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 (within the meaning 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

(fba)    

if all of the following apply:

(i) an individual who holds a licence, a partner in a partnership, a body corporate or a trustee of a trust is required to pay an amount in accordance with a relevant AFCA determination (within the meaning of the Corporations Act 2001 );

(ii) the CSLR operator (within the meaning of that Act) has paid, under section 1063 of that Act, an amount of compensation for the relevant AFCA determination;

(iii) at the time the payment is made by the CSLR operator, the person is the individual licensee, a partner in the partnership, an officer (within the meaning of that Act) of the body corporate or the trustee of the trust; 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.