National Consumer Credit Protection Act 2009
Making a banning order
80(1)
ASIC may, in writing, make one or more orders ( banning orders ) against a person: (a) if ASIC suspends or cancels a licence of the person; or (b) if the person becomes insolvent; or (c) for a natural person - if the person is convicted of fraud; or (d) if the person has:
(i) contravened any credit legislation; or
(e) if ASIC has reason to believe that the person is likely to:
(ii) been involved in a contravention of a provision of any credit legislation by another person; or
(i) contravene any credit legislation; or
(f) if ASIC has reason to believe that the person is not a fit and proper person to:
(ii) be involved in a contravention of a provision of any credit legislation by another person; or
(i) engage in one or more credit activities; or
(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001 ) of another person who engages in credit activities; or
(fa) if ASIC has reason to believe that the person is not adequately trained, or is not competent, to:
(iii) control another person who engages in credit activities; or
(i) engage in one or more credit activities; or
(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001 ) of another person who engages in credit activities; or
(fb) if the person has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA (as defined in section 910C of the Corporations Act 2001 ) relating to a complaint that relates to:
(iii) control another person who engages in credit activities; or
(i) credit activities; or
(fba) if all of the following apply:
(ii) a financial services business (within the meaning of the Corporations Act 2001 ); or
(i) an individual who holds a licence, a partner in a partnership, a body corporate or a trustee of a trust is required to pay an amount in accordance with a relevant AFCA determination (within the meaning of the Corporations Act 2001 );
(ii) the CSLR operator (within the meaning of that Act) has paid, under section 1063 of that Act, an amount of compensation for the relevant AFCA determination;
(fc) if subsection (3) applies to the person in relation to 2 or more corporations; or (g) if a prescribed State or Territory order is in force against the person; or (h) in any other circumstances prescribed by the regulations.
(iii) at the time the payment is made by the CSLR operator, the person is the individual licensee, a partner in the partnership, an officer (within the meaning of that Act) of the body corporate or the trustee of the trust; or
80(1A)
Subsection (1) has effect subject to subsection (4) .
When a person is not a fit and proper person
80(2)
For the purposes of paragraph (1)(f) , ASIC must have regard to the matters in section 37B .
When a person has been an officer of a corporation unable to pay its debts
80(3)
This subsection applies to a person in relation to a corporation if, within the last 7 years: (a) the person was an officer (within the meaning of the Corporations Act 2001 ) of the corporation when the corporation was:
(i) engaging in credit activities; or
(b) the corporation was wound up either:
(ii) carrying on a financial services business (within the meaning of the Corporations Act 2001 ); and
(i) while the person was such an officer of the corporation; or
(c) a liquidator lodged a report under subsection 533(1) of the Corporations Act 2001 (including that subsection as applied by section 526-35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ) about the corporation ' s inability to pay its debts.
(ii) within the 12 months after the person ceased to be such an officer of the corporation; and
Person to be given an opportunity to be heard
80(4)
Subject to subsection (5) , if ASIC has not delegated its power to make a banning order against a person to a Financial Services and Credit Panel, ASIC may make the order only after giving the person an opportunity: (a) to appear, or be represented, at a hearing before ASIC that takes place in private; and (b) to make submissions to ASIC on the matter.
Note:
If ASIC delegates its power to make a banning order against a person to a Financial Services and Credit Panel, the panel may make the order only after holding a hearing in relation to the proposed order (see section 157 of the ASIC Act).
80(5)
ASIC may make a banning order against a person without giving the person the opportunities mentioned in subsection (4) if: (a) either:
(i) ASIC has not delegated its power to make the banning order to a Financial Services and Credit Panel; or
(b) subsection (6) or (6A) applies.
(ii) ASIC exercises its power to make the banning order despite such a delegation; and
Note:
See section 34AB of the Acts Interpretation Act 1901 (effect of delegation).
80(6)
This subsection applies if: (a) ASIC ' s grounds for making a banning order against a person include that ASIC has suspended or cancelled a licence of the person (see paragraph (1)(a) ); and (b) the suspension or cancellation took place without a hearing under section 54 .
80(6A)
This subsection applies if: (a) ASIC ' s grounds for making a banning order against a person include that the person has been convicted of fraud (see paragraph (1)(c) ); and (b) the person has been convicted of serious fraud.
Copy of banning order to be given to the person
80(7)
ASIC must give a copy of a banning order to the person against whom it was made.
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