National Consumer Credit Protection Act - Australia

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      1) The credit service licensee must maintain one more trust accounts (the trust account) in accordance with this section.

      Civil penalty: 2,000 penalty units.

      Requirements for trust accounts

      2) The trust account must be maintained with an Australian ADI (within the meaning of section 9 of the Corporations Act 2001).

      (3) The trust account must be designated as the credit service licensee’s trust account.

      Offence

      (4) The credit service licensee commits an offence if:

      (a) the credit service licensee is subject to a requirement under subsection (1); and

      (b) the credit service licensee engages in conduct; and

      (c) the conduct contravenes the requirement.

      Criminal penalty: 25 penalty units, or 6 months imprisonment, or both.

      99 Obligations in relation to trust account money

      Requirement to pay money to credit of trust account

      1) The credit service licensee must pay to the credit of the trust account any money received by the credit service licensee on behalf of another person in relation to the credit service provided by the licensee.

      Civil penalty: 2,000 penalty units.

      Requirement in relation to withdrawal of money from trust account

      2) The credit service licensee must not withdraw any money paid into the trust account, other than for the purpose of paying the money in accordance with subsection (3).

      Civil penalty: 2,000 penalty units.

      Requirement in relation to payment of money from trust account

      3) The credit service licensee must pay any money withdrawn from the trust account to the person or persons lawfully entitled to receive that money.

      Civil penalty: 2,000 penalty units.

      Offence

      4) The credit service licensee commits an offence if:

      a) the credit service licensee is subject to a requirement under subsection (1), (2) or (3); and

      b) the credit service licensee engages in conduct; and

      c) the conduct contravenes the requirement.

      Criminal penalty: 25 penalty units, or 6 months imprisonment, or both.

      Trust account money not available for payment of debts etc.

      5) Money paid into a trust account by the credit service licensee under this section:

      a) is not available for the payment of a debt of any other creditor of the credit service licensee; and

      b) is not liable to be attached or taken in execution under the order or process of a court at the instance of any such creditors.

      100 Obligation to lodge trust account statement and trust account audit report

      Requirement to prepare and lodge trust account statement

      1) The credit service licensee must, for each financial year of the credit service licensee:

      a) prepare a written statement in relation to the trust account (the trust account statement) in accordance with this section; and

      b) lodge the trust account statement with ASIC in accordance with this section.

      Civil penalty: 2,000 penalty units.

      Requirement to prepare and lodge trust account audit report

      2) The credit service licensee must, with the trust account statement, lodge with ASIC an auditor’s report (the trust account audit report) in accordance with this section.

      Civil penalty: 2,000 penalty units.

      Requirements for statement and audit report

      3) Each of the trust account statement and trust account audit report must:

      a) be in the approved form; and

      b) contain the information and matters prescribed by the regulations; and

      c) be lodged with ASIC in accordance with section 101.

      4) The trust account audit report must be prepared by a person who complies with any eligibility requirements prescribed by the regulations.

      Offence

      5) The credit service licensee commits an offence if:

      a) the credit service licensee is subject to a requirement under subsection (1) or (2); and

      b) the credit service licensee engages in conduct; and

      c) the conduct contravenes the requirement.

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

      Meaning of financial year

      6) A financial year of the credit service licensee means:

      a) if the credit service licensee is not a body corporate — a year ending on 30 June; and

      b) if the credit service licensee is a body corporate — a financial year of the body corporate (within the meaning of section 323D of the Corporations Act 2001).

      101 Time of lodgment of trust account statement and trust account audit report

      (1) Unless an extension is granted under subsection (3), the trust account statement and trust account audit report must be lodged with ASIC before the day that is 3 months after the end of the financial year of the credit service licensee to which they relate.

      (2) If an extension is granted under subsection (3), the trust account statement and trust account audit report must be lodged with ASIC before the end of the extended period.

      (3) ASIC may, on application made:

      (a) by the credit service licensee and the auditor that is to prepare the trust account audit report; and

      (b) before the end of the period that would otherwise apply;

      approve an extension of the period for lodging the trust account statement and trust account audit report. The extension may be of the period originally applicable or the period applicable under a previous extension.

      (4) An approval may be given subject to any conditions imposed by ASIC.

      (5) If an approval is given subject to conditions, the licensee must comply with those conditions.

      Division 4—Matters relating to audit reports

      102 Auditor’s right of access to records, information etc.

      Auditor is entitled to access and assistance etc. from licensee

      1) An auditor (the auditor) who prepares one of the following audit reports (the audit report):

      a) an audit report required under subsection 49(3) in relation to a licensee;

      b) a trust account audit report required under subsection 100(2) in relation to a licensee;

      has a right of access at all reasonable times to the financial records or other credit books of the licensee for purposes relating to the audit report.

      2) The auditor is entitled to require:

      a) from the licensee; or

      b) if the licensee is a body corporate — from any director, secretary or senior manager of the licensee;

      any

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