Credit (Administration) Act 1984
Western Australia
Credit (Administration) Act 1984
CONTENTS
Part I — Preliminary
1.Short title2
2.Commencement2
4.Terms used in this Act2
5.Business of providing credit4
Part II — Licences
Division 1 — Requirement to be licensed
6.Credit providers to be licensed5
7.Exemptions from licensing5
Division 2 — Licensing provisions
9.Application for licence7
10.Investigation of application9
11.Objection to application10
12.Grant or refusal of licence10
13.Conditions of, and restrictions on, licence14
14.Name under which licensee may operate14
15.Partnerships15
16.Form of licence15
17.Change of address of licensee16
18.Register of licensees16
19.Inspection of register17
20.Term of, and authority conferred by, licence17
21.Annual fee and annual statement17
22.Surrender of licence20
Division 3 — Disciplinary action
23.Disciplinary action against licensee20
Division 4 — Review
24.Application for review24
Division 5 — General
25.Death of licensee24
26.Production of licence for endorsement25
Part V — Functions of Commissioner in relation to proceedings
41.Commissioner may proceed for another26
42.Conduct of proceedings taken by Commissioner27
43.Intervention by Minister or Commissioner27
44.Investigation of application to Tribunal28
44AA.Arrangements for administration of this Act28
44AB.Information29
Part VA — Consumer Credit Account
44A.Establishment of Consumer Credit Account30
44B.Payments to Consumer Credit Account30
44C.Payments from Consumer Credit Account31
44D.Report on operations of Consumer Credit Account31
Part VI — Miscellaneous
45.Variation of application of Act32
46.General penalty33
47.Limitation33
48.Offence by body corporate33
49.Who may take proceedings for offences33
50.Offences to be dealt with by magistrate34
51.Evidence34
52.Certain rights saved35
53.Commissioner35
53A.Delegation by Commissioner36
53B.Judicial notice36
54.Power of entry36
55.Production of records38
56.Secrecy39
56A.Protection from liability for wrongdoing40
57.Extensions of time41
58.Service of documents41
59.Service by post42
60.Application of Financial Management Act 2006 and Auditor General Act 200642
61.Regulations43
Notes
Compilation table44
Provisions that have not come into operation46
Defined Terms
Western Australia
Credit (Administration) Act 1984
An Act to provide for the licensing of credit providers; to facilitate inquiries into matters relating to the provision of credit; and for certain other purposes.
This Act may be cited as the Credit (Administration) Act 1984 1.
The provisions of this Act shall come into operation on such day or days as is or are respectively fixed by proclamation 1.
[3.Deleted by No. 55 of 2004 s. 180.]
In this Act, except in so far as the context or subject‑matter otherwise indicates or requires —
annual percentage rate has the same meaning as it has in the Credit Act 1984 or in section 25(1) of the Code, as the case may require;
ASIC means the Australian Securities and Investments Commission;
bank means —
(a)an ADI (authorised deposit‑taking institution) as defined in section 5 of the Banking Act 1959 of the Commonwealth; or
(b)a bank constituted by a law of a State, a Territory or the Commonwealth;
body corporate does not, except in the case of a credit provider that is a body corporate, include —
(a)a body corporate constituted under the Strata Titles Act 1966 2, by the proprietor or proprietors of lots within the meaning of that Act; or
(b)a company owning an interest in land and having a memorandum or articles of association conferring on owners of shares in the company the right to occupy certain parts of a building erected on that land,
all or the majority of which lots or parts, as the case may be, are intended to be occupied as dwellings;
Code means the Consumer Credit (Western Australia) Code as in force from time to time before the referral day;
cognate Acts means this Act, the Credit Act 1984 and the Code;
Commissioner means the person for the time being designated as the Commissioner under section 53;
contract to which this Act applies means —
(a)a regulated contract; and
(b)a contract that is a credit contract, or is to be regarded as a credit contract, to which the Code applies;
credit has the same meaning as it has in the Credit Act 1984 or in section 4(1) of the Code, or in both, as the case may require;
credit contract has the same meaning as it has in the Credit Act 1984;
credit provider has the same meaning as it has in the Credit Act 1984 or in the Code, as the case may require;
Department means the department of the Public Service principally assisting in the administration of this Act;
exempt credit provider means a credit provider to whom, by reason of section 7 or an order under section 45, the provisions of section 6(1) and (2) do not apply;
licence means a credit provider’s licence under this Act;
loan contract has the same meaning as it has in the Credit Act 1984;
officer, in relation to a body corporate, includes a person who is an officer of the body corporate within the meaning of the Corporations Act 2001 of the Commonwealth;
pastoral finance company means a person carrying on a business of financing pastoral pursuits or a business of stock or station agents to whom an order in force under section 11 of the Banking Act 1959 of the Commonwealth as amended and in force for the time being applies;
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);
record includes any book, account, document, paper or other source of information compiled, recorded or stored in written form, or on microfilm, or by electronic process, or in any other manner or by any other means;
referral day means the day on which the Credit (Commonwealth Powers) Act 2010 section 4 comes into operation;
regulated contract has the same meaning as it has in the Credit Act 1984;
regulated mortgage has the same meaning as it has in the Credit Act 1984;
trade or tie agreement means —
(a)a trade or tie agreement as defined in section 5(1) of the Credit Act 1984; and
(b)a contract, arrangement or understanding of the kind described in section 117(1)(a) of the Code.
[Section 4 amended by No. 47 of 1989 s. 7; No. 30 of 1996 s. 13; No. 57 of 1997 s. 39(10); No. 26 of 1999 s. 71(2); No. 10 of 2001 s. 56; No. 43 of 2003 s. 16(2); No. 55 of 2004 s. 181; No. 28 of 2006 s. 85; No. 14 of 2010 s. 16.]
5.Business of providing credit
In this Act, a reference to carrying on a business of providing credit includes a reference to carrying on the provision of credit in the course of or as part of or as incidental to or in connection with the carrying on of another business.
Division 1 — Requirement to be licensed
6.Credit providers to be licensed
(1A)On and after the referral day, subsections (1) and (2) have no effect.
(1)Subject to this Act, a person shall not carry on a business of providing credit unless the person is the holder of a credit provider’s licence.
Penalty: $10 000.
(2)Subject to this Act, a natural person shall not hold himself or herself out, and a body corporate shall not hold itself out, as carrying on a business of providing credit unless the person or body corporate, as the case may be, is the holder of a credit provider’s licence.
Penalty: $5 000.
[Section 6 amended by No. 14 of 2010 s. 17.]
(1)The provisions of section 6 do not apply to —
(a)the Crown or a public or local body or authority constituted by or under an Act;
(b)a bank;
(c)a body corporate that is registered under the Life Insurance Act 1945 of the Commonwealth 3 as amended and in force for the time being unless the only or principal business carried on by it is the business of providing credit;
(d)a body corporate authorised under the Insurance Act 1973 of the Commonwealth as amended and in force for the time being to carry on insurance business unless the only or principal business carried on by it is the business of providing credit;
(e)unless Part VII of the Insurance Act 1973 of the Commonwealth as amended and in force for the time being has ceased to have effect — a Lloyd’s underwriter, being an underwriter of the society known as Lloyd’s incorporated by the Imperial Act known as Lloyd’s Act 1871;
(f)a person conducting business as a pawnbroker under a pawnbroker’s licence held by or on behalf of the person under the Pawnbrokers and Second‑hand Dealers Act 1994;
(g)a pastoral finance company;
[(h), (i)deleted]
(j)any other person empowered by an Act or an Act of the Commonwealth to lend money or provide credit, in respect of the lending of money or provision of credit in accordance with that Act or that Act of the Commonwealth.
(2)A reference in section 6 to carrying on a business of providing credit does not include a reference to —
(a)providing credit otherwise than under a contract to which this Act applies; or
(b)collecting money due to a person whose licence has been surrendered, is suspended or has been cancelled.
[Section 7 amended by No. 47 of 1989 s. 8; No. 88 of 1994 s. 100; No. 30 of 1996 s. 13; No. 26 of 1999 s. 71(3); No. 12 of 2001 s. 51; No. 17 of 2005 s. 23; No. 46 of 2006 s. 23.]
[8.Deleted by No. 30 of 1996 s. 13.]
Division 2 — Licensing provisions
(1A)Despite anything in this Act, on and after the referral day no application for a credit provider’s licence is to be made.
(1)An application for a credit provider’s licence may be made to the Commissioner —
(a)by a natural person of or over the age of 18 years; or
(b)by a body corporate if all persons concerned in the management of the body corporate are of or over the age of 18 years.
(2)An application shall be in writing in a form approved by the Minister, shall be accompanied by the prescribed fee and shall be signed —
(a)where the application is made by a natural person —by that person; or
(b)where the application is made —
(i)by a body corporate having only 2 directors —by those directors; or
(ii)by a body corporate having more than 2 directors — by not fewer than 2 of those directors.
(3)An application shall specify —
(a)the name and address —
(i)where the application is made by a natural person — of that person; or
(ii)where the application is made by a body corporate — of each director of the body corporate;
(b)where the application is made by a body corporate — the date and place of incorporation of the body corporate, its corporate name and the address of its registered office or, if it is not incorporated in Australia, the address of the principal office in Australia;
(c)the address of the principal place in the State at which, and the name or names under which, the applicant intends to carry on business pursuant to the authority that would be conferred by the licence if it were granted;
(d)whether the applicant intends to carry on that business in partnership with another person;
(e)such matters as may be prescribed relating to the financial standing of applicants; and
(f)such other matters as may be prescribed.
(4)Where application is made for a licence and, before the application is granted or refused, a change occurs in the particulars specified in the application in accordance with subsection (3), the applicant shall, within 14 days after the occurrence of the change, give to the Commissioner notice, in writing signed by the applicant or, where the applicant is a body corporate, by a director of the body corporate, specifying particulars of the change.
Penalty: $1 000.
(5)An applicant for a licence shall, if required to do so by the Commissioner, provide the Commissioner with such particulars additional to those included in the application as the Commissioner requires.
(6)A person shall not in, or in relation to, an application under this section, a notice under subsection (4) or any particulars provided under subsection (5), make a statement that is false or misleading by reason of the inclusion therein of any false or misleading matter or the omission therefrom of any material matter.
Penalty: $5 000.
(7)It is a defence to a prosecution of a person for an offence under subsection (6) if the person proves that, when the application was made, the notice given or the particulars provided, the person —
(a)believed on reasonable grounds that the false matter was true;
(b)believed on reasonable grounds that the misleading matter was not misleading;
(c)in the case of an omission — believed on reasonable grounds that no material matter had been omitted; or
(d)in the case of an omission — did not know that the omitted matter was material.
[Section 9 amended by No. 55 of 2004 s. 182 and 209(1); No. 14 of 2010 s. 18.]
10.Investigation of application
(1A)This section does not apply to a pending application.
(1)Where an application for a licence has been made in accordance with section 9, the Commissioner may make such inquiries with respect to the applicant and the application as the Commissioner considers necessary.
[(2)deleted]
(3)The Commissioner of Police shall, if the Commissioner so requests, investigate an application received by the Commissioner under section 9 and, as soon as practicable after completing the investigation, make a report to the Commissioner on the investigation.
(4)As soon as practicable after the Commissioner receives an application and has the results of any investigation under this section, the Commissioner shall publish in a newspaper circulating generally throughout Western Australia a notice giving particulars of the application.
[Section 10 amended by No. 57 of 1997 s. 39(10); No. 55 of 2004 s. 183; No. 28 of 2006 s. 86; No. 14 of 2010 s. 19.]
(1A)This section does not apply to a pending application.
(1)At any time before the expiration of the period of 14 days that next succeeds publication of a notice under section 10(4) with respect to an application for a licence, or within such longer period as the Commissioner in a particular case allows, any person may lodge with the Commissioner an objection in writing to the granting of the application if the objection complies with subsection (2).
(2)An objection complies with this subsection if —
(a)it specifies the ground of the objection;
(b)the ground of the objection is a ground on which the Commissioner is required to refuse an application for a licence; and
(c)the person making the objection has, before the expiration of the period referred to in subsection (1), served on the applicant a copy of the objection.
[Section 11 amended by No. 55 of 2004 s. 184 and 209(1); No. 14 of 2010 s. 20.]
12.Grant or refusal of licence
(1A)Despite anything in this Act, on and after the referral day the Commissioner is neither to grant nor to refuse a pending application.
(1)
(2)An application for a licence made by a natural person shall be refused if it appears to the Commissioner that the person —
(a)has not attained the age of 18 years; or
(b)is disqualified from holding a licence; or
(c)is, according to the Interpretation Act 1984 section 13D, a bankrupt; or
(d)does not have, or is not likely to continue to have, sufficient financial resources to enable the person to carry on business pursuant to the authority that would be conferred by the licence if it were granted; or
(e)is not a person likely to carry on such a business honestly and fairly; or
(f)does not have sufficient expertise to enable the person to carry on such a business; or
(g)is in any other way not a fit and proper person to be the holder of a licence.
(3)Without affecting the generality of subsection (2)(g), the Commissioner may, in determining whether an applicant is not a fit and proper person to be the holder of a licence, have regard (if such be the case) to the fact that the applicant —
(a)has, during the period of 10 years that last preceded the making of the application, been convicted of, or served any part of a term of imprisonment for, an offence in Western Australia or elsewhere involving fraud or dishonesty;
(b)was, at the time of the making of the application, bound in relation to such an offence by a recognisance; or
(c)had, at the time of the making of the application, a charge pending against the applicant in relation to such an offence.
(4)An application for a licence made by a body corporate shall be refused if it appears to the Commissioner that —
(a)a person concerned in the management of the body corporate has not attained the age of 18 years;
(b)the body corporate is disqualified from holding a licence;
(c)the body corporate does not have, or is not likely to continue to have, sufficient financial resources to enable it to carry on business pursuant to the authority that would be conferred by the licence if it were granted;
(d)the body corporate is not likely to carry on such a business honestly and fairly;
(e)the officers of the body corporate are such that it would not have sufficient expertise to enable it to carry on such a business;
(f)the reputation of the body corporate is such that it would not be a fit and proper person to be the holder of a licence;
(g)an officer of the body corporate is disqualified from being an officer of a body corporate that is the holder of a licence;
(h)a director of, or a person concerned in the management of, the body corporate is not of good reputation or character or in any other way would not be a fit and proper person to be the holder of a licence if the director or person were to apply for the licence personally; or
(i)any person other than an officer of the body corporate who, in the opinion of the Commissioner, appears to have control, or substantial control, of the body corporate is not of good reputation and character or is not likely to exercise that control honestly and fairly.
(5)An application for a licence shall not be refused on a ground specified in subsection (2)(d) to (g) or (4)(c) to (i) unless the Commissioner —
(a)has informed the applicant of the ground; and
(b)has afforded the applicant and any person who, in accordance with section 11, has lodged an objection on that ground, an opportunity to make submissions and adduce evidence.
(6)Where an application for a licence is refused, the Commissioner shall forthwith, by notice in writing, inform the applicant and each objector (if any) to the granting of the application of the refusal and of the ground on which the refusal is based and inform the applicant of the right to apply to the State Administrative Tribunal for a review of the refusal, and the Commissioner shall, as soon as practicable, refund to the applicant so much of the application fee as is appropriate to be refunded.
(7)Where an application for a licence in respect of which an objection has been lodged in accordance with section 11 is granted, the Commissioner shall forthwith, by notice in writing, inform the person who lodged the objection of the granting of the application and the right to apply to the State Administrative Tribunal for a review of the decision to grant the application.
(8)Where an application for a licence is granted —
(a)the applicant shall be deemed to be the holder of the licence granted; and
(b)the Commissioner shall forthwith, by notice in writing, inform the applicant of the granting of the application and the right to apply to the State Administrative Tribunal for a review of any condition or restriction imposed.
(9)Notwithstanding anything in this section, the Commissioner may refrain from granting an application for a licence unless —
(a)where the applicant is not a body corporate — the applicant; or
(b)where the applicant is a body corporate — all of the directors and officers of the body corporate, or such of them as the Commissioner specifies or refers to,
has or have attended personally on the Commissioner and satisfied the Commissioner as to such relevant matters referred to in this section as the Commissioner thinks appropriate.
[Section 12 amended by No. 55 of 2004 s. 185, 209(1) and 210; No. 18 of 2009 s. 25; No. 14 of 2010 s. 21.]
13.Conditions of, and restrictions on, licence
(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.
(1)The Commissioner may —
(a)upon the granting of an application for a licence and at any other time, impose conditions or restrictions subject to which the licence is to be held; and
(b)upon application or of its own motion, at any time vary or revoke any of those conditions or restrictions.
(2)A licence is subject to —
(a)any prescribed conditions and restrictions; and
(b)any conditions and restrictions in force under subsection (1).
(3)The Commissioner shall not impose conditions or restrictions to which a licence is to be subject, or vary conditions or restrictions to which the licence is subject, unless the Commissioner has first afforded the applicant for, or, as the case may be, the holder of, the licence an opportunity to make written submissions with respect to the conditions or restrictions proposed to be imposed or varied.
[Section 13 amended by No. 55 of 2004 s. 186 and 209(1); No. 14 of 2010 s. 22.]
14.Name under which licensee may operate
(1)Subject to the Business Names Act 1962, a licence may authorise the holder to carry on business under a name or names in addition to or in substitution for the name of the licensee.
(2)Before the referral day, a licensee must not —
(a)carry on a business of providing credit;
(b)in the case of a natural person — hold himself or herself out as carrying on such a business; or
(c)in the case of a body corporate — hold itself out as carrying on such a business,
under a name or names other than the name of the licensee or the name or names under which the licensee is authorised so to do in accordance with subsection (1).
Penalty: $5 000.
(3)Upon application made in writing, the Commissioner may add or amend an endorsement referred to in section 16(1)(b).
[Section 14 amended by No. 55 of 2004 s. 187; No. 14 of 2010 s. 23.]
Before the referral day, the holder of a credit provider’s licence must not carry on a business of providing credit in partnership with a person who is not the holder of a credit provider’s licence.
Penalty: $5 000.
[Section 15 amended by No. 14 of 2010 s. 24.]
(1)A licence shall be signed and issued by the Commissioner and —
(a)shall be in a form approved by the Minister; and
(b)where it authorises the holder to carry on business under a name or names in addition to, or in substitution for, the name of the holder, shall bear an endorsement to that effect.
(2)Where the Commissioner is satisfied that a licence has been lost or destroyed, the Commissioner may, on payment of the prescribed fee, issue a duplicate of the licence.
[Section 16 amended by No. 55 of 2004 s. 210.]
17.Change of address of licensee
(1)Where at any time before the referral day the principal place at which a licensee carries on, or intends to carry on, a business of providing credit is at an address other than an address specified in accordance with section 9(3)(c) or of which notice has been given under this section, the licensee shall, not later than 14 days after commencing to carry on the business at that other address, give to the Commissioner notice in writing of that other address.
(2)A licensee shall, not later than 14 days after ceasing at any time before the referral day to carry on a business of providing credit at the address specified in accordance with section 9(3)(c) or, where a notice has been given under subsection (1), at the address specified in the notice, give to the Commissioner notice in writing that the licensee has ceased to carry on the business at that address.
Penalty: $1 000.
[Section 17 amended by No. 14 of 2010 s. 25.]
(1)For the purposes of this Act, the Commissioner shall keep a register to be known as the Register of Licensed Credit Providers.
(2)Subject to this Act, the register shall be kept in such form and manner as the Minister thinks fit.
[Section 18 amended by No. 55 of 2004 s. 210.]
A person, on application in accordance with any regulations and on payment of any prescribed fee —
(a)may inspect the register kept under section 18; and
(b)may make a copy of, or take extracts from, the register.
20.Term of, and authority conferred by, licence
(1)Except during any period while it is suspended, a licence continues in force until it is surrendered under section 22 or cancelled under section 21 or 23.
(2)A credit provider’s licence authorises the licensee to carry on a business of providing credit under the name or names specified in the licence, subject to and in accordance with this Act and the conditions and restrictions to which the licence is subject.
(3)For the purposes of this Act, sections 21 and 22 excepted, a person whose licence is suspended under section 23 shall, while the suspension continues, be deemed to be a person who does not hold a licence.
21.Annual fee and annual statement
(1)A licensee shall, before the expiration of one month after each anniversary of the date on which the licence was granted, pay to the Commissioner in respect of the year commencing on that anniversary the prescribed fee for the licence.
(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)A person who is or was the holder of a licence during a year, or part of a year, commencing on the date, or an anniversary of the date, on which the licence was granted to the person, shall lodge with the Commissioner a statement in respect of that year or part that is in a form approved by the Minister and is signed by or on behalf of the licensee.
(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.
(3)A licensee or other person required under subsection (2) to lodge a statement shall lodge the statement within one month after the end of the year in respect of which, or part of which, the statement is lodged.
(4)The Commissioner may, on the application of a person required to comply with subsection (1), or subsections (2) and (3), extend or further extend the time for compliance with the applicable subsection or subsections.
(5)Where a licensee has failed to pay a fee, or lodge a statement, or pay a fee and lodge a statement, in accordance with this section, the Commissioner shall give notice in writing to the licensee that, unless the fee is paid or the statement lodged, or the fee is paid and the statement lodged, as the case may require, together with the prescribed late fee, before a day specified in the notice, being a day that is not earlier than 14 days after the giving of the notice, the licence will be cancelled.
(6)The Commissioner shall cancel the licence of a licensee who fails to pay a fee or lodge a statement, or pay a fee and lodge a statement, as referred to in a notice given under subsection (5).
(7)Subject to subsection (4), a person (not being a licensee) to whom subsections (2) and (3) apply shall comply with those subsections.
Penalty: $1 000.
(8)If, while a licence is in force, there occurs —
(a)between the time the application for the licence was granted and the time the first statement is lodged under subsection (2) — a change in the particulars specified in, or in connection with, the application in accordance with section 9(3), (4) and (5); or
(b)between the lodging of successive annual statements under subsection (2) — a change in the particulars specified in the earlier of those statements,
the licensee shall, within 14 days of the occurrence of the change, give to the Commissioner notice in writing specifying particulars of the change.
Penalty: $1 000.
(9)A person shall not, in or in relation to a statement required to be lodged under subsection (2) or a notice required to be given under subsection (8), make a statement that is false or misleading by reason of the inclusion therein of any false or misleading matter or the omission therefrom of any material matter.
Penalty: $5 000.
(10)It is a defence to a prosecution of a person for an offence under subsection (9) if the person proves that, when the statement was lodged, or the notice given, the person —
(a)believed on reasonable grounds that the false matter was true;
(b)believed on reasonable grounds that the misleading matter was not misleading;
(c)in the case of an omission — believed on reasonable grounds that no material matter had been omitted; or
(d)in the case of an omission — did not know that the omitted matter was material.
[Section 21 amended by No. 14 of 2010 s. 26.]
(1)Subject to this section, a licensee may, by notice in writing given to the Commissioner and accompanied by the licence, surrender the licence.
(2)Where the Commissioner makes an allegation under section 23 against the holder of a licence, the licence cannot be surrendered until after effect has been given to any order made by the State Administrative Tribunal in disposing of the allegation or by the court dealing with an appeal from an order of the State Administrative Tribunal.
(3)Where a licence is surrendered, the Commissioner shall refund to the former licensee so much of the fee for the licence last paid under section 21(1) as the Commissioner, upon application by the former licensee, specifies as appropriate to be refunded.
[Section 22 amended by No. 55 of 2004 s. 188 and 209(1).]
Division 3 — Disciplinary action
23.Disciplinary action against licensee
(1)Any person may, at any time, make to the Commissioner a written complaint about the holding of a licence by a specified licensee if the complaint complies with subsection (2).
(2)For a complaint to comply with this subsection —
(a)the complaint has to specify the licensee and the grounds of the complaint; and
(b)the grounds of the complaint have to be capable of reasonably giving rise to a belief described in subsection (4).
[(3)deleted]
(4)The Commissioner may, on receiving a complaint under subsection (1) or on the Commissioner’s own initiative, make any investigation or inquiry that the Commissioner considers necessary to decide whether there are grounds for believing that at any time before the referral day —
(a)a licence may have been improperly obtained or, at the time a licence was granted, there may have been grounds for refusing to grant it;
(b)a licensee may have failed to comply with any provision of the cognate Acts, a condition or restriction to which the licence is subject or an order under any of the cognate Acts applicable to the licensee;
(c)a licensee may be unable, or is likely to become unable, to meet the licensee’s liabilities;
(d)a licensee has, within the period of 10 years that last preceded the grant of the licence, been found guilty of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more;
(e)the holder of a credit provider’s licence has provided credit at an interest rate that is excessive having regard to the risk involved, the value of any security, the time for repayment, the amount of credit provided and any other relevant circumstances;
(f)the business to which a licence relates is being carried on in a dishonest or unfair manner;
(g)the holder of a credit provider’s licence has taken security for the performance of the debtor’s obligations under a contract to which this Act applies that is excessive having regard to the risk involved, the value of the security, the time for repayment, the amount of credit provided, the annual percentage rate and any other relevant circumstances;
(h)the holder of a credit provider’s licence has taken security for the performance of the debtor’s obligations under a contract to which this Act applies that, having regard to the nature and value of the security, the amount of credit provided and any other relevant circumstances, is unreasonable;
(i)if a person were not the holder of a licence, the Commissioner would be required by section 12(2) or (4) to refuse an application by the person for a licence; or
(j)the licensee is, for any other reason, not a fit and proper person to continue to hold a licence.
(5)If the Commissioner decides that it is appropriate to do so, the Commissioner may make an allegation to the State Administrative Tribunal that there are reasonable grounds for a belief described in subsection (4) concerning a specified licensee.
(6)If the Commissioner decides not to make an allegation concerning a licensee about whom a complaint was made to the Commissioner under subsection (1), the Commissioner is required to notify the person who made the complaint of that decision and the reason for it.
[(7)deleted]
(8)If the State Administrative Tribunal, on dealing with an allegation under subsection (5), is satisfied that any ground for a belief referred to in subsection (4) has been made out, it may do any one or more of the following —
(a)reprimand the licensee;
(b)impose on the licensee a fine not exceeding $1 000 payable within a specified time;
(c)require the licensee to comply within a specified time with a requirement specified by the Tribunal;
(d)suspend the licence for a period not exceeding 12 months;
(e)disqualify the licensee or any person concerned in the direction, management or conduct of the business of the licensee from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required either permanently or for such period as the Tribunal thinks fit;
(f)cancel the licence.
[(9), (10)deleted]
(11)Where the Tribunal disqualifies a licensee under subsection (8)(e), the Commissioner shall cancel the licence.
(12)Where the Tribunal —
(a)suspends a licence — the licensee; or
(b)cancels a licence — the former licensee,
shall return the licence to the Commissioner within a period specified by the Tribunal when suspending or cancelling the licence.
Penalty: $1 000.
(13)A person disqualified under subsection (8)(e) shall not, while disqualified —
(a)hold a licence; or
(b)be concerned in the direction, management or conduct of a business of providing credit.
Penalty: $5 000.
(14)If a person has been convicted of an offence and the circumstances of the offence form, wholly or partly, the subject‑matter of a proceeding before the State Administrative Tribunal upon an allegation under subsection (5), the person is not liable to a fine under this section in respect of the conduct giving rise to the offence.
[Section 23 amended by No. 30 of 1996 s. 13; No. 55 of 2004 s. 189, 209(1) and 210; No. 14 of 2010 s. 27.]
[Heading inserted by No. 55 of 2004 s. 190.]
(1)A person aggrieved by a reviewable decision may apply to the State Administrative Tribunal for a review of the decision.
(2)In subsection (1) —
person aggrieved means —
(a)a person upon whose application a reviewable decision is made or a person who lodged an objection to the application; or
(b)the holder of the licence to which a reviewable decision relates;
reviewable decision means —
(a)a decision under section 12 to grant or refuse an application for a licence;
(b)a decision under section 13 to impose or vary a condition or restriction; or
(c)a decision under section 25(3) to grant or refuse an application or impose a condition.
(3)The making of an application under subsection (1) for a review of a decision to impose or vary a condition subject to which a licence is to be held operates to stay the decision in so far as it would have the effect of preventing the collection of payments by a credit provider, unless the State Administrative Tribunal orders otherwise.
[Section 24 inserted by No. 55 of 2004 s. 191.]
(1)Where a licensee dies, a person who is, or who is named as, or who intends to apply to become, a legal personal representative of the licensee may, within 28 days after the death or such longer period as the Commissioner allows, apply to the Commissioner for authority to carry on, until the expiration of the period of 180 days that next succeeds the death, the business of the deceased licensee to which the licence relates.
(2)The Commissioner may make any investigation or inquiry that the Commissioner considers necessary for the purpose of dealing with the application.
(3)The Commissioner shall grant or refuse the application and, on granting the application, may impose conditions subject to which the business to which the application relates may be carried on.
[(4)deleted]
(5)An applicant whose application is granted under this section shall, subject to this Act, the regulations and any conditions imposed under subsection (3), be deemed, until no later than the expiration of the period of 180 days that next succeeds the death of the licensee, to be the holder of the licence of the deceased licensee.
[Section 25 amended by No. 55 of 2004 s. 192 and 210.]
26.Production of licence
Where a licensee is required to comply with a requirement specified by the State Administrative Tribunal under section 23(8)(c) or to carry on the business to which the licence relates subject to conditions or restrictions imposed under section 13 or 25(3), the licensee shall, upon being required by the Commissioner so to do within a specified time, produce the licence to the Commissioner within that time for endorsement of the condition, restriction or requirement.
Penalty: $1 000.
[Section 26 amended by No. 55 of 2004 s. 209(2) and 210.]
Part V — Functions of Commissioner in relation to proceedings
[40.Deleted by No. 55 of 2004 s. 202.]
41.Commissioner may proceed for another
(1)Where a person, not being a body corporate, has made a complaint to the Commissioner in respect of a matter to which this section applies and the Commissioner, after investigating the complaint, is satisfied that —
(a)the complainant may, with respect to that matter, have a right to take proceedings before a court or the State Administrative Tribunal or a defence to proceedings taken before a court or the State Administrative Tribunal by another person against the complainant in respect of that matter; and
(b)it is in the public interest that the Commissioner should take or, as the case may be, defend those proceedings on behalf of the complainant,
the Commissioner may, with the consent in writing of the Minister and the complainant, take or defend those proceedings on behalf of and in the name of the complainant.
(2)Where a complainant has given a consent to the taking or defending by the Commissioner of proceedings before a court or the State Administrative Tribunal on behalf of the complainant, that consent is not, after the Commissioner has taken steps in those proceedings, revocable except with the concurrence of the Commissioner.
(3)This section applies to a matter arising under or in relation to —
(a)a contract to which this Act applies;
(b)a regulated mortgage; and
(c)a mortgage that comes within section 8 of the Code.
[Section 41 amended by No. 30 of 1996 s. 13; No. 55 of 2004 s. 209(2).]
42.Conduct of proceedings taken by Commissioner
Where, under section 41, the Commissioner takes or defends proceedings before a court or the State Administrative Tribunal on behalf of a complainant —
(a)the Commissioner shall have the conduct of those proceedings on behalf of the complainant, may (notwithstanding anything in any Act) appear personally or by counsel, solicitor or agent and may do all such things as are necessary or expedient to give effect to an order or decision of the court or the State Administrative Tribunal;
(b)the Commissioner is liable to pay the costs of the complainant; and
(c)the complainant is liable to pay any amount (other than costs for which the Commissioner is liable under paragraph (b)), that the court or the State Administrative Tribunal orders the complainant to pay.
[Section 42 amended by No. 55 of 2004 s. 209(2).]
43.Intervention by Minister or Commissioner
(1)Without limiting section 41, the Minister or the Commissioner with the consent of the Minister, if the Minister or the Commissioner, as the case may be, thinks that it would be in the public interest to do so, may intervene, and has a right to be heard personally or by counsel, solicitor or agent, in any proceedings (other than proceedings for an offence) arising under the cognate Acts before a court or the State Administrative Tribunal.
(2)Where the Commissioner intervenes in any proceedings under subsection (1) or takes or defends proceedings in accordance with section 41(1), it shall be presumed, unless the contrary is proved, that the Minister has consented to the intervention or the taking or defending of proceedings, as the case may be.
(3)The Minister or the Commissioner, on intervening under subsection (1) in any proceedings, becomes a party to the proceedings and has all the rights, including rights of appeal, of such a party.
[Section 43 amended by No. 55 of 2004 s. 203 and 209(2).]
44.Investigation of application to Tribunal
Where application is made to the State Administrative Tribunal by a credit provider under section 86 of the Credit Act 1984 or section 105 of the Code, the Commissioner shall, if required so to do by the President of the Tribunal before the Tribunal hears the application, investigate the application and report to the Tribunal on the results of the investigation.
[Section 44 amended by No. 30 of 1996 s. 13; No. 55 of 2004 s. 204 and 209(2).]
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.
[Section 44AA inserted by No. 14 of 2010 s. 30.]
(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).
[Section 44AB inserted by No. 14 of 2010 s. 30.]
Part VA — Consumer Credit
[Heading inserted by No. 69 of 2006 s. 11; amended by No. 14 of 2010 s. 31.]
44A.Establishment of Consumer Credit
(1)An agency special purpose account called the Consumer Credit Account is established under the Financial Management Act 2006 section 16.
[(2)deleted]
(3)Moneys standing to the credit of the Consumer Credit Account that are not immediately required for the purposes of section 44C may, if approved by the Treasurer, be invested in any manner that moneys in the Public Bank Account may be invested under the Financial Management Act 2006 section 37.
[Section 44A inserted by No. 69 of 2006 s. 11; amended by No. 14 of 2010 s. 32.]
44B.Payments to Consumer Credit
[(1)deleted]
(2)The Consumer Credit Account is to be credited with —
(a)any amount paid to the fund by a credit provider;
(b)income derived from the investment, under section 44A, of moneys standing to the credit of the Consumer Credit Account;
(c)any moneys received by, made available to or payable to the Consumer Credit Account;
(d)costs awarded to the Commissioner in a proceeding under this Act; and
(e)costs awarded to the Commissioner in a proceeding under the Credit Act 1984.
[Section 44B inserted by No. 69 of 2006 s. 11; amended by No. 14 of 2010 s. 33.]
44C.Payments from Consumer Credit
The Consumer Credit Account is to be applied by the Commissioner for —
(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
(b)the administration of this Act; and
(c)legal fees incurred by the Commissioner, or costs awarded against the Commissioner, in a proceeding under this Act; and
(d)legal fees incurred by the Commissioner, or costs awarded against the Commissioner, in a proceeding under the Credit Act 1984.
[Section 44C inserted by No. 69 of 2006 s. 11; amended by No. 14 of 2010 s. 34.]
44D.Report on operations of Consumer Credit
For the purposes of Financial Management Act 2006 section 52, the administration of the Consumer Credit Account is to be taken to be a service of the department principally assisting the Minister in the administration of this Act.
[Section 44D inserted by No. 69 of 2006 s. 11; amended by No. 14 of 2010 s. 35.]
45.Variation of application of Act
(1)The Governor may, by order published in the Gazette, declare that the provisions of this Act, or such of those provisions as are specified in the order —
(a)do not have effect in relation to a specified person or to a specified class of persons;
(b)have effect in relation to a specified person or to a specified class of persons to such extent as is specified;
(c)do not have effect in relation to a specified transaction or matter or class of transactions or matters;
(d)have effect in relation to a specified transaction or matter or class of transactions or matters to such extent as is specified;
(e)do not have effect in relation to a specified transaction or class of transactions entered into by a specified person or specified class of persons or in relation to specified associated matters; or
(f)have effect in relation to a specified transaction or class of transactions entered into by a specified person or specified class of persons, or in relation to specified associated matters, to such extent as is specified.
(2)An order made under subsection (1) —
(a)may specify the period during which the order shall remain in force;
(b)may provide that its operation is subject to such terms and conditions as are specified in the order; and
(c)may specify the circumstances under which a person to whom the order applies is, by reason of the order, to be deemed to be an exempt credit provider.
(3)The Governor may, by order published in the Gazette, revoke or vary an order made under this section.
(4)An order in force under this section, including an order that is varied under this section, has effect according to its tenor.
(5)A person to whom an order under this section applies, including an order that is varied under this section, shall comply with the terms and conditions (if any) to which the operation of the order is subject.
Penalty: $5 000.
(1)A person who contravenes or fails to comply with a provision of this Act is guilty of an offence against this Act.
(2)A person who is guilty of an offence against this Act for which a specific penalty is not prescribed by a provision of this Act other than this subsection is liable to a penalty not exceeding $1 000.
Notwithstanding anything in any Act, proceedings for an offence against this Act may be brought within the period of 3 years that next succeeds the commission of the offence or, with the consent of the Attorney General, at any later time.
Where an offence against this Act committed by a body corporate is proved to have been committed with the consent or connivance of any director, manager, secretary or other officer of the body corporate, the person, as well as the body corporate, shall be deemed to have committed that offence and is liable to be proceeded against and punished accordingly.
49.Who may take proceedings for offences
(1)Proceedings for an offence against any provision of the cognate Acts may be taken and prosecuted by any person acting with the authority of —
(a)the Minister; or
(b)a prescribed officer.
(2)An authority to prosecute purporting to have been signed by the Minister or a prescribed officer is evidence of that authority without proof of the signature of the Minister or the prescribed officer.
(3)In proceedings for an offence against any provision of the cognate Acts, the informant may conduct his or her case personally, or by counsel or attorney, or by an agent authorised by the informant in writing.
[Section 49 amended by No. 30 of 1996 s. 13.]
50.Offences to be dealt with by magistrate
A court of summary jurisdiction dealing with an offence under this Act is to be constituted by a magistrate.
[Section 50 inserted by No. 59 of 2004 s. 141.]
(1)A certificate signed by the Commissioner to the effect that a person specified therein was or was not, on a day or during a period so specified, the holder of a licence so specified is, without proof of the signature or of the official character of the person by whom it purports to have been signed, admissible in evidence in any proceedings and is evidence of the matters so certified.
(2)A certificate signed by the Commissioner to the effect that a person specified therein was, on a day or during a period so specified, authorised for the purposes of section 54 or 55 is, without proof of the signature or of the official character of the person by whom it purports to have been signed, admissible in evidence in any proceedings and is evidence of the matters so certified.
(3)Where it is alleged in any proceedings under this Act, or in any other proceeding in relation to a matter arising under this Act, that a contract is a contract to which this Act applies, it shall be presumed, unless the contrary is established, that the credit contract is a regulated contract.
[Section 51 amended by No. 30 of 1996 s. 13; No. 55 of 2004 s. 210.]
Except to the extent that this Act expressly provides otherwise, nothing in this Act modifies or excludes a right or remedy that a person would have had if this Act had not been enacted.
(1)The Minister is required, by notice published in the Gazette, to designate a person who is an executive officer of the Department as the Commissioner for the purposes of the cognate Acts.
(2)The Commissioner may be referred to by a title specified by the Minister by notice published in the Gazette.
(3)Without limiting any other functions of the Commissioner for the purposes of the cognate Acts, the Commissioner has the following functions —
(a)to investigate and conduct research into matters relating to the cognate Acts;
(b)to publish reports and disseminate information on matters relating to the cognate Acts;
(c)to give advice to consumers on the provisions of the cognate Acts;
(d)to investigate and attempt to resolve complaints arising under the cognate Acts and to take action by negotiation, prosecution of any offence or otherwise;
(e)to make reports to the Minister on matters of importance investigated by the Commissioner, whether or not referred to the Commissioner by the Minister.
(4)In this section —
executive officer has the meaning given by section 3(1) of the Public Sector Management Act 1994.
[Section 53 inserted by No. 28 of 2006 s. 87.]
53A.Delegation by Commissioner
(1)The Commissioner may delegate to any other person employed in the Department any power or duty of the Commissioner under another provision of the cognate Acts.
(2)The delegation must be in writing signed by the Commissioner.
(3)A person to whom a power or duty is delegated under this section cannot delegate that power or duty.
(4)A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5)Nothing in this section limits the ability of the Commissioner to perform a function through an officer or agent.
[Section 53A inserted by No. 28 of 2006 s. 87.]
All courts, judges and persons acting judicially shall take judicial notice of the official signature of every person who is for the time being and every person who has at any time been the Commissioner and of the fact that such person holds or has held such office.
[Section 53B inserted by No. 28 of 2006 s. 87.]
(1)For the purpose of ascertaining whether the provisions of any of the cognate Acts are being or have been complied with by a credit provider or for the purpose of enabling the Commissioner to prepare a report for the State Administrative Tribunal, the Commissioner, or any other person authorised in writing in that behalf by the Commissioner may —
(a)enter premises where the business of the credit provider or the business of a person with whom the credit provider has a trade or tie agreement, is being carried on;
(b)require the production of records;
(c)inspect and require explanations of any record; and
(d)take notes, copies and extracts of or from any record or statement produced pursuant to this section.
(2)Where the Commissioner or an authorised person referred to in subsection (1), requires production under that subsection of a record that is not in writing, or is not written in the English language, or is not decipherable on sight, the requirement to produce the record shall be deemed to be a requirement to produce, in addition to the record if it is in writing, or instead of the record if it is not in writing, a statement, written in the English language and decipherable on sight, containing the whole of the information in the record.
(3)A person shall not —
(a)wilfully delay or obstruct the Commissioner, an authorised person or any other person in the exercise of powers under this section;
(b)refuse or fail to produce, or conceal or attempt to conceal, any record or statement the person is required under subsection (1) or (2) to produce;
(c)being a credit provider or, where the credit provider is a body corporate, an officer of the credit provider refuses or fails to answer a question or give an explanation relating to any such record or statement put to or required of, him or her by a person entitled to require production of the record or statement who first informs him or her that he or she is required and obliged by this section to answer the question or give the explanation; or
(d)being a credit provider or, where the credit provider is a body corporate, an officer of the credit provider gives to a question relating to any record or statement an answer that he or she knows is false or misleading or gives an explanation of any record or statement that he or she knows is a false or misleading explanation.
Penalty: $2 000.
[Section 54 amended by No. 55 of 2004 s. 209(2); No. 28 of 2006 s. 88.]
(1)In this section —
authorised person means the Commissioner or a person authorised in writing by the Commissioner to exercise the powers conferred by this section on an authorised person;
credit provider includes a person who was at any time a credit provider to whom a provision of a cognate Act applied as a credit provider.
(2)For the purpose of ascertaining whether the provisions of any of the cognate Acts are being or have been complied with by a credit provider, an authorised person may, by instrument in writing, require the credit provider to produce specified records, or records of a specified class or description, to a specified authorised person at a specified place at a specified time or within a specified period.
(3)Where an authorised person requires production under subsection (2) of a record that is not in writing, or is not written in the English language, or is not decipherable on sight, the requirement to produce the record shall be deemed to be a requirement to produce, in addition to the record if it is in writing, or instead of the record if it is not in writing, a statement, written in the English language and decipherable on sight, containing the whole of the information in the record.
(4)A person shall not refuse or fail to produce any record or statement in accordance with a requirement made of the person under subsection (2).
Penalty: $2 000.
(5)An authorised person may inspect and take notes, copies and extracts of or from any record or statement produced pursuant to this section.
(6)Nothing in this section limits the operation of section 54 and nothing in section 54(1) limits the operation of this section.
[Section 55 amended by No. 47 of 1989 s. 9.]
(1)This section applies to every person who is or has been —
(a)a member of, or the Registrar of, the former Commercial Tribunal that existed under the Commercial Tribunal Act 1984 5 before that Act was repealed;
(b)a person appointed under section 32(1);
(c)the Commissioner or a delegate of the Commissioner;
(d)an authorised person under section 55(1); or
[(e)deleted]
(f)a member of the staff assisting the Commissioner.
(2)A person to whom this section applies shall not misuse information obtained by reason of any function that person has, or at any time had, in the administration of the cognate Acts.
Penalty: $20 000.
(3)A person misuses information if it is, directly or indirectly, recorded, used or disclosed to another person, other than —
(a)in the course of duty;
(b)under —
(i)the cognate Acts, the Consumer Affairs Act 1971, the State Administrative Tribunal Act 2004; or
(ii)the corresponding Acts, or proposed laws, of the legislature of the Commonwealth or of another State or of a Territory;
(c)for the purposes of the investigation of any suspected offence or the conduct of proceedings against any person for an offence;
(d)in a manner that could not reasonably be expected to lead to the identification of any person to whom the information refers; or
(e)with the consent of the person to whom the information relates, or each of them if there is more than one.
(4)In this section —
information means information concerning the affairs of a person.
[Section 56 amended by No. 55 of 2004 s. 205; No. 28 of 2006 s. 89.]
56A.Protection from liability for wrongdoing
(1)A person is not liable for anything that the person has, in good faith, done in the performance or purported performance of a function under this Act.
(2)The State is also relieved of any liability that it might otherwise have had for another person having done anything as described in subsection (1).
(3)The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.
(4)In this section, a reference to the doing of anything includes a reference to an omission to do anything.
[Section 56A inserted by No. 28 of 2006 s. 90.]
Where, under this Act, the State Administrative Tribunal or the Commissioner may extend a period, the State Administrative Tribunal or the Commissioner, as the case may be, may extend the period notwithstanding that the period has elapsed.
[Section 57 amended by No. 55 of 2004 s. 206.]
(1)Where, under this Act, a document or notice is required or permitted to be given to or served on a person, the document or notice may be given or served —
(a)where the person is a natural person, by giving it to or serving it personally on the person or by sending it by post to the person at the person’s usual or last known place of abode or business; or
(b)where the person is a corporation, by leaving it at or sending it by post to the registered office of the corporation.
(2)In subsection (1), registered office means —
(a)the office of the corporation that is the registered office or principal office in accordance with the law of the Commonwealth, State or Territory of the Commonwealth by or under which the corporation is incorporated;
(b)where the corporation is not incorporated in Australia, an office registered under a law of the Commonwealth, or a State or Territory of the Commonwealth, as a registered office of the corporation; or
(c)in the case of a corporation that has no such registered office or principal office, the principal place of business of the corporation in the State or, if it has no place of business in the State, its principal place of business in Australia.
[Section 58 amended by No. 10 of 2001 s. 57.]
For the purposes of this Act, where a document or notice is properly addressed, prepaid and posted as a letter, the document or notice shall, unless the contrary is proved, be deemed to have been given to the person to whom it is addressed at the time at which the letter would be delivered in the ordinary course of post.
60.Application of
(1)The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of departments apply to and in respect of the department of the Public Service of the State principally assisting the Minister in the administration of this Act, and its operations under the cognate Acts.
(2)The annual report of the department in which the Commissioner is employed is to include details of —
(a)the number, nature, and outcome, of —
(i)investigations
(ii)matters that have been brought before the State Administrative Tribunal under this Act;
(b)the number and nature of matters referred to in paragraph (a) that are outstanding;
(c)any trends or special problems that may have emerged;
(d)forecasts of the workload of the Commissioner in performing functions under this Act in the year after the year to which the report relates; and
(e)any proposals for improving the performance of the Commissioner’s functions under this Act.
[Section 60 inserted by No. 98 of 1985 s. 3; amended by No. 55 of 2004 s. 207; No. 77 of 2006 s. 17.]
(1)The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed, or that is necessary or convenient to be prescribed, for carrying out or giving effect to this Act.
(2)The regulations may provide that the fee referred to in section 9(2), 21(1) or 21(5) is to be —
(a)a specified amount; or
(b)an amount calculated in a specified manner.
(3)A regulation may impose a penalty not exceeding $500 for a breach of the regulation.
(4)A provision of a regulation may —
(a)apply generally or be limited in its application by reference to specified exceptions or factors;
(b)apply differently according to different factors of a specified kind; or
(c)authorise any matter or thing to be from time to time determined, applied or regulated by a specified person or body,
or may do any combination of those things.
[Schedule 1 deleted by No. 55 of 2004 s. 208.]
1This is a compilation of the Credit (Administration) Act 1984 and includes the amendments made by the other written laws referred to in the following table 1a. The table also contains information about any reprint.
|
Short title |
Number and year |
Assent |
Commencement |
|
Credit (Administration) Act 1984 |
100 of 1984 |
19 Dec 1984 |
s. 1 and 2: 19 Dec 1984; |
|
Acts Amendment (Financial Administration and Audit) Act 1985 s. 3 |
98 of 1985 |
4 Dec 1985 |
1 Jul 1986 (see s. 2 and Gazette 30 Jun 1986 p. 2255) |
|
Acts Amendment (Credit) Act 1989 Pt. 3 |
47 of 1989 |
9 Jan 1990 |
s. 7 and 9: 1 Mar 1985 (see s. 2(3) and Gazette 22 Feb 1985 p. 657); |
|
Pawnbrokers and Second‑hand Dealers Act 1994 s. 100 |
88 of 1994 |
5 Jan 1995 |
1 Apr 1996 (see s. 2 and Gazette 29 Mar 1996 p. 1495) |
|
Consumer Credit (Western Australia) Act 1996 s. 13 |
30 of 1996 |
10 Sep 1996 |
1 Nov 1996 (see s. 2) |
|
Statutes (Repeals and Minor Amendments) Act 1997 s. 39(10) |
57 of 1997 |
15 Dec 1997 |
15 Dec 1997 (see s. 2(1)) |
|
Acts Amendment and Repeal (Financial Sector Reform) Act 1999 s. 71 |
26 of 1999 |
29 Jun 1999 |
1 Jul 1999 (see s. 2(1) and Gazette 30 Jun 1999 p. 2905) |
|
Reprint of the Credit (Administration) Act 1984 as at 5 May 2000 (includes amendments listed above) |
|||
|
Corporations (Consequential Amendments) Act 2001 Pt. 18 |
10 of 2001 |
28 Jun 2001 |
15 Jul 2001 (see s. 2 and Gazette 29 Jun 2001 p. 3257 and Cwlth Gazette 13 Jul 2001 No. S285) |
|
Building Societies Amendment Act 2001 s. 51 |
12 of 2001 |
13 Jul 2001 |
13 Jul 2001 (see s. 2) |
|
Consumer Credit (Western Australia) Amendment Act 2003 s. 16 |
43 of 2003 |
30 Jun 2003 |
9 Jul 2003 (see s. 2 and Gazette 9 Jul 2003 p. 2735) |
|
Sentencing Legislation Amendment and Repeal Act 2003 s. 50 |
50 of 2003 |
9 Jul 2003 |
15 May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445) |
|
Statutes (Repeals and Minor Amendments) Act 2003 s. 40(4) |
74 of 2003 |
15 Dec 2003 |
15 Dec 2003 (see s. 2) |
|
Reprint 2: The Credit (Administration) Act 1984 as at 6 Aug 2004 (includes amendments listed above) |
|||
|
Courts Legislation Amendment and Repeal Act 2004 s. 141 |
59 of 2004 |
23 Nov 2004 |
1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128) |
|
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 31 6, 7 |
55 of 2004 |
24 Nov 2004 |
1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130) |
|
Housing Societies Repeal Act 2005 s. 23 |
17 of 2005 |
5 Oct 2005 |
10 Jul 2010 (see s. 2(3) and Gazette 9 Jul 2010 p. 3239) |
|
Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 4 Div. 10 8 |
28 of 2006 |
26 Jun 2006 |
1 Jul 2006 (see s. 2 and Gazette 27 Jun 2006 p. 2347) |
|
Reprint 3: The Credit (Administration) Act 1984 as at 4 Aug 2006 (includes amendments listed above except those in the Housing Societies Repeal Act 2005 s. 23 ) |
|||
|
Pawnbrokers and Second‑hand Dealers Amendment Act 2006 s. 23 |
46 of 2006 |
4 Oct 2006 |
1 May 2007 (see s. 2 and Gazette 30 Apr 2007 p. 1833) |
|
Consumer Protection Legislation Amendment and Repeal Act 2006 Pt. 4 |
69 of 2006 |
13 Dec 2006 |
14 Jul 2007 (see s. 2 and Gazette 13 Jul 2007 p. 3453) |
|
Financial Legislation Amendment and Repeal Act 2006 s. 17 |
77 of 2006 |
21 Dec 2006 |
1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137) |
|
Reprint 4: The Credit (Administration) Act 1984 as at 11 Jul 2008 (includes amendments listed above except those in the Housing Societies Repeal Act 2005 s. 23 ) |
|||
|
Acts Amendment (Bankruptcy) Act 2009 s. 25 |
18 of 2009 |
16 Sep 2009 |
17 Sep 2009 (see s. 2(b)) |
|
Statutes (Repeals and Minor Amendments) Act 2009 s. 17 |
46 of 2009 |
3 Dec 2009 |
4 Dec 2009 (see s. 2(b)) |
|
Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010 Pt. 3 Div. 1 |
14 of 2010 |
25 Jun 2010 |
1 Jul 2010 (see s. 2(b) and Gazette 30 Jun 2010 p. 3185) |
1aOn the date as at which this compilation was prepared, provisions referred to in the following table had not come into operation and were therefore not included in this compilation. For the text of the provisions see the endnotes referred to in the table.
Provisions that have not come into operation
|
Short title |
Number and year |
Assent |
Commencement |
|
Acts Amendment (Fair Trading) Act 2010 s. 194 9 |
58 of 2010 |
8 Dec 2010 |
To be proclaimed (see s. 2(c)) |
2Repealed by the Strata Titles Act 1985.
3Repealed by the Life Insurance (Consequential Amendments and Repeals) Act 1995 of the Commonwealth.
4Footnote no longer applicable.
5Repealed by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004.
6The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.
7The State Administrative Tribunal Regulations 2004 r. 30 and 45 read as follows:
30.Credit (Administration) Act 1984
(1)In this regulation —
commencement day means the day on which the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Part 2 Division 31 comes into operation.
(2)If —
(a)before the commencement day a matter was being dealt with by the Commercial Tribunal of Western Australia under the Credit (Administration) Act 1984 section 23; and
(b)that matter is transferred to the Tribunal under the Act section 167(4)(b),
despite the Act section 32(2) and (3), the Evidence Act 1906 and the rules of evidence continue to apply to the matter when it is being dealt with by the Tribunal.
45.Credit (Administration) Act 1984
(1)In this regulation —
commencement day means the day on which the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Part 2 Division 31 comes into operation.
(2)If before the commencement day an objection has been lodged with the Commercial Tribunal of Western Australia in accordance with the Credit (Administration) Act 1984 section 11 and the matter in respect of which the objection was lodged has not been dealt with by that Tribunal, on or after the commencement day the objection is to be taken to be an objection lodged with the Commissioner for Fair Trading under that section.
(3)If before the commencement day an objection has been lodged with the Commercial Tribunal of Western Australia in accordance with the Credit (Administration) Act 1984 section 23(1) and the matter in respect of which the objection was lodged has not been dealt with by that Tribunal, on or after the commencement day the objection is to be taken to be a written complaint under that subsection to the Commissioner for Fair Trading about the holding of a licence by a specified licensee.
(4)If immediately before the commencement day the Commercial Tribunal of Western Australia is conducting an inquiry under the Credit (Administration) Act 1984 Part IV, on or after the commencement day that inquiry is to be conducted by a person appointed by the Minister under section 32(1) of that Act to conduct that inquiry as if that person, and not the Tribunal, had been appointed to conduct the inquiry.
8The Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 4 Div. 23 reads as follows:
Division 23 — Transitional provisions
151.Commissioner for Fair Trading
(1)On commencement, the person holding the office of Commissioner for Fair Trading immediately before commencement is to be taken to have been designated as the Commissioner or Registrar (as the case requires) for the purposes of each of the following enactments —
(a)the Associations Incorporation Act 1987;
(b)the Business Names Act 1962;
(c)the Chattel Securities Act 1987;
(d)the Companies (Co‑operative) Act 1943;
(e)Part 8 of the Competition Policy Reform (Western Australia) Act 1996;
(f)the Consumer Affairs Act 1971;
(g)the Co‑operative and Provident Societies Act 1903;
(h)the Credit Act 1984;
(i)the Credit (Administration) Act 1984;
(j)the Employment Agents Act 1976;
(k)the Hire‑Purchase Act 1959;
(l)the Limited Partnerships Act 1909;
(m)the Motor Vehicle Dealers Act 1973;
(n)the Petroleum Products Pricing Act 1983;
(o)the Petroleum Retailers Rights and Liabilities Act 1982;
(p)the Residential Tenancies Act 1987;
(q)the Retirement Villages Act 1992;
(r)the Travel Agents Act 1985.
(2)A thing done or omitted to be done by, to or in relation to, the Commissioner for Fair Trading (including in his or her capacity as the Prices Commissioner) before commencement under a provision of the Consumer Affairs Act 1971 for the purposes of another enactment listed in subsection (1) has the same effect after commencement, to the extent that it has any force or significance after commencement, as if it had been done or omitted —
(a)by, to or in relation to, the Commissioner or Registrar (as the case requires) as defined in that other enactment as in force after commencement; and
(b)where relevant, under the corresponding provision of that other enactment as in force after commencement.
(3)To the extent that a thing done or omitted to be done by, to or in relation to, the Commissioner for Fair Trading (including in his or her capacity as the Prices Commissioner) before commencement under, or for the purposes of, an enactment listed in subsection (1) is not covered by subsection (2), it has the same effect after commencement, to the extent that it has any force or significance after commencement, as if it had been done or omitted by, to or in relation to, the Commissioner or Registrar (as the case requires) as defined in that enactment as in force after commencement.
(4)A thing done or omitted to be done by, to or in relation to, the Commissioner for Fair Trading before commencement under, or for the purposes of, an enactment not listed in subsection (1) has the same effect after commencement, to the extent that it has any force or significance after commencement, as if it had been done or omitted by, to or in relation to, the Commissioner as defined in the Consumer Affairs Act 1971 as in force after commencement.
(5)A reference in an enactment to the Commissioner for Fair Trading is to have effect after commencement as if it had been amended to be a reference to —
(a)in the case of an enactment listed in subsection (1) or subsidiary legislation made under such an enactment — the Commissioner or Registrar (as the case requires) as defined in the enactment as in force after commencement; or
(b)in the case of any other enactment or subsidiary legislation — the Commissioner as defined in the Consumer Affairs Act 1971 as in force after commencement.
152.Commissioner for Corporate Affairs and Registrar of Co‑operative and Financial Institutions
(1)A thing done or omitted to be done by, to or in relation to, the Commissioner for Corporate Affairs before commencement under, or for the purposes of, the Companies (Co‑operative) Act 1943 has the same effect after commencement as if it had been done or omitted by, to or in relation to, the Registrar as defined in that Act as in force after commencement.
(2)A thing done or omitted to be done by, to or in relation to, the Registrar of Co‑operative and Financial Institutions before commencement under, or for the purposes of, the Co‑operative and Provident Societies Act 1903 has the same effect after commencement as if it had been done or omitted by, to or in relation to, the Registrar as defined in that Act as in force after commencement.
153.Consumer Affairs Act 1971
Each office in existence immediately before commencement because of section 15(1) of the Consumer Affairs Act 1971 does not cease merely because that subsection is repealed by this Act.
154.Petroleum Products Pricing Act 1983
Each office in existence immediately before commencement because of section 5(2)(b) of the Petroleum Products Pricing Act 1983 does not cease merely because that paragraph is deleted by this Act.
155.Interpretation
In this Division —
commencement means the time at which this Division comes into operation;
Commissioner for Fair Trading means the Commissioner for Fair Trading referred to in section 15 of the Consumer Affairs Act 1971 as in force before commencement;
Prices Commissioner means the Prices Commissioner referred to in section 5(1) of the Petroleum Products Pricing Act 1983 as in force before commencement.
9On the date as at which this compilation was prepared, the Acts Amendment (Fair Trading) Act 2010 s. 194
194.Credit (Administration) Act 1984 amended
(1)This section amends the Credit (Administration) Act 1984.
(2)In section 56(3)(b)(i) delete “Consumer Affairs Act 1971,” and insert:
Fair Trading Act 2010,
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined TermProvision(s)
ASIC4
authorised person39(1), 55(1)
bank4
body corporate4
Business of providing credit5
Code4
cognate Acts4
Commissioner4
contract to which this Act applies4
credit4
credit contract4
credit provider4, 55(1)
Department4
executive officer53(4)
exempt credit provider4
information56(4)
licence4
loan contract4
officer4
pastoral finance company4
pending application4
person aggrieved24(2)
record4
referral day4
registered office58(2)
regulated contract4
regulated mortgage4
reviewable decision24(2)
trade or tie agreement4