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Consumer Affairs Legislation
Amendment Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM1
General
The Bill implements the first tranche of reforms arising from the Consumer
Affairs Legislation Modernisation project. The purposes of the Bill are to
consolidate, modernise or repeal many of Victoria's Consumer Acts and
enhance the operation of the Prostitution Control Act 1994.
The Bill makes a minor amendment to the Conveyancers Act 2006 to clarify
the operation of audit provisions and repeal transitional sections.
The Bill will streamline licensing requirements for potential estate agents
under the Estate Agents Act 1980 by removing certain requirements that are
currently necessary to obtain a licence. The Bill will also simplify the
process to approve financial institutions to operate trust accounts and repeal
redundant sections.
The Private Agents Act 1966 will be repealed by the Bill. The Bill will
insert sections into the Fair Trading Act 1999 to regulate debt collectors and
debt collection. This system is intended to operate in conjunction with the
credit licensing system that is anticipated to by introduced by the
Commonwealth in 2011.
The Bill amends the Owners Corporations Act 2006 to clarify and improve
its operation.
The Bill repeals sections 3 to 12 of the Carriers and Innkeepers Act 1958
that limit common carriers' liability for loss of certain items.
Parts I-III and related Schedules of the Landlord and Tenant Act 1958 will
be repealed by the Bill. The Bill consequently inserts a modernised section
relating to fixtures into the Property Law Act 1958.
The Bill will repeal unused or duplicated regulation of the petroleum industry
including the Fuel Prices Regulation Act 1981, the Petroleum Retail
Selling Sites Act 1981 and the Petroleum (Terminal Gate Pricing) Act
2000.
561335 1 BILL LA INTRODUCTION 24/11/2009
Following a review of redundant corporations laws by the Scrutiny of Acts
and Regulations Committee, the Bill will repeal redundant corporations
legislation including the Collusive Practices Act 1965 and the Marketable
Securities Act 1970, as well as redundant sections in the Companies
(Administration) Act 1981.
Acts rendered redundant by the forthcoming implementation of a national
trade measurement system will also be repealed. These Acts include the
Utility Meters (Metrological Controls) Act 2002, the Trade Measurement
Act 1995 and the Trade Measurement (Administration) Act 1995.
The Bill will provide for appropriate transitional provisions to be inserted
into the Fair Trading Act 1999. The Bill also amends the Trade
Measurement (Administration) Act 1995 to allow the transfer of certain
information to the Commonwealth in advance of the national
implementation.
The Bill also repeals redundant sections in the Land Act 1958 and the
Supreme Court Act 1986 relating to the now-abolished requirement to
license auctioneers.
Redundant and spent sections in several other Acts will be repealed.
The Acts amended include the Gambling Regulation Act 2003.
The Bill also makes consequential amendments to several other Acts
including the County Court Act 1958, the Fair Trading Act 1999 and the
Private Security Act 2004.
The Bill amends the Prostitution Control Act 1994 to reform licensing
arrangements, strengthen enforcement powers and clarify the operation of
certain aspects of the Act.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill. These are--
· to repeal the Private Agents Act 1966 and insert
provisions in the Fair Trading Act 1999 to regulate
debt collection;
· to amend the Conveyancers Act 2006 to clarify its
operation;
· to amend the licensing and financial auditing
requirements in the Estate Agents Act 1980;
2
· to modernise the law in relation to landlords and
tenants;
· to amend the Owners Corporation Act 2006 to clarify
its operation;
· to amend the Prostitution Control Act 1994 to change
licensing arrangements, strengthen enforcement powers
and clarify its operation;
· to amend the Sale of Land Act 1962 in relation to
deposits for the sale of land under that Act;
· to amend the Trade Measurement (Administration)
Act 1995 and to repeal that Act and the Trade
Measurement Act 1995 and the Utility Meters
(Metrological Controls) Act 2002;
· to repeal other redundant legislation and make
consequential amendments to some of the above and
several other Acts.
Clause 2 sets out the various commencement dates for clauses in the Bill.
Part 1 comes into operation on the day on which the Act receives
Royal Assent.
Clauses 83, 84 and 105(2) will come into operation on 1 July
2010, the date the Commonwealth will take over trade
measurement.
Clause 106 is deemed to have come into effect on 21 October
2009. Clause 106 is statute law revision that corrects the name of
the legislation.
The remaining clauses come into operation on 1 January 2011,
unless proclaimed earlier.
PART 2--AMENDMENT TO THE CONVEYANCERS
ACT 2006
Clause 3 amends section 84(1) of the Conveyancers Act 2006 to clarify
that there is a discretion to prescribe regulations specifying how
audits are conducted.
3
PART 3--AMENDMENTS TO THE ESTATE AGENTS
ACT 1980
Clause 4 inserts, amends and repeals several definitions in section 4(1) of
the Estate Agents Act 1980. Subclause (1) inserts a definition of
authorised financial institution, replacing a current definition at
section 60(6) to reflect the simplified arrangements for approving
financial institutions to hold agents' trust accounts as set out in
clause 14. Subclause (2) updates the definition of approved
industry association to replace the former name of the "Stock
and Station Agents' Association Limited" with its current name,
the "Australian Livestock & Property Agents Association
Limited". Subclause (3) corrects a typographical error in the
definition of principal office. Subclause (4) repeals the
definitions of declared corporation and stock and station agent.
A declared corporation was a stock and station agent which
performed a minor component of estate agency work. The Act
no longer recognises a "declared corporation", making references
to it unnecessary. Additionally, stock and station agents are now
licensed as estate agents where eligible, making specific
references to them unnecessary.
Clause 5 updates section 6(2)(b) of the Estate Agents Act 1980, which
specifies the composition of the Estate Agents Council to replace
the former name of the "Stock and Station Agents' Association
Limited" with its current name, the "Australian Livestock &
Property Agents Association Limited".
Clause 6 repeals subsection 14(2) of the Estate Agents Act 1980, which
gave the Business Licensing Authority discretion to license
agents' representatives who were employed by stock and station
agents or declared corporations while only requiring substantial
compliance with experience requirements. This discretion is no
longer exercised.
Clause 7 repeals section 16(4)(a)(ii) of the Estate Agents Act 1980 that
allows an estate agent to hire an agent's representative if the agent
is given a certificate issued by the Estate Agents Licensing
Authority stating that the person is not ineligible to be an agent's
representative along with a statutory declaration. The Estate
Agents Licensing Authority was abolished in 1998, making such
certificates at least 11 years old. In the meantime, circumstances
of applicants may have changed significantly.
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Clause 8 repeals section 17(2)(c)(i) of the Estate Agents Act 1980,
which requires a licence application to be accompanied by three
character references. These character references are not used in
processes assessing the suitability of a person to hold a licence.
The clause also repeals unnecessary references to declared
corporations.
Clause 9 repeals an unnecessary reference to "declared corporations".
Clause 10 repeals section 30AB of the Estate Agents Act 1980.
This section created a rural branch manager's licence category.
The restrictive nature of the eligibility criteria for this licence
meant that such licences were only infrequently issued. No new
licences have been issues in recent years. As at 1 November
2009, only one licence remained current. Clause 16 allows that
one licensee to retain their licence.
Clause 11 substitutes a reference to 'stock and station agent' with a reference
to 'estate agent' in section 55(9)(b) of the Estate Agents Act
1980. This relates to an exemption for shareholders of agents
that are co-operatives, and ensures that shareholders of
co-operatives are exempted from provisions regulating purchases
of properties by estate agents.
Clause 12 amends section 58 of the Estate Agents Act 1980 to update a
reference to an "authorised financial institution".
Clause 13 amends section 59 of the Estate Agents Act 1980 to insert
penalties of 120 penalty units for non-compliance with
subsection 59(1), and 60 penalty units for non-compliance with
subsection 59(2). These are the same penalties for non-
compliance with trust accounting provisions as those in
sections 66 and 67 of the Conveyancers Act 2006.
Clause 14 amends section 60 of the Estate Agents Act 1980 to simplify the
process to appoint financial institutions to operate trust accounts
by removing the requirement that such appointments must be
made by the Governor in Council, and instead allowing the
Secretary to the Department of Justice to make such
appointments. Subclause (3) repeals the existing definition of
authorised financial institution. A new definition is inserted by
clause 4(1).
Clause 15 repeals section 61 of the Estate Agents Act 1980 which requires
the Governor in Council to approve financial institutions to
operate trust accounts before the Secretary to the Department of
Justice can enter into agreements with those institutions under
section 60.
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Clause 16 substitutes section 101 of the Estate Agents Act 1980.
The former section was a transitional provision dealing with the
renaming of the Estate Agents' Guarantee Fund (what is now the
Victorian Property Fund). The repeal of this section does not
affect the continued operation of the amendments made by this
Act (see section 14(2) of the Interpretation of Legislation Act
1984). The new section allows existing holders of rural branch
managers' licences to retain those licences.
PART 4--AMENDMENTS TO THE FAIR TRADING ACT 1999
Clause 17 defines Authority as meaning the Business Licensing Authority
in section 3 of the Fair Trading Act 1999.
Clause 18 inserts a new Part 5B into the Fair Trading Act 1999 to regulate
debt collectors and debt collection.
Proposed section 93E contains definitions that apply within the
Part. Engage in debt collection means to find or repossess
chattels for another person that the other person is entitled to
repossess under an agreement or to collect, attempt to collect or
request payment of debts owed to another person. Debt collector
means a person who engages in debt collection as a principal
or agent, or as an employee of a principal or agent.
Prohibited person means a person prohibited from engaging in
debt collection unless given a permission to do so by the
Authority.
Proposed section 93F prohibits certain groups of people from
engaging in debt collection. This includes people who have been
found to have contravened legislation that prohibits undue
harassment, coercion or physical violence in the collection of
payments. This is intended to capture both criminal and civil
contraventions of such legislation. Failure to comply with the
section will lead to a penalty of 240 penalty units or two years
imprisonment if the person is a natural person or 1200 penalty
units if the person is a corporation.
Proposed section 93G allows prohibited persons to apply to the
Business Licensing Authority for permission to operate as a debt
collector.
Proposed section 93H sets out the test that a permission
application must meet. Permission may be granted if the
Business Licensing Authority is satisfied that it will not be
contrary to the public interest to do so.
6
Proposed section 93I allows the Business Licensing Authority to
impose conditions on any permission granted. Failure to comply
with the section will lead to a penalty of 240 penalty units or
two years imprisonment if the person is a natural person or
1200 penalty units if the person is a corporation.
Proposed section 93J allows a person whose interests have been
affected by a decision under 93H or 93I to apply to the Victorian
Civil and Administrative Tribunal for a review of the decision.
Proposed section 93K maintains a prohibition currently found in
the Private Agents Act 1966 on debt collectors charging debtors
for debt collection activity. A penalty of 120 penalty units will
apply. This section is modelled on equivalent Queensland
legislation.
Proposed section 93L prohibits a prohibited person from
knowingly purchasing or accepting an assignment of a debt for
the purpose of collecting that debt if the debtor is a natural person
and the debt is wholly or predominantly accrued in connection
with personal, household or domestic purposes. Failure to
comply with the section will lead to a penalty of 240 penalty
units or two years imprisonment if the person is a natural person
or 1200 penalty units if the person is a corporation.
Clause 19 inserts clauses 16, 17, 18 and 19 into Schedule 3 to the Fair
Trading Act 1999.
Clause 16 is a transitional clause dealing with the repeal of the
Private Agents Act 1966. Clause 16(1) requires the Director of
Consumer Affairs Victoria to take custody of the register of
private agents as soon as practicable after 1 January 2011.
Clause 16(2) requires the Director of Consumer Affairs Victoria
to send a notice as soon as practicable after 1 January 2011 to
every private agent requesting the return of their licence.
Clause 16(3) requires every private agent to return their licence
within 14 days of receipt of a notice given under subsection (2).
Clause 17 is a transitional clause dealing with the repeal of the
Trade Measurement Act 1995. Clause 17(1) provides that on
or after 1 July 2010, the Director of Consumer Affairs Victoria
may bring proceedings for an offence committed before the
repeal of the Trade Measurement Act 1995. Clause 17(2) states
that any proceeding commenced before the repeal of the Trade
Measurement Act 1995 may be continued by the Director of
Consumer Affairs Victoria. Clause 17(3) provides that despite
the repeal of the Trade Measurement Act 1995, provisions
relating to the taking of disciplinary action against licensees
(Division 3 of Part 6) continue to apply to any matter for which a
notice has been served under section 57 of the Trade
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Measurement Act 1995 before 1 July 2010. Clause 17(4)
provides that despite the repeal of the Trade Measurement Act
1995, provisions relating to the taking of disciplinary action
against licensees (Division 4 of Part 6) continue to apply to any
person who is the subject of disciplinary action under section 58
of that Act. Clause 17(5) deems that references to "licensing
authority" in Divisions 3 and 4 of Part 6 of the Trade
Measurement Act 1995 are taken to be a reference to the
Director of Consumer Affairs Victoria, and that proceedings
commenced by the Director, Trade Measurement Victoria may be
continued by the Director of Consumer Affairs Victoria.
Clause 17(6) provides that any fees due and payable remain due
and payable and may be collected by the Director of Consumer
Affairs Victoria. Clause 17(7) provides that the powers of an
inspector to investigate an offence continue to apply where the
offence occurred before 1 July 2010, and that those powers may
be exercised by an inspector appointed by the Director of
Consumer Affairs Victoria. Clause 17(8) provides that any item
seized by an inspector under section 64 of the Trade
Measurement Act 1995 must be transferred to the custody of the
Director of Consumer Affairs Victoria and that such items may
be returnable on an application to the Director of Consumer
Affairs Victoria within the time limits specified by section 64.
Clause 17(9) specifies that regulations include regulations made
under the Trade Measurement Act 1995 or Trade
Measurement (Administration) Act 1995.
Clause 18 is a transitional clause dealing with the repeal of the
Trade Measurement (Administration) Act 1995. Clause 18(1)
states the Director of Consumer Affairs Victoria may bring
proceedings for an offence committed before the repeal of the
Trade Measurement (Administration) Act 1995. Clause 18(2)
states that any proceeding commenced before the repeal of the
Trade Measurement (Administration) Act 1995 may be
continued by the Director of Consumer Affairs Victoria.
Clause 18(3) provides that any fees due and payable remain due
and payable and may be collected by the Director of Consumer
Affairs Victoria. Clause 18(4) allows the Director of Consumer
Affairs Victoria to appoint specialised trade measurement
inspectors under the Trade Measurement (Administration)
Act 1995. Clause 18(5) provides that any certification fees due
and payable on or after 1 July 2010 for a certification that
occurred on or before 30 June 2010 remain due and payable and
may be collected by the Director of Consumer Affairs Victoria.
Clause 18(6) provides that despite the repeal of the Trade
Measurement (Administration) Act 1995, an inspector has the
power to apply for a search warrant under section 16 of that Act
8
for any offence alleged to have occurred prior to 1 July 2010, and
that that power may be exercised by an inspector appointed by
the Director of Consumer Affairs Victoria under the Fair
Trading Act 1999. Clause 18(7) provides that despite the repeal
of the Trade Measurement (Administration) Act 1995,
section 18 of that Act, which permits infringement notices to be
served, continues to apply in relation to offences committed prior
to 1 July 2010. Clause 18(8) specifies that regulations include
regulations made under the Trade Measurement Act 1995 or
Trade Measurement (Administration) Act 1995.
Clause 19 provides for the transfer of information about trade
measurement to the National Measurement Institute.
Clause 19(1) specifies that on or after 1 July 2010, the Director of
Consumer Affairs Victoria will take custody of the register of
licences under section 47 of the Trade Measurement Act 1995
and information obtained by the Director, Trade Measurement
Victoria as the administering authority or licensing authority.
Clause 19(2) allows the Director of Consumer Affairs Victoria to
provide that information to the National Measurement Institute.
Clause 110 provides that prior to 1 July 2010, the Director, Trade
Measurement Victoria may provide that information to the
National Measurement Institute.
PART 5--AMENDMENTS TO THE OWNERS
CORPORATIONS ACT 2006
Clause 20 amends section 11 of the Owners Corporations Act 2006 to
clarify that an instrument of delegation must be made at a general
meeting and lasts until the next general meeting, unless revoked
earlier. This ensures that limits are placed on delegations.
Clause 21 amends section 19 of the Owners Corporations Act 2006 so
that any new common seal of an owners corporation must include
the plan of subdivision number. This is intended to improve the
ability to identify owners corporations.
Clause 22 amends section 20(1) of the Owners Corporations Act 2006 to
clarify that the common seal can be used when authorised under
the Act or regulations made under the Act to improve flexibility
in the use of the seal.
Clause 23 amends section 29(1) of the Owners Corporations Act 2006 to
clarify that the imposition of penalty interest on arrears of fees or
another amount payable by a lot must be authorised by the
owners corporation at a general meeting, and to require owners
corporations to report to an annual general meeting any decisions
to waive or not waive penalty interest. This is intended to
9
improve transparency and accountability surrounding the
imposition of penalty interest on lot owners.
Clause 24 amends section 54(1) of the Owners Corporations Act 2006 to
clarify that the definition of insurable building includes "shared
services", which are services shared with third parties.
Clause 25 amends section 59 of the Owners Corporations Act 2006 to
clarify that insurance coverage must include the owners
corporation's portion of any shared services. This is intended to
ensure that no other person is affected by an owners corporation's
actions or inaction with respect to shared services.
Clause 26 amends section 71(2) of the Owners Corporations Act 2006 to
improve transparency and accountability in the operation of
owners corporations by clarifying that details of any decisions to
waive or not waive penalty interest must be tabled and the
minutes of the previous annual general meeting must be tabled
and approved.
Clause 27 amends section 72 of the Owners Corporations Act 2006 to
improve transparency and accountability in the operation of
owners corporations by requiring that any reports under
section 71(2)(h) and the minutes of the previous annual general
meeting are attached to the notice of the annual general meeting.
Clause 28 amends section 79 of the Owners Corporations Act 2006 to
insert a note referring to sections 98, 105 and 106, which concern
chairpersons of owners corporations.
Clause 29 amends section 82 of the Owners Corporations Act 2006 to
insert a note referring to subsection 90(a) concerning resolutions
of owners corporations at general meetings.
Clause 30 substitutes section 94 of the Owners Corporations Act 2006.
Subsection (1) provides that a lot owner who is in arrears for any
amount owed to the owners corporation is not entitled to vote
unless the amount in arrears is paid in full. Subsection (2)
ensures that a lot owner who is in arrears is always entitled to
vote in a case where a special resolution or unanimous resolution
is required. Subsection (3) states that, except in the case of a
payment in cash, an amount is only taken to paid in full if it
is paid at least four business days before a vote at a meeting.
This is to clarify that cheques and other payments purporting to
pay the arrears must be presented in advance to ensure that the
payment is received by the owners corporation.
10
Clause 31 amends section 98(2) of the Owners Corporations Act 2006 to
clarify that a chairperson may be removed by resolution at a
general meeting.
Clause 32 amends section 99(2) of the Owners Corporations Act 2006 to
insert a note referring to section 107 (which provides for a power
to appoint a secretary), and clarifies that a secretary may be
removed by resolution at a general meeting.
Clause 33 amends section 101(1) of the Owners Corporations Act 2006 to
clarify that a committee has only the powers and functions that
are delegated to it.
Clause 34 amends section 105 of the Owners Corporations Act 2006 to
clarify that the members of the committee may revoke the
appointment of a member as the chairperson of the committee.
Clause 35 amends section 107 of the Owners Corporations Act 2006 to
clarify that the members of the committee may revoke the
appointment of a member as the secretary of the committee.
Clause 36 amends section 109 of the Owners Corporations Act 2006 to
clarify that a notice of a meeting of the committee must be given
at least three business days in advance to ensure lot owners get
adequate notice, and that the notice must include the minutes of
the previous meeting and a statement that a member of a
committee may appoint a proxy for the purpose of the meeting.
Clause 37 amends section 120(1)(c) of the Owners Corporations Act 2006
to omit the requirement that any resolution to confer functions on
an owners corporation manager must occur at a general meeting.
Clause 38 replaces section 121 of the Owners Corporations Act 2006 to
align it with section 120 of the Act. Where there is no
committee, the new section confers on a manager functions and
powers under the Owners Corporations Act 2006, the
regulations made under the Owners Corporations Act 2006, the
rules of the owners corporation, owners corporation by resolution
and delegation by the owners corporation.
Clause 39 amends section 150(2) of the Owners Corporations Act 2006 to
require an owners corporation to make a copy of the owners
corporation register available to a person entitled to inspect the
register.
Clause 40 amends section 151(4)(b) of the Owners Corporations Act 2006
to require an owners corporation certificate be sealed with the
owners corporation's common seal.
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PART 6--AMENDMENT TO THE PROPERTY LAW ACT 1958
Clause 41 inserts Division 5A of Part II into the Property Law Act 1958.
Proposed section 154A regulates how tenants may deal with
fixtures under tenancy agreements. Subsection (1) provides that
while a tenant is in possession of the premises but not afterwards,
a tenant owns the fixtures they add and that they may remove
those fixtures. Subsection (2) requires a tenant who removes
fixtures to restore the premises to the condition it was in before
the fixtures were added or pay the landlord the cost of restoring
the premises. Subsection (3) allows the landlord and tenant to
alter the arrangements in the section in a lease or other
agreement. This section replaces section 28(2) of the Landlord
and Tenant Act 1958. This amendment will be further
considered by the Victorian Law Reform Commission in its
review of the Property Law Act 1958.
PART 7--AMENDMENTS TO THE PROSTITUTION
CONTROL ACT 1994
Clause 42 renames the Prostitution Control Act 1994 as the Sex Work
Act 1994 and states that the Schedule has effect. The Schedule
updates references to "prostitute" and "prostitution" to "sex
worker" and "sex work" in the Prostitution Control Act 1994.
Clause 43 inserts section 3B into the Prostitution Control Act 1994.
This section gives the Secretary to the Department of Health the
discretion to exempt sex on premises venues from the operation
of the Prostitution Control Act 1994. Such venues are captured
by section 3A of the Prostitution Control Act 1994, even
though the sexual activities that occur in such venues are not
commercial in nature. Subsection (1) specifies that the Secretary
may grant an exemption if the Secretary is satisfied that the
operator of the venue has entered into an agreement to operate
the venue in accordance with a statement of principles and
procedures for the promotion of sexual health that has been
endorsed by the Secretary and is operating the venue in
accordance with those principles. Subsection (2) requires the
Secretary to issue the exemption in writing and allows the
exemption to include a time limit and conditions. Subsection (3)
allows the Secretary to cancel an exemption if they have failed to
comply with the statement of principles and practices, or a
condition imposed by the Secretary. Subsection (4) requires that
the Secretary notifies the Director of Consumer Affairs Victoria,
the Business Licensing Authority and the Chief Commissioner of
Police of any exemptions that are granted, suspended or revoked.
Subsection (5) defines operator, Secretary and sex on premises
venue.
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Clause 44 inserts proposed section 18A into the Prostitution Control Act
1994. The proposed section requires all persons providing or
receiving sex work services to ensure a condom or other barrier is
used, and take all reasonable steps to minimise the risk of
transmission of sexually transmitted diseases while providing or
receiving those services.
Clause 45 amends section 19(2)(a)(ii) of the Prostitution Control Act
1994 to allow the Minister responsible for administering the
Public Health and Wellbeing Act 2008 to specify the frequency
of swab testing required.
Clause 46 amends section 20(2)(a)(ii) of the Prostitution Control Act
1994 to allow the Minister responsible for administering the
Public Health and Wellbeing Act 2008 to specify the frequency
of swab testing required.
Clause 47 amends section 22(1) of the Prostitution Control Act 1994,
which makes it an offence to operate a brothel without a licence,
to apply the same monetary penalty (1200 penalty units) that
applies in section 77(1) of the Prostitution Control Act 1994,
which makes it an offence to operate a brothel without a planning
permit.
Clause 48 inserts proposed section 24A into the Prostitution Control Act
1994 to require small owner-operated businesses that are exempt
from the Prostitution Control Act 1994 by virtue of section 23,
to submit an annual statement updating their prescribed
particulars to ensure the register of small owner-operated
businesses is kept up to date.
Clause 49 inserts proposed section 39A into the Prostitution Control Act
1994 to require the Business Licensing Authority to issue an
identity card for a licensee and for the licensee to carry the card
at all times while at a brothel.
Clause 50 inserts proposed section 40(3) into the Prostitution Control Act
1994 to allow fees to be charged for amendments to licences to
facilitate cost recovery.
Clause 51 amends section 41 of the Prostitution Control Act 1994 to
require that licensees return licences and identity cards within
seven days of receiving notification of a cancellation or
suspension.
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Clause 52 amends section 42(7) of the Prostitution Control Act 1994
(which comes into operation on 1 January 2010) to clarify that,
despite the nomination of a person as the licensee in effective
control, licensees must continue to meet their duties and
obligations under the Act.
Clause 53 inserts section 46AA into the Prostitution Control Act 1994 to
require owners of buildings in which brothels are operating to
consent to relevant checks about them required by the Business
Licensing Authority. This is to prevent the licensing system
being circumvented by people ineligible to hold a licence buying
buildings in which a brothel is operating and effectively earning
income from the brothel in the form of rent.
Clause 54 inserts proposed section 47A into the Prostitution Control Act
1994 to allow certain persons to take over a sex work service for
30 days if a licensee dies or becomes disabled. The person who
takes over the business may apply to the Business Licensing
Authority for permission to continue to keep operating the
business. The Business Licensing Authority may grant
permission if it is satisfied it is not contrary to the public interest
to do so, may impose conditions on the permission and may
withdraw its permission. A person who takes over a business is
deemed to be licensed.
Clause 55 inserts proposed section 52AAA into the Prostitution Control
Act 1994 to require the Business Licensing Authority to issue an
identity card for an approved manager and for the approved
manager to carry the card at all times while at a brothel.
Clause 56 inserts proposed sections 53A, 53B and 53C into the
Prostitution Control Act 1994 to allow the Business Licensing
Authority to grant permission to an approved manager who has
become insolvent under administration to keep managing the sex
work service providing business. The Business Licensing
Authority may impose conditions upon the permission. It is an
offence to not comply with the conditions, incurring a penalty of
25 penalty units.
Clause 57 amends section 54B of the Prostitution Control Act 1994 to
require that approved managers return certificates of approval
and identity cards within seven days of receiving notification of a
cancellation or suspension of their approval.
Clause 58 amends sections 55(1) of the Prostitution Control Act 1994 to
include on the register established under the Prostitution
Control Act 1994 the name of a licensee who is in effective
control of the business.
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Clause 59 amends section 56 of the Prostitution Control Act 1994 to
extend the circumstances in which the Victorian Civil and
Administrative Tribunal can review a decision. The additional
decisions that can be reviewed are delays in providing
information under section 36A(4), permission applications to
keep operating a business upon the death or disability of a
licensee under proposed section 47A, permission applications to
keep operating as an approved manager under sections 53B and
53C, and exemptions for sex on premises venues under proposed
section 3B.
Clause 60 inserts proposed section 60A into the Prostitution Control Act
1994 to require licensees to display prescribed signage relating to
sexual slavery in brothels in places where any person on the
premises can read that signage. The Governor in Council may
also make regulations prescribing the signage and its locations.
Clause 61 amends section 61 of the Prostitution Control Act 1994 to
require licensees and approved managers to produce, on demand,
their identity card to an authorised member of the police force or
an inspector.
Clause 62 amends section 61C of the Prostitution Control Act 1994 to
clarify that licensees must keep all records in a place where they
can be immediately and easily inspected, and that licensees who
have surrendered their licence or had it cancelled must keep
records for seven years preceding the date of the suspension or
cancellation. This will ensure that licensees who have
surrendered their licence or had it cancelled must retain
seven years of records.
Clause 63 inserts proposed section 61DA into the Prostitution Control Act
1994. This section will require persons entering or leaving
reasonably suspected illegal brothels to give their name and
address, answer questions and give statements to inspectors.
Subsection (1) gives the power to inspectors to request persons
entering or leaving premises that the inspector believes on
reasonable grounds are being used as a brothel for which there is
not a licence in force. Section 15 of the Prostitution Control
Act 1994 makes it an offence for a person to be in, entering or
leaving an unlicensed brothel. Subsection (2) requires an
inspector making a request of a person to identify themselves as
an inspector, state their name, produce identification and inform
the person to whom the request is made that a failure to comply
with the request, the provision of a false name or address and
making a false or misleading statement are offences.
Subsection (3) makes it an offence to refuse or fail to comply
with a request. A level 10 fine will apply. Subsection (4)
15
provides that if an inspector fails to comply with the
requirements of subsection (2), a person has not committed an
offence under subsection (1). Subsection (5) permits an inspector
to request evidence of the correctness of the name and address.
Subsection (6) makes it an offence to refuse or fail to comply
with a request to produce evidence under subsection (4) without a
reasonable excuse. A level 10 fine will apply. Subsection (7)
provides that if an inspector fails to inform the person that it is an
offence not to comply with subsection (5), a person has not
committed an offence under subsection (5). Subsection (8)
ensures that any information gathered under the section will only
be used in connection with the administration of, and legal
proceedings arising out of, the Prostitution Control Act 1994.
Clause 64 amends section 61E of the Prostitution Control Act 1994 to
extend a power to request that a third party produce documents
and answer questions with respect to a licensed sex work service
provider to include other businesses reasonably suspected of
operating as a sex work service provider.
Clause 65 amends section 61F(1)(a) of the Prostitution Control Act 1994
to extend a power to request that a Department Head, the Chief
Commissioner of Police or public authority produce documents
and answer questions with respect to a licensed sex work service
provider to include other businesses reasonably suspected of
operating as a sex work service provider.
Clause 66 amends section 61G(1)(a) of the Prostitution Control Act 1994
to extend a power to request that certain other bodies such as
publishers and broadcasters produce documents and answer
questions with respect to a licensed sex work service provider to
include other businesses reasonably suspected of operating as a
sex work service provider.
Clause 67 amends section 61I(1)(a) and (b) of the Prostitution Control Act
1994 to extend a power to allow a Magistrates' Court to make an
order to require a person to produce documents and answer
questions with respect to a licensed sex work service provider to
include other businesses reasonably suspected of operating as a
sex work service provider.
Clause 68 amends section 62 of the Prostitution Control Act 1994 to
allow the Chief Commissioner of Police to enter licensed
premises, instead of specifying which members of the police
force may do so. In practice, section 6A of the Police Regulation
Act 1958 allows this function to be delegated.
16
Clause 69 substitutes a new section 64(1) of the Prostitution Control Act
1994 to allow the Chief Commissioner of Police to enter
unlicensed premises without a warrant, instead of specifying
which members of the police force may do so. In practice,
section 6A of the Police Regulation Act 1958 allows this
function to be delegated.
Clause 70 inserts proposed section 65A into the Prostitution Control Act
1994 to limit any delegations that the Chief Commissioner of
Police may issue to an officer who is of or above the rank of
senior sergeant.
Clause 71 amends section 72 of the Prostitution Control Act 1994 to
allow applicants for licences to operate as a sex work service
provider to apply for a planning permit to ensure both
applications can be heard simultaneously.
Clause 72 inserts proposed section 74A into the Prostitution Control Act
1994, which requires a responsible authority to impose a
condition on a planning permit to authorise the operation of a
brothel that is granted to an applicant for a licence must not
commence until the licence is granted.
Clause 73 amends section 89A(3) of the Prostitution Control Act 1994 to
allow infringement notices to be issued with respect to certain
offences. These offences include failing to return a licence or
identity card (a three penalty unit penalty will apply to this
infringement), failing to produce a licence or identity card on
demand, and not having documents available immediately and
easily available for inspection (a one penalty unit penalty will
apply to these offences).
Clause 74 inserts proposed section 94 into the Prostitution Control Act
1994 as a saving provision to address the change to the name of
the legislation to the Sex Work Act 1994.
PART 8--AMENDMENT OF THE SALE OF LAND ACT 1962
Clause 75 substitutes section 24(1A) with a new section 24(2) and (3) to
clarify that deposit moneys may be paid from a conveyancer,
estate agent or legal practitioner to another conveyancer, estate
agent or legal practitioner provided that the other conveyancer,
estate agent or legal practitioner is acting for the vendor in
relation to the sale. Currently, only certain combinations of
transfers are permitted (for example, an estate agent can pay
money to a legal practitioner acting for the vendor, but not to a
conveyancer).
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PART 9--AMENDMENT OF TRADE MEASUREMENT
(ADMINISTRATION) ACT 1995
Clause 76 amends the Trade Measurement (Administration) Act 1995 to
allow the Director, Trade Measurement Victoria to release
licensing and other information about trade measurement to the
National Measurement Institute for the purpose of administering
the National Measurement Act 1960 of the Commonwealth.
This release of information is intended to assist in the
establishment of the national trade measurement system.
After 1 July 2010, the Director of Consumer Affairs Victoria will
be responsible for the transfer of this information (see proposed
clause 19 of Schedule 3 to the Fair Trading Act 1999, in
clause 19 of the Bill).
PART 10--REPEALS AND AMENDMENTS
Clause 77 repeals the Collusive Practices Act 1965. This Act regulates
collusive practices in tenders and auctions. However, the
Competition Policy (Reform) Act 1995 now regulates collusive
practices through the Competition Code.
Clause 78 repeals the Fuel Prices Regulation Act 1981. The Act has not
been used for at least 15 years. The Fuel Emergency Act 1977
allows fuel prices to be set in times of fuel emergency.
Clause 79 repeals the Marketable Securities Act 1970. This Act was
reviewed as part of the Scrutiny of Acts and Regulations
Committee's review of redundant corporations legislation and
determined to be redundant.
Clause 80 repeals the Petroleum Retail Selling Sites Act 1981. Petroleum
retail selling sites are now regulated by the Commonwealth
through Oilcode.
Clause 81 repeals the Petroleum Products (Terminal Gate Pricing) Act
2000. Terminal gate pricing is now regulated by the
Commonwealth through Oilcode.
Clause 82 repeals the Private Agents Act 1966. Transitional matters
relating to this repeal are included in clause 19, as proposed
clause 16 of Schedule 3 to the Fair Trading Act 1999.
Clause 83 repeals the Trade Measurement Act 1995. The Commonwealth
will take over responsibility for trade measurement on 1 July
2010. Transitional matters relating to this repeal are included in
proposed clause 17 of Schedule 3 to the Fair Trading Act 1999
at clause 19 of the Bill.
18
Clause 84 repeals the Trade Measurement (Administration) Act 1995.
The Commonwealth will take over responsibility for trade
measurement on 1 July 2010. Transitional matters relating to this
repeal are included in proposed clauses 18 and 19 of Schedule 3
to the Fair Trading Act 1999 at clause 19 of the Bill.
Clause 85 repeals the Utility Meters (Metrological Controls) Act 2002.
The Commonwealth will take over responsibility for trade
measurement on 1 July 2010.
Clause 86 repeals sections 3 to 12 of the Carriers and Innkeepers Act
1958. These sections limit the liability of stagecoach proprietors
and other common carriers to $20 with respect to the loss or
damage of certain items. These sections are now redundant.
Clause 87 repeals sections 11 to 15 of the Companies (Administration)
Act 1981. These sections are transitional in nature or duplicate
Part 11 of the Australian Securities and Investments Commission
Act 2001 of the Commonwealth, including the establishment of a
Companies Auditors and Liquidators Disciplinary Board.
Clause 88 repeals sections 190 and 192 of, and Schedule 2 to, the
Conveyancers Act 2006. These sections are spent repeal and
consequential amendment provisions. The repeal of these
sections does not affect the continued operation of the
amendments made by the sections (see section 15(1) of the
Interpretation of Legislation Act 1984).
Clause 89 repeals section 9A.1.8(2)(a) of the Gambling Regulation Act
2003. This provision allowed persons who displayed
identification under now-repealed sections of the Private
Agents Act 1966 to operate as gaming industry employees.
Registration of crowd controllers now occurs under the Private
Security Act 2004. Consequently, this section is now redundant.
Clause 90 repeals section 93 of the Land Act 1958. This section exempted
auctioneers of Crown land from a requirement to hold an
auctioneer's licence under the Auction Sales Act 1958.
The Auction Sales Act 1958 was repealed in 2001.
Auctioneers of Crown land are exempted from the Estate Agents
Act 1980 under section 13B(2)(a)(i) of that Act. This section is
therefore redundant.
Clause 91 repeals section 2 and Parts I to III of, and the First, Second and
Third Schedules to, the Landlord and Tenant Act 1958.
This legislation is a consolidation of various statutes dating back
to the Landlord and Tenant Act 1709 (Imp.). The legislation has
been determined to be redundant, with the exception of section
19
28(2) relating to fixtures. Clause 41 inserts into the Property
Law Act 1958 a new section regulating fixtures.
Clause 92 repeals Parts 14, 15 and 16 of, and Schedule 3 to the Owners
Corporations Act 2006. These sections are spent consequential
amendment provisions. The repeal of these sections does not
affect the continued operation of the amendments made by the
sections (see section 15(1) of the Interpretation of Legislation
Act 1984).
Clause 93 repeals sections 171A and 171I of the Water Act 1989.
These sections limited the ability of Authorities to make by-laws
that were inconsistent with the Utility Meters (Metrological
Controls) Act 2002.
Clause 94 repeals sections 464 and 465 of the Co-operatives Act 1996.
These sections repealed previous co-operatives legislation and
are spent.
Clause 95 repeals sections 166 to 169 of the Fair Trading Act 1999.
These sections repealed previous fair trading legislation and are
spent.
Clause 96 repeals sections 71(3), 72A and 73 of the Fundraising Act 1998.
Section 71(3) refers to a subsection that has now been repealed.
Section 72A is a transitional section and provides that the
function of inspectors appointed under the Fundraising Act
1998 could be continued by inspectors appointed under the Fair
Trading Act 1999. This transition occurred in 1999. The repeal
of the section does not affect its continued operation (see
section 14(2A) of the Interpretation of Legislation Act 1984).
Section 73 repealed previous fundraising legislation and is spent.
Clause 97 repeals Part 11 of the Funerals Act 2006. This Part repealed
previous funerals legislation and made a consequential
amendment to the Fair Trading Act 1999. The Part is now
spent. The repeal of this Part does not affect the continued
operation of the amendments made by the Part (see section 15(1)
of the Interpretation of Legislation Act 1984).
Clause 98 repeals section 79G of the Partnership Act 1958.
This transitional section allowed proceedings commenced by the
Commissioner for Corporate Affairs, and proceedings to which
the Commissioner for Corporate Affairs was a party, to be
continued by the Director of Consumer Affairs Victoria.
The repeal of the section does not affect its continued operation
(see section 14(2A) of the Interpretation of Legislation Act
1984).
20
Clause 99 repeals section 44 of the Retirement Villages Act 1986.
This transitional section allowed proceedings commenced by the
Commissioner for Corporate Affairs, and proceedings to which
the Commissioner for Corporate Affairs was a party, to be
continued by the Director of Consumer Affairs Victoria.
The repeal of the section does not affect its continued operation
(see section 14(2A) of the Interpretation of Legislation Act
1984).
Clause 100 repeals Part 7 of the Second-Hand Dealers and Pawnbrokers
Act 1989. This Part repealed previous second-hand dealers and
pawnbrokers legislation and provided transitional arrangements
relating to the introduction of the endorsement scheme for
pawnbrokers. The Part is now spent.
Clause 101 repeals sections 49 to 51 of the Travel Agents Act 1986.
These sections were transitional arrangements for the
introduction of licensing, the change of responsibility for
proceedings under the legislation from the Travel Compensation
Fund trustees to the Travel Compensation Fund itself, and the
transition from appeals being heard by specially constituted
committees to being heard by the Victorian Civil and
Administrative Tribunal. The repeal of these sections does not
affect their continued operation (see section 14(2A) of the
Interpretation of Legislation Act 1984).
Clause 102 inserts proposed section 27 into the Corporations (Ancillary
Provisions) Act 2001. This section will allow regulations to be
made to deal with any unforeseen consequences of the repeal of
the Marketable Securities Act 1970.
Clause 103 amends section 23(4) of the County Court Act 1958 to reflect
that process servers are no longer licensed under the Private
Agents Act 1966, which is proposed for repeal.
Clause 104 amends section 22A(3) of the Duties Act 2000 to refer to
section 154A of the Property Law Act 1958, which replaces
section 28(2) of the Landlord and Tenant Act 1958 dealing
with tenants' fixtures.
Clause 105 amends Part 13 of, and Schedule 1 to the Fair Trading Act
1999. Subsection (1) removes a reference to repeals in the
heading of Part 13, because clause 95 repeals the relevant
provisions. Subsections (2) to (4) remove references to the
Trade Measurement Act 1995, the Trade Measurement
(Administration) Act 1995, the Utility Meters (Metrological
Controls) Act 2002 and the Petroleum Products (Terminal
Gate Pricing) Act 2000 in Schedule 1 of the Fair Trading Act
21
1999. Each of these pieces of legislation is to be repealed in this
legislation.
Clause 106 amends section 31 of the Liquor Control Reform Amendment
(Licensing) Act 2009 to correct an error regarding the name of
the legislation in clause 23 of Schedule 3.
Clause 107 amends section 6A of the Police Regulation Act 1958 to insert a
note referring to section 65A of the Prostitution Control Act
1994, which limits delegations under the Prostitution Control
Act 1994.
Clause 108 amends the Private Security Act 2004 to allow the Chief
Commissioner to release the name of a licensee or registration
holder whose licence or registration was cancelled or suspended
under sections 56, 61, 111 or 116 of that Act. This release must
be to the Director of Consumer Affairs Victoria, or to the
Business Licensing Authority, and must be in connection with
proposed section 93F of the Fair Trading Act 1999, which
specifies when a person is prohibited from acting as a debt
collector.
Clause 109 amends section 15 of the Residential Tenancies Act 1997 to
remove a reference to Parts I to III of the Landlord and Tenant
Act 1958, which are being repealed by clause 91, and to exclude
the operation of proposed section 154A (clause 41) relating to
fixtures from the Residential Tenancies Act 1997, because
section 64 of that Act regulates fixtures.
Clause 110 provides that the amending Act is repealed on 1 January 2012.
The repeal of this Act does not affect the continued operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
SCHEDULE
The Schedule amends the Prostitution Control Act 1994 to change
references to "prostitution" to "sex work" and "prostitute" to "sex worker".
In addition, the Schedule renames the Prostitution Control Fund as the
"Sex Work Regulation Fund".
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1
This version of the Explanatory Memorandum contains corrections to the
Explanatory Memorandum previously circulated.
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