National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Act 2011 (84 of 2011)
Schedule 1 Amendments
Part 1 Amendments relating to home loans
National Consumer Credit Protection Act 2009
5 After Part 3-2
Insert:
Part 3-2A - Licensees that are credit providers under credit contracts: additional rules relating to standard home loans
Division 1 - Introduction
133A Guide to this Part
This Part has rules that apply to licensees that are credit providers under standard home loans. It applies in addition to the general rules in Part 3-2.
Division 2 imposes requirements aimed at ensuring a consumer can obtain a Key Facts Sheet for a standard home loan.
Division 2 - Key Facts Sheets for standard home loans
133AA What is a standard home loan ?
(1) A standard home loan of a licensee is a standard form of credit contract under which the licensee provides credit:
(a) to purchase residential property; or
(b) to refinance credit that has been provided wholly or predominantly to purchase residential property.
(2) The regulations may make provisions that apply to determining, for the purpose of subsection (1), whether a credit contract is a standard form of credit contract.
133AB What is a Key Facts Sheet for a standard home loan?
(1) A Key Facts Sheet for a standard home loan is a document:
(a) that contains the information relating to the standard home loan that is required by the regulations; and
(b) that complies with any other requirements prescribed by the regulations.
(2) Without limiting paragraph (1)(a), regulations made for the purpose of that paragraph:
(a) may require a Key Facts Sheet for a standard home loan to contain information:
(i) that is specific to the consumer by whom the Key Facts Sheet is to be generated under section 133AC or to whom it is to be provided under section 133AD; and
(ii) that relates to the cost or implications of the loan for the consumer; and
(b) may require information contained in a Key Facts Sheet for a standard home loan to be based on either or both of the following:
(i) information provided by the consumer;
(ii) particular assumptions.
133AC Credit provider's website to provide capacity to generate Key Facts Sheet
When this section applies
(1) This section applies if a licensee has a website that can be used by a consumer to apply for, or make an inquiry about, one or more standard home loans of the licensee.
Requirement
(2) The licensee must ensure that the website satisfies all of the following paragraphs:
(a) the website tells the consumer that the consumer may use the website to generate a Key Facts Sheet for the standard home loan, or for each of the standard home loans;
(b) the website:
(i) tells the consumer what information the consumer will need to enter in order to generate the Key Facts Sheet or Sheets; and
(ii) provides the consumer with instructions on how to generate the Key Facts Sheet or Sheets;
(c) if the consumer enters the information and follows those instructions, the consumer can use the website to generate the Key Facts Sheet or Sheets, containing up-to-date information, in a form that can be printed;
(d) the website complies with any other requirements prescribed by the regulations.
Civil penalty: 2,000 penalty units.
Offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 50 penalty units.
133AD Credit provider to provide Key Facts Sheet in other situations
When this section applies
(1) This section applies if:
(a) either:
(i) a consumer makes a request to a licensee (otherwise than by using a website of the licensee) to be provided with a Key Facts Sheet for one or more standard home loans of the licensee that are specified in the request; or
(ii) the regulations require a consumer, in circumstances prescribed by the regulations, to be provided with a Key Facts Sheet for one or more standard home loans of a licensee; and
(b) the consumer has given the licensee the consumer's name, and the contact details required by the regulations.
Requirement
(2) The licensee must, in accordance with any requirements prescribed by the regulations:
(a) provide the consumer with a Key Facts Sheet containing up-to-date information for the standard home loan, or for each of the standard home loans; and
(b) provide the consumer with any other information relating to other standard home loans of the licensee that is required by the regulations.
Note: Subsection 133AE(4) and section 133AF provide defences to liability under this subsection.
Civil penalty: 2,000 penalty units.
Offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 50 penalty units.
Note: Subsection 133AE(4) and section 133AF provide defences to liability under this subsection.
133AE What if more information is needed from the consumer?
When this section applies
(1) This section applies if:
(a) a licensee is required by section 133AD to provide a consumer with a Key Facts Sheet for a standard home loan; but
(b) the licensee does not have all the information from the consumer that the licensee needs in order to be able to prepare the Key Facts Sheet.
Requirement
(2) The licensee must, in accordance with any requirements prescribed by the regulations, tell the consumer what information the licensee needs in order to be able to prepare the Key Facts Sheet.
Civil penalty: 2,000 penalty units.
Offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2); and
(b) the person engages in conduct; and
(c) the conduct contravenes the requirement.
Criminal penalty: 50 penalty units.
Defence for subsections 133AD(2) and (3)
(4) For the purposes of applying subsections 133AD(2) and (3) to a failure by a licensee to provide a Key Facts Sheet to a consumer, it is a defence if:
(a) the licensee has, in accordance with subsection (2) of this section, told the consumer what information the licensee needs in order to be able to prepare the Key Facts Sheet; and
(b) the consumer has not provided that information to the licensee.
Note: For the purpose of subsection 133AD(3), a defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
133AF Defences to obligation to provide a Key Facts Sheet
(1) For the purpose of applying subsection 133AD(2) or (3) to a failure by a licensee to provide a consumer with a Key Facts Sheet (the new Key Facts Sheet ) for a standard home loan, it is a defence if:
(a) the following conditions are satisfied:
(i) the licensee has previously provided the consumer with a Key Facts Sheet (the previous Key Facts Sheet ) for the standard home loan;
(ii) the new Key Facts Sheet would be the same (except for its date) as the previous Key Facts Sheet; or
(b) the licensee reasonably believes that:
(i) another person has previously provided the consumer with a Key Facts Sheet (the previous Key Facts Sheet ) for the standard home loan; and
(ii) the new Key Facts Sheet would be the same (except for its date) as the previous Key Facts Sheet; or
(c) the licensee reasonably believes that the consumer would not be eligible for the standard home loan; or
(d) under regulations made for the purpose of subsection (2), the licensee is not required to provide the consumer with the new Key Facts Sheet.
Note: For the purpose of subsection 133AD(3), a defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).
(2) The regulations may prescribe circumstances in which a licensee is not required to provide a consumer with a Key Facts Sheet for a standard home loan.