Commonwealth: National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth)

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 No. 135, 2009 Compilation No. 17 Compilation date: 15 September 2023 Includes amendments up to: Act No. 69, 2023 Registered: 6 October 2023 About this compilation This compilation This is a compilation of the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 that shows the text of the law as amended and in force on 15 September 2023 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Schedule(s) Part 2—Dictionary 4 Dictionary 5 Meaning of corresponds Part 3—Other matters 6 Regulations may deal with transitional matters 7 Acquisition of property Schedule 1—Transition from the old Credit Codes to the National Credit Act Part 1—Introduction Part 2—Transition from the old Credit Codes to the new Credit Code Division 1—Object of this Part Division 1A—Application of the new Credit Code Division 2—Treatment of contracts or other instruments made before commencement Division 3—Treatment of court and tribunal proceedings and orders Division 4—General transitional provisions relating to other things done etc. under the old Credit Code Part 3—Application of the National Credit Act (other than the new Credit Code) and Schedule 2 to this Act Division 1—Application of the National Credit Act (other than Chapter 3 and the new Credit Code) Division 2—Application of Chapter 3 of the National Credit Act Division 3—Application of Schedule 2 to this Act Part 4—Transitional provisions relating to ASIC Schedule 2—Registration of persons to engage in credit activities Part 1—Introduction Part 2—Transitional prohibitions relating to credit activities Division 1—Prohibition that applies only from commencement to 31 December 2010, or later prescribed day Division 2—Prohibition that applies only from 1 January 2011, or later prescribed day, to the transition end day Division 3—Application of Division 3 of Part 2‑1 of the National Credit Act in relation to registered persons and this Schedule Part 3—Registration of persons who engage in credit activities Division 1—How to become registered Division 2—The conditions on the registration Division 3—Obligations of registered persons Division 4—When registrations can be suspended, cancelled or varied Part 4—Application of other provisions of the National Credit Act in relation to registered persons and this Schedule Part 5—Exemptions and modifications relating to this Schedule Part 6—Regulations relating to infringement notices Schedule 4—Application and transitional provisions for the National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Act 2011 Schedule 5—Application provisions for the Consumer Credit Legislation Amendment (Enhancements) Act 2012 Part 1—Definition Part 2—Schedule 1 (enhancements) to the amending Act Part 3—Schedule 2 (reverse mortgages) to the amending Act Part 4—Schedule 3 (short‑term and small amount credit contracts) to the amending Act Part 5—Schedule 4 (caps on costs etc. for credit contracts) to the amending Act Part 6—Schedule 5 (consumer leases) to the amending Act Schedule 6—Application provisions for the Treasury Laws Amendment (Banking Measures No. 1) Act 2018 Part 1—Definitions Part 2—Credit limits Part 3—When a credit card contract, or a credit limit increase, is unsuitable Part 4—Interest charges Part 5—Ending credit card contracts Schedule 7—Application and transitional provisions for the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 Schedule 8—Application and transitional provisions for the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 Part 1—Definitions Part 2—Application and transitional provisions Schedule 9—Application provisions for the National Consumer Credit Protection Amendment (Mandatory Credit Reporting and Other Measures) Act 2021 Schedule 10—Application provisions for Schedule 3 to the Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2019 Measures)) Act 2020 Schedule 11—Application provisions for the Treasury Laws Amendment (2019 Measures No. 3) Act 2020 Schedule 12—Application provisions for Schedule 1 to the Financial Sector Reform (Hayne Royal Commission Response—Stronger Regulators (2019 Measures)) Act 2020 Schedule 13—Application and transitional provisions for Schedule 3 to the Financial Sector Reform (Hayne Royal Commission Response—Stronger Regulators (2019 Measures)) Act 2020 Schedule 14—Application and transitional provisions for Schedule 4 to the Financial Sector Reform (Hayne Royal Commission Response—Stronger Regulators (2019 Measures)) Act 2020 Schedule 15—Application provisions relating to Schedule 10 to the Financial Sector Reform (Hayne Royal Commission Response) Act 2020 Schedule 16—Application and transitional provisions relating to Schedule 11 to the Financial Sector Reform (Hayne Royal Commission Response) Act 2020 Schedule 19—Application provisions for Schedule 4 to the Financial Sector Reform Act 2022 Schedule 20—Application provisions relating to Schedule 8 to the Corporate Collective Investment Vehicle Framework and Other Measures Act 2022 Schedule 21—Transitional provisions relating to Division 18 of Part 1 of Schedule 4 to the Treasury Laws Amendment (Modernising Business Communications and Other Measures) Act 2023 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to deal with transitional and consequential matters in connection with the National Consumer Credit Protection Act 2009, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 7 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 15 December 2009 2. Schedule 1, items 1 to 21 At the same time as section 3 of the National Consumer Credit Protection Act 2009 commences. 1 April 2010 2A. Schedule 1, item 22 The day this Act receives the Royal Assent. 15 December 2009 2B. Schedule 1, item 23 At the same time as section 3 of the National Consumer Credit Protection Act 2009 commences. 1 April 2010 3. Schedule 2 The later of: 1 April 2010 (a) the day on which this Act receives the Royal Assent; and (paragraph (b) applies) (b) the day on which section 3 of the National Consumer Credit Protection Act 2009 commences. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Part 2—Dictionary 4 Dictionary (1) In this Act: appeal or review proceedings, in relation to an order of a court or tribunal, means proceedings by way of appeal, or otherwise seeking review, of the order. carried over instrument means a contract or other instrument that: (a) was made before commencement; and (b) was in force immediately before commencement; and (c) the old Credit Code of a referring State or a Territory applied to immediately before commencement. carried over provision of the old Credit Code of a referring State or a Territory means a provision of the old Credit Code of that State or Territory that: (a) was in force immediately before commencement; and (b) corresponds to a provision of the new Credit Code. Chapter 3 start day: see subitem 19(1) of Schedule 1 to this Act. civil penalty provision: a subitem of a Schedule to this Act (or an item of a Schedule to this Act that is not divided into subitems) is a civil penalty provision if: (a) the words "civil penalty" and one or more amounts in penalty units are set out at the foot of the subitem (or item); or (b) another provision of this Act specifies that the subitem (or item) is a civil penalty provision. commencement means the start of 1 July 2010, or a later day prescribed by the regulations. contract or other instrument includes credit contracts, mortgages, guarantees, consumer leases and sale contracts. corresponds: see section 5. enforcement proceedings, in relation to an order made by a court or tribunal, means: (a) proceedings to enforce the order; or (b) any other proceedings in relation to a contravention of the order. interlocutory application means an application that: (a) is made during the course of proceedings; and (b) is for an order that is incidental to the principal object of those proceedings, including, for example: (i) an order about the conduct of those proceedings; or (ii) an order assisting a party to those proceedings to present their case in those proceedings; or (iii) an order protecting or otherwise dealing with property that is the subject matter of those proceedings; but not including an order making a final determination of existing rights or liabilities. interlocutory order means: (a) an order made in relation to an interlocutory application; or (b) an order or direction about the conduct of proceedings. interlocutory proceedings means proceedings: (a) dealing only with; or (b) to the extent it deals with; an interlocutory application. liability includes a duty or obligation. made includes issued, given or published. National Credit Act means the National Consumer Credit Protection Act 2009 and includes instruments made under that Act. new Credit Code means Schedule 1 to the National Credit Act and includes: (a) regulations made under section 329 of the National Credit Act for the purposes of that Schedule; and (b) instruments made under subsection 6(14) or (17) of that Schedule. old Credit Code means the following: (a) for New South Wales—the Consumer Credit (New South Wales) Code, and the Consumer Credit (New South Wales) Regulations, within the meaning of the Consumer Credit (New South Wales) Act 1995 of New South Wales, as in force from time to time before commencement; (b) for Victoria—the Consumer Credit (Victoria) Code, and the Consumer Credit (Victoria) Regulations, within the meaning of the Consumer Credit (Victoria) Act 1995 of Victoria, as in force from time to time before commencement; (c) for Queensland—the Consumer Credit (Queensland) Code, and the Consumer Credit (Queensland) Regulations, within the meaning of the Consumer Credit (Queensland) Act 1994 of Queensland, as in force from time to time before commencement; (d) for Western Australia—the Consumer Credit (Western Australia) Code, and the Consumer Credit (Western Australia) Code Regulations, within the meaning of the Consumer Credit (Western Australia) Act 1996 of Western Australia, as in force from time to time before commencement; (e) for South Australia—the Consumer Credit (South Australia) Code, and the Consumer Credit (South Australia) Regulations, within the meaning of the Consumer Credit (South Australia) Act 1995 of South Australia, as in force from time to time before commencement; (f) for Tasmania—the Consumer Credit (Tasmania) Code, and the Consumer Credit (Tasmania) Regulations, within the meaning of the Consumer Credit (Tasmania) Act 1996 of Tasmania, as in force from time to time before commencement; (g) for the Australian Capital Territory—the Consumer Credit (Australian Capital Territory) Code, and the Consumer Credit (Australian Capital Territory) Regulations, within the meaning of the Consumer Credit Act 1995 of the Australian Capital Territory, as in force from time to time before commencement; (h) for the Northern Territory—the Consumer Credit (Northern Territory) Code, and the Consumer Credit (Northern Territory) Regulations, within the meaning of the Consumer Credit (Northern Territory) Act 1995 of the Northern Territory, as in force from time to time before commencement. old right or liability: see subitem 11(1) or 12(1) of Schedule 1 to this Act. order of a court or tribunal includes any judgment, conviction or sentence of the court or tribunal. preserved instrument means an instrument that, because of item 10 of Schedule 1 to this Act, has effect after commencement as if it were made under the new Credit Code. primary proceedings means proceedings other than interlocutory proceedings. proceedings means proceedings, whether criminal or civil, before a court or tribunal. registered means registered under item 12 of Schedule 2 to this Act. registered person means a person who is registered under item 12 of Schedule 2 to this Act. registered to engage in a credit activity: a person is registered to engage in a credit activity if the person is registered, and the registration authorises the person to engage in the credit activity. registrable corporation has the same meaning as in section 7 of the Financial Sector (Collection of Data) Act 2001. registration means registration under item 12 of Schedule 2 to this Act. representative of a person means: (a) if the person is a registered person: (i) a credit representative of the registered person; or (ii) an employee or director of the registered person; or (iii) an employee or director of a related body corporate of the registered person; or (iv) any other person acting on behalf of the registered person; or (b) in any other case: (i) an employee or director of the person; or (ii) an employee or director of a related body corporate of the person; or (iii) any other person acting on behalf of the person. right includes an interest or status. sale contract: has the same meaning as in section 125 of the new Credit Code. substituted right or liability: see subitem 11(2) or 12(3) of Schedule 1 to this Act. this Act includes instruments made under this Act. transition end day means 30 June 2011, or a later day prescribed by the regulations. tribunal means tribunal in Australia. (2) In this Act, expressions that are defined in the National Credit Act (other than in the new Credit Code) have the same meanings as they have in that Act. 5 Meaning of corresponds (1) A provision (the old provision) of the old Credit Code of a referring State or a Territory corresponds to a provision (the new provision) of the new Credit Code (and vice versa) if: (a) the old provision and the new provision are substantially the same, unless the regulations specify that the 2 provisions do not correspond; or (b) the regulations specify that the 2 provisions correspond. Note: The range of provisions of the new Credit Code that may be corresponding provisions for the purposes of this Act is affected by item 12 of Schedule 1 to this Act, which takes certain provisions of the old Credit Code to be included in the new Credit Code. (2) For the purposes of paragraph (1)(a), differences of all or any of the following kinds are not sufficient to mean that 2 provisions are not substantially the same: (a) differences in the numbering of the provisions; (b) differences of a minor technical nature (for example, differences in punctuation, or differences that are attributable to the correction of incorrect cross references) or of style; (c) the fact that: (i) the old provision allowed a tribunal to exercise powers but the new provision only allows a court to do so; or (ii) the old provision allowed proceedings to be brought in a tribunal but the new provision only allows proceedings to be brought in a court; or (iii) the old provision allowed or required a particular agency to exercise powers or perform functions but the new provision allows or requires ASIC to do so; (d) other differences that are attributable to the fact that the new Credit Code applies as a Commonwealth law; (e) other differences of a kind prescribed by the regulations. (3) Subsection (2) is not intended to otherwise limit the circumstances in which 2 provisions are, for the purposes of paragraph (1)(a), substantially the same. (4) The regulations may provide that a specified provision of the old Credit Code of a referring State or a Territory does, or does not, correspond to a specified provision of the new Credit Code. Part 3—Other matters 6 Regulations may deal with transitional matters (1) The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The regulations may prescribe matters of a transitional nature (including matters of an application or saving nature): (a) arising out of the enactment of the National Credit Act; or (b) relating to the transition from the application of provisions of the old Credit Codes, or related laws, of the referring States and the Territories to the application of provisions of the National Credit Act. The regulations have effect despite anything else in this Act. (3) The regulations may provide that certain provisions of this Act are taken to be modified as set out in the regulations. Those provisions then have effect as if they were so modified. (4) Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply to regulations made under this section. (5) If: (a) regulations are expressed to commence on a date (the registration date) before the regulations are registered under the Legislation Act 2003; and (b) a person engaged in conduct before the registration date; and (c) apart from the retrospective effect of the regulations, the conduct would not have contravened: (i) this Act; or (ii) the National Credit Act (including the new Credit Code) as it applies because of this Act; then a court must not convict the person of an offence, or order the person to pay a pecuniary penalty, in relation to the conduct on the grounds that it contravened either of those Acts. (6) The provisions of this Act that provide for regulations to deal with matters do not limit each other. 7 Acquisition of property (1) A provision of this Act does not apply, and is taken never to have applied, to the extent that the operation of the provision would result in an acquisition of property from a person otherwise than on just terms. (2) In subsection (1), acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution. Schedule 1—Transition from the old Credit Codes to the National Credit Act Part 1—Introduction 1 Guide to this Schedule This Schedule deals with the transition from the regime provided for in the old Credit Codes of the referring States and the Territories to the new regime provided for in the National Credit Act (including the new Credit Code) and Schedule 2 to this Act. Regulations made under section 6 may also deal with that transition. Those regulations may provide for matters in addition to those provided in this Schedule and they may modify how this Schedule applies. Part 2—Transition from the old Credit Codes to the new Credit Code Division 1—Object of this Part 2 Object of this Part (1) The object of this Part is to provide for a smooth transition from the regime provided for in the old Credit Code of a referring State or a Territory to the regime provided for in the new Credit Code, so that natural persons, bodies corporate and other bodies are, to the greatest extent possible, put in the same position immediately after commencement as they would have been if: (a) that old Credit Code had, from time to time when it was in force, been valid Commonwealth legislation applying in that State or Territory; and (b) the new Credit Code (to the extent it contains provisions that correspond to provisions of the old Credit Code as in force immediately before commencement) were a continuation of that old Credit Code as so applying. Note: The new Credit Code contains provisions that correspond to many of the provisions of the old Credit Code. (2) In resolving any ambiguity as to the meaning of any of the other provisions of this Part, an interpretation that is consistent with the object of this Part is to be preferred to an interpretation that is not consistent with that object. Division 1A—Application of the new Credit Code 2A Application of the new Credit Code (1) The new Credit Code applies from commencement. Note: The new Credit Code does not apply before commencement. It also does not apply in relation to contracts or other instruments that were made before commencement, unless they are carried over instruments (see item 3). (2) Subitem (1) is subject to subitem 3(2). Division 2—Treatment of contracts or other instruments made before commencement 3 Application of the new Credit Code to contracts or other instruments made before commencement (1) The new Credit Code does not apply in relation to a contract or other instrument that was made before commencement. (2) Despite subitem (1), the new Credit Code applies in relation to a carried over instrument. (3) Despite subitem (2), sections 5, 13 and 172 of the new Credit Code do not apply in relation to a carried over instrument. Instead, sections 6, 11 and 150 of the old Credit Code of a referring State or a Territory, as in force immediately before commencement, apply from commencement in relation to a carried over instrument as if those provisions respectively were sections 5, 13 and 172 of the new Credit Code. (4) Despite subitem (2), subsections 6(2) and 50(2), (3), (4), (5) and (8) of the new Credit Code do not apply in relation to a carried over instrument. (5) Despite subitem (2), subsection 72(5) of the new Credit Code does not apply in relation to a carried over instrument. Instead, the following provision applies from commencement in relation to a carried over instrument as if the provision were subsection 72(5) of the new Credit Code: Application (5) This section and sections 73 to 75 do not apply to a credit contract under which the maximum amount of credit that is or may be provided is more than an amount equal to 110% of the amount of the average loan size for the purchase of new dwellings in New South Wales as set out in the Table of Housing Finance Commitments in the most recent publication entitled Housing Finance, Australia, as published from time to time by the Australian Bureau of Statistics. (6) Despite subitem (2), subsection 94(4) of the new Credit Code does not apply in relation to a carried over instrument. Instead, the following provision applies from commencement in relation to a carried over instrument as if the provision were subsection 94(4) of the new Credit Code: (4) This Division does not apply to a credit contract in respect of which the maximum amount of credit that is or may be provided is more than an amount equal to 110% of the amount of the average loan size for the purchase of new dwellings in New South Wales as set out in the Table of Housing Finance Commitments in the most recent publication entitled Housing Finance, Australia, as published from time to time by the Australian Bureau of Statistics. Division 3—Treatment of court and tribunal proceedings and orders 4 Treatment of proceedings brought in a court under the old Credit Code before commencement (1) This item applies to proceedings (the old proceedings) in relation to which the following paragraphs are satisfied: (a) the proceedings were brought in a court before commencement in relation to a carried over instrument; (b) the proceedings were brought in relation to a provision (the old provision) of the old Credit Code of a referring State or a Territory; (c) the proceedings were not enforcement proceedings, or appeal or review proceedings, in relation to an order of a court; (d) the proceedings had not been concluded or terminated before commencement; (e) either: (i) if the proceedings are primary proceedings—no final determination of any of the existing rights or liabilities at issue in the proceedings had been made before commencement; or (ii) if the proceedings are interlocutory proceedings—this item applies to the primary proceedings to which the interlocutory proceedings relate. Note: This item does not apply to proceedings in a tribunal that were brought under the old Credit Code before commencement. For proceedings in a tribunal, see item 6. (2) Proceedings (the new proceedings) equivalent to the old proceedings are, on commencement, taken to have been brought in the same court, exercising federal jurisdiction under the provision of the new Credit Code that corresponds to the old provision. Note: This means that the new proceedings will stay in the same court as the old proceedings, but the court will now be exercising federal jurisdiction for the new proceedings. (3) To the extent that the old proceedings, before commencement, related to old rights or liabilities, the new proceedings relate to the substituted rights and liabilities in relation to those old rights or liabilities. Note 1: See items 11 and 12 for the creation of substituted rights and liabilities. Note 2: In all cases, there will be a provision of the new Credit Code that corresponds to the relevant old provision, either because the new Credit Code actually contains a provision that corresponds to the relevant old provision or because the new Credit Code, because of item 12, is taken to include the relevant old provision. (4) The following provisions apply in relation to the new proceeding: (a) the parties to the new proceedings are the same as the parties to the old proceedings; (b) subject to subitems (5) and (6) and to any order to the contrary made by the court, the court must deal with the new proceedings as if the steps that had been taken for the purposes of the old proceedings before commencement had been taken for the purposes of the new proceedings. (5) If: (a) an interlocutory order was made before commencement for the purpose of, or in relation to, the old proceedings; and (b) that interlocutory order was in force immediately before commencement; the rights and liabilities of all persons (including rights and liabilities arising wholly or partly because of conduct occurring before commencement) are taken to be, for all purposes, the same as if the interlocutory order had instead been made by the same court, in the exercise of federal jurisdiction, for the purpose of, or in relation to, the new proceedings. (6) The court may make orders doing all or any of the following: (a) cancelling or varying rights or liabilities that a person has because of subitem (5); (b) substituting other rights or liabilities for rights or liabilities a person has because of subitem (5); (c) adding rights or liabilities to the rights or liabilities a person has because of subitem (5); (d) enforcing, or otherwise dealing with conduct contrary to, a right or liability a person has because of subitem (5) in the same way as it could enforce, or deal with, the right, liability or conduct if the right or liability had arisen under or because of an order made by the court in the exercise of federal jurisdiction under the new Credit Code. 5 References to court proceedings and orders in the new Credit Code (1) A reference in the new Credit Code to the bringing of proceedings, or the taking of a step in proceedings, in a court under or in relation to a provision of the new Credit Code includes a reference to the bringing of proceedings, or the taking of the equivalent step in proceedings, in a court before commencement, in relation to a carried over instrument, under or in relation to the corresponding provision of the old Credit Code of a referring State or a Territory. Note: This subitem only relates to proceedings in a court (not proceedings in a tribunal). For proceedings in a tribunal, see item 6. (2) A reference in the new Credit Code to an order made by a court under or in relation to a provision of the new Credit Code includes a reference to an order made by a court before commencement, in relation to a carried over instrument, under or in relation to the corresponding provision of the old Credit Code of a referring State or a Territory. Note: This subitem only relates to orders of a court (not orders of a tribunal). For orders of a tribunal, see item 6. (3) Nothing in subitem (2) is taken to produce a result that would: (a) make a person liable, under the new Credit Code, to any penalty (whether civil or criminal) provided for in an order referred to in subitem (2); or (b) enable enforcement proceedings, or appeal or review proceedings, in relation to such an order to be taken in a court under the new Credit Code; or (c) enable proceedings by way of appeal, or other review, of such an order to be taken in a court under the new Credit Code. (4) If, after commencement, an order referred to in subitem (2) is varied or set aside on appeal or review, subitem (2) applies, or is taken to have applied, from the time from which the variation or setting aside takes or took effect, as if: (a) if the order is varied—the order had been made as so varied; or (b) if the order is set aside—the order had not been made. (5) Despite, subitems (1) and (2), the regulations may provide that subitem (1) or (2) does not apply in relation to a particular reference or class of references in the new Credit Code. 6 Treatment of tribunal proceedings and orders under the old Credit Code before or after commencement (1) The new Credit Code does not apply in relation to: (a) proceedings that are brought in a tribunal under the old Credit Code of a referring State or a Territory before or after commencement; or (b) orders that are made by a tribunal under the old Credit Code of a referring State or a Territory before or after commencement; or (c) rights or liabilities arising in relation to proceedings that are brought in, or orders that are made by, a tribunal under the old Credit Code of a referring State or a Territory before or after commencement. (2) This Act and the National Credit Act are not intended to exclude or limit the operation of a law of a referring State or a Territory relating to: (a) proceedings that are brought in a tribunal under the old Credit Code of a referring State or a Territory before or after commencement; or (b) orders that are made by a tribunal under the old Credit Code of a referring State or a Territory before or after commencement; or (c) rights or liabilities arising in relation to proceedings that are brought in, or orders that are made by, a tribunal under the old Credit Code of a referring State or a Territory before or after commencement. 7 Interlocutory proceedings For the purpose of this Part, if interlocutory proceedings (the first proceedings) relate to other interlocutory proceedings (the second proceedings), the first proceedings are taken to relate also to the primary proceedings to which the second proceedings relate. Division 4—General transitional provisions relating to other things done etc. under the old Credit Code 8 Limitations on scope of this Division (1) This Division has effect subject to Divisions 2 and 3 (which deal with matters in more specific terms). (2) This Division does not apply in relation to: (aa) a contract or other instrument that is not a carried over instrument; or (a) an order made by a court or tribunal before commencement; or (b) a right or liability under an order made by a court or tribunal before commencement; or (c) proceedings brought (including appeal, review or enforcement proceedings) in a court or tribunal before commencement, or a step in such proceedings; or (d) a right to: (i) appeal to a court or tribunal against an order made by a court or tribunal before commencement; or (ii) apply to a court or tribunal for review of such an order; or (iii) bring appeal or review proceedings, or enforcement proceedings, in relation to such an order. Note: Division 3 deals with orders and proceedings made or begun in courts or tribunals before commencement, and with related matters. (3) Despite paragraph (2)(c), items 11 and 12 apply to any right or liability to which proceedings to which item 4 applies relate. (4) Except as mentioned in subitems (1) to (3), Divisions 2 and 3, and regulations made under section 6, do not limit this Division. 9 Provisions of this Division may have an overlapping effect (1) This Division deals at a broad level with concepts and matters in a way that is intended to achieve the object of this Part as set out in item 2. (2) Some of the provisions of this Division will (depending on the situation) have an effect that overlaps or interacts to some extent with the effect of other provisions of this Division. This is intended, and the provisions of this Division should be not be regarded as dealing with mutually exclusive situations. 10 Things done by or under carried over provisions continue to have effect (1) A thing that: (a) was done before commencement by, under, or for the purposes of, a carried over provision of the old Credit Code of a referring State or a Territory; and (b) had an ongoing significance (see subitems (3) and (4)) immediately before commencement for the purposes of that Code; has effect (and may be dealt with) after commencement, for the purposes of the new Credit Code, as if it were done by, under, or for the purposes of, the corresponding provision of the new Credit Code. Note: This item does not apply in relation to things done before commencement that relate to court or tribunal orders or proceedings: see subitem 8(2). (2) Without limiting subitem (1), examples of things done include: (a) the making of an instrument or order (but not including the making of an order by a court or tribunal); and (b) the making of an application or claim (but not including the making of an application or claim to a court or tribunal); and (c) the granting of an application or claim (but not including the granting of an application or claim by a court or tribunal); and (d) the making of an appointment or delegation; and (e) the commencement of a procedure or the taking of a step in a procedure (but not including the bringing of proceedings in a court or tribunal); and (f) requiring a person to do, or not to do, something (but not including a requirement contained in an order made by a court or tribunal); and (g) the giving of a notice or document. (3) A thing done by, under, or for the purposes of, a carried over provision of the old Credit Code of a referring State or a Territory had an ongoing significance immediately before commencement for the purposes of that Code if: (a) if the thing done was the making of an instrument or order—the instrument or order was still in force immediately before commencement; or (b) if the thing done was the making of an application or claim—the application or claim had not been decided, and had not otherwise ceased to have effect, before commencement; or (c) if the thing done was the granting of an application or claim—the thing granted had not been revoked, and had not otherwise ceased to have effect, before commencement; or (d) if the thing done was the making of an appointment or delegation—the appointment or delegation had not been revoked, and had not otherwise ceased to have effect, before commencement; or (e) if the thing done was the commencement of a procedure or the taking of a step in a procedure—the procedure was still in progress immediately before commencement or was otherwise still having an effect; or (f) if the thing done was requiring a person to do, or not to do something—the requirement was still in force immediately before commencement; or (g) if the thing done was the giving of a notice or document, or the doing of some other thing—the notice or document (or the giving of the notice or document), or the thing (or the doing of the thing), had an ongoing effect or significance immediately before commencement for the purposes of the old Credit Code of the State or Territory. (4) Despite subitem (3), the regulations may provide that a specified thing done under, or for the purposes of, a carried over provision of the old Credit Code of a referring State or a Territory did, or did not, have an ongoing significance immediately before commencement for the purposes of that Code. 11 Creation of equivalent rights and liabilities to those that existed before commencement under carried over provisions of the old Credit Code (1) This item applies in relation to a right or liability (the old right or liability), whether civil or criminal, that: (a) was acquired, accrued or incurred under a carried over provision of the old Credit Code of a referring State or a Territory; and (b) was in existence immediately before commencement. Note: This item does not apply in relation to a right or liability under orders made by a court or tribunal before commencement: see subitem 8(2). (2) On commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the old right or liability, under the corresponding provision of the new Credit Code, as if that provision applied to the conduct or circumstances that gave rise to the old right or liability. Note: If a time limit applied in relation to the old right or liability under the old Credit Code, that same time limit (calculated from the same starting point) will apply under the new Credit Code to the substituted right or liability: see subitem 13(3). (3) A procedure, proceeding or remedy in relation to the substituted right or liability may be brought after commencement under the new Credit Code, as if that provision applied to the conduct or circumstances that gave rise to the old right or liability. Note: For pre‑commencement proceedings in relation to substituted rights and liabilities, see item 4. 12 Creation of equivalent rights and liabilities to those that existed before commencement under repealed provisions of the old Credit Code (1) This item applies in relation to a right or liability (the old right or liability), whether civil or criminal, that: (a) was acquired, accrued or incurred under a provision of the old Credit Code of a referring State or a Territory that was no longer in force immediately before commencement; and (b) was in existence immediately before commencement. Note: This item does not apply in relation to a right or liability under orders made by a court or tribunal before commencement: see subitem 8(2). (2) For the purposes of subitems (3) and (4), the new Credit Code is taken to include: (a) the provision of the old Credit Code (with such modifications (if any) as are necessary) under which the old right or liability was acquired, accrued or incurred; and (b) the other provisions of the old Credit Code (with such modifications (if any) as are necessary) that applied in relation to the old right or liability; other than to the extent that the provision relates to proceedings in, or orders of, a tribunal. (3) On commencement, the person acquires, accrues or incurs a right or liability (the substituted right or liability), equivalent to the old right or liability, under the provision taken to be included in the new Credit Code by paragraph (2)(a), as if that provision applied to the conduct or circumstances that gave rise to the old right or liability. Note: If a time limit applied in relation to the old right or liability under the old Credit Code, that same time limit (calculated from the same starting point) will apply under the new Credit Code to the substituted right or liability: see subitem 13(3). (4) A procedure, proceeding or remedy in relation to the substituted right or liability may be instituted after commencement under the provisions taken to be included in the new Credit Code by subitem (2), as if those provisions applied to the conduct or circumstances that gave rise to the old right or liability. Note: For pre‑commencement proceedings in relation to substituted rights and liabilities, see item 4. 13 Old Credit Code time limits etc. (1) An old Credit Code time limit (see subitem (2)): (a) the starting point of which: (i) was known or had been determined before commencement (whether that starting point occurred or would occur before, on or after commencement); or (ii) would have become known, or have been determined, after commencement if the old Credit Code of the referring State or the Territory had continued to apply (whether that starting point would have occurred before, on or after commencement); and (b) that had not ended at or before commencement; continues to run, or starts or started to run, as if that same time limit (starting from the same starting point) were applicable under the new Credit Code. (2) An old Credit Code time limit includes: (a) a period for the doing of a thing specified or determined under the old Credit Code of a referring State or a Territory; or (b) a period specified or determined under a provision of the old Credit Code of a referring State or a Territory as the duration of a particular instrument or status. (3) If: (a) under the old Credit Code of a referring State or a Territory, a process, a status of a person or body, or an instrument, commenced from a particular time before commencement; and (b) that process, status or instrument is continued after commencement for the purposes of the new Credit Code by a provision of this Schedule; that process, status or instrument as so continued is still taken to have commenced from the time referred to in paragraph (a). (4) If an old Credit Code time limit related to an old right or liability, the same time limit applies in relation to the substituted right or liability. 14 Preservation of significance etc. of events or circumstances (1) An event, circumstance or other thing: (a) that occurred or arose before commencement under or as mentioned in a provision of the old Credit Code of a referring State or a Territory; and (b) that had a particular significance, status or effect for the purposes of a carried over provision of that Code (including because of an interpretive provision); has that same significance, status and effect after commencement for the purposes of the provision of the new Credit Code that corresponds to that carried over provision. (2) Without limiting subitem (1), an event, circumstance or other thing had a particular significance for the purposes of a carried over provision of the old Credit Code of a referring State or a Territory if: (a) the carried over provision created an obligation in relation to the event, circumstance or thing (whenever it arose); or (b) the carried over provision provided for the event, circumstance or thing to be dealt with in a particular way; or (c) the carried over provision stated that the event, circumstance or thing (whenever it arose) was to be disregarded for the purposes of that provision or was not covered by that provision. 15 References in the new Credit Code generally include references to events, circumstances or things that happened or arose before commencement (1) A reference in the new Credit Code to an event, circumstance or thing of a particular kind that happens or arises, or that has happened or arisen, is taken to include a reference to an event, circumstance or thing of that kind that happened or arose at a time before commencement, unless a contrary intention is expressed. (2) The fact that the provision uses only the present tense in referring to an event, circumstance or thing is not, of itself, to be regarded as an expression of a contrary intention. (3) Nothing in subitem (1) is taken to produce a result that a right or liability exists under a provision of the new Credit Code that relates solely to events, circumstances or things that occurred before commencement. Note: Instead, an equivalent right or liability will be created by item 11 or 12. (4) Despite subitem (1), the regulations may provide that subitem (1) does not apply in relation to a particular reference or class of references in the new Credit Code. 16 References to things taken or deemed to be the case etc. If: (a) a law of a referring State or a Territory had effect before commencement: (i) to take or deem something to have happened or to be the case, or to have a particular effect, under or for the purposes of the old Credit Code of that State or Territory (or a provision of that Code); or (ii) to give something an effect for the purposes of the old Credit Code of that State or Territory (or a provision of that Code) that it would not otherwise have had; and (b) that effect was continuing immediately before commencement; this Part applies as if that thing had actually happened or were actually the case, or as if that thing actually had that other effect. 17 Penalty units in relation to pre‑commencement conduct remain at $100 (1) If, because of this Part, an offence can be prosecuted after commencement in relation to conduct that occurred solely before commencement, the amount of a penalty unit in relation to that offence is $100. (2) Subitem (1) has effect despite section 4AA of the Crimes Act 1914. Part 3—Application of the National Credit Act (other than the new Credit Code) and Schedule 2 to this Act Division 1—Application of the National Credit Act (other than Chapter 3 and the new Credit Code) 17A Application of the National Credit Act (other than Chapter 3 and the new Credit Code) (1) The National Credit Act (other than Chapter 3 and the new Credit Code) applies from commencement. Note 1: The National Credit Act does not apply before commencement. However, see subitem (2), which provides that regulations made under section 329 of the National Credit Act may apply before commencement. Note 2: See item 19 for the application of Chapter 3 (which deals with responsible lending conduct) of the National Credit Act. Note 3: See items 2A and 3 for the application of the new Credit Code. Note 4: Generally, the National Credit Act (other than the new Credit Code) does not apply to contracts or other instruments made before commencement. However, see item 18 for exceptions to this. (2) Despite subitem (1), regulations made under section 329 of the National Credit Act may apply on and after the day section 3 of the National Credit Act commences. 18 Treatment of contracts or other instruments made before commencement (1) The National Credit Act (other than Chapter 3 and the new Credit Code) does not apply in relation to a contract or other instrument that was made before commencement. Note 1: See item 19 for the application of Chapter 3 (which deals with responsible lending conduct) of the National Credit Act. Note 2: See items 2A and 3 for the application of the new Credit Code. (2) Despite subitem (1), the regulations may provide for the application of all or specified provisions of the National Credit Act to a person (including the licensing of that person) in relation to credit activities engaged in on or after commencement in relation to a carried over instrument. (3) Despite subitem (1), Part 4‑3 of the National Credit Act (which deals with the jurisdiction and procedure of courts) applies to proceedings brought under the new Credit Code after commencement in relation to a carried over instrument. (4) Despite subitem (1), regulations made under section 329 of the National Credit Act for the purposes of section 330 of that Act or the new Credit Code may make provision in relation to proceedings brought after commencement in relation to a carried over instrument. Division 2—Application of Chapter 3 of the National Credit Act 19 Application of Chapter 3 of the National Credit Act When all of Chapter 3 (responsible lending conduct) applies to all licensees (1) Chapter 3 (which deals with responsible lending conduct) of the National Credit Act applies on and after the day (the Chapter 3 start day) that is 1 January 2011, or a later day prescribed by the regulations. Note: Chapter 3 of the National Credit Act does not apply before the Chapter 3 start day. However, under subitem (2), certain provisions of Chapter 3 apply before then to some licensees (and registered persons because of item 36 of Schedule 2 to this Act). When certain provisions of Chapter 3 apply earlier for some licensees (2) Despite subitem (1), sections 112, 115, 116, 117, 118, 119, 122, 123, 124, 128, 129, 130, 131, 133, 135, 138, 139, 140, 141, 142, 145, 146, 147, 151, 152, 153, 154, 156, 162, 163 and 164 (which deal with the main responsible lending conduct rules) of the National Credit Act apply in relation to conduct engaged in by a licensee in the period that: (a) starts on commencement; and (b) ends immediately before the Chapter 3 start day; if: (c) the licensee is neither an ADI nor a registrable corporation; and (d) the conduct is engaged in in relation to a contract or other instrument made on or after commencement. Application of Chapter 3 in relation to contracts or other instruments (3) Chapter 3 of the National Credit Act does not apply in relation to a contract or other instrument that was made before commencement. Note: Chapter 3 of the National Credit Act applies in relation to contracts or other instruments made on or after commencement, but see subitem (4) for exceptions to this. (4) Despite subitem (3), sections 120, 132, 143 and 155 of the National Credit Act do not apply in relation to a contract or other instrument that was made before the Chapter 3 start day. (5) This item is subject to subitem 18(2) (which deals with regulations that provide for the application to a person of the National Credit Act). Division 3—Application of Schedule 2 to this Act 20 Application of Schedule 2 to this Act in relation to contracts or other instruments (1) Schedule 2 to this Act (which deals with registration) does not apply in relation to a contract or other instrument that was made before commencement. Note 1: Schedule 2 applies in relation to contracts or other instruments made on or after commencement. Note 2: Schedule 2 applies from the time it commences (see item 3 of the commencement table in section 2). However, some provisions of Schedule 2 expressly provide that parts of Schedule 2 apply from a later time. (2) Despite subitem (1), the regulations may provide for the application of all or specified provisions of Schedule 2 to a person (including the registration of that person) in relation to credit activities engaged in on or after commencement in relation to a carried over instrument. Part 4—Transitional provisions relating to ASIC 21 Regulations about ASIC's approach during the transitional period The regulations may provide for the approach ASIC must take in the administration of this Act or the National Credit Act during the period that: (a) starts on the day section 3 of the National Credit Act commences; and (b) ends on 30 June 2011, or a later day prescribed by the regulations. 22 Regulations about transfer of information etc. to ASIC The regulations may provide for the transfer of information, documents, assets or liabilities to ASIC from: (a) a referring State or a Territory; or (b) an authority of a referring State or a Territory. 23 ASIC's role in relation to appeal, review or enforcement proceedings (1) ASIC has the functions and powers in relation to appeal, review or enforcement proceedings that are expressed to be conferred on it by or under a law of the Commonwealth or a Territory. (2) ASIC also has the functions and powers in relation to appeal, review or enforcement proceedings that are expressed to be conferred on it by or under a law of a referring State. However, ASIC: (a) is not subject to any directions in the performance of such functions or the exercise of such powers; and (b) is not under a duty to perform such functions or exercise such powers. (3) If a Minister of a referring State or a Territory appoints a person (other than ASIC) to bring or continue appeal, review or enforcement proceedings in the State or Territory, ASIC may give the person any information and documents that ASIC has in relation to the proceedings. (4) In this item: appeal, review or enforcement proceedings means: (a) appeal or review proceedings; or (b) enforcement proceedings; in relation to an order made by a court. Note: This item does not apply to tribunal orders or proceedings. Schedule 2—Registration of persons to engage in credit activities Part 1—Introduction 1 Guide to this Schedule This Schedule is about the registration of persons to engage in credit activities. Registration is a transitional authorisation to engage in credit activities. It applies in the period before all persons who engage in credit activities are required to be licensed under Chapter 2 of the National Credit Act. Regulations made under section 6 may also deal with transitional matters relating to the registration of persons to engage in credit activities. Those regulations may provide for matters in addition to those provided in this Schedule and they may modify how this Schedule applies. This Part deals with how certain provisions of Part 1‑2 (which deals with definitions) of the National Credit Act apply in relation to this Schedule. Divisions 1 and 2 of Part 2 set out requirements that apply to persons who engage in credit activities during particular transitional periods. Division 3 of Part 2 deals with how the requirements in Division 3 of Part 2‑1 (which deals with certain requirements in relation to credit activities) of the National Credit Act apply in relation to registered persons. Part 3 deals with how a person becomes registered, the conditions on registration, the obligations of a registered person, and the suspension and cancellation of registration. Part 4 deals with how other provisions of the National Credit Act apply in relation to registered persons. These provisions include Part 2‑3 (which deals with credit representatives and other representatives), Part 2‑4 (which deals with banning and disqualification) and Divisions 2 and 4 of Part 2‑5 (which deal with financial records and auditors) of the National Credit Act. Part 5 deals with exemptions from, and modifications of, certain provisions of this Schedule. Part 6 allows regulations to provide for infringement notices in relation to the civil penalty provisions and offences in this Schedule. 2 Application of Part 1‑2 of the National Credit Act Part 1‑2 (which deals with definitions) of the National Credit Act applies as if the references in sections 10, 14, 15 and 16 to "this Act" were references to "this Act and Schedule 2 to the Transitional Act". Note: Expressions that are defined in the National Credit Act (other than the new Credit Code) have the same meanings in this Act as they have in the National Credit Act: see subsection 4(2). Part 2—Transitional prohibitions relating to credit activities Division 1—Prohibition that applies only from commencement to 31 December 2010, or later prescribed day 3 Application of this Division This Division applies during the period that: (a) starts on commencement; and (b) ends on 31 December 2010, or a later day prescribed by the regulations. 4 Prohibition on engaging in credit activities if not registered or licensed during the period Prohibition on engaging in credit activities if not registered or licensed (1) A person must not engage in a credit activity unless: (a) the person is registered to engage in the credit activity; or (b) the person holds a licence authorising the person to engage in the credit activity. Civil penalty: 2,000 penalty units. Offence (2) A person commits an offence if: (a) the person is subject to a requirement under subitem (1); and (b) the person engages in conduct; and (c) the conduct contravenes the requirement. Criminal penalty: 200 penalty units, or 2 years imprisonment, or both. Defences (3) For the purposes of subitems (1) and (2), it is a defence if: (a) the person engages in the credit activity on behalf of another person (the principal); and (b) the person is: (i) an employee or director of the principal or of a related body corporate of the principal; or (ii) a credit representative of the principal; and (c) the person's conduct in engaging in the credit activity is within the authority of the principal; and (d) the principal is registered to engage in the credit activity, or holds a licence authorising the principal to engage in the credit activity. Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (3): see subsection 13.3(3) of the Criminal Code. (4) For the purposes of subitems (1) and (2), it is a defence if: (a) the person engages in the credit activity on behalf of another person (the principal); and (b) the person is a representative of the principal; and (c) the person's conduct in engaging in the credit activity is within the authority of the principal; and (d) the principal is exempted from subitems (1) and (2) under paragraph 41(1)(a), 41(3)(a) or 42(a). Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (4): see subsection 13.3(3) of the Criminal Code. Division 2—Prohibition that applies only from 1 January 2011, or later prescribed day, to the transition end day 5 Application of this Division This Division applies during the period that: (a) starts immediately after the end of the period referred to in item 3; and (b) ends on the transition end day. 6 Prohibition on engaging in credit activities in certain circumstances during the period Prohibition on engaging in credit activities in certain circumstances (1) A person must not engage in a credit activity unless: (a) the person: (i) is registered to engage in the credit activity; and (ii) has applied for a licence authorising the person to engage in the credit activity in accordance with section 36 of the National Credit Act; or (b) the person holds a licence authorising the person to engage in the credit activity. Civil penalty: 2,000 penalty units. Offence (2) A person commits an offence if: (a) the person is subject to a requirement under subitem (1); and (b) the person engages in conduct; and (c) the conduct contravenes the requirement. Criminal penalty: 200 penalty units, or 2 years imprisonment, or both. Defences (3) For the purposes of subitems (1) and (2), it is a defence if: (a) the person engages in the credit activity on behalf of another person (the principal); and (b) the person is: (i) an employee or director of the principal or of a related body corporate of the principal; or (ii) a credit representative of the principal; and (c) the person's conduct in engaging in the credit activity is within the authority of the principal; and (d) the principal: (i) is registered to engage in the credit activity, and has applied for a licence authorising the principal to engage in the credit activity in accordance with section 36 of the National Credit Act; or (ii) holds a licence authorising the principal to engage in the credit activity. Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (3): see subsection 13.3(3) of the Criminal Code. (4) For the purposes of subitems (1) and (2), it is a defence if: (a) the person engages in the credit activity on behalf of another person (the principal); and (b) the person is a representative of the principal; and (c) the person's conduct in engaging in the credit activity is within the authority of the principal; and (d) the principal is exempted from subitems (1) and (2) under paragraph 41(1)(a), 41(3)(a) or 42(a). Note: For the purposes of subitem (2), a defendant bears an evidential burden in relation to the matter in subitem (4): see subsection 13.3(3) of the Criminal Code. Division 3—Application of Division 3 of Part 2‑1 of the National Credit Act in relation to registered persons and this Schedule 7 Application of this Division This Division applies during the period that: (a) starts at commencement; and (b) ends on the transition end day. 8 Application of section 30 of the National Credit Act Section 30 (which deals with prohibitions on holding out and advertising etc.) of the National Credit Act applies as if: (a) the reference in paragraph 30(1)(a) of the National Credit Act to a person holding a licence were a reference to a person holding a licence or being registered; and (b) the reference in paragraph 30(1)(b) of the National Credit Act to a person holding a licence authorising the person to engage in a particular credit activity were a reference to a person holding a licence authorising the person to engage in a particular credit activity, or being registered to engage in a particular credit activity; and (c) the reference in paragraph 30(1)(c) of the National Credit Act to a requirement to hold a licence were a reference to a requirement to hold a licence or be registered; and (d) the reference in paragraph 30(1)(e) of the National Credit Act to a licensee were a reference to a licensee or registered person; and (e) the reference in subsection 30(2) of the National Credit Act to contravening section 29 of the National Credit Act were a reference to contravening section 29 of the National Credit Act or item 4 or 6 of this Schedule. 9 Application of section 31 of the National Credit Act Section 31 (which deals with a prohibition on