National Consumer Credit Protection Act - Australia

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Without limiting subsection (1), a business is taken to be carried on in this jurisdiction by a person if, in the course of carrying on the business, the person engages in conduct that is:

      (a) intended to induce people in this jurisdiction to use the goods or services the person provides; or

      (b) is likely to have that effect;

      whether or not the conduct is intended, or likely, to have that effect in other places as well.

      13 Meaning of misleading

      (1) A representation made by a person is misleading if:

      (a) the representation relates to a future matter (including the doing of, or refusing to do, any act); and

      (b) the person does not have reasonable grounds for making the representation.

      (2) Subsection (1) does not limit the circumstances in which a representation may be misleading.

      14 Meaning of person — generally includes a partnership

      (1) This Act (other than the National Credit Code) applies to a partnership as if the partnership were a person, but it applies with the following changes:

      (a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;

      (b) any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the partnership is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each partner who:

      (i) aided, abetted, counselled or procured the relevant act or omission; or(ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

      Note: For the purposes of paragraph (b), to determine whether the partnership has contravened this Act, see section 325.

      (2) For the purposes of this Act (other than the National Credit Code), a change in the composition of a partnership does not affect the continuity of the partnership.

      (3) Subsections (1) and (2) have effect subject to:

      (a) an express or implied contrary intention in a provision of this Act (other than the National Credit Code); and

      (b) the regulations, which may exclude or modify the effect of those subsections in relation to specified provisions.

      15 Meaning of person — generally includes multiple trustees

      (1) This section applies in relation to a trust during a period while the trust continues to have:

      (a) 2 or more trustees; or

      (b) a single trustee who was a trustee of the trust at a time when it had 2 or more trustees.

      (2) Subject to subsections (3) and (4), during the period this Act (other than the National Credit Code) applies to the trust as if the trustee or trustees of the trust from time to time during the period were a single person (the notional person) that remained the same for the duration of that period.

      Note: So, for example, a licence granted under this Act during the period to the trustees of the trust will continue in force, despite a change in the persons who are the trustees.

      (3) If, during the period or any part of the period, the trust has 2 or more trustees, this Act (other than the National Credit Code) applies to the trustees as referred to in subsection (2), but it applies with the following changes:

      (a) obligations that would be imposed on the notional person are imposed instead on each trustee, but may be discharged by any of the trustees;

      (b) any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the notional person is taken (whether for the purposes of criminal or civil liability) to have been a contravention by each trustee who:

      (i) aided, abetted, counselled or procured the relevant act or omission; or(ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the trustee).

      Note: For the purposes of paragraph (b), to determine whether the notional person has contravened this Act, see section 325.

      (4) If, during the period or any part of the period, the trust has only one trustee, this Act (other than the National Credit Code) applies to the trustee as referred to in subsection (2), but it applies with the following changes:

      (a) obligations that would be imposed on the notional person are imposed instead on that single trustee;

      (b) any contravention of this Act (other than the National Credit Code) that would otherwise be a contravention by the notional person is taken (whether for the purposes of criminal or civil liability) to have been a contravention by that single trustee.

      (5) Subsections (2), (3) and (4) have effect subject to:

      (a) an express or implied contrary intention in a provision of this Act (other than the National Credit Code); and

      (b) the regulations, which may exclude or modify the effect of those subsections in relation to specified provisions.

      16 Qualified privilege

      (1) If this Act provides that a person has qualified privilege in relation to an act, matter or thing, then the person:

      (a) has qualified privilege in proceedings for defamation; or

      (b) is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;

      in relation to that act, matter or thing.

      (2) Malice includes ill will to the person concerned or any other improper motive.

      (3) Neither this section nor a provision of this Act that provides as referred to in subsection (1) limits or affects any right, privilege or immunity that a person has, apart from this section or such a provision, as defendant in proceedings, or an action, for defamation.

      Part 1–3—Application of this Act and the Transitional Act

      Division 1—Introduction

      17 Guide to this Part

      This Part deals with the application of this Act and the Transitional Act.

      Division 2 is about the constitutional basis and geographical application of those Acts. It also deals with the application of those Acts to the Crown.

      Division 3 deals with the interaction between those Acts and laws of the States and Territories.

      Division 2—Constitutional basis and application of this Act and the Transitional Act

      18 Constitutional basis for this Act and the Transitional Act

      Application in a referring State

      (1) The application of this Act and the Transitional Act in the referring States is based on:

      (a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and

      (b) the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the referring States under paragraph 51(xxxvii) of the Constitution.

      Application in a Territory

      (2) The application of this Act and the Transitional Act in a Territory is based on:

      (a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

      (b) the legislative powers that the Commonwealth Parliament has under section

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