National Consumer Credit Protection Act - Australia

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receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and

      b) documents of prime entry; and

      c) any trust account statement or trust account report required under section 100.

      Offence

      3) A person commits an offence if:

      a) the person is subject to a requirement in relation to financial records under subsection (1); and

      b) the person engages in conduct; and

      c) the conduct contravenes subsection (1).

      Criminal penalty: 200 penalty units, or 5 years imprisonment, or both.

      Financial records may be kept with other records

      4) A licensee does not contravene this Division merely because some or all of the financial records are prepared as a part of, or in conjunction with, the records relating to any other business that is carried on by the licensee.

      Note: For the purposes of subsection (3), a defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

      89 How financial records are to be kept

      The financial records must be kept in a way that:

      (a) enables true and fair profit and loss statements, and balance sheets, of the business referred to in paragraph 88(1)(a) to be prepared from time to time; and

      (b) allows those statements and balance sheets to be conveniently and properly audited in accordance with the auditing standards (if any) prescribed by regulations made under section 106.

      90 Language of financial records

      (1) The financial records must be kept in writing in the English language, or in a manner that enables them to be readily accessible and readily converted into writing in the English language.

      (2) If any of the financial records are not kept in writing in the English language, the licensee must, if required to convert the financial records concerned into writing in the English language by a person who is entitled to examine the financial records concerned, comply with the requirement within a reasonable time.

      91 Location of financial records

      If any of the financial records are kept outside this jurisdiction, the licensee must:

      (a) cause to be sent to and retained at a place in this jurisdiction such particulars in relation to the business dealt with in those financial records as will enable true and fair profit and loss statements and balance sheets to be prepared; and

      (b) if required by ASIC to produce those financial records at a place in this jurisdiction, comply with the requirement not later than 28 days after the requirement is made.

      92 Information to be shown in financial records

      The financial records must be kept in sufficient detail to show particulars of:

      (a) all money received or paid by the licensee; and

      (b) for each credit contract under which the licensee is the credit provider:

      (i) the amount and day of all payments made by or on behalf of the debtor under the credit contract; and(ii) all amounts (including principal, interest, fees and charges) owed by the debtor under the credit contract; and

      (c) for each consumer lease under which the licensee is the lessor — the amount and day of all payments made by or on behalf of the lessee under the consumer lease; and

      (d) for each guarantee under which the licensee is the beneficiary of the guarantee — the amount and day of all payments made by or on behalf of the guarantor under the guarantee; and

      (e) all income received by the licensee from commissions, interest, and other sources, and all expenses, commissions, and interest paid by the licensee; and

      (f) all the assets and liabilities (including contingent liabilities) of the licensee; and

      (g) any other matters prescribed by the regulations.

      93 Regulations may impose additional requirements

      The regulations may impose additional requirements to be complied with in relation to the financial records including, for example:

      (a) requirements for things to be contained in the records; and

      (b) requirements relating to the level of detail to be shown in the records.

      94 Financial records taken to be made with licensee’s authority

      An entry in the records is, unless the contrary is proved, to be taken to have been made by, or with the authority of, the licensee.

      95 Obligation to retain financial records for 7 years

      Requirement to retain financial records

      1) A licensee that is required by this Division to make a financial record must retain it for 7 years after the transactions covered by the record are completed.

      Civil penalty: 2,000 penalty units.

      Regulations

      2) The regulations may prescribe financial records to which subsection (1) does not apply.

      Records to be kept even if person stops carrying on business

      3) Financial records must be retained in accordance with this section, even if the person stops carrying on any business to which they relate.

      Offence

      4) A person commits an offence if:

      a) the person is subject to a requirement under subsection (1); and

      b) the person engages in conduct; and

      c) the conduct contravenes the requirement.

      Criminal penalty: 50 penalty units, or 6 months imprisonment, or both.

      96 Financial records are prima facie evidence of matters

      1) In proceedings in a court, a financial record kept under this Division is admissible as prima facie evidence of any matter in the financial record.

      2) A document purporting to be a financial record kept by a licensee under this Division is, unless the contrary is proved, presumed to be a financial record kept by the licensee under this Division.

      3) If:

      a) because of subsection (1) a financial record is prima facie evidence of a matter; and

      b) the financial record, or a part of the financial, is kept or prepared by recording or storing matters (including that matter) by means of a mechanical, electronic or other device;

      a written reproduction of that matter as so recorded or stored is admissible as prima facie evidence of that matter in a proceeding in a court.

      4) A written document that purports to reproduce a matter recorded or stored by means of a mechanical, electronic or other device is, unless the contrary is proved, presumed to be a reproduction of that matter.

      Division 3—Trust accounts of credit service licensees

      97 Application of this Division

      This Division applies to a licensee (the credit service licensee) that:

      a) holds a licence that authorises the licensee to provide a credit service; and

      b) in the course of providing the credit service, receives money on behalf of another person.

      98 Obligation for credit service licensees to maintain trust account

      Requirement

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