Last year the UCCCMC released a draft amendment bill designed to address changes in technology since the Credit Code commenced in 1996.
It has now released details of amendments that have been made to the Consumer Credit (Queensland) Amendment Bill 2004 (the Bill) and the Consumer Credit Amendment Regulation (No.1) 2004 (Regulations) as a result of submissions received by it.
Inclusions of Mortgages in section 162(1)
Mortgages will now be required to conform with requirements as to legibility and language.
Amendments have been made to confirm that a notice can be provided by electronic communication.
Consent to receive electronic communications
Amendments have been made to provide for the debtor to specifically consent to receive electronic communications. Consent cannot be implied from a person merely providing their email address.
The language of specific consent is drawn from the Electronic Funds Transfer Code of Conduct (at clause 22.1(b)) (EFT Code) which refers to a user’s agreement to be given by "specific positive election after receiving an explanation of the implications of making such an election”.1
Building on the EFT Code requirements, before consent is given it will be necessary to inform the debtor, mortgagor or guarantor that:
a) paper documents may no longer be given
b) electronic communications should be checked for notices; and
c) consent to the giving of documents by electronic communications may be withdrawn at any time.
Date of Document or other document – 173(1)(c)
Section 173(1)(c) raises issues about the receipt and attribution of electronic communications. Given the potential for credit providers to contractually shift the time of receipt from entry into the consumer’s information system to exit from the credit provider’s, amendments have been made to apply the receipt rules of section 13 of the ETA in all cases, without the option to vary.
A specific provision has now been included within the amendments that expressly invokes the attribution rules of section 14 of the ETA, but without the option to vary.
1 "Specific positive election" is also adopted in the Code of Banking Practice.