National Consumer Credit Protection (Transitional and Consequential Provisions) Amendment Regulations 2010 (No. 3)1
Select Legislative Instrument 2010 No. 139
I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009.
Dated 15 June 2010
QUENTIN BRYCE
Governor-General
By Her Excellency’s Command
CHRIS BOWEN
Minister for Financial Services, Superannuation and Corporate Law
1              Name of Regulations
                These Regulations are the National Consumer Credit Protection (Transitional and Consequential Provisions) Amendment Regulations 2010 (No. 3).
2              Commencement
                These Regulations commence on the day after they are registered.
3              Amendment of National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2010
                Schedule 1 amends the National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2010.
Schedule 1        Amendments
(regulation 3)
 
[1]           Subregulation 3 (1), definition of authorised contact
omit
[2]           Subregulation 3 (1), after definition of credit card
insert
exempt special purpose funding entity has the meaning given by subregulation 3 (1) of the National Credit Regulations.
[3]           Subregulation 3 (1), after definition of financial counselling service
insert
inappropriate person has the meaning given by subregulation 3 (1) of the National Credit Regulations.
[4]           Subregulation 3 (1), after definition of registered debt agreement administrator
insert
servicing agreement has the meaning given by section 5 of the National Credit Act, as modified by item 3.4 of Schedule 3 to the National Credit Regulations.
special purpose funding entity has the meaning given by section 5 of the National Credit Act, as modified by item 3.4 of Schedule 3 to the National Credit Regulations.
[5]           After regulation 10
insert
10A         The conditions on the registration — special purpose funding entity
         (1)   For subitem 14 (7) of Schedule 2 to the Act, the registration is subject to the conditions set out in this regulation if the registered person is a party to a servicing agreement with a special purpose funding entity.
         (2)   The registered person must notify ASIC, in an approved form, that the registered person is a party to a servicing agreement with a special purpose funding entity.
         (3)   For subregulation (2):
                (a)    if the servicing agreement was entered into before 1 July 2010, the registered person must notify ASIC no later than 30 business days after 1 July 2010; and
               (b)    if the servicing agreement was entered into on or after 1 July 2010, the registered person must notify ASIC no later than 20 business days after the servicing agreement was entered into.
         (4)   If the registered person ceases to be a party to a servicing agreement with a special purpose funding entity:
                (a)    the registered person must notify ASIC, in an approved form, that the registered person has ceased to be a party to the servicing agreement with the entity; and
               (b)    the registered person must notify ASIC not later than 15 business days after the registered person ceases to be a party.
         (5)   The registered person:
                (a)    must notify ASIC, in an approved form, of any action by a natural person in a position to control or influence the special purpose funding entity that has or may have the effect of directing the licensee to act inconsistently with:
                          (i)    the conditions imposed on the registered person’s registration; or
                         (ii)    the credit legislation; and
               (b)    must notify ASIC no later than 15 business days after the action occurs.
[6]           Paragraph 11 (11) (b)
omit each mention of
licensee or a registered person
insert
licensee, registered person or exempt special purpose funding entity
[7]           Sub-subparagraph 11 (12) (a) (i) (B)
after
lessor
insert
or an exempt special purpose funding entity that is a credit provider or lessor
[8]           Subregulation 12 (3)
omit each mention of
licensee or a registered person
insert
licensee, registered person or exempt special purpose funding entity
[9]           Subregulation 13 (3)
omit each mention of
licensee or a registered person
insert
licensee, registered person or exempt special purpose funding entity
[10]         Regulation 14, heading
substitute
14            Persons exempt from requiring registration — suppliers of goods or services
[11]         Subregulation 14 (3B)
omit each mention of
licensee or registered person
insert
licensee, registered person or exempt special purpose funding entity
[12]         Regulation 14A, heading
substitute
14A         Persons exempt from requiring registration — suppliers of goods or services with branded or co-branded credit card
[13]         Subparagraph 14A (3) (a) (iii)
substitute
                         (iii)    engaging in a credit activity on behalf of the supplier of goods or services; and
[14]         Paragraphs 14A (4) (a) and (5) (a)
omit
licensee or registered person;
insert
licensee, registered person or exempt special purpose funding entity;
[15]         Subregulation 14A (6)
substitute
         (6)   The person is exempted if the person engages in credit activities on the premises of the supplier.
[16]         Regulation 14B
substitute
14B         Persons exempt from requiring registration — fund raising special purpose entity
         (1)   For paragraph 42 (a) of Schedule 2 to the Act, this regulation applies in relation to a fund raising special purpose entity if:
                (a)    it engages in a credit activity; and
               (b)    it is party to a servicing agreement; and
                (c)    it is a member of an approved external dispute resolution scheme; and
               (d)    if it is a body corporate — no director or secretary of the body corporate is an inappropriate person; and
                (e)    if it is a trust — no trustee of the trust is an inappropriate person.
         (2)   The fund raising special purpose entity is exempted from:
                (a)    items 4 and 6 of Schedule 2 to the Act; and
               (b)    definitions in the Act, as they apply to references in the provision mentioned in paragraph (a); and
                (c)    instruments made for the purpose of any of the provisions mentioned in paragraphs (a) and (b).
Note   Item 4 of Schedule 2 to the Act provides that a person must not engage in a credit activity during the specified period unless the person is registered or holds a licence authorising the person to engage in the credit activity.
That item also provides that it is a defence if the person is a credit representative of the person who is registered or holds a licence authorising the person to engage in the credit activity.
Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during the specified period unless the person:
(a)   is registered and has applied for a licence authorising the person to engage in the credit activity; or
(b)   holds a licence authorising the person to engage in the credit activity.
That item also provides that it is a defence if the person is a credit representative of a person who:
(a)   is registered and has applied for a licence authorising the person to engage in the credit activity; or
(b)   holds a licence authorising the person to engage in the credit activity.
         (3)   The fund raising special purpose entity is exempted only to the extent that it is engaging in the specified credit activity.
Note 1   If the fund raising special purpose entity also engages in a credit activity that is not the subject of an exemption under the Act or the Transitional Act, it is not exempted in relation to that credit activity.
Note 2   Under section 109 (3) of the Act, ASIC may declare that instruments made under Chapter 2 of the Act apply in relation to a credit activity (other than an exempt credit activity in relation to a specified credit contract, mortgage, guarantee or consumer lease), or a class of persons or credit activities as if specified provisions were omitted, modified or varied as specified in the declaration.
14C         Persons exempt from requiring registration — securitisation entity
         (1)   For paragraph 110 (a) of the Act, this regulation applies in relation to a securitisation entity if:
                (a)    it engages in a credit activity; and
               (b)    it is party to a servicing agreement; and
                (c)    on and after 1 October 2010, it is a member of an approved external dispute resolution scheme; and
               (d)    if it is a body corporate — no director or secretary of the body corporate is an inappropriate person; and
                (e)    if it is a trust — no trustee of the trust is an inappropriate person.
         (2)   The securitisation entity is exempted from:
                (a)    items 4 and 6 of Schedule 2 to the Act; and
               (b)    definitions in the Act, as they apply to references in the provision mentioned in paragraph (a); and
                (c)    instruments made for the purpose of any of the provisions mentioned in paragraphs (a) and (b).
Note   Item 4 of Schedule 2 to the Act provides that a person must not engage in a credit activity during the specified period unless the person is registered or holds a licence authorising the person to engage in the credit activity.
That item also provides that it is a defence if the person is a credit representative of the person who is registered or holds a licence authorising the person to engage in the credit activity.
Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during the specified period unless the person:
(a)   is registered and has applied for a licence authorising the person to engage in the credit activity; or
(b)   holds a licence authorising the person to engage in the credit activity.
That item also provides that it is a defence if the person is a credit representative of a person who:
(a)   is registered and has applied for a licence authorising the person to engage in the credit activity; or
(b)   holds a licence authorising the person to engage in the credit activity.
         (3)   The securitisation entity is exempted only to the extent that it is engaging in the specified credit activity.
Note 1   If the fund raising special purpose entity also engages in a credit activity that is not the subject of an exemption under the Act or the Transitional Act, it is not exempted in relation to that credit activity.
Note 2   Under section 109 (3) of the Act, ASIC may declare that instruments made under Chapter 2 of the Act apply in relation to a credit activity (other than an exempt credit activity in relation to a specified credit contract, mortgage, guarantee or consumer lease), or a class of persons or credit activities as if specified provisions were omitted, modified or varied as specified in the declaration.
[17]         Subparagraph 15 (6) (b) (ii)
omit
licensee or a registered person;
insert
licensee, registered person or exempt special purpose funding entity;
[18]         Sub-subparagraph 15 (6) (d) (i) (A)
omit
licensee or a registered person;
insert
licensee, registered person or exempt special purpose funding entity;
[19]         Sub-subparagraph 15 (6) (d) (i) (B)
omit
person 2; or
insert
person 2; and
[20]         After sub-subparagraph 15 (6) (d) (i) (B)
insert
                                   (C)     if person 2 is an exempt special purpose funding entity — person 1 gives the consumer the licence number of the licensee who is party to the servicing agreement with the entity; or
[21]         Subparagraph 15 (7) (b) (ii)
omit
licensee or a registered person;
insert
licensee, registered person or exempt special purpose funding entity;
[22]         Sub-subparagraph 15 (7) (d) (i) (A)
omit
licensee or a registered person;
insert
licensee, registered person or exempt special purpose funding entity;
[23]         Sub-subparagraph 15 (7) (d) (i) (B)
omit
person 2; or
insert
person 2; and
[24]         After sub-subparagraph 15 (7) (d) (i) (B)
insert
                                   (C)     if person 2 is an exempt special purpose funding entity — person 1 gives the consumer the licence number of the licensee who is party to the servicing agreement with the entity; or
[25]         Paragraphs 15 (8) (a) and (b)
omit each mention of
licensee or a registered person;
insert
licensee, registered person or exempt special purpose funding entity;
[26]         After subregulation 16B
insert
16BA      Modification of item 4 of Schedule 2 to the Act
                Item 4 of Schedule 2 to the Act applies to the registered person as if it were modified by omitting subitem (4).
16BB      Modification of item 6 of Schedule 2 to the Act
                Item 6 of Schedule 2 to the Act applies to the registered person as if it were modified by omitting subitem (4).
[27]         Part 4, Division 2, Subdivision 2.2
omit
[28]         Regulation 32
omit
other than
insert
not including
[29]         Regulation 32
before
credit activity
insert
a
[30]         Regulation 32
omit
mortgagor
insert
mortgagee
[31]         Regulation 33
omit
                For subitem 18 (2)
insert
         (1)   For subitem 18 (2)
[32]         Regulation 33
omit
mortgagor
insert
mortgagee
[33]         Regulation 33
insert
         (2)   For paragraph 110 (c) of the National Credit Act, section 29 of the Act applies as if it were modified by adding the following subsection after subsection (4):
               (5)    For the purposes of subsections (1) and (2), it is a defence if:
                         (a)    the person engages in the credit activity on behalf of another person (the principal); and
                         (b)    the person is a representative of the principal; and
                         (c)    the person’s conduct in engaging in the credit activity is within the authority of the principal; and
                         (d)    the principal has notified ASIC in accordance with subitem 19A(2) of Schedule 2 to the Act as modified by ASIC Class Order [CO 10/381].
[34]         Regulation 34
omit
mortgagor
insert
mortgagee
[35]         Regulation 35
omit
                For subitem 20 (2)
insert
         (1)   For subitem 20 (2)
[36]         Subregulation 35 (1)
omit
mortgagor
insert
mortgagee
[37]         Regulation 35
insert
         (2)   For paragraph 42 (c) of Schedule 2 to the Act, item 4 of that Schedule applies as if it were modified by adding the following subitem after subitem (4):
               (5)    For the purposes of subitems (1) and (2), it is a defence if:
                         (a)    the person engages in the credit activity on behalf of another person (the principal); and
                         (b)    the person is a representative of the principal; and
                         (c)    the person’s conduct in engaging in the credit activity is within the authority of the principal; and
                         (d)    the principal has notified ASIC in accordance with subitem 19A(2) of Schedule 2 to the Act as modified by ASIC Class Order [CO 10/381].
         (2)   For paragraph 42 (c) of Schedule 2 to the Act, item 6 of that Schedule applies as if they were modified by adding the following subitem after subitem (4):
               (5)    For the purposes of subitems (1) and (2), it is a defence if:
                         (a)    the person engages in the credit activity on behalf of another person (the principal); and
                         (b)    the person is a representative of the principal; and
                         (c)    the person’s conduct in engaging in the credit activity is within the authority of the principal; and
                         (d)    the principal has notified ASIC in accordance with subitem 19A(2) of Schedule 2 to the Act as modified by ASIC Class Order [CO 10/381].
[38]         Paragraph 36 (1) (a)
omit
credit provider, lessor, mortgagor or beneficiary of a guarantee
insert
credit provider or lessor
[39]         After regulation 36
insert
37            Application of Chapter 3 of National Credit Act — licensee or registered person in relation to carried over instrument
         (1)   For subitem 18 (2) of Schedule 1 to the Act, Chapter 3 of the National Credit Act applies:
                (a)    to a licensee or registered person; and
               (b)    in relation to a credit activity engaged in in relation to a carried over instrument.
         (2)   Chapter 3 applies as if:
                (a)    all references to a licensee were references to a licensee or registered person; and
               (b)    all references to licensees were references to licensees or registered persons.
38            Application of Parts 3-2 and 3-7 of the National Credit Act — unlicensed carried over instrument lender
         (1)   For subitem 18 (2) of Schedule 1 to the Act, Parts 3-2 and Part 3-7 of the National Credit Act apply to an unlicensed carried over instrument lender if the lender:
                (a)    engages in the credit activity of being a credit provider under a credit contract; and
               (b)    engages in the credit activity in relation to a carried over instrument.
         (2)   Part 3-2 applies as if:
                (a)    all references to a licensee were references to an unlicensed carried over instrument lender; and
               (b)    all references to licensees were references to unlicensed carried over instrument lenders.
         (3)   Part 3-7 applies as if all references to this Chapter were references to Part 3-2.
Note
1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.