National Consumer Credit Protection Act. Australia

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СКАЧАТЬ not engage in conduct that is contrary to a banning order that is in force against the person.

      Civil penalty: 2,000 penalty units.

      Offence

      2) A person commits an offence if:

      a) the person is subject to a requirement under subsection (1); and

      b) the person engages in conduct; and

      c) the conduct contravenes the requirement.

      Criminal penalty: 100 penalty units, or 2 years imprisonment, or both.

      Note: A person against whom a banning order is in force cannot be granted a licence authorising the person to engage in a credit activity to which the banning order applies (see subsection 40(1)).

      83 Variation or cancellation of banning orders

      1) ASIC may vary or cancel a banning order if ASIC is satisfied that it is appropriate to do so because of a change in any of the circumstances based on which ASIC made the order.

      2) ASIC may do so:

      a) on its own initiative; or

      b) if the person against whom the order was made lodges with ASIC an application for the variation or cancellation.

      3) The application must be in the approved form.

      4) If ASIC proposes not to vary or cancel a banning order in accordance with an application given by a person under paragraph (2)(b), ASIC must give 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) ASIC must give written notice of the variation or cancellation of a banning order to the person against whom the order was made.

      84 Date of effect, notice and publication of banning order, variation or cancellation

      1) A banning order comes into force when it is given to the person against whom it is made.

      2) A variation or cancellation of a banning order comes into force when written notice of the variation or cancellation is given to the person against whom the order was made.

      3) ASIC must publish a notice on ASIC’s website as soon as practicable after making, varying or cancelling a banning order. The notice must state when the banning order, or variation or cancellation of the banning order, came into force and:

      a) in the case of the making of a banning order — set out a copy of the banning order; or

      b) in the case of the variation of a banning order — set out a copy of the banning order as varied.

      4) However, if the banning order contains a provision of the kind referred to in subsection 81(3) and ASIC considers that the notice on its website would be unreasonably long if that provision were included, the notice may instead set out a summary of the provision’s effect.

      85 Statement of reasons

      1) A copy of a banning order given to a person must be accompanied by a statement of reasons for the order.

      2) If ASIC varies a banning order made against a person, ASIC must, on request by the person, give the person a statement of reasons for the variation.

      Division 3—Disqualification by the court

      86 Disqualification by the court

      1) ASIC may apply to the court for an order under subsection (2) in relation to a person if ASIC:

      a) cancels a licence of the person; or

      b) makes a banning order against the person that is to operate permanently.

      2) The court may make:

      a) an order disqualifying the person, permanently or for a specified period, from engaging in credit activities, or specified credit activities, in specified circumstances or capacities; or

      b) any other order the court considers appropriate.

      Note: A person against whom a disqualification order is in force cannot be granted a licence authorising the person to engage in a credit activity to which the disqualification order applies (see subsection 40(1)).

      Part 2–5—Financial records, trust accounts and audit reports

      Division 1—Introduction

      87 Guide to this Part

      This Part is about financial records, trust accounts and matters relating to audit reports required under this Act.

      Division 2 deals with the requirement for licensees to keep certain financial records, and provides for how those records must be kept.

      Division 3 deals with trust accounts. Licensees that provide credit services and that receive money on behalf of others in the course of those services are required to maintain a trust account. Those licensees must also comply with requirements in relation to trust account money, trust account statements and trust account audit reports.

      Division 4 has requirements relating to audit reports required by this Act, and the auditors that prepare those reports.

      Division 2—Financial records of licensees

      88 Obligation to keep financial records

      Requirement to keep financial records

      1) A licensee must:

      a) keep financial records that correctly record and explain the transactions and financial position of any business of engaging in credit activities carried on by the licensee; and

      b) keep those records in accordance with this Division; and

      c) comply with subsection 90(2) in relation to the conversion of records into the English language; and

      d) comply with section 91 in relation to the location and production of records and particulars.

      Civil penalty: 2,000 penalty units.

      Meaning of financial records

      2) Financial records includes:

      a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and

      b) documents of prime entry; and

      c) any trust account statement or trust account report required under section 100.

      Offence

      3) A СКАЧАТЬ