National Consumer Credit Protection Act - Australia

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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.

      Division 3—Definitions relating to the meaning of credit activity

      6 Meaning of credit activity

      (1) The following table sets out when a person engages in a credit activity.

      Meaning of credit activity

      Item

      Topic

      A person engages in a credit activity if:

      1

      credit contracts

      (a) the person is a credit provider under a credit contract; or

      (b) the person carries on a business of providing credit, being credit the provision of which the National Credit Code applies to; or

      (c) the person performs the obligations, or exercises the rights, of a credit provider in relation to a credit contract or proposed credit contract (whether the person does so as the credit provider or on behalf of the credit provider); or

      2

      credit service the person provides a credit service; or

      3

      consumer leases

      (a) the person is a lessor under a consumer lease; or

      (b) the person carries on a business of providing consumer leases; or

      (c) the person performs the obligations, or exercises the rights, of a lessor in relation to a consumer lease or proposed consumer lease (whether the person does so as the lessor or on behalf of the lessor); or

      4

      mortgages

      (a) the person is a mortgagee under a mortgage; or

      (b) the person performs the obligations, or exercises the rights, of a mortgagee in relation to a mortgage or proposed mortgage (whether the person does so as the mortgagee or on behalf of the mortgagee); or

      5

      guarantees

      (a) the person is the beneficiary of a guarantee; or

      (b) the person performs the obligations, or exercises the rights, of another person who is a beneficiary of a guarantee or proposed guarantee, in relation to the guarantee or proposed guarantee (whether the person does so on the person’s own behalf or on behalf of the other person); or

      6

      prescribed activities the person engages in an activity prescribed by the regulations in relation to credit, being credit the provision of which the National Credit Code applies to, or would apply to if the credit were provided.

      (2) A subclass of any of the conduct referred to in the table in subsection (1) is also a credit activity.

      Note: For example, ASIC could impose a condition on a licence under subsection 45(6) that provides that a person is authorised to be a credit provider only under particular types of credit contracts (such as credit contracts for credit cards).

      7 Meaning of credit service

      A person provides acredit service if the person:

      (a) provides credit assistance to a consumer; or

      (b) acts as an intermediary.

      8 Meaning of credit assistance

      A person providescredit assistance to a consumer if, by dealing directly with the consumer or the consumer’s agent in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person:

      (a) suggests that the consumer apply for a particular credit contract with a particular credit provider; or

      (b) suggests that the consumer apply for an increase to the credit limit of a particular credit contract with a particular credit provider; or

      (c) suggests that the consumer remain in a particular credit contract with a particular credit provider; or

      (d) assists the consumer to apply for a particular credit contract with a particular credit provider; or

      (e) assists the consumer to apply for an increase to the credit limit of a particular credit contract with a particular credit provider; or

      (f) suggests that the consumer apply for a particular consumer lease with a particular lessor; or

      (g) suggests that the consumer remain in a particular consumer lease with a particular lessor; or

      (h) assists the consumer to apply for a particular consumer lease with a particular lessor.

      It does not matter whether the person does so on the person’s own behalf or on behalf of another person.

      9 Meaning of acts as an intermediary

      A person acts as an intermediary if, in the course of, as part of, or incidentally to, a business carried on in this jurisdiction by the person or another person, the person:

      (a) acts as an intermediary (whether directly or indirectly) between a credit provider and a consumer wholly or partly for the purposes of securing a provision of credit for the consumer undera credit contract for the consumer with the credit provider; or

      (b) acts as an intermediary (whether directly or indirectly) between a lessor and a consumer wholly or partly for the purposes of securing a consumer lease for the consumer with the lessor.

      It does not matter whether the person does so on the person’s own behalf or on behalf of another person.

      10 Assignees of credit providers, lessors, mortgagees and beneficiaries of a guarantee

      (1) For the purposes of this Act (other than the National Credit Code), a person is a credit provider, lessor, mortgagee or beneficiary of a guarantee whether the person is:

      (a) the original credit provider, lessor, mortgagee or beneficiary of a guarantee under a credit contract, consumer lease, mortgage or guarantee; or

      (b) a person to whom the rights of a credit provider, lessor, mortgagee or beneficiary of a guarantee under a credit contract, consumer lease, mortgage or guarantee have been assigned or passed by law.

      Note: For example, a person who is assigned the rights of a credit provider under a credit contract would engage in a credit activity within the meaning of paragraph (a) of item 1 of the table in subsection 6(1).

      (2) For the purposes of paragraph (1)(b), it does not matter whether an assignment or passing by law of rights is the first or a subsequent assignment or passing by law of those rights.

      Division 4—Other definitions

      11 Meaning of approved external dispute resolution scheme

      (1) A person is a member of an approved external dispute resolution scheme if the person is a member of one or more external dispute resolution schemes that:

      (a) is, or are, approved by ASIC in accordance with the regulations; and

      (b) covers, or together cover, disputes in relation to the credit activities engaged in by the person or its representatives.

      (2) Regulations made for the purpose of paragraph (1)(a) may also deal with the variation or revocation of approvals given by ASIC.

      12 When a business is carried on in this jurisdiction

      (1) Division 3 of Part 1.2 of the Corporations Act 2001 applies for the purposes of working out whether a business is carried on in this jurisdiction.

      (2)

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