s 160CB

Prohibition on use or disclosure of certain documents and information

In force

Requirement

(1)

A person must not use or disclose:

(a)

a constrained document; or

(b)

information contained in a constrained document; or

(c)

constrained information.

Civil penalty: 5,000 penalty units.

Offence

(2)

A person commits an offence if:

(a)

the person uses or discloses a document or information; and

(b)

any of the following apply:

(i)

the document is a constrained document;

(ii)

the information is contained in a constrained document;

(iii)

the information is constrained information.

Criminal penalty: 100 penalty units.

Strict liability offence

(3)

A person commits an offence if the person uses or discloses:

(a)

a constrained document; or

(b)

information contained in a constrained document; or

(c)

constrained information.

Criminal penalty: 10 penalty units.

(4)

Subsection (3) is an offence of strict liability.

Defence

(5)

For the purposes of subsection (1), (2) or (3) it is a defence if the use or disclosure by the person is:

(a)

a disclosure to another person (the recipient) of:

(i)

a constrained document; or

(ii)

information contained in a constrained document; or

(iii)

constrained information;

that is about the financial affairs of the recipient (either alone or with others); or

(b)

necessary for the person to comply with the person’s obligations under this Act; or

(c)

required or authorised by or under a law of the Commonwealth, or of a State or Territory, or a court or tribunal order; or

(d)

for the purposes of considering a hardship notice; or

(e)

for the purposes of assisting ASIC to perform its functions or exercise its powers; or

(f)

for the purposes of allowing the operator of the AFCA scheme to perform its functions or exercise its powers.

Note:

For the purposes of subsection (2) or (3), a defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

77 Section 335A

Repeal the section.

Part 7—Application provisions

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009

78 In the appropriate position

Insert:

Schedule 19—Application provisions for Schedule 4 to the Financial Sector Reform Act 2022

1 Definitions

In this Schedule:

amending Schedule means Schedule 4 to the Financial Sector Reform Act 2022.

2 Amendments of the National Credit Act—repeal of rebuttable presumptions

The repeals of the following provisions of the National Credit Act, as made by Part 1 of the amending Schedule, apply for the purposes of proceedings relating to a contravention of a provision of the National Credit Act if the proceedings commence on or after the commencement of that Part:

(a)

subsection 118(3A);

(b)

subsection 123(3A);

(c)

subsection 131(3A);

(d)

subsection 133(3A).

3 Amendments of the National Credit Act—representations and communications

(1)

The amendment, addition or insertion of the following sections of the National Credit Act, as made by Parts 1 and 2 of the amending Schedule, applies in relation to representations made on or after the day those Parts commence:

(a)

section 124B;

(b)

section 133CB;

(c)

section 147A;

(d)

section 156A.

(2)

Section 133CF of the National Credit Act, as added by Part 1 of the amending Schedule, applies in relation to:

(a)

the making of an unsolicited communication on or after the day that Part commences; and

(b)

the arranging for the making of an unsolicited communication if the arrangement is entered into on or after that day.

4 Amendments of the National Credit Act—assessments

The amendment, addition or insertion of the following sections of the National Credit Act, as made by Parts 1 and 2 of the amending Schedule, applies in relation to preliminary assessments and assessments made on or after the day those Parts commence:

(a)

section 124C;

(b)

section 133CE;

(c)

section 147B;

(d)

section 156C.

5 Amendments of the National Credit Act—inquiries and verifications

The amendments of the following sections of the National Credit Act, as made by Parts 1 and 2 of the amending Schedule, apply in relation to verifications made on or after the day those Parts commence:

(a)

section 117;

(b)

section 130;

(c)

section 140;

(d)

section 153.

6 Amendments of the National Credit Act—payments required under small amount credit contracts or consumer leases

The amendment, addition or insertion of the following sections of the National Credit Act, as made by Parts 1 and 2 of the amending Schedule, applies in relation to small amount credit contracts or consumer leases entered into or offers made to enter into small amount credit contracts or consumer leases, on or after the day those Parts commence:

(a)

section 133CC;

(b)

section 133CD;

(c)

section 156B.

7 Application of section 160G of the National Credit Act—proscribed referrals

Section 160G of the National Credit Act, as added by Part 3 of the amending Schedule, applies to a referral by a licensee if:

(a)

the referral is made on or after the commencement of that Part; and

(b)

the licensee was not, immediately before that commencement, under a contractual obligation to make the referral.

8 Application of Division 1A of Part 7‑1 of the National Credit Act—avoidance schemes

(1)

Division 1A of Part 7‑1 of the National Credit Act, as inserted by Part 4 of the amending Schedule, applies to conduct that relates to schemes connected with a contract if:

(a)

the contract was:

(i)

entered into on or after the day that Part 4 of the amending Schedule commences; or

(ii)

amended, on or after that day, to extend the term of the contract; and

(b)

the conduct occurs on or after the day that Part 4 of the amending Schedule commences.

(2)

Division 1A of Part 7‑1 of the National Credit Act, as inserted by Part 4 of the amending Schedule, also applies to conduct that relates to schemes connected with a product intervention order made under Part 6‑7A of the National Credit Act if the conduct occurs on or after the day that Part 4 of the amending Schedule commences, whether the product intervention order came into force before, or comes into force on or after, that day.

9 Application of section 160CB of the National Credit Act—use or disclosure of documents and information

Section 160CB of the National Credit Act, as inserted by Part 6 of the amending Schedule, applies to a use or disclosure of:

(a)

a constrained document; or

(b)

information contained in a constrained document; or

(c)

constrained information;

if the use or disclosure occurs on or after the day that Part commences.

10 Application of section 31C of the new Credit Code—unexpired monthly fees

Section 31C of the new Credit Code, as inserted by Part 1 of the amending Schedule, applies to small amount credit contracts entered into on or after the day that Part commences.

11 Application of subsection 82(2) of the new Credit Code—paying out credit contracts

Subsection 82(2) of the new Credit Code, as amended by Part 1 of the amending Schedule, applies in relation to small amount credit contracts entered into before, on or after the day that Part commences.

12 Amendments of the new Credit Code—consumer leases

(1)

The amendment, addition or insertion of the following sections of the new Credit Code, as made by Parts 2 and 5 of the amending Schedule, applies in relation to consumer leases entered into on or after the day those Parts commence:

(a)

section 111;

(b)

section 112;

(c)

section 113;

(d)

section 114A;

(e)

section 115;

(f)

section 116;

(g)

section 117;

(h)

section 118;

(i)

section 119;

(j)

section 120;

(k)

section 121;

(l)

section 124;

(m)

section 171;

(n)

section 174;

(o)

section 175AA;

(p)

section 175AC;

(q)

section 175H;

(r)

section 179;

(s)

section 179GA;

(t)

section 179VB;

(u)

section 179VC.

(2)

The insertion of sections 175AA and 175AC of the new Credit Code, as made by Part 2 of the amending Schedule, also applies in relation to the variation on or after the day that Part commences of consumer leases (whether entered into before, on or after that day).

13 Application of section 179VA of the new Credit Code—canvassing of consumer leases for household goods

Section 179VA of the new Credit Code, as added by Part 2 of the amending Schedule, applies in relation to:

(a)

the making of an unsolicited communication on or after the day that Part commences; and

(b)

the arranging for the making of an unsolicited communication if the arrangement is entered into on or after that day.

[Minister’s second reading speech made in—

House of Representatives on 8 September 2022

Senate on 25 October 2022]

(87/22)

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