National Consumer Credit Protection Act. Australia
the licensee must:
(a) include in the document the licensee’s Australian credit licence number; and
(b) identify in the document that the number is the licensee’s Australian credit licence number.
Civil penalty: 2,000 penalty units.
Strict liability offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2) to include and identify its Australian credit licence number in a document; and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 10 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
53 Obligation to lodge annual compliance certificate
Requirement to lodge annual compliance certificate
1) A licensee must, no later than 45 days after the licensee’s licensing anniversary in each year, lodge a compliance certificate with ASIC in accordance with this section. ASIC may extend the day by giving a written notice to the licensee.
Civil penalty: 2,000 penalty units.
Compliance certificate must be in approved form
2) The compliance certificate must be in the approved form.
Who must sign compliance certificate
3) The compliance certificate must be signed by:
a) if the licensee is a single natural person — the licensee; or
b) if the licensee is a body corporate — a person of a kind prescribed by the regulations; or
c) if the licensee is a partnership or the trustees of a trust — a partner or trustee who performs duties in relation to credit activities.
Requirement to ensure compliance certificate is lodged
4) Each person by whom the compliance certificate may be signed under subsection (3) must ensure that the licensee lodges the compliance certificate with ASIC in accordance with this section.
Civil penalty: 2,000 penalty units.
Strict liability offence
5) A person commits an offence if:
a) the person is subject to a requirement under subsection (1) or (4); and
b) the person engages in conduct; and
c) the conduct contravenes the requirement.
Criminal penalty: 60 penalty units.
6) Subsection (5) is an offence of strict liability.
Meaning of licensing anniversary
7) Licensing anniversary of a licensee means the anniversary of the day on which the licensee’s licence came into force under section 42.
Division 6—When a licence can be suspended, cancelled or varied
Subdivision A — Suspensions and cancellations
54 Suspension or cancellation without hearing
1) ASIC may suspend or cancel a licensee’s licence if:
a) the licensee lodges with ASIC an application for the suspension or cancellation; or
b) the licensee does not engage, or ceases to engage, in credit activities; or
c) any of the matters set out in subsection (2) applies to any of the following persons:
i) the licensee;(ii) if the licensee is a body corporate — a director, secretary or senior manager of the body corporate who performs duties in relation to credit activities; (iii) if the licensee is a partnership or the trustees of a trust — a partner or trustee who performs duties in relation to credit activities.
2) For the purposes of paragraph (1)(c), the matters are as follows:
a) if the person is not the trustees of a trust — the person is insolvent;
b) if the person is a natural person:
i) the person is convicted of serious fraud; or(ii) the person is incapable of managing his or her affairs because of physical or mental incapacity; or (iii) a prescribed State or Territory order is in force against the person.
3) An application for suspension or cancellation of a licence must be in the approved form.
55 Suspension or cancellation after offering a hearing
1) ASIC may suspend or cancel a licensee’s licence (subject to complying with subsection (4)) if:
a) the licensee has contravened an obligation under section 47 (which deals with general conduct obligations of licensees); or
b) ASIC has reason to believe that the licensee is likely to contravene an obligation under that section; or
c) ASIC has reason to believe that the licensee is not a fit and proper person to engage in credit activities; or
d) the application for the licence:
i) was false in a material particular or materially misleading; or
(ii) omitted a material matter.
2) For the purposes of paragraphs (1)(b) and (c), ASIC must (subject to Part VIIC of the Crimes Act 1914) have regard to the following:
(a) if the person is a natural person — the matters set out in paragraphs 37(2)(a) to (f) and subparagraph 37(2)(g)(i) in relation to the person;
(b) if the person is not a natural person:
(i) the matters set out in paragraphs 37(2)(a) to (f) in relation to the person; and(ii) whether ASIC has reason to believe that any of the persons referred to in paragraph 37(2)(h) in relation to the person is not a fit and proper person to engage in credit activities;
(c) any criminal conviction of the person, within 10 years before the licence is proposed to be suspended or cancelled;
(d) any other matter ASIC considers relevant;
(e) any other matter prescribed by the regulations.
Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
(3) ASIC must (subject to Part VIIC of the Crimes Act 1914), in considering whether it has reason to believe that a person referred to in subparagraph (2)(b)(ii) is not a fit and proper person to engage in credit activities, have regard to the matters set out in paragraphs (2)(a), (c), (d) and (e) in relation to the person.
(4) ASIC may only suspend or cancel a licensee’s licence under this section after giving the licensee an opportunity:
(a) to appear, or be represented, at a hearing before ASIC that takes place in private; and
(b) to make submissions to ASIC on the matter.
56 Suspension and cancellation — special procedures for APRA-regulated bodies
Special procedures for APRA-regulated bodies (other than ADIs)
1) If a licensee, or a related body corporate, is a body (the APRA body) regulated by APRA (other than an ADI), then the following provisions apply:
a) ASIC cannot suspend or cancel the licensee’s licence if doing so would, in ASIC’s opinion, have the result of preventing