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Veterans and Other Acts Amendment Bill 2015

  Veterans and Other Acts Amendment
               Bill 2015

                        Introduction Print


              EXPLANATORY MEMORANDUM


                                 General
The purpose of the Bill is to make a range of amendments to a number of
Acts, in particular to--
         ·   amend the Veterans Act 2005 to aid the administration of
             patriotic funds in Victoria by--
             ·      simplifying the process for transfers out of patriotic
                    funds; and
             ·      enabling the Director of Consumer Affairs Victoria to
                    consent to minor changes to trust deeds for patriotic
                    funds where the deed itself lacks a power of
                    amendment; and
             ·      providing for a mechanism to enable two or more
                    patriotic funds to amalgamate;
         ·   amend the Sale of Land Act 1962 to address stakeholder
             concerns that the current definition of terms contract no longer
             catches all forms of terms contracts by amending this
             definition;
         ·   amend the Australian Consumer Law and Fair Trading Act
             2012 to clarify that it is not a prohibited debt collection
             practice for a creditor to contact a debtor for the purposes of
             complying with the requirements of the National Credit Code,
             and to allow the Director of Consumer Affairs Victoria to
             delegate powers under section 126 of that Act;




581019                               1                               24/2/2015

 


 

· amend the Residential Tenancies Act 1997 to make it an offence for a rooming house owner not to keep records of gas and electrical safety checks; · amend the Motor Car Traders Act 1986 to clarify that a person who was but is no longer a licensed motor car trader is still subject to disciplinary action in relation to their conduct while licensed, and to enable the Governor in Council to appoint a Deputy Chairperson for the Motor Car Traders Claims Committee; · amend the Co-operatives National Law Application Act 2013 to provide the Magistrates' Court with jurisdiction for some actions under that Act; · amend the Association Incorporation Reform Act 2012 to allow the Registrar of Incorporated Associations to exempt an incorporated association from the requirement to provide access to its register of members; · amend various Consumer Acts within the meaning of section 3 of the Australian Consumer Law and Fair Trading Act 2012, to clarify that powers from that Act that are applied in and to the Consumer Acts will also apply to regulations made under them. Clause Notes Part 1--Preliminary Clause 1 sets out the main purposes of the Bill. These are to amend the Sale of Land Act 1962, the Veterans Act 2005, the Australian Consumer Law and Fair Trading Act 2012, the Motor Car Traders Act 1986, the Residential Tenancies Act 1997, the Associations Incorporation Reform Act 2012, the Co-operatives National Law Application Act 2013, the Conveyancers Act 2006, the Domestic Building Contracts Act 1995, the Estate Agents Act 1980, the Fundraising Act 1998, the Funerals Act 2006, the Owners Corporations Act 2006, the Retirement Villages Act 1986, the Second-Hand Dealers and Pawnbrokers Act 1989 and the Sex Work Act 1994. 2

 


 

Clause 2 provides that the Act, other than Part 5, sections 12 and 13, Part 7 and Part 8, will come into operation on the day following the day on which the Act receives the Royal Assent. Part 5, sections 12 and 13, Part 7 and Part 8 will come into operation on proclamation. If it is not proclaimed earlier, it will come into operation on 1 December 2015. Part 2--Amendment of Veterans Act 2005 Clause 3 amends section 26 of the Veterans Act 2005 to enable the Minister to seek the advice of the Victorian Veterans Council when determining whether to approve the interstate transfer of patriotic fund assets under section 36(5)(b). Section 36(5)(b) is inserted by clause 5 of this Bill, and enables the trustees of a patriotic fund to apply to the Minister for approval for the interstate transfer of patriotic fund assets in certain circumstances. This clause also substitutes a new heading to section 26 that reflects the amendments to section 26 contained in this clause. Clause 4 inserts new sections 33A and 33B into the Veterans Act 2005. New section 33A(1) enables the Director to approve, on the written application of the trustee of a patriotic fund, either the amendment of the trust deed of that patriotic fund or the adoption of a new trust deed for that patriotic fund. New section 33A(2) provides that the Director may only approve the amendment of a trust deed or the adoption of a new trust deed where the amendment or adoption is consistent with, and does not alter the objects or purposes of the patriotic fund. New section 33A(3) provides that the amendments to the trust deed, or the adoption of a new deed, take effect once approved by the Director. New section 33B inserts a facility to enable two or more patriotic funds to apply to the Director for approval to amalgamate. This process is based on the process for the amalgamation of two or more incorporated associations set out in Division 2 of Part 2 of the Associations Incorporation Reform Act 2012. 3

 


 

New section 33B(2) details what information must be included in an application for amalgamation to the Director under this section. New section 33B(3) provides that the Director may approve an application for amalgamation under this section by notice in writing to the trustees of the patriotic funds that applied for the amalgamation. New section 33B(4) sets out the effect of amalgamation of patriotic funds. On the amalgamation of two or more patriotic funds under this section, a new patriotic fund is established with the details set out in the application for amalgamation applying to the new patriotic fund and the amalgamating patriotic funds are incorporated into the new patriotic fund. In addition, the property of each amalgamating fund automatically vests in the trustees of the new patriotic fund without the need for any other conveyance, transfer or assignment. This property is held by the trustees subject to the objects of the new patriotic fund. New section 33B(5) provides that any property vested in the trustees of an amalgamated patriotic fund by reason of subsection (4) vests subject to any restriction, limitation, mortgage, charge, security interest, encumbrance, lien, lease covenant, contract or liability to which the property was subject immediately before it was vested by reason of subsection (4). However, this does not include any restriction that may have applied by virtue of the terms of any of the amalgamating patriotic fund. Per subsection (4), on amalgamation, these restrictions no longer apply; instead, the property of the constituent patriotic funds is held by the trustees of the new patriotic fund subject to the objects of that patriotic fund. New section 33B(6) provides that a reference in a will to a patriotic fund that has amalgamated under this section must, unless the will otherwise provides, be construed as a reference the amalgamated patriotic fund. Clause 5 inserts a new subsection (5) into section 36 of the Veterans Act 2005. Section 36 currently enables the trustees of a patriotic fund with the approval of the Governor in Council, on the recommendation of the Minister, to transfer all or any of the assets of the patriotic fund to the trustees or a patriotic fund or charitable trust or charitable corporation located in another State. 4

 


 

New section 36(5) will enable the trustees of a patriotic fund to transfer patriotic fund assets to trustees or corporations located in another state without the approval of the Governor in Council if-- · the value of the assets does not exceed $1000 in any 6 month period, or other prescribed amount, and approval of the Director is obtained; or · the value of the assets does not exceed $5000 in any 6 month period, or other prescribed amount, and the approval of the Minister is obtained. Clause 6 inserts a new section 36A into the Veterans Act 2005. New section 36A enables the Governor in Council, Minister or Director, as appropriate, to validate the transfer of patriotic fund assets that required the approval of the Governor in Council, Minister or Director under section 34, 35 or 36, but were made without that approval being obtained. The Governor in Council, Minister or Director may only validate a transfer under this section if they would have granted approval for that transfer if it had been sought before the transfer was made. The effect of validation under this section is to make the transfer of assets valid and effectual for all purposes, as if approval had been given before the transfer was made. However, validation by the Governor in Council, Minister or Director under this section does not exempt a trustee from any civil or criminal liability that the trustee may have incurred as a result of making transfers of patriotic fund assets without obtaining the necessary prior approval. Part 3--Amendment of Sale of Land Act 1962 Clause 7 amends section 29A of the Sale of Land Act 1962 to clarify the circumstances in which a terms contract will and will not be created. Section 29A(1) sets out two circumstances in which a contract for the sale of land will be a terms contract for the purposes of the Act. Broadly, these are where a purchaser under a contract is 5

 


 

required, after execution of the contract, to make multiple payments to the vendor before the purchaser is entitled to transfer of the land (paragraph (a)), or where a purchaser is entitled to possession or occupation of the land before the purchaser is entitled to a transfer of the land (paragraph (b)). Subclause (1) amends section 29A(1)(b) to substitute the words "possession of the land or to the receipt of rents and profits" for "possession or occupation of the land". Removing the word "occupation" from paragraph (b) is intended to ensure that a terms contract is not inadvertently created where the purchaser under a contract for the sale of land is given permission to access the land before settlement, for example, to store goods. In case law, access of this nature has been considered to amount to an entitlement to occupation of the land, thereby inadvertently giving rise to a terms contract. Conversely, including a reference to "the receipt of rents and profits" recognises that where a vendor of tenanted premises grants a purchaser the right to the receipt of rents and profits before settlement, the conferral of that right should result in the creation of a terms contract equivalent to conferral of the right to possession. Subclause (2) inserts new subsection (1A) into section 29A to clarify that a payment made by a purchaser under a contract for the sale of land following a default by the purchaser (or agreed to by the purchaser and vendor in anticipation of a default by the purchaser) does not count as a payment for the purpose of section 29A(1)(a). The new subsection is inserted in response to concerns that an unscrupulous purchaser may deliberately default on a payment due under a contract and negotiate with the vendor for an additional payment or payments in order to "convert" a normal contract for the sale of land into a terms contract, thereby benefiting from the protections afforded to terms contracts. Subclause (3) amends the definition of deposit in section 29A(2) to address concerns about the operation of that definition. As a result of amendments made to the Sale of Land Act 1962 in 2008, deposit was defined in section 29A(2) as "a payment made to the vendor or to a person on behalf of the vendor before the purchaser becomes entitled to possession or to the receipt of rents and profits under the contract". This definition means that any payment made by a purchaser prior to the entitlement to possession or to the receipt of rents and profits arising constitutes part of the deposit. As a result, the only terms contracts that meet 6

 


 

the requirements of section 29A(1)(a) are contracts where the purchaser is obliged to make two or more payments to the vendor after the execution of the contract and before the purchaser is entitled to a conveyance or transfer of the land, and at least two of those payments occur after the entitlement to possession or rents and profits arise under the contract. If the entitlement to possession or rents and profits does not occur until later in the contract (i.e. at a point in time where the number of remaining payments to be made before final payment is either one or zero), the contract will not be a terms contract for the purposes of section 29A(1)(a). To address this issue, subclause (3) substitutes the existing definition of deposit in section 29A(2) with a new definition of that term. The new definition provides that a deposit means "any part of the purchase price that the contract (including the contract as varied by written agreement between the parties after initial execution) specifies as being a deposit and provides must be paid, whether by one or more payments, within a specified period, not exceeding 60 days, after the execution of the contract". The new definition ensures that, for the purposes of section 29A(1)(a), the "two or more payments" (other than a deposit or final payment) that are required to be made after execution of a terms contract and before the purchaser is entitled to a conveyance or transfer of the land can be made regardless of when the right to possession or to the receipt of rents and profits arises under the contract. The new definition of deposit also-- · clarifies that instalment payments of a deposit will not constitute "payments" for the purposes of section 29A(1)(a), thereby ensuring that a normal contract whose deposit is paid in a series of consecutive instalments will not inadvertently trigger the terms contract provisions; and · contemplates payment of a deposit under a terms contract during a period not exceeding 60 days. Although it is usual practice for deposits to be paid within 28 days, limiting the timeframe for payment of a deposit under a terms contract to 28 days could have 7

 


 

disadvantaged some purchasers who would be unable to complete payment of the deposit within that timeframe. Part 4--Amendment of Australian Consumer Law And Fair Trading Act 2012 Clause 8 amends section 45(2)(m)(iii) of the Australian Consumer Law and Fair Trading Act 2012. Section 45 of that Act creates an offence of engaging in a prohibited debt collection practice. Section 45(2)(2) provides that contacting a person about a debt after the person advises in writing that no further communication should be made is a prohibited debt collection practice. However, section 45(2)(m)(iii) exempts communications with a debtor for the purpose of complying with section 88 of the National Credit Code from this prohibition. A communication under section 88 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. This clause amends section 45(2)(m)(iii) to broaden this exemption to cover all communications for the purpose of complying with the National Credit Code. This will include, for example, notices issued under section 179D of the National Credit Code relating to the default of a consumer lease. Clause 9 substitutes section 111 of the Australian Consumer Law and Fair Trading Act 2012. New section 111 enables the Director of Consumer Affairs Victoria to delegate his or her powers under section 126 to a person or class of persons employed under Part 3 of the Public Administration Act 2004, namely-- · an executive; · a person with a classification of Senior Technical Specialist; or · a person with a classification of Grade 6. The Director is empowered under section 126 to obtain information, documents and evidence from a person relating to a matter that constitutes, or may constitute, a contravention of this Act. 8

 


 

Part 5--Residential Tenancies Act 1997 Clause 10 inserts new section 142BA into the Residential Tenancies Act 1997. New section 142BA provides that a person must comply with any prescribed requirements to keep and produce gas and electrical safety check records. A penalty of 30 penalty units applies to a natural person, and 60 penalty units applies to a body corporate. Division 1 of Part 3 of the Residential Tenancies (Rooming House Standards) Regulations 2012 requires rooming house owners to retain records of gas safety checks conducted in a rooming house for a period of 2 years, and to retain records of electrical safety checks for a period of 5 years, and to make those records available for inspection by the Director of Consumer Affairs Victoria. Part 6--Motor Car Traders Act 1986 Clause 11 substitutes the definition of Chairperson in section 3(1) of the Motor Car Traders Act 1986 so that it means not only the Chairperson of the Motor Car Traders Claims Committee, but also the Deputy Chairperson when the Deputy is acting as the Chairperson under new section 61(5) of the Act. Clause 12 inserts new section 30(5) into the Motor Car Traders Act 1986. New section 30(5) effectively provides that, for the purposes of a disciplinary action under Division 3 of Part 2 of the Act, a reference in section 30 to a licensee includes a reference to a person who was a licensee at the time any ground referred to in section 30(2) existed, or was alleged to exist. This ensures that a person cannot avoid disciplinary action under Division 3 of Part 2 of the Act by surrendering their licence. Clause 13 inserts new section 31(2B) into the Motor Car Traders Act 1986. New section 31(2B) effectively provides that for the purposes of a disciplinary action under Division 3 of Part 2 of the Act, a reference in section 31 to a licensee includes a reference to a person who was a licensee at the time any ground referred to in section 30(2) existed, or was alleged to exist. This ensures that a person cannot avoid disciplinary action under Division 3 of Part 2 of the Act by surrendering their licence. 9

 


 

Clause 14 repeals section 52(2)(e) of the Motor Car Traders Act 1986 Section 52 provides that a car displayed for sale must have displayed a notice in prescribed form containing required particulars. Section 52(2) sets out the required particulars. Section 52(2)(e) provides that one particular is the year of first registration of the motor car. This information is no longer publicly available, and this provision is now redundant. Clause 15 substitutes section 61 of the Motor Car Traders Act 1986. New section 61 provides for the appointment by the Governor in Council of a Deputy Chairperson of the Motor Car Traders Claims Committee, rather than an Acting Chairperson. The Deputy must be an Australian Lawyer (within the meaning of the Legal Profession Act 2004) of at least 5 years' standing, must not otherwise be a member of the Committee, holds office as specified in the instrument of appointment, is eligible for re-appointment, and is subject to the Public Administration Act 2004. Subsections 61(5) and (6) provide that generally the Deputy Chairperson has no powers or functions in relation to the Committee. However, during a vacancy in the office of the Chairperson, or when the Chairperson is absent from Victoria or otherwise unable to chair the committee, the Deputy has and can exercise all the powers and perform all the duties of the Chairperson. Clause 16 substitutes section 63 of the Motor Car Traders Act 1986. New section 63 provides that acts or determinations of the Motor Car Traders Claims Committee are not invalid by reason a vacancy in the office of the Chairperson, or a defect or irregularity in relation to the appointment of a member. This is the same as the previous section 63. New section 63 also provides that acts or determinations of the committee, when the Deputy Chairperson is chairing it in place of the Chairperson, are not invalid by reason only of a defect or irregularity in relation to the appointment of the Deputy Chairperson, or because the occasion for the Deputy Chairperson chairing the committee in place of the Chairperson had not arisen, or had ceased. 10

 


 

Clause 17 substitutes "subsection (4A)" for "subsection (6)" in section 76(1) of the Motor Car Traders Act 1986. This corrects an incorrect cross-reference. Section 76(1) effectively provides that certain persons cannot make a claim on the Motor Car Traders Guarantee Fund. These persons are set out in subsection 76(4A), not subsection 76(6), which elucidates the meaning of loss. Part 7--Co-operatives National Law Application Act 2013 Clause 18 substitutes "Magistrates' Court" for "Supreme Court" in section 11(a) of the Co-operatives National Law Application Act 2013. Section 11(a) of the Co-operatives National Law Application Act 2013 specifies the designated tribunal for the purposes of the Co-operatives National Law (Victoria). The designated tribunal is the forum that has jurisdiction to hear certain matters under the Co-operatives National Law (Victoria). In general, these matters relate to internal co-operative disputes such as disputes regarding the rules of a co-operative. At present, the Supreme Court is specified as the designated tribunal for the purposes of all of the Co-operatives National Law (Victoria), except for Part 7.3 of that law. Part 7.3 relates to appeals against decisions of the Registrar. The effect of this clause is to specify the Magistrates' Court as the designated tribunal for all of the Co-operatives National Law (Victoria), save for Part 7.3. This will enable the majority of co-operative disputes under the Co-operatives National Law (Victoria) to be determined by the Magistrates' Court. Part 8--Associations Incorporation Reform Act 2012 Clause 19 adds a reference to new section 59A in section 57 (and the note at the foot of that section) of the Associations Incorporation Reform Act 2012. 11

 


 

Clause 20 inserts new sections 59A and 59B into the Associations Incorporation Reform Act 2012. New section 59A enables the secretary of an incorporated association to apply to the Registrar to be exempted from the requirement in section 57 of the Act that requires an incorporated association to allow a member to inspect the register of members of the incorporated association if they request to do so. Currently section 59 of the Act provides that an individual may apply to the secretary of an incorporated association for their personal information on the register not to be made publicly available. The secretary can deal with these applications on a case by case basis. However, there is no mechanism for the incorporated association to restrict access to the whole register. New section 59A provides for this situation. The process is as follows-- · The secretary of an incorporated association can make a written application to the Registrar of Incorporated Associations setting out the special circumstances that apply to the association that justify granting the exemption. The term "special circumstances" is not defined so as to enable flexibility to address a wide range of potential circumstances, including the nature of the activities conducted by the organisation or any potential for danger to the property or person of members. · If the Registrar is satisfied that special circumstances apply to the association, the Registrar may grant the exemption. · The Registrar is required to notify the secretary in writing of a decision to either grant, or refuse to grant, the exemption. · If an exemption is granted, the Registrar is required to publish notice of the exemption in the Government Gazette and on the internet. 12

 


 

Subsection (6) provides that either the incorporated association, or a member of the association may apply to VCAT for a review of the decision of the Registrar to either grant, or refuse to grant the exemption. The application must be made within 28 days after notification of the decision is given to the secretary. Subsection (7) enables a member to circulate materials relating to the management, activities or purposes of that association to other members of an association in relation to which an exemption from section 57 has been granted. The member may provide copies of such materials to the secretary, who is required to circulate those materials on the member's behalf. New section 59B sets out the process for revoking an exemption made under new section 59A. The process is as follows-- · The Registrar may revoke an exemption under section 59A if satisfied that the special circumstances that justified granting the exemption no longer apply to the incorporated association. · The Registrar may revoke the exemption either on the Registrar's own initiative, or on the application of the incorporated association. · An application from an incorporated association to revoke the exemption must be in writing, and must explain why the special circumstances that justified the granting of the exemption no longer apply. · The Registrar may either revoke the exemption, or refuse to revoke the exemption. In any case, the Registrar must notify the secretary of the incorporated association in writing of the Registrar's decision. If the Registrar revokes the exemption, the Registrar must publish notice of this decision in the Government Gazette and on the internet. · In the event the exemption is revoked, the secretary of the incorporated association must give notice to each member of the association. Such notice is required to contain the prescribed particulars. 13

 


 

Subsection (8) provides that either the incorporated association, or a member of the incorporated association, may apply to VCAT for a review of the Registrar's decision to revoke the exemption, or not to revoke the exemption. The application to VCAT should be made within 28 days of notification of the decision. In the case of an application by an incorporated association, the relevant notification is notification by the Registrar under subsection (5), and in the case of an application by a member, the relevant notification is notification by the secretary under subsection (6). Subsection (9) restrains an incorporated association, where an exemption has been revoked under this section, from permitting members to access the register of members for a period of 28 days from when the secretary gives notice of the revocation to the members of the incorporated association under subsection (6). If the 28 day period has elapsed, but a member of the incorporated association has applied to VCAT for a review of the decision to revoke the exemption, the incorporated association must continue to refrain from permitting access to the register until such time as VCAT has determined the outcome of the review. Part 9--Amendment of various Consumer Acts Clause 21 provides that the Consumer Acts set out in Schedule 1 are amended as set out in each item. The Consumer Acts are the Associations Incorporation Reform Act 2012, the Conveyancers Act 2006, the Domestic Building Contracts Act 1995, the Estate Agents Act 1980, the Fundraising Act 1998, the Funerals Act 2006, the Owners Corporations Act 2006, the Retirement Villages Act 1986, the Sale of Land Act 1962, the Second-Hand Dealers and Pawnbrokers Act 1989, the Sex Work Act 1994 and the Veterans Act 2005. Investigation and enforcement provisions of the Australian Consumer Law and Fair Trading Act 2012 are applied in each of these Acts. For example, section 219 of the Associations Incorporation Reform Act 2012 applies section 125, 195 and 196 and Part 8.2 (except section 213) of the Australian Consumer Law and Fair Trading Act 2012. 14

 


 

This means that the powers and remedies set out in the investigation and enforcement provisions can be exercised under these Acts. However, it is not clear that the powers and remedies can be exercised in relation to the regulations under these Acts. The amendments set out in each item in Schedule 1 clarify that in each of the application sections of the specified Consumer Acts, a reference to this Act includes a reference to the regulations made under that Act. Part 10--Repeal Clause 22 provides for the automatic repeal of this amending Act on the first anniversary of the day after the day on which the Act receives the Royal Assent. 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). 15

 


 

 


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