Commonwealth of Australia Bills
[Index]
[Search]
[Download]
[Related Items]
[Help]
This is a Bill, not an Act. For current law, see the Acts databases.
NATIONAL CONSUMER CREDIT PROTECTION AMENDMENT (HOME LOANS AND CREDIT CARDS) BILL 2011
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Consumer Credit Protection
Amendment (Home Loans and Credit
Cards) Bill 2011
No. , 2011
(Treasury)
A Bill for an Act to amend the National Consumer
Credit Protection Act 2009, and for related purposes
i National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments
3
Part 1--Amendments relating to home loans
3
National Consumer Credit Protection Act 2009
3
Part 2--Amendments relating to credit cards
10
National Consumer Credit Protection Act 2009
10
Schedule 2--Application and transitional provisions
30
National Consumer Credit Protection (Transitional and
Consequential Provisions) Act 2009
30
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 1
A Bill for an Act to amend the National Consumer
1
Credit Protection Act 2009, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the National Consumer Credit Protection
5
Amendment (Home Loans and Credit Cards) Act 2011.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
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.
2. Schedule 1,
Part 1
1 September 2011.
1 September
2011
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
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amendments Schedule 1
Amendments relating to home loans Part 1
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 3
Schedule 1--Amendments
1
Part 1--Amendments relating to home loans
2
National Consumer Credit Protection Act 2009
3
1 Subsection 5(1)
4
Insert:
5
Key Facts Sheet for a standard home loan: see section 133AB.
6
2 Subsection 5(1)
7
Insert:
8
residential property has the same meaning as in section 204 of the
9
National Credit Code.
10
3 Subsection 5(1)
11
Insert:
12
standard home loan: see subsection 133AA(1).
13
4 Part 3-2 (heading)
14
Repeal the heading, substitute:
15
Part 3-2--Licensees that are credit providers under
16
credit contracts: general rules
17
5 After Part 3-2
18
Insert:
19
Schedule 1 Amendments
Part 1 Amendments relating to home loans
4 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
Part 3-2A--Licensees that are credit providers
1
under credit contracts: additional rules
2
relating to standard home loans
3
Division 1--Introduction
4
133A Guide to this Part
5
This Part has rules that apply to licensees that are credit providers
6
under standard home loans. It applies in addition to the general
7
rules in Part 3-2.
8
Division 2 imposes requirements aimed at ensuring a consumer can
9
obtain a Key Facts Sheet for a standard home loan.
10
Division 2--Key Facts Sheets for standard home loans
11
133AA What is a standard home loan?
12
(1)
A
standard home loan of a licensee is a standard form of credit
13
contract under which the licensee provides credit:
14
(a) to purchase residential property; or
15
(b) to refinance credit that has been provided wholly or
16
predominantly to purchase residential property.
17
(2) The regulations may make provisions that apply to determining, for
18
the purpose of subsection (1), whether a credit contract is a
19
standard form of credit contract.
20
133AB What is a Key Facts Sheet for a standard home loan?
21
(1)
A
Key Facts Sheet for a standard home loan is a document:
22
(a) that contains the information relating to the standard home
23
loan that is required by the regulations; and
24
(b) that complies with any other requirements prescribed by the
25
regulations.
26
(2) Without limiting paragraph (1)(a), regulations made for the
27
purpose of that paragraph:
28
Amendments Schedule 1
Amendments relating to home loans Part 1
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 5
(a) may require a Key Facts Sheet for a standard home loan to
1
contain information:
2
(i) that is specific to the consumer by whom the Key Facts
3
Sheet is to be generated under section 133AC or to
4
whom it is to be provided under section 133AD; and
5
(ii) that relates to the cost or implications of the loan for the
6
consumer; and
7
(b) may require information contained in a Key Facts Sheet for a
8
standard home loan to be based on either or both of the
9
following:
10
(i) information provided by the consumer;
11
(ii)
particular
assumptions.
12
133AC Credit provider's website to provide capacity to generate
13
Key Facts Sheet
14
When this section applies
15
(1) This section applies if a licensee has a website that can be used by
16
a consumer to apply for, or make an inquiry about, one or more
17
standard home loans of the licensee.
18
Requirement
19
(2) The licensee must ensure that the website satisfies all of the
20
following paragraphs:
21
(a) the website tells the consumer that the consumer may use the
22
website to generate a Key Facts Sheet for the standard home
23
loan, or for each of the standard home loans;
24
(b)
the
website:
25
(i) tells the consumer what information the consumer will
26
need to enter in order to generate the Key Facts Sheet or
27
Sheets; and
28
(ii) provides the consumer with instructions on how to
29
generate the Key Facts Sheet or Sheets;
30
(c) if the consumer enters the information and follows those
31
instructions, the consumer can use the website to generate the
32
Key Facts Sheet or Sheets, containing up-to-date information,
33
in a form that can be printed;
34
Schedule 1 Amendments
Part 1 Amendments relating to home loans
6 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
(d) the website complies with any other requirements prescribed
1
by the regulations.
2
Civil penalty:
2,000 penalty units.
3
Offence
4
(3) A person commits an offence if:
5
(a) the person is subject to a requirement under subsection (2);
6
and
7
(b) the person engages in conduct; and
8
(c) the conduct contravenes the requirement.
9
Criminal penalty:
50 penalty units.
10
Strict liability offence
11
(4) A person commits an offence if:
12
(a) the person is subject to a requirement under subsection (2);
13
and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the requirement.
16
Criminal penalty:
10 penalty units.
17
(5) Subsection (4) is an offence of strict liability.
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
133AD Credit provider to provide Key Facts Sheet in other
20
situations
21
When this section applies
22
(1) This section applies if:
23
(a)
either:
24
(i) a consumer makes a request to a licensee (otherwise
25
than by using a website of the licensee) to be provided
26
with a Key Facts Sheet for one or more standard home
27
loans of the licensee that are specified in the request; or
28
(ii) the regulations require a consumer, in circumstances
29
prescribed by the regulations, to be provided with a Key
30
Amendments Schedule 1
Amendments relating to home loans Part 1
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 7
Facts Sheet for one or more standard home loans of a
1
licensee; and
2
(b) the consumer has given the licensee the consumer's name,
3
and the contact details required by the regulations.
4
Requirement
5
(2) The licensee must, in accordance with any requirements prescribed
6
by the regulations:
7
(a) provide the consumer with a Key Facts Sheet containing
8
up-to-date information for the standard home loan, or for
9
each of the standard home loans; and
10
(b) provide the consumer with any other information relating to
11
other standard home loans of the licensee that is required by
12
the regulations.
13
Note:
Subsection 133AE(4) and section 133AF provide defences to liability
14
under this subsection.
15
Civil penalty:
2,000 penalty units.
16
Offence
17
(3) A person commits an offence if:
18
(a) the person is subject to a requirement under subsection (2);
19
and
20
(b) the person engages in conduct; and
21
(c) the conduct contravenes the requirement.
22
Criminal penalty:
50 penalty units.
23
Note:
Subsection 133AE(4) and section 133AF provide defences to liability
24
under this subsection.
25
133AE What if more information is needed from the consumer?
26
When this section applies
27
(1) This section applies if:
28
(a) a licensee is required by section 133AD to provide a
29
consumer with a Key Facts Sheet for a standard home loan;
30
but
31
Schedule 1 Amendments
Part 1 Amendments relating to home loans
8 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
(b) the licensee does not have all the information from the
1
consumer that the licensee needs in order to be able to
2
prepare the Key Facts Sheet.
3
Requirement
4
(2) The licensee must, in accordance with any requirements prescribed
5
by the regulations, tell the consumer what information the licensee
6
needs in order to be able to prepare the Key Facts Sheet.
7
Civil penalty:
2,000 penalty units.
8
Offence
9
(3) A person commits an offence if:
10
(a) the person is subject to a requirement under subsection (2);
11
and
12
(b) the person engages in conduct; and
13
(c) the conduct contravenes the requirement.
14
Criminal penalty:
50 penalty units.
15
Defence for subsections 133AD(2) and (3)
16
(4) For the purposes of applying subsections 133AD(2) and (3) to a
17
failure by a licensee to provide a Key Facts Sheet to a consumer, it
18
is a defence if:
19
(a) the licensee has, in accordance with subsection (2) of this
20
section, told the consumer what information the licensee
21
needs in order to be able to prepare the Key Facts Sheet; and
22
(b) the consumer has not provided that information to the
23
licensee.
24
Note:
For the purpose of subsection 133AD(3), a defendant bears an
25
evidential burden in relation to the matter in this subsection (see
26
subsection 13.3(3) of the Criminal Code).
27
133AF Defences to obligation to provide a Key Facts Sheet
28
(1) For the purpose of applying subsection 133AD(2) or (3) to a failure
29
by a licensee to provide a consumer with a Key Facts Sheet (the
30
new Key Facts Sheet) for a standard home loan, it is a defence if:
31
(a) the following conditions are satisfied:
32
Amendments Schedule 1
Amendments relating to home loans Part 1
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 9
(i) the licensee has previously provided the consumer with
1
a Key Facts Sheet (the previous Key Facts Sheet) for
2
the standard home loan;
3
(ii) the new Key Facts Sheet would be the same (except for
4
its date) as the previous Key Facts Sheet; or
5
(b) the licensee reasonably believes that:
6
(i) another person has previously provided the consumer
7
with a Key Facts Sheet (the previous Key Facts Sheet)
8
for the standard home loan; and
9
(ii) the new Key Facts Sheet would be the same (except for
10
its date) as the previous Key Facts Sheet; or
11
(c) the licensee reasonably believes that the consumer would not
12
be eligible for the standard home loan; or
13
(d) under regulations made for the purpose of subsection (2), the
14
licensee is not required to provide the consumer with the new
15
Key Facts Sheet.
16
Note:
For the purpose of subsection 133AD(3), a defendant bears an
17
evidential burden in relation to the matters in this subsection (see
18
subsection 13.3(3) of the Criminal Code).
19
(2) The regulations may prescribe circumstances in which a licensee is
20
not required to provide a consumer with a Key Facts Sheet for a
21
standard home loan.
22
23
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
10 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
Part 2--Amendments relating to credit cards
1
National Consumer Credit Protection Act 2009
2
6 Subsection 5(1)
3
Insert:
4
annual percentage rate has the same meaning as in section 27 of
5
the National Credit Code.
6
7 Subsection 5(1)
7
Insert:
8
approve, in relation to the use of a credit card: see subsection
9
133BH(5).
10
8 Subsection 5(1)
11
Insert:
12
continuing credit contract has the same meaning as in section 204
13
of the National Credit Code.
14
9 Subsection 5(1)
15
Insert:
16
credit card: see subsection 133BA(2).
17
10 Subsection 5(1)
18
Insert:
19
credit card contract: see subsection 133BA(1).
20
11 Subsection 5(1) (at the end of the definition of credit limit)
21
Add ", disregarding the default buffer and any supplementary buffer (in
22
the case of a credit card contract)".
23
12 Subsection 5(1)
24
Insert:
25
credit limit increase invitation, in relation to a credit card contract:
26
see subsection 133BE(5).
27
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 11
13 Subsection 5(1)
1
Insert:
2
default buffer, in relation to a credit card contract: see subsection
3
133BI(1).
4
14 Subsection 5(1) (definition of Key Facts Sheet)
5
Repeal the definition, substitute:
6
Key Facts Sheet:
7
(a) for a credit card contract--see section 133BB; and
8
(b) for a standard home loan--see section 133AB.
9
15 Subsection 5(1)
10
Insert:
11
linked: for when a credit card is linked to a credit card contract, see
12
subsection 133BA(3).
13
16 Subsection 5(1)
14
Insert:
15
supplementary buffer, in relation to a credit card contract: see
16
subsection 133BJ(1).
17
17 Subsection 5(1)
18
Insert:
19
use of a credit card: see subsection 133BA(4).
20
18 Subsection 6(2) (note)
21
Omit "credit contracts for credit cards", substitute "credit card
22
contracts".
23
19 After Part 3-2A
24
Insert:
25
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
12 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
Part 3-2B--Licensees that are credit providers
1
under credit contracts: additional rules
2
relating to credit card contracts
3
Division 1--Introduction
4
133B Guide to this Part
5
This Part has rules that apply to licensees that are credit providers
6
under credit card contracts. It applies in addition to the general
7
rules in Part 3-2.
8
Division 2 defines key concepts used in this Part (including credit
9
card contract and credit card).
10
Division 3 imposes requirements aimed at ensuring a consumer
11
obtains a Key Facts Sheet before entering into a credit card
12
contract.
13
Division 4 imposes restrictions on a licensee making offers etc. to
14
increase the credit limit of a credit card contract.
15
Division 5 imposes restrictions on a licensee approving the use of a
16
credit card in excess of the credit limit for the credit card contract.
17
It also restricts the charging of fees etc.
18
Division 6 imposes requirements relating to the order of
19
application of payments made under credit card contracts.
20
Generally, a payment must be applied against higher interest rate
21
debts first.
22
Division 2--Credit card contracts and related concepts
23
133BA Meaning of credit card contract etc.
24
Meaning of credit card contract
25
(1)
A
credit card contract is a continuing credit contract under which
26
credit is ordinarily obtained only by the use of a credit card.
27
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 13
Meaning of credit card
1
(2)
A
credit card is:
2
(a) a card of a kind commonly known as a credit card; or
3
(b) a card of a kind that persons carrying on business commonly
4
issue to their customers, or prospective customers, for use in
5
obtaining goods or services from those persons on credit; or
6
(c) anything else that may be used as a card referred to in
7
paragraph (a) or (b).
8
Meaning of linked to a credit card contract
9
(3) A credit card is linked to a credit card contract if:
10
(a) the credit card is issued under or in relation to the contract;
11
and
12
(b) the credit card can be used to obtain credit under the contract
13
as referred to in subsection (1).
14
Meaning of use of a credit card
15
(4) A reference to the use of a credit card to obtain cash, goods or
16
services includes a reference to the use or provision of the number
17
of the credit card to obtain cash, goods or services.
18
Articles that can be used as credit cards and in other ways
19
(5) If a credit card can also be used in other ways (for example, as a
20
debit card, or to access other accounts):
21
(a) the article is a credit card (despite the fact that it can also be
22
used in those other ways); but
23
(b) the provisions of this Act that are expressed to apply in
24
relation to credit cards do not apply to the article in so far as
25
it can be used in those other ways.
26
Division 3--Key Facts Sheets for credit card contract
27
133BB What is a Key Facts Sheet for a credit card contract?
28
A
Key Facts Sheet for a credit card contract is a document:
29
(a) that contains the information relating to the contract that is
30
required by the regulations; and
31
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
14 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
(b) that complies with any other requirements prescribed by the
1
regulations.
2
133BC Application form for credit card contract to include
3
up-to-date Key Facts Sheet
4
Requirement
5
(1) If a licensee makes available to consumers an application form that
6
can be used to apply for a credit card contract under which the
7
licensee would be the credit provider, the licensee must ensure that
8
the application form includes a Key Facts Sheet for the contract
9
that contains up-to-date information.
10
Civil penalty:
2,000 penalty units.
11
Offence
12
(2) A person commits an offence if:
13
(a) the person is subject to a requirement under subsection (1);
14
and
15
(b) the person engages in conduct; and
16
(c) the conduct contravenes the requirement.
17
Criminal penalty:
50 penalty units.
18
Circumstances in which application form may, for limited period,
19
include out-of-date Key Facts Sheet
20
(3) The regulations may prescribe circumstances in which a licensee
21
may, for a period prescribed by the regulations, make available an
22
application form that includes a Key Facts Sheet containing
23
information that has ceased to be up-to-date.
24
Note:
If a consumer applies using such an application form, the consumer
25
must be given the up-to-date information: see paragraph 133BD(1)(b).
26
(4) If a licensee makes available an application form that includes a
27
Key Facts Sheet containing information that has ceased to be
28
up-to-date, it is a defence for the purposes of subsections (1) and
29
(2) if the application form was made available as permitted by
30
regulations made for the purpose of subsection (3).
31
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 15
Note:
For the purpose of subsection (2), a defendant bears an evidential
1
burden in relation to the matter in this subsection (see subsection
2
13.3(3) of the Criminal Code).
3
133BD Credit provider not to enter into credit card contract unless
4
Key Facts Sheet has been provided etc.
5
Requirement
6
(1) If a consumer applies to a licensee for a credit card contract under
7
which the licensee would be the credit provider, the licensee must
8
not enter into, or offer to enter into, the contract unless:
9
(a) the application is made using an application form that
10
includes a Key Facts Sheet for the contract that contains
11
up-to-date information; or
12
(b) the following conditions are satisfied:
13
(i) the application is made using an application form that
14
includes a Key Facts Sheet for the contract that contains
15
information that has ceased to be up-to-date;
16
(ii) the consumer has been provided with the up-to-date
17
information in accordance with any requirements
18
prescribed by the regulations; or
19
(c) the consumer has otherwise been provided with a Key Facts
20
Sheet for the contract that contains up-to-date information in
21
accordance with any requirements prescribed by the
22
regulations.
23
Civil penalty:
2,000 penalty units.
24
Offence
25
(2) A person commits an offence if:
26
(a) the person is subject to a requirement under subsection (1);
27
and
28
(b) the person engages in conduct; and
29
(c) the conduct contravenes the requirement.
30
Criminal penalty:
100 penalty units.
31
Strict liability offence
32
(3) A person commits an offence if:
33
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
16 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
(a) the person is subject to a requirement under subsection (1);
1
and
2
(b) the person engages in conduct; and
3
(c) the conduct contravenes the requirement.
4
Criminal penalty:
10 penalty units.
5
(4) Subsection (3) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
Division 4--Offers etc. to increase credit limit of credit
8
card contract
9
133BE Credit provider not to offer etc. to increase credit limit of
10
credit card contract
11
Requirement
12
(1) A licensee who is the credit provider under a credit card contract
13
must not make a credit limit increase invitation in relation to the
14
contract.
15
Civil penalty:
2,000 penalty units.
16
Note 1:
Subsection 133BF(1) provides a defence to liability under this
17
subsection.
18
Note 2:
For other provisions that must be complied with in relation to
19
increasing credit limits, see:
20
(a) Divisions 3 and 4 of Part 3-2; and
21
(b) subsection 67(4) of the National Credit Code.
22
Offence
23
(2) A person commits an offence if:
24
(a) the person is subject to a requirement under subsection (1);
25
and
26
(b) the person engages in conduct; and
27
(c) the conduct contravenes the requirement.
28
Criminal penalty:
100 penalty units.
29
Note:
Subsection 133BF(1) provides a defence to liability under this
30
subsection.
31
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 17
Strict liability offence
1
(3) A person commits an offence if:
2
(a) the person is subject to a requirement under subsection (1);
3
and
4
(b) the person engages in conduct; and
5
(c) the conduct contravenes the requirement.
6
Criminal penalty:
10 penalty units.
7
Note:
Subsection 133BF(1) provides a defence to liability under this
8
subsection.
9
(4) Subsection (3) is an offence of strict liability.
10
Note:
For strict liability, see section 6.1 of the Criminal Code.
11
Meaning of credit limit increase invitation
12
(5) A licensee makes a credit limit increase invitation, in relation to a
13
credit card contract, if:
14
(a) the licensee gives a written communication that relates to the
15
contract to the consumer who is the debtor under the
16
contract; and
17
(b) one or more of the following conditions is satisfied in
18
relation to the communication:
19
(i) the communication offers to increase the credit limit of
20
the contract;
21
(ii) the communication invites the consumer to apply for an
22
increase of the credit limit of the contract;
23
(iii) the licensee gave the communication to the consumer
24
for the purpose (or for purposes including the purpose)
25
of encouraging the consumer to consider applying for an
26
increase of the credit limit of the contract.
27
(6) The regulations may make provisions that apply to determining
28
whether a written communication is covered by the definition in
29
subsection (5).
30
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
18 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
133BF Informed consent of the consumer to the making of credit
1
limit increase invitations
2
(1) For the purposes of applying subsections 133BE(1), (2) and (3) to
3
the making of a credit limit increase invitation, it is a defence if:
4
(a) the licensee has, in accordance with this section, obtained
5
express consent, from the consumer who is the debtor under
6
the credit card contract, to the licensee making credit limit
7
increase invitations; and
8
(b) the consent has not been withdrawn in accordance with this
9
section.
10
Note 1:
The consent must be express, and cannot be implied from the actions
11
of the consumer or from other circumstances.
12
Note 2:
The licensee must keep records of consents and withdrawals: see
13
section 133BG.
14
Note 3:
For the purposes of subsections 133BE(2) and (3), a defendant bears
15
an evidential burden in relation to the matter in this subsection (see
16
subsection 13.3(3) of the Criminal Code).
17
(2) The consumer may consent to the licensee making credit limit
18
increase invitations.
19
(3) The consent must be expressed to relate to any credit limit increase
20
invitations that the licensee may, from time to time, make to the
21
consumer.
22
Note:
A consent expressed in more limited terms is not effective for the
23
purpose of this section.
24
(4) Before obtaining the consumer's consent, the licensee must inform
25
the consumer of the following matters:
26
(a) that the consumer has a discretion whether to apply for any
27
increase of the credit limit;
28
(b) that the licensee has a discretion whether to grant any
29
increase applied for;
30
(c) that the consumer may withdraw the consent at any time;
31
(d) any other matters prescribed by the regulations.
32
(5) The consent may be obtained before or after the credit card
33
contract is entered into, but it does not cover any credit limit
34
increase invitation made before the consent is obtained.
35
(6) The consumer may withdraw the consent at any time.
36
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 19
(7) The regulations may prescribe requirements to be complied with in
1
relation to any of the following:
2
(a) giving consent under subsection (2) or withdrawing consent
3
under subsection (6);
4
(b) informing the consumer of matters under subsection (4).
5
133BG Records of consents and withdrawals to be kept
6
Requirement
7
(1) A licensee must, in accordance with the requirements prescribed by
8
the regulations, keep a record of:
9
(a) consents the licensee obtains under section 133BF; and
10
(b) withdrawals of such consents.
11
Civil penalty:
2,000 penalty units.
12
Offence
13
(2) A person commits an offence if:
14
(a) the person is subject to a requirement under subsection (1);
15
and
16
(b) the person engages in conduct; and
17
(c) the conduct contravenes the requirement.
18
Criminal penalty:
50 penalty units.
19
Division 5--Use of credit card in excess of credit limit
20
133BH Credit provider not to approve use of credit card in excess of
21
credit limit (or credit limit increased by buffer)
22
Requirement
23
(1) A licensee who is the credit provider under a credit card contract
24
must not approve a use of a credit card that is linked to the contract
25
to obtain cash, goods or services in excess of:
26
(a) if the default buffer applies to the contract and no
27
supplementary buffer applies to the contract--the credit limit
28
of the contract, increased by the default buffer; or
29
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
20 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
(b) if the default buffer, and a supplementary buffer, apply to the
1
contract--the credit limit of the contract, increased by the the
2
default buffer and the supplementary buffer; or
3
(c) in any other case--the credit limit of the contract.
4
Civil penalty:
2,000 penalty units.
5
Note 1:
Subsection 133BL(2) provides a defence to liability under this
6
subsection.
7
Note 2:
For when the default buffer applies to a credit card contract, see
8
section 133BI. For when a supplementary buffer applies in relation to
9
a credit card contract, see section 133BJ.
10
Offence
11
(2) A person commits an offence if:
12
(a) the person is subject to a requirement under subsection (1);
13
and
14
(b) the person engages in conduct; and
15
(c) the conduct contravenes the requirement.
16
Criminal penalty:
100 penalty units.
17
Note:
Subsection 133BL(2) provides a defence to liability under this
18
subsection.
19
Strict liability offence
20
(3) A person commits an offence if:
21
(a) the person is subject to a requirement under subsection (1);
22
and
23
(b) the person engages in conduct; and
24
(c) the conduct contravenes the requirement.
25
Criminal penalty:
10 penalty units.
26
Note:
Subsection 133BL(2) provides a defence to liability under this
27
subsection.
28
(4) Subsection (3) is an offence of strict liability.
29
Note:
For strict liability, see section 6.1 of the Criminal Code.
30
Meaning of approves a use of a credit card
31
(5)
The
licensee
approves a use of the credit card if:
32
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 21
(a) the licensee approves or authorises the use; or
1
(b) the licensee debits the consumer's account in respect of the
2
use.
3
133BI What is the default buffer and when does it apply?
4
(1)
The
default buffer for a credit card contract is 10% of the credit
5
limit of the contract.
6
(2) The default buffer applies to a credit card contract unless:
7
(a) the consumer who is the debtor under the contract has elected
8
not to have the default buffer apply to the contract; and
9
(b) the election has not been withdrawn.
10
Note 1:
The licensee must keep records of elections and withdrawals: see
11
section 133BK.
12
Note 2:
The fact that the default buffer applies to a credit card contract does
13
not of itself result in the licensee being obliged to approve any use of a
14
credit card in excess of the credit limit for the contract.
15
(3) The regulations may prescribe requirements to be complied with in
16
relation to making or withdrawing an election under subsection (2).
17
133BJ What is a supplementary buffer and when does it apply?
18
(1) Subject to this section, the regulations may provide for a
19
supplementary buffer to apply to a credit card contract.
20
(2) Regulations made for the purpose of subsection (1):
21
(a) must not provide for a supplementary buffer to apply to a
22
credit card contract unless the default buffer applies to the
23
contract; and
24
(b) must provide for the supplementary buffer to be additional to
25
the default buffer.
26
(3) Regulations made for the purpose of subsection (1) may provide
27
for all or any of the following:
28
(a) the amount, or a limit on the amount, of a supplementary
29
buffer (or how the amount, or any limit on the amount, is to
30
be determined);
31
(b) the making and withdrawal of elections to have a
32
supplementary buffer apply, and the keeping of records of
33
elections and withdrawals;
34
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
22 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
(c) offences against the regulations;
1
(d) civil penalties for contraventions of the regulations.
2
(4) The penalties for offences referred to in paragraph (3)(c) must not
3
be more than 50 penalty units for an individual or 250 penalty units
4
for a body corporate.
5
(5) The civil penalties referred to in paragraph (3)(d) must not be more
6
than 500 penalty units for an individual or 2,500 penalty units for a
7
body corporate.
8
133BK Records of elections and withdrawals under section 133BI to
9
be kept
10
Requirement
11
(1) A licensee who is the credit provider under a credit card contract
12
must, in accordance with the requirements prescribed by the
13
regulations, keep a record of:
14
(a) elections made under subsection 133BI(2) in relation to the
15
contract that have been notified to the licensee; and
16
(b) withdrawals of such elections that have been notified to the
17
licensee.
18
Civil penalty:
2,000 penalty units.
19
Offence
20
(2) A person commits an offence if:
21
(a) the person is subject to a requirement under subsection (1);
22
and
23
(b) the person engages in conduct; and
24
(c) the conduct contravenes the requirement.
25
Criminal penalty:
50 penalty units.
26
133BL Regulations may prescribe circumstances in which
27
subsection 133BH(1) does not apply
28
(1) The regulations may prescribe circumstances in which subsection
29
133BH(1) does not apply to approval of the use of a credit card to
30
obtain cash, goods or services.
31
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 23
(2) For the purposes of subsections 133BH(1), (2) and (3), it is a
1
defence if the approval by a licensee of the use of a credit card
2
occurred in circumstances covered by regulations made for the
3
purpose of subsection (1) of this section.
4
Note:
For the purposes of subsections 133BH(2) and (3), a defendant bears
5
an evidential burden in relation to the matter in this subsection (see
6
subsection 13.3(3) of the Criminal Code).
7
133BM Credit provider to notify consumer of use of credit card in
8
excess of credit limit
9
Regulations may require licensee to notify consumer of use of
10
credit card in excess of credit limit
11
(1) The regulations may require a licensee who is the credit provider
12
under a credit card contract to notify the consumer who is the
13
debtor under the contract if the licensee becomes aware that the
14
debtor has used the card to obtain cash, goods or services in excess
15
of the credit limit for the contract.
16
(2) Without limiting subsection (1), regulations made for the purpose
17
of that subsection may deal with:
18
(a) how and when the licensee must notify the consumer; and
19
(b) the matters that must be included in the notification.
20
Requirement to comply with the regulations
21
(3) A licensee must comply with regulations made for the purpose of
22
subsection (1).
23
Civil penalty:
2,000 penalty units.
24
Offence
25
(4) A person commits an offence if:
26
(a) the person is subject to a requirement under subsection (3);
27
and
28
(b) the person engages in conduct; and
29
(c) the conduct contravenes the requirement.
30
Criminal penalty:
50 penalty units.
31
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
24 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
133BN Credit provider not to impose fees etc. because credit card
1
used in excess of credit limit
2
(1) This section applies if a credit card is used to obtain cash, goods or
3
services in excess of the credit limit for the contract.
4
(2) Subject to subsection (3), the licensee who is the credit provider
5
under the credit card contract must not, because the credit limit was
6
exceeded, impose any liability to pay fees or charges, or a higher
7
rate of interest, on the consumer who is the debtor under the
8
contract.
9
(3) Subsection (2) does not prohibit the licensee from imposing fees or
10
charges, or a higher rate of interest, if:
11
(a) a supplementary buffer applies to the credit card contract;
12
and
13
(b) the use of the card is covered by the supplementary buffer;
14
and
15
(c) any other requirements prescribed by the regulations are
16
complied with.
17
(4) For the purpose of subsection 23(1) of the National Credit Code
18
(and the other provisions of the Code that refer to, or apply in
19
relation to, that subsection):
20
(a) a liability to pay a fee or charge that is imposed contrary to
21
subsection (2) of this section is taken to be a credit fee or
22
charge that is prohibited by the Code; and
23
(b) a liability to pay interest that is imposed contrary to
24
subsection (2) of this section is taken to be an interest charge
25
under the credit card contract exceeding the amount that may
26
be charged consistently with the Code.
27
Note:
For the civil and criminal consequences of contravening subsection
28
23(1) of the National Credit Code, see subsections 23(2) to (4),
29
section 24, and Part 6, of the Code.
30
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 25
Division 6--Order of application of payments made under
1
credit card contracts
2
133BO Credit provider to apply payments in accordance with this
3
Division
4
Requirement
5
(1) If a payment (the relevant payment) is made under a credit card
6
contract:
7
(a) by or on behalf of the consumer who is the debtor under the
8
contract; and
9
(b) to the licensee who is the credit provider under the contract;
10
the licensee must apply the payment in accordance with this
11
Division (despite any provision to the contrary in the contract, any
12
other contract or instrument or any other law).
13
Civil penalty:
2,000 penalty units.
14
(2) To avoid doubt, an amount:
15
(a) that is credited to the consumer's account by the licensee;
16
and
17
(b) that is, or is in the nature of:
18
(i) a total or partial refund in relation to a transaction
19
entered into using the credit card; or
20
(ii) a total or partial reversal of such a transaction;
21
is not a payment to which subsection (1) applies.
22
Offence
23
(3) A person commits an offence if:
24
(a) the person is subject to a requirement under subsection (1);
25
and
26
(b) the person engages in conduct; and
27
(c) the conduct contravenes the requirement.
28
Criminal penalty:
100 penalty units.
29
Strict liability offence
30
(4) A person commits an offence if:
31
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
26 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
(a) the person is subject to a requirement under subsection (1);
1
and
2
(b) the person engages in conduct; and
3
(c) the conduct contravenes the requirement.
4
Criminal penalty:
10 penalty units.
5
(5) Subsection (4) is an offence of strict liability.
6
Note:
For strict liability, see section 6.1 of the Criminal Code.
7
133BP Agreement to apply payment against particular amount
8
owed
9
(1) This section applies if, at the time when the licensee applies the
10
relevant payment, the following conditions are satisfied:
11
(a) the consumer has requested the licensee to apply certain
12
payments made under the credit card contract against a
13
particular amount:
14
(i) owed by the consumer to the licensee under the
15
contract; and
16
(ii) in relation to which any other requirements prescribed
17
by the regulations are satisfied;
18
(b) the licensee has agreed to the request;
19
(c) the relevant payment is a payment to which the request
20
relates;
21
(d) neither the request, nor the agreement to the request, has been
22
withdrawn in accordance with this section.
23
(2) The licensee must apply the relevant payment against the amount
24
referred to in paragraph (1)(a) in accordance with the request.
25
(3) The consumer may withdraw the request at any time.
26
(4) The licensee may withdraw the agreement to the request, but only
27
if the consumer has consented to the withdrawal.
28
(5) The regulations may prescribe requirements to be complied with in
29
relation to any of the following:
30
(a) making a request under paragraph (1)(a);
31
(b) agreeing to a request under paragraph (1)(b);
32
(c) withdrawing a request under subsection (3);
33
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 27
(d) withdrawing agreement to a request under subsection (4);
1
(e) consenting under subsection (4) to the withdrawal of
2
agreement to a request.
3
133BQ Application of payment against last statement balance, with
4
higher interest debts to be discharged first
5
(1) Subject to subsection (2), the licensee must apply the relevant
6
payment (or any part of the relevant payment remaining after
7
complying with section 133BP) against so much as remains owing
8
of the closing balance shown in the last statement of account for
9
the credit card contract that the licensee gave the consumer before
10
the relevant payment was made.
11
(2) If different annual percentage rates apply to different parts of that
12
closing balance, the licensee must apply the relevant payment (or
13
any remaining part of the payment) first to the part of that balance
14
to which the highest rate applies, next to the part of that balance to
15
which the next highest rate applies, and so on.
16
133BR Application of any remaining part of the relevant payment
17
The licensee must apply any part of the relevant payment
18
remaining after complying with sections 133BP and 133BQ in
19
accordance with the terms of the credit card contract.
20
20 Subsection 23(1) of the National Credit Code (note)
21
Omit "Note", substitute "Note 1".
22
21 At the end of subsection 23(1) of the National Credit Code
23
Add:
24
Note 2:
This subsection also applies to liabilities imposed contrary to
25
section 133BN of the National Credit Act: see subsection (4) of that
26
section.
27
22 At the end of Division 3 of Part 2 of the National Credit
28
Code
29
Add:
30
Schedule 1 Amendments
Part 2 Amendments relating to credit cards
28 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
30B Regulations about credit card contracts
1
(1) The regulations may make provision in relation to any of the
2
following matters relating to interest charges under credit card
3
contracts:
4
(a) the day from which a daily percentage rate may be applied,
5
and the balance (or the part of a balance) to which it may be
6
applied;
7
(b) how matters relating to interest charges may be described in:
8
(i) credit card contracts; and
9
(ii) other documents or advertisements published or
10
broadcast by or on behalf of licensees who are credit
11
providers under credit card contracts.
12
(2) Regulations made for the purpose of subsection (1) may:
13
(a) provide for offences against the regulations; and
14
(b) provide for civil penalties for contraventions of the
15
regulations.
16
(3) The penalties for offences referred to in paragraph (2)(a) must not
17
be more than 50 penalty units for an individual or 250 penalty units
18
for a body corporate.
19
(4) The civil penalties referred to in paragraph (2)(b) must not be more
20
than 500 penalty units for an individual or 2,500 penalty units for a
21
body corporate.
22
(5) This Division has effect subject to regulations made for the
23
purpose of subsection (1).
24
23 Paragraph 33(2)(a) of the National Credit Code
25
Omit "continuing credit contract under which credit is ordinarily
26
obtained only by the use of a card", substitute "credit card contract".
27
24 Subsection 34(5) of the National Credit Code
28
Omit "continuing credit contract under which credit is ordinarily
29
obtained only by the use of a card", substitute "credit card contract".
30
25 Subsection 204(1) of the National Credit Code
31
Insert:
32
Amendments Schedule 1
Amendments relating to credit cards Part 2
National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011
No. , 2011 29
credit card has the same meaning as in subsection 133BA(2) of the
1
National Credit Act.
2
26 Subsection 204(1) of the National Credit Code
3
Insert:
4
credit card contract has the same meaning as in subsection
5
133BA(1) of the National Credit Act.
6
27 Subsection 204(1) of the National Credit Code
7
(paragraph (b) of the definition of credit fees and
8
charges)
9
Omit "continuing credit contracts under which credit is ordinarily
10
obtained only by the use of a card", substitute "credit card contracts".
11
28 Subsection 204(1) of the National Credit Code
12
Insert:
13
credit limit has the same meaning as in section 5 of the National
14
Credit Act.
15
16
Schedule 2 Application and transitional provisions
30 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill
2011 No. , 2011
Schedule 2--Application and transitional
1
provisions
2
3
National Consumer Credit Protection (Transitional and
4
Consequential Provisions) Act 2009
5
1 At the end of the Act
6
Add:
7
Schedule 4--Other application and
8
transitional provisions
9
Part 1--Application provisions for the National
10
Consumer Credit Protection Amendment
11
(Home Loans and Credit Cards) Act 2011
12
1 Definitions
13
In this Part:
14
amended Act means the National Consumer Credit Protection Act 2009
15
as amended by Part 2 of Schedule 1 to the National Consumer Credit
16
Protection Amendment (Home Loans and Credit Cards) Act 2011.
17
commencement means the commencement of Part 2 of Schedule 1 to
18
the National Consumer Credit Protection Amendment (Home Loans and
19
Credit Cards) Act 2011.
20
2 Application of Divisions of Part 3-2B of the amended Act
21
(1)
Division 4 of Part 3-2B of the amended Act applies to credit card
22
contracts whether entered into before, on or after commencement.
23
(2)
Divisions 5 and 6 of Part 3-2B of the amended Act apply to credit card
24
contracts entered into after commencement.
25