1Short title
This Act may be cited as the Credit (Administration) Act 1984.
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Bill homepageThis Act may be cited as the Credit (Administration) Act 1984.
The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation.
[3. Deleted: No. 55 of 2004 s. 180.]
In this Act, except in so far as the context or subject‑matter otherwise indicates or requires —
annual percentage rate has the same meaning as it has in the Credit Act 1984 or in section 25(1) of the Code, as the case may require;
ASIC means the Australian Securities and Investments Commission;
bank means —
an ADI (authorised deposit‑taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth; or
a bank constituted by a law of a State, a Territory or the Commonwealth;
body corporate does not, except in the case of a credit provider that is a body corporate, include —
a strata company under the Strata Titles Act 1985; or
a community corporation under the Community Titles Act 2018; or
a company owning an interest in land and having a memorandum or articles of association conferring on owners of shares in the company the right to occupy certain parts of a building erected on that land,
all or the majority of which lots or parts, as the case may be, are intended to be occupied as dwellings;
Code means the Consumer Credit (Western Australia) Code as in force from time to time before the referral day;
cognate Acts means this Act, the Credit Act 1984 and the Code;
Commissioner means the person for the time being designated as the Commissioner under section 53;
contract to which this Act applies means —
a regulated contract; and
a contract that is a credit contract, or is to be regarded as a credit contract, to which the Code applies;
credit has the same meaning as it has in the Credit Act 1984 or in section 4(1) of the Code, or in both, as the case may require;
credit contract has the same meaning as it has in the Credit Act 1984;
credit provider has the same meaning as it has in the Credit Act 1984 or in the Code, as the case may require;
Department means the department of the Public Service principally assisting in the administration of this Act;
exempt credit provider means a credit provider to whom, by reason of section 7 or an order under section 45, the provisions of section 6(1) and (2) do not apply;
licence means a credit provider’s licence under this Act;
loan contract has the same meaning as it has in the Credit Act 1984;
officer, in relation to a body corporate, includes a person who is an officer of the body corporate within the meaning of the Corporations Act 2001 of the Commonwealth;
pastoral finance company means a person carrying on a business of financing pastoral pursuits or a business of stock or station agents to whom an order in force under section 11 of the Banking Act 1959 of the Commonwealth as amended and in force for the time being applies;
pending application means an application for a credit provider’s licence made under section 9 which immediately before the referral day has been neither granted under section 12(1) nor refused under section 12(2) or (4);
record includes any book, account, document, paper or other source of information compiled, recorded or stored in written form, or on microfilm, or by electronic process, or in any other manner or by any other means;
referral day means the day on which the Credit (Commonwealth Powers) Act 2010 section 4 comes into operation 2;
regulated contract has the same meaning as it has in the Credit Act 1984;
regulated mortgage has the same meaning as it has in the Credit Act 1984;
trade or tie agreement means —
a trade or tie agreement as defined in section 5(1) of the Credit Act 1984; and
a contract, arrangement or understanding of the kind described in section 117(1)(a) of the Code.
[Section 4 amended: No. 47 of 1989 s. 7; No. 30 of 1996 s. 13; No. 57 of 1997 s. 39(10); No. 26 of 1999 s. 71(2); No. 10 of 2001 s. 56; No. 43 of 2003 s. 16(2); No. 55 of 2004 s. 181; No. 28 of 2006 s. 85; No. 14 of 2010 s. 16; No. 30 of 2018 s. 127; No. 32 of 2018 s. 197.]
In this Act, a reference to carrying on a business of providing credit includes a reference to carrying on the provision of credit in the course of or as part of or as incidental to or in connection with the carrying on of another business.
On and after the referral day, subsections (1) and (2) have no effect.
Subject to this Act, a person shall not carry on a business of providing credit unless the person is the holder of a credit provider’s licence.
Penalty: $10 000.
Subject to this Act, a natural person shall not hold himself or herself out, and a body corporate shall not hold itself out, as carrying on a business of providing credit unless the person or body corporate, as the case may be, is the holder of a credit provider’s licence.
Penalty: $5 000.
[Section 6 amended: No. 14 of 2010 s. 17.]
The provisions of section 6 do not apply to —
the Crown or a public or local body or authority constituted by or under an Act;
a bank;
a body corporate that is registered under the Life Insurance Act 1945 of the Commonwealth 3 as amended and in force for the time being unless the only or principal business carried on by it is the business of providing credit;
a body corporate authorised under the Insurance Act 1973 of the Commonwealth as amended and in force for the time being to carry on insurance business unless the only or principal business carried on by it is the business of providing credit;
unless Part VII of the Insurance Act 1973 of the Commonwealth as amended and in force for the time being has ceased to have effect — a Lloyd’s underwriter, being an underwriter of the society known as Lloyd’s incorporated by the Imperial Act known as Lloyd’s Act 1871;
a person conducting business as a pawnbroker under a pawnbroker’s licence held by or on behalf of the person under the Pawnbrokers and Second‑hand Dealers Act 1994;
a pastoral finance company;
[(h), (i) deleted]
any other person empowered by an Act or an Act of the Commonwealth to lend money or provide credit, in respect of the lending of money or provision of credit in accordance with that Act or that Act of the Commonwealth.
A reference in section 6 to carrying on a business of providing credit does not include a reference to —
providing credit otherwise than under a contract to which this Act applies; or
collecting money due to a person whose licence has been surrendered, is suspended or has been cancelled.
[Section 7 amended: No. 47 of 1989 s. 8; No. 88 of 1994 s. 100; No. 30 of 1996 s. 13; No. 26 of 1999 s. 71(3); No. 12 of 2001 s. 51; No. 17 of 2005 s. 23; No. 46 of 2006 s. 23.]
[8. Deleted: No. 30 of 1996 s. 13.]
Despite anything in this Act, on and after the referral day no application for a credit provider’s licence is to be made.
An application for a credit provider’s licence may be made to the Commissioner —
by a natural person of or over the age of 18 years; or
by a body corporate if all persons concerned in the management of the body corporate are of or over the age of 18 years.
An application shall be in writing in a form approved by the Minister, shall be accompanied by the prescribed fee and shall be signed —
where the application is made by a natural person —by that person; or
where the application is made —
by a body corporate having only 2 directors —by those directors; or
by a body corporate having more than 2 directors — by not fewer than 2 of those directors.
An application shall specify —
the name and address —
where the application is made by a natural person — of that person; or
where the application is made by a body corporate — of each director of the body corporate;
and
where the application is made by a body corporate — the date and place of incorporation of the body corporate, its corporate name and the address of its registered office or, if it is not incorporated in Australia, the address of the principal office in Australia; and
the address of the principal place in the State at which, and the name or names under which, the applicant intends to carry on business pursuant to the authority that would be conferred by the licence if it were granted; and
whether the applicant intends to carry on that business in partnership with another person; and
such matters as may be prescribed relating to the financial standing of applicants; and
such other matters as may be prescribed.
Where application is made for a licence and, before the application is granted or refused, a change occurs in the particulars specified in the application in accordance with subsection (3), the applicant shall, within 14 days after the occurrence of the change, give to the Commissioner notice, in writing signed by the applicant or, where the applicant is a body corporate, by a director of the body corporate, specifying particulars of the change.
Penalty: $1 000.
An applicant for a licence shall, if required to do so by the Commissioner, provide the Commissioner with such particulars additional to those included in the application as the Commissioner requires.
A person shall not in, or in relation to, an application under this section, a notice under subsection (4) or any particulars provided under subsection (5), make a statement that is false or misleading by reason of the inclusion therein of any false or misleading matter or the omission therefrom of any material matter.
Penalty: $5 000.
It is a defence to a prosecution of a person for an offence under subsection (6) if the person proves that, when the application was made, the notice given or the particulars provided, the person —
believed on reasonable grounds that the false matter was true; or
believed on reasonable grounds that the misleading matter was not misleading; or
in the case of an omission — believed on reasonable grounds that no material matter had been omitted; or
in the case of an omission — did not know that the omitted matter was material.
[Section 9 amended: No. 55 of 2004 s. 182 and 209(1); No. 14 of 2010 s. 18.]
This section does not apply to a pending application.
Where an application for a licence has been made in accordance with section 9, the Commissioner may make such inquiries with respect to the applicant and the application as the Commissioner considers necessary.
[(2) deleted]
The Commissioner of Police shall, if the Commissioner so requests, investigate an application received by the Commissioner under section 9 and, as soon as practicable after completing the investigation, make a report to the Commissioner on the investigation.
As soon as practicable after the Commissioner receives an application and has the results of any investigation under this section, the Commissioner shall publish in a newspaper circulating generally throughout Western Australia a notice giving particulars of the application.
[Section 10 amended: No. 57 of 1997 s. 39(10); No. 55 of 2004 s. 183; No. 28 of 2006 s. 86; No. 14 of 2010 s. 19.]
This section does not apply to a pending application.
At any time before the expiration of the period of 14 days that next succeeds publication of a notice under section 10(4) with respect to an application for a licence, or within such longer period as the Commissioner in a particular case allows, any person may lodge with the Commissioner an objection in writing to the granting of the application if the objection complies with subsection (2).
An objection complies with this subsection if —
it specifies the ground of the objection; and
the ground of the objection is a ground on which the Commissioner is required to refuse an application for a licence; and
the person making the objection has, before the expiration of the period referred to in subsection (1), served on the applicant a copy of the objection.
[Section 11 amended: No. 55 of 2004 s. 184 and 209(1); No. 14 of 2010 s. 20.]
Despite anything in this Act, on and after the referral day the Commissioner is neither to grant nor to refuse a pending application.
Unless subsection (2) or (4) requires it to be refused, the Commissioner shall grant an application for a licence as soon as practicable after the expiration of the period allowed by or under section 11(1) for the lodging of an objection to the granting of an application.
An application for a licence made by a natural person shall be refused if it appears to the Commissioner that the person —
has not attained the age of 18 years; or
is disqualified from holding a licence; or
is, according to the Interpretation Act 1984 section 13D, a bankrupt; or
does not have, or is not likely to continue to have, sufficient financial resources to enable the person to carry on business pursuant to the authority that would be conferred by the licence if it were granted; or
is not a person likely to carry on such a business honestly and fairly; or
does not have sufficient expertise to enable the person to carry on such a business; or
is in any other way not a fit and proper person to be the holder of a licence.
Without affecting the generality of subsection (2)(g), the Commissioner may, in determining whether an applicant is not a fit and proper person to be the holder of a licence, have regard (if such be the case) to the fact that the applicant —
has, during the period of 10 years that last preceded the making of the application, been convicted of, or served any part of a term of imprisonment for, an offence in Western Australia or elsewhere involving fraud or dishonesty; or
was, at the time of the making of the application, bound in relation to such an offence by a recognisance; or
had, at the time of the making of the application, a charge pending against the applicant in relation to such an offence.
An application for a licence made by a body corporate shall be refused if it appears to the Commissioner that —
a person concerned in the management of the body corporate has not attained the age of 18 years; or
the body corporate is disqualified from holding a licence; or
the body corporate does not have, or is not likely to continue to have, sufficient financial resources to enable it to carry on business pursuant to the authority that would be conferred by the licence if it were granted; or
the body corporate is not likely to carry on such a business honestly and fairly; or
the officers of the body corporate are such that it would not have sufficient expertise to enable it to carry on such a business; or
the reputation of the body corporate is such that it would not be a fit and proper person to be the holder of a licence; or
an officer of the body corporate is disqualified from being an officer of a body corporate that is the holder of a licence; or
a director of, or a person concerned in the management of, the body corporate is not of good reputation or character or in any other way would not be a fit and proper person to be the holder of a licence if the director or person were to apply for the licence personally; or
any person other than an officer of the body corporate who, in the opinion of the Commissioner, appears to have control, or substantial control, of the body corporate is not of good reputation and character or is not likely to exercise that control honestly and fairly.
An application for a licence shall not be refused on a ground specified in subsection (2)(d) to (g) or (4)(c) to (i) unless the Commissioner —
has informed the applicant of the ground; and
has afforded the applicant and any person who, in accordance with section 11, has lodged an objection on that ground, an opportunity to make submissions and adduce evidence.
Where an application for a licence is refused, the Commissioner shall forthwith, by notice in writing, inform the applicant and each objector (if any) to the granting of the application of the refusal and of the ground on which the refusal is based and inform the applicant of the right to apply to the State Administrative Tribunal for a review of the refusal, and the Commissioner shall, as soon as practicable, refund to the applicant so much of the application fee as is appropriate to be refunded.
Where an application for a licence in respect of which an objection has been lodged in accordance with section 11 is granted, the Commissioner shall forthwith, by notice in writing, inform the person who lodged the objection of the granting of the application and the right to apply to the State Administrative Tribunal for a review of the decision to grant the application.
Where an application for a licence is granted —
the applicant shall be deemed to be the holder of the licence granted; and
the Commissioner shall forthwith, by notice in writing, inform the applicant of the granting of the application and the right to apply to the State Administrative Tribunal for a review of any condition or restriction imposed.
Notwithstanding anything in this section, the Commissioner may refrain from granting an application for a licence unless —
where the applicant is not a body corporate — the applicant; or
where the applicant is a body corporate — all of the directors and officers of the body corporate, or such of them as the Commissioner specifies or refers to,
has or have attended personally on the Commissioner and satisfied the Commissioner as to such relevant matters referred to in this section as the Commissioner thinks appropriate.
[Section 12 amended: No. 55 of 2004 s. 185, 209(1) and 210; No. 18 of 2009 s. 25; No. 14 of 2010 s. 21.]
Despite anything in this Act, on and after the referral day the Commissioner is not to impose, vary or revoke conditions or restrictions subject to which a licence is to be held.
The Commissioner may —
upon the granting of an application for a licence and at any other time, impose conditions or restrictions subject to which the licence is to be held; and
upon application or of its own motion, at any time vary or revoke any of those conditions or restrictions.
A licence is subject to —
any prescribed conditions and restrictions; and
any conditions and restrictions in force under subsection (1).
The Commissioner shall not impose conditions or restrictions to which a licence is to be subject, or vary conditions or restrictions to which the licence is subject, unless the Commissioner has first afforded the applicant for, or, as the case may be, the holder of, the licence an opportunity to make written submissions with respect to the conditions or restrictions proposed to be imposed or varied.
[Section 13 amended: No. 55 of 2004 s. 186 and 209(1); No. 14 of 2010 s. 22.]
Subject to the Business Names Act 1962, a licence may authorise the holder to carry on business under a name or names in addition to or in substitution for the name of the licensee.
Before the referral day, a licensee must not —
carry on a business of providing credit; or
in the case of a natural person — hold himself or herself out as carrying on such a business; or
in the case of a body corporate — hold itself out as carrying on such a business,
under a name or names other than the name of the licensee or the name or names under which the licensee is authorised so to do in accordance with subsection (1).
Penalty: $5 000.
Upon application made in writing, the Commissioner may add or amend an endorsement referred to in section 16(1)(b).
[Section 14 amended: No. 55 of 2004 s. 187; No. 14 of 2010 s. 23.]
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