2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to provide for the licensing and regulation of people in the motor vehicle repair industry, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Fair Trading (Motor Vehicle Repair Industry) Act 2009.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘consumer—see the Fair Trading Act 1992, section 6.’ means that the term ‘consumer’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

(1) A person carries on business as a motor vehicle repairer if the person performs motor vehicle repair work for reward.

(2) Motor vehicle repair work means—

(a) any of the following work performed on a motor vehicle, motor vehicle part or motor vehicle system:

(i) examining or assessing condition or performance improvement;

(ii) diagnosing and detecting of faults;

(iii) overhauling;

(iv) dismantling and assembling;

(v) servicing and maintenance;

(vi) replacing and adjusting of objects for performance improvement;

(vii) painting and treatment;

(viii) modifying, altering, installing or fitting work; or

(b) giving advice on any of the work mentioned in paragraph (a); or

(c) any other work prescribed by regulation to be motor vehicle repair work.

(3) However, motor vehicle repair work does not include any work prescribed by regulation not to be motor vehicle repair work.

Note Power to make a statutory instrument (including a regulation) includes power to make different provision for different categories (see Legislation Act, s 48).

For this Act, a person does not carry on business as a motor vehicle repairer only because the person—

(a) performs motor vehicle repair work in the course of employment by another person; or

(b) is a member of a partnership that carries on the business; or

(c) publishes, on behalf of another person, an advertisement about—

(i) a business carried on, or to be carried on, by the other person; or

(ii) a service provided, or to be provided, by the other person.

(1) A person commits an offence if—

(a) the person carries on business as a motor vehicle repairer; and

(b) either—

(i) the person does not hold a licence; or

(ii) if the person is a partner in a partnership that carries on the business—no partner in the partnership holds a licence.

Maximum penalty: 50 penalty units.

(2) A person commits an offence if the person—

(a) carries on business as a motor vehicle repairer at premises; and

(b) either—

(i) does not hold a licence authorising the person to carry on business as a motor vehicle repairer at the premises; or

(ii) if the person is a partner in a partnership that carries on the business—no partner in the partnership holds a licence authorising the person to carry on business as a motor vehicle repairer at the premises.

Maximum penalty: 20 penalty units.

(3) An offence against this section is a strict liability offence.

(1) An individual is eligible for a licence if the individual—

(a) is an adult; and

(b) is not a disqualified person.

(2) A person in a partnership is eligible for a licence if—

(a) the person is eligible under subsection (1); and

(b) no partner in the partnership is a disqualified person.

(3) A corporation is eligible for a licence if—

(a) at least 1 director of the corporation holds a licence; and

(b) no director of the corporation is a disqualified person.

(1) A person is a disqualified person if the person has committed or engaged in a disqualifying act.

(2) However, even if a person has committed or engaged in a disqualifying act, the person is not a disqualified person if the commissioner is satisfied that, in all the circumstances, it would be reasonable not to regard the person as a disqualified person.

(3) In making a decision under subsection (2) in relation to a person, the commissioner must have regard to—

(a) the circumstances of the disqualifying act; and

(b) whether the person cooperated in the investigation of the disqualifying act; and

(c) the extent to which the person provided restitution for any loss suffered because of the disqualifying act; and

(d) the time since the disqualifying act was committed or engaged in; and

(e) whether the disqualifying act was an isolated event.

(4) Subsection (3) does not limit the matters to which the commissioner may have regard in making the decision.

(5) A director of a corporation is taken to have committed a disqualifying act if the director was a director of the corporation when the corporation committed the disqualifying act.

(6) In this section:

disqualifying act means—

(a) a contravention of this Act (including a requirement made by the commissioner under this Act) or a corresponding law of a State, whether or not the contravention is an offence; or

(b) a contravention of a condition of a licence; or

(c) a contravention of the Fair Trading (Motor Vehicle Service and Repair Industry) Code of Practice 1999; or

(d) an offence against the Trade Practices Act 1974 (Cwlth); or

(e) an offence against the Fair Trading Act 1992 or a corresponding law of a State; or

(f) an offence against a law of the Territory, the Commonwealth, a State, another Territory or a foreign country punishable by imprisonment for longer than 1 year.

(1) A person may apply to the commissioner for a motor vehicle repair licence.

Note 1 If a form is approved under s 48 for this provision, the form must be used.

Note 2 A fee may be determined under s 47 for this provision.

Note 3 The Legislation Act contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).

(2) The application must be accompanied by—

(a) a police certificate for the applicant, dated not earlier than 2 months before the day the application is made; and

(b) a signed statement to the effect that, apart from the licence, the applicant has obtained all planning and other approvals required to carry on the motor vehicle repair business at each premises where the applicant proposes to carry on business under the licence.

(3) The commissioner may, in writing, require the applicant to give the commissioner additional information or documents that the commissioner reasonably needs to decide the application.

(4) If the applicant does not comply with a requirement made of the applicant under subsection (3), the commissioner may refuse to consider the application further.

(1) Within 60 days after the day the commissioner receives an application for a motor vehicle repair licence, the commissioner must—

(a) issue the licence; or

(b) refuse to issue the licence.

Note Failure to issue a licence within the 60-day period is taken to be a decision not to issue the licence (see ACT Civil and Administrative Tribunal Act 2008, s 12).

(2) The commissioner must issue the licence if satisfied that the applicant—

(a) is eligible for the licence under section 9; and

(b) can comply with any conditions to which the licence is subject; and

(c) can satisfy anything else prescribed by regulation.

(1) A licence is subject to the conditions set out in division 3.4 (Licence conditions).

(2) A licence is also subject to any conditions—

(a) prescribed by regulation; or

(b) imposed on the licence by the commissioner.

1 that an approved code of practice or standard must be complied with

2 that particular requirements about inspection and reporting must be complied with

3 that stated records must be kept

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) The commissioner may impose—

(a) a condition on a licence when the licence is issued or renewed; and

(b) a condition on, or amend a condition of, a licence at any other time under section 19 (Amendment of licence on commissioner’s initiative) or section 20 (Amendment of licence on application).

A licence must—

(a) be in writing; and

(b) state the name of the person to whom the licence is issued; and

(c) if the licensee carries on business as a motor vehicle repairer under a name other than the licensee’s name—state the name under which the licensee carries on business; and

(d) have a unique identifying number (the licence number); and

(e) state the premises where the licensee is authorised to carry on business as a motor vehicle repairer; and

(f) state the period for which the licence is given; and

(g) include anything prescribed by regulation.

(1) The commissioner may issue a replacement licence to a licensee if satisfied that the licensee’s original licence has been lost, stolen or destroyed.

(2) For subsection (1), the commissioner may require the licensee to give the commissioner a statutory declaration signed by the licensee, stating that the original licence has been lost, stolen or destroyed.

Note 1 A fee may be determined under s 47 for this provision.

Note 2 The Statutory Declarations Act 1959 (Cwlth) applies to the making of statutory declarations under ACT laws.

A licence is issued for the period of up to 12 months stated in the licence.

A licence is not transferable.

(1) A licensee may apply, in writing, to the commissioner to renew the licence.

Note 1 If a form is approved under s 48 for an application, the form must be used.

Note 2 A fee may be determined under s 47 for this provision.

(2) The commissioner may, in writing, require the licensee to give the commissioner additional information or documents that the commissioner reasonably needs to decide the application.

(3) If the applicant does not comply with a requirement made of the applicant under subsection (2), the commissioner may refuse to consider the application further.

(4) On an application to renew a licence, the commissioner must—

(a) renew the licence; or

(b) refuse to renew the licence.

(5) The commissioner must renew the licence if satisfied of the matters mentioned in section 12 (2) in relation to the applicant.

(6) If a licensee applies to renew a licence under this section, the licence remains in force until the application is decided.

(1) The commissioner may, at any time and on the commissioner’s own initiative, amend a licence (including by imposing a condition on, or amending a condition of, the licence).

(2) However, the commissioner may amend a licence only if—

(a) the commissioner has given the licensee written notice of the proposed amendment; and

(b) the notice states that written comments on the proposal may be made to the commissioner before the end of a stated period of at least 14 days after the day the notice is given to the licensee; and

(c) the commissioner has considered any comments made before the end of the stated period.

(3) Subsection (2) does not apply if the licensee applied for, or agreed in writing to, the amendment.

(1) A licensee may apply to the commissioner to amend the licensee’s licence (including by removing or amending a condition of the licence).

Note 1 If a form is approved under s 48 for an application, the form must be used.

Note 2 A fee may be determined under s 47 for this provision.

(2) The commissioner may, in writing, require the applicant to give the commissioner additional information or documents that the commissioner reasonably needs to decide the application.

(3) If the applicant does not comply with a requirement made of the applicant under subsection (2), the commissioner may refuse to consider the application further.

(4) On an application by a person to amend a licence, the commissioner must—

(a) amend the licence in the way applied for; or

(b) refuse to amend the licence.

(5) In deciding whether to amend the licence, the commissioner may consider anything the commissioner may consider under section 12 (2) in relation to an application for a licence.

(1) A licensee may surrender the licence by giving written notice of the surrender to the commissioner.

(2) The licensee must, with the notice—

(a) return the licence to the commissioner; or

(b) if the licence has been lost, stolen or destroyed—give the commissioner a statutory declaration signed by the licensee stating that the licence has been lost, stolen or destroyed.

Note The Statutory Declarations Act 1959 (Cwlth) applies to the making of statutory declarations under ACT laws.

Note A licence is also subject to conditions prescribed by regulation or imposed on the licence by the commissioner—see s 13.

It is a condition of a licence that motor vehicle repair work performed by the licensee or an employee of the licensee on a motor vehicle, part or system be performed with the equipment, materials and skill necessary to carry out the work satisfactorily, having regard to the age and make of the vehicle, part or system.

(1) It is a condition of a licence that the licensee, before performing motor vehicle repair work for a person that is expected to cost the person $150 or more—

(a) give the person an estimate of the cost of the work; and

(b) give the estimate in writing if asked by the person to do so.

(2) However, if it is not reasonably practicable to give an estimate of the cost of work without first undertaking diagnostic work, it is a condition of the licence that a licensee, when performing the diagnostic work for a person—

(a) give the person a written estimate of the cost of the work; and

(b) if the diagnosis is likely to result in any damage to the motor vehicle—tell the person of that fact in writing; and

(c) obtain the person’s written authorisation for the licensee to perform the diagnostic work, unless the person has agreed otherwise; and

(d) after the diagnosis and before the licensee repairs the vehicle—

(i) give the person an estimate of the cost of repairs; and

(ii) obtain the person’s authority to perform the repairs specified in the estimate.

(3) It is a condition of a licence that the licensee, when performing motor vehicle repair work for a person after giving an estimate to the person, tell the person of any variation in the cost from the estimate.

(4) It is a condition of a licence that the licensee keep records of written or verbal estimates and quotes given to people.

It is a condition of a licence that the licensee, before performing work for a person or using parts not agreed to by a person in the estimate of work—

(a) explain to the person—

(i) what the additional work or part is; and

(ii) what the cost of the work or part is; and

(b) obtain the person’s authorisation to—

(i) conduct the work or install the part; and

(ii) charge for the additional work or installation.

It is a condition of a licence that the licensee—

(a) complete motor vehicle repair work in a reasonable time; and

(b) tell the person for whom the work was done how much time was spent performing the work.

(1) It is a condition of a licence that the licensee, on completing motor vehicle repair work for a person, offer to give the person any part that was replaced as part of the work.

(2) If the person chooses not to accept the replaced part under subsection (1), the licensee must not charge a fee for disposal of the part.

It is a condition of a licence that the licensee, before performing motor vehicle repair work for a person, give the person an information sheet approved by the commissioner about motor vehicle repair work.

It is a condition of a licence that the licensee, on completing motor vehicle repair work for a person, give the person a signed copy of any warranty or guarantee relating to workmanship, parts or service provided by the licensee.

It is a condition of a licence that the licence, or a copy of the licence, be displayed in a prominent place at premises where business is carried on under the licence.

It is a condition of a licence that, if the licensee changes name, address or any other detail on the licence, the licensee must tell the commissioner, in writing, about the change as soon as practicable (but not later than 7 days) after the day the change happens.

In this part:

licensee includes a former licensee.

(1) Each of the following is a ground for occupational discipline in relation to a licensee:

(a) the licensee gave information to the commissioner in relation to the application for, or an application for amendment of, the licensee’s licence that was false or misleading in a material particular;

(b) the licensee has contravened, or is contravening, this Act, whether or not the licensee has been convicted or found guilty of an offence for the contravention;

(c) the licensee has contravened, or is contravening, a territory law (other than this Act) or a law of the Commonwealth, a State or another Territory, whether or not the licensee has been convicted or found guilty of an offence for the contravention;

(d) the licensee has contravened, or is contravening, an order of the ACAT;

(e) the licensee has contravened, or is contravening a condition of the licence;

(f) the licence was obtained by fraud or mistake;

(g) a ground prescribed by regulation for this section.

(2) A ground for occupational discipline applies to a former licensee if the ground applied to the licensee while licensed.

If the commissioner believes on reasonable grounds that a ground for occupational discipline exists in relation to a licensee, the commissioner may apply to the ACAT for an occupational discipline order in relation to the licensee.

Note The ACT Civil and Administrative Tribunal Act 2008, s 66 sets out occupational discipline orders the ACAT may make.

(1) This section applies if the ACAT is considering an application for occupational discipline in relation to a licensee.

(2) Without limiting the matters the ACAT must consider in relation to the licensee, the ACAT must consider the following:

(a) the degree of responsibility of the licensee for the act or omission that made up the ground for occupational discipline;

(b) the extent to which it is necessary to discourage the licensee and others from doing something, or not doing something, that made up the disciplinary ground;

(c) whether, and the extent to which, it is necessary to protect the public from the licensee;

(d) the desirability of making the licensee responsible for the consequences of the licensee’s actions or omissions;

(e) the desirability of maintaining public confidence in the regulatory system set up by this Act.

Note The ACT Civil and Administrative Tribunal Act 2008, s 65 (3) sets out other considerations that must be taken into account by the ACAT.

(1) This section applies if the ACAT cancels or suspends a licensee’s licence or disqualifies a licensee from applying for a licence.

(2) The commissioner may give the corresponding authority of each State the following information about the licensee:

(a) the name and any other identifying details of the licensee;

(b) a short description of the ground for occupational discipline on which the occupational discipline order was based;

(c) whether the licence has been cancelled or suspended or the licence disqualified;

(d) if the licence has been suspended—the period of suspension;

(e) if the licensee has been disqualified—the period of disqualification.

(3) This section does not limit any other requirement or power, under this Act or another law in force in the ACT, to give information to an entity in another jurisdiction.

(4) In this section:

corresponding authority, of a State, means the entity responsible in the State for regulation of the motor vehicle repair industry.

If a licence is suspended, the licence does not authorise the licensee to carry on any activity under the licence during the suspension.

(1) The commissioner must keep a register of licences.

(2) The register may include information about licences given to the commissioner under this Act and any other information the commissioner considers appropriate.

(3) The register may be kept in any form, including electronically, that the commissioner decides.

(4) The register may be kept in 1 or more parts, as the commissioner considers appropriate.

(5) The commissioner must make information in the register available for public inspection.

the register may be available on a website

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The commissioner may correct a mistake, error or omission in the register.

(2) The commissioner may change a detail included in the register to keep the register up-to-date.

Note For investigations by the commissioner—see the Fair Trading (Consumer Affairs) Act 1973, div 3.2.

(1) A person commits an offence if—

(a) the person advertises that the person performs or will perform motor vehicle repair work for reward; and

(b) either—

(i) the person does not hold a licence; or

(ii) if the person is a partner in a partnership—no partner in the partnership holds a licence.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(1) A licensee commits an offence if—

(a) the licensee advertises that the person performs, or will perform, motor vehicle repair work for reward; and

(b) the licensee does not include in the advertisement—

(i) the licence number; and

(ii) the address of the premises where the work is or is to be performed.

Maximum penalty: 10 penalty units.

(2) An offence against this section is a strict liability offence.

(1) A licensee commits an offence if—

(a) the licensee’s licence is—

(i) amended under section 19 (Amendment of licence on commissioner’s initiative); or

(ii) amended under section 20 (Amendment of licence on application); or

(iii) suspended or cancelled by the ACAT; and

(b) the licensee fails to return the licence to the commissioner as soon as practicable (but not later than 7 days) after the day the licensee is told about the amendment, suspension or cancellation.

Maximum penalty: 20 penalty units.

(2) An offence against this section is a strict liability offence.

In this part:

reviewable decision means a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.

If the commissioner makes a reviewable decision, the commissioner must give a reviewable decision notice to each person mentioned in schedule 1, column 4 in relation to the decision.

Note 1 The commissioner must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).

Note 2 The requirements for a reviewable decision notice are prescribed under the ACT Civil and Administrative Tribunal Act 2008.

The following people may apply to the ACAT for a review of a reviewable decision:

(a) a person mentioned in schedule 1, column 4 in relation to the decision;

(b) any other person whose interests are affected by the decision.

Note If a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.

A regulation may exempt a person from all or any of the provisions of this Act.

(1) A person may, in writing, apply to the Minister for exemption from all or any of the provisions of this Act.

Note 1 If a form is approved under s 48 for this provision, the form must be used.

Note 2 A fee may be determined under s 47 for this provision.

Note 3 A reference to an Act includes a reference to a provision of an Act (see Legislation Act, s 7 (3)).

(2) The application must state the grounds on which it is made.

(3) The Minister must not grant the exemption unless satisfied on reasonable grounds that the exemption is not likely to cause a substantial detriment to consumers.

(4) In deciding whether to grant an exemption, the Minister must also take into account any criteria prescribed by regulation.

(5) An exemption may be subject to conditions.

(6) The Minister may amend or revoke an exemption at any time on reasonable grounds.

(7) An exemption, and an amendment or revocation of an exemption, is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) The Minister may determine fees for this Act.

Note The Legislation Act contains provisions about the making of determinations and regulations relating to fees (see pt 6.3).

(2) A determination is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) The commissioner may approve forms for this Act.

(2) If the commissioner approves a form for a particular purpose, the approved form must be used for that purpose.

Note For other provisions about forms, see the Legislation Act, s 255.

(3) An approved form is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

The Executive may make regulations for this Act.

Note  Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

The following legislative instruments are repealed:

• Fair Trading (Motor Vehicle Service and Repair Industry) Code of Practice 1999 (NI1999-278)

• Fair Trading (Motor Vehicle Service and Repair Industry) Determination 1999 (NI1999-279).

In this part:

commencement day means the day this Act commences.

repealed code means the Fair Trading (Motor Vehicle Service and Repair Industry) Code of Practice 1999 as in force immediately before the commencement day.

A principal registered under the repealed code immediately before the commencement day is taken to be licensed under section 12 (Decision on application) until the day the person’s registration would have expired under the repealed code.

For section 29 (Licence condition—display of licence), a registration under the repealed code is taken to be a licence for this Act.

Note It is a condition of a licence that the licence, or a copy of the licence, be displayed in a prominent place at premises where business is carried on under the licence—see s 29.

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of this Act.

(2) A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

(3) A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

This part expires 1 year after the day it commences.

(ca) the Fair Trading (Motor Vehicle Repair Industry) Act 2009; or

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• ACAT

• Corporations Act

• entity

• Minister (see s 162)

• occupational discipline order

• reviewable decision notice

• State.

carries on business as a motor vehicle repairer—see section 6 (1).

commissioner means the commissioner for fair trading.

consumer—see the Fair Trading Act 1992, section 6.

corporation—see the Corporations Act.

disqualified person—see section 10.

ground for occupational discipline—see section 32.

licence means a motor vehicle repair licence issued under section 12.

licence number—see section 14 (d).

licensee, for part 4 (Occupational discipline)—see section 31.

motor vehicle—see the Sale of Motor Vehicles Act 1977, dictionary.

motor vehicle repair work—see section 6 (2) and (3).

police certificate, for a person, means a written statement by the Australian Federal Police indicating—

(a) whether, according to the records held by the Australian Federal Police, the person has been charged with, or convicted of, an offence against a law of—

(i) the Territory; or

(ii) the Commonwealth; or

(iii) a State; or

(iv) another country; and

(b) if so—particulars of each offence.

Note A conviction does not include a spent conviction (see Spent Convictions Act 2000, s 16 (c) (i)).

register means the register of licences kept under part 5.

reviewable decision, for part 7 (Notification and review of decisions)—see section 42.

Presentation speech made in the Legislative Assembly on 2009.

Notified under the Legislation Act on 2009.

For the latest republication of amended laws, see www.legislation.act.gov.au.