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NATIONAL CONSUMER CREDIT PROTECTION REGULATIONS 2010 - REG 24 Activities exempt from being credit activities

NATIONAL CONSUMER CREDIT PROTECTION REGULATIONS 2010 - REG 24

Activities exempt from being credit activities

  (1)   For the purposes of paragraphs 110(1)(b) and (c) of the Act, this regulation:

  (a)   exempts certain credit activities, or classes of credit activities, from all of the provisions to which Part   2 - 6 of the Act applies; and

  (b)   modifies specified provisions for the purposes of the exemption mentioned in paragraph   (a).

Note:   Section   108 of the Act identifies the provisions to which Part   2 - 6 of the Act applies.

  (2)   Subject to subregulation   (3), the following credit activities are exempted:

  (a)   the providing of credit assistance by a lawyer in his or her professional capacity in relation to matters of law, legal interpretation or the application of the law to any facts;

  (b)   the providing of any credit assistance not mentioned in paragraph   (a) by a lawyer in the ordinary course of activities as a lawyer that is reasonably regarded as a necessary part of those activities.

  (3)   For subregulation   (2), the credit activity is exempted only if the lawyer providing the credit assistance does not hold out or advertise to consumers that he or she is able to provide credit services.

  (4)   Subject to subregulation   (4A), a credit activity, other than the provision of credit assistance mentioned in subregulation   (2), is exempted if it is engaged in by a lawyer in the following circumstances:

  (a)   the lawyer is acting:

  (i)   on the instructions of a client, an associate of the client or a relative of the client; and

  (ii)   in his or her professional capacity; and

  (iii)   in the ordinary course of his or her activities as a lawyer;

  (b)   the credit activity can reasonably be regarded as a necessary part of those activities;

  (c)   the lawyer has not received, and will not receive, from the client or from another person on behalf of the client a benefit in connection with those activities other than:

  (i)   the payment of professional charges in relation to those activities; and

  (ii)   reimbursement for expenses incurred or payment on account of expenses to be incurred on behalf of the client, an associate of the client or a relative of the client;

  (d)   the lawyer does not hold out or advertise to consumers that he or she is able to provide credit services or debt management services.

  (4A)   For the purposes of subregulation   (4), the credit activity is not exempted if:

  (a)   the credit activity is the provision of a debt management service; and

  (b)   a third party holds out or advertises to consumers that the lawyer is able to provide a debt management service; and

  (c)   there is an arrangement between the third party and the lawyer by which the third party regularly refers persons for the purpose of being provided a debt management service.

  (5)   A credit activity is exempted if:

  (a)   it is engaged in by a tax agent in the following circumstances:

  (i)   the tax agent is registered under Part   2 of the Tax Agent Services Act 2009 ;

  (ii)   the tax agent engages in the credit activity in the ordinary course of activities as a tax agent; and

  (b)   it is a credit activity mentioned in item   2 of the table in subsection   6(1) of the Act; and

  (c)   it does not involve providing a certificate or assessment (however described) relating to whether a consumer will be able to meet financial obligations under a credit contract or consumer lease.

  (6)   A credit activity is exempted if:

  (a)   the credit activity consists only of a person ( person 1 ) passing on, publishing, distributing or otherwise disseminating a document that was provided or approved by another person ( person 2 ); and

  (b)   person 2:

  (i)   is not acting on behalf of person 1; and

  (ii)   is a licensee, registered person or exempt special purpose funding entity; and

  (c)   person 1 is not otherwise required to hold an Australian credit licence to engage in credit activities; and

  (d)   either:

  (i)   for a consumer in relation to the credit activity mentioned in paragraph   (a):

  (A)   person 1 advises the consumer that person 2 is a licensee, registered person or exempt special purpose funding entity; and

  (B)   if person 2 is a licensee--person 1 gives the consumer the licence number of person 2; and

  (C)   if person 2 is an exempt special purpose funding entity--person 1 gives the consumer the licence number of the licensee who is party to the servicing agreement with the entity; or

  (ii)   a reasonable person would not consider that person 1 is the licensee, registered person or exempt special purpose funding entity in relation to credit activities being engaged in by person 2; and

  (e)   person 2 approved the content of the document.

  (7)   A credit activity is exempted if:

  (a)   the credit activity consists only of a person ( person 1 ) allowing another person ( person 2 ) to use person 1's business name, logo or trade mark in relation to:

  (i)   the passing on, publishing, distributing or other dissemination of a document; or

  (ii)   a credit contract, consumer lease, mortgage or guarantee provided or offered by person 2; or

  (iii)   a credit activity engaged in by person 2; and

  (b)   person 2:

  (i)   is not acting on behalf of person 1; and

  (ii)   is a licensee, registered person or exempt special purpose funding entity; and

  (c)   person 1 is not otherwise required to hold an Australian credit licence to engage in credit activities; and

  (d)   either:

  (i)   for a consumer in relation to a credit activity mentioned in paragraph   (a):

  (A)   the person performing the credit activity advises the consumer that person 2 is a licensee, registered person or exempt special purpose funding entity; and

  (B)   if person 2 is a licensee--the person performing the credit activity gives the consumer the licence number of person 2; and

  (C)   if person 2 is an exempt special purpose funding entity--person 1 gives the consumer the licence number of the licensee who is party to the servicing agreement with the entity; or

  (ii)   a reasonable person would not consider that person 1 is the licensee, registered person or exempt special purpose funding entity in relation to credit activities being engaged in by person 2.

  (8)   A credit activity is exempted if:

  (a)   the credit activity consists only of a person ( the provider ) giving to another person ( the inquirer ), in response to a request made by the inquirer to the provider, information about:

  (i)   the cost, or an estimate of the likely cost, of a credit contract or a consumer lease offered by a licensee, a registered person or an exempt special purpose funding entity; or

  (ii)   terms and conditions of a credit contract or a consumer lease offered by a licensee, a registered person or an exempt special purpose funding entity; and

  (b)   the provider could have complied with the request by giving the inquirer equivalent information about one or more other credit contracts or consumer leases offered by a licensee, a registered person or an exempt special purpose funding entity; and

  (c)   the provider did not give the inquirer that equivalent information.

  (9)   A credit activity is exempted if it is engaged in by a clerk or cashier in the ordinary course of activities as a clerk or cashier.

  (10)   For the purposes of paragraph   110(1)(c) of the Act, the definition of lawyer in subsection   5(1) of the Act is modified for the purposes of this regulation to provide that lawyer means a duly qualified legal practitioner and, in relation to a person, means such a practitioner acting for the person.