1Purposes

The Purposes of this Act are to—

(a)

adopt the National Consumer Credit Protection Act 2009 of the Commonwealth (as amended) and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 of the Commonwealth, and to refer certain matters relating to the provision of credit and certain other financial transactions to the Parliament of the Commonwealth, for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth; and

(b)

to make related provisions and transitional and consequential provisions.

2Commencement

(1)

Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)

Section 20(2) comes into operation on 1 January 2011.

Part 2—Adoption and reference of matters

3Definitions

In this Act—

adoption means the adoption under section 4(1);

amendment reference means the reference under section 6(1);

Commonwealth Credit instrument means any instrument (whether or not of a legislative character) that is made or issued under the National Credit legislation;

express amendment of the National Credit legislation means the direct amendment of the text of the National Credit legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the National Credit legislation;

National Credit legislation means—

(a)

the National Consumer Credit Protection Act 2009 of the Commonwealth; and

(b)

the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 of the Commonwealth—

as in force from time to time;

referred credit matter means a matter relating to either of the following—

(a)

credit, being credit the provision of which would be covered by the expression "provision of credit to which this Code applies" in the relevant version of the National Credit Code;

(b)

consumer leases, being consumer leases each of which would be covered by the expression "consumer lease to which Part 11 applies" in the relevant version of the National Credit Code;

relevant version of the National Credit Code means the text of Schedule 1 to the National Consumer Credit Protection Act 2009 of the Commonwealth as originally enacted, and as later amended by the National Consumer Credit Protection Amendment Act 2010 of the Commonwealth;

relevant version of the National Credit legislation means—

(a)

the National Consumer Credit Protection Act 2009 of the Commonwealth as originally enacted, and as later amended by the National Consumer Credit Protection Amendment Act 2010 of the Commonwealth; and

(b)

the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 of the Commonwealth.

4Adoption of National Credit legislation

(1)

The relevant version of the National Credit legislation is adopted within the meaning of section 51(xxxvii) of the Constitution of the Commonwealth.

(2)

The adoption has effect for a period—

(a)

beginning when this section commences; and

(b)

ending at the end of the day fixed under section 5 as the day on which the adoption is to terminate—

but no longer.

5Termination of adoption

(1)

The Governor in Council may, at any time, by proclamation published in the Government Gazette, fix a day as the day on which the adoption under section 4 is to terminate.

(2)

The Governor in Council may, by proclamation published in the Government Gazette, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 4) never to have been published.

(3)

A revoking proclamation has effect only if published before the day fixed under subsection (1).

(4)

The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.

6Reference of matters

(1)

Subject to section 7, any referred credit matter is referred to the Parliament of the Commonwealth, but only to the extent of the making of laws with respect to such a matter by making express amendments of the National Credit legislation.

(2)

The reference of a matter under subsection (1) has effect only—

(a)

if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under section 51(xxxvii) of the Constitution of the Commonwealth); and

(b)

if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

(3)

Despite any other provision, the reference has effect for a period—

(a)

beginning when this section commences; and

(b)

ending at the end of the day fixed under section 8 as the day on which the reference is to terminate—

but no longer.

7Matters excluded from reference

(1)

A matter referred by section 6(1) does not include—

(a)

the matter of making provision with respect to the imposition or payment of State taxes, duties, charges or other imposts, however described; or

(b)

the matter of making provision with respect to the general system for the recording of estates or interests in land and related information; or

(c)

the matter of providing for the priority of interests in real property; or

(d)

the matter of making a law that excludes or limits the operation of a State law, to the extent that the State law makes provision with respect to the creation, holding, transfer, assignment, disposal or forfeiture of a State statutory right.

(2)

In this section—

forfeiture means confiscation, seizure, extinguishment, cancellation, suspension or any other forfeiture;

State law means—

(a)

any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time; or

(b)

the general law, being the principles and rules of common law and equity to the extent that they have effect in the State from time to time;

State statutory right means a right, entitlement or authority that is granted by or under any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time, other than a right, entitlement or authority that relates to—

(a)

credit covered by paragraph (a) of the definition of referred credit matter in section 3; or

(b)

a consumer lease covered by paragraph (b) of that definition.

8Termination of reference

(1)

The Governor in Council may, at any time, by proclamation published in the Government Gazette, fix a day as the day on which the amendment reference terminates.

(2)

(3)

A revoking proclamation has effect only if published before the day fixed under subsection (1).

(4)

The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.

9Amendment of Commonwealth law

For the avoidance of doubt, it is the intention of the Parliament of the State that—

(a)

the National Credit legislation may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts the operation of which is based on any legislative powers that the Parliament of the Commonwealth has on account of a reference of any matters, or the adoption of the relevant version of the National Credit legislation, under section 51(xxxvii) of the Constitution of the Commonwealth; and

(b)

the National Credit legislation may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters, or the adoption of the relevant version of the National Credit legislation, under section 51(xxxvii) of the Constitution of the Commonwealth; and

(c)

the National Credit legislation may have its operation affected, otherwise than by express amendment, at any time by provisions of Commonwealth Credit instruments.

10Effect of termination of amendment reference before termination of adoption of Commonwealth Acts

(1)

If the amendment reference is terminated but the adoption of the relevant version of the National Credit legislation is not terminated, the termination of the amendment reference does not affect—

(a)

laws that were made under the amendment reference (but not repealed) before that termination (whether or not they have come into operation before that termination); or

(b)

the continued operation in this State of the National Credit legislation as in operation immediately before that termination or as subsequently amended or affected by—

(i)

laws referred to in paragraph (a) that come into operation after that termination; or

(ii)

provisions referred to in section 9(b) or (c).

(2)

Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless the adoption is terminated.

(3)

Subsection (1) does not apply to or in relation to an amendment of the National Credit legislation that is excluded from the operation of this section by the proclamation that terminates the amendment reference.

(4)

For the purposes of subsection (1)—

(a)

the laws referred to in subsection (1)(a) include Commonwealth Credit instruments; and

(b)

the reference in subsection (1)(b) to the National Credit legislation as in operation immediately before the termination of the amendment reference includes that legislation as affected by Commonwealth Credit instruments that have come into operation before that time.

Part 3—Excluded matter and transitional and consequential matters

Division 1—Preliminary

11Definitions

In this Part—

ASIC means the Australian Securities and Investments Commission established under the Australian Securities and Investments Commission Act 2001 of the Commonwealth;

Commonwealth commencement has the same meaning that commencement has in section 4 of the Commonwealth Transitional Provisions Act;

Commonwealth Transitional Provisions Act means the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 of the Commonwealth;

S. 11 def. of Director amended by No. 21/2012 s. 239(Sch. 6 item 12).

Director has the same meaning as in the Australian Consumer Law and Fair Trading Act 2012;

National Credit Code means the National Credit Code in Schedule 1 to the NCCP Act;

NCCP Act means the National Consumer Credit Protection Act 2009 of the Commonwealth;

old Act means the Consumer Credit (Victoria) Act 1995 as in force before the Commonwealth commencement;

old Code means the Consumer Credit (Victoria) Code as in force before the Commonwealth commencement;

old proceedings has the same meaning as in item 4 of Schedule 1 to the Commonwealth Transitional Provisions Act;

old regulations means the Consumer Credit (Victoria) Regulations as in force before the Commonwealth commencement;

Register of Credit Providers means the register kept under section 19 of the old Act;

Registrar means the Registrar of the Authority appointed under the Business Licensing Authority Act 1998.

Division 2—Excluded matter

12Credit law excluded matter

(1)

For the purposes of section 24 of the NCCP Act, section 29 of that Act, in so far as it would, but for this section, apply to a prescribed person, is declared to be an excluded matter.

(2)

In this section prescribed person means any of the following—

(a)

the Crown or a public or local body or authority constituted by or under an Act;

(b)

a body corporate empowered by an Act to lend money or provide credit to the extent that the lending of money or provision of credit is in accordance with that Act;

(c)

a person, not being a body corporate, authorised by an Act to lend money or provide credit to the extent that the lending of money or provision of credit is in accordance with that Act;

S. 12(2)(d) amended by No. 9/2020 s. 390(Sch. 1 item 19).

(d)

a council within the meaning of the Local Government Act 2020.

Division 3—Transitional provisions

Credit (Commonwealth Powers) Act 2010

About this Act

Bill & explanatory material

This Act’s bill