National Consumer Credit Protection Act - Australia

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instrument:

      a) exempt a class of persons from all or specified provisions to which this Part applies; or

      b) exempt a credit activity (other than a credit activity referred to in paragraph (1)(b)) from all or specified provisions to which this Part applies; or

      c) exempt a class of credit activities from all or specified provisions to which this Part applies; or

      d) declare that provisions to which this Part applies apply in relation to a credit activity (other than a credit activity referred to in paragraph (1)(b)), or a class of persons or credit activities, as if specified provisions were omitted, modified or varied as specified in the declaration.

      Conditions on exemptions

      4) An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The court may order the person to comply with the condition in a specified way. Only ASIC may apply to the court for the order.

      Publication of exemptions and declarations

      5) An exemption or declaration under subsection (1) must be in writing and ASIC must publish notice of it on its website.

      Special rules in relation to offences

      6) If conduct (including an omission) of a person would not have constituted an offence if a particular declaration under paragraph (1)(c) or (3)(d) had not been made, that conduct does not constitute an offence unless, before the conduct occurred:

      a) the text of the declaration was published by ASIC on its website; or

      b) ASIC gave written notice setting out the text of the declaration to the person;

      in addition to complying with the requirements of the Legislative Instruments Act 2003if the declaration is made under subsection (3)).

      (7) In a prosecution for an offence to which subsection (6) applies, the prosecution must prove that paragraph (6)(a) or (b) was complied with before the conduct occurred.

      110 Exemptions and modifications by the regulations

      The regulations may:

      (a) exempt a person or class of persons from all or specified provisions to which this Part applies; or

      (b) exempt a credit activity or a class of credit activities from all or specified provisions to which this Part applies; or

      (c) provide that the provisions to which this Part applies apply as if specified provisions were omitted, modified or varied as specified in the regulations.

      Chapter 3—Responsible lending conduct

      Part 3–1—Licensees that provide credit assistance in relation to credit contracts

      Division 1—Introduction

      111 Guide to this Part

      This Part has rules that apply to licensees that provide credit assistance in relation to credit contracts. These rules are aimed at better informing consumers and preventing them from being in unsuitable credit contracts. However, these rules do not apply to a licensee that will be the credit provider under the credit contract.

      Division 2 requires a licensee to give its credit guide to a consumer. The credit guide has information about the licensee and some of the licensee’s obligations under this Act.

      Division 3 requires a licensee to give a quote before providing credit assistance to a consumer. The quote must set out the maximum amount the consumer will be required to pay to the licensee. The licensee must not charge more than that amount.

      Division 4 requires a licensee, before providing credit assistance to a consumer in relation to a credit contract, to make a preliminary assessment as to whether the contract will be unsuitable for the consumer. To do this, the licensee must make inquiries and verifications about the consumer’s requirements, objectives and financial situation. The licensee must give the consumer a copy of the assessment if requested.

      Division 5 requires a licensee, when providing credit assistance to a consumer in relation to a credit contract, to give the consumer a document that discloses certain information (for example, the commission the licensee is likely to receive).

      Division 6 prohibits a licensee from providing credit assistance to a consumer in relation to a credit contract if the contract will be unsuitable for the consumer.

      112 Application of this Part

      This Part does not apply in relation to credit assistance provided by a licensee in relation to a credit contract if the licensee is or will be the credit provider under the contract.

      Division 2—Credit guide of credit assistance providers

      113 Credit guide of credit assistance providers

      Requirement to give credit guide

      1) A licensee must, as soon as practicable after it becomes apparent to the licensee that it is likely to provide credit assistance to a consumer in relation to a credit contract, give the consumer the licensee’s credit guide in accordance with subsection (2).

      Civil penalty: 2,000 penalty units.

      2) The licensee’s credit guide must:

      a) be in writing; and

      b) be in the form (if any) prescribed by the regulations; and

      c) specify the licensee’s name and contact details; and

      d) specify the licensee’s Australian credit licence number; and

      e) give information about:

      i) any fees that are payable by a consumer to the licensee for the licensee’s credit assistance; and

      (ii) any charges that are payable by a consumer to the licensee for matters associated with providing the credit assistance; and (iii) the method for working out the amount of the fees and charges; and

      f) give information about:

      i) if there are 6 or fewer credit providers that the licensee conducts business with when providing credit assistance in relation to credit contracts — the names of those credit providers; and(ii) if there are more than 6 credit providers that the licensee conducts business with when providing credit assistance in relation to credit contracts — the names of the 6 credit providers with whom the licensee reasonably believes it conducts the most business; and

      g) give information about:

      i) any commissions that the licensee, or an employee, director or credit representative of the licensee, is likely to receive, directly or indirectly, from credit providers in relation to credit contracts for which the licensee has provided credit assistance; and

      (ii) a reasonable estimate of the amounts of those commissions or the range of those amounts; and

      (iii) the method for working out those amounts; and

      h) give information about the licensee’s procedure for resolving disputes with a consumer, including contact details for a consumer to access:

      i) the licensee’s internal dispute resolution procedure; and

      (ii) the approved external dispute resolution scheme of which the licensee is a member; and

      i) give information about the licensee’s obligations under sections 120 and 123; and

      j) comply with any other requirements prescribed by the regulations.

      3) The regulations may prescribe:

      a) information that need not be included in the credit guide, despite subsection (2); and

      b) for the purposes of paragraph (2)(g):

      i) the

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