Credit (Commonwealth Powers) Act 2010

Western Australia

CONTENTS

1. Short title 2

2. Commencement 2

3. Terms used 2

4. Adoption of National Credit legislation 3

5. Termination of the adoption 4

6. Reference of matters 4

7. Matters excluded from reference 5

8. Termination of references 6

9. Amendment of Commonwealth law 6

10. Effect of termination of amendment reference before termination of adoption of Commonwealth Acts7

Defined Terms

Western Australia

Credit (Commonwealth Powers) Act 2010

No. 13 of 2010

An Act to adopt the National Consumer Credit Protection Act 2009 (Commonwealth) as amended and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Commonwealth), and to refer certain matters relating to the provision of credit and certain other financial transactions to the Parliament of the Commonwealth, for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth.

[Assented to 25 June 2010]

The Parliament of Western Australia enacts as follows:

1. Short title

This is the Credit (Commonwealth Powers) 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.

3. Terms used

In this Act, unless the contrary intention appears —

adoption means the adoption under section 4(1);

amendment reference means the reference under section 6(1);

Commonwealth Credit instrument means any instrument (whether or not of a legislative character) that is made or issued under the National Credit legislation;

express amendment of the National Credit legislation means the direct amendment of the text of the National Credit legislation (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the National Credit legislation;

National Credit legislation means —

(a) the National Consumer Credit Protection Act 2009 (Commonwealth); and

(b) the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Commonwealth),

as in force from time to time;

referred credit matter means a matter relating to either of the following —

(a) credit, being credit the provision of which would be covered by the expression “provision of credit to which this Code applies” in the relevant version of the National Credit Code;

(b) consumer leases, being consumer leases each of which would be covered by the expression “consumer lease to which Part 11 applies” in the relevant version of the National Credit Code;

relevant version of the National Credit Code means the text of Schedule 1 to the National Consumer Credit Protection Act 2009 (Commonwealth) as originally enacted, and as later amended by the National Consumer Credit Protection Amendment Act 2010 (Commonwealth);

relevant version of the National Credit legislation means —

(a) the National Consumer Credit Protection Act 2009 (Commonwealth) as originally enacted, and as later amended by the National Consumer Credit Protection Amendment Act 2010 (Commonwealth); and

(b) the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Commonwealth).

4. Adoption of National Credit legislation

(1) The relevant version of the National Credit legislation is adopted within the meaning of section 51(xxxvii) of the Constitution of the Commonwealth.

(2) The adoption has effect for a period —

(a) beginning when this section commences; and

(b) ending at the end of the day fixed under section 5 as the day on which the adoption is to terminate,

but no longer.

5. Termination of the adoption

(1) The Governor may, at any time, by proclamation published in the Gazette, fix a day as the day on which the adoption is to terminate.

(2) The Governor may, by proclamation published in the Gazette, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 4) never to have been published.

(3) A revoking proclamation has effect only if published before the day fixed under subsection (1).

(4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.

6. Reference of matters

(1) Subject to section 7, any referred credit matter is referred to the Parliament of the Commonwealth, but only to the extent of the making of laws with respect to such a matter by making express amendments of the National Credit legislation.

(2) The reference of a matter under subsection (1) has effect only —

(a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth); and

(b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

(3) Despite any other provision, the reference has effect for a period —

(a) beginning when this section commences; and

(b) ending at the end of the day fixed under section 8 as the day on which the reference is to terminate,

but no longer.

7. Matters excluded from reference

(1) A matter referred by section 6(1) does not include —

(a) the matter of making provision with respect to the imposition or payment of State taxes, duties, charges or other imposts, however described; or

(b) the matter of making provision with respect to the general system for the recording of estates or interests in land and related information; or

(d) the matter of making a law that excludes or limits the operation of a State law, to the extent that the State law makes provision with respect to the creation, holding, transfer, assignment, disposal or forfeiture of a State statutory right.

(2) In this section —

forfeiture means confiscation, seizure, extinguishment, cancellation, suspension or any other forfeiture;

State law means —

(a) any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time;

(b) the general law, being the principles and rules of common law and equity to the extent that they have effect in the State from time to time;

State statutory right means a right, entitlement or authority that is granted by or under any Act of the State or any instrument made under such an Act, whenever enacted or made and as in force from time to time, other than a right, entitlement or authority that relates to —

(a) credit covered by paragraph (a) of the definition of referred credit matter in section 3; or

(b) a consumer lease covered by paragraph (b) of that definition.

8. Termination of references

(1) The Governor may, at any time, by proclamation published in the Gazette, fix a day as the day on which the amendment reference terminates.

(3) A revoking proclamation has effect only if published before the day fixed under subsection (1).

(4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.

9. Amendment of Commonwealth law

For the avoidance of doubt, it is the intention of the Parliament of the State that —

(a) the National Credit legislation may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has on account of a reference of any matters, or the adoption of the relevant version of the National Credit legislation, under section 51(xxxvii) of the Constitution of the Commonwealth; and

(b) the National Credit legislation may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from a reference of any matters, or the adoption of the relevant version of the National Credit legislation, under section 51(xxxvii) of the Constitution of the Commonwealth; and

(c) the National Credit legislation may have its operation affected, otherwise than by express amendment, at any time by provisions of Commonwealth Credit instruments.

10. Effect of termination of amendment reference before termination of adoption of Commonwealth Acts

(1) If the amendment reference is terminated but the adoption of the relevant version of the National Credit legislation is not terminated, the termination of the amendment reference does not affect —

(a) laws that were made under the amendment reference (but not repealed) before that termination (whether or not they have come into operation before that termination); or

(b) the continued operation in the State of the National Credit legislation as in operation immediately before that termination or as subsequently amended or affected by —

(i) laws referred to in paragraph (a) that come into operation after that termination; or

(ii) provisions referred to in section 9(b) or (c).

(2) Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless the adoption is terminated.

(3) Subsection (1) does not apply to or in relation to an amendment of the National Credit legislation that is excluded from the operation of this section by the proclamation that terminates the amendment reference.

(4) For the purposes of subsection (1) —

(a) the laws referred to in subsection (1)(a) include Commonwealth Credit instruments; and

(b) the reference in subsection (1)(b) to the National Credit legislation as in operation immediately before the termination of the amendment reference includes that legislation as affected by Commonwealth Credit instruments that have come into operation before that time.

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Defined Terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined Term Provision(s)

adoption.............................................................................................................................3

amendment reference.......................................................................................................3

Commonwealth Credit instrument..................................................................................3

express amendment..........................................................................................................3

forfeiture........................................................................................................................7(2)

National Credit legislation...............................................................................................3

referred credit matter........................................................................................................3

relevant version of the National Credit Code...............................................................3

relevant version of the National Credit legislation......................................................3

State law........................................................................................................................7(2)

State statutory right.....................................................................................................7(2)