Version No. 031
Consumer Credit (Victoria) Act 1995
No. 41 of 1995
Version incorporating amendments as at 1 December 2008
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1Purpose
2Commencement
3Definitions
4Crown to be bound
Part 2—Consumer Credit (Victoria) Code and Consumer Credit (Victoria) Regulations
5Application in Victoria of the Consumer Credit Code
6Application of uniform regulations under the Consumer
Credit Code
7Interpretation of expressions in the Consumer Credit
(Victoria) Code and the Consumer Credit (Victoria)
Regulations
Part 3—Conferral of Judicial and Administrative Functions
8Conferral of judicial functions
9Conferral of administrative functions
Part 4—Registration
10Exemption from this Part
11Certain persons not to carry on business as credit provider
12Section 11 not to apply in certain cases
13Application for registration
14False or misleading statements
15Registration
16Operation of registration
17Credit provider may carry on business under additional
names
18Credit provider not to carry on business with unregistered
partner
19Register to be kept
20Inspection of register
21Credit provider to give notice of certain changes
22Period of registration
23Annual fee
24Annual statement
25Enquiries about credit providers
26Undertakings by credit provider
27Cancellation of registration on request
28Application for inquiry
29Repealed
30Inquiry by Tribunal
31Effect of suspension of registration
31AReturn of certificate of registration
32Powers of credit provider whose registration is suspended or cancelled
33New registration of credit provider prohibited without consent
34Repealed
35Legal personal representatives
36Penalty for using name other than registered name
37Assignment of rights by credit provider
Part 4A—Finance Broking
Division 1—Preliminary
37ADefinitions
37BExemption from this Part
Division 2—Offences
37CCertain persons prohibited from engaging in finance
broking
37DCertain persons not to be directors of or to manage or
control corporations that engage in finance broking
37EWho or what is a disqualified person?
Division 3—Permission to engage in finance broking
37FApplications for permission to engage or be involved in
finance broking
37GPermission from the Authority
37HAuthority may impose conditions
37IApplication for review
Division 4—Permissible fees
37JRequirements before finance brokers may demand or accept
fees
37KFee representing reasonable costs and expenses payable in
certain circumstances
37LFinance brokers not to demand receive accept or charge fee to which they are not entitled
37MValuation and credit application fees
Division 5—Jurisdiction of courts and the Tribunal under Part 4A
37NRight to recover fees if there is non-compliance with this Part
37OJurisdiction of the Tribunal to order repayment of fees
37PCourt power to order repayment where there is a contravention
of section 37L
Division 6—Miscellaneous and transitional provisions
37QDocuments of appointment must be held for 7 years
37RMisrepresentation
37SRegister of finance brokers and agents
37TFinance broker licences and agents licences
37UDirector to exercise and perform certain powers and duties of Registrar
Part 5—Miscellaneous
38Civil penalties to be paid to Consumer Credit Fund
39Contract unenforceable if rate exceeds 48 per cent
40Mortgage void if rate under credit contract exceeds 30per cent
40AIncorporation of provisions of Fair Trading Act1999
41Regulations
Part 6—Transitional Provisions
42Validation of certain Orders
43Credit Regulations 1995
44Exemptions
45Registered credit providers deemed to be registered under this Act
46Register of credit providers
47Application for registration
48Transitional provision for registration of credit providers
49Transitional provision relating to objections
50Special savings and transitional regulations for Victoria
Part 7—Consequential Amendments
Division 1—Credit Act 1984
51New sections 19A and 19B inserted
19AAct not to apply to new credit contracts
19BAct to continue to apply in certain cases
52Amendment of section 85 of Credit Act 1984
53New section 86A inserted in the Credit Act 1984
86APayments to Consumer Credit Fund
54New section 167E inserted in Credit Act 1984
167EOperation of section 86A etc.
Division 2—Credit (Administration) Act 1984
55Amendment of Credit (Administration) Act 1984
56Amendment of Part 2 of the Credit (Administration) Act 1984
PART 2—THE DIRECTOR
10ADefinition
57Further amendment of Credit (Administration) Act1984
58New Part 5A inserted in Credit (Administration) Act 1984
PART 5A—CONSUMER CREDIT FUND
86AAThe Fund
86ABApplication of Consumer Credit Fund
86ACAdvisory Committee
59Amendment of sections 86 and 95
Division 3—Other Acts
60Amendment of section 32 of the Interpretation of
Legislation Act 1984
61New section 38C inserted in Interpretation of Legislation Act1984
38CReferences to Consumer Credit legislation
62Consequential amendments
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SCHEDULE 1—Repealed61
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 031
Consumer Credit (Victoria) Act 1995
No. 41 of 1995
Version incorporating amendments as at 1 December 2008
1
Consumer Credit (Victoria) Act 1995
No. 41 of 1995
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1Purpose
The purpose of this Act is to regulate the provision of credit.
2Commencement
(1)This Part and sections 43, 44, 53, 54 and 58 come into operation on the day on which this Act receives the Royal Assent.
(2)The remaining provisions of this Act come into operation on a day or days to be proclaimed.
3Definitions
(1)In this Act—
S. 3(1) def. of Authority substituted by No. 52/1998 s.4(a).
Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;
Consumer Credit (Queensland) Actmeans the Consumer Credit (Queensland) Act 1994 of Queensland;
Consumer Credit (Victoria) Codemeans the provisions applying because of section 5 of this Act;
Consumer Credit (Victoria) Regulationsmeans the provisions applying because of section 6 of this Act;
S. 3(1) def. of Credit Tribunal repealed by No. 52/1998 s.4(b).
*****
S. 3(1) def. of Director substituted by No. 17/1999 s.27.
Director means the Director within the meaning of the Fair Trading Act 1999;
s. 3
exempt credit provider means a credit provider referred to in section 12(1) or a person who under section 10 is a person to whom Part 4 does not apply;
S. 3(1) def. of externally-administered body corporate inserted by No. 101/1998 s.36(1), amended by No. 44/2001 s.3(Sch. item24.1).
externally-administered body corporate has the same meaning as in the Corporations Act;
S. 3(1) def. of insolvent under administration insertedby No. 101/1998 s.36(1), repealed by No.4/2008 s.32(Sch. item6).
*****
Ministerial Councilmeans the Ministerial Council established under the Uniform Consumer Credit Laws Agreement 1993;
S. 3(1) def. of Registrar substituted by No. 52/1998 s.4(c).
Registrar means the Registrar of the Authority appointed under the Business Licensing Authority Act 1998;
S. 3(1) def. of Tribunal inserted by No. 52/1998 s.4(d).
Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998.
(2)In this Act, a reference to carrying on a business of providing credit includes a reference to carrying on the provision of credit in the course of or as part of or as incidental to or in connection with the carrying on of another business.
(3)Words and expressions used in the Consumer Credit (Victoria) Code and in this Act have the same meanings in this Act as they have in that Code.
(4)Subsection (3) does not apply to the extent that the context or subject matter otherwise indicates or requires.
4Crown to be bound
s. 4
This Act binds the Crown, not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
______
Part 2—Consumer Credit (Victoria) Code and Consumer Credit (Victoria) Regulations
5Application in Victoria of the Consumer Credit Code
s. 5
The Consumer Credit Code set out in the Appendix to the Consumer Credit (Queensland) Act as in force for the time being—
(a)applies as a law of Victoria; and
(b)as so applying may be referred to as the Consumer Credit (Victoria) Code.
6Application of uniform regulations under the Consumer Credit Code
(1)The regulations in force for the time being under Part 4 of the Consumer Credit (Queensland) Act—
(a)apply as regulations in force for the purposes of the Consumer Credit (Victoria) Code; and
(b)as so applying may be referred to as the Consumer Credit (Victoria) Regulations.
(2)Schedule 2 to the Consumer Credit (Victoria) Code applies in relation to any such regulation.
(3)To the extent to which a provision of any such regulation of a savings or transitional nature takes effect from a day earlier than the day of the regulation's notification in the Government Gazette of Queensland, the provision does not operate in this State to the disadvantage of a person (other than the State or a State authority) by—
(a)decreasing the person's rights; or
(b)imposing liabilities on the person.
7Interpretation of expressions in the Consumer Credit (Victoria) Code and the Consumer Credit (Victoria) Regulations
s. 7
(1)In the Consumer Credit (Victoria) Code and the Consumer Credit (Victoria) Regulations—
Legislature of this jurisdictionmeans the Legislature of Victoria;
the Codeor this Codemeans the Consumer Credit (Victoria) Code;
the jurisdictionor this jurisdictionmeans Victoria.
(2)The Acts Interpretation Act 1954, and other Acts, of Queensland do not apply to—
(a)the Consumer Credit Code set out in the Appendix to the Consumer Credit (Queensland) Act in its application as a law of Victoria; or
(b)the regulations in force for the time being under Part 4 of the Consumer Credit (Queensland) Act in their application as regulations in force for the purposes of the Consumer Credit (Victoria) Code.
______
Part 3—Conferral of Judicial and Administrative Functions
8Conferral of judicial functions
s. 8
(1)The jurisdiction that is expressed to be exercisable by "the Court" under the Consumer Credit (Victoria) Code and the Consumer Credit (Victoria) Regulations is exercisable by—
S. 8(1)(a) amended by Nos 52/1998 s.5, 6/2008 s.3(1).
(a)except in relation to proceedings in respect of which a determination is made under subsection(1A), in the case of any jurisdiction under section 36(6) or (7), 47(3), 68, 69, 70, 71, 72, 74, 77, 83(1), 88, 89 or162 or Division 1 or 2 of Part 6 of the Code—only the Tribunal; or
S. 8(1)(ab) inserted by No. 6/2008 s.3(2).
(ab)in the case of proceedingsin respect of which a determination is made under subsection (1A), only a court; or
S. 8(1)(b) amended by No. 52/1998 s.5.
(b)in any other case—either the Tribunal or any court.
S. 8(1A) inserted by No. 6/2008 s.3(3).
(1A)The Director may determine to bring proceedings (other than proceedings on behalf of any other person) that the Director is empowered to bring under a provision of the Code referred to in subsection (1)(a) in a court instead of the Tribunal if the Director considers that—
(a)it is in the public interest to do so; and
(b)given the nature and circumstances of the case, it would be more appropriately dealt with by a court.
S. 8(1B) inserted by No. 6/2008 s.3(3).
(1B)Subsection (1A) applies only to proceedings commenced after the commencement of section 3 of the Consumer Credit (Victoria) and Other Acts Amendment Act 2008.
s. 9
S. 8(2) amended by No. 52/1998 s.5.
(2)The jurisdiction conferred on a court by this section (other than the Tribunal) is subject to the court's general jurisdictional limits (so far as they relate to the amounts, or the value of property, with which the court may deal), but is not subject to the court's other jurisdictional limits.
S. 8(3) amended by No. 52/1998 s.5.
(3)The regulations may make provision for or with respect to the transfer of proceedings between the Tribunal and other courts or between other courts.
(4)The Governor in Council may make regulations for the purposes of this section.
9Conferral of administrative functions
The Director has the functions of the Government Consumer Agency under the Consumer Credit (Victoria) Code and the Consumer Credit (Victoria) Regulations.
______
Part 4—Registration
10Exemption from this Part
s. 10
(1)The Governor in Council may, by Order published in the Government Gazette, declare that the provisions of this Part do not have effect in relation to a specified person or to a specified class of persons.
(2)An Order made under subsection (1)—
(a)may specify the period during which the Order shall remain in force;
(b)may provide that its operation is subject to such terms and conditions as are specified in the Order; and
(c)may specify the circumstances under which a person to whom the Order applies is by reason of the Order to be deemed to be an exempt credit provider for the purposes of this Act and the Consumer Credit (Victoria) Code.
(3)The Governor in Council may, by Order published in the Government Gazette, revoke or vary an Order made under this section.
(4)An Order under this section, including an Order that is varied under this section, has effect according to its tenor.
11Certain persons not to carry on business as credit provider
(1)Subject to this Act, a person must not carry on a business of providing credit under credit contracts unless registered as a credit provider under this Part.
Penalty:500 penalty units.
(2)Subject to this Act, a person must not hold himself, herself or itself out as a person who carries on a business of providing credit under credit contracts unless registered as a credit provider under this Part.
Penalty:250 penalty units.
12Section 11 not to apply in certain cases
s. 12
(1)Section 11 does not apply to—
(a)the Crown or a public or local body or authority constituted by or under an Act;
S. 12(1)(b) substituted by No. 11/2001 s.3(Sch. item14).
(b)an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; or
(c)a body corporate registered under the Life Insurance Act 1945 of the Commonwealth;
(d)a body corporate authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business;
(e)unless Part VII of the Insurance Act 1973 of the Commonwealth has ceased to have effect—a Lloyd's underwriter, being an underwriter of the society known as Lloyd's incorporated by the Imperial Act known as Lloyd's Act 1971;
(f)the holder of a pawnbroker's business premises licence under the Second-Hand Dealers and Pawnbrokers Act 1989;
(g)a body corporate incorporated or empowered by an Act or an Act of the Parliament of the Commonwealth to lend money or provide credit, in respect of the lending of money or provision of credit in accordance with that Act or Act of the Parliament of the Commonwealth;
(h)a person, not being a body corporate, authorised by an Act or an Act of the Parliament of the Commonwealth to lend money or provide credit, in respect of the lending of money or provision of credit in accordance with that Act or Act of the Parliament of the Commonwealth;
(i)a council within the meaning of the Local Government Act 1989;
(j)a pastoral finance company.
(2)A reference in section 11 to providing credit does not include a reference to providing credit otherwise than under credit contracts.
13Application for registration
s. 13
(1)An application for registration as a credit provider may be made to the Registrar in a form approved by the Registrar—
(a)by a natural person of or over the age of 18years; or
(b)by a body corporate.
(2)The application must specify—
(a)the name and address of the applicant;
(b)if the applicant is a body corporate, the name and address of each director of the body corporate;
(c)the principal place of business of the applicant in Victoria;
(d)each other place where the applicant carries on, or intends to carry on, a business of providing credit in Victoria;
(e)the name or names under which the applicant carries on, or intends to carry on, a business of providing credit;
(f)the name of any person with whom the applicant carries on, or intends to carry on, a business of providing credit in partnership;
(g)such other matters as are prescribed.
S. 13(3) amended by No. 52/1998 s.6.
(3)The application must be accompanied by the prescribed registration fee (if any).
(4)An applicant under this section must give to the Registrar such further particulars (if any) as the Registrar requests in connection with the application.
S. 14 amended by No. 52/1998 s.7.
14False or misleading statements
s. 14
A person must not, in or in relation to an application under section 13 or a statement lodged under section 24—
(a)knowingly make a statement that is false or misleading; or
(b)knowingly omit any thing without which the application is misleading.
Penalty:50 penalty units.
15Registration
(1)If the Registrar receives an application made in accordance with section 13 together with the prescribed fee, the Registrar must register the applicant as a credit provider.
(2)A certificate of registration in a form approved by the Registrar and signed by the Registrar must be given to each credit provider registered under this Part.
(3)On registering a credit provider, the Registrar—
(a)must make an entry in the Register of Credit Providers of the particulars of the registration; and
(b)give notice to the Director of the entry.
S. 16 amendedby No. 10/2005 s.3(Sch. 1 item 5.1).
16Operation of registration
s. 16
A registered creditprovider is authorised to carry on business as a credit provider under the name of the registered credit provider and, subject to the Business Names Act 1962, any other name or names specified in the certificate of registration subject to and in accordance with this Act, the regulations, the Consumer Credit (Victoria) Code and the Consumer Credit (Victoria) Regulations.
17Credit provider may carry on business under additional names
(1)A registered credit provider may apply to the Registrar for the entry in the Register of Credit Providers of a name or names in addition to, or in substitution for, a name or names specified in the Register as a name or names under which the credit provider is authorised, as specified in section16, to carry on business as a credit provider.
(2)The Registrar must make entries in the Register of Credit Providers in accordance with the application.
18Credit provider not to carry on business with unregistered partner
A credit provider must not carry on a business of providing credit under credit contracts in partnership with a person who is not a registered credit provider or an exempt credit provider.
Penalty:10 penalty units.
19Register to be kept
s. 19
S. 19(1) amended by No. 52/1998 s.8 (ILA s.39B(1)).
(1)For the purposes of this Act, the Registrar must keep a register to be known as the Register of Credit Providers.
S. 19(2) inserted by No. 52/1998 s.8.
(2)A certificate under the hand of the Registrar certifying as to any matter on the Register is to be received in all courts as evidence of the matter certified.
20Inspection of register
A person—
(a)may inspect the Register of Credit Providers; and
(b)may make a copy of, or take extracts from, the Register.
21Credit provider to give notice of certain changes
(1)If a prescribed change occurs in relation to a registered credit provider, the registered credit provider must give notice in writing to the Registrar within 14 days after the change occurs, together with particulars of the change.
(2)If the Registrar receives notice of any prescribed change under subsection (1), he or she must make an entry in the Register of Credit Providers of the particulars of the change.
S. 22 amended by No. 52/1998 s.9.
22Period of registration
The registration of a credit provider under this Act continues in force until it is suspended, cancelled or surrendered under this Act.
23Annual fee
s. 23
S. 23(1) substituted by No. 52/1998 s.10(1).
(1)A registered credit provider must, on each anniversary of the day on which the credit provider was registered or is deemed to have been registered, pay to the Authority the prescribed annual fee (if any) in respect of the year commencing on that anniversary.
S. 23(1A) inserted by No. 52/1998 s.10(1).
(1A)An annual fee may be paid at any time in the 6weeks before it falls due.
(2)On the application of a registered credit provider, the Registrar may, in his or her discretion, extend or further extend the time within which that credit provider is required to pay a fee under subsection(1).
(3)If a registered credit provider has failed to pay a fee in accordance with subsection (1) or (2), the Registrar must give notice in writing to the credit provider to the effect that unless the credit provider pays the fee within 14 days, or such longer period as the Registrar determines, after the notice is given, the registration will be cancelled.
S. 23(4) substituted by No. 52/1998 s.10(2).
(4)If the credit provider fails to pay a fee within the time specified in a notice under subsection (3), the registration of the credit provider is automatically cancelled.