NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 - SECT 80 ASIC's power to make a banning order
NATIONAL CONSUMER CREDIT PROTECTION ACT 2009 - SECT 80
ASIC's power to make a banning orderMaking a banning order
(1) ASIC may, in writing, make one or more orders ( banning orders ) against a person:
(a) if ASIC suspends or cancels a licence of the person; or
(b) if the person becomes insolvent; or
(c) for a natural person--if the person is convicted of fraud; or
(d) if the person has:
(i) contravened any credit legislation; or
(ii) been involved in a contravention of a provision of any credit legislation by another person; or
(e) if ASIC has reason to believe that the person is likely to:
(i) contravene any credit legislation; or
(ii) be involved in a contravention of a provision of any credit legislation by another person; or
(f) if ASIC has reason to believe that the person is not a fit and proper person to:
(i) engage in one or more credit activities; or
(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001 ) of another person who engages in credit activities; or
(iii) control another person who engages in credit activities; or
(fa) if ASIC has reason to believe that the person is not adequately trained, or is not competent, to:
(i) engage in one or more credit activities; or
(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001 ) of another person who engages in credit activities; or
(iii) control another person who engages in credit activities; or
(fb) if the person has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA (within the meaning of the Corporations Act 2001 ) relating to a complaint that relates to:
(i) credit activities; or
(ii) a financial services business (within the meaning of the Corporations Act 2001 ); or
(fba) if all of the following apply:
(i) an individual who holds a licence, a partner in a partnership, a body corporate or a trustee of a trust is required to pay an amount in accordance with a relevant AFCA determination (within the meaning of the Corporations Act 2001 );
(ii) the CSLR operator (within the meaning of that Act) has paid, under section 1063 of that Act, an amount of compensation for the relevant AFCA determination;
(iii) at the time the payment is made by the CSLR operator, the person is the individual licensee, a partner in the partnership, an officer (within the meaning of that Act) of the body corporate or the trustee of the trust; or
(fc) if subsection (3) applies to the person in relation to 2 or more corporations; or
(g) if a prescribed State or Territory order is in force against the person; or
(h) in any other circumstances prescribed by the regulations.
(1A) Subsection (1) has effect subject to subsection (4).
When a person is not a fit and proper person
(2) For the purposes of paragraph (1)(f), ASIC must have regard to the matters in section 37B.
When a person has been an officer of a corporation unable to pay its debts
(3) This subsection applies to a person in relation to a corporation if, within the last 7 years:
(a) the person was an officer (within the meaning of the Corporations Act 2001 ) of the corporation when the corporation was:
(i) engaging in credit activities; or
(ii) carrying on a financial services business (within the meaning of the Corporations Act 2001 ); and
(b) the corporation was wound up either:
(i) while the person was such an officer of the corporation; or
(ii) within the 12 months after the person ceased to be such an officer of the corporation; and
(c) a liquidator lodged a report under subsection 533(1) of the Corporations Act 2001 (including that subsection as applied by section 526 - 35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ) about the corporation's inability to pay its debts.
Person to be given an opportunity to be heard
(4) Subject to subsection (5), if ASIC has not delegated its power to make a banning order against a person to a Financial Services and Credit Panel, ASIC may make the order only after giving the person 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.
Note: If ASIC delegates its power to make a banning order against a person to a Financial Services and Credit Panel, the panel may make the order only after holding a hearing in relation to the proposed order (see section 157 of the ASIC Act).
(5) ASIC may make a banning order against a person without giving the person the opportunities mentioned in subsection (4) if:
(i) ASIC has not delegated its power to make the banning order to a Financial Services and Credit Panel; or
(ii) ASIC exercises its power to make the banning order despite such a delegation; and
(b) subsection (6) or (6A) applies.
Note: See section 34AB of the Acts Interpretation Act 1901 (effect of delegation).
(6) This subsection applies if:
(a) ASIC's grounds for making a banning order against a person include that ASIC has suspended or cancelled a licence of the person (see paragraph (1)(a)); and
(b) the suspension or cancellation took place without a hearing under section 54.
(6A) This subsection applies if:
(a) ASIC's grounds for making a banning order against a person include that the person has been convicted of fraud (see paragraph (1)(c)); and
(b) the person has been convicted of serious fraud.
Copy of banning order to be given to the person
(7) ASIC must give a copy of a banning order to the person
against whom it was made.