National Consumer Credit Protection Act. Australia

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СКАЧАТЬ If the licensee, or a related body corporate, is a body (the APRA body) regulated by APRA (other than an ADI), then the following provisions apply:

      (a) ASIC cannot:

      (i) impose, vary or revoke a condition on the licence that, in ASIC’s opinion, has or would have the result of preventing the APRA body from being able to carry on all or any of its usual activities (being activities in relation to which APRA has regulatory or supervisory responsibilities); or(ii) vary a condition so that it would, in ASIC’s opinion, become a condition that would have a result as described in subparagraph (i);

      unless ASIC has first consulted APRA about the proposed action;

      (b) if ASIC imposes, varies or revokes a condition on the licence and paragraph (a) does not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

      Special procedures for ADIs

      (2) If the licensee, or a related body corporate, is an ADI, then the following provisions apply:

      (a) subject to paragraphs (b) and (c), the powers that ASIC would otherwise have under section 45:

      (i) to impose, vary or revoke a condition on the licence that, in ASIC’s opinion, has or would have the result of preventing the ADI from being able to carry on all or any of its banking business (within the meaning of the Banking Act 1959); or(ii) to vary a condition so that it would, in ASIC’s opinion, become a condition that would have a result as described in subparagraph (i);

      are instead powers of the Minister;

      (b) the following provisions apply in relation to a power to which paragraph (a) applies:

      (i) the procedures for the exercise of the power are the same as would apply if ASIC could exercise the power, except that the Minister must not exercise the power unless he or she has first considered advice from ASIC on the proposed action, being advice given after ASIC has consulted APRA about the proposed action;(ii) ASIC (rather than the Minister) must still conduct any hearing required under paragraph 45(5)(a) and receive any submissions under paragraph 45(5)(b);

      (c) if ASIC imposes, varies or revokes a condition on the licence and paragraph (a) does not apply to that action, ASIC must, within one week, inform APRA of the action that has been taken.

      Division 5—Obligations of licensees

      47 General conduct obligations of licensees

      General conduct obligations

      (1) A licensee must:

      (a) do all things necessary to ensure that the credit activities authorised by the licence are engaged in efficiently, honestly and fairly; and

      (b) have in place adequate arrangements to ensure that clients of the licensee are not disadvantaged by any conflict of interest that may arise wholly or partly in relation to credit activities engaged in by the licensee or its representatives; and

      (c) comply with the conditions on the licence; and

      (d) comply with the credit legislation; and

      (e) take reasonable steps to ensure that its representatives comply with the credit legislation; and

      (f) maintain the competence to engage in the credit activities authorised by the licence; and

      (g) ensure that its representatives are adequately trained, and are competent, to engage in the credit activities authorised by the licence; and

      (h) have an internal dispute resolution procedure that:

      (i) complies with standards and requirements made or approved by ASIC in accordance with the regulations; and

      (ii) covers disputes in relation to the credit activities engaged in by the licensee or its representatives; and

      (i) be a member of an approved external dispute resolution scheme; and

      (j) have compensation arrangements in accordance with section 48; and

      (k) have adequate arrangements and systems to ensure compliance with its obligations under this section, and a written plan that documents those arrangements and systems; and

      (l) unless the licensee is a body regulated by APRA:

      (i) have available adequate resources (including financial, technological and human resources) to engage in the credit activities authorised by the licence and to carry out supervisory arrangements; and

      (ii) have adequate risk management systems; and

      (m) comply with any other obligations that are prescribed by the regulations.

      Assessment of whether compliance is adequate

      (2) For the purposes of paragraphs (1)(b), (g), (k) and (l), in considering whether a matter is adequate, the nature, scale and complexity of the credit activities engaged in by the licensee must be taken into account.

      Regulations in relation to internal dispute resolution procedures

      (3) Regulations made for the purposes of paragraph (1)(h) may also deal with the variation or revocation of:

      (a) standards or requirements made by ASIC; or

      (b) approvals given by ASIC.

      48 Requirements for compensation arrangements

      Requirement to have adequate compensation arrangements

      (1) A licensee must have adequate arrangements for compensating persons for loss or damage suffered because of a contravention of this Act by the licensee or its representatives.

      When arrangements are adequate

      (2) For the purposes of subsection (1), arrangements are adequate if, and only if, they:

      (a) satisfy any requirements prescribed by the regulations; or

      (b) are approved in writing by ASIC.

      Approval of arrangements by ASIC

      (3) Before approving arrangements under paragraph (2)(b), ASIC must have regard to:

      (a) the credit activities authorised by the licence; and

      (b) whether the arrangements will continue to cover persons after the licensee ceases to engage in credit activities, and the length of time for which that cover will continue; and

      (c) any other matters that are prescribed by the regulations.

      (4) Without limiting paragraph (3)(c), the regulations may, in particular, prescribe additional details in relation to the matters to which ASIC must have regard under paragraphs (3)(a) and (b).

      49 Obligation to provide a statement or obtain an audit report if directed by ASIC

      Notice to licensee to provide a statement

      (1) ASIC may give a СКАЧАТЬ