National Consumer Credit Protection Act - Australia

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order under Division 8 of Part 7.6 of the Corporations Act 2001 has ever been made against the person;

      (d) whether the person has ever been banned from engaging in a credit activity under a law of a State or Territory;

      (e) any relevant information given to ASIC by a State or Territory, or an authority of a State or Territory, in relation to the person;

      (f) if the person is not the trustees of a trust — whether the person has ever been insolvent;

      (g) if the person is a single natural person:

      (i) whether the person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001; and(ii) any criminal conviction of the person, within 10 years before the application was made;

      (h) if the person is not a single natural person, whether ASIC has reason to believe that any of the following persons is not a fit and proper person to engage in credit activities:

      (i) if the person is a body corporate — each director, secretary or senior manager of the body corporate who would perform duties in relation to the credit activities to be authorised by the licence;(ii) if the person is a partnership or the trustees of a trust — each partner or trustee who would perform duties in relation to the credit activities to be authorised by the licence;

      (i) any other matter ASIC considers relevant;

      (j) any other matter prescribed by the regulations.

      Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

      (3) ASIC must (subject to Part VIIC of the Crimes Act 1914), in considering whether it has reason to believe that a person referred to in paragraph (2)(h) is not a fit and proper person to engage in credit activities, have regard to:

      (a) the matters set out in paragraphs (2)(a) to (g); and

      (b) any other matter ASIC considers relevant; and

      (c) any other matter prescribed by the regulations;

      in relation to that person.

      ASIC may request information or audit report from applicant

      (4) ASIC may give a written notice to a person who has applied for a licence requesting the person to lodge with ASIC, within the time specified in the notice, either or both of the following:

      (a) additional information specified in the notice in relation to any matters that ASIC may have regard to in deciding whether to grant the licence;

      (b) an audit report, prepared by a suitably qualified person specified in the notice, in relation to matters that ASIC may have regard to in deciding whether to grant the licence.

      (5) If the person does not lodge with ASIC the additional information or audit report requested by ASIC under subsection (4) within the time specified in the notice, the person is taken to have withdrawn the application. ASIC may extend the time by giving a written notice to the person.

      38 When a licence may be granted — ADIs

      If:

      (a) an ADI applies under section 36 for a licence; and

      (b) the application includes a statement (in accordance with the requirements of the approved form) to the effect that the ADI will, if granted the licence, comply with its obligations as a licensee;

      then ASIC must grant the ADI a licence authorising the ADI to engage in credit activities that equate (as closely as possible) to the credit activities in relation to which the application was made.

      Note: ASIC must not grant a licence to a person contrary to a banning order or disqualification order, or if a prescribed State or Territory order is in force against the person or certain representatives of the person (see section 40).

      39 Regulations may prescribe streamlined process for other applicants

      Despite sections 36 and 37, the regulations may provide that:

      (a) some or all of sections 36 and 37 do not apply in relation to particular classes of applicants; and

      (b) alternative processes apply to applications for licences by, and the grant of licences to, those classes of applicants.

      40 Licences must not be granted to certain applicants

      Banning or disqualification order in force against person

      (1) Despite subsection 37(1) and section 38, ASIC must not grant a licence that authorises a person to engage in a credit activity if a banning order or disqualification order under Part 2–4 is in force against the person in relation to that credit activity.

      Prescribed State or Territory order in force against person etc.

      (2) Despite subsection 37(1) and section 38, ASIC must not grant a licence to a person if:

      (a) the person is a natural person against whom a prescribed State or Territory order is in force; or

      (b) the person is a body corporate, and a prescribed State or Territory order is in force against a director, secretary or senior manager of the body corporate who would perform duties in relation to the credit activities to be authorised by the licence; or

      (c) the person is a partnership or the trustees of a trust, and a prescribed State or Territory order is in force against a partner or trustee who would perform duties in relation to the credit activities to be authorised by the licence.

      41 Applicant must be given hearing before refusal of licence

      ASIC may only refuse to grant a licence after giving the person who applied for the licence an opportunity:

      (a) to appear, or be represented, at a hearing before ASIC that takes place in private; and

      (b) to make submissions to ASIC in relation to the refusal.

      42 Notice of grant or refusal of licence and date of effect

      (1) ASIC must give a person (the applicant) who has applied for a licence written notice of:

      (a) ASIC’s decision on the application; and

      (b) if the decision is to grant the applicant a licence — the day on which the licence takes effect; and

      (c) if the decision is not to grant the applicant a licence — the reasons for the decision.

      (2) The licence comes into force on the day specified in the notice, which must not be before the day on which the decision to grant the licence was made.

      43 Australian credit licence numbers

      (1) ASIC must allocate each licence a unique Australian credit licence number when it is granted.

      (2) If:

      (a) a person is granted a licence; and

      (b) the person holds an Australian financial services licence;

      then the Australian credit licence number that ASIC gives to the licence held by that person must be the same number as the person’s Australian financial services licence number.

      (3) ASIC must give the licensee written notice of the Australian credit licence number.

      44 Basis on which licence is granted

      A licence granted under this Division is granted on the basis that:

      (a) conditions on the licence may be imposed, varied or revoked under section 45 or 46; and

      (b) the licence may be suspended under section 54, 55 or 56; and

      (c) the licence may be cancelled under section 54, 55 or 56; and

      (d) the licence may be varied under section 57; and

      (e)

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