National Consumer Credit Protection Act. Australia
provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision).
Effect of displacement provision
(4) The Commonwealth provision does not:
(a) prohibit the doing of an act; or
(b) impose a liability (whether civil or criminal) for doing an act;
if the displacement provision specifically permits, authorises or requires the doing of that act.
(5) The Commonwealth provision does not operate in or in relation to the State or Territory to the extent necessary to ensure that no inconsistency arises between:
(a) the Commonwealth provision; and
(b) the displacement provision to the extent to which the displacement provision would, apart from this subsection, be inconsistent with the Commonwealth provision.
Note 1: The displacement provision is not covered by this subsection if subsection (4) applies to the displacement provision: if that subsection applies there would be no potential inconsistency to be dealt with by this subsection.
Note 2[2]: The operation of the displacement provision will be supported by section 23 to the extent to which it can operate concurrently with the Commonwealth provision.
(6) Subsections (4) and (5) do not apply in relation to the displacement provision to the extent to which the regulations provide that those subsections do not apply in relation to the displacement provision.
26 Regulations to deal with interaction between laws
(1) The regulations may modify the operation of the Commonwealth credit legislation so that:
(a) provisions of the Commonwealth credit legislation do not apply to a matter that is dealt with by a law of a referring State or a Territory specified in the regulations; or
(b) no inconsistency arises between the operation of a provision of the Commonwealth credit legislation and the operation of a provision of a law of a referring State or a Territory specified in the regulations.
(2) Without limiting subsection (1), regulations made for the purposes of that subsection may provide that a provision of the Commonwealth credit legislation:
(a) does not apply to:
(i) a person specified in the regulations; or(ii) a body specified in the regulations; or (iii) circumstances specified in the regulations; or (iv) a person or body specified in the regulations in the circumstances specified in the regulations; or
(b) does not prohibit an act to the extent to which the prohibition would otherwise give rise to an inconsistency with a law of a referring State or a Territory; or
(c) does not require a person to do an act to the extent to which the requirement would otherwise give rise to an inconsistency with a law of a referring State or a Territory; or
(d) does not authorise a person to do an act to the extent to which the conferral of that authority on the person would otherwise give rise to an inconsistency with a law of a referring State or a Territory; or
(e) does not impose an obligation on a person to the extent to which complying with that obligation would require the person not to comply with an obligation imposed on the person under a law of a referring State or a Territory; or
(f) authorises a person to do something for the purposes of the Commonwealth credit legislation that the person:
(i) is authorised to do under a law of a referring State or a Territory; and(ii) would not otherwise be authorised to do under the Commonwealth credit legislation; or
(g) will be taken to be satisfied if a law of a referring State or a Territory is satisfied.
Chapter 2—Licensing of persons who engage in credit activities
Part 2–1—Requirement to be licensed to engage in credit activities
Division 1—Introduction
27 Guide to this Part
This Part is about the licensing of persons to engage in credit activities. In general, a person cannot engage in a credit activity if the person does not hold an Australian credit licence.
Division 2 prohibits a person from engaging in credit activities without an Australian credit licence. However, the prohibition does not apply to employees and directors of licensees or related bodies corporate of licensees, or to credit representatives of licensees.
Division 3 deals with other prohibitions relating to the requirement to be licensed and to credit activities. These prohibitions relate to holding out and advertising, conducting business with unlicensed persons, charging fees for unlicensed conduct, and giving misleading information.
Division 2—Engaging in credit activities without a licence
28 Application of this Division
This Division applies on or after 1 July 2011, or a later day prescribed by the regulations.
29 Prohibition on engaging in credit activities without a licence
Prohibition on engaging in credit activities without a licence
(1) A person must not engage in a credit activity if the person does not hold a licence authorising the person to engage in the credit activity.
Civil penalty: 2,000 penalty units.
Offence
(2) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 200 penalty units, or 2 years imprisonment, or both.
Defences
(3) For the purposes of subsections (1) and (2), it is a defence if:
(a) the person engages in the credit activity on behalf of another person (the principal); and
(b) the person is:
(i) an employee or director of the principal or of a related body corporate of the principal; or(ii) a credit representative of the principal; and
(c) the person’s conduct in engaging in the credit activity is within the authority of the principal; and
(d) the principal holds a licence authorising the principal to engage in the credit activity.
Note: For the purposes of subsection (2), a defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) For the purposes of subsections (1) and (2), it is a defence if:
(a) the person engages in the credit activity on behalf of another person (the principal); and
(b) the person is a representative of the principal; and
(c) the person’s conduct in engaging in the credit activity is within the authority of the principal; and
(d) the principal is exempted from subsections (1) and (2) under paragraph 109(1)(a), 109(3)(a) or 110(a).
Note: For the purposes of subsection (2), a defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
Division 3—Other prohibitions relating to the requirement to be licensed and to credit activities
30 Prohibitions on holding out and advertising etc.
Prohibitions on holding out and advertising etc.
(1) A person must