National Consumer
Credit Protection
Amendment (Home Loans
and Credit Cards) Act
2011
No.
84, 2011
An
Act to amend the
National Consumer Credit
Protection Act 2009,
and for related purposes
[Assented to 25 July
2011]
The Parliament of
Australia enacts:
1 Short title
This
Act may be cited as the
National Consumer
Credit Protection
Amendment (Home Loans
and Credit Cards) Act
2011.
2 Commencement
(1) Each
provision of this Act
specified in column 1 of
the table commences, or
is taken to have
commenced, in accordance
with column 2 of the
table. Any other
statement in column 2
has effect according to
its terms.
|
Commencement
information |
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1
to 3 and
anything in this
Act not
elsewhere
covered by this
table |
The day this Act
receives the
Royal Assent. |
25 July 2011 |
|
2. Schedule 1,
Part 1 |
1 January 2012. |
1 January 2012 |
|
3. Schedule 1,
Part 2 |
1 July 2012. |
1 July 2012 |
|
4. Schedule 2 |
1 July 2012. |
1 July 2012 |
Note: This
table relates only to
the provisions of this
Act as originally
enacted. It will not be
amended to deal with any
later amendments of this
Act.
(2) Any
information in column 3
of the table is not part
of this Act. Information
may be inserted in this
column, or information
in it may be edited, in
any published version of
this Act.
3 Schedule(s)
Each
Act that is specified in
a Schedule to this Act
is amended or repealed
as set out in the
applicable items in the
Schedule concerned, and
any other item in a
Schedule to this Act has
effect according to its
terms.
Schedule 1—Amendments
Part 1—Amendments
relating to home loans
National Consumer Credit
Protection Act 2009
1
Subsection 5(1)
Insert:
Key Facts Sheet
for a standard home
loan: see section 133AB.
2
Subsection 5(1)
Insert:
residential property
has the same meaning as
in section 204 of the
National Credit Code.
3
Subsection 5(1)
Insert:
standard home loan:
see subsection 133AA(1).
4
Part 3‑2 (heading)
Repeal the heading,
substitute:
Part 3‑2—Licensees
that are credit
providers under credit
contracts: general rules
5
After Part 3‑2
Insert:
Part 3‑2A—Licensees
that are credit
providers under credit
contracts: additional
rules relating to
standard home loans
Division 1—Introduction
133A Guide to
this Part
This Part has rules
that apply to
licensees that are
credit providers
under standard home
loans. It applies in
addition to the
general rules in
Part 3‑2.
Division 2 imposes
requirements aimed
at ensuring a
consumer can obtain
a Key Facts Sheet
for a standard home
loan.
Division 2—Key
Facts Sheets for
standard home loans
133AA What is a
standard home loan?
(1) A
standard home loan
of a licensee is a
standard form of credit
contract under which the
licensee provides
credit:
(a) to purchase
residential property; or
(b) to refinance credit
that has been provided
wholly or predominantly
to purchase residential
property.
(2) The
regulations may make
provisions that apply to
determining, for the
purpose of
subsection (1), whether
a credit contract is a
standard form of credit
contract.
133AB What is a
Key Facts Sheet
for a standard home
loan?
(1) A
Key Facts Sheet
for a standard home loan
is a document:
(a) that contains the
information relating to
the standard home loan
that is required by the
regulations; and
(b) that complies with
any other requirements
prescribed by the
regulations.
(2)
Without limiting
paragraph (1)(a),
regulations made for the
purpose of that
paragraph:
(a) may require a Key
Facts Sheet for a
standard home loan to
contain information:
(i) that is specific to
the consumer by whom the
Key Facts Sheet is to be
generated under
section 133AC or to whom
it is to be provided
under section 133AD; and
(ii) that relates to
the cost or implications
of the loan for the
consumer; and
(b) may require
information contained in
a Key Facts Sheet for a
standard home loan to be
based on either or both
of the following:
(i) information
provided by the
consumer;
(ii) particular
assumptions.
133AC Credit
provider’s website to
provide capacity to
generate Key Facts Sheet
When
this section applies
(1) This
section applies if a
licensee has a website
that can be used by a
consumer to apply for,
or make an inquiry
about, one or more
standard home loans of
the licensee.
Requirement
(2) The
licensee must ensure
that the website
satisfies all of the
following paragraphs:
(a) the website tells
the consumer that the
consumer may use the
website to generate a
Key Facts Sheet for the
standard home loan, or
for each of the standard
home loans;
(b) the website:
(i) tells the consumer
what information the
consumer will need to
enter in order to
generate the Key Facts
Sheet or Sheets; and
(ii) provides the
consumer with
instructions on how to
generate the Key Facts
Sheet or Sheets;
(c) if the consumer
enters the information
and follows those
instructions, the
consumer can use the
website to generate the
Key Facts Sheet or
Sheets, containing
up‑to‑date information,
in a form that can be
printed;
(d) the website
complies with any other
requirements prescribed
by the regulations.
Civil
penalty: 2,000
penalty units.
Offence
(3) A
person commits an
offence if:
(a) the person is
subject to a requirement
under subsection (2);
and
(b) the person engages
in conduct; and
(c) the conduct
contravenes the
requirement.
Criminal penalty: 50
penalty units.
133AD Credit
provider to provide Key
Facts Sheet in other
situations
When
this section applies
(1) This
section applies if:
(a) either:
(i) a consumer makes a
request to a licensee
(otherwise than by using
a website of the
licensee) to be provided
with a Key Facts Sheet
for one or more standard
home loans of the
licensee that are
specified in the
request; or
(ii) the regulations
require a consumer, in
circumstances prescribed
by the regulations, to
be provided with a Key
Facts Sheet for one or
more standard home loans
of a licensee; and
(b) the consumer has
given the licensee the
consumer’s name, and the
contact details required
by the regulations.
Requirement
(2) The
licensee must, in
accordance with any
requirements prescribed
by the regulations:
(a) provide the
consumer with a Key
Facts Sheet containing
up‑to‑date information
for the standard home
loan, or for each of the
standard home loans; and
(b) provide the
consumer with any other
information relating to
other standard home
loans of the licensee
that is required by the
regulations.
Note:
Subsection 133AE(4) and
section 133AF provide
defences to liability
under this subsection.
Civil
penalty: 2,000
penalty units.
Offence
(3) A
person commits an
offence if:
(a) the person is
subject to a requirement
under subsection (2);
and
(b) the person engages
in conduct; and
(c) the conduct
contravenes the
requirement.
Criminal penalty: 50
penalty units.
Note:
Subsection 133AE(4) and
section 133AF provide
defences to liability
under this subsection.
133AE What if
more information is
needed from the
consumer?
When
this section applies
(1) This
section applies if:
(a) a licensee is
required by
section 133AD to provide
a consumer with a Key
Facts Sheet for a
standard home loan; but
(b) the licensee does
not have all the
information from the
consumer that the
licensee needs in order
to be able to prepare
the Key Facts Sheet.
Requirement
(2) The
licensee must, in
accordance with any
requirements prescribed
by the regulations, tell
the consumer what
information the licensee
needs in order to be
able to prepare the Key
Facts Sheet.
Civil
penalty: 2,000
penalty units.
Offence
(3) A
person commits an
offence if:
(a) the person is
subject to a requirement
under subsection (2);
and
(b) the person engages
in conduct; and
(c) the conduct
contravenes the
requirement.
Criminal penalty: 50
penalty units.
Defence for subsections
133AD(2) and (3)
(4) For
the purposes of applying
subsections 133AD(2) and
(3) to a failure by a
licensee to provide a
Key Facts Sheet to a
consumer, it is a
defence if:
(a) the licensee has,
in accordance with
subsection (2) of this
section, told the
consumer what
information the licensee
needs in order to be
able to prepare the Key
Facts Sheet; and
(b) the consumer has
not provided that
information to the
licensee.
Note: For the
purpose of subsection
133AD(3), a defendant
bears an evidential
burden in relation to
the matter in this
subsection (see
subsection 13.3(3) of
the Criminal Code).
133AF Defences
to obligation to provide
a Key Facts Sheet
(1) For
the purpose of applying
subsection 133AD(2) or
(3) to a failure by a
licensee to provide a
consumer with a Key
Facts Sheet (the
new Key Facts Sheet)
for a standard home
loan, it is a defence
if:
(a) the following
conditions are
satisfied:
(i) the licensee has
previously provided the
consumer with a Key
Facts Sheet (the
previous Key Facts Sheet)
for the standard home
loan;
(ii) the new Key Facts
Sheet would be the same
(except for its date) as
the previous Key Facts
Sheet; or
(b) the licensee
reasonably believes
that:
(i) another person has
previously provided the
consumer with a Key
Facts Sheet (the
previous Key Facts Sheet)
for the standard home
loan; and
(ii) the new Key Facts
Sheet would be the same
(except for its date) as
the previous Key Facts
Sheet; or
(c) the licensee
reasonably believes that
the consumer would not
be eligible for the
standard home loan; or
(d) under regulations
made for the purpose of
subsection (2), the
licensee is not required
to provide the consumer
with the new Key Facts
Sheet.
Note: For the
purpose of subsection
133AD(3), a defendant
bears an evidential
burden in relation to
the matters in this
subsection (see
subsection 13.3(3) of
the Criminal Code).
(2) The
regulations may
prescribe circumstances
in which a licensee is
not required to provide
a consumer with a Key
Facts Sheet for a
standard home loan.
Part 2—Amendments
relating to credit cards
National Consumer Credit
Protection Act 2009
6
Subsection 5(1)
Insert:
annual percentage
rate has the
same meaning as in
section 27 of the
National Credit Code.
8
Subsection 5(1)
Insert:
continuing credit
contract has the
same meaning as in
section 204 of the
National Credit Code.
9
Subsection 5(1)
Insert:
credit card:
see subsection 133BA(2).
10
Subsection 5(1)
Insert:
credit card contract:
see subsection 133BA(1).
12
Subsection 5(1)
Insert:
credit limit increase
invitation, in
relation to a credit
card contract: see
subsection 133BE(5).
14
Subsection 5(1)
(definition of Key
Facts Sheet)
Repeal the definition,
substitute:
Key Facts Sheet:
(a) for a credit card
contract—see
section 133BB; and
(b) for a standard home
loan—see section 133AB.
15
Subsection 5(1)
Insert:
linked: for
when a credit card is
linked to a
credit card contract,
see subsection 133BA(3).
17
Subsection 5(1)
Insert:
use of a
credit card: see
subsection 133BA(4).
18
Subsection 6(2) (note)
Omit
“credit contracts for
credit cards”,
substitute “credit card
contracts”.
19
After Part 3‑2A
Insert:
Part 3‑2B—Licensees
that are credit
providers under credit
contracts: additional
rules relating to credit
card contracts
Division 1—Introduction
133B Guide to
this Part
This Part has rules
that apply to
licensees that are
credit providers
under credit card
contracts. It
applies in addition
to the general rules
in Part 3‑2.
Division 2 defines
key concepts used in
this Part (including
credit card contract
and credit card).
Division 3 imposes
requirements aimed
at ensuring a
consumer obtains a
Key Facts Sheet
before entering into
a credit card
contract.
Division 4 imposes
restrictions on a
licensee making
offers etc. to
increase the credit
limit of a credit
card contract.
Division 5 provides
for consumers to be
notified if a credit
card is used in
excess of its credit
limit, and restricts
the charging of fees
etc. for use of a
credit card in
excess of its credit
limit.
Division 6 imposes
requirements
relating to the
order of application
of payments made
under credit card
contracts.
Generally, a payment
must be applied
against higher
interest rate debts
first.
Division 2—Credit
card contracts and
related concepts
133BA Meaning of
credit card contract
etc.
Meaning of credit
card contract
(1) A
credit card contract
is a continuing credit
contract under which
credit is ordinarily
obtained only by the use
of a credit card.
Meaning of credit
card
(2) A
credit card
is:
(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
referred to in
paragraph (a) or (b).
Meaning of linked
to a credit card
contract
(3) A
credit card is
linked to a
credit card contract if:
(a) the credit card is
issued under or in
relation to the
contract; and
(b) the credit card can
be used to obtain credit
under the contract as
referred to in
subsection (1).
Meaning of use of
a credit card
(4) A
reference to the
use of a credit
card to obtain cash,
goods or services
includes a reference to
the use or provision of
the number of the credit
card to obtain cash,
goods or services.
Articles that can be
used as credit cards and
in other ways
(5) If a
credit card can also be
used in other ways (for
example, as a debit
card, or to access other
accounts):
(a) the article is a
credit card (despite the
fact that it can also be
used in those other
ways); but
(b) the provisions of
this Act that are
expressed to apply in
relation to credit cards
do not apply to the
article in so far as it
can be used in those
other ways.
Division 3—Key
Facts Sheets for credit
card contract
133BB What is a
Key Facts Sheet
for a credit card
contract?
A
Key Facts Sheet
for a credit card
contract is a document:
(a) that contains the
information relating to
the contract that is
required by the
regulations; and
(b) that complies with
any other requirements
prescribed by the
regulations.
133BC
Application form for
credit card contract to
include up‑to‑date Key
Facts Sheet
Requirement
(1) If a
licensee makes available
to consumers an
application form that
can be used to apply for
a credit card contract
under which the licensee
would be the credit
provider, the licensee
must ensure that the
application form
includes a Key Facts
Sheet for the contract
that contains up‑to‑date
information.
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: 50
penalty units.
Circumstances in which
application form may,
for limited period,
include out‑of‑date Key
Facts Sheet
(3) The
regulations may
prescribe circumstances
in which a licensee may,
for a period prescribed
by the regulations, make
available an application
form that includes a Key
Facts Sheet containing
information that has
ceased to be up‑to‑date.
Note: If a
consumer applies using
such an application
form, the consumer must
be given the up‑to‑date
information: see
paragraph 133BD(1)(b).
(4) If a
licensee makes available
an application form that
includes a Key Facts
Sheet containing
information that has
ceased to be up‑to‑date,
it is a defence for the
purposes of
subsections (1) and (2)
if the application form
was made available as
permitted by regulations
made for the purpose of
subsection (3).
Note: For the
purpose of
subsection (2), a
defendant bears an
evidential burden in
relation to the matter
in this subsection (see
subsection 13.3(3) of
the Criminal Code).
133BD Credit
provider not to enter
into credit card
contract unless Key
Facts Sheet has been
provided etc.
Requirement
(1) If a
consumer applies to a
licensee for a credit
card contract under
which the licensee would
be the credit provider,
the licensee must not
enter into, or offer to
enter into, the contract
unless:
(a) the application is
made using an
application form that
includes a Key Facts
Sheet for the contract
that contains up‑to‑date
information; or
(b) the following
conditions are
satisfied:
(i) the application is
made using an
application form that
includes a Key Facts
Sheet for the contract
that contains
information that has
ceased to be up‑to‑date;
(ii) the consumer has
been provided with the
up‑to‑date information
in accordance with any
requirements prescribed
by the regulations; or
(c) the consumer has
otherwise been provided
with a Key Facts Sheet
for the contract that
contains up‑to‑date
information in
accordance with any
requirements prescribed
by the regulations.
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: 100
penalty units.
Division 4—Offers
etc. to increase credit
limit of credit card
contract
133BE Credit
provider not to offer
etc. to increase credit
limit of credit card
contract
Requirement
(1) A
licensee who is the
credit provider under a
credit card contract
must not make a credit
limit increase
invitation in relation
to the contract.
Civil
penalty: 2,000
penalty units.
Note
1: Subsection
133BF(1) provides a
defence to liability
under this subsection.
Note
2: For other
provisions that must be
complied with in
relation to increasing
credit limits, see:
(a) Divisions 3 and 4
of Part 3‑2; and
(b) subsection 67(4)
of the National Credit
Code.
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: 100
penalty units.
Note:
Subsection 133BF(1)
provides a defence to
liability under this
subsection.
Strict liability offence
(3) 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: 10
penalty units.
Note:
Subsection 133BF(1)
provides a defence to
liability under this
subsection.
(4)
Subsection (3) is an
offence of strict
liability.
Note: For
strict liability, see
section 6.1 of the
Criminal Code.
Meaning of credit
limit increase
invitation
(5) A
licensee makes a
credit limit increase
invitation,
in relation to a
credit card contract,
if:
(a) the licensee gives
a written communication
that relates to the
contract to the consumer
who is the debtor under
the contract; and
(b) one or more of the
following conditions is
satisfied in relation to
the communication:
(i) the communication
offers to increase the
credit limit of the
contract;
(ii) the communication
invites the consumer to
apply for an increase of
the credit limit of the
contract;
(iii) the licensee gave
the communication to the
consumer for the purpose
(or for purposes
including the purpose)
of encouraging the
consumer to consider
applying for an increase
of the credit limit of
the contract.
(6) The
regulations may make
provisions that apply to
determining whether a
written communication is
covered by the
definition in
subsection (5).
133BF Informed
consent of the consumer
to the making of credit
limit increase
invitations
(1) For
the purposes of applying
subsections 133BE(1),
(2) and (3) to the
making of a credit limit
increase invitation, it
is a defence if:
(a) the licensee has,
in accordance with this
section, obtained
express consent, from
the consumer who is the
debtor under the credit
card contract, to the
licensee making credit
limit increase
invitations; and
(b) the consent has not
been withdrawn in
accordance with this
section.
Note
1: The consent
must be express, and
cannot be implied from
the actions of the
consumer or from other
circumstances.
Note
2: The licensee
must keep records of
consents and
withdrawals: see
section 133BG.
Note
3: For the
purposes of subsections
133BE(2) and (3), a
defendant bears an
evidential burden in
relation to the matter
in this subsection (see
subsection 13.3(3) of
the Criminal Code).
(2) The
consumer may consent to
the licensee making
credit limit increase
invitations.
(3) The
consent must be
expressed to relate to
any credit limit
increase invitations
that the licensee may,
from time to time, make
to the consumer.
Note: A consent
expressed in more
limited terms is not
effective for the
purpose of this section.
(4) Before
obtaining the consumer’s
consent, the licensee
must inform the consumer
of the following
matters:
(a) that the consumer
has a discretion whether
to apply for any
increase of the credit
limit;
(b) that the licensee
has a discretion whether
to grant any increase
applied for;
(c) that the consumer
may withdraw the consent
at any time;
(d) any other matters
prescribed by the
regulations.
(5) The
consent may be obtained
before or after the
credit card contract is
entered into, but it
does not cover any
credit limit increase
invitation made before
the consent is obtained.
(6) The
consumer may withdraw
the consent at any time.
(7) The
regulations may
prescribe requirements
to be complied with in
relation to any of the
following:
(a) giving consent
under subsection (2) or
withdrawing consent
under subsection (6);
(b) informing the
consumer of matters
under subsection (4).
133BG Records of
consents and withdrawals
to be kept
Requirement
(1) A
licensee must, in
accordance with the
requirements prescribed
by the regulations, keep
a record of:
(a) consents the
licensee obtains under
section 133BF; and
(b) withdrawals of such
consents.
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: 50
penalty units.
Division 5—Use
of credit card in excess
of credit limit
133BH Credit
provider to notify
consumer of use of
credit card in excess of
credit limit
Regulations may require
licensee to notify
consumer of use of
credit card in excess of
credit limit
(1) The
regulations may require
a licensee who is the
credit provider under a
credit card contract to
notify the consumer who
is the debtor under the
contract if the licensee
becomes aware that the
debtor has used a credit
card that is linked to
the contract to obtain
cash, goods or services
in excess of the credit
limit for the contract.
(2)
Without limiting
subsection (1),
regulations made for the
purpose of that
subsection may deal
with:
(a) how and when the
licensee must notify the
consumer; and
(b) the matters that
must be included in the
notification.
Requirement to comply
with the regulations
(3) A
licensee must comply
with regulations made
for the purpose of
subsection (1).
Civil
penalty: 2,000
penalty units.
Offence
(4) A
person commits an
offence if:
(a) the person is
subject to a requirement
under subsection (3);
and
(b) the person engages
in conduct; and
(c) the conduct
contravenes the
requirement.
Criminal penalty: 50
penalty units.
133BI Credit
provider not to impose
fees etc. because credit
card used in excess of
credit limit
(1) If a
credit card is used to
obtain cash, goods or
services in excess of
the credit limit for the
credit card contract,
the licensee who is the
credit provider under
the contract must not,
because the credit limit
was exceeded, impose any
liability to pay fees or
charges, or a higher
rate of interest, on the
consumer who is the
debtor under the
contract unless:
(a) the licensee has,
in accordance with this
section, obtained
express consent from the
consumer covering the
imposition of the fees
or charges, or the
higher rate of interest;
and
(b) the consent has not
been withdrawn; and
(c) any other
requirements prescribed
by the regulations are
complied with.
Note
1: The consent
must be express, and
cannot be implied from
the actions of the
consumer or from other
circumstances.
Note
2: The licensee
must keep records of
consents and
withdrawals: see
section 133BJ.
(2) The
consumer may consent to
the licensee imposing a
liability to pay fees or
charges, or a higher
rate of interest, if the
credit card is used to
obtain cash, goods or
services in excess of
the credit limit.
(3) Before
obtaining the consumer’s
consent, the licensee
must, in accordance with
the regulations, inform
the consumer of any
matters prescribed by
the regulations.
(4) The
consent may be obtained
before or after the
credit card contract is
entered into, but it
does not cover any fees,
charges or interest
imposed before the
consent is obtained.
(5) The
consumer may withdraw
the consent at any time.
(6) The
regulations may
prescribe requirements
to be complied with in
relation to giving
consent under
subsection (2), or
withdrawing consent
under subsection (5).
(7) For
the purpose of
subsection 23(1) of the
National Credit Code
(and the other
provisions of the Code
that refer to, or apply
in relation to, that
subsection):
(a) a liability to pay
a fee or charge that is
imposed contrary to
subsection (1) of this
section is taken to be a
credit fee or charge
that is prohibited by
the Code; and
(b) a liability to pay
interest that is imposed
contrary to
subsection (1) of this
section is taken to be
an interest charge under
the credit card contract
exceeding the amount
that may be charged
consistently with the
Code.
Note: For the
civil and criminal
consequences of
contravening subsection
23(1) of the National
Credit Code, see
subsections 23(2) to
(4), section 24, and
Part 6, of the Code.
133BJ Records of
consents and withdrawals
to be kept
Requirement
(1) A
licensee must, in
accordance with the
requirements prescribed
by the regulations, keep
a record of:
(a) consents the
licensee obtains under
section 133BI; and
(b) withdrawals of such
consents.
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: 50
penalty units.
Division 6—Order
of application of
payments made under
credit card contracts
133BO Credit
provider to apply
payments in accordance
with this Division
Requirement
(1) If a
payment (the
relevant payment)
is made under a credit
card contract:
(a) by or on behalf of
the consumer who is the
debtor under the
contract; and
(b) to the licensee who
is the credit provider
under the contract;
the
licensee must apply the
payment in accordance
with this Division
(despite any provision
to the contrary in the
contract, any other
contract or instrument
or any other law).
Civil
penalty: 2,000
penalty units.
(2) To
avoid doubt, an amount:
(a) that is credited to
the consumer’s account
by the licensee; and
(b) that is, or is in
the nature of:
(i) a total or partial
refund in relation to a
transaction entered into
using the credit card;
or
(ii) a total or partial
reversal of such a
transaction;
is
not a payment to which
subsection (1) applies.
Offence
(3) 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: 100
penalty units.
Strict liability offence
(4) 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: 10
penalty units.
(5)
Subsection (4) is an
offence of strict
liability.
Note: For
strict liability, see
section 6.1 of the
Criminal Code.
133BP Agreement
to apply payment against
particular amount owed
(1) This
section applies if, at
the time when the
licensee applies the
relevant payment, the
following conditions are
satisfied:
(a) the consumer has
requested the licensee
to apply certain
payments made under the
credit card contract
against a particular
amount:
(i) owed by the
consumer to the licensee
under the contract; and
(ii) in relation to
which any other
requirements prescribed
by the regulations are
satisfied;
(b) the licensee has
agreed to the request;
(c) the relevant
payment is a payment to
which the request
relates;
(d) neither the
request, nor the
agreement to the
request, has been
withdrawn in accordance
with this section.
(2) The
licensee must apply the
relevant payment against
the amount referred to
in paragraph (1)(a) in
accordance with the
request.
(3) The
consumer may withdraw
the request at any time.
(4) The
licensee may withdraw
the agreement to the
request, but only if the
consumer has consented
to the withdrawal.
(5) The
regulations may
prescribe requirements
to be complied with in
relation to any of the
following:
(a) making a request
under paragraph (1)(a);
(b) agreeing to a
request under
paragraph (1)(b);
(c) withdrawing a
request under
subsection (3);
(d) withdrawing
agreement to a request
under subsection (4);
(e) consenting under
subsection (4) to the
withdrawal of agreement
to a request.
133BQ
Application of payment
against last statement
balance, with higher
interest debts to be
discharged first
(1)
Subject to
subsection (2), the
licensee must apply the
relevant payment (or any
part of the relevant
payment remaining after
complying with
section 133BP) against
so much as remains owing
of the closing balance
shown in the last
statement of account for
the credit card contract
that the licensee gave
the consumer before the
relevant payment was
made.
(2) If
different annual
percentage rates apply
to different parts of
that closing balance,
the licensee must apply
the relevant payment (or
any remaining part of
the payment) first to
the part of that balance
to which the highest
rate applies, next to
the part of that balance
to which the next
highest rate applies,
and so on.
133BR
Application of any
remaining part of the
relevant payment
The
licensee must apply any
part of the relevant
payment remaining after
complying with
sections 133BP and 133BQ
in accordance with the
terms of the credit card
contract.
20
Subsection 23(1) of the
National Credit Code
(note)
Omit
“Note”, substitute “Note
1”.
21
At the end of subsection
23(1) of the National
Credit Code
Add:
Note
2: This subsection
also applies to
liabilities imposed
contrary to
section 133BI of the
National Credit Act: see
subsection (7) of that
section.
22
At the end of Division 3
of Part 2 of the
National Credit Code
Add:
30B Regulations
about credit card
contracts
(1) The
regulations may make
provision in relation to
any of the following
matters relating to
interest charges under
credit card contracts:
(a) the day from which
a daily percentage rate
may be applied, and the
balance (or the part of
a balance) to which it
may be applied;
(b) how matters
relating to interest
charges may be described
in:
(i) credit card
contracts; and
(ii) other documents or
advertisements published
or broadcast by or on
behalf of licensees who
are credit providers
under credit card
contracts.
(2)
Regulations made for the
purpose of
subsection (1) may:
(a) provide for
offences against the
regulations; and
(b) provide for civil
penalties for
contraventions of the
regulations.
(3) The
penalties for offences
referred to in
paragraph (2)(a) must
not be more than 50
penalty units for an
individual or 250
penalty units for a body
corporate.
(4) The
civil penalties referred
to in paragraph (2)(b)
must not be more than
500 penalty units for an
individual or 2,500
penalty units for a body
corporate.
(5) This
Division has effect
subject to regulations
made for the purpose of
subsection (1).
23
Paragraph 33(2)(a) of
the National Credit
Code
Omit
“continuing credit
contract under which
credit is ordinarily
obtained only by the use
of a card”, substitute
“credit card contract”.
24
Subsection 34(5) of the
National Credit Code
Omit
“continuing credit
contract under which
credit is ordinarily
obtained only by the use
of a card”, substitute
“credit card contract”.
25
Subsection 204(1) of the
National Credit Code
Insert:
credit card
has the same meaning as
in subsection 133BA(2)
of the National Credit
Act.
26
Subsection 204(1) of the
National Credit Code
Insert:
credit card contract
has the same meaning as
in subsection 133BA(1)
of the National Credit
Act.
27
Subsection 204(1) of the
National Credit Code
(paragraph (b) of
the definition of
credit fees and charges)
Omit
“continuing credit
contracts under which
credit is ordinarily
obtained only by the use
of a card”, substitute
“credit card contracts”.
28
Subsection 204(1) of the
National Credit Code
Insert:
credit limit
has the same meaning as
in section 5 of the
National Credit Act.
Schedule 2—Application
and transitional
provisions
National Consumer Credit
Protection (Transitional
and Consequential
Provisions) Act 2009
1 At
the end of the Act
Add:
Schedule 4—Other
application and
transitional provisions
Part 1—Application and
Transitional provisions
for the National
Consumer Credit
Protection Amendment
(Home Loans and Credit
Cards) Act 2011
1
Definitions
In
this Part:
amended Act
means the National
Consumer Credit
Protection Act 2009
as amended by Part 2 of
Schedule 1 to the
National Consumer Credit
Protection Amendment
(Home Loans and Credit
Cards) Act 2011.
commencement
means the commencement
of Part 2 of Schedule 1
to the National
Consumer Credit
Protection Amendment
(Home Loans and Credit
Cards) Act 2011.
2
Application of Divisions
of Part 3‑2B of the
amended Act
(1) Division 4 of
Part 3‑2B of the amended
Act applies to credit
card contracts whether
entered into before, on
or after commencement.
(2) Divisions 5
and 6 of Part 3‑2B of
the amended Act apply to
credit card contracts
entered into after
commencement.
3
Pre‑commencement
consents for credit
limit increase
invitations
(1) Subject to sub
item (2), if:
(a) before
commencement, a licensee
who is the credit
provider under a credit
card contract obtained
express consent, from
the consumer who is the
debtor under the
contract, to the
licensee making credit
limit increase
invitations; and
(b) the consent is
expressed to relate to
any credit limit
increase invitations
that the licensee may,
from time to time, make
to the consumer; and
(c) before obtaining
the consumer’s consent,
the licensee informed
the consumer of the
matters mentioned in
paragraphs 133BF(4)(a),
(b) and (c) of the
amended Act; and
(d) the consumer did
not withdraw the consent
before commencement;
then,
for the purposes of
Division 4 of Part 3‑2B
of the amended Act, the
licensee is taken to
have obtained the
consent under, and in
accordance with,
section 133BF of the
amended Act.
Note: The consumer
may, after commencement,
withdraw the consent in
accordance with
section 133BF of the
amended Act.
(2) Section 133BG
of the amended Act does
not apply in relation to
the consent, so far as
that section would
otherwise require a
record of the consent to
be kept. However that
section does apply in
relation to a withdrawal
of the consent after
commencement.
[Minister’s
second reading speech
made in—
House
of Representatives on 24
March 2011
Senate on 23 June 2011]