Western Australia
Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010
CONTENTS
Part 1 — Preliminary
1. Short title 2
2. Commencement 2
3. Terms used 2
Part 2 — Consumer Credit (Western Australia) Act 1996 repealed
Division 1 — Repeal
4. Consumer Credit (Western Australia) Act 1996 repealed 3
Division 2 — Transitional Provisions
5. Proceedings 3
6. Arrangements for conduct of proceedings 3
7. Information 4
Division 3 — Consequential Provisions
8. Bills of Sale Act 1899 amended 4
9. Credit Act 1984 amended 5
10. Door to Door Trading Act 1987 amended 5
11. Hire‑Purchase Act 1959 amended 6
12. Road Traffic Act 1974 amended 6
13. Supreme Court Act 1935 amended 6
14. Transport Co‑ordination Act 1966 amended 6
Part 3 — Credit (Administration) Act 1984 amended
Division 1 — Credit (Administration) Act 1984 amended
15. Act amended 7
16. Section 4 amended 7
17. Section 6 amended 7
18. Section 9 amended 8
19. Section 10 amended 8
20. Section 11 amended 8
21. Section 12 amended 8
22. Section 13 amended 9
23. Section 14 amended 9
24. Section 15 amended 9
25. Section 17 amended 9
26. Section 21 amended 10
27. Section 23 amended 10
28. Part III deleted 10
29. Part IV deleted 10
30. Section 44AA and 44AB inserted 11
44AA. Arrangements for administration of this Act 11
44AB. Information 11
31. Part VA heading amended 12
32. Section 44A amended 12
33. Section 44B amended 13
34. Section 44C amended 13
35. Section 44D amended 14
Division 2 — Consequential provisions
36. Credit Act 1984 amended 14
Part 4 — Finance Brokers Control Act 1975 amended
Division 1 — Finance Brokers Control Act 1975 amended
37. Act amended 16
38. Section 4 amended 16
39. Section 7 amended 16
40. Section 9A and 9B inserted 17
9A. Arrangements with ASIC 17
9B. Information 17
41. Section 17 amended 18
42. Section 24 amended 18
43. Section 25 amended 19
44. Section 26 amended 19
45. Section 27A inserted 19
27A. No further grants of licences 19
46. Section 30 amended 19
47. Section 31 amended 20
48. Section 32 amended 20
49. Section 34 amended 20
50. Section 35 amended 21
51. Sections 36, 37 and 38 deleted 21
52. Section 40A amended 21
53. Section 41 amended 21
54. Section 42 amended 22
55. Section 43 amended 22
56. Section 44 amended 22
57. Section 45 amended 22
58. Section 46 amended 23
59. Section 48 amended 23
60. Section 49 amended 23
61. Section 50 amended 23
62. Section 53 amended 23
63. Section 54 amended 24
64. Section 60 amended 24
65. Section 61 amended 24
66. Section 66 amended 24
67. Section 68 amended 25
68. Section 69 amended 25
69. Section 72 amended 25
70. Sections 73 to 80 deleted 26
71. Section 82 amended 26
72. Section 82A deleted 26
73. Section 83 amended 26
74. Section 84 deleted 27
75. Section 85 amended 27
76. Section 92B deleted 28
77. Section 95 amended 28
Division 2 — Consequential provisions
78. Housing Societies Act 1976 amended 28
79. Settlement Agents Act 1981 amended 28
Part 5 — Finance Brokers Control Act 1975 repealed
Division 1 — Repeal
80. Finance Brokers Control Act 1975 repealed 30
Division 2 — Transitional Provisions
81. Housing Societies Repeal Act 2005 amended 30
82. State Administrative Tribunal Act 2004 amended 30
Western Australia
Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010
No. 14 of 2010
An Act to amend or repeal various Acts as a consequence of the National Consumer Credit Protection Act 2009 (Commonwealth).
[Assented to 25 June 2010]
The Parliament of Western Australia enacts as follows:
Part 1 — Preliminary
1. Short title
This is the Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010.
2. Commencement
This Act comes into operation as follows —
(a) sections 1 and 2 — on the day on which this Act receives the Royal Assent;
(b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
3. Terms used
In this Act, unless the contrary intention appears —
ASIC means the Australian Securities and Investments Commission;
CEO means the chief executive officer of the Department principally assisting the Minister in the administration of the Credit Act 1984 and the Credit (Administration) Act 1984.
Part 2 — Consumer Credit (Western Australia) Act 1996 repealed
Division 1 — Repeal
4. Consumer Credit (Western Australia) Act 1996 repealed
The Consumer Credit (Western Australia) Act 1996 is repealed.
Division 2 — Transitional Provisions
5. Proceedings
(1) Proceedings brought in relation to a provision of the Consumer Credit (Western Australia) Code —
(a) which are not proceedings to which the National Consumer Credit Protection Act 2009 (Commonwealth) Schedule 1 item 4 applies; and
(b) which upon section 4 coming into operation are pending before a court,
are to be dealt with under the Consumer Credit (Western Australia) Act 1996 despite the repeal of that Act.
(2) Proceedings brought in relation to a provision of the Consumer Credit (Western Australia) Code which upon section 4 coming into operation are pending before the State Administrative Tribunal are to be dealt with under the Consumer Credit (Western Australia) Act 1996 despite the repeal of that Act.
6. Arrangements for conduct of proceedings
(1) The CEO may make an arrangement with ASIC about the conduct of any proceedings to which section 5 applies.
(2) In particular, an arrangement may provide —
(a) for the performance of functions and the exercise of powers conferred by subsection (3) on ASIC; or
(b) for the performance of functions or the exercise of powers of the CEO in relation to the conduct of proceedings to which section 5 applies by staff members of ASIC.
(3) Subject to subsection (4), ASIC has the functions and powers of the CEO in relation to the conduct of proceedings to which section 5 applies.
(4) ASIC must not perform a function or exercise a power conferred by subsection (3) except in accordance with an arrangement under this section.
7. Information
(1) This section applies to information obtained by the CEO in connection with the administration or enforcement of the Consumer Credit (Western Australia) Act 1996 or the Consumer Credit (Western Australia) Code.
(2) The CEO may —
(a) disclose information to which this section applies; or
(b) give copies of records which contain information to which this section applies and which are in the CEO’s possession or under the CEO’s control,
to ASIC for the purpose of the administration or enforcement of the National Consumer Credit Protection Act 2009 (Commonwealth).
Division 3 — Consequential Provisions
8. Bills of Sale Act 1899 amended
(1) This section amends the Bills of Sale Act 1899.
(2) In section 17S(2)(b) delete “Consumer Credit (Western Australia) Code” and insert:
National Credit Code (Commonwealth)
9. Credit Act 1984 amended
(1) This section amends the Credit Act 1984.
(2) In section 19A(2)(b)(i) delete “the credit contract does” and insert:
the credit contract as made did
(3) Delete section 19B(2) and insert:
(2) If the credit provider under a contract to which this Act continues to apply acts in accordance with —
(a) in respect of any action before [reference date], the Consumer Credit (Western Australia) Code section 34, 35, 66 to 69, 78 to 99, 163, 171, 172 or 173; or
(b) in respect of any action on or after [reference date], the National Credit Code section 36, 37, 72 to 75, 85 to 107, 185, 194, 195 or 196,
the credit provider is taken to have acted in accordance with the corresponding provision of this Act.
10. Door to Door Trading Act 1987 amended
(1) This section amends the Door to Door Trading Act 1987.
(2) In section 16(2) delete “and the Consumer Credit (Western Australia) Code”.
11. Hire‑Purchase Act 1959 amended
(1) This section amends the Hire‑Purchase Act 1959.
(2) In section 2 in the definition of hire‑purchase agreement paragraph (g) delete “Consumer Credit (Western Australia) Code;” and insert:
National Credit Code (Commonwealth);
(3) Delete section 2B.
12. Road Traffic Act 1974 amended
(1) This section amends the Road Traffic Act 1974.
(2) In section 78A in the definition of lent:
(a) delete “Consumer Credit Code;” and insert:
National Credit Code (Commonwealth);
(b) after “the Hire‑Purchase Act 1959 or” delete “is”.
13. Supreme Court Act 1935 amended
(1) This section amends the Supreme Court Act 1935.
(2) Delete section 31(1).
14. Transport Co‑ordination Act 1966 amended
(1) This section amends the Transport Co‑ordination Act 1966.
(2) In section 4 in the definition of owner paragraph (ab) delete “Consumer Credit (Western Australia) Code” and insert:
National Credit Code (Commonwealth)
Part 3 — Credit (Administration) Act 1984 amended
Division 1 — Credit (Administration) Act 1984 amended
15. Act amended
This Part amends the Credit (Administration) Act 1984.
16. Section 4 amended
(1) In section 4 delete the definition of Code.
(2) In section 4 insert in alphabetical order:
ASIC means the Australian Securities and Investments Commission;
Code means the Consumer Credit (Western Australia) Code as in force from time to time before the referral day;
pending application means an application for a credit provider’s licence made under section 9 which immediately before the referral day has been neither granted under section 12(1) nor refused under section 12(2) or (4);
referral day means the day on which the Credit (Commonwealth Powers) Act 2010 section 4 comes into operation;
17. Section 6 amended
Before section 6(1) insert:
(1A) On and after the referral day, subsections (1) and (2) have no effect.
18. Section 9 amended
Before section 9(1) insert:
(1A) Despite anything in this Act, on and after the referral day no application for a credit provider’s licence is to be made.
19. Section 10 amended
Before section 10(1) insert:
(1A) This section does not apply to a pending application.
20. Section 11 amended
Before section 11(1) insert:
(1A) This section does not apply to a pending application.
21. Section 12 amended
Before section 12(1) insert:
(1A) Despite anything in this Act, on and after the referral day the Commissioner is neither to grant nor to refuse a pending application.
22. Section 13 amended
Before section 13(1) insert:
(1A) Despite anything in this Act, on and after the referral day the Commissioner is not to impose, vary or revoke conditions or restrictions subject to which a licence is to be held.
23. Section 14 amended
In section 14(2) delete “A licensee shall” and insert:
Before the referral day, a licensee must
24. Section 15 amended
In section 15 delete “The holder of a credit provider’s licence shall” and insert:
Before the referral day, the holder of a credit provider’s licence must
25. Section 17 amended
(1) In section 17(1) after “Where” insert:
at any time before the referral day
(2) In section 17(2) after “ceasing” insert:
at any time before the referral day
26. Section 21 amended
(1) After section 21(1) insert:
(2A) Subsection (1) does not apply in respect of a year commencing on an anniversary falling on or after the referral day.
(2B) Regulations may provide for the Commissioner to repay to a licensee part or all of a fee paid by the licensee under subsection (1) in respect of a year commencing on an anniversary falling within 12 months before the referral day.
(2) After section 21(2) insert:
(3A) A statement is not required under subsection (2) in respect of a year commencing on an anniversary falling on or after the referral day, or within 12 months before the referral day.
27. Section 23 amended
In section 23(4) delete “believing that —” and insert:
believing that at any time before the referral day —
28. Part III deleted
Delete Part III.
29. Part IV deleted
Delete Part IV.
30. Section 44AA and 44AB inserted
At the end of Part V insert:
44AA. Arrangements for administration of this Act
(1) The Commissioner may make an arrangement with ASIC about any matter connected with the administration of this Act.
(2) In particular, an arrangement may provide —
(a) for the performance of functions and the exercise of powers conferred by subsection (3) by ASIC; or
(b) for the performance of functions or the exercise of powers of the Commissioner under this Act by staff members of ASIC.
(3) Subject to subsection (4), ASIC has the functions and powers of the Commissioner under this Act.
(4) ASIC must not perform a function or exercise a power conferred by subsection (3) except in accordance with an arrangement under this section.
44AB. Information
(1) This section applies to information obtained by the Commissioner in connection with the administration or enforcement of this Act.
(2) The Commissioner may —
(a) disclose information to which this section applies; or
(b) give copies of records which contain information to which this section applies and which are in the Commissioner’s possession or under the Commissioner’s control,
to ASIC for the purpose of the administration or enforcement of the National Consumer Credit Protection Act 2009 (Commonwealth).
31. Part VA heading amended
In the heading to Part VA delete “Fund” and insert:
Account
32. Section 44A amended
(1) Delete section 44A(1) and (2) and insert:
(1) An agency special purpose account called the Consumer Credit Account is established under the Financial Management Act 2006 section 16.
(2) In section 44A(3):
(a) delete “If subsection (2)(b) applies, moneys” and insert:
Moneys
(b) delete “Consumer Credit Fund” and insert:
Consumer Credit Account
(c) delete “under section 38 of the Financial Administration and Audit Act 1985.” and insert:
under the Financial Management Act 2006 section 37.
Note: The heading to amended section 44A is to read:
Establishment of Consumer Credit Account
33. Section 44B amended
(1) Delete section 44B(1).
(2) In section 44B(2) delete “Consumer Credit Fund” and insert:
Consumer Credit Account
(3) In section 44B(2)(b) and (c) delete “Consumer Credit Fund;” and insert:
Consumer Credit Account;
Note: The heading to amended section 44B is to read:
Payments to Consumer Credit Account
34. Section 44C amended
(1) In section 44C:
(a) delete “Consumer Credit Fund” and insert:
Consumer Credit Account
(b) delete paragraph (a) and insert:
(a) the payment of such moneys as are approved by the Minister, on the terms approved by the Minister, for providing information, advice or research relevant to the protection of the interests of consumers; and
(c) after paragraph (b) insert:
and
Note: The heading to amended section 44C is to read:
Payments from Consumer Credit Account
35. Section 44D amended
In section 44D:
(a) delete “section 52 of the Financial Administration and Audit Act 1985,” and insert:
Financial Management Act 2006 section 52,
(b) delete “Consumer Credit Fund” and insert:
Consumer Credit Account
Note: The heading to amended section 44D is to read:
Report on operations of Consumer Credit Account
Division 2 — Consequential provisions
36. Credit Act 1984 amended
(1) This section amends the Credit Act 1984.
(2) In section 5 delete the definition of licensed credit provider and insert:
licensed credit provider means the holder of an Australian credit licence for the time being in force under the National Credit Protection Act 2009 (Commonwealth);
Part 4 — Finance Brokers Control Act 1975 amended
Division 1 — Finance Brokers Control Act 1975 amended
37. Act amended
This Division amends the Finance Brokers Control Act 1975.
38. Section 4 amended
(1) In section 4 delete the definition of Treasurer.
(2) In section 4 insert in alphabetical order:
ASIC means the Australian Securities and Investments Commission;
referral day means the day on which the Credit (Commonwealth Powers) Act 2010 section 5 comes into operation;
(3) In section 4 in the definition of supervisor delete “broker;” and insert:
broker.
39. Section 7 amended
In section 7:
(a) delete paragraphs (a), (b) and (d);
(b) after paragraph (c) insert:
and
40. Section 9A and 9B inserted
After section 8 insert:
9A. Arrangements with ASIC
(1) The Commissioner may make an arrangement with ASIC about the conduct of any investigation under Division 2 or 2A, or the conduct of any proceedings under this Act.
(2) In particular, an arrangement may provide —
(a) for the performance of functions and the exercise of powers conferred by subsection (3) on ASIC; or
(b) for the performance of functions or the exercise of powers of the Commissioner in relation to the conduct of any investigation under Division 2 or 2A, or the conduct of any proceedings under this Act by staff members of ASIC.
(3) Subject to subsection (4), ASIC has the functions and powers of the Commissioner in relation to the conduct of any investigation under Division 2 or 2A, or the conduct of any proceedings under this Act.
(4) ASIC must not perform a function or exercise a power conferred by subsection (3) except in accordance with an arrangement under this section.
9B. Information
(1) This section applies to information obtained by the Commissioner in connection with the administration or enforcement of this Act.
(2) The Commissioner may —
(a) disclose information to which this section applies; or
(b) give copies of records which contain information to which this section applies and which are in the Commissioner’s possession or under the Commissioner’s control,
to ASIC for the purpose of the administration or enforcement of the National Consumer Credit Protection Act 2009 (Commonwealth).
41. Section 17 amended
In section 17(1) —
(a) after “a licensee” insert:
has acted or
(b) after “the licence and is” insert:
or was
42. Section 24 amended
Before section 24(1) insert:
(1A) Despite anything in this Act, on and after the referral day no application for a licence is to be made.
43. Section 25 amended
Before section 25(1) insert:
(1A) Despite anything in this Act, on and after the referral day no objection to the grant or renewal of a licence is to be made or determined.
44. Section 26 amended
Before section 26(1) insert:
(1A) On and after the referral day, subsection (1) has no effect.
45. Section 27A inserted
After section 26 insert:
27A. No further grants of licences
Despite anything in this Act, on and after the referral day, no licences are to be granted under section 27, 28 or 29.
46. Section 30 amended
Before section 30(1) insert:
(1A) Despite anything in this Act, on the referral day every licence which has not already expired or been surrendered expires.
47. Section 31 amended
Delete section 31(1) and insert:
(1) Despite anything in this Act, on and after the referral day no licence is to be renewed under subsection (2).
48. Section 32 amended
Before section 32(1) insert:
(1A) Despite anything in this Act, on and after the referral day —
(a) no application for the renewal of a licence is to be made; and
(b) no licence is to be renewed.
49. Section 34 amended
(1) In section 34(1) delete “shall” and insert:
must until the referral day
(2) In section 34(3) delete “shall” and insert:
must until the referral day
(3) After section 34(4) insert:
(5) No condition to which a licence is subject may be varied or revoked under subsection (4) on or after the referral day.
50. Section 35 amended
After section 35(5) insert:
(6) Where —
(a) a licence has expired under section 30(1A); and
(b) the Commissioner is reasonably satisfied, having regard to the period of time since the licence has expired, that the former licensee is unlikely to have, or to incur, an undischarged liability in respect of moneys which came to his hands before the referral day,
the Commissioner may release a bond or guarantee lodged by the former licensee under subsection (1) and may return to the former licensee any document associated with the bond or guarantee.
51. Sections 36, 37 and 38 deleted
Delete sections 36, 37 and 38.
52. Section 40A amended
Before section 40A(1) insert:
(1A) On and after the referral day, subsections (2) and (3) have no effect.
53. Section 41 amended
Before section 41(1) insert:
(1A) On and after the referral day, subsections (1) and (2) have no effect.
54. Section 42 amended
(1) At the beginning of section 42 insert:
(1) On and after the referral day, subsection (2) has no effect.
(2) In section 42 delete “A licensee shall exhibit,” and insert:
(2) A licensee shall exhibit,
55. Section 43 amended
Before section 43(1) insert:
(1A) On and after the referral day, subsection (1) has no effect.
56. Section 44 amended
Before section 44(1) insert:
(1A) On and after the referral day, subsections (5) and (6) have no effect.
57. Section 45 amended
Before section 45(1) insert:
(1A) On and after the referral day, subsections (1), (2) and (3) have no effect.
58. Section 46 amended
In section 46 after “Where” insert:
before the referral day
59. Section 48 amended
Before section 48(1) insert:
(1A) On and after the referral day, subsections (1), (2), (3) and (4) have no effect.
60. Section 49 amended
Before section 49(1) insert:
(1A) On and after the referral day, subsections (1), (2), (3), (4), (5) and (6) have no effect.
61. Section 50 amended
Before section 50(1) insert:
(1A) On and after the referral day, subsections (1), (2), (3), (4), (5), (6), (7), (8) and (9) have no effect.
62. Section 53 amended
In section 53(1) after “to be made” insert:
under this Division
63. Section 54 amended
In section 54 after “separate audits” insert:
under this Division
64. Section 60 amended
(1) In section 60(1) after “his trust accounts” insert:
under this Division
(2) In section 60(4) after “are being audited” insert:
under this Division
65. Section 61 amended
In section 61 after “a finance broker’s trust accounts” insert:
under this Division
66. Section 66 amended
In section 66 after “has in any year” insert:
for which an audit of trust accounts under this Division would otherwise be required
67. Section 68 amended
In section 68 after “trust accounts of a finance broker” insert:
maintained in compliance with section 48
68. Section 69 amended
In section 69:
(a) in paragraph (a) after “nominated by the Commissioner” insert:
under section 68
(b) after “his trust accounts” insert:
maintained in compliance with section 48
(c) delete “of the licensee”.
69. Section 72 amended
(1) In section 72(1)(a) delete “the trust account of” and insert:
a trust account maintained in compliance with section 48 by
(2) In section 72(1)(b)(i) delete “the trust account of” and insert:
a trust account maintained in compliance with section 48 by
(3) In section 72(1)(b)(ii) delete “the trust account” and insert:
a trust account
70. Sections 73 to 80 deleted
Delete sections 73, 74, 75, 76, 77, 78, 79 and 80.
71. Section 82 amended
(1) In section 82(a) delete “is” and insert:
was immediately before the referral day
(2) In section 82(b) delete “occurred but who is no longer a licensed finance broker.” and insert:
occurred.
72. Section 82A deleted
Delete section 82A.
73. Section 83 amended
(1) In section 83(1):
(a) delete “one or more” and insert:
both
(b) in paragraph (b) delete “him; and” and insert:
him.
(c) delete paragraph (c);
(d) after paragraph (a) insert:
and
(2) In section 83(2):
(a) delete “if —” and insert:
if, before the referral day —
(b) in paragraph (b) delete “has,”;
(c) in paragraph (b) delete “constitutes” and insert:
constituted
(d) in paragraph (c) delete “is acting or has”.
(3) Delete section 83(3).
74. Section 84 deleted
Delete section 84.
75. Section 85 amended
(1) Delete section 85(1) and (2).
(2) In section 85(3):
(a) delete “is or is not, or”;
(b) delete “the date of or a date referred to,” and insert:
the date referred to
(c) delete “certificate, or as to any other matter contained in a register,” and insert:
certificate
(3) Delete section 85(4).
76. Section 92B deleted
Delete section 92B.
77. Section 95 amended
After section 95(2)(d) insert:
(ea) provide for the refund, on the expiry of a licence under section 30(1A), of the whole or part of a fee paid on the grant or most recent renewal of the licence;
Division 2 — Consequential provisions
78. Housing Societies Act 1976 amended
(1) This section amends the Housing Societies Act 1976.
(2) In section 78(3) delete “a person who is a licensed finance broker under the Finance Brokers Control Act 1975” and insert:
a person who holds an Australian credit licence issued under the National Consumer Credit Protection Act 2009 (Commonwealth)
79. Settlement Agents Act 1981 amended
(1) This section amends the Settlement Agents Act 1981.
(2) In Schedule 1 clause 6 delete “of another State or a Territory of the Commonwealth” and insert:
of another State, of a Territory or of the Commonwealth
Part 5 — Finance Brokers Control Act 1975 repealed
Division 1 — Repeal
80. Finance Brokers Control Act 1975 repealed
The Finance Brokers Control Act 1975 is repealed.
Division 2 — Transitional Provisions
81. Housing Societies Repeal Act 2005 amended
(1) This section amends the Housing Societies Repeal Act 2005.
(2) If, when this section comes into operation, the Housing Societies Repeal Act 2005 section 27 has not come into operation, repeal section 27.
82. State Administrative Tribunal Act 2004 amended
(1) This section amends the State Administrative Tribunal Act 2004.
(2) In Schedule 1 delete “Finance Brokers Control Act 1975”.
