CREDIT (COMMONWEALTH POWERS) BILL 2010 Explanatory Memoranda
CREDIT (COMMONWEALTH POWERS) BILL 2010
Credit (Commonwealth Powers) Bill
2010
Introduction Print
EXPLANATORY MEMORANDUM
General
The purposes of this Bill are to adopt the National Consumer Credit
Protection Act 2009 (the NCCP Act) of the Commonwealth, as amended at
the time of adoption by the National Consumer Credit Protection Amendment
Act 2010 of the Commonwealth, to adopt the National Consumer Credit
Protection (Transitional and Consequential Provisions) Act 2009 (the
Commonwealth Transitional Act) of the Commonwealth, and to refer certain
matters relating to credit and consumer leases to the Parliament of the
Commonwealth and to make related provisions and transitional and
consequential provisions.
The Bill is to be enacted for the purposes of section 51(xxxvii) of the
Constitution of the Commonwealth, which enables State Parliaments to refer
matters to the Commonwealth Parliament, or to adopt Commonwealth laws
that have been enacted pursuant to such referrals.
This Bill will form part of the new national credit protection regime which is
being established under Commonwealth law.
The reference to support the enactment of the initial Commonwealth
legislation was provided by Tasmania by the enactment of the Credit
(Commonwealth Powers) Act 2009 of that State, which commenced on
17 November 2009.
In view of the enactment of the Commonwealth laws, the remaining States
have decided to adopt the Commonwealth laws under section 51(xxxvii) of
the Constitution.
The Bill also provides for the referral of certain matters to the
Commonwealth Parliament in order to support certain amendments to the
NCCP Act and the Commonwealth Transitional Act (an amendment
reference).
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Since the enactment of the initial Tasmanian legislation, the Commonwealth
and the States have also agreed on certain exclusions (or "carve outs") to the
amendment reference. These carve outs are reflected in this Bill. They will
also be recognised under the NCCP Act by amendments made to that Act by
the National Consumer Credit Protection Amendment Act 2010 of the
Commonwealth.
The Bill repeals and amends certain Victorian laws relating to consumer
credit. It makes consequential amendments to certain Victorian Acts.
The Bill includes transitional provisions dealing with the treatment of
proceedings under existing Victorian laws relating to consumer credit and
with the transfer of functions to the Australian Securities and Investments
Commission (ASIC).
Clause Notes
PART 1--PRELIMINARY
Clause 1 describes the purposes of the proposed Act. These are--
· to adopt the text of the NCCP Act and the
Commonwealth Transitional Act and to refer certain
matters relating to the provision of credit and certain
other financial transactions to the Commonwealth for
the purposes of section 51(xxxvii) of the Constitution of
the Commonwealth;
· to make related provisions, transitional provisions and
consequential provisions.
Clause 2 provides that the Bill commences operation on a day or days to
be proclaimed. The Bill does not include a default date on which
all provisions will commence if not proclaimed earlier, because
the commencement date for certain provisions is contingent upon
the commencement of certain provisions in the National Credit
legislation.
PART 2--ADOPTION AND REFERENCE OF MATTERS
Clause 3 This clause defines certain words and expressions used in the
proposed Act. The definitions reflect the fact that there is to be
an adoption of the Commonwealth laws together with the
conferral of an amendment reference.
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It is also necessary to distinguish for the purposes of the Bill
between--
· the National Credit legislation, which means--
(a) the NCCP Act; and
(b) the Commonwealth Transitional Act,
as in force from time to time; and
· the relevant version of the National Credit legislation,
which means--
(a) the NCCP Act as originally enacted, and as later
amended by the National Consumer Credit
Protection Amendment Act 2010 of the
Commonwealth; and
(b) the Commonwealth Transitional Act.
Clause 4 This clause deals with the adoption of the relevant version of the
National Credit legislation. The clause provides that the adoption
is under section 51(xxxvii) of the Commonwealth Constitution.
Clause 5 This clause allows the Governor in Council to fix a day as the
day on which the adoption is to terminate.
Clause 6 This clause refers to the Commonwealth Parliament the matters
of amending the National Credit legislation (the amendment
reference).
The amendment reference will enable the Commonwealth to
make express amendments to its National Credit legislation about
the provisions of credit to which the National Credit Code applies
and about consumer leases to which Part 11 of that Code applies.
Clause 7 This clause provides for the exclusion from the amendment
reference of certain matters relating to the imposition of State
taxes, the system for recording of estates or interests in land, the
priority of estates or interests in real property and State statutory
rights.
Clause 8 This clause allows the Governor in Council to fix a day as the
day on which the amendment reference is to terminate.
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Clause 9 This clause makes it clear that the National Credit legislation
may be amended on account of any reference or adoption, or by
Commonwealth laws or instruments enacted or made on the basis
of powers vested in the Commonwealth apart from any reference
or adoption.
Clause 10 This clause makes it clear that the separate termination of the
period of the amendment reference does not affect laws already
in place. Accordingly, the amendment reference continues to
have effect to support those laws unless the adoption is also
terminated.
PART 3--EXCLUDED MATTER AND TRANSITIONAL AND
CONSEQUENTIAL MATTERS
Division 1--Preliminary
Clause 11 defines certain terms and expressions used in Part 3 of the
proposed Act, including the following--
The expression Commonwealth commencement is defined to
have the same meaning that commencement has in section 4 of
the Commonwealth Transitional Act. Section 4 of the
Commonwealth Transitional Act defines commencement as
"the start of 1 July 2010, or a later day prescribed by the
regulations".
The expression National Credit Code is defined to mean the
National Credit Code in Schedule 1 to the NCCP Act.
The expression old Act is defined to mean the Consumer Credit
(Victoria) Act 1995 as in force before the Commonwealth
commencement.
The expression old Code is defined to mean the Consumer Credit
(Victoria) Code as in force before the Commonwealth
commencement.
The expression old proceedings is defined to have the same
meaning as in Item 4 of Schedule 1 to the Commonwealth
Transitional Act. Under item 4 of Schedule 1, old proceedings
are those in relation to which the following elements are
satisfied--
· the proceedings were brought in a court before the
Commonwealth commencement;
· the proceedings were brought in relation to a provision
of the old Code;
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· the proceedings were not enforcement proceedings, or
appeal or review proceedings, in relation to an order of
a court;
· the proceedings had not been concluded or terminated
before the Commonwealth commencement; and
either
· if the proceedings are final proceedings-no final
determination has been made before Commonwealth
commencement; or
· if the proceedings are interlocutory proceedings-no
final determination has been made in relation to the
primary proceedings.
Old proceedings do not include proceedings brought in the
Victorian Civil and Administrative Tribunal under the old Code
before Commonwealth commencement.
The expression old regulations is defined to mean the Consumer
Credit (Victoria) Regulations as in force before the
Commonwealth commencement.
Division 2--Excluded Matter
Clause 12 is a declaration for the purposes of section 24 of the NCCP Act,
which allows a law of a State to declare a matter to be an
excluded matter in relation to the whole or a part of the
Commonwealth credit legislation.
Clause 12(1) declares that the application of section 29 of the
NCCP Act to prescribed persons is, for the purposes of section 24
of the NCCP Act, an excluded matter.
Section 29 of the NCCP Act prohibits a person from engaging in
credit activities if the person does not hold a licence.
Clause 12 ensures that prescribed persons are not required to hold
a licence and are therefore not subject to the obligations of
licensees or registered persons under the NCCP Act and the
Commonwealth Transitional Act.
Clause 12(2) defines the expression prescribed person to mean
any of the following--
· the Crown or a public or local body or authority
constituted by or under an Act;
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· a body corporate empowered by an Act to lend money
or provide credit to the extent that the lending or money
or provision of credit is in accordance with that Act;
· a person, not being a body corporate, authorised by an
Act to lend money or provide credit to the extent that
the lending of money or providing of credit is in
accordance with that Act;
· a council within the meaning of the Local Government
Act 1989.
Division 3--Transitional Provisions
Clause 13 is a transitional provision dealing with court proceedings under
the old Code and old regulations. Clause 13 provides that on the
Commonwealth commencement, old proceedings cease to be
proceedings in a court of the State of Victoria.
Clause 13 interacts with item 4 of Schedule 1 to the
Commonwealth Transitional Act. Under Item 4 of Schedule 1,
on the Commonwealth commencement, new proceedings
equivalent to the old proceedings are taken to have been brought
in the same court exercising federal jurisdiction under a provision
in the National Credit Code that corresponds to the provision in
the old Credit Code under which the old proceedings were
brought.
The combined effect of clause 13 and the Commonwealth
Transitional Act is that old proceedings which are on foot in a
State court at the Commonwealth commencement are terminated
and substituted with equivalent new proceedings under the
corresponding provisions of the National Credit Code, with the
same court exercising its federal jurisdiction.
The Commonwealth Transitional Act includes provisions
creating equivalent rights and liabilities to those which parties
accrued under the old Code prior to the Commonwealth
commencement.
Clause 14 is a transitional provision providing that proceedings brought
under the old Act (other than old proceedings) prior to the
Commonwealth commencement may be continued, and that any
order made by the court in the proceedings may be appealed
against, reviewed or enforced as if the old Act were still in force.
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Clause 15 is a transitional provision concerning proceedings in the
Victorian Civil and Administrative Tribunal (VCAT).
Clause 15(1) provides that proceedings commenced in VCAT
under the old Act, the old Code or the old regulations, before the
Commonwealth commencement that had not been finally
determined before that commencement may be continued, and
that orders made by VCAT in relation to those proceedings may
be appealed against, reviewed or enforced as if the old Act, old
Code and old regulations were still in force. This clause ensures
that any VCAT proceeding commenced before Commonwealth
commencement under a provision of the old Code, old Act, or old
regulations, may continue to its conclusion.
Clause 15(2) prevents new proceedings being brought in VCAT
under a provision of the old Code or old regulations after the
Commonwealth commencement. If a person has accrued a right
or a liability under the old Code, but has not commenced
proceedings before the Commonwealth commencement, that
person will be entitled to commence proceedings in relation to
those rights and liabilities after the Commonwealth
commencement in an appropriate forum under the NCCP Act.
The Commonwealth Transitional Act recognises rights and
liabilities accrued under instruments to which the old Code
applied before the Commonwealth commencement.
Clause 16 is a transitional provision dealing with the cessation of the
operation of the old Code.
Clause 16(1) provides that, except as otherwise provided by the
Bill or by the Commonwealth Transitional Act, the old Code
ceases to apply to contracts made before commencement to
which the National Credit Code applies by the operation of
item 3 of Schedule 1 to the Commonwealth Transitional Act.
Under item 3(2) of Schedule 1 to the Commonwealth
Transitional Act, with certain exceptions and modifications, the
National Credit Code will apply to a contract or other instrument
where--
· the contract or instrument was entered before the
Commonwealth commencement;
· the contract or instrument was in force immediately
before the Commonwealth commencement, and
· the old Code applied to the contract or instrument
immediately before the Commonwealth
commencement.
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Clause 16(2) provides that on and from the Commonwealth
commencement the old Code ceases to apply to any right or
liability in respect of which a person has acquired, accrued or
incurred a substitute right or liability under item 11 or 12 of
Schedule 1 to the Commonwealth Transitional Act.
Those provisions of the Commonwealth Transitional Act create
equivalent rights and liabilities under the National Credit Code to
those that existed before the Commonwealth commencement
under provisions of the old Code that are carried over to the
National Credit Code and under provisions of the old Code that
are not carried over to the National Credit Code.
Clause 17 allows the Minister to enter into an agreement or arrangement
with ASIC for the performance of functions or the exercise of
powers by ASIC as an agent for the State.
Clause 18 provides for the maintenance of certain registers.
Clause 18(1) provides that on and from the Commonwealth
commencement the Registrar of the Business Licensing
Authority shall have possession and control of the Register of
Credit Providers established under section 19 of the old Act.
Clause 18(2) provides that, despite the repeal of section 37S of
the old Act, on and from the Commonwealth commencement the
Director of Consumer Affairs Victoria retains possession and
custody of the register of finance brokers and agents.
Clause 19 allows the Director to disclose information to ASIC that is
reasonably required by ASIC in the performance or exercise of
its functions or powers under the National Credit legislation.
Division 4--Amendment of Consumer Credit (Victoria) Act 1995
Clause 20 repeals Part 1 (other than sections 1, 2 and 4), Part 2, Part 3,
Part 4, Part 4A, Part 5 (other than sections 39 and 40) and Part 6
of the Consumer Credit (Victoria) Act 1995. From 1 July
2010, the Commonwealth, through the NCCP Act, will be
responsible for the regulation of those matters to which the
repealed provisions relate. Sections 39 and 40 of the Consumer
Credit (Victoria) Act 1995, which regulate maximum rates of
interest on certain credit contracts, are not repealed.
Clause 21 substitutes section 38 of the Consumer Credit (Victoria) Act
1995 with a provision providing that the Consumer Credit Fund
(established under the Credit Administration Act 1984) is the
fund into which amounts of civil penalties awarded in proceedings
commenced under a provision of the Consumer Credit (Victoria)
Code before the Commonwealth commencement are to be paid.
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This clause allows for civil penalties awarded after
Commonwealth commencement to be paid into the Consumer
Credit Fund, where those proceedings were commenced before
Commonwealth commencement under the provisions of the
Consumer Credit (Victoria) Code.
Clause 22 makes necessary consequential amendments to Part 5 of the
Consumer Credit (Victoria) Act 1995.
Clause 22(1) inserts proposed section 38AA after the heading
to Part 5 of the Consumer Credit (Victoria) Act 1995.
Clause 22(1) defines certain expressions used in that Part.
The defined expressions include credit contract and credit
provider, which are defined by reference to the meaning of those
terms in the National Credit Code.
Clause 22(2) substitutes section 39(2) of the Consumer Credit
(Victoria) Act 1995, which relates to caps on the annual
percentage rate of interest for credit contracts. Presently,
section 39(2) is expressed not to affect or limit certain powers
of the court under the Consumer Credit (Victoria) Code.
The substituted provision ensures that section 39(2) does not
affect or limit powers of the court under similar provisions of
the National Credit Code.
Division 5--Amendment of the Credit Act 1984
Clause 23 amends section 5(1) of the Credit Act 1984 to substitute a new
definition for registered credit provider. The amended definition
refers to a person registered or licensed to be a credit provider
under the NCCP Act.
Division 6--Amendment of the Credit (Administration) Act 1984
Clause 24 repeals the definitions of registered credit provider and
registration in section 4 of the Credit (Administration) Act
1984. These definitions are redundant with the transfer of
licensing and registration functions to the Commonwealth.
Clause 25 substitutes section 5 of the Credit (Administration) Act 1984 to
omit a reference to the Consumer Credit (Victoria) Act 1995.
The reference to the Consumer Credit (Victoria) Act 1995 is
redundant for the purposes of section 5 of the Credit
(Administration) Act 1984, which deals with the meanings of
expressions used in that Act.
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Clause 26 substitutes the definition of the expression Credit Acts in
section 10A of the Credit (Administration) Act 1984 to remove
a reference to the Consumer Credit (Victoria) Code.
Clause 27 substitutes section 12 of the Credit (Administration) Act 1984,
which concerns the functions of the Director. The substituted
provision removes references to specific functions of the Director
that arose under provisions that the proposed Act will repeal.
Clause 28 amends section 13 of the Credit (Administration) Act 1984,
dealing with the powers of the Director in relation to proceedings
on behalf of consumers, to refer to the Consumer Credit
(Victoria) Code as in force before the repeal of Part 2 of the
Consumer Credit (Victoria) Act 1995.
Clause 29 amends section 15(2) of the Credit (Administration) Act 1984,
which prohibits the disclosure of certain information by the
Director or the Director's staff. The Clause amends section 15(2)
to include a reference to the proposed Credit (Commonwealth
Powers) Act 2010 among the exceptions to the prohibition,
ensuring that the disclosure of information by a person in relation
to legal proceedings or the performance of a duty under the
proposed Act does not contravene section 15(2).
Clause 30 amends the definition of Credit Acts in section 17 of the Credit
(Administration) Act 1984 to refer to the Consumer Credit
(Victoria) Code as in force before the repeal of Part 2 of the
Consumer Credit (Victoria) Act 1995. The clause inserts a
new definition of relevant credit provider, being a person who
makes or has made a relevant provision of credit.
Clause 30(2) defines the expression relevant provision of credit
to include--
· provisions of credit under a contract regulated by the
Credit Act 1984 or to which section 39 or 40 of the
Consumer Credit (Victoria) Act 1995 apply;
· provisions of credit to which the Consumer Credit
(Victoria) Code applied before its repeal; or
· engaging in finance broking within the meaning of
Part 4 of the Consumer Credit (Victoria) Act 1995
before its repeal.
The insertion of these definitions ensures that the relevant
functions and powers under the Credit (Administration) Act
1984 continue to exist in relation to relevant provisions of credit.
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Clause 31 substitutes certain expressions in section 19(1) of the Credit
Administration Act 1984. The expression registered credit
provider is substituted with the expression relevant credit
provider and the expression carries on business as a credit
provider or finance broker is substituted with the expression
carries on or has carried on the business of making relevant
provisions of credit.
Clause 32 amends section 20 of the Credit Administration Act 1984.
Clause 32(1) inserts a reference to the expression relevant
provision of credit and substitutes the expression registered
credit provider with the expression relevant credit provider in
section 20(1) of the Credit Administration Act 1984.
Clause 32(2) amends section 20(2) of the Credit
(Administration) Act 1984. It substitutes the expression
registered credit provider in subsections 20(2)(a) and (a)(ii) with
the expression relevant credit provider. It repeals subsections
20(2)(a)(i),(iii) and (iv), which become redundant upon the
transfer of responsibilities to the Commonwealth.
Subclauses 32(3), (4), (5) and (6) amend sections 20(a), 22(1)(a),
23(a), 25(a) and 25(b) of the Credit (Administration) Act 1984
by substituting the expression registered credit provider with the
expression relevant credit provider.
Clause 33 inserts a new provision after section 42(2)(c) of the Credit
(Administration) Act 1984 which enables the transfer of
information to an agency of the Commonwealth to the extent
reasonably required to bring into operation the NCCP Act and the
Commonwealth Transitional Act. The amendment provides an
additional exception to the requirement under section 42(1) that
inspectors keep confidential the information they acquire in
carrying out their functions under the Credit (Administration)
Act 1984.
Clause 34 amends section 86AA(2)(b) of the Credit (Administration) Act
1984 to omit references to specific sections of the Consumer
Credit (Victoria) Act 1995. The reference to the Consumer
Credit (Victoria) Act 1995 will remain, ensuring that payments
received in relation to proceedings commenced under relevant
provisions of that Act prior to the repeal or amendment of those
provisions may be paid into the Consumer Credit Fund.
Clause 35 amends section 86(1) of the Credit (Administration) Act 1984
to omit a reference to the Consumer Credit (Victoria) Code.
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Clause 36 repeals certain provisions of the Credit (Administration)
Act 1984.
Clause 36(1) repeals sections 89A and 89B, dealing with the
production of information to the Business Licensing Authority by
credit providers and finance brokers, as the Business Licensing
Authority will no longer have licensing or registration functions
with respect to credit providers or finance brokers.
Clause 36(2) repeals section 95(1)(j), as a power to make
regulations regarding the records to be kept by credit providers in
relation to credit contracts entered into after Commonwealth
commencement is not necessary.
Division 7--Amendment of the Business Licensing Authority
Act 1998
Clause 37 amends the definition of business licensing Act in section 3 of
the Business Licensing Authority Act 1998 to repeal a reference
to the Consumer Credit (Victoria) Act 1995. The Business
Licensing Authority Act 1998 confers certain functions on the
Business Licensing Authority with respect to the business
licensing Acts. As a result of the Bill, the Business Licensing
Authority will no longer require these functions in relation to
credit providers and finance brokers under the Consumer Credit
(Victoria) Act 1995.
Clause 38 repeals section 6(a)(i) of the Business Licensing Authority Act
1998. The provision, which confers functions on the Business
Licensing Authority with respect to Consumer Credit (Victoria)
Act 1995, will no longer be required.
Clause 39 amends section 18(3)(b)(v) of the Business Licensing Authority
Act 1998 to insert a new subparagraph allowing for the
disclosure of information to an agency of the Commonwealth to
the extent reasonably required to bring into operation the NCCP
Act and the Commonwealth Transitional Act.
Clause 40 repeals paragraphs (e) and (f) in the definition of licence in
section 20 of the Business Licensing Authority Act 1998, to
remove references to functions relating to credit providers and
finance brokers.
Clause 41 repeals sections 22(6) and 22(7) of the Business Licensing
Authority Act 1998. These sections deal with the issuing of
notices to suspend the registration of a credit provider or to
suspend a finance broker's right to engage in finance broking.
The registration and licence suspension provisions are no longer
required with respect to credit providers and finance brokers.
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Division 8--Amendment of the Duties Act 2000
Clause 42 amends the Duties Act 2000 so that references to the Consumer
Credit (Victoria) Code in section 132(i) and to the Consumer
Credit Code of all States and Territories in section 169(5) are
references to that Code before its repeal.
Division 9--Amendments to the Fair Trading Act 1999
Clause 43 amends section 3 of the Fair Trading Act 1999 by inserting a
definition of the National Credit Code and by substituting a
reference to the Consumer Credit (Victoria) Code with a
reference to the National Credit Code in the definition of hire
purchase agreement.
Clause 44 amends sections 64(3), 67D(3), 67I(3), 72(3) and the note at the
foot of section 67M(1)(a) of the Fair Trading Act 1999, by
substituting references to the Consumer Credit (Victoria) Code
with references to the National Credit Code.
Clause 45 amends the definition of a consumer dispute in section 105(5) of
the Fair Trading Act 1999 to clarify that it is not intended that
the Director should be entitled to institute proceedings under a
provision of the NCCP Act.
Clause 46 amends the definition of licence in section 106C of the Fair
Trading Act 1999 to repeal references to the registration and
licensing of credit providers and finance brokers. The licensing
and registration of credit providers will be a function of ASIC
under the NCCP Act.
Clause 47 repeals sections 106E(6) and 106E(7) of the Fair Trading Act
1999. These sections deal with the issuing of notices to suspend
the registration of a credit provider or to suspend a finance
broker's right to engage in finance broking. The licensing and
registration of credit providers and finance brokers will be a
function of ASIC under the NCCP Act.
Clause 48 inserts a provision after section 106P(2)(c) of the Fair Trading
Act 1999 to exempt from the prohibition against disclosing
information acquired by the Director in carrying out his or her
functions the giving of information to a Commonwealth agency
to the extent reasonably required to bring into operation the
NCCP Act and the Commonwealth Transitional Act.
Clause 49 amends section 163(2) of the Fair Trading Act 1999, by
substituting a reference to the Consumer Credit (Victoria) Code
with a reference to the National Credit Code.
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Division 10--Amendment of the Goods Act 1958
Clause 50 amends paragraph (f) of the definition of hire purchase
agreement in section 120(1) of the Goods Act 1958 by
substituting a reference to the Consumer Credit (Victoria) Code
with a reference to the National Credit Code.
Division 11--Interpretation of Legislation Act 1984
Clause 51 repeals paragraph (k) of the definition of Code in section 32(1) of
the Interpretation of Legislation Act 1984 to remove the
reference to the Consumer Credit (Victoria) Code in that
definition.
Clause 52 repeals section 38C of the Interpretation of Legislation Act
1984, which deals with references to the Consumer Credit
(Victoria) Code and the Consumer Credit (Victoria) Regulations.
Division 12--Amendment of the Motor Car Traders Act 1986
Clause 53 amends section 43(6) of the Motor Car Traders Act 1986 to
substitute a reference to section 125 of the Consumer Credit
(Victoria) Code with a reference to section 135 of the National
Credit Code, which is the corresponding section of the National
Credit Code.
Clause 54 inserts proposed section 43A after section 43 of the Motor Car
Traders Act 1986. The proposed section 43A is a declaration
for the purposes of section 24 of the NCCP Act, which allows a
law of a State to declare a matter to be an excluded matter in
relation to the whole or part of the Commonwealth credit
legislation.
The proposed section 43A declares that the matter provided for in
section 43 is an excluded matter in relation to section 135 of the
NCCP Act. Section 43 of the Motor Car Traders Act 1986
deals with the cooling period where a person purchases a motor
vehicle from a motor car trader in Victoria, and allows for the
termination of an agreement in accordance with that section.
Section 43A confirms that the provisions in section 135 of the
National Credit Code, which also deal with the termination of
agreements, do not apply to the termination of agreements under
section 43 of the Motor Car Traders Act 1986.
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Clause 55 amends section 49 of the Motor Car Traders Act 1986, which
deals with the notification of contraventions of that Act by credit
providers. Clause 55 substitutes a reference to the Consumer
Credit (Victoria) Code with a reference to the National Credit
Code.
Clause 56 amends section 76(4A)(e) of the Motor Car Traders Act 1986,
which describes persons who are not entitled to make claims
against the Motor Car Traders' Guarantee Fund. Clause 56
substitutes a reference to finance brokers under Part 4A of the
Consumer Credit (Victoria) Act 1995 with a reference to
persons who act as intermediaries within the meaning of
section 9 of the NCCP Act.
Division 13--Amendment to the Partnership Act 1958
Clause 57 inserts proposed section 28A after section 28 of the Partnership
Act 1958. The proposed section 28A is a declaration for the
purposes of section 24 of the NCCP Act, which allows a law of a
State to declare a matter to be an excluded matter in relation to
the whole or part of the Commonwealth credit legislation.
The proposed section 28A declares that the matter provided for in
section 28(3) of the Partnership Act 1958 is an excluded matter
in relation to the whole of the NCCP Act. Section 28(3) provides
that, in the absence of an agreement to the contrary, a partner
who makes advances or payments to a partnership in advance of
his or her share in the partnership is entitled to receive certain
amounts of interest on such advances or payments. It is not
intended that an entitlement to interest on partnership advances
arising under the Partnership Act 1958 should bring a matter
within the operation of the NCCP Act. The proposed
section 28A confirms that the NCCP Act does not apply to the
circumstances set out in section 28(3) of the Partnership
Act 1958.
Division 14--Amendment of the Supreme Court Act 1986
Clause 58 amends section 57(1) of the Supreme Court Act 1986 by
substituting a reference to the Consumer Credit (Victoria) Code
with a reference to the Consumer Credit (Victoria) Act 1995
and the National Credit Code.
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Division 15--Amendment of the Victorian Civil and
Administrative Tribunal Act 1998
Clause 59 repeals and amends certain provisions of the Victorian Civil and
Administrative Tribunal Act 1998.
The clause repeals paragraph (c) of the definition of credit
enactment in section 148(10), and paragraph (c) of the definition
of credit enactment in clause 2 of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998.
The clause amends section 62(2)(f) and clauses 7 and 8(1)(b) of
Schedule 1 to the Victorian Civil and Administrative Tribunal
Act 1988 to omit references to the Consumer Credit (Victoria)
Code.
The repeals and amendments remove redundant references to the
Consumer Credit (Victoria) Code, under which no new
proceedings will be commenced in VCAT after the
Commonwealth commencement.
PART 4--REPEAL OF CERTAIN PROVISIONS
Clause 60 provides for the automatic repeal of this Part and Divisions 4
to 15 of Part 3 on the first anniversary of the first day on which
all of those provisions are in operation. The repeal of Divisions 4
to 15 of Part 3 does not affect the continuing operation of the
amendments made by those Divisions (see section 15(1) of the
Interpretation of Legislation Act 1984).
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