s 1Short title

This Act may be cited as the National Consumer Credit Protection Act 2009.

s 2Commencement

(1)

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	15 December 2009
2. Sections 3 to 337 and Schedule 1	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	1 April 2010 (see F2010L00301)

Note:

This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2)

Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

s 3The National Credit Code

Schedule 1 (which is the National Credit Code) has effect as a law of the Commonwealth.

s 4Guide to this Part

This Part is about the terms that are defined in this Act (other than the National Credit Code). (For the terms that are defined in the National Credit Code, see section 204 of that Code.)

Division 2 has the Dictionary (see section 5). The Dictionary is a list of every term that is defined in this Act (other than the National Credit Code). A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.

Division 3 has definitions relating to the meaning of credit activity.

Division 4 has some other definitions that apply across this Act (other than the National Credit Code).

s 6Meaning 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 card contracts).

s 7Meaning of credit service

A person provides a credit service if the person:

(a)

provides credit assistance to a consumer; or

(b)

acts as an intermediary.

s 8Meaning of credit assistance

A person provides credit 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.

s 9Meaning 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 under a 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.

s 10Assignees 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.

s 12When 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)

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.

s 13Meaning 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.

s 14Meaning 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.

National Consumer Credit Protection Act 2009

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