Financial Sector Reform Act 2022 (87 of 2022)
Schedule 4 Consumer credit reforms
Part 6 Consequential and other amendments
National Consumer Credit Protection Act 2009
76 After Division 2 of Part 3-6A
Insert:
Division 2A - Use or disclosure of certain documents and information
160CA Application of this Division
(1) This Division applies to a person who:
(a) is or was a licensee who has received or obtained a document (a constrained document ) prescribed by the regulations, or information ( constrained information ) prescribed by the regulations, in connection with:
(i) a proposed small amount credit contract; or
(ii) a small amount credit contract; or
(iii) a proposed consumer lease for household goods; or
(iv) a consumer lease for household goods; or
(b) is or was a licensee who has obtained information (also constrained information ) as required under subsection 117(1A), 130(1A), 140(1A) or 153(1A) for the purposes of verifying a consumer's financial situation; or
(c) has received or obtained a constrained document, or constrained information, from a person described in paragraph (a) or (b) of this subsection.
(2) However, this Division does not apply to a person in relation to:
(a) a constrained document; or
(b) information contained in a constrained document; or
(c) constrained information;
that is about the financial affairs of the person (either alone or with others).
160CB Prohibition on use or disclosure of certain documents and information
Requirement
(1) A person must not use or disclose:
(a) a constrained document; or
(b) information contained in a constrained document; or
(c) constrained information.
Civil penalty: 5,000 penalty units.
Offence
(2) A person commits an offence if:
(a) the person uses or discloses a document or information; and
(b) any of the following apply:
(i) the document is a constrained document;
(ii) the information is contained in a constrained document;
(iii) the information is constrained information.
Criminal penalty: 100 penalty units.
Strict liability offence
(3) A person commits an offence if the person uses or discloses:
(a) a constrained document; or
(b) information contained in a constrained document; or
(c) constrained information.
Criminal penalty: 10 penalty units.
(4) Subsection (3) is an offence of strict liability.
Defence
(5) For the purposes of subsection (1), (2) or (3) it is a defence if the use or disclosure by the person is:
(a) a disclosure to another person (the recipient )of:
(i) a constrained document; or
(ii) information contained in a constrained document; or
(iii) constrained information;
that is about the financial affairs of the recipient (either alone or with others); or
(b) necessary for the person to comply with the person's obligations under this Act; or
(c) required or authorised by or under a law of the Commonwealth, or of a State or Territory, or a court or tribunal order; or
(d) for the purposes of considering a hardship notice; or
(e) for the purposes of assisting ASIC to perform its functions or exercise its powers; or
(f) for the purposes of allowing the operator of the AFCA scheme to perform its functions or exercise its powers.
Note: For the purposes of subsection (2) or (3), a defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).