National Consumer Credit Protection Act 2009

CHAPTER 3 - RESPONSIBLE LENDING CONDUCT  

PART 3-2C - LICENSEES THAT ARE CREDIT PROVIDERS UNDER CREDIT CONTRACTS: ADDITIONAL RULES RELATING TO SHORT-TERM AND SMALL AMOUNT CREDIT CONTRACTS  

Division 2 - Short-term and small amount credit contracts  

SECTION 133CF   LICENSEE NOT TO MAKE CERTAIN UNSOLICITED COMMUNICATIONS IN RELATION TO A SMALL AMOUNT CREDIT CONTRACT  

Prohibition on certain unsolicited communications

133CF(1)    
A licensee must not make, or arrange for the making of, an unsolicited communication to a consumer (whether orally, in writing or by electronic means) that contains:

(a)    an offer to the consumer to enter into a small amount credit contract; or

(b)    an invitation to the consumer to apply for a small amount credit contract;

if any of the following apply:

(c)    the consumer is, or has at any time been, a debtor under a small amount credit contract with the licensee;

(d)    the consumer has at any time applied for a small amount credit contract with the licensee;

(e)    the consumer:

(i) is, or has at any time been, a debtor under a small amount credit contract with another credit provider; or

(ii) has at any time applied for a small amount credit contract with another credit provider;

and a reasonable person in the licensee ' s position would, if the person undertook such inquiries as are reasonable in the circumstances, be aware of the matter in subparagraph (i) or (ii) (whichever applies).

Civil penalty: 5,000 penalty units.

Meaning of unsolicited communication to a consumer

133CF(2)    
An unsolicited communication to a consumer is a communication to a consumer or a consumer ' s agent that is made by a person by dealing directly with the consumer or the consumer ' s agent in any of the following circumstances:

(a)    no prior request has been made by the consumer to the licensee for that communication;

(b)    the consumer has made a prior request to the licensee for that communication and that request was solicited by or on behalf of the licensee;

(c)    circumstances of a kind prescribed by the regulations.

However, the regulations may prescribe that specified kinds of communications are not unsolicited communications to which this section applies.

Offence

133CF(3)    
A person commits an offence if:

(a)    the person is subject to a requirement under subsection (1) ; and

(b)    the person engages in conduct; and

(c)    the conduct contravenes the requirement.

Criminal penalty: 100 penalty units.

Loss of certain fees and charges

133CF(4)    
If:

(a)    a licensee makes an unsolicited communication to a consumer in contravention of subsection (1); and

(b)    the licensee enters into a small amount credit contract with that consumer within 30 days after that unsolicited communication is made;

then:

(c)    the consumer is not liable (and is taken never to have been liable) to pay a fee or charge of a kind mentioned in paragraph 31A(1)(a) , (b) , (c) or (d) of the National Credit Code under that small amount credit contract (whether or not the liability is imposed consistently with the National Credit Code); and

(d)    the consumer may recover as a debt due to the consumer any amounts paid by the consumer that, in accordance with paragraph (c) of this subsection, the consumer is not liable to pay (or is taken never to have been liable to pay).