2010
2010
2023-02-27
act
government
publicgeneral
act.reprint
act-2022-059
allinforce
2010-02-24
2010-02-24
0
act-2010-006
3e13a985-8dc7-432c-b6c1-c887d0ac8f6b
53b9cc47-4177-460b-9cd3-785ba1a5e472
2010
none
Does not include amendments
by—
Cl 9 (3) of Sch 3 to this Act (cl 9 (3) of Sch 3
repeals cl 9 of Sch 3 by proclamation)
Editorial note
The Parliamentary Counsel’s Office is
progressively updating certain formatting styles in versions of NSW in force
legislation published from 29 July 2019. For example, colons are being
replaced by em-rules (em-dashes). Text of the legislation is not
affected.
This version has been
updated.
An Act to adopt the National Consumer Credit
Protection Act 2009 of the Commonwealth and the National
Consumer Credit Protection (Transitional and Consequential Provisions) Act
2009 of the Commonwealth, and to refer certain matters
relating to the provision of credit and certain other financial transactions
to the Parliament of the Commonwealth, for the purposes of section 51 (xxxvii)
of the Commonwealth Constitution; and for other
purposes.
1Name of Act
This Act is the Credit
(Commonwealth Powers) Act 2010.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
(1)
In this Act—
adoption means the adoption
under section 4 (1).
amendment reference
means the reference under section 6 (1).
Commonwealth Credit
instrument means any instrument (whether or not of a
legislative character) that is made or issued under the National Credit
legislation.
express amendment of
the National Credit legislation means the direct amendment of the text of the
National Credit legislation (whether by the insertion, omission, repeal,
substitution or relocation of words or matter) by another Commonwealth Act or
by an instrument under a Commonwealth Act, but does not include the enactment
by a Commonwealth Act of a provision that has or will have substantive effect
otherwise than as part of the text of the National Credit
legislation.
National Credit
legislation means—
(a)
the National Consumer Credit Protection
Act 2009 of the Commonwealth, and
(b)
the National Consumer Credit Protection
(Transitional and Consequential Provisions) Act 2009 of
the Commonwealth,
and as in force from time to time.
referred credit
matter means a matter relating to either of the
following—
(a)
credit, being credit the provision of which would
be covered by the expression “provision of credit to which this Code
applies” in the relevant version of the National Credit
Code,
(b)
consumer leases, being consumer leases each of
which would be covered by the expression “consumer lease to which Part
11 applies” in the relevant version of the National Credit
Code.
relevant version
of the National Credit Code means the text of Schedule 1 to
the National Consumer Credit Protection Act
2009 of the Commonwealth as originally enacted, and as
later amended by the National Consumer Credit Protection Amendment Act
2010 of the Commonwealth.
relevant
version of the National Credit legislation
means—
(a)
the National Consumer Credit Protection
Act 2009 of the Commonwealth as originally enacted, and as
later amended by the National Consumer Credit Protection Amendment Act
2010 of the Commonwealth, and
(b)
the National Consumer Credit Protection
(Transitional and Consequential Provisions) Act 2009 of
the Commonwealth.
(2)
Notes included in this Act do not form part of
this Act.
4Adoption of existing legislation
(1)
The relevant version of the National Credit
legislation is adopted within the meaning of section 51 (xxxvii) of the
Commonwealth Constitution.
(2)
The adoption has effect for a
period—
(a)
beginning when this section commences,
and
(b)
ending at the end of the day fixed under section
5 as the day on which the adoption is to terminate,
but no longer.
5Termination of adoption
(1)
The Governor may, at any time, by proclamation
published on the NSW legislation website, fix a day as the day on which the
adoption is to terminate.
(2)
The Governor may, by proclamation published on
the NSW legislation website, revoke a proclamation published under subsection
(1), in which case the revoked proclamation is taken (for the purposes of
section 4) never to have been published.
(3)
A revoking proclamation has effect only if
published before the day fixed under subsection (1).
(4)
The revocation of a proclamation published under
subsection (1) does not prevent publication of a further proclamation under
that subsection.
6Reference of matters
(1)
Subject to section 7, any referred credit matter
is referred to the Parliament of the Commonwealth, but only to the extent of
the making of laws with respect to such a matter by making express amendments
of the National Credit legislation.
(2)
The reference of a matter under subsection (1)
has effect only—
(a)
if and to the extent that the matter is not
included in the legislative powers of the Parliament of the Commonwealth
(otherwise than by a reference under section 51 (xxxvii) of the Commonwealth
Constitution), and
(b)
if and to the extent that the matter is included
in the legislative powers of the Parliament of the
State.
(3)
Despite any other provision, the reference has
effect for a period—
(a)
beginning when this section commences,
and
(b)
ending at the end of the day fixed under section
8 as the day on which the reference is to
terminate,
but no longer.
7Matters excluded from reference
(1)
A matter referred by section 6 (1) does not
include—
(a)
the matter of making provision with respect to
the imposition or payment of State taxes, duties, charges or other imposts,
however described, or
(b)
the matter of making provision with respect to
the general system for the recording of estates or interests in land and
related information, or
(c)
the matter of providing for the priority of
interests in real property, or
(d)
the matter of making a law that excludes or
limits the operation of a State law, to the extent that the State law makes
provision with respect to the creation, holding, transfer, assignment,
disposal or forfeiture of a State statutory right.
(2)
In this section—
forfeiture means
confiscation, seizure, extinguishment, cancellation, suspension or any other
forfeiture.
State law means—
(a)
any Act of the State or any instrument made under
such an Act, whenever enacted or made and as in force from time to time,
or
(b)
the general law, being the principles and rules
of common law and equity to the extent that they have effect in the State from
time to time.
State statutory
right means a right, entitlement or authority that is
granted by or under any Act of the State or any instrument made under such an
Act, whenever enacted or made and as in force from time to time, other than a
right, entitlement or authority that relates to—
(a)
credit covered by paragraph (a) of the definition
of referred credit
matter in section 3, or
(b)
a consumer lease covered by paragraph (b) of that
definition.
8Termination of reference
(1)
The Governor may, at any time, by proclamation
published on the NSW legislation website, fix a day as the day on which the
amendment reference is to terminate.
(2)
The Governor may, by proclamation published on
the NSW legislation website, revoke a proclamation published under subsection
(1), in which case the revoked proclamation is taken (for the purposes of
section 6) never to have been published.
(3)
A revoking proclamation has effect only if
published before the day fixed under subsection (1).
(4)
The revocation of a proclamation published under
subsection (1) does not prevent publication of a further proclamation under
that subsection.
9Amendment of Commonwealth law
For the avoidance of doubt, it is the intention
of the Parliament of the State that—
(a)
the National Credit legislation may be expressly
amended, or have its operation otherwise affected, at any time after the
commencement of this section by provisions of Commonwealth Acts the operation
of which is based on any legislative powers that the Parliament of the
Commonwealth has on account of a reference of any matters, or the adoption of
the relevant version of the National Credit legislation, under section 51
(xxxvii) of the Commonwealth Constitution,
and
(b)
the National Credit legislation may be expressly
amended, or have its operation otherwise affected, at any time after the
commencement of this section by provisions of Commonwealth Acts the operation
of which is based on any legislative powers that the Parliament of the
Commonwealth has apart from a reference of any matters, or the adoption of the
relevant version of the National Credit legislation, under section 51 (xxxvii)
of the Commonwealth Constitution,
and
(c)
the National Credit legislation may have its
operation affected, otherwise than by express amendment, at any time by
provisions of Commonwealth Credit instruments.
10Effect of termination of amendment reference before
termination of adoption of Commonwealth Acts
(1)
If the amendment reference is terminated but the
adoption of the relevant version of the National Credit legislation is not
terminated, the termination of the amendment reference does not
affect—
(a)
laws that were made under the amendment reference
(but not repealed) before that termination (whether or not they have come into
operation before that termination), or
(b)
the continued operation in this State of the
National Credit legislation as in operation immediately before that
termination or as subsequently amended or affected by—
(i)
laws referred to in paragraph (a) that come into
operation after that termination, or
(ii)
provisions referred to in section 9 (b) or
(c).
(2)
Accordingly, the amendment reference continues to
have effect for the purposes of subsection (1) unless the adoption is
terminated.
(3)
Subsection (1) does not apply to or in relation
to an amendment of the National Credit legislation that is excluded from the
operation of this section by the proclamation that terminates the amendment
reference.
(4)
For the purposes of subsection (1)—
(a)
the laws referred to in subsection (1) (a)
include Commonwealth Credit instruments, and
(b)
the reference in subsection (1) (b) to the
National Credit legislation as in operation immediately before the termination
of the amendment reference includes that legislation as affected by
Commonwealth Credit instruments that have come into operation before that
time.
Schedules 1, 2
Schedule 3Savings,
transitional and other provisions
Part 1General
1Definitions
In this Schedule—
ASIC means the Australian
Securities and Investments Commission.
former consumer credit
legislation means any of the following (as in force
immediately before its repeal by Schedule 1 to this Act)—
(a)
the Consumer Credit
(New South Wales) Act 1995 (including the Consumer
Credit (New South Wales) Code and the Consumer Credit (New
South Wales) Regulations),
(b)
the Consumer Credit
Administration Act 1995,
(c)
the Consumer Credit
Administration Regulation 2002,
(d)
the Consumer Credit
(New South Wales) Special Provisions Regulation
2007.
Note—
This definition is relevant for the carrying
forward of certain provisions (including investigation and enforcement powers)
for the purposes of the application in NSW, on a transitional basis, of a
maximum annual percentage rate for credit contracts, the regulation of finance
broking and certain other matters.
National Credit
Code means the National Credit
Code as set out in Schedule 1 to the National Consumer Credit
Protection Act 2009 of the Commonwealth.
National Credit
legislation means—
(a)
the National Consumer Credit Protection
Act 2009 of the Commonwealth, and
(b)
the National Consumer Credit Protection
(Transitional and Consequential Provisions) Act 2009 of
the Commonwealth.
pre-Credit Code
legislation means any of the following (as in force
immediately before its repeal by Schedule 1 to this Act)—
(a)
the Credit Act
1984,
(b)
the Credit (Home
Finance Contracts) Act 1984,
(c)
the Credit (Savings
and Transitional) Regulation 1984,
(d)
the Credit (Home
Finance Contracts) (Savings and Transitional) Regulation
1984.
2Regulations
(1)
The Governor may make regulations containing
provisions of a savings or transitional nature consequent on—
(a)
the enactment of this Act, or
(b)
the transition from the application of the
provisions of the former consumer credit legislation to the application of the
provisions of the National Credit legislation, or
(c)
the enactment of the Credit
(Commonwealth Powers) Amendment (Maximum Annual Percentage Rate) Act
2011.
(2)
If such a regulation so provides, it has effect
despite any other provision of this Schedule.
(3)
A provision of a regulation made under this
clause may, if the regulations so provide, take effect from the date of assent
to the Act concerned or a later date.
(4)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as—
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(5)
Without limiting subclause (1), the regulations
under that subclause may make provision for or with respect to matters of a
savings or transitional nature consequent on the repeal of Division 2 of Part
2 of this Schedule and clause 9. Those matters include (but are not limited
to) providing for the continuing application, with any necessary
modifications, of that Division and clause after their repeal to any or all of
the contracts to which they applied immediately before their
repeal.
Part 2Provisions consequent on enactment of this
Act
Division 1Financial counselling trust
fund
3Continuation of fund
(1)
The financial counselling trust fund established
in accordance with the regulations under the Credit Act
1984 (as in force immediately before its repeal by
Schedule 1 to this Act) is continued.
Note—
The trust fund was established by a trust deed
executed on 6 August 1993 by the Minister for Consumer Affairs. A copy of the
trust deed is set out in Schedule 8 to the repealed Credit (Savings and Transitional) Regulation
1984.
(2)
Any money in the trust fund is to be applied for
the following purposes—
(a)
the provision of funding to community based
non-profit organisations that operate in New South Wales to provide financial
counselling or train persons in financial counselling,
(b)
the provision of funding to non-profit
organisations that operate within New South Wales which, or persons who,
satisfy the trustees of the fund that they can educate the public of New South
Wales in any matter related to the management of personal
finances.
Division 2
4–8
Division 3Other
provisions
9Continuation of maximum annual percentage
rate—existing credit contracts
(1)
In this clause—
existing credit
contract means a credit contract to which the former
consumer credit legislation applied immediately before its repeal by Schedule
1 to this Act.
(2)
The provisions of the former consumer credit
legislation that relate to the maximum annual percentage rate under an
existing credit contract (including, without limitation, provisions relating
to the enforcement of that rate, any powers of investigation with respect to
that rate, including for supervisory purposes, and the taking of any
proceedings or other action against a credit provider with respect to that
rate) continue to apply as if those provisions had not been repealed by
Schedule 1 to this Act.
(3)
The Governor may, by proclamation published on
the NSW legislation website, repeal this clause.
10Provision of information and assistance to
ASIC
(1)
The Secretary of the Department of Customer
Service, or a person authorised in writing by the Secretary, may, on the
Secretary’s or authorised person’s own initiative or at the
request of ASIC—
(a)
provide ASIC with such documents and other
information in the possession or control of the Secretary that is reasonably
required by ASIC in connection with the performance or exercise of its
functions under the National Credit legislation, and
(b)
provide ASIC with such other assistance as is
reasonably required by ASIC to perform or exercise a function or power under
the National Credit legislation.
(2)
This clause has effect despite any other Act or
law.
11ASIC has certain functions and
powers
(1)
The Minister, or a person authorised in writing
by the Minister, may enter into an agreement or arrangement with ASIC for the
performance of functions or the exercise of powers by ASIC as an agent of the
State, even if those functions or powers are or may be conferred on another
person or body by or under a law of the State.
(2)
An agreement or arrangement of a kind referred to
in subclause (1) has effect by force of this clause despite any provision of a
law of the State with respect to any function or power that is the subject of
the agreement or arrangement.
12Pending proceedings before CTTT
(1)
Any proceedings relating to any matter arising
under the provisions of the former consumer credit legislation or the
pre-Credit Code legislation that were commenced in the Consumer, Trader and
Tenancy Tribunal before the commencement of this clause, but were not finally
determined as at that commencement, may continue to be dealt with or otherwise
determined (including for the purposes of any appeal or rehearing in relation
to those proceedings) as if those provisions had not been repealed by Schedule
1 to this Act.
(2)
The functions of the Consumer, Trader and Tenancy
Tribunal under subclause (1) become, on and from the establishment day (within
the meaning of the Civil and Administrative Tribunal
Act 2013), the functions of the Civil and Administrative
Tribunal.
(3)
The provisions of subclause (2) are in addition
to, and do not derogate from, the provisions of Part 2 of Schedule 1 to the
Civil and Administrative Tribunal Act
2013.
13
14Regulation of pre-Credit Code
contracts
(1)
In this clause—
pre-Credit Code
contract means a contract to which the Credit
Act 1984 or the Credit (Home
Finance Contracts) Act 1984 applied immediately before
their repeal by Schedule 1 to this Act.
(2)
The provisions of the former consumer credit
legislation and the pre-Credit Code legislation (including, without
limitation, provisions relating to enforcement, any powers of investigation,
including for supervisory purposes, and the taking of any proceedings or other
action) continue to apply to and in respect of a pre-Credit Code contract as
if those provisions had not been repealed by Schedule 1 to this
Act.
15Construction of references to former consumer credit
legislation
(1)
In any document—
(a)
a reference to any former consumer credit
legislation extends to the National Credit legislation,
and
(b)
a reference to a provision of any former consumer
credit legislation extends to the corresponding provision (if any) of the
National Credit legislation.
(2)
In this clause, document means any Act
(other than this Act) or statutory instrument, or any other instrument, or any
contract or agreement.
sch 3: Am 2010 No 6,
Sch 3; 2011 No 16, Sch 1 [1]–[4]; 2013 No 95, Sch 4.12; 2013 No 111, Sch
3.9; 2014 No 88, Sch 2.13; 2022 No 59, Sch 2.10[1] [2], Sch
3.17.
Historical notes
Table of amending instruments
Credit (Commonwealth Powers) Act
2010 No 6. Assented to 23.3.2010. Date of commencement,
Schs 1–3 excepted, 1.4.2010, sec 2 and 2010 (111) LW 1.4.2010; date of
commencement of Schs 1–3, 1.7.2010, sec 2 and 2010 (267) LW 25.6.2010.
This Act has been amended by cll 8 and 13 of Sch 3 to this Act and as
follows.
2011
No 16
Credit (Commonwealth Powers)
Amendment (Maximum Annual Percentage Rate) Act 2011.
Assented to 21.6.2011.
Date of commencement, assent, sec
2.
2013
No 95
Civil and Administrative
Legislation (Repeal and Amendment) Act 2013. Assented to
20.11.2013.
Date of commencement, 1.1.2014, sec
2.
No 111
Statute Law (Miscellaneous
Provisions) Act (No 2) 2013. Assented to 3.12.2013.
Date of commencement of Sch 3.9, 3.1.2014, sec 2
(1).
2014
No 88
Statute Law (Miscellaneous
Provisions) Act (No 2) 2014. Assented to
28.11.2014.
Date of commencement of Sch 2, 8.1.2015, sec 2
(1).
2022
No 59
Statute Law (Miscellaneous
Provisions) Act (No 2) 2022. Assented to
26.10.2022.
Date of commencement, 13.1.2023, sec
2.
Table of amendments
Sch 3
Am 2010 No 6, Sch 3; 2011 No
16, Sch 1 [1]–[4]; 2013 No 95, Sch 4.12; 2013 No 111, Sch 3.9; 2014 No
88, Sch 2.13; 2022 No 59, Sch 2.10[1] [2], Sch 3.17.