ASIC Credit (Electronic Precontractual Disclosure) Instrument 2020/835

made under paragraph 163(3)(d) of the National Consumer Credit Protection Act 2009 and subsection 203A(3) of the National Credit Code

Compilation No. 2 

Compilation date: 24/1/2024

Includes amendments up to: ASIC Credit (Amendment) Instrument 2024/20 (F2024L00093)

About this compilation

This compilation

This is a compilation of the ASIC Credit (Electronic Precontractual Disclosure) Instrument 2020/835 that shows the text of the law as amended and in force on 24/1/2024 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary

1 Name of legislative instrument

3 Repeal

4 Authority

5 Definitions

Part 2—Exemption

6 Electronic precontractual disclosure

Part 3—Declaration

7 Clarification of credit disclosure obligations

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Part 1—Preliminary

1 Name of legislative instrument

This is the ASIC Credit (Electronic Precontractual Disclosure) Instrument 2020/835.

3 Repeal

This instrument is repealed at the start of 1 April 2024.

4 Authority

This instrument is made under:

(a) paragraph 163(3)(d) of the National Consumer Credit Protection Act 2009 (the Act); and

(b) subsection 203A(3) of the National Credit Code (the Code).

Note: The Code is found in Schedule 1 to the Act.

5 Definitions

In this instrument:

Act means the National Consumer Credit Protection Act 2009.

Code means the National Credit Code in Schedule 1 to the Act.

Regulations means the National Consumer Credit Protection Regulations 2010.

Part 2—Exemption

6 Electronic precontractual disclosure

(1) A credit provider does not have to comply with subsection 16(1) of the Code in relation to a debtor where both of the following apply:

(a) the credit provider has given to the debtor in accordance with subsection (2):

(i) a precontractual statement (disclosure document) setting out the matters required by section 17 of the Code to be included in a contract document; and

(ii) an information statement (disclosure document) of the debtor’s statutory rights and statutory obligations in the form required by the regulations made for the purposes of paragraph 16(1)(b) of the Code;

(b) the precontractual statement contains the financial information specified by and in the form prescribed by the regulations made for the purposes of subsection 16(4) of the Code.

(2) For the purposes of subsection (1):

(a) a credit provider may, with the consent of a debtor, give a disclosure document to the debtor by:

(i) making the document available for a reasonable period on the credit provider’s information system for retrieval by electronic communication by the debtor; and

(ii) promptly notifying the debtor by electronic communication that the document is available for retrieval on that information system and the nature of the document; and

(iii) providing the debtor with the ability to retrieve the document by electronic communication;

(b) a debtor may consent to the giving of disclosure documents by electronic communication only after being told that, if consent is given:

(i) paper documents may no longer be given; and

(ii) electronic communications must be regularly checked for documents; and

(iii) consent to the giving of documents by electronic communication may be withdrawn at any time;

(c) if a disclosure document is given by sending it to a nominated electronic address or in a manner described in this subsection:

(i) it must be in a format that allows it to be saved to an electronic file and to be printed; and

(ii) at the time it was sent or was made available on the credit provider’s information system, it would have been reasonable to expect that the intended recipient would be able to save it to an electronic file and print it;

(d) if a disclosure document is not given to a debtor personally, or to a person acting on debtor’s behalf, the credit provider must be reasonably satisfied that the debtor has received the disclosure document before engaging in further credit activities in relation to the debtor’s credit contract;

Note: For the purposes of this paragraph, a person is not acting on the debtor’s behalf if the person is engaging in credit activities.

(e) a credit provider may be reasonably satisfied that a debtor has received a disclosure document (unless the debtor advises the credit provider otherwise) if the disclosure document was properly addressed to the debtor and sent to that address (including an electronic address or fax number);

(f) a disclosure document may be combined in a single document with another disclosure document and/or one or more disclosure documents within the meaning of regulation 26 of the Regulations (as affected by this instrument) only if all requirements of the Act and the Regulations that relate to the documents are met.

Part 3—Declaration

7 Clarification of credit disclosure obligations

The provisions to which Part 3-7 of the Act applies apply in relation to all persons as if provisions of the Regulations were modified or varied as follows:

(a) in regulation 26, in the definition of disclosure document, omit paragraph (e);

(b) omit paragraph 28L(1)(m).

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history