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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Occupational Licensing National Law (WA) Bill 2010 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 Part 2 -- Application of Occupational Licensing National Law 4. Application of Occupational Licensing National Law 3 5. Amendments to Schedule 3 6. Exclusion of legislation of this jurisdiction 3 7. Relevant tribunal or court 4 8. Parliamentary scrutiny of national regulations 4 9. Regulations 5 Schedule -- Occupational Licensing National Law Part 1 -- Preliminary 1. Short title 6 2. Commencement 6 3. Objectives 6 4. Definitions 7 5. Interpretation generally 10 6. Single national entity 10 7. Extraterritorial operation of Law 11 8. Law binds the State 11 166--2 page i Occupational Licensing National Law (WA) Bill 2010 Contents Part 2 -- Licensing Division 1 -- Licensed occupations and scope of work 9. Offence for individual to carry out prescribed work unless licensed or exempt 12 10. Offence for body corporate or partnership to enter into contract for prescribed work unless licensed or exempt 12 11. Offence to advertise or offer to do prescribed work unless licensed or exempt 13 12. Offence to hold out unlicensed person as being licensed 14 13. Injunction stopping person from engaging in conduct in contravention of Law or national regulations 15 14. Licensee must not lend or otherwise allow use of licence by another person 16 Division 2 -- Application for licence 15. Who may apply for a licence 17 16. Application for licence 17 17. Licensing Authority may require further information or document 18 Division 3 -- Eligibility for licence 18. Eligibility for licence 18 19. Personal probity 19 20. Financial probity 20 21. Excluded person 21 Division 4 -- Decision about application for licence 22. Decision about application 23 23. Notice of decision to be given to applicant 23 24. Failure to decide application 23 Division 5 -- Licences 25. Form of licence 23 26. Period of licence 24 27. Conditions 24 28. Change in details or circumstances 24 29. Return of licence 24 30. Licence not transferrable 25 page ii Occupational Licensing National Law (WA) Bill 2010 Contents Division 6 -- Renewal, restoration, variation and surrender of licences Subdivision 1 -- Renewal of licences 31. Application for renewal of licence 25 32. Licensing Authority may require further information or document 26 33. Eligibility for renewal of licence 26 34. Licence continues in force until application decided 26 Subdivision 2 -- Restoration of licences 35. Application for restoration of licence 26 36. Licensing Authority may require further information or document 27 37. Eligibility for restoration of licence 27 38. Licence continues in force until application decided 28 39. Period of restored licence 28 Subdivision 3 -- Variation of licences on application of licensees 40. Application for variation of licence 28 41. Eligibility for variation of licence 28 Subdivision 4 -- Variation of licences on initiative of Licensing Authority 42. Varying licence on Licensing Authority's initiative 29 Subdivision 5 -- Surrender of licences 43. Surrender of licence 30 Subdivision 6 -- Revocation of licences 44. Revocation of licence 30 Subdivision 7 -- Replacement of licence 45. Replacement of licence 30 Part 3 -- Disciplinary proceedings and action Division 1 -- Preliminary 46. Part applicable to former licensees 31 47. Meaning of disciplinary action 31 Division 2 -- Grounds for disciplinary action 48. Grounds for disciplinary action 32 Division 3 -- Immediate suspension 49. Grounds for immediate suspension 33 page iii Occupational Licensing National Law (WA) Bill 2010 Contents 50. Immediate suspension of licence 34 Division 4 -- Show cause process 51. Application of Division 35 52. Show cause notice 35 53. Representations about show cause notice 36 54. Decision about whether to take disciplinary action 36 55. Ending show cause process without further action 36 56. Taking disciplinary action after show cause notice 36 Division 5 -- Disciplinary proceedings before tribunal or court 57. Application of Division 37 58. Application to relevant tribunal or court 38 59. Decision by relevant tribunal or court 38 60. Licensing Authority to give effect to decision of relevant tribunal or court 38 Part 4 -- Monitoring and enforcement Division 1 -- Power to obtain information 61. Powers of authorised officers 38 62. Offence for failing to produce information or attend before authorised officer 39 63. Power to require licensee to produce documents 40 64. Inspection of documents 40 Division 2 -- Power to enter places 65. Entering places 41 66. Application for warrant 42 67. Issue of warrant 42 68. Application by electronic communication 43 69. Procedure before entry under warrant 44 70. Powers after entering places 45 71. Offences for failing to comply with requirement under section 70 46 Division 3 -- Power to stop and search vehicles 72. Division applies only to certain licensed occupations 46 73. Power to stop and search vehicles 47 Division 4 -- Power to seize evidence 74. Seizing evidence at place entered with consent or warrant 48 75. Seizing evidence from other places 48 page iv Occupational Licensing National Law (WA) Bill 2010 Contents 76. Securing evidence 49 77. Tampering with seized things 49 78. Receipt for seized things 50 79. Forfeiture of seized thing 50 80. Dealing with forfeited things 51 81. Return of seized things 51 82. Access to seized things 51 Division 5 -- General 83. Compensation 51 84. False or misleading information 52 85. False or misleading documents 52 86. Obstructing authorised officers 53 87. Impersonation of authorised officers 53 Part 5 -- Reviews and Appeals Division 1 -- Preliminary 88. Definitions 53 Division 2 -- Reviews 89. Applying for internal review 54 90. Internal review 54 91. Review decision 55 92. Notice of review decision 55 Division 3 -- Appeals 93. Appellable decisions 56 94. Proceedings and decision 57 Part 6 -- Ministerial Council 95. Functions of Ministerial Council 57 96. Directions 57 Part 7 -- National Occupational Licensing Authority Division 1 -- Establishment, functions and powers 97. Establishment of Licensing Authority 58 98. General powers of Licensing Authority 58 99. Functions of Licensing Authority 58 100. Consultation 60 101. Directions 60 102. Delegation 60 page v Occupational Licensing National Law (WA) Bill 2010 Contents Division 2 -- Governing Board of Licensing Authority Subdivision 1 -- Establishment and functions 103. National Occupational Licensing Board 61 104. Functions of Licensing Board 61 Subdivision 2 -- Members 105. Terms of office of members 62 106. Remuneration 62 107. Vacancy in office of member 62 108. Vacancies to be advertised 63 109. Extension of term of office during vacancy in membership 63 110. Members to act in public interest 64 111. Disclosure of conflict of interest 64 Subdivision 3 -- Meetings 112. General procedure 65 113. Quorum 65 114. Chief executive officer may attend meetings 65 115. Presiding member 65 116. Voting 65 117. First meeting 66 118. Defects in appointment of members 66 Division 3 -- Chief executive officer 119. Chief executive officer 66 120. Functions of chief executive officer 66 Division 4 -- Staff 121. Staff 66 122. Staff seconded to Licensing Authority 67 Division 5 -- Authorised officers 123. Powers of authorised officers 67 124. Functions of authorised officer 67 125. Appointment of authorised officers 67 126. Appointment conditions and limits on powers 68 127. Identity card 68 128. Production and display of identity card 68 129. When authorised officer ceases to hold office 69 130. Resignation 69 131. Return of identity card 69 page vi Occupational Licensing National Law (WA) Bill 2010 Contents Division 6 -- Occupational Licence Advisory Committees 132. Establishment of Advisory Committee 69 133. Function of Advisory Committee 70 134. Membership and procedures of Advisory Committee 70 Part 8 -- Information and privacy Division 1 -- Privacy 135. Application of Commonwealth Privacy Act 71 Division 2 -- Disclosure of information and confidentiality 136. Definition 72 137. Application of Commonwealth FOI Act 72 138. Duty of confidentiality 72 139. Disclosure to jurisdictional regulators and other Commonwealth, State and Territory entities 73 Division 3 -- Registers and other records 140. National Registers and records 74 141. Application of Commonwealth Archives Act 74 Part 9 -- Miscellaneous Division 1 -- Finance 142. National Occupational Licensing Authority Fund 75 143. Payments into Authority Fund 75 144. Payments out of Authority Fund 76 145. Investment by Licensing Authority 76 146. Financial management duties of Licensing Authority 76 Division 2 -- Reporting and planning arrangements 147. Annual report 77 148. Strategic and operational plans 78 Division 3 -- Provisions relating to persons exercising functions under Law 149. General duties of persons exercising functions under this Law 78 150. Application of Commonwealth Ombudsman Act 79 151. Protection from personal liability for persons exercising functions 79 Division 4 -- Legal proceedings 152. Limitation on time for starting proceedings 80 page vii Occupational Licensing National Law (WA) Bill 2010 Contents 153. Evidentiary certificates 80 Division 5 -- Miscellaneous 154. Approved forms 81 155. Extrinsic materials 82 156. References to laws includes references to instruments made under laws 82 157. Service of documents 82 158. Service by post 83 159. Review of Law 83 Division 6 -- Regulations 160. National regulations 84 161. Regulations about licensing, registration and accreditation of persons carrying out licensed occupations 87 162. Inclusion of new occupations in national regulations 87 163. Publication of national regulations 88 164. Parliamentary scrutiny of national regulations 88 165. Effect of disallowance of national regulation 89 Schedule 1 -- Miscellaneous provisions relating to interpretation Part 1 -- Preliminary 1. Displacement of Schedule by contrary intention 90 Part 2 -- General 2. Law to be construed not to exceed legislative power of Legislature 90 3. Every section to be a substantive enactment 90 4. Material that is, and is not, part of this Law 90 5. References to particular Acts and to enactments 91 6. References taken to be included in Act or Law citation etc 91 7. Interpretation best achieving Law's purpose 92 8. Use of extrinsic material in interpretation 92 9. Effect of change of drafting practice 94 10. Use of examples 94 11. Compliance with forms 94 page viii Occupational Licensing National Law (WA) Bill 2010 Contents Part 3 -- Terms and references 12. Definitions 95 13. Provisions relating to defined terms and gender and number 99 14. Meaning of "may" and "must" etc 99 15. Words and expressions used in statutory instruments 100 16. Effect of express references to bodies corporate and individuals 100 17. Production of records kept in computers etc 100 18. References to this jurisdiction to be implied 101 19. References to officers and holders of offices 101 20. Reference to certain provisions of Law 101 21. Reference to provisions of this Law or an Act is inclusive 102 Part 4 -- Functions and powers 22. Performance of statutory functions 102 23. Power to make instrument or decision includes power to amend or repeal 103 24. Matters for which statutory instruments may make provision 103 25. Presumption of validity and power to make 104 26. Appointments may be made by name or office 105 27. Acting appointments 105 28. Powers of appointment imply certain incidental powers 106 29. Delegation of functions 107 30. Exercise of powers between enactment and commencement 109 Part 5 -- Distance, time and age 31. Matters relating to distance, time and age 112 Part 6 -- Effect of repeal, amendment or expiration 32. Time of Law ceasing to have effect 113 33. Repealed Law provisions not revived 113 34. Saving of operation of repealed Law provisions 113 35. Continuance of repealed provisions 114 36. Law and amending Acts to be read as one 114 page ix Occupational Licensing National Law (WA) Bill 2010 Contents Part 7 -- Instruments under Law 37. Schedule applies to statutory instruments 114 Part 8 -- Application to coastal sea 38. Application 114 Defined Terms page x Western Australia LEGISLATIVE ASSEMBLY (As amended during consideration in detail) Occupational Licensing National Law (WA) Bill 2010 A Bill for An Act to provide for a national law to regulate the licensing of certain occupations and for related purposes. The Parliament of Western Australia enacts as follows: page 1 Occupational Licensing National Law (WA) Bill 2010 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Occupational Licensing National Law (WA) 4 Act 2010. 5 2. Commencement 6 This Act comes into operation as follows -- 7 (a) sections 1 and 2 -- on the day on which this Act 8 receives the Royal Assent; 9 (b) the rest of the Act -- on a day fixed by proclamation, 10 and different days may be fixed for different provisions. 11 3. Terms used 12 (1) For the purposes of this Act, the local application provisions of 13 this Act are the provisions of this Act other than the 14 Occupational Licensing National Law set out in the Schedule. 15 (2) In the local application provisions of this Act -- 16 Occupational Licensing National Law (WA) means the 17 provisions applying in this jurisdiction because of section 4. 18 (3) If a term is given a meaning in the Occupational Licensing 19 National Law set out in the Schedule, it has the same meaning 20 in the local application provisions of this Act. page 2 Occupational Licensing National Law (WA) Bill 2010 Application of Occupational Licensing National Law Part 2 s. 4 1 Part 2 -- Application of Occupational Licensing 2 National Law 3 4. Application of Occupational Licensing National Law 4 The Occupational Licensing National Law set out in the 5 Schedule, as modified to give effect to section 8(3) -- 6 (a) applies as a law of this jurisdiction; and 7 (b) as so applying, may be referred to as the Occupational 8 Licensing National Law (WA); and 9 (c) as so applying, is a part of this Act. 10 5. Amendments to Schedule 11 (1) The Governor may amend the Occupational Licensing National 12 Law set out in the Schedule by order published in the Gazette. 13 (2) An order cannot be made under subsection (1) unless a draft of 14 the order has first been approved by a resolution passed by both 15 Houses of Parliament. 16 (3) A resolution under subsection (2) can originate in either House 17 of Parliament. 18 6. Exclusion of legislation of this jurisdiction 19 The following Acts of this jurisdiction do not apply to the 20 Occupational Licensing National Law (WA) or to instruments 21 made under that Law -- 22 (a) the Auditor General Act 2006; 23 (b) the Financial Management Act 2006; 24 (c) the Freedom of Information Act 1992, except to the 25 extent that functions are being exercised under the Law 26 by a State entity; 27 (d) the Interpretation Act 1984; page 3 Occupational Licensing National Law (WA) Bill 2010 Part 2 Application of Occupational Licensing National Law s. 7 1 (e) the Parliamentary Commissioner Act 1971, except to the 2 extent that functions are being exercised under the Law 3 by a State entity; 4 (f) the Public Sector Management Act 1994; 5 (g) the State Records Act 2000, except to the extent that 6 functions are being exercised under the Law by a State 7 entity. 8 7. Relevant tribunal or court 9 For the purposes of the definition of relevant tribunal or court in 10 section 4 of the Occupational Licensing National Law (WA) -- 11 (a) the Supreme Court, the Magistrates Court and the State 12 Administrative Tribunal are each declared to be a 13 relevant tribunal or court for this jurisdiction for the 14 purposes of section 13 of that Law; and 15 (b) the State Administrative Tribunal is declared to be the 16 relevant tribunal or court for this jurisdiction for the 17 purposes of sections 58, 59, 60, 93 and 94 of that Law. 18 8. Parliamentary scrutiny of national regulations 19 (1) This section applies despite section 6(d). 20 (2) For the purposes of section 164(2) of the Occupational 21 Licensing National Law (WA), the Interpretation Act 1984 22 section 42(1) to (3) and (5) to (8) is the law of this jurisdiction 23 relevant to the disallowance of a regulation and apply as if a 24 regulation made under the Occupational Licensing National 25 Law (WA) had been published in the Gazette on the day that it 26 was published on the NSW legislation website under 27 section 163(1) of the Occupational Licensing National Law 28 (WA). 29 (3) Section 164(4) of the Schedule does not apply in respect of a 30 regulation disallowed by a House of the Parliament of this 31 jurisdiction. page 4 Occupational Licensing National Law (WA) Bill 2010 Application of Occupational Licensing National Law Part 2 s. 9 1 9. Regulations 2 (1) The Governor may make regulations prescribing all matters that 3 are required or permitted by this Act to be prescribed, or are 4 necessary or convenient to be prescribed for giving effect to the 5 purposes of this Act. 6 (2) The regulations may declare -- 7 (a) a person or body to be a disciplinary body for the 8 purposes of the definition of disciplinary body in 9 section 4 of the Occupational Licensing National Law 10 (WA); or 11 (b) an entity to be a corresponding disciplinary body for the 12 purposes of section 21 of the Occupational Licensing 13 National Law (WA); or 14 (c) a law to be a corresponding prior Act for the purposes of 15 section 21 of the Occupational Licensing National Law 16 (WA); or 17 (d) declaring that Part 3 Division 4 or 5 applies to licensees 18 carrying out the licensed occupation for which the 19 licensee is licensed. 20 page 5 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 1 Preliminary cl. 1 1 Schedule -- Occupational Licensing National Law 2 [s. 4] 3 Part 1 -- Preliminary 4 1. Short title 5 This Law may be cited as the Occupational Licensing National Law. 6 2. Commencement 7 This Law commences in a participating jurisdiction as provided by the 8 Act of that jurisdiction that applies this Law as a law of that 9 jurisdiction. 10 3. Objectives 11 The objectives of the national licensing system are as follows -- 12 (a) to ensure that licences issued by the Licensing Authority 13 allow licensees to operate in all participating jurisdictions; 14 (b) to ensure that licensing arrangements are effective and 15 proportionate to ensure consumer protection and worker and 16 public health and safety while ensuring economic efficiency 17 and equity of access; 18 (c) to facilitate a consistent skill and knowledge base for licensed 19 occupations; 20 (d) to ensure effective coordination exists between the Licensing 21 Authority and jurisdictional regulators; 22 (e) to promote national consistency in -- 23 (i) licensing structures and policy across comparable 24 occupations; and 25 (ii) regulation affecting the requirements relating to the 26 conduct of licensees; and 27 (iii) the approach to disciplinary arrangements for 28 licensees; 29 (f) to provide flexibility to deal with issues specific to particular 30 jurisdictions or occupations; page 6 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Preliminary Part 1 cl. 4 1 (g) to provide the public with access to information about 2 licensees. 3 4. Definitions 4 In this Law -- 5 Advisory Committee means an Occupational Licence Advisory 6 Committee established under section 132. 7 approved form means a form that, under section 154, has been 8 approved by the Licensing Authority and notified on its website. 9 authorised officer means an authorised officer appointed under 10 section 125 by the Licensing Authority. 11 Authority Fund means the National Occupational Licensing 12 Authority Fund established by section 142. 13 chief executive officer means the chief executive officer of the 14 Licensing Authority appointed under section 119. 15 COAG means the Council of Australian Governments. 16 COAG agreement means the Intergovernmental Agreement for a 17 National Licensing System for Specified Occupations signed by 18 COAG on 30 April 2009. 19 criminal history, of a person, includes the following -- 20 (a) convictions of the person for an offence, in a participating 21 jurisdiction or elsewhere, and whether before or after the 22 commencement of this Law; 23 (b) pleas of guilty or findings of guilt by a court of the person for 24 an offence, in a participating jurisdiction or elsewhere, and 25 whether before or after the commencement of this Law and 26 whether or not a conviction is recorded for the offence; 27 (c) charges made against the person for an offence, in a 28 participating jurisdiction or elsewhere, and whether before or 29 after the commencement of this Law; 30 (d) the person's history in relation to traffic offences, in a 31 participating jurisdiction or elsewhere, and whether before or 32 after the commencement of this Law. 33 disciplinary action see section 47. page 7 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 1 Preliminary cl. 4 1 disciplinary body means -- 2 (a) the Licensing Authority; or 3 (b) a tribunal or court of a participating jurisdiction; or 4 (c) another person or body declared by or under an Act of a 5 participating jurisdiction to be a disciplinary body for the 6 purposes of this Law; 7 entity includes a person and an unincorporated body. 8 First Minister's Department means the department of government of 9 a participating jurisdiction that is administered by the Premier or 10 Chief Minister of that jurisdiction. 11 former licensee means a person who was, but is no longer, a licensee. 12 immediate suspension ground means a ground referred to in 13 section 49 for the immediate suspension of a licence. 14 jurisdictional regulator means an entity that is prescribed by the 15 national regulations as being a jurisdictional regulator for a licensed 16 occupation. 17 jurisdictional regulator members see section 103(3)(b). 18 licence means a licence, registration or accreditation granted under 19 this Law authorising a person to carry out a licensed occupation. 20 licensed occupation means any of the following occupations -- 21 (a) airconditioning and refrigeration; 22 (b) electrical; 23 (c) plumbing and gasfitting; 24 (d) property-related occupations; 25 (e) any other occupation prescribed by the national regulations as 26 being a licensed occupation; 27 Note: When an occupation is prescribed by the national regulations as being 28 a licensed occupation it is envisaged each jurisdiction will need to 29 return to Parliament to make consequential amendments to existing 30 legislation regulating the occupation. This would enable this Law (as 31 set out in the Schedule to the Occupational Licensing National Law 32 Act 2010 of Victoria) to be amended to include the occupation in this 33 definition and, to the extent it is practicable, describe the scope of work 34 that may be carried out under a licence for that occupation. 35 Licensing Authority means the National Occupational Licensing 36 Authority established by section 97. page 8 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Preliminary Part 1 cl. 4 1 Licensing Board means the National Occupational Licensing Board 2 established by section 103. 3 Ministerial Council means the Ministerial Council nominated by 4 COAG and published on the COAG website as being the Ministerial 5 Council for the purposes of this Law. 6 national licensing system means the system established under this 7 Law for the national licensing of persons working in licensed 8 occupations. 9 national regulations means the regulations made under section 160. 10 nominee means an individual nominated by an applicant for a licence 11 or a licensee as being the nominee for the licence. 12 participating jurisdiction means a State or Territory in which -- 13 (a) this Law applies as a Law of the State or Territory; or 14 (b) a law that substantially corresponds to the provisions of this 15 Law has been enacted. 16 participation day, in relation to a participating jurisdiction, means the 17 day on which the jurisdiction becomes a participating jurisdiction. 18 place includes land or premises but does not include a vehicle. 19 premises includes a caravan being used as residential premises. 20 prescribed work means work that under the national regulations is 21 within the scope of work that may only be carried out under the 22 authority of a licence. 23 Note: When an occupation is prescribed by the national regulations as being 24 a licensed occupation (see paragraph (e) of the definition of licensed 25 occupation) it is envisaged each jurisdiction will need to return to 26 Parliament to make consequential amendments to existing legislation 27 regulating the occupation. This would enable this Law (as set out in 28 the Schedule to the Occupational Licensing National Law Act 2010 of 29 Victoria) to be amended to include the occupation in the definition of 30 licensed occupation and, to the extent it is practicable, describe the 31 prescribed work in relation to the occupation. 32 primary jurisdiction means -- 33 (a) for an applicant for a licence or a licensee who is an 34 individual (other than an individual acting in the individual's 35 capacity as a member of a partnership), the jurisdiction in 36 which the individual's principal place of residence is located; 37 or page 9 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 1 Preliminary cl. 5 1 (b) for an applicant for a licence or a licensee that is a body 2 corporate or an individual acting in the individual's capacity 3 as a member of a partnership, the jurisdiction in which the 4 body corporate's or partnership's principal place of business 5 is located. 6 relevant place means a place at which prescribed work has been, is 7 being or is about to be, carried out. 8 relevant tribunal or court, for a participating jurisdiction, means a 9 tribunal or court that has been declared by a law of that jurisdiction to 10 be the relevant tribunal or court for that jurisdiction for the purposes 11 of this Law. 12 State or Territory entity means -- 13 (a) an entity, or the chief executive of an entity or department of 14 government, of a participating jurisdiction to whom the 15 Licensing Authority has delegated any of its functions; or 16 (b) an entity to which a function delegated by the Licensing 17 Authority has been subdelegated. 18 vehicle includes -- 19 (a) a group of vehicles, known as a combination, that consists of 20 a motor vehicle connected to 1 or more vehicles; and 21 (b) a caravan being towed by a motor vehicle; and 22 (c) a train, tram or vessel; and 23 (d) a crane or earthmoving machinery; and 24 (e) any other type of transport, machine or equipment prescribed 25 by the national regulations. 26 5. Interpretation generally 27 Schedule 1 applies in relation to this Law. 28 6. Single national entity 29 (1) It is the intention of the Parliament of this jurisdiction that this Law as 30 applied by an Act of this jurisdiction, together with this Law as 31 applied by Acts of the other participating jurisdictions, has the effect 32 that an entity established by this Law is one single national entity, 33 with functions conferred by this Law as so applied. page 10 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Preliminary Part 1 cl. 7 1 (2) An entity established by this Law has power to do acts in or in 2 relation to this jurisdiction in the exercise of a function expressed to 3 be conferred on it by this Law as applied by Acts of each participating 4 jurisdiction. 5 (3) An entity established by this Law may exercise its functions in 6 relation to -- 7 (a) one participating jurisdiction; or 8 (b) 2 or more or all participating jurisdictions collectively. 9 (4) In this section, a reference to this Law as applied by an Act of a 10 jurisdiction includes a reference to a law that substantially 11 corresponds to this Law enacted in a jurisdiction. 12 7. Extraterritorial operation of Law 13 It is the intention of the Parliament of this jurisdiction that the 14 operation of this Law is to, as far as possible, include operation in 15 relation to the following -- 16 (a) things situated in or outside the territorial limits of this 17 jurisdiction; 18 (b) acts, transactions and matters done, entered into or occurring 19 in or outside the territorial limits of this jurisdiction; 20 (c) things, acts, transactions and matters (wherever situated, 21 done, entered into or occurring) that would, apart from this 22 Law, be governed or otherwise affected by the law of another 23 jurisdiction. 24 8. Law binds the State 25 (1) This Law binds the State. 26 (2) In this section -- 27 State means the Crown in right of this jurisdiction, and includes -- 28 (a) the Government of this jurisdiction; and 29 (b) a Minister of the Crown in right of this jurisdiction; and 30 (c) a statutory corporation, or other entity, representing the 31 Crown in right of this jurisdiction. page 11 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 9 1 Part 2 -- Licensing 2 Division 1 -- Licensed occupations and scope of work 3 9. Offence for individual to carry out prescribed work unless 4 licensed or exempt 5 (1) An individual must not carry out, or enter into a contract to carry out, 6 prescribed work unless the individual -- 7 (a) holds a licence to carry out the prescribed work; or 8 (b) is exempt under the national regulations from the requirement 9 to hold a licence to carry out the prescribed work; or 10 (c) is exempted by the Licensing Authority, in accordance with 11 the national regulations, from the requirement to hold a 12 licence to carry out the prescribed work. 13 Penalty: 14 (a) for an offence involving a specified licensed 15 occupation -- 16 (i) for a first or second offence -- $50,000; or 17 (ii) for a third or subsequent offence -- $50,000 or 18 12 months imprisonment or both; 19 or 20 (b) for any other offence -- $50,000. 21 (2) In this section -- 22 specified licensed occupation means a licensed occupation that the 23 national regulations have declared to be a specified licensed 24 occupation for the purposes of this section. 25 10. Offence for body corporate or partnership to enter into contract 26 for prescribed work unless licensed or exempt 27 (1) A body corporate or a partnership must not enter into a contract to 28 carry out prescribed work unless the body corporate or the 29 partnership -- 30 (a) holds a licence authorising the body corporate or partnership 31 to carry on a business that involves carrying out the 32 prescribed work; or page 12 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 11 1 (b) is exempt under the national regulations from the requirement 2 to hold a licence authorising the body corporate or 3 partnership to carry on a business that involves carrying out 4 the prescribed work; or 5 (c) is exempted by the Licensing Authority, in accordance with 6 the national regulations, from the requirement to hold a 7 licence authorising the body corporate or partnership to carry 8 on a business that involves carrying out the prescribed work. 9 Penalty: $250,000. 10 (2) A body corporate or a partnership that enters into a contract to carry 11 out prescribed work must not engage an individual to carry out the 12 prescribed work unless the individual -- 13 (a) holds a licence to carry out the prescribed work; or 14 (b) is exempt under the national regulations from the requirement 15 to hold a licence to carry out the prescribed work; or 16 (c) is exempted by the Licensing Authority, in accordance with 17 the national regulations, from the requirement to hold a 18 licence to carry out the prescribed work. 19 Penalty: $250,000. 20 (3) A reference in this section to a partnership means the individuals who 21 are members of the partnership. 22 11. Offence to advertise or offer to do prescribed work unless licensed 23 or exempt 24 (1) A person must not advertise that the person is able to carry out, or 25 offer to carry out, prescribed work unless the person -- 26 (a) holds a licence to carry out the prescribed work; or 27 (b) is exempt under the national regulations from the requirement 28 to hold a licence to carry out the prescribed work; or 29 (c) is exempted by the Licensing Authority, in accordance with 30 the national regulations, from the requirement to hold a 31 licence to carry out the prescribed work. 32 Penalty: 33 (a) for an individual for an offence involving a specified 34 licensed occupation -- 35 (i) for a first or second offence -- $50,000; or page 13 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 12 1 (ii) for a third or subsequent offence -- $50,000 or 2 12 months imprisonment or both; 3 or 4 (b) for an individual for any other offence -- $50,000; or 5 (c) for a body corporate -- $250,000. 6 (2) It is a defence to a prosecution for an offence against subsection (1)(a) 7 if the defendant proves that -- 8 (a) at the time the advertisement was placed the person (the 9 relevant person) the subject of the advertisement was 10 licensed to carry out the prescribed work referred to in the 11 advertisement; and 12 (b) the defendant took all reasonable action to prevent the 13 advertisement, or to stop it from continuing, once the relevant 14 person ceased being licensed to carry out the work. 15 (3) A person does not commit an offence against subsection (1) merely 16 because the person, as part of the person's business, prints or 17 publishes an advertisement for another person. 18 (4) A reference in this section to carrying out prescribed work includes 19 carrying on a business that involves carrying out prescribed work. 20 (5) In this section -- 21 advertise includes tout or solicit. 22 specified licensed occupation means a licensed occupation that the 23 national regulations have declared to be a specified licensed 24 occupation for the purposes of this section. 25 12. Offence to hold out unlicensed person as being licensed 26 (1) A person must not hold out that the person is licensed -- 27 (a) to carry out a licensed occupation unless the person holds a 28 licence for the licensed occupation; or 29 (b) to carry out prescribed work unless the person holds a licence 30 to carry out the prescribed work. 31 Penalty: 32 (a) for an individual for an offence involving a specified 33 licensed occupation -- 34 (i) for a first or second offence -- $50,000; or page 14 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 13 1 (ii) for a third or subsequent offence -- $50,000 or 2 12 months imprisonment or both; or 3 (b) for an individual for any other offence -- $50,000; or 4 (c) for a body corporate -- $250,000. 5 (2) A person must not hold out that another person (the second person) is 6 licensed -- 7 (a) to carry out a licensed occupation unless the second person 8 holds a licence for the licensed occupation; or 9 (b) to carry out prescribed work unless the second person holds a 10 licence to carry out the prescribed work. 11 Penalty: 12 (a) for an individual for an offence involving a specified 13 licensed occupation -- 14 (i) for a first or second offence -- $50,000; or 15 (ii) for a third or subsequent offence -- $50,000 or 16 12 months imprisonment or both; 17 or 18 (b) for an individual for any other offence -- $50,000; or 19 (c) for a body corporate -- $250,000. 20 (3) A reference in this section to carrying out prescribed work includes 21 carrying on a business that involves carrying out prescribed work. 22 (4) In this section -- 23 specified licensed occupation means a licensed occupation that the 24 national regulations have declared to be a specified licensed 25 occupation for the purposes of this section. 26 13. Injunction stopping person from engaging in conduct in 27 contravention of Law or national regulations 28 (1) If a person has engaged in, is engaging in or is proposing to engage in 29 conduct in a participating jurisdiction that constituted, constitutes or 30 would constitute a contravention of this Law or the national 31 regulations, the Licensing Authority may apply to the relevant 32 tribunal or court for that participating jurisdiction for an injunction in 33 relation to the conduct. page 15 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 14 1 (2) If the relevant tribunal or court is satisfied the person has engaged in, 2 is engaging in or is proposing to engage in conduct that constituted, 3 constitutes or would constitute a contravention of this Law or the 4 national regulations, the relevant tribunal or court may grant an 5 injunction restraining the person from engaging in the conduct. 6 (3) The relevant tribunal or court may grant the injunction on the terms 7 the tribunal or court considers appropriate. 8 (4) Without limiting subsection (3), the injunction may state that it 9 applies not only in the participating jurisdiction in which it is made 10 but in other participating jurisdictions. 11 Note: See section 7 which provides for the extraterritorial operation of this 12 Law. 13 (5) The relevant tribunal or court may grant an interim injunction until 14 the application is finally decided. 15 14. Licensee must not lend or otherwise allow use of licence by 16 another person 17 (1) A licensee must not -- 18 (a) lend the licensee's licence to another person; or 19 (b) otherwise allow another person to use the licensee's licence 20 or licence number. 21 Penalty: 22 (a) for an individual for an offence involving a specified 23 licensed occupation -- 24 (i) for a first or second offence -- $50,000; or 25 (ii) for a third or subsequent offence -- $50,000 or 26 12 months imprisonment or both; or 27 (b) for an individual for any other offence -- $50,000; or 28 (c) for a body corporate -- $250,000. 29 (2) In this section -- 30 specified licensed occupation means a licensed occupation that the 31 national regulations have declared to be a specified licensed 32 occupation for the purposes of this section. page 16 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 15 1 Division 2 -- Application for licence 2 15. Who may apply for a licence 3 (1) An application for a licence for a licensed occupation may be made by 4 a person who is a member of a prescribed class of persons for the 5 occupation. 6 (2) For the purposes of subsection (1), the national regulations may 7 provide that applications for licences for a licensed occupation may be 8 made by any of the following -- 9 (a) individuals; 10 (b) individuals acting in their capacity as members of a 11 partnership; 12 (c) bodies corporate. 13 (3) An application for a licence cannot be made by a trust. 14 16. Application for licence 15 (1) An application for a licence must be -- 16 (a) made to the Licensing Authority; and 17 (b) in the approved form; and 18 (c) accompanied by the prescribed fee payable to the prescribed 19 person; and 20 (d) accompanied by any other documents, identified in the 21 approved form, the Licensing Authority reasonably requires. 22 (2) Without limiting subsection (1)(b), a form approved by the Licensing 23 Authority for the purposes of that paragraph must require an 24 applicant -- 25 (a) to provide a declaration about the applicant's primary 26 jurisdiction; and 27 (b) if the applicant is a body corporate, to nominate an adult as 28 the nominee for the proposed licence. 29 (3) An individual may be nominated as the nominee for the proposed 30 licence only if the individual -- 31 (a) holds a licence personally for the licensed occupation; and page 17 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 17 1 (b) is a director or employee of the body corporate as provided 2 by the national regulations. 3 (4) The national regulations may prescribe further requirements in 4 relation to the nominees for licences. 5 17. Licensing Authority may require further information or 6 document 7 (1) Before deciding an application for a licence, the Licensing Authority 8 may, by written notice given to the applicant, require the applicant to 9 give the Authority, within a reasonable time stated in the notice, 10 further information or a document the Authority reasonably requires 11 to decide the application. 12 (2) The Licensing Authority may require the information or document to 13 be verified by a statutory declaration. 14 (3) The applicant is taken to have withdrawn the application if the 15 applicant does not comply with the written notice. 16 Division 3 -- Eligibility for licence 17 18. Eligibility for licence 18 (1) A person is eligible for a licence for a licensed occupation if -- 19 (a) the person or, if the person is a body corporate, the person's 20 nominee, has the prescribed qualifications, skills, knowledge 21 and experience for the licence; and 22 (b) the person and, if the person is a body corporate, the person's 23 nominee, satisfy the prescribed personal probity requirements 24 for the licence; and 25 (c) the person satisfies the prescribed financial probity 26 requirements for the licence; and 27 (d) the person and, if the person is a body corporate, the person's 28 nominee, are not excluded persons for the licence; and 29 (e) the person or, if the person is a body corporate, the person's 30 nominee, satisfies any other requirements prescribed by the 31 national regulations for the licence. page 18 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 19 1 Note: Section 24 of Schedule 1 provides that a regulation may -- 2 (a) apply generally to all persons, matters or things or be limited in its 3 application to particular persons, matters or things or classes of 4 persons, matters or things; or 5 (b) apply generally or be limited in its application; or 6 (c) apply differently according to different specified factors. 7 Accordingly, the national regulations may prescribe different eligibility 8 requirements for different licensed occupations or different types of 9 licences for the same licensed occupation. 10 (2) For the purposes of subsection (1), if an individual in the individual's 11 capacity as a member of a partnership would not be eligible for a 12 licence for a licensed occupation but the individuals who are members 13 of the partnership would jointly be eligible for the licence, the 14 individuals are, in their capacity as members of the partnership, taken 15 to be eligible for the licence. 16 19. Personal probity 17 (1) For the purposes of section 18(1)(b), the national regulations may 18 provide for -- 19 (a) the personal probity requirements a person must satisfy to be 20 eligible for a licence; and 21 (b) the personal probity requirements a person must satisfy to be 22 eligible to be a nominee for a licensee that is a body 23 corporate. 24 (2) Without limiting subsection (1), the national regulations may provide 25 for requirements in relation to the following for persons who are 26 applicants for licences, licensees, nominees or relevant persons for a 27 body corporate that is an applicant or licensee -- 28 (a) matters relating to the criminal history of the persons, to the 29 extent there is a connection between the criminal history of 30 the persons and the inherent requirements of the occupation 31 for which the persons are applicants, licensees, nominees or 32 relevant persons; 33 Note: Matters relating to the criminal history of persons will be subject to 34 legislation of participating jurisdictions that prohibits, or does not 35 require, the disclosure of spent convictions. page 19 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 20 1 (b) matters relating to the conduct of persons in carrying out 2 business including, for example, matters relating to duties as 3 a director of a corporation or the imposition of civil penalties 4 or orders in relation to carrying out business; 5 (c) security clearances to be held by the persons, to the extent 6 that it is an inherent requirement of the occupation for which 7 the persons are applicants, licensees, nominees or relevant 8 persons. 9 (3) In this section -- 10 relevant person, for a body corporate, means a person who -- 11 (a) will have authority or influence in the conduct of the business 12 of the body corporate; and 13 (b) is prescribed by the national regulations as being a relevant 14 person for the body corporate. 15 20. Financial probity 16 (1) For the purposes of section 18(1)(c), the national regulations may 17 provide for the financial probity requirements a person must satisfy to 18 be eligible for a licence. 19 (2) Without limiting subsection (1), the national regulations may 20 provide -- 21 (a) for the financial requirements a person must satisfy to be 22 eligible for a licence; or 23 (b) a person who is an applicant or a licensee is not eligible for a 24 licence if -- 25 (i) the person is bankrupt, insolvent, compounds with 26 creditors, enters into a compromise or scheme of 27 arrangement with creditors or otherwise applies to 28 take the benefit of any law for the relief of bankrupt 29 or insolvent debtors; or 30 (ii) the person fails to pay a penalty, fine or other amount 31 ordered by a court or tribunal to be paid or required to 32 be paid under this Law. page 20 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 21 1 21. Excluded person 2 (1) For the purposes of section 18(1)(d), a person is an excluded person 3 for a licence for a licensed occupation if -- 4 (a) the person is prohibited by an order of a disciplinary body 5 from carrying out work that is within the scope of the licence; 6 or 7 (b) the person's licence under this Law to carry out the licensed 8 occupation has been cancelled by a disciplinary body and any 9 period ordered by the disciplinary body during which the 10 person is disqualified from applying for a new licence has not 11 ended; or 12 (c) the person's licence under a corresponding prior Act to carry 13 out the licensed occupation was cancelled as a result of 14 disciplinary action taken by a corresponding disciplinary 15 body and -- 16 (i) any period ordered by the disciplinary body during 17 which the person is disqualified from applying for a 18 new licence has not ended; or 19 (ii) if the disciplinary body did not disqualify the person 20 from applying for a new licence, a period of 2 years 21 from the day the cancellation occurred has not ended; 22 or 23 (d) the person's application for a licence for the licensed 24 occupation under this Law or a corresponding prior Act 25 within the previous 2 years has been refused on the basis that 26 the person provided information or a document in relation to 27 the application that was false or misleading; or 28 (e) a business partner or other close associate of the person is a 29 person whose licence under this Law to carry out the licensed 30 occupation has been cancelled by a disciplinary body and any 31 period ordered by the disciplinary body during which the 32 person is disqualified from applying for a new licence has not 33 ended; or page 21 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 21 1 (f) a business partner or other close associate of the person is a 2 person whose licence under a corresponding prior Act to 3 carry out the licensed occupation was cancelled by a court, 4 tribunal or other entity and -- 5 (i) any period ordered by the court, tribunal or other 6 entity during which the person is disqualified from 7 applying for a new licence has not ended; or 8 (ii) if the court, tribunal or other entity did not disqualify 9 the person from applying for a new licence, a period 10 of 2 years from the day the cancellation occurred has 11 not ended; or 12 (g) the person is an excluded person under the national 13 regulations; or 14 (h) the person has, within the previous 5 years, been convicted of 15 an offence under section 9, 10, 11, or 12 or a provision of a 16 corresponding prior Act that corresponds to section 9, 10, 11, 17 or 12. 18 (2) In this section -- 19 close associate, of a person, means a person who exercises a 20 significant influence over the person or the operation or management 21 of the person's business. 22 corresponding disciplinary body means an entity that has been 23 declared by a law of a participating jurisdiction to be a corresponding 24 disciplinary body for the purposes of this section. 25 corresponding prior Act means a law of participating jurisdiction 26 that -- 27 (a) was in force before the day on which the jurisdiction became 28 a participating jurisdiction; and 29 (b) has been declared by a law of that jurisdiction to be a 30 corresponding prior Act for the purposes of this section. 31 licence, in relation to a corresponding prior Act, means a licence, 32 registration, approval, certificate or other form of authorisation 33 required under the corresponding prior Act to carry out a licensed 34 occupation. page 22 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 22 1 Division 4 -- Decision about application for licence 2 22. Decision about application 3 After considering an application for a licence, the Licensing Authority 4 must decide to -- 5 (a) grant the licence to the applicant if the applicant is eligible for 6 the licence; or 7 (b) refuse to grant the licence to the applicant if the applicant is 8 not eligible for the licence. 9 23. Notice of decision to be given to applicant 10 (1) Within 28 days after making the decision to grant or refuse to grant a 11 licence to the applicant, the Licensing Authority must -- 12 (a) give the applicant written notice of its decision; and 13 (b) if the decision was to grant the licence, give the applicant a 14 licence. 15 (2) If the Licensing Authority decides not to grant the licence, the notice 16 must state -- 17 (a) the reasons for the decision; and 18 (b) that the applicant may apply for a review of the decision; and 19 (c) how an application for review may be made and the period 20 within which the application must be made. 21 24. Failure to decide application 22 If the Licensing Authority fails to decide an application for a licence 23 within 120 days after its receipt, or the longer period agreed between 24 the Authority and the applicant, the failure by the Authority to make a 25 decision is taken to be a decision to refuse to grant a licence to the 26 applicant. 27 Division 5 -- Licences 28 25. Form of licence 29 A licence is to be in the approved form. page 23 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 26 1 26. Period of licence 2 A licence may be granted for the period, not more than 5 years, 3 prescribed by the national regulations. 4 27. Conditions 5 A licence is subject to the following conditions -- 6 (a) any conditions prescribed by the national regulations for a 7 licence of that category; 8 (b) any conditions imposed on the licence by a disciplinary body. 9 28. Change in details or circumstances 10 A licensee must, as soon as practicable but not later than 14 days after 11 any of the following changes occurs, give the Licensing Authority 12 written notice of the change and any evidence providing proof of the 13 change required by the Authority, unless the licensee has a reasonable 14 excuse -- 15 (a) if the licensee is an individual, a change in the licensee's 16 principal place of residence; 17 (b) if the licensee is a body corporate or an individual acting in 18 the individual's capacity as a member of a partnership, a 19 change in the body corporate's or partnership's principal 20 place of business; 21 (c) a change in the licensee's criminal history prescribed by the 22 national regulations; 23 (d) any other change prescribed by the national regulations. 24 Penalty: 25 (a) for an individual -- $10,000, or 26 (b) for a body corporate -- $50,000. 27 29. Return of licence 28 (1) If a person is given written notice by the Licensing Authority that the 29 person's licence has been suspended, cancelled or revoked and the 30 licence is for a specified licensed occupation, the person must return 31 the person's licence to the Authority within 7 days after receiving the 32 notice, unless the person has a reasonable excuse. page 24 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 30 1 Penalty: 2 (a) for an individual -- $5,000; 3 (b) for a body corporate -- $25,000. 4 (2) The Licensing Authority must, immediately after the suspension of a 5 licensee's licence ends, return the licence to the licensee. 6 (3) In this section -- 7 specified licensed occupation means a licensed occupation that the 8 national regulations have declared to be a specified licensed 9 occupation for the purposes of this section. 10 30. Licence not transferrable 11 (1) A licence may not be transferred. 12 (2) A licence is not personal property for the purposes of the Personal 13 Property Securities Act 2009 of the Commonwealth. 14 Division 6 -- Renewal, restoration, variation and surrender of licences 15 Subdivision 1 -- Renewal of licences 16 31. Application for renewal of licence 17 (1) A licensee may, before the licensee's licence expires, apply to renew 18 the licence. 19 (2) An application for the renewal of a licence must -- 20 (a) be made to the Licensing Authority; and 21 (b) be in the approved form; and 22 (c) be accompanied by the prescribed fee payable to the 23 prescribed person; and 24 (d) be accompanied by any other documents, identified in the 25 approved form, the Licensing Authority reasonably requires; 26 and 27 (e) comply with any other requirement prescribed by the national 28 regulations, including any requirement about when the 29 application must be made. page 25 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 32 1 32. Licensing Authority may require further information or 2 document 3 (1) Before deciding an application for renewal of a licence, the Licensing 4 Authority may, by written notice given to the applicant, require the 5 applicant to give the Authority, within a reasonable time stated in the 6 notice, further information or a document the Authority reasonably 7 requires to decide the application. 8 (2) The Licensing Authority may require the information or document to 9 be verified by a statutory declaration. 10 (3) The applicant is taken to have withdrawn the application if the 11 applicant does not comply with the written notice. 12 33. Eligibility for renewal of licence 13 Divisions 3 and 4 apply to the renewal of a licence, with any changes 14 prescribed by the national regulations, as if the application for the 15 renewal of the licence were an application for the grant of a licence. 16 34. Licence continues in force until application decided 17 If a person applies under section 31 to renew the person's licence, the 18 licence is taken to continue in force from the day it would, apart from 19 this section, have ended until -- 20 (a) if the Licensing Authority decides to renew the licence, the 21 day the new licence is given to the person; or 22 (b) if the Licensing Authority decides to refuse to renew the 23 licence, the day the person is given notice of the decision. 24 Subdivision 2 -- Restoration of licences 25 35. Application for restoration of licence 26 (1) If a person's licence has expired and the licence is for a specified 27 licensed occupation, the person may apply for the restoration of the 28 licence within 3 months after the expiry. 29 (2) However, an application for the restoration of licence may not be 30 made -- 31 (a) during any period in which the licence is suspended; or page 26 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 36 1 (b) if the licence has been cancelled. 2 (3) An application for the restoration of a licence must -- 3 (a) be made to the Licensing Authority; and 4 (b) be in the approved form; and 5 (c) be accompanied by the prescribed fee payable to the 6 prescribed person; and 7 (d) be accompanied by any other documents, identified in the 8 approved form, the Licensing Authority reasonably requires; 9 and 10 (e) comply with any other requirement prescribed by the national 11 regulations. 12 (4) In this section -- 13 specified licensed occupation means a licensed occupation that the 14 national regulations have declared to be a specified licensed 15 occupation for the purposes of this section. 16 36. Licensing Authority may require further information or 17 document 18 (1) Before deciding an application for restoration of a licence, the 19 Licensing Authority may, by written notice given to the applicant, 20 require the applicant to give the Authority, within a reasonable time 21 stated in the notice, further information or a document the Authority 22 reasonably requires to decide the application. 23 (2) The Licensing Authority may require the information or document to 24 be verified by a statutory declaration. 25 (3) The applicant is taken to have withdrawn the application if the 26 applicant does not comply with the written notice. 27 37. Eligibility for restoration of licence 28 Divisions 3 and 4 apply to the restoration of a licence, with any 29 changes prescribed by the national regulations, as if the application 30 for the restoration of the licence were an application for the grant of a 31 licence. page 27 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 38 1 38. Licence continues in force until application decided 2 If a person applies under section 35 to restore an expired licence, the 3 licence is taken to have continued in force from the day it would, 4 apart from this section, have ended until -- 5 (a) if the Licensing Authority decides to restore the licence, the 6 day the new licence is given to the person; or 7 (b) if the Licensing Authority decides to refuse to restore the 8 licence, the day the person is given notice of the decision. 9 39. Period of restored licence 10 If the Licensing Authority decides to restore a person's licence, the 11 licence is taken to have commenced immediately after the person's 12 previous licence expired. 13 Subdivision 3 -- Variation of licences on application of licensees 14 40. Application for variation of licence 15 (1) A licensee may apply to vary the licensee's licence. 16 (2) An application for the variation of a licence must -- 17 (a) be made to the Licensing Authority; and 18 (b) be in the approved form; and 19 (c) be accompanied by the prescribed fee payable to the 20 prescribed person; and 21 (d) be accompanied by any other documents, identified in the 22 approved form, the Licensing Authority reasonably requires; 23 and 24 (e) comply with any other requirement prescribed by the national 25 regulations. 26 41. Eligibility for variation of licence 27 Divisions 3 and 4 apply to the variation of a licence, with any changes 28 prescribed by the national regulations, as if the application for the 29 variation of the licence were an application for the grant of a licence. page 28 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Licensing Part 2 cl. 42 1 Subdivision 4 -- Variation of licences on initiative of Licensing Authority 2 42. Varying licence on Licensing Authority's initiative 3 (1) This section applies if the Licensing Authority reasonably believes it 4 is necessary to vary a licensee's licence. 5 (2) The Licensing Authority must give the licensee a written notice 6 stating -- 7 (a) that the Authority proposes to vary the licence; and 8 (b) how the Authority proposes to vary the licence; and 9 (c) the reason for the proposed variation; and 10 (d) that the licensee may, within 28 days after receipt of the 11 notice, make a written submission to the Authority about the 12 proposed variation. 13 (3) The licensee may make a written submission about the proposed 14 variation as stated in the notice. 15 (4) The Licensing Authority must consider a submission made under 16 subsection (3) and decide whether or not to vary the licence. 17 (5) The Licensing Authority's decision must be made -- 18 (a) within 28 days after receiving the licensee's submission; or 19 (b) if the licensee does not make a submission, within 28 days 20 after the last day on which the licensee may make a 21 submission. 22 (6) As soon as practicable after making its decision, the Licensing 23 Authority must give written notice of the decision to the licensee. 24 (7) If the Licensing Authority decides to vary the licence, the notice must 25 state -- 26 (a) the decision made by the Authority; and 27 (b) that the licensee may apply for a review of the decision; and 28 (c) how an application for a review must be made and the period 29 within which the application must be made. page 29 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 2 Licensing cl. 43 1 Subdivision 5 -- Surrender of licences 2 43. Surrender of licence 3 (1) A licensee may surrender the licensee's licence. 4 (2) In surrendering a licence, the licensee must comply with any 5 requirements prescribed by the national regulations. 6 Subdivision 6 -- Revocation of licences 7 44. Revocation of licence 8 (1) The Licensing Authority may decide to revoke a person's licence if 9 the Authority reasonably believes the licence was issued in error. 10 (2) The Licensing Authority may decide to revoke a licence under this 11 section only if the decision is made not more than 28 days after the 12 Authority becomes aware of the ground that forms the basis for 13 believing the licence was issued in error. 14 (3) If the Licensing Authority decides to revoke a licence, it must give a 15 notice to the licensee stating -- 16 (a) the decision made by the Authority; and 17 (b) that the person may apply for a review of the decision; and 18 (c) how an application for a review must be made and the period 19 within which the application must be made. 20 (4) The decision takes effect on -- 21 (a) the day the notice is given to the person; or 22 (b) the later day stated in the notice. 23 Subdivision 7 -- Replacement of licence 24 45. Replacement of licence 25 (1) A licensee may apply to the Licensing Authority for the replacement 26 of the licensee's licence if it has been lost, stolen, destroyed or 27 damaged. 28 (2) The application must be -- 29 (a) in the approved form; and page 30 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Disciplinary proceedings and action Part 3 cl. 46 1 (b) accompanied by the prescribed fee payable to the prescribed 2 person. 3 (3) The Licensing Authority must issue a replacement licence to the 4 licensee. 5 Part 3 -- Disciplinary proceedings and action 6 Division 1 -- Preliminary 7 46. Part applicable to former licensees 8 (1) Disciplinary proceedings may be taken under this Part in relation to a 9 former licensee's behaviour while a licensee as if the former licensee 10 were still a licensee. 11 (2) However, disciplinary proceedings may be taken against a former 12 licensee only in relation to behaviour that occurred not more than 13 6 years before the day the disciplinary proceedings start. 14 (3) For the purposes of subsection (1), this Part (other than Division 3) 15 applies, with any necessary changes, as if a reference to a licensee 16 included a former licensee. 17 47. Meaning of disciplinary action 18 (1) Disciplinary action, in relation to a licensee, means one or more of 19 the following -- 20 (a) reprimand the licensee; 21 (b) direct the licensee to do or not to do something; 22 (c) require the licensee to give the Licensing Authority an 23 undertaking; 24 (d) impose a condition on the licensee's licence; 25 (e) impose demerit points on the licensee as provided for in the 26 national regulations; 27 (f) require the licensee to pay to the Licensing Authority a 28 penalty of not more than the prescribed amount; 29 (g) suspend the licensee's licence for a stated period; page 31 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 3 Disciplinary proceedings and action cl. 48 1 (h) cancel the licensee's licence and disqualify the person from 2 applying for a specified licence for a period of not more than 3 5 years; 4 (i) cancel the licensee's licence and disqualify the person from 5 applying for a specified licence for life. 6 (2) Disciplinary action, in relation to a former licensee, means -- 7 (a) direct the former licensee to do or not to do something; 8 (b) require the former licensee to pay to the Licensing Authority 9 a penalty of not more than the prescribed amount; 10 (c) disqualify the former licensee from applying for a specified 11 licence for a period of not more than 5 years; 12 (d) disqualify the former licensee from applying for a specified 13 licence for life. 14 (3) The disciplinary action referred to in subsection (1) or (2) is listed in a 15 hierarchy from the least serious action that may be taken to the most 16 serious action. 17 Division 2 -- Grounds for disciplinary action 18 48. Grounds for disciplinary action 19 (1) Each of the following is a ground for which disciplinary action may 20 be taken against a licensee -- 21 (a) the licensee has contravened this Law or the national 22 regulations; 23 (b) the licensee has contravened -- 24 (i) a prescribed Act or regulation of the Commonwealth 25 or a State or Territory; or 26 (ii) a prescribed provision of an Act or regulation of the 27 Commonwealth or a State or Territory; 28 (c) the licensee is no longer eligible for a licence or the particular 29 licence held by the licensee; 30 (d) the licensee has not completed the prescribed skills 31 maintenance requirements or prescribed training 32 requirements; page 32 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Disciplinary proceedings and action Part 3 cl. 49 1 (e) the licensee has not paid a fee or other amount required to be 2 paid under -- 3 (i) this Law; or 4 (ii) a prescribed Act of the Commonwealth or a State or 5 Territory; 6 (f) the licensee has not complied with an order made by a 7 disciplinary body in relation to the licensee's licensed 8 occupation; 9 (g) the licensee has not complied with a direction given by a 10 disciplinary body to do or not to do something; 11 (h) the licensee has not complied with a direction given by the 12 Licensing Authority to the licensee under section 101; 13 (i) the licensee's licence was obtained on the basis of 14 information or a document that was false or misleading; 15 (j) the licensee has contravened a condition of the licensee's 16 licence or an undertaking given by the licensee to the 17 Licensing Authority; 18 (k) the licensee has failed to maintain insurance the licensee is 19 required by the national regulations to maintain; 20 (l) an immediate suspension ground exists in relation to the 21 licensee. 22 (2) However, disciplinary action may not be taken against a licensee on a 23 ground referred to in subsection (1) if the ground is prescribed under 24 the national regulations as being a ground for which the licensee's 25 licence is automatically suspended or cancelled. 26 Division 3 -- Immediate suspension 27 49. Grounds for immediate suspension 28 (1) A ground for the immediate suspension of a licensee's licence exists 29 if -- 30 (a) the licensee is bankrupt or insolvent; or 31 (b) the licensee has contravened a relevant law; or 32 (c) the licensee has misappropriated funds held on trust by the 33 licensee; or page 33 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 3 Disciplinary proceedings and action cl. 50 1 (d) the licensee has been charged with or convicted of an offence 2 that, under the national regulations, would make the person 3 ineligible to hold a licence. 4 (2) Subsection (1)(a) applies only in relation to a licensee who is a 5 member of a prescribed class of licensees. 6 (3) In this section -- 7 bankrupt or insolvent, in relation to a licensee, means the licensee -- 8 (a) has become bankrupt or insolvent; or 9 (b) has applied to take the benefit of any law for the relief of 10 bankrupt or insolvent debtors; or 11 (c) has compounded with creditors or made an assignment of 12 remuneration for the benefit of creditors; or 13 (d) has entered into a compromise or scheme of management 14 with creditors. 15 convicted, of an offence, includes a plea of guilty or a finding of 16 guilty and includes whether or not a conviction is recorded. 17 relevant law means an Act, regulation, code of practice or standard 18 that is prescribed by the national regulations. 19 50. Immediate suspension of licence 20 (1) The Licensing Authority may, by written notice given to a licensee, 21 immediately suspend the licensee's licence if the Authority 22 reasonably believes -- 23 (a) an immediate suspension ground exists in relation to the 24 licensee; and 25 (b) it is necessary in the public interest to immediately suspend 26 the licensee's licence. 27 (2) The written notice must state the following -- 28 (a) the decision; 29 (b) the reasons for the decision; 30 (c) the period of the suspension; 31 (d) that the licensee may apply to the Licensing Authority for a 32 review of the decision within 14 days; 33 (e) the way the licensee may apply for the review of the decision. page 34 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Disciplinary proceedings and action Part 3 cl. 51 1 (3) The suspension -- 2 (a) takes effect when the notice is given to the licensee; and 3 (b) continues until the earlier of the following days -- 4 (i) the day the suspension is revoked by the Licensing 5 Authority; 6 (ii) the day the suspension is revoked on appeal under 7 Division 3 of Part 5. 8 Division 4 -- Show cause process 9 51. Application of Division 10 The Licensing Authority may start disciplinary proceedings against a 11 licensee under this Division only if an Act of the participating 12 jurisdiction in which the conduct that provides the grounds for the 13 disciplinary proceedings occurred has declared that this Division 14 applies to licensees carrying out the licensed occupation for which the 15 licensee is licensed. 16 52. Show cause notice 17 (1) If the Licensing Authority reasonably believes a ground for taking 18 disciplinary action against a licensee exists, the Authority must give 19 the licensee a notice under this section (a show cause notice). 20 (2) The show cause notice must state the following -- 21 (a) that the Licensing Authority proposes to take disciplinary 22 action (the proposed action); 23 (b) the licence in relation to which the proposed action is to be 24 taken; 25 (c) the ground for the proposed action; 26 (d) an outline of the facts and circumstances forming the basis 27 for the ground; 28 (e) an invitation to the licensee to show within a stated period 29 (the show cause period) why the proposed action should not 30 be taken. 31 (3) The show cause period must be a period ending at least 14 days after 32 the show cause notice is given to the licensee. page 35 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 3 Disciplinary proceedings and action cl. 53 1 53. Representations about show cause notice 2 (1) The licensee may -- 3 (a) make written representations about the show cause notice to 4 the Licensing Authority within the show cause period; or 5 (b) make oral representations about the show cause notice to the 6 Licensing Authority at the time within the show cause period, 7 and at the place, agreed by the Licensing Authority and the 8 licensee. 9 (2) The Licensing Authority must keep a record of oral representations 10 made to it under subsection (1)(b). 11 54. Decision about whether to take disciplinary action 12 Within 28 days after the show cause period ends, the Licensing 13 Authority must decide whether a ground exists to take disciplinary 14 action against the licensee. 15 55. Ending show cause process without further action 16 If the Licensing Authority no longer believes a ground exists to take 17 disciplinary action against the licensee, the Authority -- 18 (a) must not take further action about the show cause notice; and 19 (b) must, as soon as practicable after making its decision, give 20 notice to the licensee that no further action will be taken 21 about the show cause notice. 22 56. Taking disciplinary action after show cause notice 23 (1) If the Licensing Authority still believes a ground exists to take 24 disciplinary action against the licensee, the Authority may -- 25 (a) take the proposed action; or 26 (b) take one or more disciplinary actions that, in accordance with 27 the hierarchy specified in section 47, are less serious than the 28 proposed action. 29 (2) In making its decision about what disciplinary action should be taken, 30 the Licensing Authority must have regard to the following -- 31 (a) the licensee's licensing history; page 36 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Disciplinary proceedings and action Part 3 cl. 57 1 (b) whether the ground for the disciplinary action is that the 2 licensee has contravened -- 3 (i) this Law or the national regulations; or 4 (ii) another Act or regulation; 5 (c) if the ground for disciplinary action is a contravention 6 referred to in paragraph (b), the severity of the contravention 7 and the period for which the contravention continued. 8 (3) The Licensing Authority may not take action referred to in 9 section 47(1)(f) with respect to a ground for disciplinary action if the 10 licensee has already been fined by a court or a tribunal with respect to 11 the same behaviour. 12 (4) The Licensing Authority must, as soon as practicable after making its 13 decision, give a written notice about the decision to the licensee. 14 (5) The written notice must state the following -- 15 (a) the decision; 16 (b) the reasons for the decision; 17 (c) that the licensee may apply for a review of the decision 18 within 28 days; 19 (d) the way the licensee may apply for the review of the decision. 20 (6) The decision takes effect on -- 21 (a) the day the notice is given to the licensee; or 22 (b) the later day stated in the notice. 23 Division 5 -- Disciplinary proceedings before tribunal or court 24 57. Application of Division 25 The Licensing Authority may start disciplinary proceedings against a 26 licensee under this Division only if an Act of the participating 27 jurisdiction in which the conduct that provides the grounds for the 28 disciplinary proceedings occurred has declared that this Division 29 applies to licensees carrying out the licensed occupation for which the 30 licensee is licensed. page 37 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 4 Monitoring and enforcement cl. 58 1 58. Application to relevant tribunal or court 2 If the Licensing Authority reasonably believes a ground for taking 3 disciplinary action against a licensee exists, the Authority may apply 4 to the relevant tribunal or court for the participating jurisdiction. 5 59. Decision by relevant tribunal or court 6 (1) After hearing the matter about the licensee, the relevant tribunal or 7 court must decide -- 8 (a) the licensee has no case to answer; or 9 (b) that a ground exists to take disciplinary action against the 10 licensee. 11 (2) If the relevant tribunal or court decides that a ground exists to take 12 disciplinary action against the licensee, the tribunal or court may 13 decide to take one or more disciplinary actions against the licensee. 14 (3) However, the relevant tribunal or court may not take action referred to 15 in section 47(1)(f) with respect to a ground for disciplinary action if 16 the licensee has already been fined by a court or a tribunal with 17 respect to the same behaviour. 18 60. Licensing Authority to give effect to decision of relevant tribunal 19 or court 20 The Licensing Authority must give effect to a decision of the relevant 21 tribunal or court, unless the decision is stayed on appeal. 22 Part 4 -- Monitoring and enforcement 23 Division 1 -- Power to obtain information 24 61. Powers of authorised officers 25 (1) This section applies if an authorised officer reasonably believes -- 26 (a) an offence against this Law or a prescribed Act has been 27 committed; and 28 (b) a person may be able to give information about the offence. page 38 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Monitoring and enforcement Part 4 cl. 62 1 (2) The authorised officer may, by written notice given to a person, 2 require the person to -- 3 (a) give stated information to the authorised officer within a 4 stated reasonable time and in a stated reasonable way; or 5 (b) attend before the authorised officer at a stated reasonable time 6 and a stated reasonable place to answer questions or produce 7 documents. 8 62. Offence for failing to produce information or attend before 9 authorised officer 10 (1) A person required to give stated information to an authorised officer 11 under section 61(2)(a) must not fail, without reasonable excuse, to 12 give the information as required by the notice. 13 Penalty: 14 (a) for an individual -- $10,000; or 15 (b) for a body corporate -- $50,000. 16 (2) A person given a notice to attend before an authorised officer under 17 section 61(2)(b) must not fail, without reasonable excuse, to -- 18 (a) attend as required by the notice; and 19 (b) continue to attend as required by the authorised officer until 20 excused from further attendance; and 21 (c) answer a question the person is required to answer by the 22 authorised officer; and 23 (d) produce a document the person is required to produce by the 24 notice. 25 Penalty: 26 (a) for an individual -- $10,000; or 27 (b) for a body corporate -- $50,000. 28 (3) For the purposes of subsections (1) and (2), it is a reasonable excuse 29 for an individual to fail to give stated information, answer a question 30 or produce a document, if giving the information, answering the 31 question or producing the document might tend to incriminate the 32 individual. page 39 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 4 Monitoring and enforcement cl. 63 1 63. Power to require licensee to produce documents 2 (1) An authorised officer may require a licensee to make available, or 3 produce, for inspection by the authorised officer at a reasonable time 4 and place nominated by the authorised officer, a document to which 5 the licensee has access and that the licensee is required to keep under 6 this Law or a prescribed Act or that otherwise relates to the licensee's 7 obligations under this Law or a prescribed Act. 8 (2) A licensee required to make available or produce a document under 9 subsection (1) must not fail, without reasonable excuse, to comply 10 with the requirement. 11 Penalty: 12 (a) for an individual -- $10,000; 13 (b) for a body corporate -- $50,000. 14 64. Inspection of documents 15 (1) If a document is produced to an authorised officer under section 61 16 or 63, the authorised officer may -- 17 (a) inspect the document; and 18 (b) make a copy of, or take an extract from, the document; and 19 (c) keep the document while it is necessary for an investigation 20 being carried out by the authorised officer. 21 (2) If the authorised officer keeps the document, the authorised officer 22 must -- 23 (a) give the person who produced the document a receipt for the 24 document; and 25 (b) permit a person otherwise entitled to possession of the 26 document to inspect, make a copy of, or take an extract from, 27 the document at the reasonable time and place decided by the 28 authorised officer. page 40 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Monitoring and enforcement Part 4 cl. 65 1 Division 2 -- Power to enter places 2 65. Entering places 3 (1) An authorised officer may enter and inspect a place for the purpose of 4 investigating -- 5 (a) whether this Law or a prescribed Act is being complied with; 6 or 7 (b) whether work being carried out under a licence has been, or is 8 being, carried out in accordance with this Law or a prescribed 9 Act. 10 (2) An authorised officer may only enter and inspect a place -- 11 (a) if the place is a relevant place -- 12 (i) with the consent of the occupier or person in control 13 of the place; or 14 (ii) during times prescribed work is being carried out at 15 the place; or 16 (iii) if it is a public place and the entry is made when it is 17 open to the public; or 18 (iv) if the entry is authorised by a warrant; or 19 (b) if the place is not a relevant place, if the entry is authorised 20 by a warrant. 21 (3) For the purpose of asking the occupier or person in control of a 22 relevant place for consent to enter, an authorised officer may, without 23 the consent of the occupier or person in control, enter the place to the 24 extent that is reasonable to contact the person. 25 (4) Subsection (2)(a) does not allow entry to a home without the 26 occupier's consent or a warrant. 27 (5) In this section -- 28 home means any part of a building, caravan or other structure in 29 which an individual lives. 30 public place means -- 31 (a) a place, or a part of a place, that the public is entitled to use, 32 that is open to members of the public or that is used by the 33 public, whether or not on payment of money; or page 41 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 4 Monitoring and enforcement cl. 66 1 (b) a place, or part of a place, that the occupier allows members 2 of the public to enter, whether or not on payment of money. 3 66. Application for warrant 4 (1) An authorised officer may apply to a magistrate of a participating 5 jurisdiction for a warrant for a place. 6 (2) The authorised officer must prepare a written application that states 7 the grounds on which the warrant is sought. 8 (3) The written application must be sworn. 9 (4) The magistrate may refuse to consider the application until the 10 authorised officer gives the magistrate all the information the 11 magistrate requires about the application in the way the magistrate 12 requires. 13 67. Issue of warrant 14 (1) The magistrate may issue the warrant only if the magistrate is 15 satisfied -- 16 (a) there are reasonable grounds for suspecting there is a 17 particular thing or activity that may provide evidence of an 18 offence against this Law or a prescribed Act at the place; or 19 (b) it is necessary for the purpose of determining whether work 20 being carried out under a licence has been, or is being, carried 21 out in accordance with this Law or a prescribed Act at the 22 place. 23 (2) The warrant must state -- 24 (a) that a stated authorised officer may, with necessary and 25 reasonable help and force -- 26 (i) enter the place and any other place necessary for 27 entry; and 28 (ii) exercise the authorised officer's powers under this 29 Part; and 30 (b) the matter for which the warrant is sought; and 31 (c) the evidence that may be seized under the warrant; and 32 (d) the hours of the day or night when the place may be entered; 33 and page 42 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Monitoring and enforcement Part 4 cl. 68 1 (e) the date, within 14 days after the warrant's issue, the warrant 2 ends. 3 68. Application by electronic communication 4 (1) An authorised officer may apply for a warrant by phone, facsimile, 5 email, radio, video conferencing or another form of communication if 6 the authorised officer considers it necessary because of -- 7 (a) urgent circumstances; or 8 (b) other special circumstances, including the authorised officer's 9 remote location. 10 (2) The application -- 11 (a) may not be made before the authorised officer prepares the 12 written application under section 66(2); but 13 (b) may be made before the written application is sworn. 14 (3) The magistrate may issue the warrant (the original warrant) only if 15 the magistrate is satisfied -- 16 (a) it was necessary to make the application under subsection (1); 17 and 18 (b) the way the application was made under subsection (1) was 19 appropriate. 20 (4) After the magistrate issues the original warrant -- 21 (a) if there is a reasonably practicable way of immediately giving 22 a copy of the warrant to the authorised officer, for example, 23 by sending a copy by fax or email, the magistrate must 24 immediately give a copy of the warrant to the authorised 25 officer; or 26 (b) otherwise -- 27 (i) the magistrate must tell the authorised officer the date 28 and time the warrant is issued and the other terms of 29 the warrant; and 30 (ii) the authorised officer must complete a form of 31 warrant including by writing on it -- 32 (A) the magistrate's name; and page 43 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 4 Monitoring and enforcement cl. 69 1 (B) the date and time the magistrate issued the 2 warrant; and 3 (C) the other terms of the warrant. 4 (5) The copy of the warrant referred to in subsection (4)(a), or the form of 5 warrant completed under subsection (4)(b) (in either case the 6 duplicate warrant), is a duplicate of, and as effectual as, the original 7 warrant. 8 (6) The authorised officer must, at the first reasonable opportunity, send 9 to the magistrate -- 10 (a) the written application complying with section 66(2) and (3); 11 and 12 (b) if the authorised officer completed a form of warrant under 13 subsection (4)(b), the completed form of warrant. 14 (7) The magistrate must keep the original warrant and, on receiving the 15 documents under subsection (6), file the original warrant and 16 documents in the court. 17 (8) Despite subsection (5), if -- 18 (a) an issue arises in a proceeding about whether an exercise of a 19 power was authorised by a warrant issued under this section; 20 and 21 (b) the original warrant is not produced in evidence; 22 the onus of proof is on the person relying on the lawfulness of the 23 exercise of the power to prove a warrant authorised the exercise of the 24 power. 25 (9) This section does not limit section 66. 26 69. Procedure before entry under warrant 27 (1) Before entering a place under a warrant, an authorised officer must do 28 or make a reasonable attempt to do the following -- 29 (a) identify himself or herself to a person present at the place 30 who is an occupier of the place or the person apparently in 31 control of the place by producing the authorised officer's 32 identity card or another document evidencing the authorised 33 officer's appointment; page 44 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Monitoring and enforcement Part 4 cl. 70 1 (b) give the person a copy of the warrant; 2 (c) tell the person the authorised officer is permitted by the 3 warrant to enter the place; 4 (d) give the person an opportunity to allow the authorised officer 5 immediate entry to the place without using force. 6 (2) However, the authorised officer need not comply with subsection (1) 7 if the authorised officer reasonably believes that immediate entry to 8 the place is required to ensure the effective execution of the warrant is 9 not frustrated. 10 70. Powers after entering places 11 (1) This section applies if an authorised officer enters a place under 12 section 65. 13 (2) The authorised officer may for the purposes of the investigation do 14 the following -- 15 (a) search any part of the place; 16 (b) inspect, measure, test, photograph or film any part of the 17 place or anything at the place; 18 (c) take a thing, or a sample of or from a thing, at the place for 19 analysis, measurement or testing; 20 (d) copy, or take an extract from, a document at the place; 21 (e) take into or onto the place any person, equipment and 22 materials the authorised officer reasonably requires for 23 exercising a power under this Part; 24 (f) require the occupier of the place, or a person at the place, to 25 give the authorised officer reasonable help to exercise the 26 authorised officer's powers under paragraphs (a) to (e); 27 (g) require the occupier of the place, or a person at the place, to 28 give the authorised officer information, including, for 29 example, the person's name, address or licence number, to 30 help the authorised officer ascertain whether this Law or the 31 prescribed Act is being complied with. 32 (3) The authorised officer may also require any of the following persons 33 to do, or refrain from doing, something at the place if the officer page 45 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 4 Monitoring and enforcement cl. 71 1 reasonably believes it is necessary to do so to prevent injury or other 2 harm to persons at the place -- 3 (a) a licensee who has been carrying out prescribed work at the 4 place or a person acting under the direction of the licensee; 5 (b) a person who has been carrying out prescribed work at the 6 place under the direction of or on behalf of a licensee; 7 (c) the occupier of the place or a person at the place. 8 (4) When making a requirement mentioned in subsection (2)(f) or (g) 9 or (3), the authorised officer must warn the person it is an offence to 10 fail to comply with the requirement unless the person has a reasonable 11 excuse. 12 71. Offences for failing to comply with requirement under section 70 13 (1) A person required to give reasonable help under section 70(2)(f) must 14 comply with the requirement, unless the person has a reasonable 15 excuse. 16 Penalty: 17 (a) for an individual -- $10,000; or 18 (b) for a body corporate -- $50,000. 19 (2) A person of whom a requirement is made under section 70(2)(g) 20 or (3) must comply with the requirement, unless the person has a 21 reasonable excuse. 22 Penalty: 23 (a) for an individual -- $10,000; or 24 (b) for a body corporate -- $50,000. 25 (3) It is a reasonable excuse for an individual not to comply with a 26 requirement under section 70(2)(f) or (g)that complying with the 27 requirement might tend to incriminate the individual. 28 Division 3 -- Power to stop and search vehicles 29 72. Division applies only to certain licensed occupations 30 This Division applies only in relation to a licensed occupation that is 31 prescribed as being a relevant occupation for the purposes of this 32 Division. page 46 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Monitoring and enforcement Part 4 cl. 73 1 73. Power to stop and search vehicles 2 (1) An authorised officer may enter a vehicle and exercise the powers set 3 out in section 70(2) if -- 4 (a) the authorised officer is investigating whether work being 5 carried out under a licence has been, or is being, carried out 6 in accordance with this Law or a prescribed Act; or 7 (b) the authorised officer suspects on reasonable grounds that -- 8 (i) the vehicle is being, or has been, used in the 9 commission of an offence against this Law or a 10 prescribed Act in relation to a relevant occupation; or 11 (ii) the vehicle, or anything on or in the vehicle, may 12 afford evidence of the commission of an offence 13 against this Law or a prescribed Act in relation to a 14 relevant occupation. 15 (2) The authorised officer may enter the vehicle and exercise the powers 16 with necessary and reasonable help and force, and without consent or 17 a warrant. 18 (3) Without limiting subsection (2), the authorised officer may require the 19 driver of the vehicle or the person otherwise in control of the 20 vehicle -- 21 (a) to give the authorised officer reasonable help to enable the 22 vehicle to be entered; or 23 (b) to bring the vehicle to a specified place and remain in control 24 of the vehicle to enable the authorised officer to exercise the 25 authorised officer's powers in relation to the vehicle. 26 (4) A person must not, without reasonable excuse, contravene a 27 requirement under subsection (3). 28 Penalty: $10,000. 29 (5) If the vehicle is moving or about to move the authorised officer may 30 signal the driver of the vehicle to stop or not to move the vehicle. 31 (6) A person must not, without reasonable excuse, disobey a signal under 32 subsection (5). 33 Penalty: $10,000. page 47 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 4 Monitoring and enforcement cl. 74 1 (7) It is a reasonable excuse for the person to fail to stop or to move the 2 vehicle if -- 3 (a) to immediately obey the signal would have endangered, or 4 damaged the property of, the person or another person; and 5 (b) the person obeys the signal as soon as it is practicable to obey 6 the signal. 7 Division 4 -- Power to seize evidence 8 74. Seizing evidence at place entered with consent or warrant 9 (1) If an authorised officer enters a place with the consent of the occupier 10 or person in control of the place, the authorised officer may seize a 11 thing at the place if -- 12 (a) the authorised officer reasonably believes the thing is 13 evidence that is relevant to the investigation being conducted 14 by the authorised officer; and 15 (b) seizing the thing is consistent with the purpose of the entry as 16 told to the occupier or person in control when asking for the 17 occupier's or person in control's consent. 18 (2) If an authorised officer enters a place with a warrant, the authorised 19 officer may seize the evidence for which the warrant was issued. 20 (3) For the purposes of subsections (1) and (2), the authorised officer may 21 also seize anything else at the place if the authorised officer 22 reasonably believes -- 23 (a) the thing is evidence that is relevant to the investigation; and 24 (b) seizing the thing is necessary to prevent the thing being 25 hidden, lost or destroyed. 26 75. Seizing evidence from other places 27 (1) This section applies if an authorised officer does any of the following 28 without consent or a warrant -- 29 (a) enters a place during times when prescribed work is being 30 carried out at the place; 31 (b) enters a public place when the place is open to the public; 32 (c) enters a vehicle. page 48 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Monitoring and enforcement Part 4 cl. 76 1 (2) The authorised officer may seize a thing at the place, or on or in the 2 vehicle, if the authorised officer reasonably believes the thing is 3 evidence that is relevant to the investigation being conducted by the 4 authorised officer. 5 76. Securing evidence 6 (1) Having seized a thing, an authorised officer may -- 7 (a) move the thing from the place where it was seized; or 8 (b) leave the thing at the place where it was seized but -- 9 (i) take reasonable action to restrict access, or prevent or 10 mitigate damage, to it; or 11 (ii) direct the person the authorised officer reasonably 12 believes is in control of the seized thing to take 13 reasonable action to restrict access, or prevent or 14 mitigate damage, to it; or 15 (iii) for equipment, make it inoperable, or direct the 16 person the authorised officer reasonably believes is in 17 control of the thing to make it inoperable. 18 (2) A person to whom a direction is given under subsection (1)(b)(ii) 19 or (iii) must comply with the direction. 20 Penalty: $10,000. 21 77. Tampering with seized things 22 (1) If an authorised officer or a person acting at the officer's direction 23 restricts access to a seized thing, a person must not tamper or attempt 24 to tamper with it, or something restricting access to it, without an 25 authorised officer's approval. 26 Penalty: $25,000. 27 (2) If an authorised officer or a person acting at the officer's direction 28 makes a seized thing inoperable, a person must not tamper or attempt 29 to tamper with the thing, without an authorised officer's approval. 30 Penalty: $25,000. page 49 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 4 Monitoring and enforcement cl. 78 1 78. Receipt for seized things 2 (1) As soon as practicable after an authorised officer seizes a thing, the 3 authorised officer must give a receipt for it to the person from whom 4 it was seized. 5 (2) However, if for any reason it is not practicable to comply with 6 subsection (1), the authorised officer must leave the receipt at the 7 place where it was seized in a conspicuous position and in a 8 reasonably secure way. 9 (3) The receipt must describe generally the seized thing and its condition. 10 (4) This section does not apply to a thing if it is impracticable or would 11 be unreasonable to give the receipt given the thing's nature, condition 12 and value. 13 79. Forfeiture of seized thing 14 (1) A seized thing is forfeited to the Licensing Authority if the 15 Authority -- 16 (a) cannot find its owner, after making reasonable inquiries; or 17 (b) cannot return it to its owner, after making reasonable efforts. 18 (2) In applying subsection (1) -- 19 (a) subsection (1)(a) does not require the Licensing Authority to 20 make inquiries if it would be unreasonable to make inquiries 21 to find the owner; and 22 (b) subsection (1)(b) does not require the Licensing Authority to 23 make efforts if it would be unreasonable to make efforts to 24 return the thing to its owner. 25 (3) Regard must be had to a thing's nature, condition and value in 26 deciding -- 27 (a) whether it is reasonable to make inquiries or efforts; and 28 (b) if making inquiries or efforts, what inquiries or efforts, 29 including the period over which they are made, are 30 reasonable. page 50 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Monitoring and enforcement Part 4 cl. 80 1 80. Dealing with forfeited things 2 (1) On the forfeiture of a thing to the Licensing Authority, the thing 3 becomes the Authority's property and may be dealt with by the 4 Authority as the Authority considers appropriate. 5 (2) Without limiting subsection (1), the Licensing Authority may destroy 6 or dispose of the thing. 7 81. Return of seized things 8 If a seized thing has not been forfeited, the Licensing Authority must 9 immediately return the thing to its owner if the Authority is no longer 10 satisfied its continued retention as evidence is necessary. 11 82. Access to seized things 12 (1) Until a seized thing is forfeited or returned, the Licensing Authority 13 must allow its owner to inspect it and, if it is a document, to copy it. 14 (2) Subsection (1) does not apply if it is impracticable or would be 15 unreasonable to allow the inspection. 16 Division 5 -- General 17 83. Compensation 18 (1) A person may claim from the Licensing Authority the cost of 19 repairing or replacing property damaged because of the exercise or 20 purported exercise of a power under this Part by an authorised officer. 21 (2) Without limiting subsection (1), compensation may be claimed for 22 damage to property incurred in complying with a requirement made of 23 the person under this Part. 24 (3) Compensation is not payable for damage caused to the property of a 25 relevant person if the exercise or purported exercise of the power 26 under this Part by the authorised officer occurred in the course of an 27 investigation of the relevant person. 28 (4) Compensation may be claimed and ordered to be paid in a proceeding 29 brought in a court with jurisdiction for the recovery of the amount of 30 compensation claimed. page 51 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 4 Monitoring and enforcement cl. 84 1 (5) A court may order compensation to be paid only if it is satisfied it is 2 just to make the order in the circumstances of the particular case. 3 (6) The national regulations may provide for matters to which a court 4 may, must or must not have regard in deciding whether to make an 5 order under this section. 6 (7) In this section -- 7 relevant person means the following -- 8 (a) a licensee; 9 (b) a person, other than a licensee, who is or was carrying out 10 prescribed work; 11 (c) a person, other than a licensee, who is or was advertising or 12 holding out that he or she was licensed to carry out a licensed 13 occupation. 14 84. False or misleading information 15 A person must not, in relation to a licence or a licensed occupation, 16 state anything to an authorised officer that the person knows is false 17 or misleading in a material particular. 18 Penalty: 19 (a) for an individual -- $25,000; or 20 (b) for a body corporate -- $125,000. 21 85. False or misleading documents 22 (1) A person must not give an authorised officer a document containing 23 information the person knows is false or misleading in a material 24 particular. 25 Penalty: 26 (a) for an individual -- $25,000; or 27 (b) for a body corporate -- $125,000. 28 (2) Subsection (1) does not apply to a person who, when giving the 29 document -- 30 (a) informs the authorised officer, to the best of the person's 31 ability, how it is false or misleading; and page 52 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Reviews and Appeals Part 5 cl. 86 1 (b) gives the correct information to the authorised officer if the 2 person has, or can reasonably obtain, the correct information. 3 86. Obstructing authorised officers 4 (1) A person must not obstruct an authorised officer in the exercise of a 5 power, unless the person has a reasonable excuse. 6 Penalty: 7 (a) for an individual -- $25,000; or 8 (b) for a body corporate -- $125,000. 9 (2) If a person has obstructed an authorised officer and the authorised 10 officer decides to proceed with the exercise of the power, the 11 authorised officer must warn the person that -- 12 (a) it is an offence to obstruct the authorised officer, unless the 13 person has a reasonable excuse; and 14 (b) the authorised officer considers the person's conduct is an 15 obstruction. 16 (3) In this section -- 17 obstruct includes hinder and attempt to obstruct or hinder. 18 87. Impersonation of authorised officers 19 A person must not pretend to be an authorised officer. 20 Penalty: $25,000. 21 Part 5 -- Reviews and Appeals 22 Division 1 -- Preliminary 23 88. Definitions 24 In this Part -- 25 affected person, for a reviewable decision, means a person prescribed 26 by the national regulations as being a person who may apply for an 27 internal review of the reviewable decision. 28 reviewable decision means any of the following decisions made under 29 this Law -- 30 (a) a decision to refuse to grant a licence; page 53 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 5 Reviews and Appeals cl. 89 1 (b) a decision to refuse to renew or vary a licence; 2 (c) a decision to vary a licence at the Licensing Authority's 3 initiative; 4 (d) a decision to immediately suspend a licence; 5 (e) a decision by the Licensing Authority to take disciplinary 6 action against a licensee; 7 (f) a decision to revoke a licence; 8 (g) a decision to give a licensee, or a member of a class of 9 licensees, a direction under section 101; 10 (h) another decision prescribed by the national regulations as 11 being a decision for which a person may apply for an internal 12 review under this Part. 13 review decision see section 91. 14 reviewer means a person deciding an internal review of a reviewable 15 decision under this Part. 16 Division 2 -- Reviews 17 89. Applying for internal review 18 (1) An affected person for a reviewable decision may apply to the 19 Licensing Authority for an internal review of the decision. 20 (2) The application must be made within 28 days after the day the 21 affected person is given notice of the reviewable decision. 22 (3) The Licensing Authority may, at any time, extend the time for 23 applying for the internal review. 24 (4) The application for an internal review must be in writing and state 25 fully the grounds of the application. 26 90. Internal review 27 (1) An internal review must not be decided by -- 28 (a) the person who made the reviewable decision; or 29 (b) a person who holds a less senior position than that person. page 54 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Reviews and Appeals Part 5 cl. 91 1 (2) The reviewer must conduct the review on -- 2 (a) the material before the Licensing Authority that led to the 3 reviewable decision; and 4 (b) the reasons for the reviewable decision; and 5 (c) any other relevant material the reviewer allows. 6 (3) For the review, the reviewer must give the affected person a 7 reasonable opportunity to make written or oral representations to the 8 reviewer. 9 91. Review decision 10 (1) The reviewer must make a decision (the review decision) to -- 11 (a) confirm the reviewable decision; or 12 (b) amend the reviewable decision; or 13 (c) substitute another decision for the reviewable decision. 14 (2) If the review decision confirms the reviewable decision, for the 15 purpose of an appeal, the reviewable decision is taken to be the 16 review decision. 17 (3) If the review decision amends the reviewable decision, for the 18 purpose of an appeal, the reviewable decision as amended is taken to 19 be the review decision. 20 (4) If the review decision substitutes another decision for the reviewable 21 decision, for the purpose of an appeal, the substituted decision is 22 taken to be the review decision. 23 92. Notice of review decision 24 (1) The Licensing Authority must, as soon as practicable after the review 25 decision is made, give the affected person notice (the review notice) 26 of the review decision. 27 (2) If the review decision is not the decision sought by the affected 28 person, the review notice must also state the following -- 29 (a) the reasons for the decision; 30 (b) that the affected person may appeal against the decision in 31 accordance with the national regulations; 32 (c) how to appeal. page 55 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 5 Reviews and Appeals cl. 93 1 (3) If the Licensing Authority does not give the review notice within the 2 review period the Authority is taken to have made a review decision 3 confirming the reviewable decision. 4 (4) In this section -- 5 review period means -- 6 (a) the period ending 28 days after the application is made; or 7 (b) the period, ending not more than 56 days after the application 8 is made, agreed between the Authority and the affected 9 person. 10 Division 3 -- Appeals 11 93. Appellable decisions 12 (1) A person who has applied for an internal review of a reviewable 13 decision under Division 2 and is dissatisfied with the review decision 14 may appeal against the review decision to the relevant tribunal or 15 court for a participating jurisdiction. 16 (2) Also, the relevant tribunal or court for a participating jurisdiction may 17 deal with an appeal by a person against a reviewable decision if the 18 person did not apply for an internal review of the reviewable decision 19 under Division 2 but only if -- 20 (a) the relevant tribunal or court is satisfied -- 21 (i) the person was an affected person for the reviewable 22 decision; and 23 (ii) the person made a late application for the internal 24 review; and 25 (iii) the person dealing with the application unreasonably 26 refused to consider the application; and 27 (iv) the appeal was lodged within a reasonable time after 28 the making of the reviewable decision; or 29 (b) the relevant tribunal or court is satisfied -- 30 (i) the person was an affected person for the reviewable 31 decision; and page 56 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Ministerial Council Part 6 cl. 94 1 (ii) it is necessary for the relevant tribunal or court to 2 deal with the appeal to protect the applicant's 3 interests; and 4 (iii) the appeal was lodged within a reasonable time after 5 the making of the reviewable decision. 6 94. Proceedings and decision 7 (1) After hearing the matter, the relevant tribunal or court must -- 8 (a) confirm the review decision or reviewable decision; or 9 (b) amend the review decision or reviewable decision; or 10 (c) substitute another decision for the review decision or 11 reviewable decision. 12 (2) In substituting another decision for the review decision or reviewable 13 decision, the relevant tribunal or court has the same powers as the 14 entity that made the review decision or reviewable decision. 15 Part 6 -- Ministerial Council 16 95. Functions of Ministerial Council 17 The Ministerial Council is responsible for the effective 18 implementation and operation of the national licensing system. 19 96. Directions 20 (1) The Ministerial Council may give directions to the Licensing 21 Authority about the policies to be applied by the Licensing Authority 22 in exercising its functions. 23 (2) However, neither the Ministerial Council nor a Minister may give a 24 direction to the Licensing Authority about -- 25 (a) a particular person; or 26 (b) a particular application; or 27 (c) a particular disciplinary proceeding or disciplinary action. page 57 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 7 National Occupational Licensing Authority cl. 97 1 Part 7 -- National Occupational Licensing Authority 2 Division 1 -- Establishment, functions and powers 3 97. Establishment of Licensing Authority 4 (1) The National Occupational Licensing Authority is established. 5 (2) The Licensing Authority -- 6 (a) is a body corporate with perpetual succession; and 7 (b) has a common seal; and 8 (c) may sue and be sued in its corporate name. 9 (3) The Licensing Authority represents the State. 10 98. General powers of Licensing Authority 11 The Licensing Authority has all the powers of an individual and, in 12 particular, may -- 13 (a) enter into contracts; and 14 (b) acquire, hold, dispose of, and deal with, real and personal 15 property; and 16 (c) do anything necessary or convenient to be done in the 17 performance of its functions. 18 99. Functions of Licensing Authority 19 (1) The principal functions of the Licensing Authority are -- 20 (a) to develop policy about, and administer, the national 21 licensing system; and 22 (b) to provide advice to the Ministerial Council about matters 23 relating to the national licensing system. 24 (2) In exercising its functions, the Licensing Authority must have regard 25 to the objectives of the national licensing system set out in section 3. 26 (3) Without limiting subsection (1), the functions of the Licensing 27 Authority include the following -- 28 (a) to give effect to policy directions and other decisions made 29 by the Ministerial Council; page 58 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule National Occupational Licensing Authority Part 7 cl. 99 1 (b) to undertake reviews of legislation, and develop and review 2 policy matters, relating to occupational licensing and provide 3 advice to the Ministerial Council about matters arising out of 4 the reviews; 5 (c) to analyse, and prepare projections about, its budget and 6 provide the analysis and projections to the Ministerial 7 Council; 8 (d) to manage its resources in a way that ensures the national 9 licensing system is as efficient as possible; 10 (e) to review and make recommendations about any national 11 licensing fees provided for under this Law; 12 (f) to undertake research and consultation to support the 13 development, monitoring and maintenance of policy about -- 14 (i) the regulation of licensed occupations; and 15 (ii) the licensing of persons carrying out licensed 16 occupations; and 17 (iii) requirements relating to the conduct of licensees; 18 (g) to regulate the conduct of licensees; 19 (h) to prosecute persons who commit offences against this Law 20 or the national regulations; 21 (i) to keep up-to-date and publicly accessible national registers 22 of licensees; 23 (j) to develop, for approval by the Ministerial Council, measures 24 and processes for assessing its performance and to report on 25 the measures and processes to the Council; 26 (k) to advise the Ministerial Council on issues relevant to the 27 national licensing system; 28 (l) to liaise with participating jurisdictions in a way that is 29 transparent and provides for the sharing of information with 30 State or Territory entities, relevant jurisdictional regulators 31 and statutory bodies having functions in relation to licensed 32 occupations or licensees; 33 (m) to co-operate with any entity reviewing the national licensing 34 system; page 59 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 7 National Occupational Licensing Authority cl. 100 1 (n) to establish, as appropriate, committees and other 2 mechanisms to assist the Authority in performing its 3 functions. 4 100. Consultation 5 In exercising its functions in relation to reviewing legislation or 6 developing or reviewing policy matters about licensed occupations, 7 the Licensing Authority must, to the extent the Authority considers 8 reasonable in the circumstances, consult with -- 9 (a) stakeholders from relevant licensed occupations; and 10 (b) the community. 11 101. Directions 12 (1) The Licensing Authority may give a direction to a licensee, or a class 13 of licensees, about a matter relating to the way in which the licensee 14 or class of licensees carries out the licensed occupation. 15 (2) A direction must be given by written notice given to the licensee, or 16 each licensee who is a member of the class of licensees, the subject of 17 the direction. 18 102. Delegation 19 (1) The Licensing Authority may delegate any of its functions, other than 20 developing policy about the national licensing system, to -- 21 (a) an entity, or the chief executive of an entity or department of 22 government, of a participating jurisdiction nominated by the 23 member of the Ministerial Council that represents that 24 jurisdiction; or 25 (b) a member of the police force or police service of a 26 participating jurisdiction. 27 (2) The Licensing Authority may delegate any of its functions to the chief 28 executive officer or another member of the Authority's staff. 29 (3) An entity or chief executive to whom a function has been delegated 30 under subsection (1)(a) by the Licensing Authority may subdelegate 31 the function (including this power of subdelegation). page 60 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule National Occupational Licensing Authority Part 7 cl. 103 1 Division 2 -- Governing Board of Licensing Authority 2 Subdivision 1 -- Establishment and functions 3 103. National Occupational Licensing Board 4 (1) The Licensing Authority has a governing board known as the National 5 Occupational Licensing Board. 6 (2) The Licensing Board consists of not more than 10 members appointed 7 by the Ministerial Council. 8 (3) The members of the Licensing Board consist of -- 9 (a) one person appointed by the Ministerial Council as 10 Chairperson, being a person who is not a licensee or 11 otherwise involved in any licensed occupation; and 12 (b) 2 persons (jurisdictional regulator members) who are 13 jurisdictional regulators or members of the staff of 14 jurisdictional regulators, nominated by the chief executives of 15 First Ministers' Departments; and 16 (c) other persons the Ministerial Council considers have 17 appropriate skills or experience in unions, employer 18 representation, consumer advocacy or training. 19 (4) In appointing members of the Licensing Board, the Ministerial 20 Council must have regard to the need for the Board to have an 21 appropriate balance of skills and expertise among its members. 22 104. Functions of Licensing Board 23 (1) The affairs of the Licensing Authority are to be controlled by the 24 Licensing Board. 25 (2) All acts and things done in the name of, or on behalf of, the Licensing 26 Authority by or with the authority of the Licensing Board are taken to 27 have been done by the Licensing Authority. 28 (3) The Licensing Board must ensure the Licensing Authority performs 29 its functions in a proper, effective and efficient way. 30 (4) The Licensing Board has any other functions given to the Licensing 31 Board by or under this Law. page 61 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 7 National Occupational Licensing Authority cl. 105 1 Subdivision 2 -- Members 2 105. Terms of office of members 3 (1) Subject to this Division, a member holds office -- 4 (a) for a jurisdictional regulator member, for 2 years; and 5 (b) otherwise, for the period, not more than 3 years, specified in 6 the member's instrument of appointment. 7 (2) If otherwise qualified, a member is eligible for reappointment. 8 106. Remuneration 9 (1) A member, other than a jurisdictional regulator member, is entitled to 10 be paid the remuneration and allowances decided by the remuneration 11 tribunal from time to time. 12 (2) In this section -- 13 remuneration tribunal means a tribunal prescribed by the national 14 regulations. 15 107. Vacancy in office of member 16 (1) The office of a member becomes vacant if the member -- 17 (a) completes a term of office; or 18 (b) resigns the office by signed notice given to the Chairperson 19 of the Ministerial Council; or 20 (c) is removed from office by the Chairperson of the Ministerial 21 Council under this section; or 22 (d) is absent, without leave first being granted by the Licensing 23 Board, from 3 or more consecutive meetings of the Board of 24 which reasonable notice has been given to the member 25 personally or by post; or 26 (e) dies. 27 (2) The Chairperson of the Ministerial Council may remove a member 28 from office if -- 29 (a) the member has been found guilty of an offence (whether in a 30 participating jurisdiction or elsewhere) that, in the opinion of page 62 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule National Occupational Licensing Authority Part 7 cl. 108 1 the Chairperson of the Ministerial Council, renders the 2 member unfit to continue to hold the office of member; or 3 (b) the member becomes bankrupt, applies to take the benefit of 4 any law for the relief of bankrupt or insolvent debtors, 5 compounds with member's creditors or makes an assignment 6 of member's remuneration for their benefit; or 7 (c) the Licensing Board recommends the removal of the member, 8 on the basis that the member has engaged in misconduct or 9 has failed or is unable to properly exercise the member's 10 functions as a member. 11 108. Vacancies to be advertised 12 (1) Before the Ministerial Council appoints a member of the Licensing 13 Board, other than a jurisdictional regulator member, the vacancy to be 14 filled is to be publicly advertised. 15 (2) It is not necessary to advertise a vacancy in the membership of the 16 Licensing Board before appointing a person to act in the office of a 17 member. 18 109. Extension of term of office during vacancy in membership 19 (1) If the office of a member becomes vacant because the member has 20 completed the member's term of office, the member is taken to 21 continue to be a member during that vacancy until the date on which 22 the vacancy is filled, whether by re-appointment of the member or 23 appointment of a successor to the member. 24 (2) However, this section ceases to apply to the member if -- 25 (a) the member resigns the member's office by signed notice 26 given to the Chairperson of the Ministerial Council; or 27 (b) the Chairperson of the Ministerial Council decides the 28 services of the member are no longer required. 29 (3) The maximum period for which a member is taken to continue to be a 30 member under this section after completion of the member's term of 31 office is 6 months. page 63 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 7 National Occupational Licensing Authority cl. 110 1 110. Members to act in public interest 2 A member of the Licensing Board is to act impartially and in the 3 public interest in the exercise of the member's functions as a member. 4 111. Disclosure of conflict of interest 5 (1) If -- 6 (a) a member has a direct or indirect pecuniary or other interest 7 in a matter being considered or about to be considered at a 8 meeting of the Licensing Board; and 9 (b) the interest appears to raise a conflict with the proper 10 performance of the member's duties in relation to the 11 consideration of the matter -- 12 the member must, as soon as possible after the relevant facts have 13 come to the member's knowledge, disclose the nature of the interest at 14 a meeting of the Board. 15 (2) Particulars of any disclosure made under this section must be recorded 16 by the Licensing Board in a register of interests kept for the purpose. 17 (3) After a member has disclosed the nature of an interest in any matter, 18 the member must not, unless the Ministerial Council or the Licensing 19 Board otherwise decides -- 20 (a) be present during any deliberation of the Board with respect 21 to the matter; or 22 (b) take part in any decision of the Board with respect to the 23 matter. 24 (4) For the purposes of the making of a decision by the Licensing Board 25 under subsection (3), a member who has a direct or indirect pecuniary 26 or other interest in a matter to which the disclosure relates must not -- 27 (a) be present during any deliberation of the Board for the 28 purpose of making the decision; or 29 (b) take part in the making by the Board of the decision. 30 (5) A contravention of this section does not invalidate any decision of the 31 Licensing Board but if the Board becomes aware a member of the 32 Board contravened this section the Board must reconsider any page 64 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule National Occupational Licensing Authority Part 7 cl. 112 1 decision made by the Board in which the member took part in 2 contravention of this section. 3 Subdivision 3 -- Meetings 4 112. General procedure 5 The procedure for the calling of meetings of the Licensing Board and 6 for the conduct of business at the meetings is, subject to this Law, to 7 be decided by the Board. 8 113. Quorum 9 The quorum for a meeting of the Licensing Board is a majority of its 10 members. 11 114. Chief executive officer may attend meetings 12 (1) The chief executive officer may attend meetings of the Board and 13 participate in discussions of the Board, but is not entitled to be present 14 during the consideration by the Board of any matter in which the chief 15 executive officer has a direct personal interest. 16 (2) The chief executive officer is not entitled to vote at a meeting. 17 115. Presiding member 18 (1) The Chairperson is to preside at a meeting of the Board. 19 (2) However, in the absence of the Chairperson the following person is to 20 preside at a meeting of the Licensing Board -- 21 (a) if the Chairperson has nominated another person who is 22 present at the meeting to preside at the meeting, that person; 23 (b) otherwise, a person elected by the members of the Licensing 24 Board who are present at the meeting. 25 (3) The presiding member has a deliberative vote and, in the event of an 26 equality of votes, has a second or casting vote. 27 116. Voting 28 A decision supported by a majority of the votes cast at a meeting of 29 the Licensing Board at which a quorum is present is the decision of 30 the Board. page 65 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 7 National Occupational Licensing Authority cl. 117 1 117. First meeting 2 The Chairperson may call the first meeting of the Licensing Board in 3 any manner the Chairperson thinks fit. 4 118. Defects in appointment of members 5 A decision of the Licensing Board is not invalidated by any defect or 6 irregularity in the appointment of any member of the Board. 7 Division 3 -- Chief executive officer 8 119. Chief executive officer 9 (1) There is to be a chief executive officer of the Licensing Authority. 10 (2) The chief executive officer is to be appointed by the Licensing Board 11 with the approval of the Ministerial Council. 12 (3) The chief executive officer is to be appointed for a period, not more 13 than 5 years, specified in the officer's instrument of appointment. 14 (4) The chief executive officer is eligible for re-appointment. 15 (5) The chief executive officer is taken, while holding that office, to be a 16 member of the staff of the Licensing Authority. 17 120. Functions of chief executive officer 18 The chief executive officer -- 19 (a) is responsible for the day to day management of the 20 Licensing Authority; and 21 (b) has any other functions conferred on the chief executive 22 officer by the Licensing Board. 23 Division 4 -- Staff 24 121. Staff 25 (1) The Licensing Authority may, for the purpose of exercising its 26 functions, employ staff. 27 (2) The staff of the Licensing Authority are to be employed on the terms 28 and conditions prescribed by the national regulations. page 66 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule National Occupational Licensing Authority Part 7 cl. 122 1 122. Staff seconded to Licensing Authority 2 The Licensing Authority may make arrangements for the services of a 3 person who is a member of the staff of a government agency of a 4 participating jurisdiction or the Commonwealth to be made available 5 to the Licensing Authority in connection with the exercise of its 6 functions. 7 Division 5 -- Authorised officers 8 123. Powers of authorised officers 9 (1) An authorised officer has the powers given by this Law. 10 (2) In exercising the powers, the authorised officer is subject to the 11 directions of the Licensing Authority. 12 124. Functions of authorised officer 13 An authorised officer has the following functions -- 14 (a) to enforce this Law; 15 (b) to monitor compliance with this Law; 16 (c) to determine whether work being carried out under a licence 17 has been, or is being, carried out in accordance with this Law 18 or a prescribed Act. 19 125. Appointment of authorised officers 20 (1) The Licensing Authority may appoint any of the following persons as 21 an authorised officer -- 22 (a) a member of the Licensing Authority's staff; 23 (b) an employee of a jurisdictional regulator; 24 (c) a member of the police force or police service of a 25 participating jurisdiction; 26 (d) a person prescribed for the purposes of this section by the 27 national regulations; 28 (e) a person who is a member of a class of persons prescribed for 29 the purposes of this section by the national regulations. page 67 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 7 National Occupational Licensing Authority cl. 126 1 (2) The Licensing Authority may appoint a person as an authorised 2 officer only if satisfied the person is qualified for appointment 3 because the person has the necessary expertise or experience. 4 126. Appointment conditions and limits on powers 5 (1) An authorised officer holds office on the conditions -- 6 (a) stated in the authorised officer's instrument of appointment; 7 or 8 (b) stated in a notice given by the Licensing Authority to the 9 authorised officer; or 10 (c) prescribed by the national regulations. 11 (2) The instrument of appointment, a notice given by the Licensing 12 Authority or the national regulations may limit the authorised 13 officer's powers under this Law. 14 127. Identity card 15 (1) The Licensing Authority must issue an identity card to each 16 authorised officer. 17 (2) The identity card must -- 18 (a) contain a recent photograph of the authorised officer; and 19 (b) contain a copy of the authorised officer's signature; and 20 (c) identify the person as an authorised officer under this Law; 21 and 22 (d) include an expiry date. 23 (3) This section does not prevent the issue of a single identity card to a 24 person for this Law and other Acts. 25 128. Production and display of identity card 26 (1) An authorised officer may exercise a power in relation to someone 27 else (the other person) only if the authorised officer -- 28 (a) first produces the authorised officer's identity card for the 29 other person's inspection; or 30 (b) has the identity card displayed so it is clearly visible to the 31 other person. page 68 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule National Occupational Licensing Authority Part 7 cl. 129 1 (2) However, if for any reason it is not practicable to comply with 2 subsection (1) before exercising the power, the authorised officer 3 must produce the identity card for the other person's inspection at the 4 first reasonable opportunity. 5 129. When authorised officer ceases to hold office 6 (1) An authorised officer ceases to hold office if any of the following 7 occurs -- 8 (a) the term of office stated in a condition of office ends; 9 (b) under another condition of office, the authorised officer 10 ceases to hold office; 11 (c) the authorised officer's resignation takes effect. 12 (2) Subsection (1) does not limit the ways an authorised officer may 13 cease to hold office. 14 130. Resignation 15 An authorised officer may resign by signed notice given to the 16 Licensing Authority. 17 131. Return of identity card 18 A person who ceases to be an authorised officer must return the 19 person's identity card to the Licensing Authority within 7 days after 20 ceasing to be an authorised officer, unless the person has a reasonable 21 excuse. 22 Penalty: $5,000. 23 Division 6 -- Occupational Licence Advisory Committees 24 132. Establishment of Advisory Committee 25 The Licensing Authority must establish an Occupational Licence 26 Advisory Committee for each licensed occupation. page 69 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 7 National Occupational Licensing Authority cl. 133 1 133. Function of Advisory Committee 2 The function of an Advisory Committee is to give advice to the 3 Licensing Authority about -- 4 (a) the development, maintenance and performance of licensing 5 policy in relation to the licensed occupation for which the 6 Advisory Committee is established; and 7 (b) any other matter referred to the Advisory Committee by the 8 Licensing Authority. 9 134. Membership and procedures of Advisory Committee 10 (1) An Advisory Committee is to consist of the members appointed in 11 writing by the Licensing Board. 12 (2) Before appointing members of an Advisory Committee, the Licensing 13 Authority must invite nominations for membership of the Advisory 14 Committee from -- 15 (a) national peak bodies who represent the licensed occupation; 16 or 17 (b) if there is not a national peak body that represents the 18 licensed occupation, another peak body that represents the 19 licensed occupation. 20 (3) Without limiting subsection (2), peak bodies include the following -- 21 (a) unions and employer bodies; 22 (b) occupational professional associations; 23 (c) consumer advocacy organisations; 24 (d) bodies that regulate the licensed occupation; 25 (e) if relevant, peak insurance bodies; 26 (f) bodies involved in the national training system. 27 (4) In appointing members to an Advisory Committee, the Licensing 28 Board must have regard to the need for the Advisory Committee to 29 have a balance of expertise relevant to the licensed occupation 30 including in relation to the following areas -- 31 (a) regulation of the licensed occupation; 32 (b) occupational operations and practices, including from a union 33 and employer perspective; page 70 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Information and privacy Part 8 cl. 135 1 (c) workplace health and safety; 2 (d) consumer advocacy; 3 (e) training; 4 (f) if relevant, insurance. 5 (5) The national regulations may provide for -- 6 (a) the appointment of members of Advisory Committees; and 7 (b) the procedures of Advisory Committees. 8 Part 8 -- Information and privacy 9 Division 1 -- Privacy 10 135. Application of Commonwealth Privacy Act 11 (1) Subject to subsection (3), the Privacy Act applies as a law of a 12 participating jurisdiction for the purposes of the national licensing 13 system. 14 (2) However, the Privacy Act does not apply to the national licensing 15 system to the extent that functions, other than functions relating to the 16 national registers, are being exercised under this Law by a State or 17 Territory entity. 18 (3) The national regulations may modify the Privacy Act for the purposes 19 of this Law. 20 (4) Without limiting subsection (3), the national regulations may -- 21 (a) provide that the Privacy Act applies as if a provision of the 22 Privacy Act specified in the national regulations were 23 omitted; or 24 (b) provide that the Privacy Act applies as if an amendment to 25 the Privacy Act made by a law of the Commonwealth, and 26 specified in the national regulations, had not taken effect; or 27 (c) confer jurisdiction on a tribunal or court of a participating 28 jurisdiction. 29 (5) In this section -- 30 Privacy Act means the Privacy Act 1988 of the Commonwealth, as in 31 force from time to time. page 71 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 8 Information and privacy cl. 136 1 Division 2 -- Disclosure of information and confidentiality 2 136. Definition 3 In this Division -- 4 protected information means information that comes to a person's 5 knowledge in the course of, or because of, the person exercising 6 functions under this Law or a prescribed Act. 7 137. Application of Commonwealth FOI Act 8 (1) Subject to subsection (3), the FOI Act applies as a law of a 9 participating jurisdiction for the purposes of the national licensing 10 system. 11 (2) However, the FOI Act does not apply to the national licensing system 12 to the extent that functions are being exercised under this Law by a 13 State or Territory entity. 14 (3) The national regulations may modify the FOI Act for the purposes of 15 this Law. 16 (4) Without limiting subsection (3), the national regulations may -- 17 (a) provide that the FOI Act applies as if a provision of the FOI 18 Act specified in the national regulations were omitted; or 19 (b) provide that the FOI Act applies as if an amendment to the 20 FOI Act made by a law of the Commonwealth, and specified 21 in the national regulations, had not taken effect; or 22 (c) confer jurisdiction on a tribunal or court of a participating 23 jurisdiction. 24 (5) In this section -- 25 FOI Act means the Freedom of Information Act 1982 of the 26 Commonwealth, as in force from time to time. 27 138. Duty of confidentiality 28 (1) A person who is, or has been, a person exercising functions under this 29 Law must not disclose to another person protected information. 30 Penalty: 31 (a) for an individual -- $25,000; or page 72 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Information and privacy Part 8 cl. 139 1 (b) for a body corporate -- $125,000. 2 (2) However, subsection (1) does not apply if -- 3 (a) the information is disclosed in the exercise of a function 4 under, or for the purposes of, this Law; or 5 (b) the disclosure is authorised or required by any law of a 6 participating jurisdiction; or 7 (c) the disclosure is otherwise required or permitted by law; or 8 (d) the disclosure is with the agreement of the person to whom 9 the information relates; or 10 (e) the disclosure is in a form that does not identify the identity 11 of a person; or 12 (f) the information relates to proceedings before a court or 13 tribunal and the proceedings are or were open to the public; 14 or 15 (g) the disclosure is the publication of information about 16 disciplinary action taken against persons under this Law or 17 the national regulations or the conviction of persons for 18 offences against this Law or the national regulations and the 19 publication is in accordance with the national regulations; or 20 (h) the information is, or has been, accessible to the public, 21 including because it is or was recorded in a national register; 22 or 23 (i) the disclosure is to a prescribed entity or is otherwise 24 authorised by the national regulations. 25 139. Disclosure to jurisdictional regulators and other Commonwealth, 26 State and Territory entities 27 A person exercising functions under this Law may disclose protected 28 information to any of the following entities if the disclosure is in 29 connection with functions exercised by that entity -- 30 (a) a jurisdictional regulator; 31 (b) another Commonwealth, State or Territory entity. page 73 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 8 Information and privacy cl. 140 1 Division 3 -- Registers and other records 2 140. National Registers and records 3 (1) The Licensing Authority must keep the national registers and other 4 records required by the national regulations. 5 (2) Without limiting subsection (1), the national regulations may provide 6 for -- 7 (a) the information that must be collected and recorded by the 8 Licensing Authority about licensees; and 9 (b) the information that is to be included in public registers about 10 licensees; and 11 (c) the way the public registers are to be kept; and 12 (d) the inspection of the public registers by members of the 13 public; and 14 (e) the publication of information included in public registers. 15 141. Application of Commonwealth Archives Act 16 (1) Subject to subsection (3), the Archives Act applies as a law of a 17 participating jurisdiction for the purposes of the national licensing 18 system. 19 (2) However, the Archives Act does not apply to the national licensing 20 system to the extent that functions are being exercised under this Law 21 by a State or Territory entity. 22 (3) The national regulations may modify the Archives Act for the 23 purposes of this Law. 24 (4) Without limiting subsection (3), the national regulations may -- 25 (a) provide that the Archives Act applies as if a provision of the 26 Archives Act specified in the national regulations were 27 omitted; or 28 (b) provide that the Archives Act applies as if an amendment to 29 the Archives Act made by a law of the Commonwealth, and 30 specified in the national regulations, had not taken effect; or 31 (c) confer jurisdiction on a tribunal or court of a participating 32 jurisdiction. page 74 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous Part 9 cl. 142 1 (5) In this section -- 2 Archives Act means the Archives Act 1983 of the Commonwealth, as 3 in force from time to time. 4 Part 9 -- Miscellaneous 5 Division 1 -- Finance 6 142. National Occupational Licensing Authority Fund 7 (1) The National Occupational Licensing Authority Fund is established. 8 (2) The Authority Fund is a fund to be administered by the Licensing 9 Authority. 10 (3) The Licensing Authority may establish accounts with any financial 11 institution for money in the Authority Fund. 12 (4) The Authority Fund does not form part of the consolidated fund or 13 consolidated account of a participating jurisdiction or the 14 Commonwealth. 15 143. Payments into Authority Fund 16 There is payable into the Authority Fund -- 17 (a) all money appropriated by the Parliament of any participating 18 jurisdiction or the Commonwealth for the purposes of the 19 Fund; and 20 (b) the proceeds of the investment of money in the Fund; and 21 (c) all grants, gifts and donations made to the Licensing 22 Authority, but subject to any trusts declared in relation to the 23 grants, gifts or donations; and 24 (d) all money directed or authorised to be paid into the Fund by 25 or under this Law, any law of a participating jurisdiction or 26 any law of the Commonwealth; and 27 (e) any other money or property prescribed by the national 28 regulations; and 29 (f) any other money or property received by the Licensing 30 Authority in connection with the exercise of its functions. page 75 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 9 Miscellaneous cl. 144 1 144. Payments out of Authority Fund 2 Payments may be made from the Authority Fund for the purpose of -- 3 (a) paying any costs or expenses, or discharging any liabilities, 4 incurred in the administration or enforcement of this Law; 5 and 6 (b) any other payments recommended by the Licensing Authority 7 and approved by the Ministerial Council. 8 145. Investment by Licensing Authority 9 (1) The Licensing Authority must invest its funds in a way that is secure 10 and provides a low risk so that the Authority's exposure to the loss of 11 funds is minimised. 12 (2) The Licensing Authority must keep records that show it has invested 13 in a way that complies with subsection (1). 14 146. Financial management duties of Licensing Authority 15 The Licensing Authority must -- 16 (a) ensure its operations are carried out efficiently, effectively 17 and economically; and 18 (b) keep proper books and records in relation to the Authority 19 Fund; and 20 (c) ensure expenditure is made from the Authority Fund for 21 lawful purposes only and, as far as possible, that reasonable 22 value is expended from the Fund; and 23 (d) ensure its procedures, including internal control procedures, 24 afford adequate safeguards with respect to -- 25 (i) the correctness, regularity and propriety of payments 26 made from the Authority Fund; and 27 (ii) receiving and accounting for payments made to the 28 Authority Fund; and 29 (iii) prevention of fraud or mistake; and 30 (e) take any action necessary to ensure the preparation of 31 accurate financial statements in accordance with Australian 32 Accounting Standards for inclusion in its annual report; and 33 (f) take any action necessary to facilitate the audit of the 34 financial statements in accordance with this Law; and page 76 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous Part 9 cl. 147 1 (g) arrange for any further audit by a qualified person of the 2 books and records kept by the Licensing Authority, if 3 directed to do so by the Ministerial Council. 4 Division 2 -- Reporting and planning arrangements 5 147. Annual report 6 (1) The Licensing Authority must, within 3 months after the end of each 7 financial year, give the Ministerial Council an annual report for the 8 financial year. 9 (2) Despite subsection (1), the first annual report of the Licensing 10 Authority must -- 11 (a) relate to the period starting on 1 January 2011 and ending on 12 30 June 2012; and 13 (b) be made by 30 September 2012. 14 (3) The annual report must -- 15 (a) include for the period to which the report relates -- 16 (i) the financial statements that have been audited by an 17 auditor decided by the Ministerial Council; and 18 (ii) information about the consultation processes used by 19 the Licensing Authority in exercising its functions of 20 reviewing legislation and developing and reviewing 21 policy matters about licensed occupations; and 22 (iii) other matters required by the national regulations; 23 and 24 (b) be prepared in the way required by the national regulations. 25 (4) Without limiting subsection (3)(b), the national regulations may 26 provide -- 27 (a) that the financial statements are to be prepared in accordance 28 with Australian Accounting Standards; and 29 (b) for the auditing of the financial statements. 30 (5) The Ministerial Council is to make arrangements for the tabling of the 31 Licensing Authority's annual report in each House of the Parliament 32 of each participating jurisdiction. page 77 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 9 Miscellaneous cl. 148 1 (6) As soon as practicable after the annual report has been tabled in at 2 least one House of the Parliament of a participating jurisdiction, the 3 Licensing Authority must publish a copy of the report on its website. 4 (7) In this section -- 5 Australian Accounting Standards means Accounting Standards 6 issued by the Australian Accounting Standards Board. 7 148. Strategic and operational plans 8 (1) The Licensing Authority must prepare and give to the Ministerial 9 Council for approval by the Council -- 10 (a) a strategic plan for each 3-year period; and 11 (b) an annual operational plan. 12 (2) The strategic plan must be given to the Ministerial Council -- 13 (a) for the Licensing Authority's first strategic plan, within 14 6 months after the commencement of this section; and 15 (b) for subsequent strategic plans, not later than 6 months before 16 the preceding strategic plan is due to expire. 17 Division 3 -- Provisions relating to persons exercising functions under Law 18 149. General duties of persons exercising functions under this Law 19 (1) A person exercising functions under this Law must, when exercising 20 the functions, act honestly and with integrity. 21 (2) A person exercising functions under this Law must exercise the 22 person's functions under this Law -- 23 (a) in good faith; and 24 (b) with a reasonable degree of care, diligence and skill. 25 (3) A person exercising functions under this Law must not make 26 improper use of the person's position or of information that comes to 27 the person's knowledge in the course of, or because of, the person's 28 exercise of the functions -- 29 (a) to gain an advantage for himself or herself or another person; 30 or page 78 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous Part 9 cl. 150 1 (b) to cause a detriment to the development, implementation or 2 operation of the national licensing system. 3 Penalty: $25,000. 4 150. Application of Commonwealth Ombudsman Act 5 (1) Subject to subsection (3), the Ombudsman Act applies as a law of a 6 participating jurisdiction for the purposes of the national licensing 7 system. 8 (2) However, the Ombudsman Act does not apply to the national 9 licensing system to the extent that functions are being exercised under 10 this Law by a State or Territory entity. 11 (3) The national regulations may modify the Ombudsman Act for the 12 purposes of this Law. 13 (4) Without limiting subsection (3), the national regulations may -- 14 (a) provide that the Ombudsman Act applies as if a provision of 15 the Ombudsman Act specified in the national regulations 16 were omitted; or 17 (b) provide that the Ombudsman Act applies as if an amendment 18 to the Ombudsman Act made by a law of the Commonwealth 19 and specified in the national regulations, had not taken effect; 20 or 21 (c) confer jurisdiction on a tribunal or court of a participating 22 jurisdiction. 23 (5) In this section -- 24 Ombudsman Act means the Ombudsman Act 1976 of the 25 Commonwealth, as in force from time to time. 26 151. Protection from personal liability for persons exercising functions 27 (1) A person who is or was a protected person is not personally liable for 28 anything done or omitted to be done in good faith -- 29 (a) in the exercise of a function under this Law; or 30 (b) in the reasonable belief that the act or omission was the 31 exercise of a function under this Law. page 79 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 9 Miscellaneous cl. 152 1 (2) Any liability resulting from an act or omission that would, but for 2 subsection (1), attach to a protected person attaches instead to the 3 Licensing Authority. 4 (3) In this section -- 5 protected person means any of the following -- 6 (a) a member of the Licensing Board; 7 (b) a member of a committee of the Licensing Authority; 8 (c) a member of the staff of the Licensing Authority; 9 (d) an authorised officer; 10 (e) a person to whom the Licensing Authority has delegated any 11 of its functions; 12 (f) a person to whom an entity, or the chief executive of an entity 13 or department of government, of a participating jurisdiction 14 has subdelegated a function delegated to the chief executive 15 by the Licensing Authority; 16 (g) a member of the staff of an entity or department referred to in 17 paragraph (f); 18 (h) a person acting under the authority or direction of a person 19 referred to in paragraphs (a) to (g). 20 Division 4 -- Legal proceedings 21 152. Limitation on time for starting proceedings 22 A proceeding for an offence against this Law or the national 23 regulations must start within 6 years after the commission of the 24 offence. 25 153. Evidentiary certificates 26 (1) A certificate purporting to be signed by the chief executive officer of 27 the Licensing Authority and stating any of the following matters is 28 prima facie evidence of the matter -- 29 (a) a stated document is one of the following things made, given, 30 issued or kept under this Law -- 31 (i) an appointment or decision; 32 (ii) a notice, direction or requirement; page 80 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous Part 9 cl. 154 1 (iii) a licence; 2 (iv) a register, or an extract from a register; 3 (v) a record, or an extract from a record; 4 (b) a stated document is another document kept under this Law; 5 (c) a stated document is a copy of a document referred to in 6 paragraph (a) or (b); 7 (d) on a stated day, or during a stated period, a stated person was 8 or was not a licensee; 9 (e) on a stated day, or during a stated period, a licence was or 10 was not subject to a stated condition or undertaking; 11 (f) on a stated day, a licence was suspended or cancelled; 12 (g) on a stated day, or during a stated period, an appointment as 13 an authorised officer was or was not in force for a stated 14 person; 15 (h) on a stated day, a stated person was given a stated notice or 16 direction under this Law; 17 (i) on a stated day, a stated requirement was made of a person. 18 (2) If functions are being exercised under this Law by a State or Territory 19 entity, a certificate purporting to be signed by any of the following, 20 and stating any of the matters referred to in subsection (1), is prima 21 facie evidence of the matter -- 22 (a) if there is a chief executive of the entity, the chief executive; 23 (b) if there is no chief executive of the entity but there is a 24 chairperson (however described) of the entity, the 25 chairperson; 26 (c) otherwise, a member of the entity. 27 Division 5 -- Miscellaneous 28 154. Approved forms 29 (1) The Licensing Authority may approve forms for use under this Law. 30 (2) The approval of a form must be notified on the Licensing Authority's 31 website. page 81 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 9 Miscellaneous cl. 155 1 155. Extrinsic materials 2 The COAG Agreement is declared to be extrinsic material for the 3 purposes of paragraph (h) of the definition of extrinsic material in 4 section 8(1) of Schedule 1. 5 156. References to laws includes references to instruments made under 6 laws 7 (1) In this Law, a reference (either generally or specifically) to a law or a 8 provision of a law (including this Law) includes a reference to the 9 statutory instruments made or in force under the law or the provision. 10 (2) In this section -- 11 law means a law of the Commonwealth or a State or Territory. 12 157. Service of documents 13 (1) If this Law or the national regulations require or permit a document to 14 be served on a person, the document may be served by -- 15 (a) on an individual -- 16 (i) delivering it to the person personally; or 17 (ii) leaving it at, or by sending it by post to, the address 18 of the place of residence or business of the person last 19 known to the person serving the document; or 20 (iii) sending it by facsimile transmission to a facsimile 21 number notified to the sender by the individual as an 22 address at which service of notices under this Law 23 will be accepted; or 24 (iv) sending it by email to an internet address notified to 25 the sender by the individual as an address at which 26 service of notices under this Law will be accepted; or 27 (b) on a body corporate -- 28 (i) leaving it at, or sending it by post to, the head office, 29 a registered office or the principal place of business 30 of the body corporate; or 31 (ii) sending it by facsimile transmission to a facsimile 32 number notified to the sender by the body corporate page 82 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous Part 9 cl. 158 1 as an address at which service of notices under this 2 Law will be accepted; or 3 (iii) sending it by email to an internet address notified to 4 the sender by the body corporate as an address at 5 which service of notices under this Law will be 6 accepted. 7 (2) Subsection (1) applies whether the word 'deliver', 'give', 'notify', 8 'send' or 'serve' or another expression is used. 9 (3) Subsection (1) does not affect the power of a court or tribunal to 10 authorise service of a document otherwise than as provided in that 11 subsection. 12 158. Service by post 13 If a document authorised or required to be served (whether the word 14 'deliver', 'give', 'notify', 'send' or 'serve' or another expression is 15 used) on a person is served by post, service of the document -- 16 (a) may be effected by properly addressing, prepaying and 17 posting a letter containing the document; and 18 (b) in Australia or in an external Territory -- is, unless evidence 19 sufficient to raise doubt is adduced to the contrary, taken to 20 have been effected on the fourth business day after the letter 21 was posted; and 22 (c) in another place -- is, unless evidence sufficient to raise 23 doubt is adduced to the contrary, taken to have been effected 24 at the time when the letter would have been delivered in the 25 ordinary course of post. 26 159. Review of Law 27 (1) The Ministerial Council is to conduct independent public reviews of 28 the operation of the national licensing system and this Law to 29 determine whether the system and the Law continue to comply with 30 the objectives and principles set out in clause 4 of the COAG 31 Agreement. 32 (2) The reviews are to be undertaken -- 33 (a) for the first review, as soon as possible after the period of 34 5 years from the date on which this Law commences in at 35 least one participating jurisdiction; and page 83 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 9 Miscellaneous cl. 160 1 (b) for subsequent reviews, at intervals of not more than 2 10 years. 3 (3) A report on the outcome of each review is to be tabled in each House 4 of the Parliament of each participating jurisdiction within 3 months 5 after the end of the review. 6 Division 6 -- Regulations 7 160. National regulations 8 (1) The Ministerial Council may make regulations for the purposes of this 9 Law. 10 (2) The regulations may provide for the following -- 11 (a) the occupations to which this Law is to apply; 12 (b) the licensing of persons carrying out licensed occupations; 13 (c) other matters relating to licences including -- 14 (i) applications for licences; and 15 (ii) the requirements to be satisfied by persons to be 16 eligible for a licence or to continue to hold a licence; 17 and 18 (iii) the granting of licences; and 19 (iv) the renewal, variation or surrender of licences; 20 (d) fees under this Law including -- 21 (i) the fees to be paid for applications made under this 22 Law for licences or the renewal or variation of a 23 licence; and 24 (ii) the refunding of fees; and 25 (iii) the waiver of fees; and 26 (iv) late fees and fees for dishonoured payments; 27 (e) arrangements for the publication of fees prescribed under 28 Acts of participating jurisdictions that relate to licensees or 29 licensed occupations; 30 (f) the conduct of licensees, including the making and adoption 31 of codes of practice applicable to licensees; page 84 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous Part 9 cl. 160 1 (g) matters relating to compliance with and enforcement of this 2 Law and the regulations, including, for example -- 3 (i) monitoring and auditing of licensees and work 4 undertaken by licensees; and 5 (ii) complaints about licensees or former licensees; and 6 (iii) the grounds on which licences are automatically 7 suspended or cancelled and other matters relating to 8 those suspensions or cancellations; and 9 (iv) the establishment of a demerit point scheme for 10 licensees; and 11 (v) the establishment of an infringement notice scheme 12 for persons who allegedly contravene this Law or the 13 regulations; and 14 (vi) other matters relating to disciplinary proceedings and 15 disciplinary action; 16 (h) matters relating to nominees for licences; 17 (i) matters relating to directors and members of licensees who 18 are bodies corporate, including -- 19 (i) the duties and obligations of directors and members; 20 and 21 (ii) matters relating to the liability of directors and 22 members; 23 (j) matters relating to persons who are employed or otherwise 24 engaged by licensees, including -- 25 (i) the duties and obligations of licensees in relation to 26 those persons; and 27 (ii) the duties and obligations of those persons; and 28 (iii) matters relating to vicarious liability for the actions of 29 those persons; 30 (k) matters relating to persons who are receivers, managers or 31 administrators appointed to carry out, wind up or otherwise 32 administer or operate businesses conducted by licensees or 33 persons whose licences have been suspended or cancelled, 34 including matters relating to the appointment of those persons 35 and the obligations and responsibilities of those persons in page 85 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 9 Miscellaneous cl. 160 1 carrying out, winding up or otherwise administering or 2 operating the businesses; 3 (l) matters relating to fidelity funds and indemnity funds held in 4 relation to licensees; 5 (m) matters relating to trust funds held by licensees; 6 (n) the payment of penalties and fines imposed under this Law, 7 including who the penalties and fines are to be paid to; 8 (o) the imposition of penalties, of not more than $5,000 for 9 individuals or $25,000 for bodies corporate, for a 10 contravention of a provision of the regulations; 11 (p) criteria or procedures to be used by the Licensing Authority 12 in developing policy about the national licensing system and 13 the admission of new occupations to the system; 14 (q) the publication of information about disciplinary action taken 15 against persons under this Law or the regulations or the 16 conviction of persons for offences against this Law or the 17 regulations; 18 (r) provisions of a savings or transitional nature -- 19 (i) consequent on the enactment of this Law in a 20 participating jurisdiction or the making of the 21 regulations under this Law; or 22 (ii) to otherwise allow or facilitate the change from the 23 operation of a law of a participating jurisdiction 24 relating to the licensing of persons carrying out 25 licensed occupations to the operation of this Law or 26 the regulations made under this Law; 27 (s) any other matter that is necessary or convenient to be 28 prescribed for carrying out or giving effect to this Law. 29 (3) Savings and transitional provisions consequent on the enactment of 30 this Law in a participating jurisdiction, or to allow or facilitate the 31 licensing of persons carrying out a licensed occupation in a 32 participating jurisdiction, may have retrospective operation to a day 33 not earlier than the participation day for that participating jurisdiction. page 86 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous Part 9 cl. 161 1 161. Regulations about licensing, registration and accreditation of 2 persons carrying out licensed occupations 3 (1) Without limiting section 160(2)(b), the national regulations may 4 provide for -- 5 (a) the different categories of licences, registration and 6 accreditation that may be granted for licensed occupations; 7 and 8 (b) the scope of work that may be carried out under the authority 9 of the different categories of licences, registration and 10 accreditation; and 11 (c) the different types of licences, registration and accreditation 12 that may be granted for licensed occupations; and 13 (d) the ways in which licensed occupations are to be carried out, 14 including, for example, the way in which work is to be 15 carried out under licences, registration and accreditation and 16 the records to be kept by persons who hold licences, 17 registration and accreditation. 18 (2) The national regulations may not provide for the licensing, 19 registration or accreditation of persons carrying out, in a participating 20 jurisdiction, prescribed work that is within the scope of a licensed 21 occupation if -- 22 (a) immediately before the occupation became a licensed 23 occupation for the participating jurisdiction under this Law, 24 persons carrying out that prescribed work in the participating 25 jurisdiction were not required to hold a licence, registration or 26 accreditation or be otherwise authorised to carry out the 27 work; and 28 (b) the Minister who is the member of the Ministerial Council 29 representing the participating jurisdiction has not agreed to 30 the making of the regulation. 31 162. Inclusion of new occupations in national regulations 32 (1) A regulation may be made prescribing an occupation as being a 33 licensed occupation only if the requirements of this section have been 34 satisfied. page 87 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 9 Miscellaneous cl. 163 1 (2) A participating jurisdiction that licences or proposes to licence an 2 occupation may make a nomination to the Ministerial Council that the 3 occupation should be a licensed occupation. 4 (3) If the Ministerial Council unanimously agrees that the occupation is to 5 be a licensed occupation a regulation may be made prescribing the 6 occupation as a licensed occupation. 7 (4) If a majority of the members of the Ministerial Council agrees that the 8 occupation is to be a licensed occupation, a regulation may be 9 made -- 10 (a) prescribing the occupation as a licensed occupation; and 11 (b) providing that the occupation is a licensed occupation only in 12 specified participating jurisdictions. 13 (5) A regulation made under subsection (4) must be reviewed by the 14 Ministerial Council at intervals of not more than 12 months. 15 (6) This section does not apply to an occupation referred to in clause 3.5 16 of the COAG agreement. 17 163. Publication of national regulations 18 (1) The national regulations are to be published on the NSW legislation 19 website in accordance with Part 6A of the Interpretation Act 1987 of 20 New South Wales. 21 (2) A regulation commences on the day or days specified in the 22 regulation for its commencement (being not earlier than the date it is 23 published). 24 164. Parliamentary scrutiny of national regulations 25 (1) The member of the Ministerial Council representing a participating 26 jurisdiction is to make arrangements for the tabling of a regulation 27 made under this Law in each House of the Parliament of the 28 participating jurisdiction. 29 (2) In addition, any other requirement of a law of a participating 30 jurisdiction relevant to the disallowance of a regulation in that 31 jurisdiction is to be complied with in that jurisdiction in relation to a 32 regulation made under this Law as if the regulation had been made 33 under an Act of that jurisdiction. page 88 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous Part 9 cl. 165 1 (3) A regulation made under this Law may be disallowed in a 2 participating jurisdiction by a House of the Parliament of that 3 jurisdiction in the same way, and within the same period, that a 4 regulation made under an Act of that jurisdiction may be disallowed. 5 (4) A regulation disallowed under subsection (3) does not cease to have 6 effect in the participating jurisdiction, or any other participating 7 jurisdiction, unless the regulation is disallowed in a majority of the 8 participating jurisdictions. 9 (5) If a regulation is disallowed in a majority of the participating 10 jurisdictions, it ceases to have effect in all participating jurisdictions 11 on the day of its disallowance in the last of the jurisdictions forming 12 the majority. 13 (6) In this section -- 14 regulation includes a provision of a regulation. 15 165. Effect of disallowance of national regulation 16 (1) The disallowance of a regulation in a majority of jurisdictions has the 17 same effect as a repeal of the regulation. 18 (2) If a regulation ceases to have effect under section 164 any law or 19 provision of a law repealed or amended by the regulation is revived as 20 if the disallowed regulation has not been made. 21 (3) The restoration or revival of a law under subsection (2) takes effect at 22 the beginning of the day on which the disallowed regulation by which 23 it was amended or repealed ceases to have effect. 24 (4) In this section -- 25 regulation includes a provision of a regulation. page 89 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 1 1 Schedule 1 -- Miscellaneous provisions relating 2 to interpretation 3 [section 5] 4 Part 1 -- Preliminary 5 1. Displacement of Schedule by contrary intention 6 The application of this Schedule may be displaced, wholly or partly, 7 by a contrary intention appearing in this Law. 8 Part 2 -- General 9 2. Law to be construed not to exceed legislative power of Legislature 10 (1) This Law is to be construed as operating to the full extent of, but so as 11 not to exceed, the legislative power of the Legislature of this 12 jurisdiction. 13 (2) If a provision of this Law, or the application of a provision of this 14 Law to a person, subject matter or circumstance, would, but for this 15 section, be construed as being in excess of the legislative power of the 16 Legislature of this jurisdiction -- 17 (a) it is a valid provision to the extent to which it is not in excess 18 of the power; and 19 (b) the remainder of this Law, and the application of the 20 provision to other persons, subject matters or circumstances, 21 is not affected. 22 (3) This section applies to this Law in addition to, and without limiting 23 the effect of, any provision of this Law. 24 3. Every section to be a substantive enactment 25 Every section of this Law has effect as a substantive enactment 26 without introductory words. 27 4. Material that is, and is not, part of this Law 28 (1) The heading to a Part, Division or Subdivision into which this Law is 29 divided is part of this Law. page 90 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 5 1 (2) A Schedule to this Law is part of this Law. 2 (3) Punctuation in this Law is part of this Law. 3 (4) A heading to a section or subsection of this Law does not form part of 4 this Law. 5 (5) Notes included in this Law (including footnotes and endnotes) do not 6 form part of this Law. 7 5. References to particular Acts and to enactments 8 In this Law -- 9 (a) an Act of this jurisdiction may be cited -- 10 (i) by its short title; or 11 (ii) by reference to the year in which it was passed and its 12 number; and 13 (b) a Commonwealth Act may be cited -- 14 (i) by its short title; or 15 (ii) in another way sufficient in a Commonwealth Act for 16 the citation of such an Act -- 17 together with a reference to the Commonwealth; and 18 (c) an Act of another jurisdiction may be cited -- 19 (i) by its short title; or 20 (ii) in another way sufficient in an Act of the jurisdiction 21 for the citation of such an Act -- 22 together with a reference to the jurisdiction. 23 6. References taken to be included in Act or Law citation etc 24 (1) A reference in this Law to an Act includes a reference to -- 25 (a) the Act as originally enacted, and as amended from time to 26 time since its original enactment; and 27 (b) if the Act has been repealed and re-enacted (with or without 28 modification) since the enactment of the reference -- the Act 29 as re enacted, and as amended from time to time since its 30 re-enactment. page 91 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 7 1 (2) A reference in this Law to a provision of this Law or of an Act 2 includes a reference to -- 3 (a) the provision as originally enacted, and as amended from 4 time to time since its original enactment; and 5 (b) if the provision has been omitted and re enacted (with or 6 without modification) since the enactment of the reference -- 7 the provision as re-enacted, and as amended from time to 8 time since its re-enactment. 9 (3) Subsections (1) and (2) apply to a reference in this Law to a law of the 10 Commonwealth or another jurisdiction as they apply to a reference in 11 this Law to an Act and to a provision of an Act. 12 7. Interpretation best achieving Law's purpose 13 (1) In the interpretation of a provision of this Law, the interpretation that 14 will best achieve the purpose or object of this Law is to be preferred 15 to any other interpretation. 16 (2) Subsection (1) applies whether or not the purpose is expressly stated 17 in this Law. 18 8. Use of extrinsic material in interpretation 19 (1) In this section -- 20 extrinsic material means relevant material not forming part of this 21 Law, including, for example -- 22 (a) material that is set out in the document containing the text of 23 this Law as printed by the Government Printer; and 24 (b) a relevant report of a Royal Commission, Law Reform 25 Commission, commission or committee of inquiry, or a 26 similar body, that was laid before the Parliament of this 27 jurisdiction before the provision concerned was enacted; and 28 (c) a relevant report of a committee of the Parliament of this 29 jurisdiction that was made to the Parliament before the 30 provision was enacted; and 31 (d) a treaty or other international agreement that is mentioned in 32 this Law; and 33 (e) an explanatory note or memorandum relating to the Bill that 34 contained the provision, or any relevant document, that was page 92 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 8 1 laid before, or given to the members of, the Parliament of this 2 jurisdiction by the member bringing in the Bill before the 3 provision was enacted; and 4 (f) the speech made to the Parliament of this jurisdiction by the 5 member in moving a motion that the Bill be read a second 6 time; and 7 (g) material in the Votes and Proceedings of the Parliament of 8 this jurisdiction or in any official record of debates in the 9 Parliament of this jurisdiction; and 10 (h) a document that is declared by this Law to be a relevant 11 document for the purposes of this section. 12 ordinary meaning means the ordinary meaning conveyed by a 13 provision having regard to its context in this Law and to the purpose 14 of this Law. 15 (2) Subject to subsection (3), in the interpretation of a provision of this 16 Law, consideration may be given to extrinsic material capable of 17 assisting in the interpretation -- 18 (a) if the provision is ambiguous or obscure -- to provide an 19 interpretation of it; or 20 (b) if the ordinary meaning of the provision leads to a result that 21 is manifestly absurd or is unreasonable -- to provide an 22 interpretation that avoids such a result; or 23 (c) in any other case -- to confirm the interpretation conveyed 24 by the ordinary meaning of the provision. 25 (3) In determining whether consideration should be given to extrinsic 26 material, and in determining the weight to be given to extrinsic 27 material, regard is to be had to -- 28 (a) the desirability of a provision being interpreted as having its 29 ordinary meaning; and 30 (b) the undesirability of prolonging proceedings without 31 compensating advantage; and 32 (c) other relevant matters. page 93 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 9 1 9. Effect of change of drafting practice 2 If -- 3 (a) a provision of this Law expresses an idea in particular words; 4 and 5 (b) a provision enacted later appears to express the same idea in 6 different words for the purpose of implementing a different 7 legislative drafting practice, including, for example -- 8 (i) the use of a clearer or simpler style; or 9 (ii) the use of gender-neutral language -- 10 the ideas must not be taken to be different merely because different 11 words are used. 12 10. Use of examples 13 If this Law includes an example of the operation of a provision -- 14 (a) the example is not exhaustive; and 15 (b) the example does not limit, but may extend, the meaning of 16 the provision; and 17 (c) the example and the provision are to be read in the context of 18 each other and the other provisions of this Law, but, if the 19 example and the provision so read are inconsistent, the 20 provision prevails. 21 11. Compliance with forms 22 (1) If a form is prescribed or approved by or for the purpose of this Law, 23 strict compliance with the form is not necessary and substantial 24 compliance is sufficient. 25 (2) If a form prescribed or approved by or for the purpose of this Law 26 requires -- 27 (a) the form to be completed in a specified way; or 28 (b) specified information or documents to be included in, 29 attached to or given with the form; or 30 (c) the form, or information or documents included in, attached 31 to or given with the form, to be verified in a specified way -- 32 the form is not properly completed unless the requirement is complied 33 with. page 94 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 12 1 Part 3 -- Terms and references 2 12. Definitions 3 (1) In this Law -- 4 Act means an Act of the Legislature of this jurisdiction. 5 adult means an individual who is 18 or more. 6 affidavit, in relation to a person allowed by law to affirm, declare or 7 promise, includes affirmation, declaration and promise. 8 amend includes -- 9 (a) omit or omit and substitute; or 10 (b) alter or vary; or 11 (c) amend by implication. 12 appoint includes reappoint. 13 Australia means the Commonwealth of Australia but, when used in a 14 geographical sense, does not include an external Territory. 15 business day means a day that is not -- 16 (a) a Saturday or Sunday; or 17 (b) a public holiday, special holiday or bank holiday in the place 18 in which any relevant act is to be or may be done. 19 calendar month means a period starting at the beginning of any day 20 of one of the 12 named months and ending -- 21 (a) immediately before the beginning of the corresponding day of 22 the next named month; or 23 (b) if there is no such corresponding day -- at the end of the next 24 named month. 25 calendar year means a period of 12 months beginning on 1 January. 26 commencement, in relation to this Law or an Act or a provision of 27 this Law or an Act, means the time at which this Law, the Act or 28 provision comes into operation. 29 Commonwealth means the Commonwealth of Australia but, when 30 used in a geographical sense, does not include an external Territory. 31 confer, in relation to a function, includes impose. 32 contravene includes fail to comply with. page 95 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 12 1 country includes -- 2 (a) a federation; or 3 (b) a state, province or other part of a federation. 4 date of assent, in relation to an Act, means the day on which the Act 5 receives the Royal Assent. 6 definition means a provision of this Law (however expressed) that -- 7 (a) gives a meaning to a word or expression; or 8 (b) limits or extends the meaning of a word or expression. 9 document means any record of information and includes -- 10 (a) any paper or other material on which there is writing; or 11 (b) any paper or other material on which there are marks, figures, 12 symbols or perforations having a meaning for a person 13 qualified to interpret them; or 14 (c) any computer, disc, tape or other article or any material from 15 which sounds, images, writings or messages are capable of 16 being reproduced (with or without the aid of another article or 17 device); 18 (d) a map, plan, drawing or photograph. 19 electronic communication means -- 20 (a) a communication of information in the form of data, text or 21 images by means of guided or unguided electromagnetic 22 energy, or both; or 23 (b) a communication of information in the form of sound by 24 means of guided or unguided electromagnetic energy, or 25 both, where the sound is processed at its destination by an 26 automated voice recognition system. 27 estate includes easement, charge, right, title, claim, demand, lien or 28 encumbrance, whether at law or in equity. 29 expire includes lapse or otherwise cease to have effect. 30 external Territory means a Territory, other than an internal Territory, 31 for the government of which as a Territory provision is made by a 32 Commonwealth Act. 33 fail includes refuse. 34 financial year means a period of 12 months beginning on 1 July. page 96 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 12 1 foreign country means a country (whether or not an independent 2 sovereign State) outside Australia and the external Territories. 3 function includes a power, authority or duty. 4 Gazette means the Government Gazette of this jurisdiction. 5 gazetted means published in the Gazette. 6 Gazette notice means notice published in the Gazette. 7 Government Printer means the Government Printer of this 8 jurisdiction, and includes any other person authorised by the 9 Government of this jurisdiction to print an Act or instrument. 10 individual means a natural person. 11 information system means a system for generating, sending, 12 receiving, storing or otherwise processing electronic communications. 13 insert, in relation to a provision of this Law, includes substitute. 14 instrument includes a statutory instrument. 15 interest, in relation to land or other property, means -- 16 (a) a legal or equitable estate in the land or other property; or 17 (b) a right, power or privilege over, or in relation to, the land or 18 other property. 19 internal Territory means the Australian Capital Territory, the Jervis 20 Bay Territory or the Northern Territory. 21 Jervis Bay Territory means the Territory mentioned in the Jervis Bay 22 Territory Acceptance Act 1915 (Cwlth). 23 make includes issue or grant. 24 minor means an individual who is under 18. 25 modification includes addition, omission or substitution. 26 month means a calendar month. 27 named month means 1 of the 12 months of the year. 28 Northern Territory means the Northern Territory of Australia. 29 number means -- 30 (a) a number expressed in figures or words; or 31 (b) a letter; or 32 (c) a combination of a number so expressed and a letter. page 97 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 12 1 oath, in relation to a person allowed by law to affirm, declare or 2 promise, includes affirmation, declaration or promise. 3 office includes position. 4 omit, in relation to a provision of this Law or an Act, includes repeal. 5 party includes an individual or a body politic or corporate. 6 penalty includes forfeiture or punishment. 7 person includes an individual or a body politic or corporate. 8 power includes authority. 9 prescribed means prescribed by, or by regulations made or in force 10 for the purposes of or under, this Law. 11 printed includes typewritten, lithographed or reproduced by any 12 mechanical means. 13 proceeding means a legal or other action or proceeding. 14 property means any legal or equitable estate or interest (whether 15 present or future, vested or contingent, or tangible or intangible) in 16 real or personal property of any description (including money), and 17 includes things in action. 18 provision, in relation to this Law or an Act, means words or other 19 matter that form or forms part of this Law or the Act, and includes -- 20 (a) a Chapter, Part, Division, Subdivision, section, subsection, 21 paragraph, subparagraph, sub-subparagraph or Schedule of or 22 to this Law or the Act; or 23 (b) a clause, section, subsection, item, column, table or form of 24 or in a Schedule to this Law or the Act; or 25 (c) the long title and any preamble to the Act. 26 repeal includes -- 27 (a) revoke or rescind; or 28 (b) repeal by implication; or 29 (c) abrogate or limit the effect of this Law or instrument 30 concerned; or 31 (d) exclude from, or include in, the application of this Law or 32 instrument concerned any person, subject matter or 33 circumstance. 34 sign includes the affixing of a seal or the making of a mark. page 98 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 13 1 statutory declaration means a declaration made under an Act, or 2 under a Commonwealth Act or an Act of another jurisdiction, that 3 authorises a declaration to be made otherwise than in the course of a 4 judicial proceeding. 5 statutory instrument means an instrument (including a regulation) 6 made or in force under or for the purposes of this Law, and includes 7 an instrument made or in force under any such instrument. 8 swear, in relation to a person allowed by law to affirm, declare or 9 promise, includes affirm, declare or promise. 10 word includes any symbol, figure or drawing. 11 writing includes any mode of representing or reproducing words in a 12 visible form. 13 (2) In a statutory instrument -- 14 the Law means this Law. 15 13. Provisions relating to defined terms and gender and number 16 (1) If this Law defines a word or expression, other parts of speech and 17 grammatical forms of the word or expression have corresponding 18 meanings. 19 (2) Definitions in or applicable to this Law apply except so far as the 20 context or subject matter otherwise indicates or requires. 21 (3) In this Law, words indicating a gender include each other gender. 22 (4) In this Law -- 23 (a) words in the singular include the plural; and 24 (b) words in the plural include the singular. 25 14. Meaning of "may" and "must" etc 26 (1) In this Law, the word may, or a similar word or expression, used in 27 relation to a power indicates that the power may be exercised or not 28 exercised, at discretion. 29 (2) In this Law, the word must, or a similar word or expression, used in 30 relation to a power indicates that the power is required to be 31 exercised. 32 (3) This section has effect despite any rule of construction to the contrary. page 99 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 15 1 15. Words and expressions used in statutory instruments 2 (1) Words and expressions used in a statutory instrument have the same 3 meanings as they have, from time to time, in this Law, or relevant 4 provisions of this Law, under or for the purposes of which the 5 instrument is made or in force. 6 (2) This section has effect in relation to an instrument except so far as the 7 contrary intention appears in the instrument. 8 16. Effect of express references to bodies corporate and individuals 9 In this Law, a reference to a person generally (whether the expression 10 "person", "party", "someone", "anyone", "no-one", "one", "another" 11 or "whoever" or another expression is used) -- 12 (a) does not exclude a reference to a body corporate or an 13 individual merely because elsewhere in this Law there is 14 particular reference to a body corporate (however expressed); 15 and 16 (b) does not exclude a reference to an individual or a body 17 corporate merely because elsewhere in this Law there is 18 particular reference to an individual (however expressed). 19 17. Production of records kept in computers etc 20 If a person who keeps a record of information by means of a 21 mechanical, electronic or other device is required by or under this 22 Law -- 23 (a) to produce the information or a document containing the 24 information to a court, tribunal or person; or 25 (b) to make a document containing the information available for 26 inspection by a court, tribunal or person; 27 then, unless the court, tribunal or person otherwise directs -- 28 (c) the requirement obliges the person to produce or make 29 available for inspection, as the case may be, a document that 30 reproduces the information in a form capable of being 31 understood by the court, tribunal or person; and 32 (d) the production to the court, tribunal or person of the 33 document in that form complies with the requirement. page 100 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 18 1 18. References to this jurisdiction to be implied 2 In this Law -- 3 (a) a reference to an officer, office or statutory body is a 4 reference to such an officer, office or statutory body in and 5 for this jurisdiction; and 6 (b) a reference to a locality or other matter or thing is a reference 7 to such a locality or other matter or thing in and of this 8 jurisdiction. 9 19. References to officers and holders of offices 10 In this Law, a reference to a particular officer, or to the holder of a 11 particular office, includes a reference to the person for the time being 12 occupying or acting in the office concerned. 13 20. Reference to certain provisions of Law 14 If a provision of this Law refers -- 15 (a) to a Part, section or Schedule by a number and without 16 reference to this Law -- the reference is a reference to the 17 Part, section or Schedule, designated by the number, of or to 18 this Law; or 19 (b) to a Schedule without reference to it by a number and without 20 reference to this Law -- the reference, if there is only one 21 Schedule to this Law, is a reference to the Schedule; or 22 (c) to a Division, Subdivision, subsection, paragraph, 23 subparagraph, sub-subparagraph, section, subsection, item, 24 column, table or form by a number and without reference to 25 this Law -- the reference is a reference to -- 26 (i) the Division, designated by the number, of the Part in 27 which the reference occurs; and 28 (ii) the Subdivision, designated by the number, of the 29 Division in which the reference occurs; and 30 (iii) the subsection, designated by the number, of the 31 section in which the reference occurs; and 32 (iv) the paragraph, designated by the number, of the 33 section, subsection, Schedule or other provision in 34 which the reference occurs; and page 101 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 21 1 (v) the paragraph, designated by the number, of the 2 section, subsection, item, column, table or form of or 3 in the Schedule in which the reference occurs; and 4 (vi) the subparagraph, designated by the number, of the 5 paragraph in which the reference occurs; and 6 (vii) the sub-subparagraph, designated by the number, of 7 the subparagraph in which the reference occurs; and 8 (viii) the clause, section, subsection, item, column, table or 9 form, designated by the number, of or in the Schedule 10 in which the reference occurs -- 11 as the case requires. 12 21. Reference to provisions of this Law or an Act is inclusive 13 In this Law, a reference to a portion of this Law or an Act includes -- 14 (a) a reference to the Chapter, Part, Division, Subdivision, 15 section, subsection or other provision of this Law or the Act 16 referred to that forms the beginning of the portion; and 17 (b) a reference to the Chapter, Part, Division, Subdivision, 18 section, subsection or other provision of this Law or the Act 19 referred to that forms the end of the portion. 20 Example: A reference to "sections 5 to 9" includes both section 5 and 21 section 9. 22 It is not necessary to refer to "sections 5 to 9 (both inclusive)" to 23 ensure that the reference is given an inclusive interpretation 24 Part 4 -- Functions and powers 25 22. Performance of statutory functions 26 (1) If this Law confers a function or power on a person or body, the 27 function may be performed, or the power may be exercised, from time 28 to time as occasion requires. 29 (2) If this Law confers a function or power on a particular officer or the 30 holder of a particular office, the function may be performed, or the 31 power may be exercised, by the person for the time being occupying 32 or acting in the office concerned. page 102 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 23 1 (3) If this Law confers a function or power on a body (whether or not 2 incorporated), the performance of the function, or the exercise of the 3 power, is not affected merely because of vacancies in the membership 4 of the body. 5 23. Power to make instrument or decision includes power to amend 6 or repeal 7 If this Law authorises or requires the making of an instrument or 8 decision -- 9 (a) the power includes power to amend or repeal the instrument 10 or decision; and 11 (b) the power to amend or repeal the instrument or decision is 12 exercisable in the same way, and subject to the same 13 conditions, as the power to make the instrument or decision. 14 24. Matters for which statutory instruments may make provision 15 (1) If this Law authorises or requires the making of a statutory instrument 16 in relation to a matter, a statutory instrument made under this Law 17 may make provision for the matter by applying, adopting or 18 incorporating (with or without modification) the provisions of -- 19 (a) an Act or statutory instrument; or 20 (b) another document (whether of the same or a different 21 kind) -- 22 as in force at a particular time or as in force from time to time. 23 (2) If a statutory instrument applies, adopts or incorporates the provisions 24 of a document, the statutory instrument applies, adopts or incorporates 25 the provisions as in force from time to time, unless the statutory 26 instrument otherwise expressly provides. 27 (3) A statutory instrument may -- 28 (a) apply generally throughout this jurisdiction or be limited in 29 its application to a particular part of this jurisdiction; or 30 (b) apply generally to all persons, matters or things or be limited 31 in its application to -- 32 (i) particular persons, matters or things; or 33 (ii) particular classes of persons, matters or things; or page 103 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 25 1 (c) otherwise apply generally or be limited in its application by 2 reference to specified exceptions or factors. 3 (4) A statutory instrument may -- 4 (a) apply differently according to different specified factors; or 5 (b) otherwise make different provision in relation to -- 6 (i) different persons, matters or things; or 7 (ii) different classes of persons, matters or things. 8 (5) A statutory instrument may authorise a matter or thing to be from time 9 to time determined, applied or regulated by a specified person or 10 body. 11 (6) If this Law authorises or requires a matter to be regulated by statutory 12 instrument, the power may be exercised by prohibiting by statutory 13 instrument the matter or any aspect of the matter. 14 (7) If this Law authorises or requires provision to be made with respect to 15 a matter by statutory instrument, a statutory instrument made under 16 this Law may make provision with respect to a particular aspect of the 17 matter despite the fact that provision is made by this Law in relation 18 to another aspect of the matter or in relation to another matter. 19 (8) A statutory instrument may provide for the review of, or a right of 20 appeal against, a decision made under the statutory instrument, or this 21 Law, and may, for that purpose, confer jurisdiction on any court, 22 tribunal, person or body. 23 (9) A statutory instrument may require a form prescribed by or under the 24 statutory instrument, or information or documents included in, 25 attached to or given with the form, to be verified by statutory 26 declaration. 27 25. Presumption of validity and power to make 28 (1) All conditions and preliminary steps required for the making of a 29 statutory instrument are presumed to have been satisfied and 30 performed in the absence of evidence to the contrary. 31 (2) A statutory instrument is taken to be made under all powers under 32 which it may be made, even though it purports to be made under this 33 Law or a particular provision of this Law. page 104 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 26 1 26. Appointments may be made by name or office 2 (1) If this Law authorises or requires a person or body -- 3 (a) to appoint a person to an office; or 4 (b) to appoint a person or body to exercise a power; or 5 (c) to appoint a person or body to do another thing -- 6 the person or body may make the appointment by -- 7 (d) appointing a person or body by name; or 8 (e) appointing a particular officer, or the holder of a particular 9 office, by reference to the title of the office concerned. 10 (2) An appointment of a particular officer, or the holder of a particular 11 office, is taken to be the appointment of the person for the time being 12 occupying or acting in the office concerned. 13 27. Acting appointments 14 (1) If this Law authorises a person or body to appoint a person to act in an 15 office, the person or body may, in accordance with this Law, 16 appoint -- 17 (a) a person by name; or 18 (b) a particular officer, or the holder of a particular office, by 19 reference to the title of the office concerned -- 20 to act in the office. 21 (2) The appointment may be expressed to have effect only in the 22 circumstances specified in the instrument of appointment. 23 (3) The appointer may -- 24 (a) determine the terms and conditions of the appointment, 25 including remuneration and allowances; and 26 (b) terminate the appointment at any time. 27 (4) The appointment, or the termination of the appointment, must be in, 28 or evidenced by, writing signed by the appointer. 29 (5) The appointee must not act for more than 1 year during a vacancy in 30 the office. page 105 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 28 1 (6) If the appointee is acting in the office otherwise than because of a 2 vacancy in the office and the office becomes vacant, then, subject to 3 subsection (2), the appointee may continue to act until -- 4 (a) the appointer otherwise directs; or 5 (b) the vacancy is filled; or 6 (c) the end of a year from the day of the vacancy -- 7 whichever happens first. 8 (7) The appointment ceases to have effect if the appointee resigns by 9 writing signed and delivered to the appointer. 10 (8) While the appointee is acting in the office -- 11 (a) the appointee has all the powers and functions of the holder 12 of the office; and 13 (b) this Law and other laws apply to the appointee as if the 14 appointee were the holder of the office. 15 (9) Anything done by or in relation to a person purporting to act in the 16 office is not invalid merely because -- 17 (a) the occasion for the appointment had not arisen; or 18 (b) the appointment had ceased to have effect; or 19 (c) the occasion for the person to act had not arisen or had 20 ceased. 21 (10) If this Law authorises the appointer to appoint a person to act during a 22 vacancy in the office, an appointment to act in the office may be made 23 by the appointer whether or not an appointment has previously been 24 made to the office. 25 28. Powers of appointment imply certain incidental powers 26 (1) If this Law authorises or requires a person or body to appoint a person 27 to an office -- 28 (a) the power may be exercised from time to time as occasion 29 requires; and 30 (b) the power includes -- 31 (i) power to remove or suspend, at any time, a person 32 appointed to the office; and page 106 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 29 1 (ii) power to appoint another person to act in the office if 2 a person appointed to the office is removed or 3 suspended; and 4 (iii) power to reinstate or reappoint a person removed or 5 suspended; and 6 (iv) power to appoint a person to act in the office if it is 7 vacant (whether or not the office has ever been 8 filled); and 9 (v) power to appoint a person to act in the office if the 10 person appointed to the office is absent or is unable to 11 discharge the functions of the office (whether because 12 of illness or otherwise). 13 (2) The power to remove or suspend a person under subsection (1)(b) 14 may be exercised even if this Law provides that the holder of the 15 office to which the person was appointed is to hold office for a 16 specified period. 17 (3) The power to make an appointment under subsection (1)(b) may be 18 exercised from time to time as occasion requires. 19 (4) An appointment under subsection (1)(b) may be expressed to have 20 effect only in the circumstances specified in the instrument of 21 appointment. 22 29. Delegation of functions 23 (1) If this Law authorises a person or body to delegate a function, the 24 person or body may, in accordance with this Law and any other 25 applicable law, delegate the function to -- 26 (a) a person or body by name; or 27 (b) a specified officer, or the holder of a specified office, by 28 reference to the title of the office concerned. 29 (2) The delegation may be -- 30 (a) general or limited; and 31 (b) made from time to time; and 32 (c) revoked, wholly or partly, by the delegator. page 107 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 29 1 (3) The delegation, or a revocation of the delegation, must be in, or 2 evidenced by, writing signed by the delegator or, if the delegator is a 3 body, by a person authorised by the body for the purpose. 4 (4) A delegated function may be exercised only in accordance with any 5 conditions to which the delegation is subject. 6 (5) The delegate may, in the performance of a delegated function, do 7 anything that is incidental to the delegated function. 8 (6) A delegated function that purports to have been exercised by the 9 delegate is taken to have been properly exercised by the delegate 10 unless the contrary is proved. 11 (7) A delegated function that is properly exercised by the delegate is 12 taken to have been exercised by the delegator. 13 (8) If, when exercised by the delegator, a function is dependent on the 14 delegator's opinion, belief or state of mind, then, when exercised by 15 the delegate, the function is dependent on the delegate's opinion, 16 belief or state of mind. 17 (9) If -- 18 (a) the delegator is a specified officer or the holder of a specified 19 office; and 20 (b) the person who was the specified officer or holder of the 21 specified office when the delegation was made ceases to be 22 the holder of the office -- 23 then -- 24 (c) the delegation continues in force; and 25 (d) the person for the time being occupying or acting in the office 26 concerned is taken to be the delegator for the purposes of this 27 section. 28 (10) If -- 29 (a) the delegator is a body; and 30 (b) there is a change in the membership of the body -- 31 then -- 32 (c) the delegation continues in force; and page 108 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 30 1 (d) the body as constituted for the time being is taken to be 2 delegator for the purposes of this section. 3 (11) If a function is delegated to a specified officer or the holder of a 4 specified office -- 5 (a) the delegation does not cease to have effect merely because 6 the person who was the specified officer or the holder of the 7 specified office when the function was delegated ceases to be 8 the officer or the holder of the office; and 9 (b) the function may be exercised by the person for the time 10 being occupying or acting in the office concerned. 11 (12) A function that has been delegated may, despite the delegation, be 12 exercised by the delegator. 13 (13) The delegation of a function does not relieve the delegator of the 14 delegator's obligation to ensure that the function is properly 15 exercised. 16 (14) Subject to subsection (15), this section applies to a subdelegation of a 17 function in the same way as it applies to a delegation of a function. 18 (15) If this Law authorises the delegation of a function, the function may 19 be subdelegated only if the Law expressly authorises the function to 20 be subdelegated. 21 30. Exercise of powers between enactment and commencement 22 (1) If a provision of this Law (the empowering provision) that does not 23 commence on its enactment would, had it commenced, confer a 24 power -- 25 (a) to make an appointment; or 26 (b) to make a statutory instrument of a legislative or 27 administrative character; or 28 (c) to do another thing -- 29 then -- 30 (d) the power may be exercised; and page 109 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 30 1 (e) anything may be done for the purpose of enabling the 2 exercise of the power or of bringing the appointment, 3 instrument or other thing into effect -- 4 before the empowering provision commences. 5 (2) If a provision of a Victoria Act (the empowering provision) that does 6 not commence on its enactment would, had it commenced, amend a 7 provision of this Law so that it would confer a power -- 8 (a) to make an appointment; or 9 (b) to make a statutory instrument of a legislative or 10 administrative character; or 11 (c) to do another thing -- 12 then -- 13 (d) the power may be exercised; and 14 (e) anything may be done for the purpose of enabling the 15 exercise of the power or of bringing the appointment, 16 instrument or other thing into effect -- 17 before the empowering provision commences. 18 (3) If -- 19 (a) this Law has commenced and confers a power to make a 20 statutory instrument (the basic instrument-making power); 21 and 22 (b) a provision of a Victoria Act that does not commence on its 23 enactment would, had it commenced, amend this Law so as to 24 confer additional power to make a statutory instrument (the 25 additional instrument-making power) -- 26 then -- 27 (c) the basic instrument-making power and the additional 28 instrument-making power may be exercised by making a 29 single instrument; and 30 (d) any provision of the instrument that required an exercise of 31 the additional instrument-making power is to be treated as 32 made under subsection (2). page 110 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 30 1 (4) If an instrument, or a provision of an instrument, is made under 2 subsection (1) or (2) that is necessary for the purpose of -- 3 (a) enabling the exercise of a power mentioned in the subsection; 4 or 5 (b) bringing an appointment, instrument or other thing made or 6 done under such a power into effect -- 7 the instrument or provision takes effect -- 8 (c) on the making of the instrument; or 9 (d) on such later day (if any) on which, or at such later time (if 10 any) at which, the instrument or provision is expressed to take 11 effect. 12 (5) If -- 13 (a) an appointment is made under subsection (1) or (2); or 14 (b) an instrument, or a provision of an instrument, made under 15 subsection (1) or (2) is not necessary for a purpose mentioned 16 in subsection (4) -- 17 the appointment, instrument or provision takes effect -- 18 (c) on the commencement of the relevant empowering provision; 19 or 20 (d) on such later day (if any) on which, or at such later time (if 21 any) at which, the appointment, instrument or provision is 22 expressed to take effect. 23 (6) Anything done under subsection (1) or (2) does not confer a right, or 24 impose a liability, on a person before the relevant empowering 25 provision commences. 26 (7) After the enactment of a provision mentioned in subsection (2) but 27 before the provision's commencement, this section applies as if the 28 references in subsections (2) and (5) to the commencement of the 29 empowering provision were references to the commencement of the 30 provision mentioned in subsection (2) as amended by the empowering 31 provision. 32 (8) In the application of this section to a statutory instrument, a reference 33 to the enactment of the instrument is a reference to the making of the 34 instrument. page 111 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Schedule 1 Miscellaneous provisions relating to interpretation cl. 31 1 Part 5 -- Distance, time and age 2 31. Matters relating to distance, time and age 3 (1) In the measurement of distance for the purposes of this Law, the 4 distance is to be measured along the shortest road ordinarily used for 5 travelling. 6 (2) If a period beginning on a given day, act or event is provided or 7 allowed for a purpose by this Law, the period is to be calculated by 8 excluding the day, or the day of the act or event; and -- 9 (a) if the period is expressed to be a specified number of clear 10 days or at least a specified number of days -- by excluding 11 the day on which the purpose is to be fulfilled; and 12 (b) in any other case -- by including the day on which the 13 purpose is to be fulfilled. 14 (3) If the last day of a period provided or allowed by this Law for doing 15 anything is not a business day in the place in which the thing is to be 16 or may be done, the thing may be done on the next business day in the 17 place. 18 (4) If the last day of a period provided or allowed by this Law for the 19 filing or registration of a document is a day on which the office is 20 closed where the filing or registration is to be or may be done, the 21 document may be filed or registered at the office on the next day that 22 the office is open. 23 (5) If no time is provided or allowed for doing anything, the thing is to be 24 done as soon as possible, and as often as the prescribed occasion 25 happens. 26 (6) If, in this Law, there is a reference to time, the reference is, in relation 27 to the doing of anything in a jurisdiction, a reference to the legal time 28 in the jurisdiction. 29 (7) For the purposes of this Law, a person attains an age in years at the 30 beginning of the person's birthday for the age. page 112 Occupational Licensing National Law (WA) Bill 2010 Occupational Licensing National Law Schedule Miscellaneous provisions relating to interpretation Schedule 1 cl. 32 1 Part 6 -- Effect of repeal, amendment or expiration 2 32. Time of Law ceasing to have effect 3 If a provision of this Law is expressed -- 4 (a) to expire on a specified day; or 5 (b) to remain or continue in force, or otherwise have effect, until 6 a specified day -- 7 this provision has effect until the last moment of the specified day. 8 33. Repealed Law provisions not revived 9 If a provision of this Law is repealed or amended by a Victorian Act, 10 or a provision of a Victorian Act, the provision is not revived merely 11 because the Victorian Act or the provision of the Victorian Act -- 12 (a) is later repealed or amended; or 13 (b) later expires. 14 34. Saving of operation of repealed Law provisions 15 (1) The repeal, amendment or expiry of a provision of this Law does 16 not -- 17 (a) revive anything not in force or existing at the time the repeal, 18 amendment or expiry takes effect; or 19 (b) affect the previous operation of the provision or anything 20 suffered, done or begun under the provision; or 21 (c) affect a right, privilege or liability acquired, accrued or 22 incurred under the provision; or 23 (d) affect a penalty incurred in relation to an offence arising 24 under the provision; or 25 (e) affect an investigation, proceeding or remedy in relation to 26 such a right, privilege, liability or penalty. 27 (2) Any such penalty may be imposed and enforced, and any such 28 investigation, proceeding or remedy may be begun, continued or 29 enforced, as if the provision had not been repealed or amended or had 30 not expired. page 113 Occupational Licensing National Law (WA) Bill 2010 Schedule Occupational Licensing National Law Part 7 Instruments under Law cl. 35 1 35. Continuance of repealed provisions 2 If a Victorian Act repeals some provisions of this Law and enacts new 3 provisions in substitution for the repealed provisions, the repealed 4 provisions continue in force until the new provisions commence. 5 36. Law and amending Acts to be read as one 6 This Law and all Victorian Acts amending this Law are to be read as 7 one. 8 Part 7 -- Instruments under Law 9 37. Schedule applies to statutory instruments 10 (1) This Schedule applies to a statutory instrument, and to things that may 11 be done or are required to be done under a statutory instrument, in the 12 same way as it applies to this Law, and things that may be done or are 13 required to be done under this Law, except so far as the context or 14 subject matter otherwise indicates or requires. 15 (2) The fact that a provision of this Schedule refers to this Law and not 16 also to a statutory instrument does not, by itself, indicate that the 17 provision is intended to apply only to this Law. 18 Part 8 -- Application to coastal sea 19 38. Application 20 This Law has effect in and relation to the coastal sea of this 21 jurisdiction as if that coastal sea were part of this jurisdiction. 22 page 114 Occupational Licensing National Law (WA) Bill 2010 Defined Terms Defined Terms [This is a list of terms defined and the provisions where they are defined. The list is not part of the law.] Defined Term Provision(s) Act ............................................................................................ Sch. 1, cl. 12(1) additional instrument-making power........................................... Sch. 1, cl. 30(3) adult .......................................................................................... Sch. 1, cl. 12(1) advertise .......................................................................................Sch., cl. 11(5) Advisory Committee ........................................................................... Sch., cl. 4 affected person.................................................................................. Sch., cl. 88 affidavit ..................................................................................... Sch. 1, cl. 12(1) amend........................................................................................ Sch. 1, cl. 12(1) appoint....................................................................................... Sch. 1, cl. 12(1) approved form..................................................................................... Sch., cl. 4 Archives Act...............................................................................Sch., cl. 141(5) Australia .................................................................................... Sch. 1, cl. 12(1) Australian Accounting Standards.................................................Sch., cl. 147(7) authorised officer ................................................................................ Sch., cl. 4 Authority Fund ................................................................................... Sch., cl. 4 bankrupt or insolvent.....................................................................Sch., cl. 49(3) basic instrument-making power .................................................. Sch. 1, cl. 30(3) business day............................................................................... Sch. 1, cl. 12(1) calendar month .......................................................................... Sch. 1, cl. 12(1) calendar year.............................................................................. Sch. 1, cl. 12(1) chief executive officer......................................................................... Sch., cl. 4 close associate...............................................................................Sch., cl. 21(2) COAG ................................................................................................ Sch., cl. 4 COAG agreement ............................................................................... Sch., cl. 4 commencement.......................................................................... Sch. 1, cl. 12(1) Commonwealth.......................................................................... Sch. 1, cl. 12(1) confer ........................................................................................ Sch. 1, cl. 12(1) contravene ................................................................................. Sch. 1, cl. 12(1) convicted ......................................................................................Sch., cl. 49(3) corresponding disciplinary body....................................................Sch., cl. 21(2) corresponding prior Act.................................................................Sch., cl. 21(2) country ...................................................................................... Sch. 1, cl. 12(1) criminal history................................................................................... Sch., cl. 4 date of assent ............................................................................. Sch. 1, cl. 12(1) definition ................................................................................... Sch. 1, cl. 12(1) disciplinary action............................................................................... Sch., cl. 4 Disciplinary action ............................................................ Sch., cl. 47(1) and (2) disciplinary body................................................................................. Sch., cl. 4 document ................................................................................... Sch. 1, cl. 12(1) page 115 Occupational Licensing National Law (WA) Bill 2010 Defined Terms electronic communication .......................................................... Sch. 1, cl. 12(1) empowering provision.................................................... Sch. 1, cl. 30(1) and (2) entity .................................................................................................. Sch., cl. 4 estate ......................................................................................... Sch. 1, cl. 12(1) expire ........................................................................................ Sch. 1, cl. 12(1) external Territory ....................................................................... Sch. 1, cl. 12(1) extrinsic material..........................................................................Sch. 1, cl. 8(1) fail............................................................................................. Sch. 1, cl. 12(1) financial year ............................................................................. Sch. 1, cl. 12(1) First Minister's Department................................................................. Sch., cl. 4 FOI Act ......................................................................................Sch., cl. 137(5) foreign country .......................................................................... Sch. 1, cl. 12(1) former licensee ................................................................................... Sch., cl. 4 function ..................................................................................... Sch. 1, cl. 12(1) Gazette ...................................................................................... Sch. 1, cl. 12(1) Gazette notice ............................................................................ Sch. 1, cl. 12(1) gazetted ..................................................................................... Sch. 1, cl. 12(1) Government Printer.................................................................... Sch. 1, cl. 12(1) home ............................................................................................Sch., cl. 65(5) immediate suspension ground.............................................................. Sch., cl. 4 individual................................................................................... Sch. 1, cl. 12(1) information system..................................................................... Sch. 1, cl. 12(1) insert ......................................................................................... Sch. 1, cl. 12(1) instrument.................................................................................. Sch. 1, cl. 12(1) interest....................................................................................... Sch. 1, cl. 12(1) internal Territory........................................................................ Sch. 1, cl. 12(1) Jervis Bay Territory ................................................................... Sch. 1, cl. 12(1) jurisdictional regulator ........................................................................ Sch., cl. 4 jurisdictional regulator members ........................................ Sch., cl. 4, cl. 103(3) law .............................................................................................Sch., cl. 156(2) licence ................................................................................. Sch., cl. 4, cl. 21(2) licensed occupation............................................................................. Sch., cl. 4 Licensing Authority ............................................................................ Sch., cl. 4 Licensing Board.................................................................................. Sch., cl. 4 local application provisions of this Act .........................................................3(1) make.......................................................................................... Sch. 1, cl. 12(1) may ........................................................................................... Sch. 1, cl. 14(1) Ministerial Council ............................................................................. Sch., cl. 4 minor......................................................................................... Sch. 1, cl. 12(1) modification............................................................................... Sch. 1, cl. 12(1) month ........................................................................................ Sch. 1, cl. 12(1) named month ............................................................................. Sch. 1, cl. 12(1) national licensing system..................................................................... Sch., cl. 4 national regulations............................................................................. Sch., cl. 4 nominee.............................................................................................. Sch., cl. 4 page 116 Occupational Licensing National Law (WA) Bill 2010 Defined Terms Northern Territory...................................................................... Sch. 1, cl. 12(1) number ...................................................................................... Sch. 1, cl. 12(1) oath ........................................................................................... Sch. 1, cl. 12(1) obstruct.........................................................................................Sch., cl. 86(3) Occupational Licensing National Law (WA) ................................................3(2) office ......................................................................................... Sch. 1, cl. 12(1) Ombudsman Act .........................................................................Sch., cl. 150(5) omit ........................................................................................... Sch. 1, cl. 12(1) ordinary meaning .........................................................................Sch. 1, cl. 8(1) original warrant.............................................................................Sch., cl. 68(3) other person ................................................................................Sch., cl. 128(1) participating jurisdiction...................................................................... Sch., cl. 4 participation day ................................................................................. Sch., cl. 4 party .......................................................................................... Sch. 1, cl. 12(1) penalty....................................................................................... Sch. 1, cl. 12(1) person........................................................................................ Sch. 1, cl. 12(1) place................................................................................................... Sch., cl. 4 power ........................................................................................ Sch. 1, cl. 12(1) premises ............................................................................................. Sch., cl. 4 prescribed .................................................................................. Sch. 1, cl. 12(1) prescribed work .................................................................................. Sch., cl. 4 primary jurisdiction............................................................................. Sch., cl. 4 printed ....................................................................................... Sch. 1, cl. 12(1) Privacy Act .................................................................................Sch., cl. 135(5) proceeding ................................................................................. Sch. 1, cl. 12(1) property ..................................................................................... Sch. 1, cl. 12(1) proposed action.............................................................................Sch., cl. 52(2) protected information ...................................................................... Sch., cl. 136 protected person..........................................................................Sch., cl. 151(3) provision.................................................................................... Sch. 1, cl. 12(1) public place...................................................................................Sch., cl. 65(5) regulation................................................................... Sch., cl. 164(6), cl. 165(4) relevant law ..................................................................................Sch., cl. 49(3) relevant person................................................ Sch., cl. 11(2), cl. 19(3), cl. 83(7) relevant place...................................................................................... Sch., cl. 4 relevant tribunal or court ..................................................................... Sch., cl. 4 remuneration tribunal ..................................................................Sch., cl. 106(2) repeal......................................................................................... Sch. 1, cl. 12(1) review decision ................................................................. Sch., cl. 88,, cl. 91(1) review notice ................................................................................Sch., cl. 92(1) review period ................................................................................Sch., cl. 92(4) reviewable decision........................................................................... Sch., cl. 88 reviewer............................................................................................ Sch., cl. 88 second person ...............................................................................Sch., cl. 12(2) show cause notice .........................................................................Sch., cl. 52(1) page 117 Occupational Licensing National Law (WA) Bill 2010 Defined Terms show cause period.........................................................................Sch., cl. 52(2) sign............................................................................................ Sch. 1, cl. 12(1) specified licensed occupation ........................... Sch., cl. 9(2), cl. 11(5), cl. 12(4), ............................................................................... cl. 14(2), cl. 29(3), cl. 35(4) State ...............................................................................................Sch., cl. 8(2) State or Territory entity....................................................................... Sch., cl. 4 statutory declaration................................................................... Sch. 1, cl. 12(1) statutory instrument.................................................................... Sch. 1, cl. 12(1) swear ......................................................................................... Sch. 1, cl. 12(1) the Law...................................................................................... Sch. 1, cl. 12(2) vehicle ................................................................................................ Sch., cl. 4 word .......................................................................................... Sch. 1, cl. 12(1) writing....................................................................................... Sch. 1, cl. 12(1)
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