National Consumer Credit Protection Act 2009

CHAPTER 2 - LICENSING OF PERSONS WHO ENGAGE IN CREDIT ACTIVITIES  

PART 2-6 - EXEMPTIONS AND MODIFICATIONS RELATING TO THIS CHAPTER  

Division 2 - Exemptions and modifications relating to this Chapter  

SECTION 109   EXEMPTIONS AND MODIFICATIONS BY ASIC  
Exemptions and modifications

109(1)    
ASIC may:

(a) exempt:

(i) a person; or

(ii) a person and all of the person ' s credit representatives;

from all or specified provisions to which this Part applies; or

(b) exempt a credit activity that is engaged in in relation to a specified credit contract, mortgage, guarantee or consumer lease from all or specified provisions to which this Part applies; or

(c) declare that provisions to which this Part applies apply in relation to a person, or a credit activity referred to in paragraph (1)(b), as if specified provisions were omitted, modified or varied as specified in the declaration.

109(2)    
An exemption or declaration under subsection (1) is not a legislative instrument.

109(3)    
ASIC may, by legislative instrument:

(a) exempt a class of persons from all or specified provisions to which this Part applies; or

(b) exempt a credit activity (other than a credit activity referred to in paragraph (1)(b)) from all or specified provisions to which this Part applies; or

(c) exempt a class of credit activities from all or specified provisions to which this Part applies; or

(d) declare that provisions to which this Part applies apply in relation to a credit activity (other than a credit activity referred to in paragraph (1)(b)), or a class of persons or credit activities, as if specified provisions were omitted, modified or varied as specified in the declaration.

Conditions on exemptions

109(4)    
An exemption may apply unconditionally or subject to specified conditions. A person to whom a condition specified in an exemption applies must comply with the condition. The court may order the person to comply with the condition in a specified way. Only ASIC may apply to the court for the order.

Publication of exemptions and declarations

109(5)    
An exemption or declaration under subsection (1) must be in writing and ASIC must publish notice of it on its website.

Special rules in relation to offences

109(6)    

If conduct (including an omission) of a person would not have constituted an offence if a particular declaration under paragraph (1)(c) or (3)(d) had not been made, that conduct does not constitute an offence unless, before the conduct occurred:

(a) the text of the declaration was published by ASIC on its website; or

(b) ASIC gave written notice setting out the text of the declaration to the person;

(in addition to complying with the requirements of the Legislation Act 2003 if the declaration is made under subsection (3)).

109(7)    
In a prosecution for an offence to which subsection (6) applies, the prosecution must prove that paragraph (6)(a) or (b) was complied with before the conduct occurred.