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Wednesday, 24 November 2010
Page: 2166

Senator Johnston asked the Minister representing the Minister for Financial Services and Superannuation, upon notice, on 28 September 2010:

Can details be provided as to which legislative regime recovery procedures, as applicable to banks, are administered and regulated.

Senator Sherry (Minister for Small Business, Minister Assisting on Deregulation and Minister Assisting the Minister for Tourism) —The Minister for Financial Services and Superannuation has provided the following answer to the honourable senator’s question:

Banks are subject to a number of different legislative requirements when they seek to recover unpaid debts from borrowers. The principal Acts regulating their conduct are:

(1)   The National Consumer Credit Protection Act 2009 is a Commonwealth statute that regulates banks where the credit was provided for personal, domestic or household use. Schedule 1 to this Act is the National Credit Code, which sets out a number of different requirements in relation to enforcement action. These include obligations on lenders to send a borrower a default notice before commencing court action (section 83), and an obligation not to recover enforcement expenses in excess of those reasonably incurred by the lender (section 107).

(2)   Where the debt is secured by a mortgage over real property, enforcement action must also comply with relevant State and Territory legislation. This legislation will allow for the registration of interests by the bank over real property of the borrower, specify that a mortgagee can only take action following default by the mortgagee, and may introduce other procedural requirements that need to be satisfied.

(3)   State and Territory legislation will also regulate enforcement action through the courts (noting that debt recovery action is almost invariably commenced in non-Commonwealth courts). These rules are particularly relevant to service of the court documents, in that they require the lender to give notice of the legal action to the borrower either personally, or in some other way as directed by the court.