National Consumer Credit Protection Act 2009

CHAPTER 5 - ADMINISTRATION  

PART 5-5 - OTHER ADMINISTRATIVE MATTERS  

Division 1A - Codes of conduct  

Subdivision A - Approved codes of conduct  

SECTION 238A   APPROVED CODES OF CONDUCT  

Applications

238A(1)    
If an application is made to approve a code of conduct, ASIC may, by legislative instrument, approve the code of conduct.

Identifying enforceable code provisions

238A(2)    
In the approval, ASIC may identify a provision of the code of conduct as an enforceable code provision if ASIC considers that:

(a)    the provision represents a commitment to a person by a subscriber to the code relating to transactions or dealings performed for, on behalf of or in relation to the person; and

(b)    a breach of the provision is likely to result in significant and direct detriment to the person; and

(c)    additional criteria prescribed by the regulations for the purposes of this paragraph (if any) are satisfied; and

(d)    it is appropriate to identify the provision of the code as an enforceable code provision, having regard to the matters prescribed by the regulations for the purposes of this paragraph (if any).

Note:

See also section 238E .

ASIC to be satisfied of certain matters before making approval

238A(3)    
ASIC must not approve a code of conduct unless it is satisfied that:

(a)    to the extent that the code is inconsistent with this Act or any other law of the Commonwealth under which ASIC has regulatory responsibilities - the code imposes an obligation on a subscriber that is more onerous than that imposed by this Act or any other law of the Commonwealth under which ASIC has regulatory responsibilities; and

(b)    each enforceable code provision:

(i) has been agreed with the applicant; and

(ii) is legally effective; and

(c)    it is appropriate to approve the code, having regard to the following matters:

(i) whether the obligations of subscribers to the code are capable of being enforced;

(ii) whether the applicant has effective administrative systems for monitoring compliance with the code and making information obtained as a result of monitoring publicly available;

(iii) whether the applicant has effective administrative systems for maintaining, and making publicly available, an accurate list of subscribers to the code.

Revocation

238A(4)    
ASIC may, by legislative instrument, revoke an approval of an approved code of conduct:

(a)    on application by the applicant for the approval; or

(b)    if ASIC ceases to be satisfied of the matters mentioned in subsection (3); or

(c)    if a review of the operation of the code is not completed by the applicant within the timeframe required by section 238C .

238A(5)    
Subsection (4) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901 .