Proclamation under the Consumer Credit (Tasmania) Act 1996

I, the Lieutenant-Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, by this my proclamation made under section 5(2) of the Consumer Credit (Tasmania) Act 1996 declare that –

(a) the Consumer Credit (Tasmania) Code is amended as provided by Part 2 of Schedule 1 to this proclamation; and

(b) this proclamation takes effect on the day on which its making is notified in the Gazette.

31 July 2006

Peter G. Underwood

Lieutenant-Governor

By His Excellency's Command,

Steven Kons

Minister for Justice and Workplace Relations

SCHEDULE 1 - Amendments to the Consumer Credit (Tasmania) Code

PART 1 - Preliminary

1.    Object

The object of this Schedule is to amend the Consumer Credit (Tasmania) Code in conformity with the Consumer Credit and Trade Measurement Amendment Act 2006 of Queensland.

PART 2 - Amendments to the Consumer Credit (Tasmania) Code

2.    Amendment of s17 (Alteration of contract document)

Section 17(1) –

omit, insert  –

‘(1) An alteration of (including an addition to) a contract document by the credit provider after it is signed by the debtor is ineffective unless the debtor has agreed in writing to the alteration.’.

3.    Amendment of s146D (Expiry of part)

Section 146D, ‘third anniversary of its commencement’ –

omit, insert –

‘fourth anniversary of its commencement, or on an earlier day fixed by a regulation’.

4.    Amendment of s162 (Legibility and language)

(1) Section 162(1), after ‘contract,’ –

insert –

‘mortgage or’.

(2) Section 162(1), after ‘Code’ –

insert –

‘, other than a document transmitted by electronic communication’.

(3) Section 162 –

insert –

‘(1A) A credit contract, mortgage or guarantee or a notice given by a credit provider under this Code, if transmitted by electronic communication –

(a) must be easily legible; and

(b) must conform with the provisions of the regulations, if any, as to content, legibility and accompanying information; and

(c) must be clearly expressed.’.

(4) Section 162(2), ‘a guarantee’ –

omit, insert –

‘mortgage or guarantee’.

(5) Section 162(2), after ‘credit contracts,’ –

insert –

‘mortgages or’.

5.    Amendment of s163 (Copies of contracts and other documents)

Section 163(3) –

omit.

6.    Insertion of new s164A

Part 11, division 2 –

insert –

‘164A Electronic transactions and documents

‘(1) Without limiting the provisions of this Code, it is declared that any contract, mortgage or guarantee referred to in this Code may be made in accordance with the laws of this jurisdiction in relation to electronic transactions.

‘(2) Without limiting the provisions of this Code, it is declared that any requirement or permission by or under this Code, however expressed –

(a) to give information in writing; or

(b) to provide a signature; or

(c) to produce a document; or

(d) to record information in writing; or

(e) to retain a document;

may be met in accordance with the laws of this jurisdiction in relation to electronic transactions.

Example –

Giving information would include the requirement under section 34(1) to provide a statement of amount owing.

Note  –

The laws of this jurisdiction relating to electronic transactions include a definition relating to the giving of information. That definition provides, generally, that giving information includes, but is not limited to –

(a) making an application;

(b) making or lodging a claim;

(c) giving, sending or serving a notification;

(d) lodging a return;

(e) making a request;

(f) making a declaration;

(g) lodging or issuing a certificate;

(h) making, varying or cancelling an election;

(i) lodging an objection;

(j) giving a statement of reasons.

‘(3) The regulations may provide that –

(a) a specified transaction, or a specified class of transactions; or

(b) a specified document, or a specified class of documents; or

(c) specified information, or a specified class of information;

referred to by or under this Code must not be made, given or provided by electronic communication.’.

7.    Amendment of s171 (Giving notice or other document)

Section 171(2)(a), ‘similar facility’ –

omit, insert –

‘electronic communication’.

8.    Amendment of s172 (Manner of giving notice or other document)

(1) Section 172(1)(a)(ii), ‘post, telex, facsimile or similar facility’ –

omit, insert –

‘post, telex or facsimile or, with the written consent of the person in accordance with subsection (1A), by electronic communication’.

(2) Section 172(1)(b)(ii), ‘post, telex, facsimile or similar electronic facility’ –

omit, insert –

‘post, telex or facsimile or, with the written consent of the body corporate in accordance with subsection (1A), by electronic communication’.

(3) Section 172 –

insert –

‘(1A) A debtor, mortgagor or guarantor may consent to the giving of documents by electronic communication by, and only by, a specific positive election in writing, after being informed that if consent is given –

(a) paper documents may no longer be given; and

(b) electronic communications should be regularly checked for notices; and

(c) consent to the giving of documents by electronic communication may be withdrawn at any time.’.

(4) Section 172(2), ‘mortgagor, guarantor or consumer lessee’ –

omit, insert –

‘mortgagor or guarantor’.

(5) Section 172(2) –

insert –

‘Note –

A nominated address may be an electronic address.’.

(6) Section 172(3) –

insert –

‘Note –

A nominated address may be an electronic address.’.

(7) Section 172 –

insert –

‘(3A) If a person nominates an address under subsection (2)(a) or (3)(a), the person may, by notice in writing to the person giving the notice or other document referred to in subsection (1), change the nominated address or cancel the nomination.

‘(3B) If this Code requires or permits a notice or other document to be given to a debtor, mortgagor or guarantor by a credit provider (whether the expression “deliver”, “serve”, “notify”, “send” or “give” or another expression is used), the notice or other document may, with the written consent in accordance with subsection (3C) of the debtor, mortgagor or guarantor, as the case may be, to service of documents by this process, be given by –

(a) making it available for a reasonable period of time on the credit provider’s information system for retrieval by electronic communication by the debtor, mortgagor or guarantor; and

(b) promptly notifying the debtor, mortgagor or guarantor by electronic communication that the information is available for retrieval on that information system and the nature of the information; and

(c) providing the debtor, mortgagor or guarantor with the ability to readily retrieve the information by electronic communication.

‘(3C) A person may consent to the giving of documents by the process in subsection (3B) by, and only by, a specific positive election in writing, after being informed that if consent is given –

(a) there is no longer a requirement that paper documents be given; and

(b) electronic communications should be regularly checked for notices; and

(c) consent to the giving of documents by that process may be withdrawn at any time.

‘(3D) In addition to the requirements of the laws of this jurisdiction in relation to electronic transactions, if a notice or other document is given by sending it to a nominated electronic address or by the process in subsection (3B) –

(a) the notice or other document must be in a format that enables the notice or other document to be printed and saved to an electronic file; and

(b) at the time the notice or other document was sent or was made available on the credit provider’s information system, it was reasonable to expect that the intended recipient would be readily able to print the notice or other document and to save it to an electronic file.

‘(3E) A nomination or consent under this section ceases to have effect if it is cancelled or withdrawn by the person who made or gave it.

‘(3F) The regulations may provide for or with respect to –

(a) the electronic retention of documents under this Code that have been given by electronic communication or by the process in subsection (3B); and

(b) electronic access to those documents by the relevant debtor, mortgagor or guarantor.’.

9.    Amendment of s173 (Date of notice or other document)

(1) Section 173(1)(c) –

omit, insert –

‘(c) in the case of a notice or other document sent by facsimile transmission –on the date it bears or the date on which the machine from which the transmission was sent produces a report indicating that the notice or other document was sent to the facsimile or other number of the addressee, whichever is the later; or

(d) in the case of a notice or other document given in accordance with section 172(3B) –at the time when the electronic communication referred to in section 172(3B)(b) enters the information system of the addressee; or

(e) in the case of a notice or other document given by electronic communication –at the time when the electronic communication enters the information system of the addressee.’.

(2) Section 173 –

insert –

‘(3) This section has effect despite anything to the contrary in the laws of this jurisdiction in relation to electronic transactions.’.

10.    Insertion of new s173A

After section 173 –

insert –

‘173A Attribution of electronic communications

‘(1) For the purposes of this Code, the purported originator of an electronic communication is bound by that communication only if –

(a) the purported originator and the addressee of an electronic communication have agreed that the Electronic Funds Transfer Code of Conduct as published from time to time on the Internet site of the Australian Securities and Investments Commission applies to the electronic communication and under that Code of Conduct the purported originator is bound by the communication; or

(b) in any other case, the communication was sent by the purported originator or with the authority of the purported originator.

‘(2) Subsection (1) does not affect the operation of section 176.

‘(3) This section has effect despite anything to the contrary in the laws of this jurisdiction in relation to electronic transactions.’.

11.    Amendment of sch 2 (Miscellaneous provisions relating to interpretation)

(1) Schedule 2, clause 12(1) –

insert –

electronic communication means –

(a) a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or

(b) a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system.

information system means a system for generating, sending, receiving, storing or otherwise processing electronic communications.’.

(2) Schedule 2, clause 12(1), definitions document, sign and writing –

insert –

‘Note –

See section 164A.’.

Displayed and numbered in accordance with the Rules Publication Act 1953 .

Notified in the Gazette on 9 August 2006

This proclamation is administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the proclamation)

This proclamation amends the Consumer Credit (Tasmania) Code in conformity with the Consumer Credit and Trade Measurement Amendment Act 2006 of Queensland.