaning as in section 204 of the National Credit Code.
"indirect remuneration" means a commission or conflicted remuneration.
"individual fine formula" means the formula set out in subsection 288C(3).
"infringement notice" means a notice given under section 288J.
"initial National Credit Code" : see subsection 20(2).
"insolvent" means:
(a) in the case of a natural person--a person who is an insolvent under administration; or
(b) in the case of a body corporate--a body corporate that is a Chapter 5 body corporate (within the meaning of the Corporations Act 2001 ); or
(c) in the case of a partnership--a partnership against which a creditor's petition or a debtor's petition is presented under Division 2 or 3 of Part IV of the Bankruptcy Act 1966 .
"investigate" , in relation to ASIC, means investigate in the course of performing any of ASIC's functions or exercising any of ASIC's powers.
"involved in" : a person is involved in a contravention of a provision of legislation if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
"judgment" means a judgment, decree or order, whether final or interlocutory.
"Key Facts Sheet" :
(a) for a credit card contract--see section 133BB; and
(b) for a standard home loan--see section 133AB.
"knowledge" , in Division 5 of Part 2 - 2: see section 53C.
"large ADI" means an ADI of a kind determined under subsection (1A).
"law of a referring State" or a Territory means a law of, or in force in, a referring State or a Territory but does not include a law of the Commonwealth in force in the referring State or the Territory.
"law of a State" or Territory means a law of, or in force in, a State or Territory but does not include a law of the Commonwealth in force in the State or Territory.
"lawyer" means a person who is admitted to the legal profession by a federal court or a Supreme Court of a State or Territory.
"lessee" means the lessee under a consumer lease.
"lessor" has the same meaning as in section 204 of the National Credit Code, and includes a person who is a lessor because of section 10.
"licence" means an Australian credit licence.
"licensee" means a person who holds a licence.
"licensing anniversary" : see subsection 53(7).
"linked" : for when a credit card is linked to a credit card contract, see subsection 133BA(3).
"lodge with ASIC" : see section 216.
"lower court" means:
(a) the Federal Circuit and Family Court of Australia (Division 2); or
(b) a court of a State or Territory that is not a superior court.
"malice" : see subsection 16(2).
"mandatory code of conduct" means a code of conduct that is declared by regulations under section 238F to be mandatory.
"mandatory credit information" : see section 133CP.
"matter" includes an act, an omission, a body, a person or a thing.
"misleading" : see section 13.
"mortgage" means a mortgage to which the National Credit Code applies.
"mortgage broker" : see section 15B.
"mortgagee" means the mortgagee under a mortgage, and includes a person who is a mortgagee because of section 10.
"mortgage intermediary" : see section 15C.
"mortgagor" means the mortgagor under a mortgage.
"National Credit Code" means Schedule 1 to this Act, and includes:
(a) regulations made under section 329 for the purposes of that Schedule; and
(b) instruments made under that Schedule.
"officer of the Commonwealth" has the same meaning as in paragraph 75(v) of the Constitution.
"official employment" means:
(a) appointment or employment by the Commonwealth, or the performance of services for the Commonwealth; or
(b) the exercise of powers or performance of functions under a delegation by the Registrar.
"Part 3-2CA body" : see section 133CZF.
"payment period" , in relation to an infringement notice, has the meaning given by section 288M.
"pecuniary penalty order" means an order made under section 167.
"penalty unit" has the same meaning as in section 4AA of the Crimes Act 1914 .
"person" has a meaning affected by section 14 (which deals with partnerships) and section 15 (which deals with multiple trustees).
"personal information" has the same meaning as in the Privacy Act 1988 .
"power" includes an authority.
"premises" includes:
(a) a structure, building, aircraft, vehicle or vessel; and
(b) any land or place (whether enclosed or built in or not); and
(c) a part of a structure, building, aircraft, vehicle, vessel or of such a place.
"prescribed State or Territory order" means an order under a law of a State or Territory, being an order of a kind prescribed by the regulations.
"proceedings" :
(a) when used in Chapter 6 (which deals with compliance and enforcement)--has the same meaning as the definition of proceeding in subsection 5(1) of the ASIC Act; and
(b) otherwise--means proceedings, whether criminal or civil, before a court.
"proscribed referral" : see subsection 160G(2).
"protected information" means information:
(a) obtained by a person in the course of the person's official employment; and
(b) disclosed to the person or another person, or obtained by the person or another person:
(i) under, or in relation to, this Act; or
(ii) under another law of the Commonwealth;
in connection with particular functions or powers of the Registrar.
"qualified privilege" has a meaning affected by section 16.
"receiving court" : see section 191.
"recklessness" , in Division 5 of Part 2 - 2: see section 53C.
"record" , when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, means the whole or part of a record made under section 258 of statements made at the examination.
"Reference Checking and Information Sharing Protocol" means the protocol determined by ASIC under subsection 47(3A).
"referred credit matter" : see subsection 20(1).
"referring State" : see section 19.
"registered company auditor" has the same meaning as in section 9 of the Corporations Act 2001 .
"Registrar" has the meaning given by section 16B.
"related body corporate" has the same meaning as in section 9 of the Corporations Act 2001 .
"related criminal justice process decision" : see section 188.
"relevant criminal law" : see subsection 204(5).
"relevant superior court" , in relation to a lower court, means:
(a) if the lower court is the Federal Circuit and Family Court of Australia (Division 2)--the Federal Court; or
(b) if the lower court is a court of a State or Territory--the Supreme Court of the State or Territory.
"relinquishment order" means an order made under subsection 167C(1).
"repayment date" : see subsection 133CD(3).
"reportable situation" has the meaning given by section 50A.
"representative" of a person means:
(a) if the person is a licensee:
(i) an employee or director of the licensee; or
(ii) an employee or director of a related body corporate of the licensee; or
(iii) a credit representative of the licensee; or
(iv) any other person acting on behalf of the licensee; or
(b) otherwise:
(i) an employee or director of the person; or
(ii) an employee or director of a related body corporate of the person; or
(iii) any other person acting on behalf of the person.
"residential property" has the same meaning as in section 204 of the National Credit Code.
"reverse mortgage" has the same meaning as in section 13A of the National Credit Code.
"reverse mortgage information statement" means a document relating to reverse mortgages that complies with the regulations.
"scheme" means:
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise; or
(c) any combination of 2 or more things that are schemes because of paragraph (a) or (b).
"secrecy provision" has the meaning given by subsection 212N(2).
"senior manager" has the same meaning as in section 9 of the Corporations Act 2001 .
"sensitive information" has the same meaning as in the Privacy Act 1988 .
"serious fraud" means an offence involving fraud or dishonesty, being an offence:
(a) against a law of the Commonwealth, or of a State or Territory, or any other law; and
(b) punishable by imprisonment for life or for a period, or maximum period, of at least 3 months.
"short-term credit contract" : a credit contract is a short-term credit contract if:
(a) the contract is not a continuing credit contract; and
(b) the credit provider under the contract is not an ADI; and
(c) the credit limit of the contract is $2,000 (or such other amount as is prescribed by the regulations) or less; and
(d) the term of the contract is 15 days or less; and
(e) the contract meets any other requirements prescribed by the regulations.
"small amount credit contract" : a credit contract is a small amount credit contract if:
(a) the contract is not a continuing credit contract; and
(b) the credit provider under the contract is not an ADI; and
(c) the credit limit of the contract is $2,000 (or such other amount as is prescribed by the regulations) or less; and
(d) the term of the contract is at least 16 days but not longer than 1 year (or such other number of years as is prescribed by the regulations); and
(e) the debtor's obligations under the contract are not, and will not be, secured; and
(f) the contract meets any other requirements prescribed by the regulations.
"standard home loan" : see subsection 133AA(1).
"State" , when used in a geographical sense, includes the coastal sea of the State.
"statement" , when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination.
"state of mind" : the state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
"State or Territory credit licence" means a licence or registration that:
(a) is granted under a law of a State or Territory; and
(b) authorises the licensee or registered person to engage in a credit activity.
"strata corporation" has the same meaning as in section 204 of the National Credit Code.
"subject to an infringement notice" , in relation to an offence provision or civil penalty provision, has the meaning given by section 288K.
"subscriber" , in relation to an approved code of conduct:
(a) means a person or entity that agrees, in a way required by the applicant for the code's approval, to be bound by the code; and
(b) if a person or entity no longer agrees to be bound by the code--includes the person or entity during the period that the person or entity did agree to be so bound.
"superior court" means any of the following courts:
(a) the Federal Court;
(b) the Supreme Court of a State or Territory.
"supply requirements" : see section 133CQ.
"taxation law" has the same meaning as in the Income Tax Assessment Act 1997 .
"Territory" :
(a) means the following:
(i) the Australian Capital Territory;
(ii) the Jervis Bay Territory;
(iii) the Northern Territory;
(iv) Norfolk Island;
(v) the Territory of Christmas Island;
(vi) the Territory of Cocos (Keeling) Islands; and
(b) when used in a geographical sense--includes the Territory's coastal sea (if any).
"this Act" includes instruments made under this Act.
"this jurisdiction" : see subsections 21(2) and (3).
"transfer matter" : see section 191.
"transferring court" : see section 191.
"Transitional Act" means the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 , and includes instruments made under that Act.
"tribunal" means:
(a) a tribunal in Australia; or
(b) any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence.
"unsolicited communication to a consumer" : see subsection 133CF(2).
"use" of a credit card: see subsection 133BA(4).
"value" of a credit contract, mortgage, guarantee or consumer lease: see section 199.
"virtual enquiry technology" means any technology that allows a person to appear at all or part of a hearing, examination or other enquiry without being physically present at the hearing, examination or other enquiry.
"within the authority" : a representative's conduct is within the authority of a person if:
(a) for a representative who is an employee of the person or of a related body corporate of the person--the conduct is within the scope of the employee's employment; or
(b) for a representative who is a director of the person or of a related body corporate of the person--the conduct is within the scope of the director's duties as director; or
(c) for a representative who is a credit representative of the person--the conduct is within the scope of the authorisation of the credit representative under subsection 64(1) or 65(1); or
(d) otherwise--the conduct is within the scope of the authority given by the person.
"witness" , in relation to a hearing before ASIC, means a person appearing at the hearing to give evidence.
"written record" , when used in Chapter 6 (which deals with compliance and enforcement) in relation to an examination, means:
(a) a record of the examination:
(i) that is made in writing; or
(ii) as reduced to writing; or
(b) a part of such a record.
(1A) The Minister may, by legislative instrument, determine the kinds of ADIs that are large ADIs.
(2) In this Act (other than the National Credit Code), a reference to a provision is a reference to a provision of this Act, unless the contrary intention appears.