These Regulations are the National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2010.

These Regulations commence:

(a) on the day after they are registered — regulations 1 to 5; and

(b) on 1 April 2010 — regulations 8 and 9, and Parts 3 to 5; and

3 Definitions

(1) In these Regulations:

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

associate has the meaning given by regulation 4.

credit card has the meaning given by subregulation 3 (1) of the National Credit Regulations.

exempt special purpose funding entity has the meaning given by subregulation 3 (1) of the National Credit Regulations.

financial counselling association has the same meaning as in ASIC Class Order [CO 03/1063].

financial counselling service means a counselling and advocacy service provided predominantly for the purpose of assisting individuals who are in financial difficulty to resolve their problems.

inappropriate person has the meaning given by subregulation 3 (1) of the National Credit Regulations.

licensee has the meaning given by subsection 5 (1) of the National Credit Act.

National Credit Regulations means the National Consumer Credit Protection Regulations 2010.

registered debt agreement administrator means a person registered by the Insolvency and Trustee Service Australia as a debt agreement administrator under Part IX of the Bankruptcy Act 1966.

servicing agreement has the meaning given by section 5 of the National Credit Act, as modified by item 3.4 of Schedule 3 to the National Credit Regulations.

special purpose funding entity has the meaning given by section 5 of the National Credit Act, as modified by item 3.4 of Schedule 3 to the National Credit Regulations.

unlicensed carried over instrument lender has the meaning given by modified section 5 of the National Credit Act as mentioned in item 2.4 of Schedule 2 to the National Credit Regulations.

unsolicited contact has the meaning given by subregulation 3 (1) of the National Credit Regulations.

(2) In these Regulations, a provision of the National Credit Act modified in accordance with Division 2 of Part 2-4 of the National Credit Regulations is referred to as modified.

4 Meaning of associate

(1) This regulation has effect for the purposes of interpreting a reference (the associate reference), in relation to a person (the primary person), to an associate.

(2) A person is not an associate of the primary person except as provided in this regulation.

(3) Nothing in this regulation limits the generality of anything else in it.

(4) If the primary person is a body corporate, the associate reference includes a reference to:

(a) a director or secretary of the body; and

(b) a related body corporate; and

(5) An associate reference includes a reference to:

(a) a person in partnership with whom the primary person engages in a credit activity; and

(b) subject to subregulation (8), a person who is a partner of the primary person otherwise than because of the engaging in a credit activity in partnership with the primary person; and

(d) a director of a body corporate of which the primary person is also a director and that engages in a credit activity; and

(e) subject to subregulation (8), a director of a body corporate of which the primary person is also a director and that does not engage in a credit activity; and

(f) a person in concert with whom the primary person is acting, or proposes to act, in respect of the matter to which the associate reference relates; and

(g) a person with whom the primary person is, or proposes to become, associated, whether formally or informally, in any other way, in respect of the matter to which the associate reference relates.

(6) If the primary person has entered, or proposes to enter, into a transaction, or has done, or proposes to do, any act or thing, in order to become associated with another person as mentioned in an applicable provision of this regulation, the associate reference includes a reference to that other person.

(7) A person is not an associate of another person by virtue of subregulation (5), or by virtue of subregulation (6) as it applies in relation to subregulation (5), merely because one or both of the following occurs:

(a) one gives advice to the other, or acts on the other’s behalf, in the proper performance of the functions attaching to a professional capacity or a business relationship;

(b) one, as a client, gives specific instructions to the other, whose ordinary business includes engaging in a credit activity, to enter into a credit contract on the client’s behalf in the ordinary course of that business.

(8) For the purposes of proceedings in relation to a matter mentioned in these Regulations in which it is alleged that a person (person 1) was an associate of another person by virtue of paragraph (5) (b) or (e), person 1 is not taken to have been an associate of the other person in relation to a matter by virtue of that paragraph unless it is proved that person 1 knew, or ought to have known, at that time, the material particulars of that matter.

(9) A reference to an associate, in relation to an entity (other than a body corporate) that:

(a) engages in a credit activity; and

(b) is constituted by 2 or more persons;

includes a reference to an associate of any of those persons.

Part 2 Transitional provisions

5 Transfer of assets or liabilities to ASIC

(1) For the purposes of item 22 of Schedule 1 to the Act, a transfer agreement may be entered into between:

(a) ASIC (or on behalf of ASIC); and

(b) a referring State or Territory.

(2) The transfer agreement may determine how assets or liabilities relating to the regulation of credit providers may be transferred to ASIC from:

(a) a referring State or Territory; or

(b) an authority of a referring State or Territory.

(3) This regulation does not prevent assets or liabilities being transferred to ASIC otherwise than in accordance with a transfer agreement.

(4) The transfer agreement has effect in accordance with this regulation to the extent that it is within the Commonwealth’s legislative power to give the agreement that effect.

Transfer of assets

(5) A transfer agreement may determine that all or any of the following things happen on a specified date, not being a date before the transfer date:

(a) specified assets vest in ASIC without any conveyance, transfer or assignment;

(b) specified instruments in relation to specified assets continue to have effect after the assets vest in ASIC, as if specified references in the instruments were references to ASIC;

(c) ASIC becomes the previous owner’s successor in law in relation to specified assets immediately after the assets vest in ASIC.

(6) For subregulation (5), assets or instruments may be specified by description, by inclusion in a specified class or in some other way.

(7) For this regulation, assets includes information, documents, records and instruments, regardless of whether they are in hard copy or in an electronic format.

Transfer of liabilities

(8) A transfer agreement may determine that all or any of the following things happen on a specified date, not being a date before the transfer date:

(a) specified liabilities vest in ASIC;

(b) specified instruments in relation to specified liabilities continue to have effect after the liabilities vest in ASIC, as if specified references in the instruments were references to ASIC;

(c) ASIC becomes the previously liable person’s successor in law in relation to specified liabilities immediately after the liabilities vest in ASIC.

(9) For subregulation (8), liabilities or instruments may be specified by description, by inclusion in a class or in some other way.

6 Application of new Credit Code to particular sale contracts

(1) This regulation applies if:

(a) a provision of credit was made before 29 May 2009; and

(b) the provision of credit was for a sale of land or goods by instalments under a contract; and

(2) For subsection 6 (2) of the Act, sections 10, 11 and 12 of the new Credit Code do not apply to the provision of credit.

Note Subsection 6 (2) of the Act provides that the regulations may prescribe matters of a transitional nature (including matters of an application or saving nature):

(a) arising out of the enactment of the National Credit Act; or

(b) relating to the transition from the application of provisions of the old Credit Codes, or related laws, of the referring States and the Territories to the application of provisions of the National Credit Act.

7 Treatment of proceedings brought under old Credit Code before commencement

(1) This regulation applies if:

(a) a party to old proceedings under subitem 4 (1) of Schedule 1 to the Act was a Government Consumer Agency (within the same meaning as in the old Credit Code of a referring State or Territory) of a State or Territory; and

(b) the party to the old proceedings had powers and functions under the old Credit Code that relate to the old proceedings; and

(c) the party to the old proceedings is a party to new proceedings under paragraph 4 (4) (a) of Schedule 1 to the Act; and

(d) under the National Credit Act, ASIC has equivalent powers and functions to the powers and functions mentioned in paragraph (b).

(2) The party may continue to exercise the powers or perform the functions of the party under the old Credit Code for the purposes of the new proceedings, despite ASIC’s equivalent powers and functions under the National Credit Act.

Note Paragraph 6 (2) (b) of the Act provides that the regulations may prescribe matters of a transitional nature relating to the transition from the application of provisions of the old Credit Codes, or related laws, of the referring States and the Territories to the application of provisions of the National Credit Act.

8 References to the National Consumer Credit Protection Regulations 2010

From 1 April 2010 to immediately before 1 July 2010, the references in paragraphs 16 (3) (b) and 20 (a) of these Regulations to the National Consumer Credit Protection Regulations 2010 are taken to be references to those Regulations as if those Regulations had commenced.

Note Paragraph 6 (2) (a) of the Act provides that the regulations may prescribe matters of a transitional nature (including matters of an application or saving nature) arising out of the enactment of the National Credit Act.

Part 3 Registration

10 The conditions on the registration

(1) For subitem 14 (7) of Schedule 2 to the Act, the registration is subject to the conditions set out in this regulation.

(2) If:

(a) there is a change in a matter particulars of which are entered in the credit register for registered persons; and

(b) the change is not a direct consequence of an act by ASIC;

the registered person must lodge particulars of the change with ASIC, in the approved form, within 10 business days after the change occurs.

(3) If:

(a) there is a change in a matter particulars of which are entered in the credit register for credit representatives; and

(b) the change is not required to be reported in accordance with section 71 of the National Credit Act; and

the registered person must ensure that particulars of the change are lodged with ASIC in the approved form within 10 business days after the change occurs.

(4) The registered person must ensure that each credit representative of the registered person that may give an authorisation to another individual is aware of the requirements in section 71 of the National Credit Act.

(5) The registered person must ensure that, before the registered person authorises an individual to engage in a credit activity on its behalf as mentioned in section 64 of the National Credit Act, reasonable inquiries are made to establish:

(a) the individual’s identity; and

(b) whether the individual has already been allocated a number by ASIC as a credit representative.

(6) The registered person must ensure that, before a body corporate that is a credit representative of the registered person authorises an individual to engage in a credit activity on behalf of the registered person as mentioned in section 65 of the National Credit Act, reasonable inquiries are made to establish:

(a) the individual’s identity; and

(b) whether the individual has already been allocated a number by ASIC as a credit representative.

(7) The registered person must ensure that, if:

(a) ASIC has allocated a number to a credit representative; and

(b) the registered person, or a body corporate that has authorised an individual to engage in a credit activity on behalf of the registered person as mentioned in section 65 of the National Credit Act, lodges a document with ASIC that refers to the credit representative;

the document refers to the number.

(8) The registered person must provide evidence of an authorisation of any of its credit representatives:

(a) on request by any person; and

(b) free of charge; and

(c) as soon as practicable after receiving the request and, in any event, within 10 business days after the day on which it received the request.

(9) The registered person must take reasonable steps to ensure that each of its credit representatives supplies evidence of its authorisation by the registered person:

(a) on request by any person; and

(b) free of charge; and

(c) as soon as practicable after receiving the request and, in any event, within 10 business days after the day on which it received the request.

(10) If the registered person becomes aware of any change in control of the registered person, the registered person must lodge with ASIC particulars of the change, in the approved form, not later than 10 business days after the change.

(11) For subregulation (10):

(a) a change in control, in relation to a registered person, includes a transaction, or a series of transactions in a period of 12 months, that results in a person having control of the registered person (either alone or together with associates of the person); and

(b) control, in relation to a registered person, means:

(i) if the registered person is a body corporate:

(A) the capacity to cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the registered person; or

(B) directly or indirectly holding more than one half of the issued share capital of the registered person (not including any part of the issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or

(ii) the capacity to control the composition of the registered person’s board or governing body; or

(iii) the capacity to determine the outcome of decisions about the registered person’s financial and operating policies.

(12) For subparagraph (11) (b) (iii), the following matters must be taken into account in determining whether a person has the capacity to determine the outcome of decisions about the registered person’s financial and operating policies:

(a) the practical influence the person can exert (rather than the rights it can enforce);

(b) any practice or pattern of behaviour affecting the registered person’s financial or operating policies is to be taken into account (whether or not it involves a breach of an agreement or a breach of trust).

(13) On the request of any person, the registered person must make available, within 10 business days, evidence of its registration for inspection by that person.

10A The conditions on the registration — special purpose funding entity

(1) For subitem 14 (7) of Schedule 2 to the Act, the registration is subject to the conditions set out in this regulation if the registered person is a party to a servicing agreement with a special purpose funding entity.

(2) The registered person must notify ASIC, in an approved form, that the registered person is a party to a servicing agreement with a special purpose funding entity.

(3) For subregulation (2):

(a) if the servicing agreement was entered into before 1 July 2010, the registered person must notify ASIC no later than 30 business days after 1 July 2010; and

(b) if the servicing agreement was entered into on or after 1 July 2010, the registered person must notify ASIC no later than 20 business days after the servicing agreement was entered into.

(4) If the registered person ceases to be a party to a servicing agreement with a special purpose funding entity:

(a) the registered person must notify ASIC, in an approved form, that the registered person has ceased to be a party to the servicing agreement with the entity; and

(b) the registered person must notify ASIC not later than 15 business days after the registered person ceases to be a party.

(5) The registered person:

(a) must notify ASIC, in an approved form, of any action by a natural person in a position to control or influence the special purpose funding entity that has or may have the effect of directing the licensee to act inconsistently with:

(i) the conditions imposed on the registered person’s registration; or

(ii) the credit legislation; and

(b) must notify ASIC no later than 15 business days after the action occurs.

Part 4 Exemptions and modifications

Division 1 Exemptions

Subdivision 1.1 Persons exempt from being registered

11 Persons exempt from being registered — general

(1) For paragraph 42 (a) of Schedule 2 to the Act, this regulation exempts certain persons engaging in a credit activity from:

(a) items 4 and 6 of Schedule 2 to the Act; and

(b) definitions in the Act, as they apply to references in the provisions mentioned in paragraph (a); and

Note Item 4 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person is registered or holds a licence authorising the person to engage in the credit activity.

Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person is:

(a) registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

(2) The person is exempted only to the extent that the person is engaging in the specified credit activity.

Note If the person also engages in a credit activity that is not the subject of an exemption under the Act, the person is not exempted in relation to that credit activity.

(3) A person is exempted if the person engages in a credit activity while performing functions, or exercising powers, in any of the following capacities or circumstances:

(a) as an official receiver or trustee within the meaning of the Bankruptcy Act 1966;

(b) as a receiver, receiver and manager, provisional liquidator, or liquidator (whether appointed by a court or otherwise);

(d) as the Public Trustee acting under a law of a State or Territory;

(e) as an administrator of a body corporate;

(f) as an administrator of a deed of company arrangement executed by a body corporate;

(g) as a trustee or person administering a compromise or arrangement between a body corporate and another person or persons;

(h) as a personal representative of a deceased person other than a deceased registered person;

(i) subject to subregulation (4), as a personal representative of a deceased registered person;

(j) in the administration of a bankrupt estate or in the winding up of a body corporate or partnership;

(k) as a registered debt agreement administrator preparing and administering a debt agreement under Part IX of the Bankruptcy Act 1966.

(4) Paragraph (3) (i) only applies until the first of the following events takes place:

(a) the end of 6 months after the death of the registered person;

(b) the removal or discharge of the personal representative;

(5) A person is exempted if:

(a) the person (the financial counselling agency) engages in the credit activity as part of a financial counselling service; and

(b) no remuneration (whether by way of commission or otherwise) is payable to, or on behalf of, the financial counselling agency by any person in relation to any action by, or on behalf of, the client arising from:

(i) engaging in the credit activity; or

(ii) any other aspect of the provision of the financial counselling service; and

(c) no remuneration (whether by way of commission or otherwise) is payable to, or on behalf of, a representative of the financial counselling agency by any person in relation to any action by, or on behalf of, the client arising from:

(i) engaging in the credit activity; or

(ii) any other aspect of the provision of the financial counselling service; and

(d) no remuneration (whether by way of commission or otherwise) is payable to, or on behalf of, an associate of the financial counselling agency by any person in relation to any action by, or on behalf of, the client arising from:

(i) engaging in the credit activity; or

(ii) any other aspect of the provision of the financial counselling service; and

(e) no fees or charges (however described) are payable by or on behalf of the client in relation to the credit activity or any other aspect of the financial counselling service; and

(f) the financial counselling agency:

(i) does not engage in a credit activity that is not covered by paragraphs (a) to (e); and

(ii) takes all reasonable steps to ensure that none of its representatives engages in a credit activity that is not covered by paragraphs (a) to (e); and

(g) the financial counselling agency takes all reasonable steps to ensure that each person who engages in credit activities on its behalf:

(i) is a member of, or is eligible to be a member of, a financial counselling association; and

(ii) has undertaken appropriate training to ensure that the person has adequate skills and knowledge to engage satisfactorily in the credit activity and any other aspect of the provision of the financial counselling service.

(6) A person is exempted if:

(a) the person:

(i) is a related body corporate of a registered person; and

(ii) is engaging in credit activities only on behalf of the registered person; and

(iii) is engaging in credit activities only because its employees and directors are engaging in credit activities on behalf of the registered person; and

(b) the credit activities in which the person engages are not those mentioned in:

(i) paragraph (a) or (b) of item 1 of the table in subsection 6 (1) of the National Credit Act; or

(ii) paragraph (a) or (b) of item 3 of the table in subsection 6 (1) of the National Credit Act.

(7) A person is exempted if the person is a public body or authority, or a local government body or authority, constituted under an Act of the Commonwealth or a State or Territory.

(8) Subject to subregulation (9), if a person is authorised to engage in particular credit activities by:

(a) an Act of the Commonwealth or a State or Territory (other than the Act, the National Credit Act or an Act mentioned in subregulation (10)); or

(b) a licence or registration issued or granted under an Act of the Commonwealth or a State or Territory (other than the Act, the National Credit Act or an Act mentioned in subregulation (10));

the person is exempted to the extent that the person is engaging in the credit activities in which the person is authorised to engage under that Act, licence or registration.

(9) If a person would have been exempted under regulation 12 except that 12 calendar months have passed since the day this Chapter commences, the person is not exempted under subregulation (8).

Note Subregulation 12 (4) provides that a person to whom subregulation 12 (3) applies is only exempted for 12 calendar months starting on the day this Chapter commences.

(10) For paragraphs (8) (a) and (b), the Acts are:

(a) the Finance Brokers Control Act 1975 (WA); and

(b) the Credit (Administration) Act 1984 (WA); and

(11) A person is exempted if:

(a) the person is an organisation that provides services and makes benefits available to members of:

(i) the organisation; or

(ii) a program or facility operated or conducted by or within the organisation; and

(b) an incidental benefit of membership of the organisation, program or facility is that members are eligible:

(i) to apply for a particular credit contract or consumer lease offered by a licensee, registered person or exempt special purpose funding entity; or

(ii) to obtain services or benefits under a particular credit contract or consumer lease offered by a licensee, registered person or exempt special purpose funding entity; and

(d) the organisation provides credit services (within the meaning given by section 7 of the National Credit Act) in relation to the particular credit contract or consumer lease to members or persons likely to become members acting on behalf of a licensee or registered person under a contract or agreement with the licensee or registered person; and

(e) it would not ordinarily be the case that:

(i) the credit to be provided under the credit contract is provided predominantly for the payment for services, goods or benefits provided by the organisation or an associate of the organisation; or

(ii) the goods to be hired under the consumer lease are supplied by the organisation or an associate of the organisation.

(12) A person is exempted if:

(a) either:

(i) the person:

(A) is a charitable body (within the same meaning as in ASIC Class Order [CO 02/184]); and

(B) is engaging in credit activities by providing a credit service in relation to credit contracts or consumer leases provided by a licensed or registered credit provider or lessor or an exempt special purpose funding entity that is a credit provider or lessor; or

(ii) the person:

(A) is not a charitable body (within the same meaning as in ASIC Class Order [CO 02/184]); and

(B) is engaging in credit activities by providing a credit service in relation to credit contracts or consumer leases provided by an ADI; and

(b) the credit contracts or consumer leases are offered as part of a program designed for low income consumers who are entitled:

(i) to hold a Health Care Card or Pension Concession Card; or

(ii) to receive Family Tax Benefit Part A; and

(c) the only remuneration (whether by way of commission or otherwise) is payable to, or on behalf of, the person by any other person in relation to any action by, or on behalf of, the client arising from providing the credit service is payments made by a third party that has no existing relationship with the client.

(13) A person is exempted if:

(a) the person engages in credit activities mentioned in:

(i) paragraph (c) of item 1 of the table in subsection 6 (1) of the National Credit Act; or

(ii) paragraph (c) of item 3 of the table in subsection 6 (1) of the National Credit Act; or

(iii) paragraph (b) of item 4 of the table in subsection 6 (1) of the National Credit Act; or

(iv) paragraph (b) of item 5 of the table in subsection 6 (1) of the National Credit Act; and

(b) the person engages in the credit activities while performing the statutory obligations of a credit provider, lessor, mortgagee or beneficiary of a guarantee under:

(i) the Privacy Act 1988; or

(ii) the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

12 Persons exempt from being registered — debt collectors

(1) For paragraph 42 (a) of Schedule 2 to the Act, this regulation exempts certain persons engaging in a credit activity from:

(a) items 4 and 6 of Schedule 2 to the Act; and

(b) definitions in the Act, as they apply to references in the provisions mentioned in paragraph (a); and

Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person is:

(a) registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

(2) The person is exempted only to the extent that the person is engaging in the specified credit activity.

Note If the person also engages in a credit activity that is not the subject of an exemption under the Act, the person is not exempted in relation to that credit activity.

(3) A person is exempted if:

(a) the person engages in a credit activity mentioned in:

(i) paragraph (c) of item 1 of the table in subsection 6 (1) of the National Credit Act, on behalf of a credit provider who is a licensee, registered person or exempt special purpose funding entity; or

(ii) paragraph (c) of item 3 of the table in subsection 6 (1) of that Act, on behalf of the lessor who is a licensee, registered person or exempt special purpose funding entity; or

(iii) paragraph (b) of item 4 of the table in subsection 6 (1) of that Act, on behalf of a mortgagee who is a licensee, registered person or exempt special purpose funding entity; or

(iv) paragraph (b) of item 5 of the table in subsection 6 (1) of that Act, on behalf of the other person who is a licensee, registered person or exempt special purpose funding entity; and

(b) the person only performs the obligations, or exercises the rights, mentioned in those paragraphs in relation to:

(i) demanding and receiving payments from:

(A) borrowers or guarantors under credit contracts; or

(B) lessees under consumer leases; and

(ii) enforcing rights in relation to taking possession of:

(A) property secured by a mortgage; or

(B) goods hired under a consumer lease; and

(i) the person:

(A) holds a licence or authorisation to engage in an activity mentioned in paragraph (a) under one or more of the Acts mentioned in subregulation (5); or

(B) is authorised to act on behalf of a person holding a licence or authorisation of a kind mentioned in subparagraph (i); or

(ii) the person:

(A) is not required to hold a licence or authorisation, or be authorised to act on behalf of a person who holds a licence or authorisation, to engage in an activity mentioned in paragraph (a) in a State or Territory; and

(B) the person is not prohibited from engaging in an activity mentioned in paragraph (a) by an order of a court or a law of the State or Territory; and

(d) the person is authorised in writing by a registered person or a licensee to engage in an activity mentioned in paragraph (a).

(4) The person is exempted for 12 calendar months starting on the day on which these Regulations commence.

(5) For subparagraph (3) (c) (i), the Acts are the following:

(a) the Commercial Agents and Private Inquiry Agents Act 2004 (NSW);

(b) the Private Agents Act 1966 (Vic);

(d) the Debt Collectors Licensing Act 1964 (WA);

(e) the Security and Investigation Agents Act 1995 (SA);

(f) the Security and Investigations Agents Act 2002 (Tas);

(g) the Commercial and Private Agents Licensing Act (NT).

13 Persons exempt from being registered — third parties

(1) For paragraph 42 (a) of Schedule 2 of the Act, this regulation exempts certain persons engaging in a credit activity from:

(a) items 4 and 6 of Schedule 2 to the Act; and

(b) definitions in the Act, as they apply to references in the provisions mentioned in paragraph (a); and

That item also provides that it is a defence if the person is a credit representative of a person who is registered or holds a licence authorising the person to engage in the credit activity.

Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person:

(a) is registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

That item also provides that it is a defence if the person is a credit representative of a person who:

(a) is registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

(2) The person is exempted only to the extent that the person is engaging in the specified credit activity.

Note If the person also engages in a credit activity that is not the subject of an exemption under the Act, the person is not exempted in relation to that credit activity.

(3) A person is exempted if:

(a) the person engages in a credit activity by selling, storing or transporting property of a debtor, lessor, mortgagor or guarantor on behalf of:

(i) a credit provider who is a licensee, registered person or exempt special purpose funding entity; or

(ii) a mortgagee who is a licensee, registered person or exempt special purpose funding entity; or

(iii) a person who is the beneficiary of a guarantee who is a licensee, registered person or exempt special purpose funding entity; or

(iv) a lessor who is a licensee, registered person or exempt special purpose funding entity; or

(b) the person engages in a credit activity by giving or sending to a debtor, lessee, mortgagor or guarantor, on behalf of:

(i) a credit provider who is a licensee, registered person or exempt special purpose funding entity; or

(ii) a mortgagee who is a licensee, registered person or exempt special purpose funding entity; or

(iii) a person who is the beneficiary of a guarantee who is a licensee, registered person or exempt special purpose funding entity;

(iv) a lessor who is a licensee, registered person or exempt special purpose funding entity;

a notice or document that the person mentioned in subregulation (i), (ii), (iii) or (iv) is obliged by law to give or send to the debtor, lessee, mortgagor or guarantor.

14 Persons exempt from requiring registration — suppliers of goods or services

(1) For paragraphs 42 (a) and (c) of Schedule 2 to the Act, this regulation:

(a) exempts certain persons engaging in a credit activity from:

(i) items 4 and 6 of Schedule 2 to the Act; and

(ii) definitions in the Act, as they apply to references in the provisions mentioned in subparagraph (i); and

(iii) instruments made for the purposes of any of the provisions mentioned in subparagraphs (i) and (ii); and

(b) modifies specified provisions for the purposes of the exemption under paragraph (a).

Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during a specified period unless the person is:

(a) registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

(2) The person is exempted only to the extent that the person is engaging in the specified credit activity.

Note If the person also engages in a credit activity that is not the subject of an exemption under the Act, the person is not exempted in relation to that credit activity.

(3) A person is exempted if:

(a) the person is:

(i) a supplier of goods or services (the supplier); or

(ii) a related body corporate of the supplier; or

(iii) engaging in a credit activity primarily on the premises of the supplier with the agreement of the supplier; and

(b) the person is:

(i) on behalf of a relevant credit provider for a credit contract or proposed credit contract, performing the obligations or exercising the rights of the relevant credit provider in relation to the contract or proposed contract; or

(ii) on behalf of a relevant lessor for a consumer lease or proposed consumer lease, performing the obligations or exercising the rights of the lessor under the lease or proposed lease; or

(iii) on behalf of a relevant mortgagee for a mortgage or proposed mortgage, performing the obligations or exercising the rights of the mortgagee under the mortgage or proposed mortgage; or

(iv) on behalf of a relevant beneficiary of a guarantee or proposed guarantee, performing the obligations or exercising the rights of the beneficiary in relation to the guarantee; or

(v) providing credit services in relation to a credit contract or consumer lease offered or provided by a relevant credit provider or relevant lessor; and

(i) the person is acting on behalf of the credit provider for a credit contract or proposed credit contract that is a loan contract or engaging in credit services in relation to a loan contract; and

(i) the credit provided under the loan contract or the credit that would be provided if the loan contract were entered into will wholly or predominantly be used to pay for goods or services supplied by the supplier; and

(d) if:

(i) the person is acting on behalf of the credit provider of a credit contract or proposed credit contract that is a continuing credit contract or engaging in credit services in relation to a continuing credit contract; and

(ii) the credit initially provided under the continuing credit contract or the credit that would be initially provided under the continuing credit contract if it were entered into will wholly or predominantly be used to pay for goods or services supplied by the supplier; and

(e) if:

(i) the person is acting on behalf of a lessor for a consumer lease or proposed consumer lease or engaging in credit services in relation to a consumer lease; and

(ii) payments made under the lease or payments that would be made under the lease if the lease were entered into will wholly or predominantly be used to pay the lessor for the hire of goods supplied by the supplier.

(3A) The person is not exempted if the person supplies goods or services to the consumer as a result of unsolicited contact with the consumer.

(3B) In this regulation:

relevant credit provider for a credit contract or proposed credit contract, means the credit provider for the contract or proposed contract if the credit provider is a:

(a) licensee, registered person or exempt special purpose funding entity; and

(b) linked credit provider or lessor of the supplier mentioned in subparagraph (3) (a) (i).

relevant lessor for a consumer lease or proposed consumer lease, means the lessor under the lease or proposed lease if the lessor is a:

(a) licensee, registered person or exempt special purpose funding entity; and

(b) linked credit provider or lessor of the supplier mentioned in subparagraph (3) (a) (i).

relevant mortgagee for a mortgage or proposed mortgage, means the mortgagee under the mortgage or proposed mortgage if the mortgagee is a:

(a) licensee, registered person or exempt special purpose funding entity; and

(b) linked credit provider or lessor of the supplier mentioned in subparagraph (3) (a) (i).

relevant beneficiary of a guarantee or proposed guarantee, means the beneficiary of the guarantee or proposed guarantee if the beneficiary is a:

(a) licensee, registered person or exempt special purpose funding entity; and

(b) linked credit provider or lessor of the supplier mentioned in subparagraph (3) (a) (i).

(4) For paragraph 42 (c) of Schedule 2 to the Act, the definition of linked credit provider of a supplier in section 127 of Schedule 1 to the National Credit Act is modified for the purposes of this exemption so that it provides that a linked credit provider or linked lessor of a supplier means a credit provider or lessor:

(a) with whom the supplier has a contract, arrangement or understanding relating to:

(i) the supply to the supplier of goods in which the supplier deals; or

(ii) the business carried on by the supplier of:

(A) supplying goods or services; or

(B) causing goods to be supplied to the consumer by way of a consumer lease; or

(iii) the provision to persons to whom goods or services are supplied by the supplier of credit in respect of payment for those goods or services; or

(b) to whom the supplier, by arrangement with the credit provider or lessor, regularly refers persons for the purpose of obtaining credit or being provided with a consumer lease; or

(i) forms of contract; or

(ii) forms of application; or

(iii) offers for credit; or

(iv) offers to be provided with a consumer lease;

are, by arrangement with the credit provider or lessor, made available to persons by the supplier; or

(d) with whom the supplier has a contract, arrangement or understanding under which:

(i) contracts; or

(ii) applications; or

(iii) offers for credit; or

(iv) offers to be provided with a consumer lease;

from the credit provider or lessor may be signed by persons at the premises of the supplier.

(5) For paragraph 42 (c) of Schedule 2 to the Act, the definition of services in subsection 204 (1) of Schedule 1 to the National Credit Act is modified for the purposes of this exemption to provide that services:

(a) includes:

(i) insurance; or

(ii) professional services; or

(iii) a right to services; and

(b) does not include:

(i) rights in relation to, and interest in, real property; or

(ii) services relating to credit or consumer leases that are regulated under the National Credit Act, or would be regulated under that Act if entered into, (other than credit services within the meaning given by section 7 of that Act).

14A Persons exempt from requiring registration — suppliers of goods or services with branded or
co-branded credit card

(1) For paragraph 42 (c) of Schedule 2 to the Act, this regulation exempts certain persons engaging in a credit activity from:

(a) items 4 and 6 of Schedule 2 to the Act; and

(b) definitions in the Act, as they apply to references in the provisions mentioned in paragraph (a); and

Note Item 4 of Schedule 2 to the Act provides that a person must not engage in a credit activity during the specified period unless the person is registered or holds a licence authorising the person to engage in the credit activity.

That item also provides that it is a defence if the person is a credit representative of the person who is registered or holds a licence authorising the person to engage in the credit activity.

Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during the specified period unless the person:

(a) is registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

That item also provides that it is a defence if the person is a credit representative of a person who:

(a) is registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

(2) The person is exempted only to the extent that the person is engaging in the specified credit activity in relation to a continuing credit contract under which a credit card is provided.

Note If the person also engages in a credit activity that is not the subject of an exemption under the Act or the National Credit Act, the person is not exempted in relation to that credit activity.

(3) The person is exempted if:

(a) the person is:

(i) a supplier of goods or services; or

(ii) a related body corporate of a supplier of goods or services; or

(iii) engaging in a credit activity on behalf of the supplier of goods or services; and

(b) the person meets the requirements of subregulation (4) or (5).

(4) For paragraph (3) (b), the requirements are that the person is performing the obligations or exercising the rights of a credit provider in relation to a credit contract or proposed credit contract:

(a) on behalf of the credit provider who is a linked credit provider of the supplier and is a licensee, registered person or exempt special purpose funding entity; and

(b) in relation to a continuing credit contract under which a credit card is:

(i) provided or would be provided if the contract were entered into; and

(ii) branded or co-branded with the name of the supplier or a related body corporate of the supplier or any other words, phrase, initials or logo associated with the supplier or related body corporate.

(5) For paragraph (3) (b), the requirements are that the person is providing credit services in relation to a continuing credit card contract under which a credit card is provided or would be provided if the contract were entered into and the:

(a) credit provider for the continuing credit contract is a linked credit provider of the supplier and is a licensee, registered person or exempt special purpose funding entity; and

(b) credit card is branded or co-branded with the name of the supplier or a related body corporate of the supplier or any other words, phrase, initials or logo associated with the supplier or related body corporate.

(6) The person is exempted if the person engages in credit activities on the premises of the supplier.

(7) For paragraph 42 (c) of Schedule 2 to the Act, the definition of linked credit provider of a supplier in section 127 of the Code applies as if it were modified for the purposes of this exemption to provide that a linked credit provider of a supplier means a credit provider:

(a) with whom the supplier has a contract, arrangement or understanding relating to:

(i) the supply to the supplier of goods in which the supplier deals; or

(ii) the business of supplying goods or services carried on by the supplier; or

(iii) the provision of credit:

(A) to persons to whom goods or services are supplied by the supplier; and

(B) for payment for the goods or services; or

(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit; or

(i) forms of contract; or

(ii) forms of application; or

(iii) offers for credit;

are, by arrangement with the credit provider, made available to persons by the supplier; or

(d) with whom the supplier has a contract, arrangement or understanding under which:

(i) contracts; or

(ii) applications; or

(iii) offers for credit;

from the credit provider may be signed by persons at the premises of the supplier.

(8) For paragraph 42 (c) of Schedule 2 to the Act, the definition of services in subsection 204 (1) of the Code applies as if it were modified for the purposes of this exemption to provide that services:

(a) includes:

(i) insurance; or

(ii) professional services; or

(iii) a right to services; and

(b) does not include:

(i) rights in relation to, and interest in, real property; or

(ii) services relating to credit or consumer leases that are regulated under the Act, or would be regulated under the Act if entered into, other than credit services within the meaning given by section 7 of the National Credit Act.

14B Persons exempt from requiring registration — fund raising special purpose entity

(1) For paragraph 42 (a) of Schedule 2 to the Act, this regulation applies in relation to a fund raising special purpose entity if:

(a) it engages in a credit activity; and

(b) it is party to a servicing agreement; and

(d) if it is a body corporate — no director or secretary of the body corporate is an inappropriate person; and

(e) if it is a trust — no trustee of the trust is an inappropriate person.

(2) The fund raising special purpose entity is exempted from:

(a) items 4 and 6 of Schedule 2 to the Act; and

(b) definitions in the Act, as they apply to references in the provision mentioned in paragraph (a); and

That item also provides that it is a defence if the person is a credit representative of the person who is registered or holds a licence authorising the person to engage in the credit activity.

Item 6 of Schedule 2 to the Act provides that a person must not engage in a credit activity during the specified period unless the person:

(a) is registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

That item also provides that it is a defence if the person is a credit representative of a person who:

(a) is registered and has applied for a licence authorising the person to engage in the credit activity; or

(b) holds a licence authorising the person to engage in the credit activity.

(3) The fund raising special purpose entity is exempted only to the extent that it is engaging in the specified credit activity.

Note 1 If the fund raising special purpose entity also engages in a credit activity that is not the subject of an exemption under the Act or the Transitional Act, it is not exempted in relation to that credit activity.

Note 2 Under section 109 (3) of the Act, ASIC may declare that instruments made under Chapter 2 of the Act apply in relation to a credit activity (other than an exempt credit activity in relation to a specified credit contract, mortgage, guarantee or consumer lease), or a class of persons or credit activities as if specified provisions were omitted, modified or varied as specified in the declaration.

14C Persons exempt from requiring registration — securitisation entity

(1) For paragraph 110 (a) of the Act, this regulation applies in relation to a securitisation entity if:

(a) it engages in a credit activity; and

(b) it is party to a servicing agreement; and

(d) if it is a body corporate — no director or secretary of the body corporate is an inappropriate person; and

(e) if it is a trust — no trustee of the trust is an inappropriate person.

(2) The securitisation entity is exempted from: