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).


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