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PARLIAMENT OF VICTORIA
Business Licensing Legislation (Amendment) Act
2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2--AMENDMENT OF ASSOCIATIONS INCORPORATION
ACT 1981 3
3. Definitions 3
4. Application for incorporation 3
5. Application to bring companies etc. under the Act 4
6. Change of address 4
7. Common seal 4
8. New section 24 substituted 4
24. First public officer 4
9. Special resolution 5
10. Annual general meeting 5
11. Auditors 6
12. Amalgamation of incorporated associations 7
13. Modification of Corporations legislation applying to voluntary
winding up 7
14. Reinstatement of cancelled association 8
15. Register 8
16. New sections 39B and 39C inserted 10
39B. Restriction of personal information 10
39C. Rights of review 11
17. Method of lodgment 11
18. New section 45D inserted 12
45D. Waiver or refund of fees 12
19. Continuing offences 13
20. New section 55 inserted 13
55. Transitional provisions--pending applications 13
21. Schedule 14
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Clause Page
PART 3--AMENDMENT OF BUSINESS NAMES ACT 1962 15
22. Definitions 15
23. Register of business names 15
24. Registration of business name 17
25. Resident agents 18
26. Renewal of registration 18
27. Notification of changes in particulars etc. 18
28. Duty to furnish information 20
29. Disability of persons in default 20
30. New section 15 substituted 20
15. Signing of documents 20
31. Signatures 21
32. Approval of special lodging arrangements 21
33. New section 15AC inserted 21
15AC. Waiver or refund of fees 21
34. Verification of particulars 22
35. False or misleading statements 22
36. Retention of records 22
37. Cancellation of registration 22
38. Registrar may correct errors in register etc. 23
39. New sections 22, 22A and 22B substituted 23
22. Inspection of the register 23
22A. Restriction of personal information 23
22B. Rights of review 24
40. Authority of Director to destroy documents and validation 25
41. Service of notices 25
42. Regulations 25
43. New section 34 inserted 25
34. Further transitionals 25
PART 4--AMENDMENT OF ESTATE AGENTS ACT 1980 27
44. Definitions 27
45. Application for estate agent's licence 27
46. Certain documents to be lodged by particular corporations 28
47. New section 19A inserted 30
19A. Consent to disclosure of information 30
48. New section 20A inserted 31
20A. Provision of information for the purposes of this Act 31
49. Requirements for regaining licence etc. in special circumstances 32
50. Requirements for allowing limited right to hold licence etc. 33
51. Requirements for being allowed limited right to hold licence etc. 34
52. New section 33 substituted 35
33. The Register 35
53. Franchising agreement 39
54. Annual audit of trust accounts 39
55. Consequential amendment 39
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Clause Page
56. Claims against the Fund 39
57. New section 92 substituted 39
92. Certificate as evidence 40
58. New sections 98 and 98A inserted 40
98. Retention of documents 40
98A. Offence to destroy documents required by the Act 40
59. Regulations 41
PART 5--AMENDMENT OF MOTOR CAR TRADERS ACT 1986 42
60. Application for licence 42
61. New section 11A inserted 42
11A. Consent to disclosure of information 42
62. New section 12A inserted 43
12A. Provision of information for the purposes of this Act 43
63. Grant or refusal of licence 44
64. Register 44
65. Automatic cancellation of licence on bankruptcy etc. 47
66. Person involved in Guarantee Fund claim may regain licence etc.
in special circumstances 47
67. Limited right to hold licence etc. 48
68. Permission to continue to hold licence despite criminal act of
partner or director 49
69. Prohibited employees 49
70. Determination of claims 50
71. New section 83A substituted 50
83A. Retention of documents 50
72. Offence to destroy documents required by the Act 51
73. False or misleading statements 51
74. Certificates 51
87. Certificates 51
75. Regulations 52
PART 6--AMENDMENT OF TRAVEL AGENTS ACT 1986 53
76. Application for licence 53
77. New section 8A inserted 53
8A. Consent to disclosure of information 53
78. Register 54
79. Annual fee and annual statement 56
80. New section 41 inserted 57
41. Retention of documents 57
81. False or misleading statements 58
82. New section 42D inserted 58
42D. Offence to destroy records required by the Act 58
83. Regulations 59
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Clause Page
PART 7--AMENDMENT OF BUSINESS LICENSING
AUTHORITY ACT 1998 60
84. Definition 60
85. Delegation by Authority 60
86. New sections 17A and 17B inserted 60
17A. Restriction of personal information 60
17B. Rights of review 61
ENDNOTES 63
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PARLIAMENT OF VICTORIA
Initiated in Assembly 15 May 2002
A BILL
to amend the Associations Incorporation Act 1981, the Business
Names Act 1962, the Estate Agents Act 1980, the Motor Car
Traders Act 1986 and the Travel Agents Act 1986 to facilitate
electronic transactions under those Acts and to make further provision
for registers under those Acts and to amend the Business Licensing
Authority Act 1998 and for other purposes.
Business Licensing Legislation
(Amendment) Act 2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
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Act No.
part 1--preliminary
s. 2
(a) to amend the Associations Incorporation
Act 1981, the Business Names Act 1962,
the Estate Agents Act 1980, the Motor Car
Traders Act 1986 and the Travel Agents
5 Act 1986--
(i) to facilitate electronic document
transactions under those Acts; and
(ii) to make further provision for registers
under those Acts;
10 (b) to amend the delegation powers in the
Business Licensing Authority Act 1998.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
15 (2) If a provision of this Act does not come into
operation before 31 December 2003 it comes into
operation on that day.
__________________
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Business Licensing Legislation (Amendment) Act 2002
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Part 2--amendment of Associations Incorporation Act 1981
s. 3
PART 2--AMENDMENT OF ASSOCIATIONS
INCORPORATION ACT 1981
3. Definitions
See:
In section 3(1) of the Associations Incorporation Act No.
5 Act 1981-- 9713/1981.
Reprint No. 5
(a) insert the following definitions-- as at
1 September
' "CPA Australia" means CPA Australia 1999 and
amending
A.C.N. 008 392 452; Act Nos
35/2000,
"personal information" has the same 57/2000,
10 44/2001 and
meaning as in section 3 of the
11/2002.
Information Privacy Act 2000;'; LawToday:
www.dms.
(b) in the definition of "reproduction" after dpc.vic.
gov.au
"negative of the document" insert "or an
electronic copy of the document".
15 4. Application for incorporation
In section 5 of the Associations Incorporation
Act 1981--
(a) in paragraph (a), sub-paragraph (ii) is
repealed;
20 (b) in paragraph (b), after "proposed" insert
"incorporated";
(c) for paragraph (e) substitute--
"(e) shall include a statement from the
applicant certifying that--
25 (i) the applicant has the authority
under section 4 to make the
application on behalf of the
association; and
(ii) the particulars contained in the
30 application are true and correct;
and
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(iii) copies of any documents
accompanying the application are
true copies of those documents;
and".
5 5. Application to bring companies etc. under the Act
In section 10(3)(a) of the Associations
Incorporation Act 1981, sub-paragraph (ii) is
repealed.
6. Change of address
10 In section 13A of the Associations Incorporation
Act 1981, for sub-section (2) substitute--
"(2) An incorporated association that changes its
registered address must notify the Registrar
in the form approved by the Registrar no
15 later than 14 days after that change.".
7. Common seal
In the Associations Incorporation Act 1981--
(a) in section 12A(1)(a) after "seal" insert "(if
any)";
20 (b) in section 14(2) for "shall" substitute "may".
8. New section 24 substituted
For section 24 of the Associations Incorporation
Act 1981 substitute--
"24. First public officer
25 (1) The first public officer of an incorporated
association is--
(a) the person upon whose application the
association was incorporated; or
(b) if the application provides for a
30 different person, that person.
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(2) A person is incapable of being the first
public officer of an incorporated association
unless the person--
(a) consents to being named as the first
5 public officer; and
(b) has attained the age of 18 years; and
(c) is resident in the State.".
9. Special resolution
After section 29(2) of the Associations
10 Incorporation Act 1981 insert--
"(2A) If, in the opinion of the Registrar it is not
practicable for a resolution to be passed in
the manner specified in sub-section (2)(a),
the resolution may be passed in a manner
15 specified by the Registrar.
(2B) An incorporated association may apply to the
Registrar for approval to pass a special
resolution otherwise than in the manner
specified in sub-section (2)(a).".
20 10. Annual general meeting
(1) After section 30(3A) of the Associations
Incorporation Act 1981 insert--
"(3B) At, or as soon as practicable after, the
conclusion of the annual general meeting of
25 an incorporated association a committee
member must certify, in the form approved
by the Registrar, that--
(a) the committee member attended the
annual general meeting; and
30 (b) the statement referred to in sub-section
(3) was submitted to the members of
the incorporated association at the
annual general meeting.".
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s. 11
(2) In section 30(4)(aa) of the Associations
Incorporation Act 1981, after "30B" insert "and
a copy of the auditor's report referred to in section
30B(1A)".
5 (3) In section 30(4) of the Associations
Incorporation Act 1981, for paragraph (b)
substitute--
"(b) if the meeting has been held, containing a
statement from the public officer that the
10 certificate referred to in sub-section (3B) has
been completed and signed by a committee
member who attended the annual general
meeting and that the certificate is being kept
by the incorporated association; and".
15 (4) After section 30(4) of the Associations
Incorporation Act 1981 insert--
"(4A) The incorporated association must keep the
statement referred to in sub-section (3) and
the certificate referred to in sub-section (3B)
20 for at least 7 years.
Penalty: 20 penalty units.".
11. Auditors
(1) In section 30B(1)(c) of the Associations
Incorporation Act 1981, for "the Australian
25 Society of Certified Practising Accountants"
substitute "CPA Australia".
(2) After section 30B(1) of the Associations
Incorporation Act 1981 insert--
"(1A) A person who audits the accounts of a
30 prescribed association must provide the
association with a written report of the
audit.".
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s. 12
(3) After section 30B(2) of the Associations
Incorporation Act 1981 insert--
"(2A) The Registrar may grant approval to a
suitably qualified person or a class of
5 suitably qualified persons (other than a
person referred to in sub-section (2)) to audit
the accounts of a prescribed association or a
class of prescribed associations.".
12. Amalgamation of incorporated associations
10 In section 31(3)(d) of the Associations
Incorporation Act 1981, sub-paragraph (ii) is
repealed.
13. Modification of Corporations legislation applying to
voluntary winding up
15 After section 36D(1)(b) of the Associations
Incorporation Act 1981 insert--
'(ba) in the case of a winding up under Division 1,
the provisions of Part 5.6 of the Corporations
Act apply as if, after section 532(1)(b), there
20 were inserted--
"; or
(c) in the case of an incorporated association
with gross assets of $10 000 or less or any
higher amount that is prescribed, a person
25 appointed by the incorporated association
who is--
(i) a member of CPA Australia; or
(ii) a member of the Institute of Chartered
Accountants in Australia; or
30 (iii) a person, or a member of a class of
persons, approved by the Registrar who
the Registrar is satisfied has the
requisite skills and experience to act as
a liquidator of incorporated associations
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s. 14
generally or for a specified
incorporated association or class of
incorporated associations."; and'.
14. Reinstatement of cancelled association
5 In section 37 of the Associations Incorporation
Act 1981, for sub-section (1) substitute--
"(1) If the Registrar is satisfied that the
incorporation of an association should not
have been cancelled, the Registrar may
10 reinstate the association as an incorporated
association.".
15. Register
In section 39 of the Associations Incorporation
Act 1981, for sub-section (1) substitute--
15 "(1) The Registrar must keep a register of
incorporated associations open for public
inspection in the form determined by the
Registrar.
(1A) The purposes of keeping the register are--
20 (a) to enable members of the public to have
access to information about the
purposes, rules, contact details and
public officers of incorporated
associations in Victoria;
25 (b) to enable members of the public to have
access to the annual returns of
incorporated associations in Victoria.
(1B) The register must include details of the
following in relation to each incorporated
30 association--
(a) incorporated association number issued
by the Registrar;
(b) incorporated association name;
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s. 15
(c) previous names of the incorporated
association and the dates they were
current;
(d) current registered address and date
5 registered;
(e) previous registered address and date
registered;
(f) current postal address;
(g) current status of incorporation;
10 (h) date incorporated or cancelled;
(i) name and date of appointment of
current public officer;
(j) name and date of appointment of
previous public officer;
15 (k) date on which the financial year of the
incorporated association ends;
(l) copy of each annual return lodged and
date of lodgment;
(m) date of last annual general meeting;
20 (n) whether or not the incorporated
association is a prescribed association;
(o) copy of current statement of purposes
and date approved;
(p) copy of current rules and date
25 approved;
(q) any business name that has been
registered;
(r) Australian Business Number (if any)
issued under the A New Tax System
30 (Australian Business Number) Act
1999 (Commonwealth) issued to the
incorporated association;
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s. 16
(s) any information prescribed by the
regulations as forming part of the
register.".
16. New sections 39B and 39C inserted
5 After section 39A of the Associations
Incorporation Act 1981 insert--
"39B. Restriction of personal information
(1) A person whose personal information is held
on the register of incorporated associations
10 may apply to the Registrar to restrict public
access to some or all of that personal
information.
(2) If the Registrar is satisfied that exceptional
circumstances exist justifying the restriction
15 of public access to that person's personal
information, the Registrar may restrict public
access to some or all of that personal
information.
(3) The restriction of public access under sub-
20 section (2) may be for the period and on the
conditions that the Registrar thinks fit.
(4) If the Registrar is satisfied that it is in the
public interest that restricted personal
information be released to a person who
25 applies for it, the Registrar may release some
or all of the information to the person on any
condition that the Registrar thinks fit.
(5) If the Registrar decides to release restricted
personal information, the Registrar must give
30 written notice of the decision to the person
whose restricted personal information is to
be released.
(6) The Registrar must not release restricted
personal information until 28 days after
35 giving written notice of the decision to
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s. 17
release the information to the person whose
restricted personal information is to be
released.
39C. Rights of review
5 (1) A person whose interests are affected by a
decision of the Registrar under section 39B
may apply to the Tribunal for review of that
decision.
(2) An application for review under sub-section
10 (1) must be lodged with the Tribunal within
28 days after--
(a) notice of the decision was given; or
(b) if, under section 45 of the Victorian
Civil and Administrative Tribunal
15 Act 1998, the person requests a
statement of reasons for the decision,
the day on which the statement of
reasons is given to the person or the
person is informed under section 46(5)
20 of that Act that a statement of reasons
will not be given.".
17. Method of lodgment
In section 45A of the Associations Incorporation
Act 1981, for sub-sections (2) and (3)
25 substitute--
"(2) If the Registrar receives from a person a
copy of a document under sub-section (1),
the Registrar may require that person to
produce and lodge the original of the
30 document.
(2A) The Registrar may require a person to
produce and lodge the original of any
document an incorporated association is
required to keep under this Act.
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s. 18
(2B) Sub-sections (2) and (2A) do not apply to
any document--
(a) created by a person using software
approved by the Director of Consumer
5 and Business Affairs and lodged on an
Internet site operated by the State; and
(b) forwarded by electronic transmission to
the Registrar.
(2C) A person must comply with a requirement of
10 the Registrar under sub-section (2) or (2A)
within 28 days of the person receiving the
request from the Registrar or such longer
time as determined by the Registrar.
Penalty: 5 penalty units.
15 (3) If the person does not comply with a
requirement of the Registrar within the
period specified in sub-section (2C), the
person is to be taken not to have lodged the
document.
20 (4) An incorporated association must keep the
original of any document lodged with the
Registrar, whether lodged in electronic or
other form, for a period of 7 years after the
date of lodging.
25 Penalty: 20 penalty units.".
18. New section 45D inserted
After section 45C of the Associations
Incorporation Act 1981 insert--
"45D. Waiver or refund of fees
30 The Registrar may, in a particular case or
class of cases--
(a) waive or reduce fees that would
otherwise be payable under this Act; or
12
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s. 19
(b) refund, in whole or in part, fees paid
under this Act.".
19. Continuing offences
In section 50A of the Associations Incorporation
5 Act 1981--
(a) in sub-section (2)(c), after "convicted" insert
"or found guilty";
(b) in sub-section (2)(d), after "conviction"
insert "or finding of guilt";
10 (c) in sub-section (3)(a), after "convicted" insert
"or found guilty";
(d) in sub-section (4), for "fine of" substitute
"fine not exceeding".
20. New section 55 inserted
15 After section 54 of the Associations
Incorporation Act 1981 insert--
"55. Transitional provisions--pending
applications
(1) If, immediately before the commencement of
20 section 3 of the Business Licensing
Legislation (Amendment) Act 2002, an
application has been made to the Registrar
for incorporation of an association but the
Registrar had not decided to grant, or refuse
25 to grant, a certificate of incorporation to the
association, the Registrar must make his or
her decision in accordance with this Act as in
force immediately before the commencement
of that section.
30 (2) Section 37(1) as amended by section 14 of
the Business Licensing Legislation
(Amendment) Act 2002 applies to an
incorporated association that has been
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Part 2--amendment of Associations Incorporation Act 1981
s. 21
deregistered before or after the
commencement of section 14 of that Act.".
21. Schedule
In item 12 of the Schedule to the Associations
5 Incorporation Act 1981, after "seal" insert "(if
any)".
__________________
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Act No.
Part 3--amendment of business names Act 1962
s. 22
PART 3--AMENDMENT OF BUSINESS NAMES ACT 1962
22. Definitions
See:
In section 4(1) of the Business Names Act Act No.
1962-- 6853/1962.
Reprint No. 5
5 (a) the definitions of "machine-copy" and as at 11 March
1999 and
"transparency" are repealed; amending
Act Nos
(b) insert the following definition-- 17/1999,
35/2000 and
' "personal information" has the same 44/2001.
LawToday:
meaning as in section 3 of the www.dms.
10 Information Privacy Act 2000;'. dpc.vic.
gov.au
23. Register of business names
In section 6 of the Business Names Act 1962, for
sub-sections (1) and (2) substitute--
"(1) The Director must keep a register of business
15 names open for public inspection in the form
determined by the Director.
(2) The purpose of keeping the register is to
enable members of the public to have access
to the contact details for the business and the
20 persons responsible for the business
operating under the business name.
(2A) The register must include details of the
following in relation to registered business
names--
25 (a) business number issued by the Director;
(b) business name;
(c) current status of registration (registered
or registration cancelled);
(d) date of registration or cancellation of
30 registration;
15
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Part 3--amendment of business names Act 1962
s. 23
(e) date business commenced;
(f) renewal of registration date;
(g) nature of business;
(h) current registered address of the
5 business and date address registered;
(i) previous registered address and date of
cessation as registered address;
(j) current postal address;
(k) each current address in the State where
10 the business is carried on and date
business commenced at that address;
(l) previous address in the State where the
business was carried on and date
business ceased at that address;
15 (m) current proprietor's name and date of
commencement;
(n) current proprietor's residential address;
(o) current proprietor's previous name and
date of change of name;
20 (p) former proprietor's name and date of
cessation as proprietor;
(q) former proprietor's last recorded
residential address;
(r) former proprietor's previous name and
25 date of change of name;
(s) Australian Business Number (if any)
issued under the A New Tax System
(Australian Business Number) Act
1999 (Commonwealth);
30 (t) Internet site address maintained for the
purposes of the business in relation to
which the business name is registered;
16
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s. 24
(u) any information prescribed by the
regulations as forming part of the
register.
(2B) The Director may request from a person who
5 carries on or seeks to carry on a business
under a registered business name any
information or authorisation, in addition to
that listed in sub-section (2), which the
Director determines is necessary for the
10 administration of this Act.
(2C) If, under sub-section (2B), a person who
carries on or seeks to carry on a business
under a registered business name is
requested by the Director to provide
15 additional information, that person must
provide the information to the Director
within 28 days after receiving the request.
(2D) Any additional information obtained under
sub-section (2C) does not form part of the
20 register.".
24. Registration of business name
In section 7 of the Business Names Act 1962--
(a) in sub-section (1), for "An application for the
registration of a business name shall be made
25 by lodging with the Director a statement in
the form approved by the Director which
shall be signed by the person or persons
carrying on or proposing to carry on business
in the State under that name" substitute "A
30 person may apply for the registration of a
business name by lodging with the Director
an application in the form approved by the
Director which is signed in accordance with
section 15 and";
35 (b) in sub-section (2), for "statement" substitute
"application";
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s. 25
(c) in sub-section (3), for "a statement"
substitute "an application";
(d) in sub-section (6), for "statement" (where
twice occurring) substitute "application".
5 25. Resident agents
Section 8 of the Business Names Act 1962 is
repealed.
26. Renewal of registration
In section 11(1) of the Business Names Act 1962
10 for "a statement" substitute "an application".
27. Notification of changes in particulars etc.
(1) In section 12 of the Business Names Act 1962,
for sub-sections (1), (1A) and (1C) substitute--
"(1) A notice must be lodged with the Director if
15 a business name is registered under this Act
and a change occurs--
(a) which renders the description of the
nature of the business lodged with the
Director insufficient to disclose the true
20 nature of the business; or
(b) in the registered business address or the
address of the place or places at which
business is carried on under that name;
or
25 (c) in any other address nominated as a
postal address or electronic mailing
address.
(1A) The notice referred to in sub-section (1)
must--
30 (a) be in the form approved by the Director
and contain the date and particulars of
the change; and
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(b) be signed in accordance with
section 15; and
(c) be lodged with the Director within one
month after the change occurred or, if a
5 later time is allowed by the Director,
within that later time; and
(d) in the case of a change in a nominated
address, specify the new address, the
date of the change and any other
10 prescribed particulars.".
(2) In section 12 of the Business Names Act 1962--
(a) in sub-section (2)--
(i) for "statement" substitute "notice";
(ii) for "by one of the persons in relation to
15 whom the name is registered"
substitute "in accordance with
section 15";
(b) in sub-section (3)--
(i) for "statement" substitute "notice";
20 (ii) for "by each person who was carrying
on business under that name
immediately before the cessation or in
the case of a deceased person by his
personal representative" substitute "in
25 accordance with section 15 or, in the
case of a deceased person, by his or her
personal representative";
(c) in sub-section (4)--
(i) for "statement" (where twice occurring)
30 substitute "notice";
(ii) for "by each person carrying on
business under that name immediately
after that person commenced carrying
on business under that name"
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substitute "in accordance with
section 15";
(d) sub-sections (5), (6) and (7) are repealed;
(e) in sub-sections (8), (9), (10) and (11) for
5 "statement" (wherever occurring) substitute
"notice".
28. Duty to furnish information
In section 13(1) of the Business Names Act 1962,
in paragraph (b) for "statement" substitute
10 "document".
29. Disability of persons in default
In section 14(1) of the Business Names Act 1962,
for "statement" (where three times occurring)
substitute "notice".
15 30. New section 15 substituted
For section 15 of the Business Names Act 1962,
substitute--
"15. Signing of documents
(1) A document required to be lodged under this
20 Act may be signed by--
(a) the person carrying on, or seeking to
carry on, the business under the
business name; or
(b) if more than one person carries on, or
25 seeks to carry on that business, any one
of those persons who is authorised in
writing to sign on behalf of the other
persons; or
(c) any person authorised in writing to sign
30 on behalf of the person or persons
carrying on, or seeking to carry on, the
business under the business name; or
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(d) in the case of a corporation, by a
director or secretary authorised to sign
on behalf of the corporation.
(2) If the Director is satisfied that it is not
5 practicable to obtain the signature of a
person required by this Act to sign a
document the Director may accept the
document for registration without it being
signed by that person.
10 (3) Despite sub-section (2), a person is not
relieved of the requirement to sign a
document and a document not signed by any
person is not by reason only of its
registration under this Act evidence relating
15 to that person's interest in a business.".
31. Signatures
In section 15AA of the Business Names Act 1962
omit "statement or" (where three times occurring).
32. Approval of special lodging arrangements
20 (1) In section 15AB(1), (2) and (5) of the Business
Names Act 1962, for "statements" (wherever
occurring) substitute "documents".
(2) In section 15AB(5), (7) and (8) of the Business
Names Act 1962, for "statement" (wherever
25 occurring) substitute "document".
33. New section 15AC inserted
After section 15AB of the Business Names Act
1962 insert--
"15AC. Waiver or refund of fees
30 The Director may, in a particular case or
class of cases--
(a) waive or reduce fees that would
otherwise be payable under this Act; or
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(b) refund, in whole or in part, fees paid
under this Act.".
34. Verification of particulars
In section 16 of the Business Names Act 1962 for
5 "statement" (where three times occurring)
substitute "document".
35. False or misleading statements
(1) In section 17(1) of the Business Names Act
1962--
10 (a) for "a statement required" substitute "a
document required";
(b) for "the statement required" substitute "the
document required".
(2) In section 17(2) of the Business Names Act 1962,
15 for "statement" (where first, third, fifth and sixth
occurring) substitute "document".
36. Retention of records
In section 17A of the Business Names Act 1962,
for "statement" (where four times occurring)
20 substitute "document".
37. Cancellation of registration
In section 19(1) of the Business Names Act
1962--
(a) in paragraph (a)--
25 (i) for "statement" (where first, second and
fourth occurring) substitute "notice";
(ii) for "statement" (where third occurring)
substitute "document";
(b) in paragraph (e) for "statement" (where twice
30 occurring) substitute "notice".
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38. Registrar may correct errors in register etc.
In section 21(4) of the Business Names Act 1962
for "statement" (where three times occurring)
substitute "document".
5 39. New sections 22, 22A and 22B substituted
For section 22 of the Business Names Act 1962,
substitute--
"22. Inspection of the register
(1) A person may, on payment of the prescribed
10 fee (if any), inspect or obtain a copy of or
extract from any information contained in
the register.
(2) A person may, on payment of the prescribed
fee (if any), request a copy of or extract from
15 any information contained in the register,
certified by the Director.
(3) This section does not entitle a person to
inspect, obtain a copy of or extract from, any
document lodged with the Director or any
20 information not forming part of the register.
(4) In any proceedings, a copy of or extract from
any information contained in the register,
certified to be a true copy or extract by the
Director, is admissible in evidence.
25 22A. Restriction of personal information
(1) A person whose personal information is held
on the register may apply to the Director to
restrict public access to some or all of that
personal information.
30 (2) If the Director is satisfied that exceptional
circumstances exist justifying the restriction
of public access to that person's personal
information, the Director may restrict public
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access to some or all of that personal
information.
(3) The restriction of public access under sub-
section (2) may be for the period and on the
5 conditions that the Director thinks fit.
(4) If the Director is satisfied that it is in the
public interest that restricted personal
information be released to a person who
applies for it, the Director may release some
10 or all of the information to the person on any
condition that the Director thinks fit.
(5) If the Director decides to release restricted
personal information, the Director must give
written notice of the decision to the person
15 whose restricted personal information is to
be released.
(6) The Director must not release restricted
personal information until 28 days after
giving written notice of the decision to
20 release the information to the person whose
restricted personal information is to be
released.
22B. Rights of review
(1) A person whose interests are affected by a
25 decision of the Director under section 22A
may apply to the Tribunal for review of the
decision.
(2) An application for review under sub-section
(1) must be lodged with the Tribunal within
30 28 days after--
(a) notice of the decision was given; or
(b) if, under section 45 of the Victorian
Civil and Administrative Tribunal
Act 1998, the person requests a
35 statement of reasons for the decision,
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the day on which the statement of
reasons is given to the person or the
person is informed under section 46(5)
of that Act that a statement of reasons
5 will not be given.".
40. Authority of Director to destroy documents and
validation
In section 25 of the Business Names Act 1962,
for "notice" (where twice occurring) substitute
10 "document".
41. Service of notices
Section 31(1)(b) of the Business Names Act 1962
is repealed.
42. Regulations
15 In section 32(1) of the Business Names Act
1962--
(a) in paragraph (a)--
(i) omit "required to be lodged";
(ii) for "such document" substitute
20 "information contained in the register";
(b) paragraph (b) is repealed;
(c) in paragraph (da) for "statements in forms
prescribed" substitute "any information
supplied in forms";
25 (d) in paragraph (dd) for "statements" substitute
"documents".
43. New section 34 inserted
After section 33 of the Business Names Act 1962
insert--
30 "34. Further transitionals
(1) If, immediately before the commencement of
section 25 of the Business Licensing
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Legislation (Amendment) Act 2002, a
person was the resident agent of a person or
persons in relation to whom a business name
is registered and that resident agent ceases to
5 be the resident agent or changes their name
or address, the person or persons in relation
to whom a business name is registered must
lodge a notice in accordance with sub-
section (2).
10 (2) The notice referred to in sub-section (1) must
be--
(a) in the form approved by the Director
and contain particulars of the date of
the cessation or change; and
15 (b) signed by--
(i) the person or one of the persons in
whose name the business name is
registered at the time of the
cessation or change of name or
20 address; or
(ii) the person who has ceased to be
the resident agent or changed their
name or address or his or her
personal representative; and
25 (c) lodged with the Director within one
month of the change occurring or, if a
later time is allowed by the Director,
within that later time.".
__________________
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PART 4--AMENDMENT OF ESTATE AGENTS ACT 1980
44. Definitions
See:
In section 4(1) of the Estate Agents Act 1980-- Act No.
9428/1980.
(a) insert the following definition-- Reprint No. 7
as at
5 ' "Fund" means the Estate Agents' 13 January
Guarantee Fund established under this 2000 and
amending
Act;'; Act Nos
35/2000,
(b) in the definition of "registered office", for 74/2000,
11/2001,
"under section 34" substitute "in the
44/2001,
10 register". 72/2001,
84/2001 and
9/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
45. Application for estate agent's licence
In section 17(2) of the Estate Agents Act 1980,
for paragraph (c) substitute--
"(c) be accompanied by--
15 (i) the name, occupation and contact
details of 3 character references (at
least one of whom is a former or
current employer of the applicant); and
(ii) if the applicant has applied to be
20 granted a licence in accordance with
section 14(1)(a), full particulars of the
applicant's employment as an agent's
representative during the relevant
period; and
25 (iii) a statement by the applicant certifying
that the particulars contained in the
application are true and correct.".
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46. Certain documents to be lodged by particular
corporations
(1) In section 19(1) of the Estate Agents Act 1980,
for paragraphs (a) and (b) substitute--
5 "(a) in the case of a corporation with one or more
directors who hold an estate agent's licence,
a statement made by one of those directors--
(i) certifying that he or she has the
authority to make the application on
10 behalf of the corporation; and
(ii) declaring the name and address of each
director and the secretary of the
corporation and of the officer in
effective control of its proposed estate
15 agency business; and
(iii) certifying that the particulars contained
in the application are true and correct;
(b) in the case of a corporation without a
director who holds a current estate agent's
20 licence, but where one or more of the
directors have lodged an application for an
estate agent's licence, a statement made by
one of the directors who has lodged such an
application--
25 (i) certifying that he or she has the
authority to make the application on
behalf of the corporation; and
(ii) declaring the name and address of each
director and the secretary of the
30 corporation and of the officer in
effective control of its proposed estate
agency business; and
(iii) certifying that the particulars contained
in the application are true and correct;
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(c) in the case of a private corporation with a
director who holds an estate agent's licence,
a statement made by that director--
(i) certifying that he or she has the
5 authority to make the application on
behalf of the corporation; and
(ii) declaring the name and address of each
member of the corporation; and
(iii) declaring--
10 (A) the number and type of shares
held by each member of the
corporation; and
(B) whether those shares confer voting
rights; and
15 (C) whether the member holds shares
on behalf of another person and, if
so, the name and address of that
person; and
(iv) certifying that the particulars contained
20 in the application are true and correct;
(d) in the case of a private corporation without a
director who holds a current estate agent's
licence, but where one or more of the
directors have lodged an application for an
25 estate agent's licence, a statement made by
one of those directors--
(i) certifying that he or she has the
authority to make the application on
behalf of the corporation; and
30 (ii) declaring the name and address of each
member of the corporation; and
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(iii) declaring--
(A) the number and type of shares
held by each member of the
corporation; and
5 (B) whether those shares confer voting
rights; and
(C) whether the member holds shares
on behalf of another person and, if
so, the name and address of that
10 person; and
(iv) certifying that the particulars contained
in the application are true and correct.".
(2) In section 19 of the Estate Agents Act 1980, sub-
section (2) is repealed.
15 47. New section 19A inserted
After section 19 of the Estate Agents Act 1980
insert--
"19A. Consent to disclosure of information
(1) The Authority may require a licensee or an
20 applicant for an estate agent's licence to
provide the Authority, at the time of
submitting the application or at any time
during the currency of the licence, with any
consent required by another person or body
25 to enable the Authority to check or confirm
information relevant to the licence or
application.
(2) Without limiting sub-section (1), consent
includes--
30 (a) the consent of the licensee or the
applicant; and
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(b) the consent of another person other than
the licensee or the applicant; and
(c) if the licensee or applicant is a
corporation or a private corporation, the
5 consent of a director of the corporation
and, in the case of a private
corporation, the consent of a member of
the private corporation.
(3) The Authority may refuse to consider an
10 application for an estate agent's licence under
section 17 if the applicant does not provide
to the Authority the required consent within
14 days after the requirement is made.".
48. New section 20A inserted
15 After section 20 of the Estate Agents Act 1980
insert--
"20A. Provision of information for the purposes
of this Act
For the purposes of determining compliance
20 with this Act or for carrying out the
functions of the Authority or the Director
under this Act--
(a) the Authority may disclose to the
Director any information collected in
25 the course of carrying out the
Authority's functions under this Act;
and
(b) the Director may disclose to the
Authority any information collected in
30 the course of carrying out the Director's
functions under this Act; and
(c) the Director must disclose to the
Authority the details of any successful
claim made on the Fund in relation to
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an estate agent or an agent's
representative.".
49. Requirements for regaining licence etc. in special
circumstances
5 In section 31A of the Estate Agents Act 1980,
after sub-section (2) insert--
"(2A) An application under this section must--
(a) be in the form approved by the
Authority; and
10 (b) contain the information required by the
Authority; and
(c) be accompanied by the documents
required by the Authority; and
(d) be accompanied by the prescribed fee
15 (if any).
(2B) In considering an application under this
section, the Authority may--
(a) conduct any inquiries it thinks fit;
(b) require the applicant to provide any
20 further information relating to the
application that the Authority thinks fit
in the manner required by the
Authority;
(c) seek advice and information on the
25 application from any other person or
body as it thinks fit.
(2C) The Authority may refuse to give its
permission if the applicant does not provide
the further information required, or his or her
30 consent for the Authority to obtain that
information, within a reasonable time after
the requirement is made.".
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50. Requirements for allowing limited right to hold
licence etc.
In section 31B of the Estate Agents Act 1980,
after sub-section (2) insert--
5 "(2A) An application under this section must--
(a) be in the form approved by the
Authority; and
(b) contain the information required by the
Authority; and
10 (c) be accompanied by the documents
required by the Authority; and
(d) be accompanied by the prescribed fee
(if any).
(2B) In considering an application under this
15 section, the Authority may--
(a) conduct any inquiries it thinks fit;
(b) require the applicant to provide any
further information that the Authority
thinks fit in the manner required by the
20 Authority;
(c) seek advice and information on the
application from any other person or
body as it thinks fit.
(2C) The Authority may refuse to give its
25 permission if the applicant does not provide
the further information required, or his or her
consent for the Authority to obtain that
information, within a reasonable time after
the requirement is made.".
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51. Requirements for being allowed limited right to hold
licence etc.
In section 31C of the Estate Agents Act 1980,
after sub-section (2) insert--
5 "(2A) An application under this section must--
(a) be in the form approved by the
Authority; and
(b) contain the information required by the
Authority; and
10 (c) be accompanied by the documents
required by the Authority; and
(d) be accompanied by the prescribed fee
(if any).
(2B) In considering an application under this
15 section, the Authority may--
(a) conduct any inquiries it thinks fit;
(b) require the applicant to provide any
further information that the Authority
thinks fit in the manner required by the
20 Authority;
(c) seek advice and information on the
application from any other person or
body as it thinks fit.
(2C) The Authority may refuse to consider the
25 application if the applicant does not provide
the further information required, or his or her
consent for the Authority to obtain that
information, within a reasonable time after
the requirement is made.".
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52. New section 33 substituted
For sections 33, 34 and 34A of the Estate Agents
Act 1980, substitute--
"33. The Register
5 (1) The Registrar must keep a register of estate
agents and agent's representatives open for
public inspection in the form determined by
the Registrar.
(2) The purposes of keeping the register are--
10 (a) to enable members of the public to have
access to information about--
(i) licensed estate agents and agent's
representatives;
(ii) other people involved in estate
15 agency business; and
(b) to record the names of all persons
declared ineligible to hold a licence or
to be an agent's representative.
(3) The register must contain details of the
20 following in relation to each licensed estate
agent or estate agency business--
(a) licence number issued by the Authority;
(b) name and registered office;
(c) date of grant, surrender, cancellation or
25 suspension of the licence;
(d) licence conditions;
(e) any Tribunal or court orders concerning
the estate agent or agent's
representative that affects the licence or
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status of the agent's representative of
which the Registrar has notice;
(f) any claims allowed by the Fund (or any
like fund established under a previous
5 enactment) in relation to a licensed
estate agent or agent's representative of
which the Registrar has notice;
(g) address and telephone number of the
principal office of the licensed estate
10 agent;
(h) if the licensed estate agent has branch
offices--
(i) the address of each branch office;
(ii) the name of each branch manager;
15 (iii) the date of appointment of each
branch manager;
(iv) the date of cessation of
appointment of each branch
manager;
20 (i) if the licensed estate agent is operating
under a franchise agreement--
(i) the name and address of the
franchisor;
(ii) the date of commencement of the
25 franchise agreement;
(iii) the date of cessation of the
franchise agreement;
(j) if the licensed estate agent is a
corporation--
30 (i) the name of each director;
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(ii) the date of appointment of each
director;
(iii) the date of cessation of
appointment of each director;
5 (iv) the name of the officer in effective
control;
(v) the date of appointment of the
officer in effective control;
(vi) the date of cessation of
10 appointment of the officer in
effective control;
(k) if the licensed estate agent is an
employee of a licensed estate agent, the
name and address of the employer;
15 (l) if the licensed estate agent employs
agent's representatives--
(i) the name and registered address of
each agent's representative
employed by the licensee;
20 (ii) the date of commencement of
employment of each agent's
representatives;
(iii) the date of cessation of
employment of each agent's
25 representative;
(m) if a licensed estate agent employs
licensed estate agents--
(i) the name of each licensed estate
agent employee;
30 (ii) the date of commencement of
employment of each licensed
estate agent employee;
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(iii) the date of cessation of
employment of each licensed
estate agent employees;
(n) all business names under which the
5 licensed estate agent conducts estate
agency business;
(o) Australian Business Number (if any)
issued under the A New Tax System
(Australian Business Number) Act
10 1999 (Commonwealth) issued to the
licensed estate agent;
(p) Internet site address maintained by the
licensee for the purposes of an estate
agency business.
15 (4) The register must also contain details of--
(a) all applications for licences refused by
the Authority during the last two years;
(b) all permission determinations under
section 31A, 31B or 31C;
20 (c) any other information prescribed by the
regulations as forming part of the
register.
(5) A person in accordance with the regulations
(if any) and on payment of the prescribed fee
25 (if any) may--
(a) inspect the register; and,
(b) obtain copies of, or extracts from, the
register.
(6) Subject to the Public Records Act 1973, the
30 Registrar may, if in his or her opinion it is no
longer necessary or desirable to retain it,
remove any information from the register
12 years after the information was added to
the register.
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(7) In the exercise and performance of his or her
duties under this section the Registrar must
act on any information which appears to the
Registrar sufficient in each case.".
5 53. Franchising agreement
In section 43(2) of the Estate Agents Act 1980, in
paragraph (a), for "the prescribed form"
substitute "a form approved by the Authority".
54. Annual audit of trust accounts
10 In section 64 of the Estate Agents Act 1980--
(a) in sub-section (3), after "report" insert "for a
period of 7 years";
(b) at the foot of sub-section (3) insert--
"Penalty: 20 penalty units.";
15 (c) in sub-section (9), for "such form" substitute
"the form approved by the Director".
55. Consequential amendment
In section 71 of the Estate Agents Act 1980, omit
the definition of "Fund".
20 56. Claims against the Fund
In section 81(1) of the Estate Agents Act 1980,
for "in writing in the prescribed form to the
Secretary supported by affidavit or statutory
declaration" substitute "in the form approved by
25 the Director and containing the prescribed
particulars and accompanied by any documents
required by the Director.".
57. New section 92 substituted
For section 92 of the Estate Agents Act 1980
30 substitute--
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Part 4--amendment of Estate Agents ACT 1980
s. 58
"92. Certificate as evidence
A certificate, signed or purporting to be
signed by the Registrar, certifying as to any
matter relating to the contents of the register
5 is evidence of that matter.".
58. New sections 98 and 98A inserted
After section 97A of the Estate Agents Act 1980,
insert--
"98. Retention of documents
10 (1) If, under this Act, a person is permitted or
required to send a copy of any document or
notice to the Director or Authority, the
original document or notice must be retained
by the person for at least 7 years.
15 Penalty: 20 penalty units.
(2) Sub-section (1) does not apply to any
document or notice--
(a) created by a person using software
approved by the Director and lodged on
20 an Internet site operated by the State;
and
(b) forwarded by electronic transmission to
the Director or Authority.
(3) Any document that a person is required to
25 keep by this Act or the regulations must be
retained by the person for at least 7 years
from the date of its creation.
Penalty: 20 penalty units.
98A. Offence to destroy documents required by
30 the Act
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Part 4--amendment of Estate Agents ACT 1980
s. 59
(1) A person must not destroy, conceal, mutilate
or alter any document that the person is
required to retain under this Act.
Penalty: 100 penalty units.
5 (2) It is a defence to a charge under sub-section
(1) if the person charged can establish that
the destruction, concealment, mutilation or
alteration of the document was not done with
the intention of defeating the purposes of this
10 Act.".
59. Regulations
(1) In section 99(d) of the Estate Agents Act 1980,
after "accounts" insert "documents".
(2) In section 99(g) of the Estate Agents Act 1980,
15 after "searches of" insert ", copies of, or extracts
from".
(3) At the end of section 99 of the Estate Agents Act
1980 insert--
"(2) The regulations under this Act may prescribe
20 fees that differ according to differences in
circumstances.".
__________________
41
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Business Licensing Legislation (Amendment) Act 2002
Act No.
Part 5--amendment of motor car traders act 1986
s. 60
PART 5--AMENDMENT OF MOTOR CAR TRADERS ACT
1986
60. Application for licence
See: In section 8(2) of the Motor Car Traders Act
Act No.
5 1986--
104/1986.
Reprint No. 4
(a) in paragraph (b), for "each partner"
as at
1 September
substitute "one of the partners who has the
1999 and
authority of the other partners to sign on
amending
Act Nos
behalf of those partners";
101/1998 (as
amended by
10 (b) in paragraph (c), for "the director, secretary
No. 74/2000),
or officer of" substitute "a director of the
35/2000,
27/2001,
body corporate who has the authority of the
44/2001 and
other directors to sign on behalf of".
84/2001.
LawToday:
www.dms.
dpc.vic.
gov.au
61. New section 11A inserted
15 After section 11 of the Motor Car Traders Act
1986 insert--
"11A. Consent to disclosure of information
(1) The Authority may require a licensee or an
applicant for a motor car trader's licence to
20 provide the Authority, at the time of
submitting the application or at any time
during the currency of the licence, with any
consent required by another person or body
to enable the Authority to check or confirm
25 information relevant to the licence or
application.
(2) Without limiting sub-section (1), consent
includes--
(a) the consent of the licensee or the
30 applicant; and
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s. 62
(b) the consent of another person other than
the licensee or the applicant; and
(c) if the licensee or applicant is a
corporation, the consent of a director of
5 the corporation or a member of the
corporation.
(3) The Authority may refuse to consider an
application for a licence if the applicant does
not provide the Authority with the required
10 consent within 14 days after the requirement
is made.".
62. New section 12A inserted
After section 12 of the Motor Car Traders Act
1986 insert--
15 "12A. Provision of information for the purposes
of this Act
Despite anything to the contrary in
section 18 of the Business Licensing
Authority Act 1998, for the purposes of
20 determining compliance with this Act and
for carrying out the functions of the
Authority or the Director under this Act--
(a) the Authority may disclose to the
Committee, any information collected
25 in the course of carrying out the
Authority's functions under this Act;
and
(b) the Director may disclose to the
Authority and the Committee, any
30 information collected in the course of
carrying out the Director's functions
under this Act;
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s. 63
(c) the Committee must disclose to the
Authority the details of any successful
claim made on the Fund in relation to a
motor car trader; and
5 (d) the Committee may disclose to the
Authority and the Director, any
information collected by the Committee
in the course of carrying out the
Committee's functions under this Act in
10 relation to the Fund.".
63. Grant or refusal of licence
In section 13 of the Motor Car Traders Act
1986, for "convicted of a serious offence"
(wherever occurring) insert "convicted or been
15 found guilty of a serious offence (whether or not a
conviction was recorded)".
64. Register
(1) In section 22 of the Motor Car Traders Act
1986, for sub-sections (1) and (2) substitute--
20 "(1) The Registrar must keep a register of motor
car traders open for public inspection in the
form determined by the Registrar.".
(2) In section 22 of the Motor Car Traders Act
1986, after sub-section (3) insert--
25 "(4) The purposes of the register are--
(a) to enable members of the public to have
access to information about licensees;
and
(b) to record the name of any person,
30 partnership or body corporate declared
ineligible to be a licensee or director of,
partner of or person concerned in the
management of, a motor car trader or
any person declared ineligible to be
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Business Licensing Legislation (Amendment) Act 2002
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Part 5--amendment of motor car traders act 1986
s. 64
employed in a customer service
capacity by a motor car trader.
(5) The register must contain details of the
following in relation to licensed motor car
5 traders--
(a) licence number issued by the Authority;
(b) name of licensee;
(c) date licence granted;
(d) date licence surrendered, cancelled or
10 suspended;
(e) licence conditions;
(f) details of any Tribunal or court orders
concerning the licensee affecting the
licence and of which the Registrar has
15 notice;
(g) details of any claims allowed by the
Fund (or any like fund established
under a previous enactment) in relation
to a licensee and of which the Registrar
20 has notice;
(h) business names under which a licensee
is authorised to operate, including the
date of commencement and cessation of
operating under those names;
25 (i) business addresses and telephone
numbers of any premises from which a
motor car trading business is
conducted, including the date of
commencement and cessation of
30 business at those premises;
(j) if the licensee is a corporation--
(i) the names of the directors;
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s. 64
(ii) the date of appointment of each
director;
(iii) the date of cessation of
appointment of each director;
5 (k) if the licensee is a partnership--
(i) the names of the partners;
(ii) the date each person became a
partner;
(iii) the date a partner ceased to be a
10 partner;
(l) Australian Business Number (if any)
issued under the A New Tax System
(Australian Business Number) Act
1999 (Commonwealth);
15 (m) Internet site address maintained by the
licensee for the purposes of a motor car
trader's business.
(6) The register must also contain details of--
(a) all permission determinations made
20 under sections 29A, 29B and 29C;
(b) all applications for a licence refused by
the Authority during the last two years;
(c) any other information prescribed by the
regulations as forming part of the
25 register.
(7) Subject to the Public Records Act 1973, the
Registrar may, if in his or her opinion it is no
longer necessary or desirable to retain it,
remove any information from the register
30 12 years after the information was added to
the register.
(8) In the exercise and performance of his or her
duties under this section, the Registrar must
46
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Part 5--amendment of motor car traders act 1986
s. 65
act on any information which appears to the
Registrar sufficient in each case.".
65. Automatic cancellation of licence on bankruptcy etc.
In section 28 of the Motor Car Traders Act
5 1986, for "convicted of a serious offence"
(wherever occurring) substitute "convicted or
been found guilty of a serious offence (whether or
not a conviction was recorded)".
66. Person involved in Guarantee Fund claim may regain
10 licence etc. in special circumstances
(1) After section 29A(1) of the Motor Car Traders
Act 1986 insert--
'(1A) For the purposes of this section, "person"
includes a person who was a director of a
15 corporation, or a partner in a partnership,
against which a claim was allowed in
relation to a transaction that occurred while
the person was a director of the corporation
or a partner in the partnership.'.
20 (2) After section 29A(2) of the Motor Car Traders
Act 1986 insert--
"(2A) An application under this section must be in
the form approved by the Authority and
contain any information and be accompanied
25 by any documents required by the Authority.
(2B) In considering an application under this
section, the Authority may--
(a) conduct any inquiries it thinks fit;
(b) require the applicant to provide any
30 further information that the Authority
thinks fit in the manner required by the
Authority;
47
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Part 5--amendment of motor car traders act 1986
s. 67
(c) seek advice and information on the
application from any other person or
body as it thinks fit.
(2C) The Authority may refuse to give its
5 permission if the applicant does not provide
the further information required, or his or her
consent for the Authority to obtain that
information, within a reasonable time after
the requirement is made.".
10 67. Limited right to hold licence etc.
(1) In section 29B(1) of the Motor Car Traders Act
1986, for "convicted of a serious offence" insert
"convicted or been found guilty of a serious
offence (whether or not a conviction was
15 recorded)".
(2) After section 29B(2) of the Motor Car Traders
Act 1986 insert--
"(2A) An application under this section must be in
the form approved by the Authority and
20 contain any information and be accompanied
by any documents required by the Authority.
(2B) In considering an application under this
section, the Authority may--
(a) conduct any inquiries it thinks fit;
25 (b) require the applicant to provide any
further information that the Authority
thinks fit in the manner required by the
Authority;
(c) seek advice and information on the
30 application from any other person or
body as it thinks fit.
(2C) The Authority may refuse to give its
permission if the applicant does not provide
48
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Act No.
Part 5--amendment of motor car traders act 1986
s. 68
the further information required, or his or her
consent for the Authority to obtain that
information, within a reasonable time after
the requirement is made.".
5 68. Permission to continue to hold licence despite
criminal act of partner or director
(1) In section 29C(1) of the Motor Car Traders Act
1986, for "convicted of a serious offence"
substitute "convicted or been found guilty of a
10 serious offence (whether or not a conviction was
recorded)".
(2) After section 29C(2) of the Motor Car Traders
Act 1986, insert--
"(2A) An application under this section must be in
15 the form approved by the Authority and
contain any information and be accompanied
by any documents required by the Authority.
(2B) In considering an application under this
section, the Authority may--
20 (a) conduct any inquiries it thinks fit;
(b) require the applicant to provide any
further information that the Authority
thinks fit in the manner required by the
Authority;
25 (c) seek advice and information on the
application from any other person or
body as it thinks fit.
(2C) The Authority may refuse to consider the
application if the applicant does not provide
30 the further information required, or his or her
consent for the Authority to obtain that
information, within a reasonable time after
the requirement is made.".
69. Prohibited employees
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Business Licensing Legislation (Amendment) Act 2002
Act No.
Part 5--amendment of motor car traders act 1986
s. 70
In section 35A(1)(b) of the Motor Car Traders
Act 1986, for "convicted of a serious offence"
substitute "convicted or been found guilty of a
serious offence (whether or not a conviction was
5 recorded)".
70. Determination of claims
(1) In section 76(1) of the Motor Car Traders Act
1986, for "the prescribed form verified by a
statutory declaration" substitute "a form approved
10 by the Committee".
(2) After section 76(1) of the Motor Car Traders
Act 1986 insert--
"(1A) The person making the claim must certify in
the claim that the particulars contained in the
15 claim are true and correct and that the person
is aware that making a false or misleading
statement is an offence under section 84A
with a maximum penalty of 50 penalty units
or, in the case of a body corporate,
20 100 penalty units.
(1B) The Committee may specify how any
information supplied to it under this Part is
to be verified and, without limiting the scope
of this power, may require that the
25 information be supplied in the form of, or be
verified by, a statutory declaration.".
71. New section 83A substituted
For section 83A of the Motor Car Traders Act
1986 substitute--
30 "83A. Retention of documents
(1) If, under this Act, a person is permitted or
required to send a copy of any document or
notice to the Director, Authority or
Committee, the original document or notice
50
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Part 5--amendment of motor car traders act 1986
s. 72
must be retained by the person for a period
of 7 years.
Penalty: 20 penalty units.
(2) Sub-section (1) does not apply to any
5 document or notice--
(a) created by a person using software
approved by the Director and lodged on
an Internet site operated by the State;
and
10 (b) forwarded by electronic transmission to
the Director, Authority or Committee.
(3) Any document that a person is required to
keep by this Act or the regulations must be
retained by the person for at least 7 years
15 from the date of its creation.
Penalty: 20 penalty units.".
72. Offence to destroy documents required by the Act
In section 83B(1) of the Motor Car Traders Act
1986, at the foot of the sub-section, for
20 "240 penalty units or imprisonment for 2 years or
both" substitute "100 penalty units".
73. False or misleading statements
In section 84A(1) of the Motor Car Traders Act
1986, at the foot of the sub-section, after "units"
25 insert ", in the case of a natural person, and, in the
case of a corporation, 100 penalty units".
74. Certificates
For section 87 of the Motor Car Traders Act
1986 substitute--
30 "87. Certificates
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Act No.
Part 5--amendment of motor car traders act 1986
s. 75
A certificate signed or purporting to be
signed by the Registrar and certifying as to
any matter relating to the register is evidence
of that matter.".
5 75. Regulations
(1) After section 90(1)(f) of the Motor Car Traders
Act 1986 insert--
"(g) prescribing the documents, accounts and
records to be kept by licensed motor car
10 traders and the manner of keeping them and
the period for which they must be kept; and".
(2) In section 90(2) of the Motor Car Traders Act
1986--
(a) in paragraph (c), for "regulations."
15 substitute "regulations; and";
(b) after paragraph (c) insert--
"(d) may prescribe fees that differ according
to differences in circumstances.".
__________________
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Business Licensing Legislation (Amendment) Act 2002
Act No.
Part 6--amendment of Travel Agents Act 1986
s. 76
PART 6--AMENDMENT OF TRAVEL AGENTS ACT 1986
76. Application for licence
See:
(1) In section 8(2)(b) of the Travel Agents Act 1986, Act No.
for "at least two directors of the body corporate or, 52/1986.
5 Reprint No. 3
if the body corporate has only one director, by that as at
director" substitute "one director of the body 1 September
1999 and
corporate". amending
Act Nos
(2) After section 8(2) of the Travel Agents Act 1986 35/2000 and
insert-- 44/2001.
LawToday:
10 "(2A) If the application is signed by a director of a www.dms.
dpc.vic.
body corporate, the application must include gov.au
a statement that the director--
(a) certifies that he or she has the authority
to make the application on behalf of the
15 body corporate; and
(b) certifies that the particulars contained
in the application are true and correct;
and
(c) certifies that the accompanying
20 documents (if any) are true copies of
those documents.".
(3) At the foot of section 8(7) of the Travel Agents
Act 1986, after "units" insert ", in the case of a
natural person, and, in the case of a corporation,
25 100 penalty units".
77. New section 8A inserted
After section 8 of the Travel Agents Act 1986
insert--
"8A. Consent to disclosure of information
30 (1) The Authority may require a licensee, or a
person submitting an application for a
licence, or a person appointed as, or
53
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Part 6--amendment of Travel Agents Act 1986
s. 78
proposed to be appointed as, the person in
charge of the day-to-day conduct of a travel
agency business, to provide to the Authority,
at the time of submitting the application or at
5 any time during the currency of the licence,
any consent required by another person or
body to enable the Authority to check or
confirm information relevant to the licence
or application.
10 (2) Without limiting sub-section (1), consent
includes--
(a) the consent of the licensee or the
applicant; and
(b) the consent of another person other than
15 the licensee or applicant; and
(c) if the licensee or applicant is a
corporation, the consent of a director of
the corporation or a member of the
corporation.
20 (3) The Authority may refuse to consider an
application for a licence if the applicant does
not provide to the Authority the required
consent within 14 days after the requirement
is made.".
25 78. Register
In section 15 of the Travel Agents Act 1986, for
sub-sections (1) and (2) substitute--
"(1) The Registrar must keep a register of
licensed travel agents open for public
30 inspection in the form determined by the
Registrar.
(2) The purposes of the register are--
(a) to enable members of the public to have
access to information about licensees;
54
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Part 6--amendment of Travel Agents Act 1986
s. 78
(b) to record the names of people
disqualified under section 21(2) or
refused a licence under section 10(2)(e)
or (f) or section 10(4)(g) or (h).
5 (2A) The register must include the following
information--
(a) licence number issued by the Authority;
(b) name of licensee;
(c) date licence granted;
10 (d) date licence surrendered, cancelled or
suspended;
(e) licence conditions;
(f) details of any Tribunal or court orders
concerning the licensee affecting the
15 licence and of which the Registrar has
notice;
(g) business names under which a licensee
is authorised to carry on travel agency
business, including the date of
20 commencement and cessation of
business in that name;
(h) business addresses and telephone
numbers of any premises from which
the travel agency business is conducted
25 and, in each place of business, the
manager of that place, including the
date of commencement and cessation of
business at that place and the date of
the manager's commencement and
30 cessation of appointment;
(i) if the licensee is a corporation, the
names of the directors and the date of
55
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Act No.
Part 6--amendment of Travel Agents Act 1986
s. 79
appointment and cessation of
appointment of each director;
(j) if the licensee carries on business in a
partnership, the names of the partners;
5 (k) Australian Business Number (if any)
issued under the A New Tax System
(Australian Business Number) Act
1999 (Commonwealth);
(l) Internet site address maintained by the
10 licensee for the purposes of a travel
agent's business;
(m) any other information prescribed by the
regulations as forming part of the
register.
15 (2B) Subject to the Public Records Act 1973, the
Registrar may, if in his or her opinion it is no
longer necessary or desirable to retain it,
remove any information from the register
12 years after the information was added to
20 the register.".
79. Annual fee and annual statement
(1) In section 17 of the Travel Agents Act 1986 sub-
section (4) is repealed.
(2) In section 17(11) of the Travel Agents Act
25 1986--
(a) for "8(6)" substitute "8(5)";
(b) omit "or a change of the person in charge at
an unchanged place of business".
(3) After section 17(11) of the Travel Agents Act
30 1986 insert--
'(11A) If at any time during the period of the licence
the licensee proposes to replace the person in
charge of a place of business with another
person (the "proposed person")--
56
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s. 80
(a) the licensee must notify the Authority
in the form approved by the Authority;
and
(b) the licensee must pay the prescribed fee
5 (if any) for lodgment of the notice.
(11B) The Authority may--
(a) conduct any inquiries it thinks fit;
(b) require the proposed person to provide
any further information that the
10 Authority thinks fit in the manner
required by the Authority;
(c) seek advice and information on the
proposed person from any other person
or body or source it thinks fit.'.
15 80. New section 41 inserted
After section 40 of the Travel Agents Act 1986
insert--
"41. Retention of documents
(1) If, under this Act, a person is permitted or
20 required to send a copy of any document or
notice to the Director or Authority, the
original document or notice must be retained
by the person for a period of 7 years.
Penalty: 20 penalty units.
25 (2) Sub-section (1) does not apply to any
document or notice--
(a) created by a person using software
approved by the Director and lodged on
an Internet site operated by the State;
30 and
(b) forwarded by electronic transmission to
the Director or Authority.
57
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s. 81
(3) Any document that a person is required to
keep by this Act or the regulations must be
retained by the person for at least 7 years
from the date of its creation.
5 Penalty: 20 penalty units.".
81. False or misleading statements
In section 42B of the Travel Agents Act 1986,
for sub-section (1) substitute--
"(1) A person must not give information or make
10 a statement that is false or misleading by
reason of the inclusion of any false or
misleading matter or the omission of any
material matter, in relation to anything
covered by this Act.
15 Penalty: 50 penalty units for a natural
person or, in the case of a body
corporate, 100 penalty units.".
82. New section 42D inserted
After section 42C of the Travel Agents Act 1986
20 insert--
"42D. Offence to destroy records required by the
Act
(1) A person must not destroy, conceal, mutilate
or alter any record that the person is required
25 to keep by this Act or the regulations.
Penalty: 100 penalty units.
(2) It is a defence to a charge under sub-section
(1) if the person charged can prove that the
destruction, concealment, mutilation or
30 alteration of the document was not done with
the intention of defeating the purposes of this
Act.".
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Act No.
Part 6--amendment of Travel Agents Act 1986
s. 83
83. Regulations
After section 48(3) of the Travel Agents Act
1986 insert--
"(3A) The regulations may prescribe fees that
5 differ according to differences in
circumstances.
(3B) The regulations may prescribe the
documents, accounts and records required to
be kept by licensed travel agents and the
10 manner of keeping them and the period for
which they must be kept.".
__________________
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Act No.
Part 7--amendment of business Licensing authority Act 1998
s. 84
PART 7--AMENDMENT OF BUSINESS LICENSING
AUTHORITY ACT 1998
84. Definition
See: In section 3(1) of the Business Licensing
Act No.
5 Authority Act 1998 insert the following
49/1998
and definition--
amending
Act Nos
' "personal information" has the same meaning
46/1998 and
as in section 3 of the Information Privacy
17/1999.
LawToday:
Act 2000;'.
www.dms.
dpc.vic.
gov.au
10 85. Delegation by Authority
In section 11 of the Business Licensing
Authority Act 1998, for paragraphs (a) and (b)
substitute--
"(a) a power to determine an application made by
15 a person for a licence or for permission to be,
or continue to be, licensed or to be, or
continue to be, a director or partner of a
licensee or to be employed by a licensee
despite that person being otherwise
20 ineligible; and
(b) this delegation power.".
86. New sections 17A and 17B inserted
After section 17 of the Business Licensing
Authority Act 1998 insert--
25 "17A. Restriction of personal information
(1) A person whose personal information is held
on any register kept by the Registrar under a
business licensing Act may apply to the
Authority to restrict public access to some or
30 all of that personal information.
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Part 7--amendment of business Licensing authority Act 1998
s. 86
(2) If the Authority is satisfied that exceptional
circumstances exist justifying the restriction
of public access to that person's personal
information, the Authority may restrict
5 public access to some or all of that personal
information.
(3) The restriction of public access under sub-
section (2) may be for the period and on the
conditions that the Authority thinks fit.
10 (4) If the Authority is satisfied that it is in the
public interest that restricted personal
information be released to a person who
applies for it, the Authority may release
some or all of the information to that person
15 on such conditions as the Authority thinks
fit.
(5) If the Authority decides to release restricted
personal information, the Authority must
give written notice of the decision to the
20 person whose restricted personal information
is to be released.
(6) The Authority must not release restricted
personal information for 28 days after giving
written notice of the decision to release the
25 information to the person whose restricted
personal information is to be released.
17B. Rights of review
(1) A person whose interests are affected by a
decision of the Authority under section 17A
30 may apply to the Tribunal for review of that
decision.
(2) An application for review under sub-section
(1) must be lodged with the Tribunal within
28 days after--
35 (a) notice of the decision was given; or
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Business Licensing Legislation (Amendment) Act 2002
Act No.
Part 7--amendment of business Licensing authority Act 1998
s. 86
(b) if, under section 45 of the Victorian
Civil and Administrative Tribunal
Act 1998, the person requests a
statement of reasons for the decision--
5 the day on which the statement of
reasons is given to the person or the
person is informed under section 46(5)
of that Act that a statement of reasons
will not be given.".
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Business Licensing Legislation (Amendment) Act 2002
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
63
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