ASIC Class Order [CO 10/381]

Administered by Department of the Treasury

Legislation au F2010L01428 Not in force Legislative Instrument

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ASIC Class Order [CO 10/381]

About this compilation

 

Compilation No. 1

 

This is a compilation of ASIC Class Order [CO 10/381] as in force on 26 October 2018. It includes any commenced amendment affecting the legislative instrument to that date.

 

This compilation was prepared by the Australian Securities and Investments Commission.

 

The notes at the end of this compilation (the endnotes) include information

about amending instruments and the amendment history of each amended provision.

 

Australian Securities and Investments Commission

National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 — Item 41 of Schedule 2 — Declaration

 

 

Enabling provision

 

1. The Australian Securities and Investments Commission (ASIC) makes this instrument under item 41 of Schedule 2 to the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (the Act).

 

Title

 

2. This instrument is ASIC Class Order [CO 10/381].

 

Commencement

 

3. This instrument commences on the day it is registered under the Legislative Instruments Act 2003.

 

Note: An instrument is registered when it is recorded on the Federal Register of Legislative Instruments (FRLI) in electronic form: see Legislative Instruments Act 2003, s 4 (definition of register).  The FRLI may be accessed at http://www.frli.gov.au/.

 

Declaration 

 

4. ASIC declares that Part 3 of Schedule 2 to the Act applies in relation to all persons as if that Part were modified or varied by, after item 19, inserting:

 

“19A Obligation on certain persons to give notice to ASIC

 

(1) Subitem (2) applies to a person (lender) who is a credit provider or lessor in relation to a carried over instrument immediately before 1 July 2010 if both of the following apply:

 

(a) the lender is a credit provider or lessor in relation to the carried over instrument at any time after 30 June 2010;

 

(b) the lender is not any of the following persons:

 

(i) a licensee;

 

(ii) a registered person;

 

(iii) a person exempt from the requirement to hold a licence under the National Credit Act or to be a registered person under this Act.

 

(2) The lender must lodge with ASIC a notice in the approved form containing the following information:

 

(a)  the lender’s name (including the lender’s principal business name if any);

 

(b)  the name of:

 

(i) if the lender is a body corporate — each director or secretary of the body corporate; and

 

(ii)  if the lender is a partnership or the trustees of a trust — each partner or trustee;

 

(c)  the postal address of the lender;

 

(d)  if the principal business address of the lender is different from the postal address — the principal business address;

 

(e)  if the lender has an Australian Business Number — the Australian Business Number;

 

(f) the number of carried over instruments held by the lender and the total amount owed to the lender under the instruments;

 

 (ga)  whether the lender is a member of the AFCA scheme;

 

(h) an estimate of the date on which the longest running carried over instrument will be finalised, if payments are made in accordance with the terms of the instrument;

 

(i)  if the lender is a prescribed unlicensed carried over instrument lender — the grounds on which the lender is a prescribed unlicensed carried over instrument lender;

 

(j)  any other information requested by ASIC.

 

The notice must be lodged with ASIC on the first day paragraphs (1)(a) and (b) both apply in relation to the lender.

 

Civil penalty: 2,000 penalty units.

 

(3) The lender does not have to comply with subitem (2) if the lender has lodged the notice with ASIC up to 6 weeks before it must be so lodged under that subitem.

 

(4) The information contained in the notice must be current at the date the notice is lodged with ASIC.

 

(5) Subitems (2) and (3) apply in relation to information contained in a notice that was lodged with ASIC before 1 July 2010 as if references to a carried over instrument in paragraphs (2)(f) and (h) were references to a contract or other instrument that:

 

(a) was in force at the time the notice is lodged; and

 

(b) the old Credit Code applied to at that time.

 

Offence

 

(6) A person commits an offence if:

 

(a) the person is subject to a requirement under subitem (2); and

 

(b) the person engages in conduct; and

 

(c) the conduct contravenes this requirement.

 

Criminal penalty: 25 penalty units, or 6 months imprisonment, or both.

 

Strict liability offence

 

(7)  A person commits an offence if:

 

(a) the person is subject to a requirement under subitem (2); and

 

(b) the person engages in conduct; and

 

(c) the conduct contravenes this requirement.

 

Criminal penalty: 10 penalty units

 

(8)  Subitem (7) is an offence of strict liability.

 

Note: For strict liability, see section 6.1 of the Criminal Code.”.

 

Note 1:  The declaration in this instrument substantially produces the effect that item 39A of Schedule 2 to the Act (as notionally inserted by regulation 16E of the National Consumer Credit Protection (Transitional and Consequential Provisions) Regulations 2010) would have had but for some drafting anomalies.  As a result of those anomalies, that item does not have any operation.

 

Note 2: A prescribed unlicensed carried over instrument lender is defined in subsection 5(1) and section 5A of the National Consumer Credit Protection Act 2009 (as notionally inserted by regulation 25E and Schedule 2 to the National Consumer Credit Protection Regulations 2010).         

 

 

Notes to ASIC Class Order [CO 10/381]

Note 1

ASIC Class Order [CO 10/381] (in force under Item 41 of Schedule 2 of the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009) as shown in this compilation comprises that Class Order amended as indicated in the tables below.

Table of Instruments

Instrument number

Date of FRL registration

Date of commencement

Application, saving or transitional provisions

[CO 10/381]

24/5/2010 (see F2010L01428)

24/5/2010

 

2018/937

25/10/2018 (see F2018L01466)

Sch 1: 26/10/2018
 

Sch 2: 26/10/2018

Applies on and after 1/11/2018

Applies on and after 1/11/2018

Table of Amendments

ad. = added or inserted     am. = amended     LA = Legislation Act 2003    rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Paragraph 4 (notional paragraph 19A(2)(g))


rep. 2018/937 Sch 2

Paragraph 4 (notional paragraph 19A(2)(ga)) 


ad. 2018/937 Sch 1

 

 

Overview

The National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 was enacted to address transitional and consequential issues arising from the implementation of the National Consumer Credit Protection Act 2009. This Act provides for the transitional arrangements and the consequential amendments necessary to ensure the effective implementation of the new consumer credit regime. The Australian Securities and Investments Commission (ASIC) is the enacting body for this Act, and its primary policy objective is to facilitate a smooth transition to the new regulatory framework while ensuring consumer protection in the credit industry. ASIC Class Order [CO 10/381], made under item 41 of Schedule 2 of the Act, imposes obligations on certain credit providers and lessors to notify ASIC about carried over instruments, ensuring compliance and transparency in the credit market. This legislative instrument aims to correct drafting anomalies that would otherwise render certain provisions ineffective.

Scope and Application

The ASIC Class Order [CO 10/381] applies to credit providers or lessors who are involved with a carried over instrument before 1 July 2010 and continue to be involved with such an instrument after this date. This includes entities that are not licensees, registered persons, or exempt from the requirement to hold a licence under the National Credit Act or to be a registered person under the National Consumer Credit Protection Act 2009. These entities must lodge a notice with ASIC containing specific information such as the lender's name, the names of relevant individuals associated with the entity, the postal and principal business addresses, the Australian Business Number, details of the carried over instruments, and any other requested information. The notice must be submitted in an approved form and must be current at the time of lodging. There are civil and criminal penalties for non-compliance, with strict liability applying to certain offences. The Class Order came into effect on the date of its registration under the Legislative Instruments Act 2003, and subsequent amendments have been incorporated into the compilation to reflect changes made over time.

Key Provisions

ASIC Class Order [CO 10/381], which is in force under item 41 of Schedule 2 to the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009, outlines the obligations and requirements for certain persons to notify ASIC about carried over instruments. Specifically, subitem (2) of item 19A requires lenders who were credit providers or lessors in relation to a carried over instrument before 1 July 2010, and remain so after that date, to lodge a notice with ASIC if they are not a licensee, a registered person, or exempt from holding a licence under the National Credit Act. This notice must include various details about the lender, the carried over instruments they hold, and an estimate of when these instruments will be finalised (sections 4(2) and (5)). The obligations imposed on the parties governed by this Act are primarily centred around the timely and accurate notification to ASIC. The lender must provide specific information about themselves, their business, the instruments they hold, and their participation in the AFCA scheme. They must also include the total amount owed on these instruments and an estimate of the finalisation date. Additionally, if the lender is a prescribed unlicensed carried over instrument lender, they must specify the grounds for this classification (section 4(2)). These requirements ensure that ASIC has comprehensive and up-to-date information about the activities of these lenders, facilitating better oversight and enforcement of consumer credit protections. Failure to comply with the notification requirements can result in significant consequences. Civil penalties of up to 2,000 penalty units can be imposed for non-compliance, and individuals can also face criminal penalties if they contravene these requirements. For example, under section 6, a person commits an offence if they are subject to a requirement under subitem (2) and engage in conduct that contravenes this requirement, with a penalty of up to 25 penalty units, six months imprisonment, or both. Additionally, section 7 establishes that this offence is of strict liability, meaning that intent does not need to be proven for a conviction to occur, with a penalty of up to 10 penalty units. These provisions underscore the importance of adhering to the mandated notification procedures to avoid severe legal repercussions.

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Consumer Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.