ASIC CLASS ORDER [CO 10/1269]
EXPLANATORY STATEMENT
Prepared by the Australian Securities and Investments Commission
National Consumer Credit Protection Act 2009
The Australian Securities and Investments Commission (ASIC) makes ASIC Class Order [CO 10/1269] under paragraph 163(3)(d) of the National Consumer Credit Protection Act 2009 (the Act).
Paragraph 163(3)(d) of the Act provides that ASIC may declare the provisions to which Part 3-7 of the Act applies (including Chapter 3 of the Act and instruments made for the purposes of Chapter 3 of the Act), apply in relation to a class of persons as if the provisions were omitted, modified or varied in a specified way.
1. Background
The National Consumer Credit Protection Regulations 2010 (the Regulations) deferred the commencement of particular disclosure obligations under the Act, subject to certain requirements being met. Subregulations 28N(1) to (3) provide that a licensee or credit representative is exempted from complying with a “relevant provision of the Act”, other than section 114 or 137 (quotes), until 1 April 2011 if:
(a) they inform a consumer in writing of the contact details of their approved external dispute resolution (EDR) scheme; or
(b) this information is given to the consumer within the previous 90 days.
A “relevant provision of the Act” is a section of the Act which requires a disclosure document to be given to a consumer, including credit guides and proposal disclosure documents.
ASIC Class Order [CO 10/1230] contained a declaration in subparagraph 4(c) which would have had the effect that the deferred commencement did not apply to credit proposal disclosure documents and lease proposal disclosure documents under sections 121 and 144 of the Act. The effect of the declaration in that class order was made in consultation with the Department of the Treasury.
2. Purpose of the class order
The purpose of the class order is to restore the effect of regulation 28N in relation to credit proposal disclosure documents and lease proposal disclosure documents under section 121 and 144 of the Act.
3. Operation of the class order
This class order varies ASIC Class Order [CO 10/1230] so as to produce the effect that the deferred commencement to 1 April 2011 applies to credit proposal disclosure documents and lease proposal disclosure documents, subject to certain requirements being met. Consequently, subregulations 28N(1) to (3) will apply to credit guides and proposal disclosure documents.
4. Consultation
ASIC further consulted with the Department of the Treasury to confirm that the declaration in this class order gives effect to the intended result.