National Consumer Credit Protection Act 2009

CHAPTER 7 - MISCELLANEOUS  

PART 7-1 - MISCELLANEOUS  

Division 1A - Avoidance schemes  

SECTION 323A   SCHEMES FOR AVOIDANCE PURPOSES  

General prohibition

323A(1)    
A person must not, either alone or with others, engage in any of the following conduct:

(a)    enter into a scheme;

(b)    begin to carry out a scheme;

(c)    carry out a scheme;

if, having regard to any matters as required under subsection 323B(1) or (3) , it would be reasonable to conclude that the purpose, or one of the purposes, of the person engaging in that conduct was an avoidance purpose.

Civil penalty: 5,000 penalty units.

What is an avoidance purpose?

323A(2)    
Each of the following is an avoidance purpose :

(a)    to prevent a contract from being a small amount credit contract or a consumer lease;

(b)    to cause a contract to cease to be a small amount credit contract or a consumer lease;

(c)    to avoid the application of a provision of this Act to a small amount credit contract or a consumer lease;

(d)    to avoid the application of a provision of this Act to a contract that has ceased to be a small amount credit contract or a consumer lease;

(e)    to avoid the application of a product intervention order made under Part 6-7A .

Constitutional corporations

323A(3)    
A constitutional corporation must not, either alone or with other persons, engage in any of the following conduct:

(a)    enter into a scheme;

(b)    begin to carry out a scheme;

(c)    carry out a scheme;

if, having regard to any matters as required under subsection 323B(1) or (3) , it would be reasonable to conclude that the purpose, or one of the purposes, of the constitutional corporation engaging in that conduct was an avoidance purpose.

Civil penalty: 5,000 penalty units.

Constitutional trade and commerce

323A(4)    
A person must not in the course of constitutional trade and commerce, either alone or with others, engage in any of the following conduct:

(a)    enter into a scheme;

(b)    begin to carry out a scheme;

(c)    carry out a scheme;

if, having regard to any matters as required under subsection 323B(1) or (3) , it would be reasonable to conclude that the purpose, or one of the purposes, of the person engaging in that conduct was an avoidance purpose.

Civil penalty: 5,000 penalty units.

Use of communications service

323A(5)    
A person must not use postal, telegraphic, telephonic or other like services (within the meaning of paragraph 51(v) of the Constitution), either alone or with other persons, in order to engage in any of the following conduct:

(a)    enter into a scheme;

(b)    begin to carry out a scheme;

(c)    carry out a scheme;

if, having regard to any matters as required under subsection 323B(1) or (3) , it would be reasonable to conclude that the purpose, or one of the purposes, of the person engaging in that conduct was an avoidance purpose.

Civil penalty: 5,000 penalty units.

Prohibitions independent of each other

323A(6)    
To avoid doubt, subsections (1) , (3) , (4) and (5) are independent from and do not limit each other.

Note:

However, a person can be ordered to pay a pecuniary penalty under only one of those subsections in relation to the same conduct: see section 175 .

Offence

323A(7)    
A person commits an offence if:

(a)    the person is subject to a requirement under subsection (1) , (3) , (4) or (5) ; and

(b)    the person engages in conduct; and

(c)    the conduct contravenes the requirement.

Criminal penalty: 100 penalty units.