Federal Register of Legislation - Australian Government

Primary content

SLI 2011 No. 143 Regulations as made
These Regulations amend the National Consumer Credit Protection Regulations 2010 to clarify the disclosure obligations of credit providers, such as lenders, brokers, mortgage managers and product designers, under the National Consumer Credit regime.
Administered by: Treasury
Made 28 Jul 2011
Registered 02 Aug 2011
Tabled HR 18 Aug 2011
Tabled Senate 18 Aug 2011
Date of repeal 09 Aug 2013
Repealed by Treasury (Spent and Redundant Instruments) Repeal Regulation 2013

National Consumer Credit Protection Amendment Regulations 2011 (No. 4)1

Select Legislative Instrument 2011 No. 143

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 Act 2009.

Dated 28 July 2011

QUENTIN BRYCE

Governor-General

By Her Excellency’s Command

BILL SHORTEN


1              Name of Regulations

                These Regulations are the National Consumer Credit Protection Amendment Regulations 2011 (No. 4).

2              Commencement

                These Regulations commence as follows:

                (a)    on the day after they are registered —  regulations 1 to 3 and Schedule 1;

               (b)    on 1 October 2011 — Schedule 2.

3              Amendment of National Consumer Credit Protection Regulations 2010

                Schedules 1 and 2 amend the National Consumer Credit Protection Regulations 2010.


Schedule 1        Amendment commencing on day after registration

(regulation 3)

 

[1]            Subregulation 28N (5)

omit

1 August 2011.

insert

1 October 2011.

Schedule 2        Amendments commencing on 1 October 2011

(regulation 3)

 

[1]            Regulation 3, after definition of Act

insert

annual percentage rate has the same meaning as in section 27 of the Code.

[2]            Subregulation 3 (1), definition of credit card

substitute

credit card means:

                (a)    a card of a kind commonly known as a credit card; or

               (b)    a card of a kind that persons carrying on business commonly issue to their customers, or prospective customers, for use in obtaining goods or services from those persons on credit; or

                (c)    anything else that may be used as a card mentioned in paragraph (a) or (b).

credit card contract means a continuing credit contract (as defined in section 204 of the Code) under which credit is ordinarily obtained only by the use of a credit card.

default rate has the same meaning as in section 27 of the Code.

[3]            Subregulation 3 (1), after definition of linked credit provider or lessor

insert

managed contract — see regulation 26.

mortgage manager — see regulation 26.

[4]            Subregulation 3 (1), after definition of officer of a body corporate

insert

product designer — see regulation 26.

[5]            Subregulation 3 (1), after definition of substantial holding

insert

trail commission — see regulation 26.

[6]            Subregulation 3 (1), after definition of unsolicited contact

insert

volume bonus arrangement — see regulation 26.

[7]            Paragraph 7 (1) (a)

substitute

                (a)    is not a registered foreign company; and

[8]            After subregulation 7 (3)

insert

         (4)   In this regulation:

registered foreign company has the meaning given by section 9 of the Corporations Act 2001.

[9]            Regulation 26, after definition of licensee

insert

managed contract means a credit contract or consumer lease entered into as a result of credit assistance provided by a mortgage manager under the terms of an agreement the mortgage manager has with a credit provider, lessor or third party to manage the contract or lease.

mortgage manager means a licensee who has a written agreement with:

                (a)    a credit provider or lessor; or

               (b)    a third party who is authorised to act for a credit provider or lessor (under a written agreement with the credit provider or lessor); and

under the terms of which:

                (c)    the licensee is required to manage the relationship with the consumer on a day-to-day basis for the credit provider or lessor in accordance with the credit provider’s, lessor’s or third party’s policies and procedures; and

               (d)    the credit contracts, consumer leases and associated documentation used by the licensee are branded or co‑branded with the name of the licensee.

product designer means a licensee who engages in a credit activity only through a written agreement with a credit provider or lessor under the terms of which:

                (a)    the licensee manages a pool of funds from which credit contracts or consumer leases are provided; and

               (b)    the licensee receives commission that is worked out in relation to the net profit from operating the pool of funds; and

                (c)    the licensee has responsibility for creating the policy for usage of the credit contracts or consumer leases, including the eligibility requirements for consumers.

[10]          Regulation 26, after definition of relevant provision of the Act

insert

trail commission means a commission that is contingent on a consumer’s conduct after the consumer has entered into a credit contract or consumer lease, and includes commission that is dependent on the amount of a repayment, or the number of repayments, made by the consumer under the contract or lease.

volume bonus arrangement means an arrangement between:

                (a)    a credit provider, lessor or other person (the payer); and

               (b)    a licensee or credit representative (the payee);

under which the amount of commission payable by the payer to the payee increases as the total volume of business arranged by the payee with the payer increases.

[11]          Before regulation 28

insert

26A         Credit guide of licensee — to include further information

         (1)   This regulation is made for the following provisions of the Act:

                (a)    paragraphs 113 (2) (j) and (3) (b) (credit guide of credit assistance providers for credit contracts);

               (b)    paragraphs 136 (2) (j) and (3) (b) (credit guide of credit assistance providers for consumer leases).

Payments to third parties

         (2)   The licensee’s credit guide must state if a commission is likely to be paid by the licensee to a third party for the introduction of credit business or business proposed to be financed by the credit contract or consumer lease and, if a commission is likely to be paid, include the following:

                (a)    information about the classes of persons to whom such commission may be payable;

               (b)    a statement that the consumer may, on request, obtain a reasonable estimate of the amount of commission and how it is worked out.

Volume bonus arrangements

         (3)   The licensee’s credit guide must include the following information for each credit provider, lessor or other person with whom the licensee has a volume bonus arrangement:

                (a)    a statement that there is a volume bonus arrangement in place with the credit provider, lessor or other person;

               (b)    a statement that the licensee may receive additional commission depending on the total volume of business that the licensee arranges with the credit provider, lessor or other person;

                (c)    the person by whom the commission is payable;

               (d)    the person to whom the commission is payable.

Mortgage managers

         (4)   If a mortgage manager is likely to provide credit assistance to the consumer in relation to a managed contract, the mortgage manager’s credit guide must include the following information:

                (a)    an explanation of the relationship between the mortgage manager and the credit provider, lessor or third party;

               (b)    whether the mortgage manager will charge the consumer a fee for providing a credit service.

Product designers

         (5)   A product designer’s credit guide must include the following information:

                (a)    an explanation of the relationship between the product designer and the credit provider or lessor;

               (b)    whether the product designer will charge the consumer a fee for providing a credit service.

26B         Credit guide of credit provider or lessor — information about mortgage managers and product designers

         (1)   This regulation is made for the following provisions of the Act:

                (a)    paragraph 126 (2) (g) (credit guide of credit providers);

               (b)    paragraph 149 (2) (g) (credit guide of lessors).

         (2)   If a licensee is likely to enter into a credit contract or consumer lease with a consumer as a result of a mortgage manager or a product designer providing credit assistance to the consumer, the licensee’s credit guide must include the information in subregulation (3).

         (3)   The licensee must include an explanation of the relationship between:

                (a)    the licensee and the mortgage manager; or

               (b)    the licensee and the product designer.

27            Credit guide of licensees — when information about fees, charges and commission is not required

         (1)   This regulation is made for the following provisions of the Act:

                (a)    paragraph 113 (3) (a) (credit guide of credit assistance providers for credit contracts);

               (b)    paragraph 136 (3) (a) (credit guide of credit assistance providers for consumer leases).

         (2)   The information mentioned in subparagraphs 113 (2) (e) (iii) and (g) (ii) and (iii), or 136 (2) (e) (iii) and (g) (ii) and (iii), of the Act need not be included in the licensee’s credit guide if:

                (a)    the credit guide includes a statement that the consumer may obtain information from the licensee about:

                          (i)    how fees and charges payable by the consumer are worked out; and

                         (ii)    a reasonable estimate of the commission likely to be received, directly or indirectly, by the licensee and how the commission is worked out; and

               (b)    the licensee has in place arrangements to make the information available when requested by the consumer.

Credit card contracts

         (3)   The information mentioned in subparagraphs 113 (2) (g) (ii) and (iii) of the Act need not be included in the licensee’s credit guide if:

                (a)    the commission is payable in relation to a credit card contract; and

               (b)    the credit guide includes the maximum amount of commission payable on entering into the contract; and

                (c)    if any additional commission is payable during the life of the contract — the credit guide includes a statement that additional commission is payable, and includes either:

                          (i)    a reasonable estimate of the amount of the additional commission; or

                         (ii)    if the amount of additional commission depends on the consumer’s use of the credit card — information about factors contributing to the amount of commission.

27A         Credit guide of credit representatives — to include further information

         (1)   This regulation is made for paragraph 158 (2) (i) of the Act (credit guide of credit representatives).

Commissions paid to third parties

         (2)   The credit representative’s credit guide must state if a commission is likely to be paid by the credit representative to a third party for the introduction of credit business or business proposed to be financed by the credit contract or consumer lease and, if a commission is likely to be paid, include the following:

                (a)    information about the classes of persons to whom such commission may be payable;

               (b)    a statement that the consumer may, on request, obtain a reasonable estimate of the amount of commission and how it is worked out.

Information about credit providers or lessors

         (3)   The credit representative’s credit guide must give the following information:

                (a)    if there are 6 or fewer credit providers or lessors that the credit representative conducts business with when providing credit assistance in relation to credit contracts or consumer leases — the names of the credit providers or lessors;

               (b)    if there are more than 6 credit providers or lessors that the credit representative conducts business with when providing credit assistance in relation to credit contracts or consumer leases — the names of the 6 credit providers or lessors with whom the credit representative reasonably believes it conducts the most business.

Volume bonus arrangements

         (4)   The credit representative’s credit guide must include the following information for each credit provider, lessor or other person with whom the credit representative has a volume bonus arrangement:

                (a)    a statement that there is a volume bonus arrangement in place with the credit provider, lessor or other person;

               (b)    a statement that the credit representative may receive additional commission depending on the total volume of business that the credit representative arranges with the credit provider, lessor or other person;

                (c)    the person by whom the commission is payable;

               (d)    the person to whom the commission is payable.

         (5)   However, the information in subregulations (3) and (4) is not required to be given if the credit representative’s credit guide is combined in a single document with the licensee’s credit guide.

27B         Credit guide of credit representatives — when information about fees, charges and commission not required

         (1)   This regulation is made for paragraph 158 (3) (a) of the Act (credit guide of credit representatives).

         (2)   The information mentioned in subparagraph 158 (2) (e) (iii) or (g) (ii) or (iii) of the Act need not be included in the credit guide if:

                (a)    the credit guide includes a statement that the consumer may obtain information from the credit representative about:

                          (i)    how fees and charges payable by the consumer are worked out; and

                         (ii)    a reasonable estimate of the commission likely to be received, directly or indirectly, by the credit representative and how the commission is worked out; and

               (b)    the credit representative has in place arrangements to make the information available when requested by the consumer.

[12]          Regulation 28A

omit

[13]          After regulation 28C

insert

28D         Quote for providing credit assistance — licensee to give information about fees and charges

         (1)   This regulation is made for the following provisions of the Act:

                (a)    paragraph 114 (2) (f) (quote by credit assistance providers for credit contracts);

               (b)    paragraph 137 (2) (f) (quote by credit assistance providers for consumer leases).

         (2)   The information given by a licensee under paragraph 114 (2) (d) or 137 (2) (d) of the Act must be described as follows:

                (a)    for each fee and each charge payable to the licensee that the licensee does not describe under paragraph (b):

                          (i)    identify the fee or charge as a fee or charge payable to the licensee; and

                         (ii)    include a clear explanation of the type of fee or charge; and

                        (iii)    if the fee or charge is not a fixed amount — explain the method used for working out the amount of the fee or charge; and

                        (iv)    if the method mentioned under subparagraph (iii) is expressed as a mathematical formula — include a clear explanation of the formula with the formula; and

                         (v)    include a reasonable estimate of the maximum amount of the fee or charge, expressed as required by paragraph (c); and

                        (vi)    state how frequently the fee or charge is to be paid; and

                       (vii)    describe the circumstances when the fee or charge will or will not be payable; and

Note   A fee payable to a credit representative of a licensee is a fee payable to the licensee.

               (b)    if the fee or charge is payable to the licensee for payment to another person on the consumer’s behalf — for each fee and each charge that the licensee does not describe under paragraph (a):

                          (i)    identify the fee or charge as a fee or charge; and

                         (ii)    include a clear explanation of the type of fee or charge; and

                        (iii)    include a reasonable estimate of the maximum amount of the fee or charge, expressed as required by paragraph (c); and

                (c)    the maximum amount of each fee or each charge, if known, must be expressed in dollars or, if unknown, in one of the following ways:

                          (i)    as a proportion of the amount borrowed or total rental payments and a dollar amount;

                         (ii)    as a percentage of the amount borrowed or total rental payments and a dollar amount;

                        (iii)    if payable periodically — as a maximum amount for each period and as a maximum amount for the life of the credit contract or consumer lease, both as dollar amounts; and

               (d)    include a statement that clearly identifies the amounts as a quote.

         (3)   The quote must include the maximum amount of fees or charges that will be payable by the consumer to another person, whether or not a credit contract or consumer lease is entered into.

         (4)   The information mentioned in subregulations (2) and (3) must be set out in a way that is easy for the consumer to understand without being required to do any working out or to look elsewhere for additional information.

[14]          Part 3.4

substitute

Part 3.4              Requirements about proposal disclosure documents

  

28E         Proposal disclosure document — information about fees and charges

         (1)   This regulation is made for the following provisions of the Act:

                (a)    paragraph 121 (2) (f) (credit proposal disclosure document of credit assistance providers for credit contracts);

               (b)    paragraph 144 (2) (e) (lease proposal disclosure document of credit assistance providers for consumer leases).

         (2)   The information given by a licensee under paragraph 121 (2) (a) or 144 (2) (a) of the Act must be described as follows:

                (a)    for each fee and each charge payable to the licensee:

                          (i)    identify the fee or charge as a fee or charge payable to the licensee; and

                         (ii)    include a clear explanation of the type of fee or charge; and

                        (iii)    if the fee or charge is not a fixed amount — explain the method used for working out the amount of the fee or charge; and

                        (iv)    if the method mentioned under subparagraph (iii) is expressed as a mathematical formula — include a clear explanation of the formula with the formula; and

                         (v)    include the amount of the fee or charge, expressed as required by paragraph (b); and

                        (vi)    state how frequently the fee or charge is to be paid; and

                       (vii)    describe the circumstances when the fee or charge will or will not be payable; and

Note   A fee payable to a credit representative of a licensee is a fee payable to the licensee.

               (b)    the amount of each fee or charge must be expressed in one of the following ways:

                          (i)    in dollars;

                         (ii)    as a proportion of the amount borrowed or total rental payments, expressed in dollars;

                        (iii)    as a range of amounts, expressed in dollars;

                        (iv)    as a percentage of the amount borrowed or total rental payments and a dollar amount.

         (3)   The information given by a licensee, for the credit provider
or lessor, and any other person about whom information must
be given, under paragraphs 121 (2) (c) and (d), or 144 (2) (c) and (d), of the Act, must be described as follows:

                (a)    for each fee and each charge payable to the credit provider, lessor or other person:

                          (i)    name the person to whom the fee or charge is payable personally or on behalf of another person; and

                         (ii)    identify the fee or charge as a fee or charge; and

                        (iii)    include a clear explanation of the type of fee or charge; and

                        (iv)    if the fee or charge is not a fixed amount — explain the method used for working out the amount of the fee or charge; and

                         (v)    if the method mentioned under subparagraph (iv) is expressed as a mathematical formula — include a clear explanation of the formula with the formula; and

                        (vi)    if the amount of the fee or charge is a reasonable estimate of the fee or charge — state that it is an estimate, and express the amount as required by paragraph (b); and

                       (vii)    state how frequently the fee or charge is to be paid; and

                      (viii)    describe the circumstances when the fee or charge will or will not be payable; and

               (b)    the reasonable estimate of the amount of each fee or charge must be expressed in one of the following ways:

                          (i)    in dollars;

                         (ii)    as a proportion of the amount borrowed or total rental payments and a dollar amount;

                        (iii)    as a range of amounts, expressed in dollars;

                        (iv)    as a percentage of the amount borrowed or total rental payments and a dollar amount.

         (4)   The licensee’s proposal disclosure document must clearly state that the consumer will be liable to pay the fees and charges.

         (5)   The information mentioned in subregulations (2) to (4) must be set out in a way that is easy for the consumer to understand without being required to do any working out or to look elsewhere for additional information.

28F         Proposal disclosure document — when information about fees and charges not required

         (1)   This regulation is made for the following provisions of the Act:

                (a)    subsection 121 (3A) (credit proposal disclosure document of credit assistance providers for credit contracts);

               (b)    subsection 144 (3A) (lease proposal disclosure document of credit assistance providers for consumer leases).

         (2)   The licensee’s proposal disclosure document need not contain the information mentioned in subparagraphs 28E (2) (a) (iii) to (vii) and (3) (a) (iv) to (viii) if:

                (a)    the amount of the fee or charge has previously been disclosed in the licensee’s quote for providing credit assistance and the amount has not changed; and

               (b)    the quote was given to the consumer no more than 30 days before the day the licensee is required to provide the consumer with the proposal disclosure document; and

                (c)    the proposal disclosure document includes a statement with the fees and charges that the consumer should refer to the quote for more information about the fees and charges.

28G         Proposal disclosure document — information about commissions

         (1)   This regulation is made for the following provisions of the Act:

                (a)    paragraph 121 (2) (f) and subsections 121 (3) and (3A) (credit proposal disclosure document of credit assistance providers for credit contracts);

               (b)    paragraph 144 (2) (e) and subsections 144 (3) and (3A) (lease proposal disclosure document of credit assistance providers for consumer leases).

         (2)   A description of the amounts of commissions must include the following:

                (a)    for each kind of commission forming part of the total amount of commission, a detailed description of the commission, including the following:

                          (i)    identification of each kind of commission as commission;

                         (ii)    a clear explanation of the kind of commission;

                        (iii)    the person by whom each kind of commission is payable;

                        (iv)    the person to whom each kind of commission is payable;

                         (v)    a reasonable estimate of the amount of each kind of commission, expressed as required by paragraph (b);

Example for subparagraph (ii)

A commission that is a benefit described as an advertising subsidy or attendance at a conference.

               (b)    the reasonable estimate of the amount of each kind of commission must be expressed in one of the following ways:

                          (i)    in dollars;

                         (ii)    as a proportion of the amount borrowed or total rental payments and a dollar amount;

                        (iii)    as a range of amounts, expressed in dollars;

                        (iv)    as a percentage of the amount borrowed or total rental payments and a dollar amount;

                         (v)    if the commission is in the form of a benefit — the estimated value of the benefit, expressed in dollars;

                (c)    a reasonable estimate of the total amount of commission, expressed in dollars, likely to be received by each of the following:

                          (i)    the licensee;

                         (ii)    a credit representative of the licensee;

               (d)    a reasonable estimate of the total amount of commission, expressed in dollars and based on the amounts estimated for each kind of commission forming part of the total amount of commissions.

Note   Commission is defined in subsection 5 (1) of the Act to include any financial or other benefit in the nature of a commission.

         (3)   The information mentioned in subregulation (2) must be set out in a way that is easy for the consumer to understand without being required to do any working out or to look elsewhere for additional information.

Information not required to be included

         (4)   The proposal disclosure document need not contain the information mentioned in paragraph (2) (c) for an employee or a director of the licensee (even if the employee or director is a credit representative of the licensee).

Assumptions

         (5)   For this regulation, a reasonable estimate of an amount of commission may be made on the following assumptions:

                (a)    that the consumer will enter into the credit contract or consumer lease on the terms known to the licensee as at the time the consumer is given the proposal disclosure document;

               (b)    that the consumer will make the repayments required by the credit contract or consumer lease at the times required by the contract or lease;

                (c)    that, for an annual percentage rate or default rate, there will be no variation in the rate as disclosed over the whole term of the credit contract or any shorter term for which the contract applies;

               (d)    if the credit contract provides for a change to a variable rate, that the variable rate applicable over the term for which it applies is the same as the equivalent variable rate as at the time the consumer is given the proposal disclosure document;

                (e)    that, if the commission, or any part of the commission, is contingent on other credit assistance provided by, or activities conducted by, the licensee, the licensee may rely on credit assistance provided, or activities conducted, previously by the licensee for a similar period of time;

                (f)    that the method used to estimate the commission in the proposal disclosure document will not change.

Payments to third parties

         (6)   The licensee’s proposal disclosure document must state if a commission is likely to be paid by the licensee to a third party for the introduction of credit business or business proposed to be financed by the credit contract or consumer lease and, if so, must include information about:

                (a)    the person by whom each commission is payable; and

               (b)    the person to whom each commission is payable; and

                (c)    the amount of commission, if known, or a reasonable estimate of the amount of commission, expressed in accordance with paragraph (2) (b).

Example of a third party

A commission that is payable to a real estate agent who refers a consumer to the licensee.

         (7)   The licensee’s proposal disclosure document need not contain the information mentioned in paragraph (6) (c) if:

                (a)    the amount of commission is contingent on the conduct of other consumers who may be referred to the licensee; and

               (b)    the proposal disclosure document includes information about factors contributing to the amount of commission payable by the consumer.

Volume bonus arrangements

         (8)   The licensee’s proposal disclosure document must set out a reasonable estimate of the maximum amount of commission likely to be received by the licensee in relation to the credit contract or consumer lease that will result from a volume bonus arrangement.

28H         Proposal disclosure documents — when information about commissions not required

         (1)   This regulation is made for the following provisions of the Act:

                (a)    subsection 121 (3A) (credit proposal disclosure document of credit assistance providers for credit contracts);

               (b)    subsection 144 (3A) (lease proposal disclosure document of credit assistance providers for consumer leases).

Mortgage managers

         (2)   Subregulation (3) applies to commission worked out on the difference between the interest rate charged to the mortgage manager by the credit provider or lessor and the interest rate payable by the consumer.

         (3)   The information mentioned in subparagraph 28G (2) (a) (v) and paragraphs 28G (2) (c) and (d) need not be included for the commission in the mortgage manager’s proposal disclosure document if all of the following apply:

                (a)    the mortgage manager provided credit assistance to the consumer in relation to a managed contract;

               (b)    the mortgage manager told the consumer:

                          (i)    about the mortgage manager’s written agreement with the credit provider, lessor or third party; and

                         (ii)    that the mortgage manager is not acting for the consumer in relation to the managed contract;

                (c)    the maximum cost of the managed contract at the time the mortgage manager provides the credit assistance, and the interest rate to be charged, are published on the credit provider’s or lessor’s website;

               (d)    the mortgage manager cannot increase the interest rate above the interest rate that is published under paragraph (c).

Product designers

         (4)   A product designer’s proposal disclosure document need not include the information mentioned in subparagraph 28G (2) (a) (v) and paragraphs 28G (2) (c) and (d) for commission worked out in relation to the net profit from operating the pool of funds from which credit contracts or consumer leases are provided.

Trail commissions

         (5)   For trail commission that is payable in more than one instalment, the licensee’s proposal disclosure document need not contain the information mentioned in subparagraph 28G (2) (a) (v) or paragraph 28G (2) (c) if:

                (a)    the proposal disclosure document includes a reasonable estimate of the highest instalment of trail commission the licensee can expect to receive; and

               (b)    the highest instalment of trail commission is expressed in accordance with paragraph 28G (2) (b); and

                (c)    the following assumptions apply to the calculation of the highest instalment of trail commission:

                          (i)    the assumptions mentioned in subregulation 28G (5); or

                         (ii)    other assumptions set out in the licensee’s proposal disclosure document.

[15]          Regulation 28K

relocate as and renumber as regulation 28Q in Part 3.6

[16]          After regulation 28N

insert

28P         Circumstances where credit guide not required

Franchisees

         (1)   For paragraph 164 (a) of the Act, a person who is a credit representative is exempted from subsection 158 (1) of the Act if:

                (a)    the person is authorised by:

                          (i)    a licensee; or

                         (ii)    a body corporate that is a credit representative of a licensee;

to engage in specified credit activities on behalf of the licensee; and

               (b)    the person is:

                          (i)    a franchisee of the licensee under a franchise agreement with the licensee; or

                         (ii)    an employee or director of a franchisee of the licensee who has a franchise agreement with the licensee; and

                (c)    the franchise agreement:

                          (i)    subjects the person to the policies of the licensee; and

                         (ii)    requires compliance by the person with the policies of the licensee that were made to give effect to the licensee’s obligations under the licensee’s Australian credit licence; and

               (d)    the credit guide of the licensee explains that the licensee takes responsibility for the credit activities engaged in by the person (or class of persons of which the person is a member).

Previous dealings with consumer

         (2)   For paragraph 164 (a) of the Act, a person who is a licensee or a credit representative is exempted from subsections 113 (1), 126 (1), 136 (1), 149 (1), 158 (1) or 160 (1) or (2) of the Act if:

                (a)    the person has, in the previous 12 months, given the consumer the person’s credit guide in accordance with the requirements in the Act; and

               (b)    if the person would have been required to give contact details for a consumer to access an approved external dispute resolution scheme — the person’s contact details for access to the scheme of which the person is a member have not changed.

Note   Regulation 28 sets out circumstances where a credit representative is not required to give contact details for a consumer to access an approved external dispute resolution scheme.

Debt collectors

         (3)   For paragraph 164 (a) of the Act, a person who is a licensee or a credit representative is exempted from subsection 160 (1) or (2) of the Act if:

                (a)    the person has given the consumer the person’s credit guide in accordance with the requirements of section 113, 136 or 158 of the Act; and

               (b)    the credit guide relates to:

                          (i)    the same credit contract as that under which the person is authorised by the credit provider to collect, on behalf of the credit provider, repayments made by the consumer under the credit contract; or

                         (ii)    the same consumer lease as that under which the person is authorised by the lessor to collect, on behalf of the lessor, payments made by the consumer under the consumer lease.

Product designers

         (4)   For paragraph 164 (a) of the Act, a person who is a product designer is exempted from subsection 113 (1), 136 (1), 158 (1) or 160 (1) or (2) of the Act if the credit provider or lessor has complied with regulation 26B.

[17]          Before Chapter 4

insert

28R         Exemption — intermediary’s requirement to provide proposal disclosure document

         (1)   For paragraph 164 (a) of the Act, a person mentioned in subregulation 28Q (1) is exempted from a requirement in section 121 and 144 of the Act in the circumstances set out in this regulation.

         (2)   The exemption applies if:

                (a)    the consumer is not liable to pay to the person any fees or charges in relation to the credit contract or consumer lease; and

               (b)    at the time, or as soon as practicable after, the person gives credit assistance the person tells the consumer, in writing, that no fees or charges will be payable.

         (3)   If the credit contract is a credit card contract, the consumer must be given information about:

                (a)    any commissions that the person is likely to receive, directly or indirectly, from credit providers in relation to credit contracts for which the person has provided credit assistance; and

               (b)    the maximum amount of commission payable by the consumer on entering into the contract; and

                (c)    if any additional commission is payable during the life of the contract — a statement that additional commission is payable, and either:

                          (i)    a reasonable estimate of the amount of the additional commission; or

                         (ii)    if the amount of additional commission depends on the consumer’s use of the credit card — information about how the commission is worked out.

         (4)   If the contract is not a credit card contract, the consumer must be given a reasonable estimate of the total amount of any commissions that the person is likely to receive in relation to the credit contract or consumer lease, and the method used for working out that amount.

         (5)   The information mentioned in subregulations (3) and (4) must be given, in writing, no more than 15 business days before the day the person would have been required to provide the consumer with a proposal disclosure document.

[18]          Paragraph 65C (a)

substitute

                (a)    the credit is provided for either of the following purposes:

                          (i)    to purchase, renovate or improve residential property for investment purposes; or

                         (ii)    predominantly to refinance credit that has been provided wholly or predominantly to purchase, renovate or improve residential property for investment purposes; and

[19]          Schedule 3, items 3.26 and 3.27

omit

a special purpose

insert

an exempt special purpose

[20]          Schedule 3, item 3.28

substitute

3.28        Section 128

omit

A licensee

insert

An exempt special purpose funding entity

3.28A      Section 128

omit

the licensee

insert

the exempt special purpose funding entity

[21]          Schedule 3, items 3.29 to 3.33

omit

special purpose

insert

exempt special purpose

[22]          Schedule 3, item 3.35

omit

a special purpose

insert

an exempt special purpose

[23]          Schedule 3, item 3.35

omit

the special purpose

insert

the exempt special purpose

[24]          Schedule 3, items 3.37 and 3.38

omit

a special purpose

insert

an exempt special purpose

[25]          Schedule 3, item 3.39

substitute

3.39        Section 151

omit

A licensee

insert

An exempt special purpose funding entity

3.39A      Section 151

omit

the licensee

insert

the exempt special purpose funding entity

[26]          Schedule 3, item 3.40

omit

special purpose

insert

exempt special purpose


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.