National Consumer Credit Protection Act. Australia

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      b) any civil liability under a provision of this Act apart from this Division;

      on a licensee that would not otherwise be imposed on the licensee.

      4) This Division does not relieve a representative of a licensee of any liability that the representative has to the client or the licensee.

      5) An agreement has no effect in so far as it purports to alter or restrict the operation of section 75, 76 or 77.

      6) However, subsection (5) does not apply to the extent that the agreement:

      a) provides for a representative of a licensee to indemnify the licensee for a liability of the licensee in relation to the representative; or

      b) provides for a licensee, for whom a representative acts, to indemnify another licensee for a liability in relation to the representative.

      7) A licensee must not make, or offer to make, an agreement that has, or would have, no effect under subsection (5).

      Part 2–4—Banning or disqualification of persons from engaging in credit activities

      Division 1—Introduction

      79 Guide to this Part

      This Part is about the banning and disqualification of persons from engaging in credit activities.

      Division 2 deals with banning orders, which are orders made by ASIC that prohibit a person from engaging in credit activities.

      Division 3 deals with disqualification orders, which are orders of the court that disqualify a person from engaging in credit activities.

      Division 2—Banning orders

      80 ASIC’s power to make a banning order

      1) ASIC may make a banning order against a person:

      a) if ASIC suspends or cancels a licence of the person; or

      b) for a person other than the trustees of a trust — if the person becomes insolvent; or

      c) for a natural person — if the person is convicted of fraud; or

      d) if the person has:

      i) contravened any credit legislation; or

      (ii) been involved in a contravention of a provision of any credit legislation by another person; or

      e) if ASIC has reason to believe that the person is likely to:

      i) contravene any credit legislation; or(ii) be involved in a contravention of a provision of any credit legislation by another person; or

      f) if ASIC has reason to believe that the person is not a fit and proper person to engage in credit activities; or

      g) if a prescribed State or Territory order is in force against the person; or

      h) in any other circumstances prescribed by the regulations.

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

      (a) if the person is a natural person — the matters set out in paragraphs 37(2)(a) to (f) and subparagraph 37(2)(g)(i) in relation to the person;

      (b) if the person is not a natural person:

      (i) the matters set out in paragraphs 37(2)(a) to (f) in relation to the person; and

      (ii) whether ASIC has reason to believe that any of the persons referred to in paragraph 37(2)(h) in relation to the person is not a fit and proper person to engage in credit activities;

      (c) any criminal conviction of the person, within 10 years before the banning order is proposed to be made;

      (d) any other matter ASIC considers relevant;

      (e) 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 it has reason to believe that a person referred to in subparagraph (2)(b)(ii) is not a fit and proper person to engage in credit activities, have regard to the matters set out in paragraphs (2)(a), (c), (d) and (e) in relation to the person.

      (4) Despite subsection (1), ASIC may only make a banning order against a person after giving the person an opportunity:

      (a) to appear, or be represented, at a hearing before ASIC that takes place in private; and

      (b) to make submissions to ASIC on the matter.

      (5) Subsection (4) does not apply if:

      (a) ASIC’s grounds for making the banning order against the person include that ASIC has suspended or cancelled a licence of the person (see paragraph (1)(a)); and

      (b) the suspension or cancellation took place without a hearing under section 54.

      (6) Subsection (4) also does not apply if:

      (a) ASIC’s grounds for making the banning order against the person include that the person has been convicted of fraud (see paragraph (1)(c)); and

      (b) the person has been convicted of serious fraud.

      (7) ASIC must give a copy of the banning order to the person against whom it was made.

      81 What is a banning order?

      (1) A banning order is a written order that prohibits a person from engaging in any credit activities or specified credit activities in specified circumstances or capacities.

      (2) The order may prohibit the person against whom it is made from engaging in a credit activity:

      (a) permanently; or

      (b) for a specified period.

      (3) A banning order may include a provision allowing the person against whom it was made, subject to any specified conditions:

      (a) to do specified acts; or

      (b) to do specified acts in specified circumstances;

      that the order would otherwise prohibit them from doing.

      (4) A banning order is not a legislative instrument.

      82 Effect of banning orders

      Requirement not to engage in conduct contrary to banning order

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