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Consumer Affairs Legislation
Amendment Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
General
The purpose of the Bill is to make a range of amendments to various
Consumer Acts to make a number of changes, in particular to--
· clarify and enhance the investigatory and enforcement capacities of
the Director of Consumer Affairs Victoria and the Fire Services Levy
Monitor;
· align the circumstances in which bodies corporate are prohibited from
engaging in debt collection with those applicable to natural persons,
subject to the addition of a due diligence exception, in the Australian
Consumer Law and Fair Trading Act 2012;
· abolish the Funeral Industry Ministerial Advisory Council;
· amend the Associations Incorporation Reform Act 2012 to--
· ensure that when a grievance procedure has been initiated in an
incorporated association by a member, the incorporated
association cannot take disciplinary action against that
member;
· clarify minor matters in relation to financial reporting; and
· require secretaries of incorporated associations to advise the
Registrar of Incorporated Associations in writing of changes of
address;
· remove obsolete references to infringement offences in the Domestic
Building Contracts Act 1995;
· simplify the industry nomination requirements for members of the
Estate Agents Council where there are single vacancies;
571443 1 BILL LC INTRODUCTION 25/3/2014
· provide that sex work service providers may advertise for staff who
do not engage in sex work--for example, administrative and cleaning
staff;
· amend the Motor Car Traders Act 1986 to reduce some
administrative requirements on motor car traders, and enable
regulations to be made simplifying requirements for the disclosure of
information to purchasers; and
· remove a redundant reference to a list in a prescribed form in the
definition of residence documents in the Retirement Villages Act
1986, and repeal a related and now also redundant offence in that Act.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 provides that the Act (except sections 3, 4, 5, 6, 10, 12 and 21
and Part 8) comes into operation on the day following the day the
Bill receives the Royal Assent.
The excepted provisions of the Bill come into operation on
proclamation, and if not proclaimed earlier, will come into
operation on 31 December 2014.
PART 2--ASSOCIATIONS INCORPORATION REFORM
ACT 2012
Clause 3 inserts new subsection (4) into section 55 of the Associations
Incorporation Reform Act 2012. Section 55 requires the rules
of an incorporated association to set out a grievance procedure
for its members, and provides that a member may appoint another
member to act for them in the grievance procedure.
New subsection 55(4) provides that, if a member has initiated a
grievance procedure against the association, the incorporated
association must not take disciplinary action against that member
in relation to the matter the subject of the grievance. It further
provides that the incorporated association must not take any
disciplinary action against any member that has been appointed
by the complainant member to act for them in the grievance
procedure.
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Clause 4 inserts new section 74A into the Associations Incorporation
Reform Act 2012. This requires the secretary of an incorporated
association to give the Registrar of Incorporated Associations
written notice of any change of their address (postal or
residential) and their email address (if they have one).
The notification must be within 14 days of the change of either
of these addresses, and be in the approved form. Under existing
section 74 the secretary is only required to notify the Registrar of
their address (postal or residential) and their email address (if
they have one) when they were first appointed as secretary.
Clause 5 inserts new section 96(5) into the Associations Incorporation
Reform Act 2012. It clarifies that a tier two incorporated
association does not have to have its financial statements
reviewed under section 96 if its rules require that those financial
statements are audited, and the financial statements are audited.
Clause 6 substitutes section 97(2)(c) of the Associations Incorporation
Reform Act 2012. Subsection 97(2)(c) provides that when
financial statements of a tier two incorporated association are
submitted to the annual general meeting of the incorporated
association, they must be accompanied by the report of the
review under section 96(2)(b). New subsection 97(2)(c) provides
for the submission of either the report of the review, or the audit
report under new section 96(5).
Clause 6(2) amends section 97(4) requiring the audit report
(if any) to be included in the minutes of the annual general
meeting.
Clause 7 Repeals sections 191(4)(p) and (q) of the Associations
Incorporation Reform Act 2012. These paragraphs require the
Registrar to record on the register of incorporated associations
any registered business name or Australian Business Number
held by the incorporated association. This information is
publicly available from other sources, and there is no ongoing
need for the Registrar to publish it.
Clause 8 Repeals Divisions 2 and 3 of Part 16 of, and Schedule 5 to, the
Associations Incorporation Reform Act 2012. Section 226
provides for consequential amendments as set out in Schedule 5.
Those consequential amendments have now taken effect, and the
provisions can be repealed. Sections 227 and 228 repeal the
Associations Incorporation Act 1981 and two Acts that
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amended that Act. These repeals have now taken effect.
Section 15(1) of the Interpretation of Legislation Act 1984
provides that the repeal does not affect the continuing operation
of the amendments.
PART 3--AUSTRALIAN CONSUMER LAW AND FAIR
TRADING ACT 2012
Division 1--Amendments to the Australian Consumer Law and
Fair Trading Act 2012
Clause 9 inserts new section 45(2)(m)(iii) into the Australian Consumer
Law and Fair Trading Act 2012. Section 45 creates an offence
of engaging in a prohibited debt collection practice. Section
45(2) defines debt collection practices, including in section
45(2)(m) contacting a person about a debt after the person
advises in writing that no further communication should be made.
Exceptions to this include an action issued through a court.
New section 45(2)(m)(iii) will add a further exception, being a
communication with the person for the purposes of complying
with section 88 of the National Credit Code.
This communication consists of a notice from a credit provider
that a person has defaulted on repayment of their debt, and is a
precursor to commencing enforcement proceedings to recover the
debt.
Clause 10 amends section 47 of the Australian Consumer Law and Fair
Trading Act 2012. Section 47 creates an offence for natural
persons or bodies corporate, that are prohibited persons, from
engaging in debt collection. Section 47(1)(a) sets out the
circumstances in which natural persons become prohibited
persons. Section 47(1)(b) sets out the circumstances in which
bodies corporate become prohibited persons.
These amendments--
· make editorial corrections to section 47(1)(a); and
· extend the prohibitions for natural persons from
engaging in debt collection set out in sections
47(1)(a)(iv), (v) and (vii) to bodies corporate in
section 47(1)(b); and
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· provide an exception for a body corporate that becomes
a prohibited person because one of its directors, or a
natural person who manages or effectively controls it, is
a prohibited person by virtue of the application of
section 47(1)(a).
A body corporate does not commit an offence where at the time it
engaged in debt collection it was--
· not aware that the director or natural person who
manages or effectively controls it was a prohibited
person; and
· it had taken reasonable precautions and exercised due
diligence to ensure that the director or natural person
was not a prohibited person at the time of their
appointment.
Clause 11 amends section 128 of the Australian Consumer Law and Fair
Trading Act 2012, which requires the Director to give a copy of
certain seized documents to the person from whom they were
seized, by substituting "as soon as practicable after the seizure"
for "within 21 days of the seizure" in section 128(1).
The amendment enables the provision of the copy within a
practicable time frame rather than within 21 days, and recognises
that where a large volume of documents have been seized,
compliance with a strict 21 day limit is unduly onerous.
Clause 12 substitutes section 129 of, and inserts new section 129A into, the
Australian Consumer Law and Fair Trading Act 2012.
Section 129 provides for the retention or return of a seized
document. New section 129 provides that the Director of
Consumer Affairs Victoria must take reasonable steps to ensure
that a document that the inspector has seized is returned within
3 months (unless the Director has already returned it), if--
· it is not required (or is no longer required) for the
purpose of its seizure; and
· its retention is not necessary to prevent it being used in
way that would justify its seizure; and
· there is no dispute about its ownership that could be
resolved by proceedings under section 129A.
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The inspector must return it to either the person from whom it
was seized, or if that person is not entitled to possess it, then the
owner of it.
Substituted section 129 does not apply if the Magistrates' Court
makes an order under section 130 extending the period of
retention.
New section 129A provides that the Magistrates' Court may
make an order for the return of a document to the person from
whom it was seized, or if that person is not entitled to possess it,
then to its owner, if satisfied that--
· it is not required (or is no longer required) for the
purpose of its seizure; or
· its retention is not necessary to prevent it being used in
way that would justify its seizure.
Either the person from whom it was seized, or a person who
claims to be its owner may apply for the order. A copy of the
application must be served on the Director of Consumer Affairs
Victoria, and the Director is entitled to appear in the proceedings.
Clause 13 amends section 132 of the Australian Consumer Law and Fair
Trading Act 2012 to provide for service of written requirements
by the Director of Consumer Affairs Victoria, and provision of
documents to the Director of Consumer Affairs Victoria in
response to those requirements, by ordinary mail rather than by
registered post.
Clause 14 amends section 145(4) of the Australian Consumer Law and
Fair Trading Act 2012.
Section 145 provides that an inspector may seek a Magistrates'
Court order requiring a person to answer questions, supply
information or produce documents. Section 145(4) provides that
the order must state that it ceases to have effect on a date no later
than 28 days from the date of the order. Subclause (1) omits "not
later than 28 days after the making of the order," from section
145(4). This will allow orders to be made providing for longer
periods within which persons can comply.
Subclause (2) inserts subsection 145(5), which provides that if
the order does not specify a date on which it ceases to have
effect, it ceases to have effect 28 days after it is made.
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Clause 15 amends section 149(1) of the Australian Consumer Law and
Fair Trading Act 2012 by substituting "may have contravened"
for "has contravened". Section 149 provides that an inspector
under the Australian Consumer Law and Fair Trading Act
2012 may enter and search premises with the consent of the
occupier, if the inspector believes that there has been a
contravention of the Act or its regulations. Requiring a belief
that a contravention has occurred, rather than may have occurred,
has hindered the utility of the provision.
Clause 16 amends section 154 of the Australian Consumer Law and Fair
Trading Act 2012.
Subclause (1) inserts a note at the foot of section 154(1) of the
Australian Consumer Law and Fair Trading Act 2012.
Section 154 provides for an inspector under the Australian
Consumer Law and Fair Trading Act 2012 to, amongst other
things, secure seized goods against interference. The note
advises that the inspector may issue an embargo notice under
section 162 of the Act to prevent the sale or removal of things.
Note that section 162 is amended by clause 19 to insert the power
to issue an embargo notice in these circumstances.
Subclause (2) repeals sections 154(3), (4) (5) and (7) of the
Australian Consumer Law and Fair Trading Act 2012.
These subsections provide for the issue of a notice under
section 154 to prohibit the removal of goods from the premises.
That notice is replaced by the embargo notice issued under
section 162.
Clause 17 inserts new section 155(1A) into the Australian Consumer Law
and Fair Trading Act 2012. Section 155 provides that an
inspector under the Australian Consumer Law and Fair
Trading Act 2012 may enter and search premises for the purpose
of monitoring compliance with the Act. New section 155(1A)
provides that the inspector may be accompanied by a person
needed to provide technical assistance in the search.
Clause 18 inserts a note at the foot of section 157 of the Australian
Consumer Law and Fair Trading Act 2012. Section 157
provides that an inspector may apply for a search warrant for
particular premises. The note advises that the inspector may
issue an embargo notice under section 162 of the Australian
Consumer Law and Fair Trading Act 2012 to prevent the sale
or removal of things.
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Clause 19 amends section 162 of the Australian Consumer Law and Fair
Trading Act 2012.
Subclause (1) inserts new subsections 162(1A) and (1B).
New subsection (1A) provides that an inspector may issue an
embargo notice as part of a search under section 153(1) of the
Australian Consumer Law and Fair Trading Act 2012.
New subsection (1B) provides that subsection (1A) does not
apply to goods that the inspector believes on reasonable grounds
present a threat of imminent injury or death. Under section
154(1) of the Australian Consumer Law and Fair Trading Act
2012, an inspector, as part of an emergency search under
section 153 of that Act, can secure these goods without an
embargo notice.
Subclause (2) substitutes section 162(2). Currently paragraph (a)
requires that a copy of an embargo notice issued under
section 162 must be served on the occupier of the premises.
Substituted section 162(2)(a) provides that it may be given to the
occupier, or the person who has control or who may reasonably
be presumed to have control over the business at the premises.
Substituted paragraph (b) is amended in consequence of the
changes to paragraph (a).
Subclause (3) inserts new section 162(5A), which provides that
the embargo notice issued under section 162(1A) ceases to have
effect 72 hours after it is served, or affixed in a prominent
position, under section 162(2). An embargo notice issued under
section 162(1) is not subject to new section 162(5A).
Clause 20 Section 166 of the Australian Consumer Law and Fair
Trading Act 2012, provides that an inspector who has seized a
document from a person in the exercise of an inspection power
under Part 6.4 of the Act, must give the person a certified copy.
Clause 20 substitutes "as soon as practicable after the seizure"
for "within 21 days after the seizure" in section 166(1).
The amendment enables the provision of the copy within a
practicable time frame rather than within 21 days, and recognises
that where a large volume of documents have been seized,
compliance with a strict 21 day limit is unduly onerous.
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Clause 21 substitutes section 167 of, and inserts section 167A into, the
Australian Consumer Law and Fair Trading Act 2012.
Section 167 provides for the retention or return of a seized item.
Substituted section 167 provides that an inspector must take
reasonable steps to ensure that a document or thing that the
inspector has seized is returned within 3 months (unless the
inspector has already returned it), if--
· it is not required for the purpose of its seizure; and
· its retention is not necessary to prevent it being used in
a way that would justify its seizure; and
· there is no dispute about its ownership that could be
resolved by proceedings under section 167A.
The inspector must return it to either the person from whom it
was seized, or if that person is not entitled to possess it, then the
owner of it.
Substituted section 167 does not apply if the Magistrates' Court
makes an order under section 168 extending the period of
retention, or a court makes an order under section 174 for the
destruction of the thing.
New section 167A provides that the Magistrates' Court may
make an order for the return of a document or thing to the person
from whom it was seized, or if that person is not entitled to
possess it, then to its owner, if satisfied that--
· it is not required for the purpose of its seizure; or
· its retention is not necessary to prevent it being used in
a way that would justify its seizure.
Either the person from whom it was seized, or a person who
claims to be its owner may apply for the order. A copy of the
application must be served on the Director of Consumer Affairs
Victoria, and the Director is entitled to appear in the proceedings.
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Clause 22 amends section 180 of the Australian Consumer Law and Fair
Trading Act 2012 to provide for service of written requirements
by inspectors under the Australian Consumer Law and Fair
Trading Act 2012, and provision of documents to the Director of
Consumer Affairs Victoria in response to those requirements, by
ordinary mail rather than by registered post.
Clause 23 makes a statute law revision amendment to section 196(3)(a), to
correct a grammatical error by replacing an incorrect "or" with
"of".
Clause 24 substitutes section 209 of the Australian Consumer Law and
Fair Trading Act 2012. Substituted section 209 provides for a
proceeding that may take place if the Director is satisfied that a
person has failed to comply with a requirement of the Director of
Consumer Affairs Victoria or an inspector under the Australian
Consumer Law and Fair Trading Act 2012 to produce
information or documents under sections 125, 126, 148 or 177 of
the Act--
· the Director may apply to a court for an order directing
the person to comply, if the person has not been charged
with an offence under sections 125(2), 126(3) or 169;
and
· the court may order the person to comply within a
period specified in the order, and make any other orders
it considers appropriate.
If proceedings for non-compliance with any of the provisions
referred to in substituted section 209 are commenced, the person
cannot be charged with an offence under section 125(2), 126(3)
or 169.
Clause 25 repeals sections 239 and 240 of, and Schedules 6 and 7 to, the
Australian Consumer Law and Fair Trading Act 2012.
These provisions make consequential amendments relating to
the Australian Consumer Law and Fair Trading Act 2012
and the Associations Incorporation Reform Act 2012.
These amendments have commenced operation and are spent.
This repeal does not affect the continuing operation of the
amendments (see section 15(1) of the Interpretation of
Legislation Act 1984).
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Division 2--Consequential amendments to other Acts
Division 2 makes consequential amendments to provisions of other
Consumer Acts.
Clause 26 substitutes section 219(2)(a) of the Associations Incorporation
Reform Act 2012. This change is consequential upon the
substitution of section 209 of the Australian Consumer Law
and Fair Trading Act 2012 by clause 24.
Clause 27 substitutes section 68(2)(a) of the Fundraising Act 1998.
This change is consequential upon the substitution of section 209
of the Australian Consumer Law and Fair Trading Act 2012
by clause 24.
Clause 28 omits "and section 209(2) did not apply" from section 48A(1) of
the Sale of Land Act 1962. This change is consequential upon
the substitution of section 209 of the Australian Consumer Law
and Fair Trading Act 2012 by clause 24.
PART 4--DOMESTIC BUILDING CONTRACTS ACT 1995
Clause 29 repeals items relating to sections 67, 88(5) and 111 from
Schedule 2 to the Domestic Building Contracts Act 1995.
These items established offences against these sections as
infringeable offences. The sections have been repealed and the
references are obsolete.
PART 5--ESTATE AGENTS ACT 1980
Clause 30 amends the definition of approved industry association in
section 4(1) of the Estate Agents Act 1980 by correcting an
incorrect reference to The Real Estate Institute of Victoria
Limited.
Clause 31 substitutes section 6(2)(a) and (b) of, and inserts new sections
6(2A) and (2B) into, the Estate Agents Act 1980.
Currently section 6(2)(a) and (b) provide for the appointment of
persons nominated by The Real Estate Institute of Victoria
Limited and the Australian Livestock and Property Agents
Associations Limited, to positions allocated to them on the Estate
Agents Council. In particular, the Real Estate Institute of
Victoria Limited is required to nominate a panel of 8 persons,
and the Australian Property and Livestock Agents Association
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Limited to nominate a panel of 3 persons, from which appointees
can be selected.
The restructured sections provide that in circumstances where
only 1 vacancy on the Estate Agents Council exists for the
relevant organisation, The Real Estate Institute of Victoria
Limited is only required to submit a panel of 4 persons, and the
Australian Livestock and Property Agents Association Limited is
only required to submit a panel of 2 persons.
Clause 32 substitutes section 55(4)(a)(ii) of the Estate Agents Act 1980.
Section 55 provides that it is an offence for an estate agent or an
agent's representative to obtain a beneficial interest in a property
that the estate agent has been engaged to sell.
Section 55(4) provides an exception where, amongst other things,
the estate agent or agent's representative acts fairly and honestly
in relation to the transaction. This is set out in section
55(4)(a)(ii), and was adopted from an equivalent provision from
Queensland legislation.
Substituted section 55(4)(a)(ii) will provide that this element of
the exception is now that the estate agent or agent's representative
acts honestly and reasonably in relation to the transaction.
This makes the exception consistent with section 32(7) of the
Sale of Land Act 1962, which has been applied by courts in
Victoria.
PART 6--FIRE SERVICES LEVY MONITOR ACT 2012
Clause 33 amends section 24 of the Fire Services Levy Monitor Act 2012
to provide for service of written requirements by the Monitor
under Part 3 of that Act and service of a response to such a
requirement on the Monitor, by ordinary mail rather than by
registered post.
Clause 34 substitutes section 100 of the Fire Services Levy Monitor Act
2012. Section 100 is modelled on the new section 209 of the
Australian Consumer Law and Fair Trading Act 2012
substituted by clause 24 above. In addition to reconstructing the
provision consistently with its equivalent in the Australian
Consumer Law and Fair Trading Act 2012, a reference to
section 30 of the Fire Services Levy Monitor Act 2012 is
included as one of the provisions about which the court can make
orders.
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PART 7--FUNERALS ACT 2006
Clause 35 repeals section 1(c) of the Funerals Act 2006, which sets out that
one of the purposes of that Act is to establish a Funeral Industry
Ministerial Advisory Council. The Funeral Industry Ministerial
Advisory Council is to be abolished by the repeal of Part 2 by
clause 37.
Clause 36 repeals the definition of Council in section 3 of the Funerals
Act 2006.
Clause 37 repeals Part 2 of the Funerals Act 2006. Part 2 sets out the
composition and functions of the Funeral Industry Ministerial
Advisory Council.
PART 8--MOTOR CAR TRADERS ACT 1986
Clause 38 substitutes the definition of customer service capacity in section
35A(5) of the Motor Car Traders Act 1986 to clarify that only
people that are to be directly involved in buying, selling or
exchanging or attempting to buy, sell or exchange motor vehicles
are required to comply with the requirements of section 35A of
the Motor Car Traders Act 1986. Those requirements do not
extend to administrative or service staff employed by a motor car
trader.
Clause 39 substitutes new section 43(2) for section 43(1B), (1C), (2) and
(2A) of the Motor Car Traders Act 1986. Subsection 43(1)
provides that a natural person (other than a motor car trader)
purchasing a motor vehicle may cancel the purchase at any time
within 3 days after signing the contract of sale for the motor
vehicle by giving the motor car trader (or an agent of the motor
car trader) a written notice.
The substituted subsection provides that subsection (1) does not
apply if within the 3 days the purchaser takes delivery of the
motor vehicle.
The repealed subsections relate to a requirement that a motor
car trader provide certain information to a purchaser.
This requirement will be replaced by regulations made under
section 90 as amended by clause 43.
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Clause 40 repeals section 52(2)(b) and (ba) of the Motor Car Traders Act
1986. This will remove the requirement for motor car traders to
display details of the last owner of a used motor vehicle when
they offer that vehicle for sale.
Clause 41 repeals section 53 of the Motor Car Traders Act 1986.
This removes the requirement that a motor car trader provide
details of the previous owner of a used motor vehicle that they
are offering for sale, if asked for those details by a prospective
purchaser.
Clause 42 substitutes section 83A of the Motor Car Traders Act 1986.
This changes the period for which a motor car trader must retain
a document for the purposes of the Act or the Motor Car Traders
Regulations 2008 from 7 to 6 years. It also removes the
requirement that a person keep a copy of a document that they
have sent to the Director of Consumer Affairs Victoria, the
Business Licensing Authority or the Motor Car Traders Claims
Committee.
Clause 43 inserts new section 90(1)(ea) into the Motor Car Traders Act
1986. Section 90 sets out the regulation-making powers under
the Act. The new section will enable regulations to be made
concerning the provision of information on the rights of a
purchaser under the Act (including in an agreement to purchase
a motor vehicle); and about warranties and insurance policies.
PART 9--RETIREMENT VILLAGES ACT 1986
Clause 44 repeals paragraph (f) of the definition of residence documents in
section 3 of the Retirement Villages Act 1986. Paragraph 3(f)
refers to a list in the prescribed form. A list is no longer
prescribed, and the paragraph is now redundant.
Clause 45 repeals section 20(2) of the Retirement Villages Act 1986.
Section 20(2) creates an offence for the owner of a retirement
village (or their agent) to refuse or fail to answer, or give a false
or misleading answer, to a question about a document in the list
referred to in paragraph (f) of the definition of residence
documents which is repealed by clause 44. This provision is no
longer required.
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PART 10--SEX WORK ACT 1994
Clause 46 inserts the words "if the employment will involve, to any extent,
the provision of sex work" in section 17(3)(b) of the Sex Work
Act 1995. This will enable sex work service providers to
advertise for staff such as cleaners, receptionists or managers,
provided that those staff will not be directly involved in
providing sexual services.
Clause 47 makes a technical amendment to section 37(4) of the Sex Work
Act 1994. Under section 37(1)(f) the Business Licensing
Authority must refuse an application for a licence for a sex work
service provider if the person is an insolvent under
administration. Section 37(4) restricts the application of this
paragraph to situations where the person became an insolvent
under administration on or after the commencement of section 10
of the Licensing and Tribunal (Amendment) Act 1998.
The reference to the definition of insolvent under administration
however, refers to a definition in the Sex Work Act 1994 which
was repealed in 2008, and replaced with an updated definition in
the Interpretation of Legislation Act 1984. This clause updates
this cross-reference.
Clause 48 omits "control" from section 67(1A)(b) of the Sex Work Act
1994. This removes a residual reference to the word "control".
Other references were removed when the name of the Act was
changed from the Prostitution Control Act 1994 to the Sex
Work Act 1994, and references to "prostitution control" were
replaced with "sex work".
PART 11--REPEAL OF AMENDING ACT
Clause 49 provides for the automatic repeal of this Act on 31 December
2015. The repeal of this Act does not affect in any way the
continuing operation of the amendments made by this Act
(see section 15(1) of the Interpretation of Legislation Act
1984).
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