National Consumer Credit Protection Act. Australia

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СКАЧАТЬ credit licence, including how to apply for it and when ASIC may grant or refuse to grant it.

      Division 4 is about the conditions that may be imposed on an Australian credit licence.

      Division 5 is about conduct obligations of licensees.

      Division 6 is about the suspension, cancellation or variation of an Australian credit licence.

      Division 2—Australian credit licences

      35 Australian credit licences

      (1) An Australian credit licence is a licence that authorises the licensee to engage in particular credit activities.

      (2) The credit activities that the licensee is authorised to engage in are those credit activities specified in a condition of the licence as the credit activities that the licensee is authorised to engage in.

      Division 3—How to get an Australian credit licence

      36 Applying for a licence

      (1) A person may apply for a licence by lodging an application with ASIC on or after 1 July 2010, or a later day prescribed by the regulations.

      (2) The application must be in the approved form.

      37 When a licence may be granted — applicants other than ADIs

      When ASIC must grant a licence

      (1) ASIC must grant a person (other than an ADI) a licence if (and must not grant the person a licence unless):

      (a) the person has applied for the licence in accordance with section 36; and

      (b) ASIC has no reason to believe that the person is likely to contravene the obligations that will apply under section 47 if the licence is granted; and

      (c) ASIC has no reason to believe that the person is not a fit and proper person to engage in credit activities; and

      (d) the person has given ASIC any additional information or audit report requested by ASIC under subsection (4); and

      (e) the person meets any other requirements prescribed by the regulations.

      Note: ASIC must not grant a licence to a person contrary to a banning order or disqualification order, or if a prescribed State or Territory order is in force against the person or certain representatives of the person (see section 40).

      Matters ASIC must have regard to

      (2) For the purposes of paragraphs (1)(b) and (c), ASIC must (subject to Part VIIC of the Crimes Act 1914) have regard to the following:

      (a) whether a registration under the Transitional Act, a licence or an Australian financial services licence of the person has ever been suspended or cancelled;

      (b) whether a banning order or disqualification order under Part 2–4 has ever been made against the person;

      (c) whether a banning order or disqualification order under Division 8 of Part 7.6 of the Corporations Act 2001 has ever been made against the person;

      (d) whether the person has ever been banned from engaging in a credit activity under a law of a State or Territory;

      (e) any relevant information given to ASIC by a State or Territory, or an authority of a State or Territory, in relation to the person;

      (f) if the person is not the trustees of a trust — whether the person has ever been insolvent;

      (g) if the person is a single natural person:

      (i) whether the person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001; and(ii) any criminal conviction of the person, within 10 years before the application was made;

      (h) if the person is not a single natural person, whether ASIC has reason to believe that any of the following persons is not a fit and proper person to engage in credit activities:

      (i) if the person is a body corporate — each director, secretary or senior manager of the body corporate who would perform duties in relation to the credit activities to be authorised by the licence;(ii) if the person is a partnership or the trustees of a trust — each partner or trustee who would perform duties in relation to the credit activities to be authorised by the licence;

      (i) any other matter ASIC considers relevant;

      (j) any other matter prescribed by the regulations.

      Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

      (3) ASIC must (subject to Part VIIC of the Crimes Act 1914), in considering whether it has reason to believe that a person referred to in paragraph (2)(h) is not a fit and proper person to engage in credit activities, have regard to:

      (a) the matters set out in paragraphs (2)(a) to (g); and

      (b) any other matter ASIC considers relevant; and

      (c) any other matter prescribed by the regulations;

      in relation to that person.

      ASIC may request information or audit report from applicant

      (4) ASIC may give a written notice to a person who has applied for a licence requesting the person to lodge with ASIC, within the time specified in the notice, either or both of the following:

      (a) additional information specified in the notice in relation to any matters that ASIC may have regard to in deciding whether to grant the licence;

      (b) an audit report, prepared by a suitably qualified person specified in the notice, in relation to matters that ASIC may have regard to in deciding whether to grant the licence.

      (5) If the person does not lodge with ASIC the additional information or audit report requested by ASIC under subsection (4) within the time specified in the notice, the person is taken to have withdrawn the application. ASIC may extend the time by giving a written notice to the person.

      38 When a licence may be granted — ADIs

      If:

      (a) an ADI applies under section 36 for a licence; and

      (b) the application includes a statement (in accordance with the requirements of the approved form) to the effect that the ADI will, if granted the licence, comply with its obligations as a licensee;

      then ASIC must grant the ADI a licence authorising the ADI to engage in credit activities that equate (as closely as possible) to the credit activities in relation to which the application was made.

      Note: ASIC must not grant a licence to a person contrary to a banning order or disqualification order, or if a prescribed State or Territory order is in force against the person or certain representatives of the person (see section 40).

      39 СКАЧАТЬ