National Consumer Credit Protection Act 2009

CHAPTER 2 - LICENSING OF PERSONS WHO ENGAGE IN CREDIT ACTIVITIES  

PART 2-4 - BANNING OR DISQUALIFICATION OF PERSONS FROM ENGAGING IN CREDIT ACTIVITIES  

Division 2 - Banning orders  

SECTION 80   ASIC ' S POWER TO MAKE A BANNING ORDER   Making a banning order

80(1)  


ASIC may, in writing, make one or more orders ( banning orders ) against a person:

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

(b)  

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:

(i) engage in one or more credit activities; or

(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001 ) of another person who engages in credit activities; or

(iii) control another person who engages in credit activities; or

(fa)  

if ASIC has reason to believe that the person is not adequately trained, or is not competent, to:

(i) engage in one or more credit activities; or

(ii) perform one or more functions as an officer (within the meaning of the Corporations Act 2001 ) of another person who engages in credit activities; or

(iii) control another person who engages in credit activities; or

(fb)  

if the person has, at least twice, been linked to a refusal or failure to give effect to a determination made by AFCA (as defined in section 910C of the Corporations Act 2001 ) relating to a complaint that relates to:

(i) credit activities; or

(ii) a financial services business (within the meaning of the Corporations Act 2001 ); or

(fc)  

if subsection (3) applies to the person in relation to 2 or more corporations; 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.

80(1A)  


Subsection (1) has effect subject to subsection (4) . When a person is not a fit and proper person

80(2)  


For the purposes of paragraph (1)(f) , ASIC must have regard to the matters in section 37B . When a person has been an officer of a corporation unable to pay its debts

80(3)  


This subsection applies to a person in relation to a corporation if, within the last 7 years:

(a)  the person was an officer (within the meaning of the Corporations Act 2001 ) of the corporation when the corporation was:


(i) engaging in credit activities; or

(ii) carrying on a financial services business (within the meaning of the Corporations Act 2001 ); and

(b)  the corporation was wound up either:


(i) while the person was such an officer of the corporation; or

(ii) within the 12 months after the person ceased to be such an officer of the corporation; and

(c)  a liquidator lodged a report under subsection 533(1) of the Corporations Act 2001 (including that subsection as applied by section 526-35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ) about the corporation ' s inability to pay its debts.

Person to be given an opportunity to be heard

80(4)  


Subject to subsection (5) , if ASIC has not delegated its power to make a banning order against a person to a Financial Services and Credit Panel, ASIC may make the order only 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.

Note:

If ASIC delegates its power to make a banning order against a person to a Financial Services and Credit Panel, the panel may make the order only after holding a hearing in relation to the proposed order (see section 157 of the ASIC Act).

80(5)  


ASIC may make a banning order against a person without giving the person the opportunities mentioned in subsection (4) if:

(a)  

either:

(i) ASIC has not delegated its power to make the banning order to a Financial Services and Credit Panel; or

(ii) ASIC exercises its power to make the banning order despite such a delegation; and

(b)  subsection (6) or (6A) applies.

Note:

See section 34AB of the Acts Interpretation Act 1901 (effect of delegation).

80(6)  


This subsection applies if:

(a)  

ASIC ' s grounds for making a banning order against a 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 .

80(6A)  


This subsection applies if:

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

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

Copy of banning order to be given to the person

80(7)  


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



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