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This is a Bill, not an Act. For current law, see the Acts databases.
Clause Page
Motor Car Traders (Amendment) Act 1996
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Changes to definitions 2
4. Insertion of section 7A 6
7A. Deemed trading in motor cars 6
5. Insertion of section 11A 7
11A. Authority may require further information 7
6. Clarification of grounds on which licence objection may be made 8
7. Additional grounds of ineligibility for licences 8
8. Insertion of section 13A 11
13A. Meaning of "associate" in section 13 11
9. Changes concerning licence conditions 13
10. Insertion of section 15A 14
15A. 2 year ban on applying for licence after refusal of
application 14
11. Each partner must give notice of partnership changes 14
12. Additional reason for a licence to be returned to the Registrar 14
13. Substitution of sections 23 and 24 15
23. Annual licence fee and statement 15
24. Extension of time 16
24A. Failure to comply with section 23 16
14. Surrendered licence must be returned to the Authority 16
15. Substitution of sections 28 and 29 17
28. Automatic cancellation of licence on bankruptcy etc. 17
29. Automatic suspension of licence if Fund claim upheld 18
29A. Person involved in Guarantee Fund claim may regain
licence etc. in special circumstances 18
29B. Person with criminal record may be allowed limited right
to hold licence etc. 19
29C. Permission to continue to hold licence despite criminal
act of partner or director 20
29D. Authority may impose conditions 20
16. Substitution of section 30 21
30. Disciplinary action 21
30A. Authority may temporarily suspend insolvent etc. trader
without hearing 23
17. Changes concerning the Authority's disciplinary powers 24
18. Insertion of sections 31A and 31B 25
31A. Effect of suspension 26
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31B. Suspended and cancelled licences must be returned 26
19. Changes concerning applications to the AAT 26
20. Substitution of section 33 26
33. Disability etc. of licensee 26
21. Insertion of section 33A 28
33A. Injunction to stop unlicensed trading 28
22. Changes concerning the dealings book 28
23. Insertion of sections 35A and 35B 29
35A. Prohibited employees 29
35B. Transitional provision concerning existing employees 30
24. Substitution of section 36 31
36. Consignment selling prohibited 31
25. Changes concerning odometer tampering 32
26. Insertion of section 42A 32
42A. All registered cars must be sold with a roadworthy
certificate 32
27. Clarification concerning cooling-off period 33
28. Prohibition of arbitrary ending of sale clauses to apply to all cars 33
29. Changes concerning recission orders 33
30. Insertion of sections 50A and 50B 34
50A. Offence to aid or abet an unlicensed trader 34
50B. Right to sue providers of certain services to unlicensed
traders 36
31. Changes to the mandatory statutory warranty for used cars 37
32. Extension of grounds for Guarantee Fund claims 40
33. Changes concerning the admittance or refusal of Guarantee Fund
claims 42
34. Changes concerning subrogation of claims 42
35. Changes to Part headings 42
"PART 5A--ENFORCEMENT PROVISIONS 43
Division 1--General". 43
"PART 6--MISCELLANEOUS". 43
36. Changes concerning inspection powers 43
37. Insertion of sections 82A-82H 43
82A. Authority may require licensee to supply information 43
82B. Verification of details supplied to the Authority 44
82C. Extended time for prosecutions 44
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Division 2--Infringement Notices 44
82D. Power to serve a notice 44
82E. Form of notice 45
82F. Late payment of penalty 45
82G. Withdrawal of notice 46
82H. Further proceedings concerning infringement notices 46
38. Insertion of sections 83A-83D 48
83A. Records must be held for 7 years 48
83B. Offence to destroy documents required by the Act 48
83C. Motor car traders must supply copies of agreements etc. 48
83D. Complaints concerning motor car trader are privileged 49
39. Changes concerning false or misleading statements 49
40. Substitution of section 86 50
86. Service of notices 50
41. Insertion of sections 88A and 88B 50
88A. Agreement not illegal etc. by reason of offence 50
88B. Agreement voidable if section 37, 38, 41 or 42 breached 51
42. Changes concerning regulation-making powers 52
43. Substitution of section 107 53
107. Costs 53
44. Registrar may divert refund money 53
45. Change concerning the functions of Deputy Registrars 54
46. Substitution of section 112 54
112. Authority may request Director to investigate matters 54
47. Addition to list of those who may ask for extension of time or
amendment 54
48. Insertion of section 115A 55
115A. Simplified procedure concerning proof that person
traded in motor cars 55
49. Change to secrecy provision 56
50. Changes to penalties 56
51. Minor consequential amendments 57
52. Amendment of the Small Claims Tribunals Act 1973 57
53. Amendment to the Second-Hand Dealers and Pawnbrokers
Act 1989 58
54. Statute law revision 59
NOTES 60
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531053B.I1-25/10/96 BILL LA INTRODUCTION 25/10/96
A BILL
to amend the Motor Car Traders Act 1986, the Small Claims
Tribunals Act 1973 and the Second-Hand Dealers and
Pawnbrokers Act 1989 and for other purposes.
Motor Car Traders (Amendment) Act
1996
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Motor
Car Traders Act 1986--
(a) to change the circumstances in which the
statutory warranty relating to the sale of used
5
cars by motor car traders applies; and
(b) to increase the jurisdiction of the Small
Claims Tribunal with respect to complaints
concerning motor car traders; and
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s. 2
Act No.
(c) to require all registered cars to be sold with a
roadworthy certificate; and
(d) to enable offences under the Act to be dealt
with by way of infringement notices; and
(e) to exempt licensed motor car traders who
5
deal in used car parts from the licensing
requirements of the Second-Hand Dealers
and Pawnbrokers Act 1989; and
(f) to generally improve the operation of the
Act.
10
2. Commencement
(1) This section and section 1 come into operation on
the day on which this Act receives the Royal
Assent.
(2) Section 13(2) comes into operation on a day to be
15
proclaimed after 30 June 1997.
(3) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
(4) If a provision referred to in sub-section (2) or (3)
does not come into operation on or before 1 July
20
1998, it comes into operation on that day.
3. Changes to definitions
(1) In section 3(1) of the Motor Car Traders Act
1986--
(a) for the definition of "commercial vehicle"
25
substitute--
' "commercial vehicle" means--
(a) in relation to a motor car that was
manufactured in, or imported into,
Australia on or after 1 July 1988, a
30
car--
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s. 3 Act No.
(i) that is of a type that is classified
as a goods carrying vehicle by the
Department of Transport of the
Commonwealth (or by any
successor of that Department);
5
and
(ii) that has a vehicle category code of
MD, ME, NA, NB or NC (or any
other code specified by the
regulations for the purposes of this
10
definition) stamped on its
compliance plate (regardless of
whether that code appears by itself
or in combination with one or
more numbers);
15
(b) in relation to a motor car that was
manufactured in, or imported into,
Australia before 1 July 1988, a car
constructed or adapted solely or mainly
for--
20
(i) the carriage of goods; or
(ii) the carriage of more than 10
passengers; or
(iii) industrial or agricultural use--
and includes a car with a carrying
25
capacity of 1200 kg or more, but does
not include a car of a type commonly
called a panel van, a station wagon or a
utility;';
(b) after the definition of "determination"
30
insert--
' "director", in relation to a body corporate,
has the same meaning as in section 9 of
the Corporations Law;';
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s. 3
Act No.
(c) after the definition of "hire-purchase
agreement" insert--
' "insolvent under administration" means a
person who is a bankrupt in respect of a
bankruptcy from which the person has
5
not been discharged and includes--
(a) a person who has executed a deed
of arrangement under Part X of
the Bankruptcy Act 1966 of the
Commonwealth (or the
10
corresponding provisions of the
law of another jurisdiction) where
the terms of the deed have not
been fully complied with; and
(b) a person whose creditors have
15
accepted a composition under
Part X of the Bankruptcy Act
1966 of the Commonwealth (or
the corresponding provisions of
the law of another jurisdiction)
20
where a final payment has not
been made under that
composition;
"licence" means a motor car trader's licence;
"licensed auctioneer" means a person who
25
holds a current auctioneer's licence
under the Auction Sales Act 1958;';
(d) after the definition of "owner" insert--
' "prescribed" means prescribed by this Act
or the regulations;
30
"public auction" means an auction at which
people other than licensed motor car
traders may attend and bid;';
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s. 3 Act No.
(e) after the definition of "security interest"
insert--
' "serious offence" means an offence
involving fraud, dishonesty, drug
trafficking or violence punishable by
5
imprisonment for 3 months or more;'.
(2) For section 3(3)(e)(i) of the Motor Car Traders
Act 1986 substitute--
"(i) whose last owner or user was a government
department or a public statutory authority;
10
or".
(3) After section 3(4) of the Motor Car Traders Act
1986 insert--
"(5) A reference to a person who is disqualified
from holding a licence includes a reference
15
to a person who is disqualified from holding
a licence to act, or from acting, as a motor
car trader in any State or Territory
(regardless of whether or not motor car
traders are referred to by that name in the
20
relevant jurisdiction).
(6) A reference to a conviction for an offence
includes a reference to--
(a) a finding of guilt in relation to the
offence; and
25
(b) a conviction or finding of guilt in
Australia or elsewhere.
(7) A reference to a date, code or other marking
on a compliance plate, metal plate or metal
component only refers to a date, code or
30
marking stamped, engraved or otherwise
placed on the plate or component in
accordance with a law of the Commonwealth
or of a State or Territory.
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Act No.
(8) A reference to a claim being admitted
against the Fund includes a reference to a
claim being admitted against the Motor Car
Traders' Guarantee Fund established under
the Motor Car Traders Act 1973.
5
(9) A reference to a person includes a reference
to a partnership, unless a contrary intention
appears.".
4. Insertion of section 7A
After section 7 of the Motor Car Traders Act
10
1986 insert--
'7A. Deemed trading in motor cars
(1) A person who buys, sells or exchanges, or
offers to buy, sell or exchange, 4 or more
motor cars in any period of 12 months
15
(whether as a principal or as an agent) is
deemed to be a motor car trader carrying on
a business of trading in motor cars.
(2) Sub-section (1) does not apply if the person
can prove that she, he or it did not, in that
20
period, carry on the business of trading in
motor cars and did not hold herself, himself
or itself out as carrying on the business of
trading in motor cars.
(3) In counting the number of motor cars
25
bought, sold or exchanged by a person, any
purchase, sale or exchange--
(a) that is an exempt transaction for the
purposes of the definition of "trading in
motor cars" is not to be counted;
30
(b) that is from, to or with a licensed motor
car trader is not to be counted.
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s. 5 Act No.
(4) In counting the number of motor cars offered
for purchase, sale or exchange by a person,
any offer--
(a) that would result in an exempt
transaction for the purposes of the
5
definition of "trading in motor cars" if
it was to be accepted is not to be
counted;
(b) that is made to a licensed motor car
trader is not to be counted.
10
(5) In this section an offer to sell includes an
invitation to treat and the publishing (or
authorising the publication) of an
advertisement.
(6) A person who buys, sells or exchanges less
15
than 4 motor cars in any period of 12 months
may still be a motor car trader carrying on a
business of trading in motor cars, and
nothing in this section is intended to interfere
with that possibility.'.
20
5. Insertion of section 11A
After section 11 of the Motor Car Traders Act
1986 insert--
"11A. Authority may require further information
(1) The Authority may ask a person who has
25
applied for a licence for more information
concerning the application if it is reasonably
necessary to help it to decide whether to
grant the application.
(2) The Authority may refuse to grant a licence
30
to a person if she, he or it does not give it the
extra information asked for within a
reasonable time of being asked for the
information.
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Motor Car Traders (Amendment) Act 1996
s. 6
Act No.
(3) The period from when more information is
asked for until when the information is
supplied is not to be counted in calculating
the 28 days referred to in section 13(2).".
6. Clarification of grounds on which licence objection
5
may be made
(1) In section 12 of the Motor Car Traders Act 1986
before "If" insert "(1)".
(2) At the end of the section 12 of the Motor Car
Traders Act 1986 insert--
10
"(2) An objection may be made--
(a) in respect of any of the matters listed in
section 13(4) or (5), if the applicant is a
natural person; and
(b) in respect of any of the matters listed in
15
section 13(6), if the applicant is a
partnership or body corporate; and
(c) on any other ground that is relevant to
the issue of whether or not the applicant
should be granted a licence.".
20
7. Additional grounds of ineligibility for licences
(1) In section 13(4) of the Motor Car Traders Act
1986--
(a) for paragraphs (b) and (c) substitute--
"(b) the applicant is disqualified from
25
holding a licence; or
(c) the applicant is an insolvent under
administration; or";
(b) after paragraph (h) insert--
"; or
30
(i) the applicant is not likely to maintain
effective control of such a business; or
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s. 7 Act No.
(j) the applicant is a director or officer of a
corporation that is disqualified from
holding a licence or was a director or
officer of such a corporation when the
corporation was disqualified; or
5
(k) the applicant is a represented person
within the meaning of the
Guardianship and Administration
Board Act 1986; or
(l) the applicant has been convicted of a
10
serious offence within the last 10 years
(unless the applicant has obtained
permission under section 29B); or
(m) the applicant has had a claim admitted
against the Fund (unless the applicant
15
has obtained permission under section
29A).".
(2) In section 13(5) of the Motor Car Traders Act
1986--
(a) after "sub-section (4)(g)" insert "or (6)(f)";
20
(b) for paragraphs (a), (b) and (c) substitute--
"(a) is an associate (within the meaning of
section 13A) of a person who has,
within the last 10 years, been convicted
of a serious offence; or
25
(b) is an associate (within the meaning of
section 13A) of a body corporate that
has a director or secretary who has,
within the last 10 years, been convicted
of a serious offence; or
30
(c) was, at the time of the making of the
determination, the subject of a charge
pending in relation to a serious
offence.".
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s. 7
Act No.
(3) After section 13(6)(j) of the Motor Car Traders
Act 1986 insert--
"; or
(k) the partnership or body corporate is not
likely to maintain effective control of such a
5
business;
(l) a partner or director of, or a person
concerned in the management of, the
partnership or body corporate--
(i) is a represented person within the
10
meaning of the Guardianship and
Administration Board Act 1986; or
(ii) has been convicted of a serious offence
(unless she, he or it has obtained
permission under section 29B); or
15
(iii) has had a claim admitted against the
Fund (unless she, he or it has obtained
permission under section 29A); or
(iv) is disqualified from holding a licence;
or
20
(m) the body corporate has been convicted of a
serious offence (unless it has obtained
permission under section 29B);
(n) the partnership or body corporate has had a
claim admitted against the Fund (unless it
25
has obtained permission under section
29A).".
(4) In section 13(7) of the Motor Car Traders Act
1986--
(a) for "or (h)" substitute ", (h) or (i)";
30
(b) for "or (b)" substitute ", (b), (l), (m) or (n)".
(5) After section 13(10) of the Motor Car Traders
Act 1986 insert--
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s. 8 Act No.
"(11) Subject to this Act, a licence authorises the
motor car trader to whom it has been granted
to be, and to act, as a motor car trader until
the licence is surrendered, suspended or
cancelled.".
5
8. Insertion of section 13A
After section 13 of the Motor Car Traders Act
1986 insert--
'13A. Meaning of "associate" in section 13
(1) For the purposes of section 13(5), a natural
10
person is an associate of another person if
she or he--
(a) is the spouse or defacto partner of that
other person; or
(b) is a business partner of that other
15
person or has entered into a business
arrangement or relationship with that
other person.
(2) For the purposes of section 13(5), a natural
person is an associate of a body corporate if
20
she or he--
(a) is a director or secretary of the body
corporate or a spouse or defacto partner
of such a director or secretary; or
(b) holds or will hold any relevant financial
25
interest, or is or will be entitled to
exercise any relevant power (whether in
her or his own right or on behalf of any
other person), in the business of the
body corporate and thereby is able or
30
will be able to exercise a significant
influence over, or with respect to, the
management or operation of that
business; or
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s. 8
Act No.
(c) holds or will hold any relevant position
(whether in her or his own right or on
behalf of any other person) in the
business of the body corporate.
(3) For the purposes of section 13(5), a body
5
corporate is an associate of a person if it--
(a) is a business partner of that other
person; or
(b) holds or will hold any relevant financial
interest, or is or will be entitled to
10
exercise any relevant power (whether in
its own right or on behalf of any other
person), in the business of the body
corporate and thereby is able or will be
able to exercise a significant influence
15
over, or with respect to, the
management or operation of that
business.
(4) In this section--
"relevant financial interest", in relation to
20
a business, means--
(a) any share in the capital of the
business; or
(b) any entitlement to receive any
income derived from the
25
business; or
(c) any entitlement to receive any
payment as a result of money
advanced to the business;
"relevant position", in relation to a
30
business, means the position of
director, manager, secretary or other
executive position, however that
position is designated;
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s. 9 Act No.
"relevant power", in relation to a business,
means any power, whether exercisable
by voting or otherwise and whether
exercisable alone or in association with
others--
5
(a) to participate in any directorial,
managerial or executive decision
in the business; or
(b) to elect or appoint any person to
any relevant position in the
10
business.'.
9. Changes concerning licence conditions
(1) For section 14(1) of the Motor Car Traders Act
1986 substitute--
"(1) The Authority may--
15
(a) impose conditions that must be
complied with before it grants a
licence; and
(b) on granting a licence, and at any other
time, impose conditions or restrictions
20
on a licence; and
(c) at any time on the application of any
person, or of its own motion, vary or
revoke any of those conditions or
restrictions.".
25
(2) After section 14(2) of the Motor Car Traders
Act 1986 insert--
"(3) Without limiting the generality of sub-
section (1), the Authority may require as a
condition that the person who holds, or is to
30
hold, the licence must provide the Authority
with a guarantee or an indemnity in a form,
and secured in a manner, specified by the
Authority.".
35
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s. 10
Act No.
10. Insertion of section 15A
After section 15 of the Motor Car Traders Act
1986 insert--
"15A. 2 year ban on applying for licence after
refusal of application
5
(1) If a person's application for a licence is
refused by the Authority, the person is not
entitled to lodge another application for a
licence within 2 years after the refusal.
(2) If the Authority is satisfied that there are
10
special circumstances in a particular case, it
may permit a person to lodge an application
within 2 years after the refusal.".
11. Each partner must give notice of partnership changes
(1) In section 20(2) of the Motor Car Traders Act
15
1986, for "or a former member of the partnership"
substitute "and each person who was a member
of the partnership immediately before the
change".
(2) After section 20(2) of the Motor Car Traders
20
Act 1986 insert--
"(3) A former member of a partnership need not
comply with sub-section (2) if she or he
knows the partnership or another former
member has already given written notice of
25
the change to the Registrar.".
12. Additional reason for a licence to be returned to the
Registrar
After section 21(c) of the Motor Car Traders
Act 1986 insert--
30
"; or
(d) commences to carry on business at a
place--".
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Motor Car Traders (Amendment) Act 1996
s. 13 Act No.
13. Substitution of sections 23 and 24
(1) Sections 23 and 24 of the Motor Car Traders
Act 1986 are repealed.
(2) After section 22 of the Motor Car Traders Act
1986 insert--
5
"23. Annual licence fee and statement
(1) A licensee must pay to the Authority the
annual licence fee required by the
regulations on each anniversary of the date
the licensee was last issued a licence under
10
section 13 (or under section 15 of the Motor
Car Traders Act 1973).
(2) An annual licence fee may be paid at any
time in the 6 weeks before it falls due.
(3) The payment must be accompanied by a
15
statement in respect of the year up to the date
that the payment is made that is in a form
approved by the Authority and that is
signed--
(a) by the licensee, if the licensee is a
20
natural person; or
(b) if the licensee is a body corporate, by a
director of the body corporate; or
(c) if the licensee is a partnership, by a
partner.
25
(4) The statement must contain any information,
and be accompanied by any documents,
required by the Authority.
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s. 14
Act No.
24. Extension of time
(1) On payment of any late fee required by the
regulations, a person may apply to the
Authority for an extension of time, or a
further extension of time, in which to comply
5
with section 23.
(2) The Authority may grant the application if it
is made before the date in relation to which
the extension is sought.
24A. Failure to comply with section 23
10
(1) If a licensee fails to comply with section 23,
the Authority must give the licensee a
written notice stating that unless the licensee
complies with that section and also pays to
the Authority the late payment or lodgement
15
fee required by the regulations by the date
specified in the notice, the licensee's licence
will be cancelled.
(2) The date specified in the notice must be at
least 14 days after the date on which the
20
notice is given to the licensee.
(3) If the licensee has not complied with section
23 and paid the late payment or lodgement
fee by the date specified in the notice, the
licence is automatically cancelled.".
25
14. Surrendered licence must be returned to the Authority
After section 27(2) of the Motor Car Traders
Act 1986 insert--
"(3) The person who held a licence that has been
surrendered must return the licence to the
30
Authority within 14 days of surrendering it.
Penalty: 10 penalty units.".
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Motor Car Traders (Amendment) Act 1996
s. 15 Act No.
15. Substitution of sections 28 and 29
For sections 28 and 29 of the Motor Car Traders
Act 1986 substitute--
"28. Automatic cancellation of licence on
bankruptcy etc.
5
(1) A licence is automatically cancelled if the
licensee--
(a) becomes an insolvent under
administration; or
(b) becomes an externally-administered
10
body corporate within the meaning of
the Corporations Law; or
(c) becomes a represented person within
the meaning of the Guardianship and
Administration Board Act 1986.
15
(2) A licence is automatically cancelled 30 days
after the licensee--
(a) is convicted of a serious offence; or
(b) is disqualified from holding a licence.
(3) A licence is automatically cancelled if a
20
partner of a licensee that is a partnership, or
a director of a licensee that is a body
corporate--
(a) is convicted of a serious offence or is
disqualified from holding a licence; and
25
(b) is still a partner or director of the
licensee 30 days after the conviction or
disqualification.
(4) If a person whose licence would otherwise
be cancelled by sub-section (2)(a) or (3)(a)
30
applies for permission under section 29B or
29C within the 30 day period referred to in
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s. 15
Act No.
that sub-section, the person's licence is only
automatically cancelled if the application is
withdrawn or is refused by the Authority.
29. Automatic suspension of licence if Fund
claim upheld
5
(1) A licence is automatically suspended 30 days
after a claim is admitted against the Fund in
relation to the licensee.
(2) If a person whose licence would otherwise
be suspended by this section applies for
10
permission under section 29A before the
suspension takes effect, the person's licence
is only automatically suspended if the
application is withdrawn or is refused by the
Authority.
15
(3) This section does not apply if the
circumstances giving rise to a claim occurred
before section 15 of the Motor Car Traders
(Amendment) Act 1996 came into
operation.
20
29A. Person involved in Guarantee Fund claim
may regain licence etc. in special
circumstances
(1) This section applies to a person in relation to
whom a claim has been admitted against the
25
Fund.
(2) The person may apply to the Authority--
(a) to prevent a suspension under section
29 from taking effect or for the removal
of a suspension under that section; or
30
(b) for permission to hold, or to continue to
hold, a licence; or
(c) for permission to be employed as an
employee of a motor car trader in a
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s. 15 Act No.
customer service capacity (within the
meaning of section 35A); or.
(d) for permission to be a partner or
director of, or a person concerned in the
management of, a motor car trader.
5
(3) The Authority may grant the application if it
is satisfied--
(a) that either--
(i) the person has refunded all
amounts paid out of the Fund in
10
respect of the claim; or
(ii) the person has agreed to refund all
amounts paid out of the Fund in
respect of the claim; and
(b) that having regard to the conduct of the
15
person before and after the claim, there
is no reasonable expectation that the
person will not comply with this Act
and the regulations in future; and
(c) that the granting of the application is
20
not contrary to the public interest.
29B. Person with criminal record may be allowed
limited right to hold licence etc.
(1) This section applies to a person who has
been convicted of a serious offence within
25
the last 10 years.
(2) The person may apply to the Authority for
permission--
(a) to hold, or to continue to hold, a
licence; or
30
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s. 15
Act No.
(b) to be employed as an employee of a
motor car trader in a customer service
capacity (within the meaning of section
35A); or
(c) to be a partner or director of, or a
5
person concerned in the management
of, a motor car trader.
(3) The Authority may give its permission if it is
satisfied that it is not contrary to the public
interest for it to do so.
10
29C. Permission to continue to hold licence
despite criminal act of partner or director
(1) This section applies if a licensee is a
partnership or a body corporate and a partner
or a director of the licensee is convicted of a
15
serious offence.
(2) The licensee may apply to the Authority for
permission to continue to hold its licence.
(3) The Authority may give its permission if it is
satisfied that it is not contrary to the public
20
interest for it to do so.
29D. Authority may impose conditions
(1) In granting an application under section 29A,
29B or 29C, the Authority may impose any
conditions it considers appropriate to ensure
25
the ongoing protection of the public interest.
(2) After giving the person in respect of whom
permission was given a chance to be heard,
the Authority may at any time impose
conditions in respect of the permission or
30
vary or revoke any conditions it has
previously imposed.
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(3) A person to whom permission has been
given must comply with any conditions
imposed in respect of the permission.
Penalty: 25 penalty units.
(4) After giving the person in respect of whom
5
permission has been given a chance to be
heard, if the Authority is satisfied that any
condition imposed in respect of the
permission has been contravened or not
complied with, it may revoke the
10
permission.".
16. Substitution of section 30
For section 30 of the Motor Car Traders Act
1986 substitute--
"30. Disciplinary action
15
(1) The Authority must conduct an inquiry as to
whether there is proper cause for taking
disciplinary action against a licensee if the
Director or the Chief Commissioner of
Police applies in writing for the inquiry.
20
(2) There is proper cause for taking disciplinary
action against a licensee if--
(a) the licensee improperly obtained her,
his or its licence; or
(b) the licensee has failed to comply with
25
this Act or the regulations; or
(c) the licensee does not have, or is not
likely to have, sufficient financial
resources to enable the licensee to
continue carrying on the business to
30
which the licence relates; or
(d) the licensee's motor car trading
business is being carried on in a
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s. 16
Act No.
dishonest, unfair or inefficient manner;
or
(e) the licensee or a partner, director or
officer of the licensee has engaged in
discreditable conduct; or
5
(f) the licensee or a partner or director of
the licensee or a person concerned in
the management of the licensee is not,
or has ceased to be, a fit and proper
person to be a licensee or a partner or
10
director of a licensee; or
(g) the premises of the licensee are not
suitable to carry on the business of
trading in motor cars; or
(h) the effective control of the business to
15
which the licence relates is not, or is
unlikely to remain, with the licensee; or
(i) the licensee would be refused a licence
under section 13(4) or (6) for any other
reason if the licensee were to apply for
20
a new licence.
(3) If an application for an inquiry is lodged, the
Registrar must--
(a) send a copy of the application to the
licensee; and
25
(b) advise the licensee and the person
making the application in writing of
when and where the inquiry will be
held.
(4) An inquiry must not start within 30 days of
30
the date the application for the inquiry is
lodged unless--
(a) the person who lodged the application,
or the licensee, applies to the Authority
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for the inquiry to be started within that
time; and
(b) the Authority is satisfied that there are
exceptional circumstances.
30A. Authority may temporarily suspend
5
insolvent etc. trader without hearing
(1) If an application for an inquiry includes a
ground based on section 30(2)(c), the
Director may apply to the Authority in
writing for the temporary suspension of the
10
licensee's licence.
(2) The Chairperson of the Authority or a
Deputy Chairperson may suspend the licence
for a period of up to 14 days if she or he is
satisfied that there are grounds for believing
15
that the licensee does not have sufficient
financial resources to enable the licensee to
continue carrying on the business to which
the licence relates.
(3) The Chairperson or Deputy Chairperson may
20
suspend the licence without giving the
licensee a chance to be heard and even
though the licensee has not been given notice
of either application.
(4) If the Chairperson or a Deputy Chairperson
25
considers an application under this section,
she or he must not take part in the related
inquiry under section 30.
(5) The Authority may--
(a) continue a suspension imposed under
30
sub-section (3) until the end of the
inquiry; or
(b) re-impose (from a date specified by the
Authority) a suspension on a licence
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s. 17
Act No.
formerly suspended under sub-section
(3) until the end of the inquiry; or
(c) revoke a suspension imposed under
sub-section (3).
(6) The Registrar must notify the licensee in
5
writing of any suspension imposed under this
section as quickly as possible.".
17. Changes concerning the Authority's disciplinary
powers
(1) For sections 31(1) and (2) of the Motor Car
10
Traders Act 1986 substitute--
"(1) After conducting an inquiry, if the Authority
is satisfied that proper cause for taking
disciplinary action against a licensee exists,
the Authority may do one or more of the
15
following--
(a) reprimand the licensee;
(b) order the licensee to pay the Authority
a penalty of up to $5 000;
(c) require the licensee to comply within,
20
or for, a specified time with a
requirement specified by the Authority;
(d) suspend the licensee's licence for a
specified period not exceeding 1 year;
(e) require the licensee or former licensee
25
to pay the costs of the inquiry and any
related costs;
(f) impose a condition or restriction on the
licensee's licence;
(g) if the cause for taking disciplinary
30
action involved one or more people
losing money, order the licensee to pay
compensation to one or more of those
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s. 18 Act No.
people, but not so that the total amount
the licensee must pay under this
paragraph is more than $5 000.
(2) As an alternative to taking action under one
or more of sub-sections (1)(a), (b), (c), (d)
5
and (f), the Authority may cancel the
licensee's licence and disqualify the licensee
(and any partner or director of the licensee)
from holding a licence either permanently or
for a specified period.
10
(2A) If the Authority orders the payment of an
amount under sub-section (1)(b), (e) or (g)--
(a) it may order that the amount be paid by
a specified date; and
(b) if the amount is not paid by that date, it
15
may suspend the licence until the
amount is paid and set a final payment
date; and
(c) if the amount has not been paid by that
final payment date, it may cancel the
20
licence; and
(d) it may extend any period of time it sets
under paragraph (a) or (b) at any time.
(2B) The Authority may suspend or cancel a
licence under sub-section (2A) without
25
giving the licensee a chance to be heard.".
(2) In section 31(4) of the Motor Car Traders Act
1986, after "requirement within" insert ", or for,".
18. Insertion of sections 31A and 31B
After section 31 of the Motor Car Traders Act
30
1986 insert--
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s. 19
Act No.
"31A. Effect of suspension
A person whose licence has been suspended
is to be treated as a person who does not hold
a licence while the licence is suspended,
except for the purposes of sections 23, 24,
5
24A and 27.
31B. Suspended and cancelled licences must be
returned
(1) If the Authority suspends or cancels a
licence, the person to whom the licence was
10
issued must return the licence to the
Authority within the period specified by the
Authority by notice in writing given to the
person.
Penalty: 25 penalty units.
15
(2) If a licence is automatically suspended or
cancelled under this Act, the person to whom
the licence was issued must return the
licence to the Authority within 7 days of
becoming aware of the suspension or
20
cancellation.
Penalty: 25 penalty units.".
19. Changes concerning applications to the AAT
In section 32 of the Motor Car Traders Act
1986, for "24" substitute "29A, 29B, 29C, 29D".
25
20. Substitution of section 33
For section 33 of the Motor Car Traders Act
1986 substitute--
"33. Disability etc. of licensee
(1) The following people may carry on the
30
motor car trading business of a person who
was a licensed motor car trader for 30 days
after the person ceases to be licensed--
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s. 20 Act No.
(a) if the person dies, the executor named
in the person's will or the administrator
of the person's estate or any person who
intends applying for letters of
administration in relation to the
5
person's estate;
(b) if the person becomes an insolvent
under administration, the assignee,
trustee or receiver of the person;
(c) if the person becomes a represented
10
person within the meaning of the
Guardianship and Administration
Board Act 1986, the guardian or
administrator of the person or any
person nominated by the guardian or
15
administrator;
(d) if the person becomes an externally-
administered body corporate within the
meaning of the Corporations Law, the
liquidator, official manager, receiver,
20
receiver and manager or other external
administrator.
(2) If a person authorised to carry on a business
applies to the Authority within the 30 day
period for permission to carry on the
25
business for a longer period, the person may
continue to carry on the business until the
Authority makes a decision on the
application.
(3) The Authority may grant an application if it
30
is satisfied that it is not contrary to the public
interest to do so.
(4) In granting its permission, the Authority may
limit it in any way it thinks appropriate and
may impose any conditions it thinks
35
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appropriate to ensure the ongoing protection
of the public interest.
(5) The Authority may at any time withdraw any
permission it has granted under this section
or limit, or impose, revoke or vary
5
conditions on, any such permission.
(6) A person who has been granted permission
under this section must comply with any
limitation or condition that applies to the
permission.
10
Penalty: 50 penalty units.
(7) A person who carries on a motor car trading
business under this section is deemed to be
the holder of the former licensee's licence for
the purposes of this Act.".
15
21. Insertion of section 33A
After section 33 of the Motor Car Traders Act
1986 insert--
"33A. Injunction to stop unlicensed trading
(1) The Director may apply to the Magistrates'
20
Court for an order requiring a person to stop
trading in motor cars.
(2) The Magistrates' Court may make the order
if it is satisfied that the person is trading in
motor cars and is not authorised to do so
25
under this Act.".
22. Changes concerning the dealings book
After section 35(7) of the Motor Car Traders
Act 1986 insert--
"(8) If a dealings book is kept in an electronic or
30
mechanical form--
(a) for the purposes of sub-section (2), the
motor car trader must ensure--
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s. 23 Act No.
(i) that the entries relating to a
transaction are copied on to paper;
and
(ii) that the paper is then signed as
prescribed; and
5
(iii) that all such papers are stored
together;
(b) it is sufficient compliance with sub-
section (4) if--
(i) the prescribed particulars on the
10
receipt are recorded as soon as is
practicable in the dealings book;
and
(ii) the receipt is placed with the
papers stored for the purposes of
15
sub-section (2).".
23. Insertion of sections 35A and 35B
After section 35 of the Motor Car Traders Act
1986 insert--
'35A. Prohibited employees
20
(1) A motor car trader must not employ in any
customer service capacity in connection with
her, his or its business any person who the
motor car trader knows--
(a) has had a claim admitted against the
25
Fund (unless the person has obtained
permission under section 29A);
(b) has, within the last 10 years, been
convicted of a serious offence (unless
the person has obtained permission
30
under section 29B);
(c) is for the time being disqualified from
holding a licence;
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(d) is for the time being disqualified from
being employed in any capacity in
connection with the business of a motor
car trader (regardless of whether or not
motor car traders are referred to by that
5
name in the relevant jurisdiction);
(e) has had her or his last application for a
licence refused by the Authority for any
other reason.
Penalty: 100 penalty units.
10
(2) A person who is not permitted to be
employed in a customer service capacity by
a motor car trader by this section must not
participate in a customer service capacity in
the business of a motor car trader.
15
Penalty: 100 penalty units.
(3) In this section "customer service capacity"
means any position that requires the holder
of the position to deal with members of the
public who are buying, selling or exchanging
20
motor cars or who are seeking to buy, sell or
exchange motor cars.
35B. Transitional provision concerning existing
employees
(1) Section 35A does not apply to any person
25
who was employed by a motor car trader
immediately before section 23 of the Motor
Car Traders (Amendment) Act 1996 came
into operation.
(2) However, sub-section (1) ceases to apply to a
30
person if, as a result of an event occurring
after section 23 of the Motor Car Traders
(Amendment) Act 1996 came into
operation, sub-section (1) becomes the only
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reason the person is still eligible to be
employed by a motor car trader.'.
24. Substitution of section 36
For section 36 of the Motor Car Traders Act
1986 substitute--
5
'36. Consignment selling prohibited
(1) In this section "sell a motor car by
consignment" means to sell, exchange or
otherwise dispose of a motor car, or any
interest in a motor car, as an agent for a
10
person who is not a licensed motor car trader
or a special trader.
(2) A motor car trader must not--
(a) sell a motor car by consignment, or
offer to sell a motor car by
15
consignment; or
(b) have a motor car in her, his or its
possession for the purpose of selling it
by consignment.
Penalty: 100 penalty units.
20
(3) On finding a motor car trader guilty of an
offence against this section, in addition to
any other penalty a court may impose, the
court may order the motor car trader to pay
the person on whose behalf the motor car
25
was sold all of the proceeds of the sale by
consignment.
(4) This section does not apply to sales at public
auction.'.
30
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25. Changes concerning odometer tampering
(1) In section 38 of the Motor Car Traders Act
1986--
(a) in sub-sections (1) and (2), omit "with intent
to deceive";
5
(b) for the penalty at the foot of sub-section (1)
substitute--
"Penalty: In the case of a natural person--
240 penalty units or
imprisonment for 2 years or both.
10
In the case of a body corporate--
1000 penalty units.";
(c) in sub-section (3), for "motor car trader"
(wherever occurring) substitute "person
charged".
15
(2) After section 38(3) of the Motor Car Traders
Act 1986 insert--
"(4) A person must not, in the course of selling or
exchanging a motor car, falsely represent the
accuracy of an odometer reading of the car.
20
Penalty: In the case of a natural person,
100 penalty units.
In the case of a body corporate,
500 penalty units.".
26. Insertion of section 42A
25
After section 42 of the Motor Car Traders Act
1986 insert--
'42A. All registered cars must be sold with a
roadworthy certificate
(1) A person must not sell a motor car that is
30
registered under the Road Safety Act 1986
unless the person gives the buyer of the car a
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s. 27 Act No.
current certificate of roadworthiness in
relation to the car.
Penalty: 50 penalty units.
(2) This section does not apply if the buyer is a
licensed motor car trader or a special trader.
5
(3) This section does not apply to a motor car
that is sold at a public auction by a licensed
auctioneer acting on behalf of the owner of
the car.
(4) In this section "current" means issued
10
within the last 30 days.'.
27. Clarification concerning cooling-off period
(1) In section 43(1) of the Motor Car Traders Act
1986, omit "business".
(2) After section 43(1) of the Motor Car Traders
15
Act 1986 insert--
"(1A) For the purposes of sub-section (1), a clear
day does not include any day that is--
(a) a Saturday or a Sunday; or
(b) a day that is wholly or partly observed
20
as a public holiday throughout
Victoria.".
28. Prohibition of arbitrary ending of sale clauses to
apply to all cars
In section 44 of the Motor Car Traders Act
25
1986, omit "used".
29. Changes concerning recission orders
(1) In section 45 of the Motor Car Traders Act
1986--
(a) in sub-section (1)(c), for "prescribed notice"
30
substitute "notice required by section
52(1)";
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(b) in sub-section (2), for "$20 000" substitute
"$40 000".
(2) After section 45(4) of the Motor Car Traders Act
1986 insert--
"(5) If a person applies for an order under this
5
section, the person is not eligible to make a
claim under section 76 in respect of any loss
that relates to the circumstances giving rise
to the application for the order until the
application has been heard and determined.
10
(6) The amendment made by section 29 of the
Motor Car Traders (Amendment) Act
1996 increasing the limit in sub-section (2)
from $20 000 to $40 000 only applies to
agreements entered into on or after the date
15
that section came into operation.".
30. Insertion of sections 50A and 50B
After section 50 of the Motor Car Traders Act
1986 insert--
"50A. Offence to aid or abet an unlicensed trader
20
(1) A person must not--
(a) in the course of carrying on a business,
provide any person who is not a
licensed motor car trader with motor
cars that the person knows are likely to
25
be disposed of in a manner that
constitutes trading in motor cars by the
unlicensed person; or
(b) in any other way cause or permit or aid
or abet any person who is not a licensed
30
motor car trader to carry on business as
a motor car trader.
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(2) In any proceedings against a licensee for an
offence under sub-section (1)(b), proof that
an unlicensed person--
(a) had possession of the licensee's licence;
or
5
(b) represented herself, himself or itself as
the holder of the licensee's licence with
the knowledge of the licensee--
is evidence that the licensee permitted the
unlicensed person to carry on business as a
10
motor car trader.
(3) It is a defence to a charge against a licensee
under sub-section (1)(b) if the licensee
shows--
(a) that she, he or it took all reasonable
15
steps to prevent an unlicensed person
from carrying on business under her,
his or its licence; or
(b) that she, he or it did not know, and
could not reasonably have been
20
expected to know, that the unlicensed
person was representing herself,
himself or itself as the holder of the
licensee's licence.
(4) The Director, an inspector or a member of
25
the police force may give a written notice to
a person stating that, in the opinion of the
author of the notice, motor cars are likely to
be disposed of in a manner that constitutes
trading in motor cars by an unlicensed
30
person if motor cars are provided to the
unlicensed person.
(5) A person has the knowledge referred to in
sub-section (1)(a) if, at any time before
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s. 30
Act No.
providing particular motor cars, she, he or it
was given a notice under sub-section (4).
(6) If a licensee is convicted of an offence
against this section, her, his or its licence is
automatically cancelled--
5
(a) 30 days after the conviction; or
(b) if the licensee appeals against the
conviction under section 83 or 92 of the
Magistrates' Court Act 1989 within
30 days of the conviction--
10
(i) on the day after the appeal is
abandoned; or
(ii) on the day after the appeal is
dismissed or struck out.
(7) In addition to any other penalty a court may
15
impose on finding a licensee guilty of an
offence against this section, the court may
order that the licensee be disqualified from
holding a licence either permanently, or for a
specified period.
20
50B. Right to sue providers of certain services to
unlicensed traders
(1) This section applies if--
(a) a person provides an unlicensed person
trading in motor cars with motor cars;
25
and
(b) before providing those cars, the person
was given a notice under section
50A(4); and
(c) another person suffers loss arising out
30
of any act or omission by the
unlicensed person in relation to those
cars.
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s. 31 Act No.
(2) If the other person--
(a) is refused payment of a claim made
under section 76 in respect of the loss;
and
(b) is not a motor car trader--
5
she, he or it has a right of action against the
person who provided the unlicensed person
with the cars for damages in respect of the
loss in so far as it involved those cars.
(3) If the other person is paid any money out of
10
the Fund in respect of the loss, the person
who provided the unlicensed person with the
cars is jointly and severally liable with the
unlicensed person to reimburse the amount
of that payment to the Fund.".
15
31. Changes to the mandatory statutory warranty for used
cars
(1) For sections 54(1) and (2) of the Motor Car
Traders Act 1986 substitute--
"(1) This section applies if a motor car trader
20
sells a used motor car to a person and the
car--
(a) was manufactured not more than 10
years before the date it is sold; and
(b) has been driven for less than 160 000
25
kilometres.
(2) The warranty set out in sub-section (2A) is a
part of the sale contract.
(2A) The motor car trader warrants that if a defect
appears in the motor car before the end of
30
the warranty period, the motor car trader at
her, his or its own expense--
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(a) will arrange for the car to be taken to a
place where it can be repaired or made
good; and
(b) will repair or make good, or cause to be
repaired or made good by another
5
motor car trader or by a qualified
repairer, the defect so as to place the
car in a reasonable condition having
regard to its age.
(2B) The warranty period is whichever of the
10
following periods is the shorter--
(a) the period from when the car is
delivered to the person buying it until it
has been driven for a further 5000
kilometres; or
15
(b) the period of 3 months from the day
after the car is delivered to the person
buying it.
(2C) A motor car trader who offers or displays for
sale a used motor car to which this section
20
will not apply if the car is sold must ensure
that there is attached to the car a notice in the
form required by the regulations stating that
the car is sold without any obligation under
this Act to repair or make good any defects
25
that the car may have.".
(2) In section 54 of the Motor Car Traders Act
1986--
(a) in sub-section (3), for "(1)(a)(ii) or (b)(ii)"
substitute "(2B)(b)";
30
(b) in sub-section (4), for "Sub-section (1)"
substitute "The warranty imposed by this
section";
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s. 31 Act No.
(c) for sub-section (4)(a) substitute--
"(a) excluded from the operation of this
section by section 55; or";
(d) sub-section (4)(e) is repealed;
(e) for sub-section (5)(b) substitute--
5
"(b) the sale of a motor car to another motor
car trader or to a special trader;".
(3) For section 54(7) of the Motor Car Traders Act
1986 substitute--
'(7) This section does not apply to a motor car
10
that is sold at a public auction by a licensed
auctioneer acting on behalf of the owner of
the car.
(8) For the purposes of this section, the date of
manufacture of a motor car is--
15
(a) if the car has affixed to it a metal plate,
or has stamped on one of its metal
components, "Built" or "Built Date"
together with a date, that date; or
(b) in any other case, the date stamped on
20
the car's compliance plate.
(9) If a date referred to in sub-section (8) only
refers to a month in a particular year, the
date of manufacture is to be taken to be the
first day of the next month.
25
(10) For the purposes of this section and section
55, a motor car has a defect if one or more of
its components--
(a) is no longer in proper working
condition having regard to its likely age
30
or the number of kilometres it has
travelled; or
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Motor Car Traders (Amendment) Act 1996
s. 32
Act No.
(b) is defective to the extent that the car is
unroadworthy or is not able to be
driven.
(11) This section as amended by section 31 of the
Motor Car Traders (Amendment) Act
5
1996 does not apply to any motor car sold
before the day that section came into
operation.'.
(4) In section 55(2) of the Motor Car Traders Act
1986, for "section 54(1)" substitute "the warranty
10
imposed by section 54".
32. Extension of grounds for Guarantee Fund claims
(1) After section 76(1)(d) of the Motor Car Traders
Act 1986 insert--
"; or
15
(e) loss has been incurred from a failure of a
motor car trader to remit money paid to the
motor car trader as a premium or purchase
price for an insurance policy or warranty to
the person who was to provide the insurance
20
or warranty; or
(f) loss has been incurred from a failure of a
motor car trader to satisfy--
(i) a court order; or
(ii) an order of the Small Claims Tribunal;
25
or
(iii) an order made by the Authority under
section 31(1)(g)--
arising from the motor car trader's trading in
motor cars.".
30
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s. 32 Act No.
(2) After section 76(2) of the Motor Car Traders
Act 1986 insert--
"(3) A claim under sub-section (2) must be made
in the form required by the regulations and
must be verified by a statutory declaration.
5
(4) If--
(a) a special trader who is a financier has
registered a security interest (other than
an inventory security interest) in a
motor car under the Chattel Securities
10
Act 1987; and
(b) a person sells the car to a licensed
motor car trader; and
(c) the sale agreement requires the motor
car trader to remit some or all of the
15
purchase price to the special trader; and
(d) the motor car trader fails to remit the
agreed amount to the special trader; and
(e) the motor car trader fails to procure the
cancellation of the security interest in
20
the car in accordance with section 48--
the Committee must ensure that the total
amount that it authorises to be paid in
relation to any claims made in relation to the
failures described in paragraphs (d) and (e)
25
does not exceed the lesser of either the
amount the motor car trader should have
remitted to the special trader or the amount
prescribed for the purposes of section 77(4).
(5) Sub-sections (1)(e) and (f) do not apply to
30
any losses incurred before the date section
32 of the Motor Car Traders
(Amendment) Act 1996 came into
operation.".
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s. 33
Act No.
33. Changes concerning the admittance or refusal of
Guarantee Fund claims
(1) Sections 77(2) and (3) of the Motor Car Traders
Act 1986 are repealed.
(2) After section 77(4) of the Motor Car Traders
5
Act 1986 insert--
"(5) A certificate issued by the Committee is
evidence of the matters stated in the
certificate.".
34. Changes concerning subrogation of claims
10
In section 80 of the Motor Car Traders Act
1986--
(a) before "Upon" insert "(1)";
(b) at the end of the section insert--
"(2) If a right conferred by sub-section (1)
15
applies in respect of a body corporate,
it is enforceable jointly and severally
against the body corporate and the
people who were its directors at the
time the act or omission that gave rise
20
to the claim occurred.
(3) Sub-section (2) does not apply to a
director if it is proved that the act or
omission occurred without the
knowledge or consent of the director.
25
(4) A reference in sub-section (1) to the
rights of the claimant includes any right
the claimant may have under section 86
of the Sentencing Act 1991.".
35. Changes to Part headings
30
(1) For the heading to Part 6 of the Motor Car
Traders Act 1986 substitute--
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Motor Car Traders (Amendment) Act 1996
s. 36 Act No.
"PART 5A--ENFORCEMENT PROVISIONS
Division 1--General".
(2) Before section 83 of the Motor Car Traders Act
1986 insert--
"PART 6--MISCELLANEOUS".
5
36. Changes concerning inspection powers
(1) In section 82(1) of the Motor Car Traders Act
1986--
(a) paragraph (a) is repealed;
(b) for paragraph (c) substitute--
10
"(c) any member of the police force with
such other assistance as the member
requires--".
(2) After section 82(2) of the Motor Car Traders
Act 1986 insert--
15
"(3) The powers conferred by this section on a
person are not intended to limit any other
powers the person may have.".
37. Insertion of sections 82A-82H
After section 82 of the Motor Car Traders Act
20
1986 insert--
'82A. Authority may require licensee to supply
information
(1) The Authority may require a licensee to give
it any information that it requires to enable it
25
to carry out its functions.
(2) A licensee must comply with any
requirement made under sub-section (1).
Penalty: 50 penalty units.
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s. 37
Act No.
(3) Sub-section (2) applies even if the giving of
the information might tend to incriminate the
person.
(4) However, if before giving any information a
natural person claims that the information
5
might tend to incriminate herself or himself,
the information is not admissible in evidence
against the person in criminal proceedings,
other than proceedings in respect of the
falsity of the information.
10
82B. Verification of details supplied to the
Authority
The Authority may specify how any
information supplied to it under this Act is to
be verified, and without limiting the scope of
15
this power, may require that the information
be supplied in the form of, or be verified by,
a statutory declaration.
82C. Extended time for prosecutions
Despite anything to the contrary in any Act,
20
a proceeding for an offence against this Act
may be commenced within 3 years after the
date on which the offence is alleged to have
been committed.
Division 2--Infringement Notices
25
82D. Power to serve a notice
(1) An authorised officer may serve an
infringement notice on any person that she or
he has reason to believe has committed an
offence specified by the regulations as an
30
offence in respect of which an infringement
notice may be issued.
(2) In this Division "authorised officer"
means--
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s. 37 Act No.
(a) an inspector under the Consumer
Affairs Act 1972;
(b) a member of the police force;
(c) a person authorised in writing by the
Director.
5
82E. Form of notice
An infringement notice must be in a form
approved by the Director and must set out--
(a) the date of the notice;
(b) the provision of this Act or the
10
regulations that creates the offence;
(c) the date, time and place of the offence;
(d) the nature of the offence and a brief
description of the offence;
(e) the infringement notice penalty for the
15
offence set out in the regulations;
(f) how the infringement notice penalty
may be paid;
(g) the time (not being less than 28 days
after the date on which the notice is
20
served) within which the infringement
notice penalty must be paid;
(h) that if the infringement notice penalty
is paid before the end of that time, the
matter will not be brought before the
25
Magistrates' Court unless the notice is
withdrawn within 28 days after the date
on which it was served;
(i) any other details required by the
regulations.
30
82F. Late payment of penalty
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s. 37
Act No.
If a charge has not been filed, and a courtesy
letter has not been served, under Part 2 of
Schedule 7 to the Magistrates' Court Act
1989 in respect of the offence, the authorised
officer may accept payment of the
5
infringement notice penalty even if the time
specified in the notice as the time within
which the penalty may be paid has expired.
82G. Withdrawal of notice
(1) The Director may withdraw an infringement
10
notice within 28 days after it was served by
serving a withdrawal notice on the person on
whom the infringement notice was served.
(2) If the penalty sought in the infringement
notice has been paid before the notice is
15
withdrawn, the Director must refund the
amount of the penalty on withdrawing the
notice.
(3) Proceedings for the offence in respect of
which an infringement notice has been
20
served may still be taken or continued
despite the withdrawal of the notice.
82H. Further proceedings concerning
infringement notices
(1) Subject to section 82G, if the penalty sought
25
in an infringement notice is paid within the
time specified in the notice or if the
authorised officer accepts the payment of the
penalty under section 82F, then--
(a) no further proceedings concerning the
30
offence may be taken against the person
on whom the notice was served; and
(b) no conviction is to be recorded against
that person for the offence.
46
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s. 37 Act No.
(2) If proceedings are taken against a person in
respect of an offence for which an
infringement notice was served on the person
and a court finds the person guilty of the
offence, the finding is not to be taken as a
5
conviction for any purpose except--
(a) the making of the finding itself; and
(b) any later proceedings that may be taken
in respect of the finding itself
(including proceedings by way of
10
appeal or review).
(3) Sub-section (2) does not apply to
proceedings taken after the withdrawal of an
infringement notice.
(4) The payment of a penalty sought by an
15
infringement notice is not and must not be
taken to be--
(a) an admission of guilt in relation to the
offence in respect of which the notice
was issued; or
20
(b) an admission of liability for the purpose
of any civil claim or proceeding arising
out of the same occurrence, and the
payment does not in any way affect or
prejudice any such claim or proceeding.
25
(5) Nothing in this section prevents the
Authority from conducting an inquiry under
section 30 and taking disciplinary action
under section 31 against a person for any act
or omission for which an infringement notice
30
was issued.'.
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Motor Car Traders (Amendment) Act 1996
s. 38
Act No.
38. Insertion of sections 83A-83D
After section 83 of the Motor Car Traders Act
1986 insert--
"83A. Records must be held for 7 years
A motor car trader must retain for at least 7
5
years any document that she, he or it is
required to keep by this Act or the
regulations.
Penalty: 50 penalty units.
83B. Offence to destroy documents required by
10
the Act
(1) A motor car trader must not destroy, conceal,
mutilate or alter any document that she, he or
it is required to keep by this Act or the
regulations.
15
Penalty: 240 penalty units or imprisonment
for 2 years or both.
(2) It is a defence to a charge under sub-section
(1) if the person charged can show that the
destruction, concealment, mutilation or
20
alteration of the document was not done with
the intention of defeating the purposes of this
Act.
83C. Motor car traders must supply copies of
agreements etc.
25
(1) A motor car trader must give a person who
buys, sells or exchanges a motor car from, to
or with the motor car trader a copy of any
document listed in the regulations for the
purposes of this section as soon as is
30
practicable after the purchase, sale or
exchange.
Penalty: 50 penalty units.
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s. 39 Act No.
(2) This section does not apply if the person who
buys, sells or exchanges the car from, to or
with the motor car trader is a licensed motor
car trader or a special trader.
83D. Complaints concerning motor car trader
5
are privileged
If a person--
(a) lodges a complaint with the Authority
or the Committee; or
(b) produces or gives a document or any
10
information or evidence to the
Authority or the Committee--
the person is not liable in any way for any
loss, damage or injury suffered by another
person by reason only of the lodging of that
15
complaint or the production or giving of that
document, information or evidence.".
39. Changes concerning false or misleading statements
(1) After section 84A(1)(c) of the Motor Car
Traders Act 1986 insert--
20
"; or
(d) any document required by this Act or by the
Authority--".
(2) After section 84A(2)(b) of the Motor Car
Traders Act 1986 insert--
25
"--
and the person notified the Authority of the false
or misleading matter or omission as soon as the
person became aware of it.".
(3) Section 10 of the Motor Car Traders Act 1986 is
30
repealed.
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s. 40
Act No.
40. Substitution of section 86
For section 86 of the Motor Car Traders Act
1986 substitute--
"86. Service of notices
A person may give to, or serve on, another
5
person a notice or a copy of a notice under
this Act--
(a) by delivering it personally to the other
person; or
(b) by sending it by post addressed to the
10
other person's last known place of
residence or business.".
41. Insertion of sections 88A and 88B
After section 88 of the Motor Car Traders Act
1986 insert--
15
"88A. Agreement not illegal etc. by reason of
offence
(1) An agreement for the purchase or sale of a
motor car is not illegal, void or
unenforceable by reason only that the motor
20
car trader with whom the agreement is made
is guilty of an offence under this Act or the
regulations in relation to the agreement.
(2) If a motor car trader commits an offence
under this Act or the regulations in relation
25
to an agreement for the purchase or sale of a
motor car, the other party to the agreement
does not aid, abet, counsel or procure the
offence by reason only of being, or having
been, a party to the agreement.
30
(3) This section only applies to agreements
entered into after the date section 41 of the
50
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Motor Car Traders (Amendment) Act 1996
s. 41 Act No.
Motor Car Traders (Amendment) Act
1996 came into operation.
88B. Agreement voidable if section 37, 38, 41 or
42 breached
(1) A person may withdraw from an agreement
5
with a motor car trader to buy or sell a motor
car if--
(a) the agreement does not comply with
section 37, 41 or 42 or if the motor car
trader has committed an offence under
10
section 38 in relation to the car; and
(b) the car is still in the possession of the
person or the motor car trader.
(2) A person may only do this within 3 months
of the date the agreement was signed.
15
(3) To withdraw from the agreement, the person
must give the motor car trader (or an
employee or agent of the motor car trader) a
written notice stating that the person is
exercising the right conferred on her, him or
20
it by this section and describing briefly the
reason for the withdrawal.
(4) If a person withdraws from an agreement
under this section, the parties to the
agreement must do everything that is
25
practicable to restore themselves to the
position they were in before entering into the
agreement.
(5) In particular, the motor car trader must
refund any money paid to her, him or it
30
under the agreement by the other party to the
agreement.
Penalty: 50 penalty units.
51
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s. 42
Act No.
(6) This section only applies to agreements
entered into after the date section 41 of the
Motor Car Traders (Amendment) Act
1996 came into operation.".
42. Changes concerning regulation-making powers
5
(1) In section 90(1) of the Motor Car Traders Act
1986--
(a) for paragraph (d) substitute--
"(d) regulating the form and content of any
warranties or insurance policies given
10
in respect of motor cars (other than the
warranty imposed by section 54); and";
(b) in paragraph (e)--
(i) for "the charges of the motor car trader"
substitute "any charges";
15
(ii) for "of a new car" substitute "by any
person of a motor car";
(c) in paragraph (i), omit ", renewal of
licences";
(d) for paragraphs (k) and (l) substitute--
20
"(k) prescribing, for the purposes of
Division 2 of Part 5A--
(i) the offences under this Act or the
regulations in respect of which an
infringement notice may be
25
issued; and
(ii) the penalties that apply if those
offences are dealt with by an
infringement notice; and
(l) generally prescribing any other matter
30
or thing required or permitted by this
52
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s. 43 Act No.
Act to be prescribed or necessary or
expedient to be prescribed to give
effect to this Act.".
(2) After section 90(2) of the Motor Car Traders
Act 1986 insert--
5
"(3) Regulations made under sub-section
(1)(k)(ii) must not specify a penalty in
respect of an offence by a person that is
more than one-tenth of the maximum penalty
the person would be liable for under the Act
10
or the regulations for committing that
offence for the first time.".
43. Substitution of section 107
For section 107 of the Motor Car Traders Act
1986 substitute--
15
"107. Costs
Except as permitted by section 31(1)(e),
costs must not be allowed in any proceedings
before the Authority.".
44. Registrar may divert refund money
20
After section 109(2A) of the Motor Car Traders
Act 1986 insert--
"(2B) If--
(a) a person--
(i) pays a fee under this Act and the
25
Registrar then waives or reduces
the fee; or
(ii) is for any other reason entitled to a
refund of a fee under this Act; and
(b) the person owes the Authority or the
30
Committee any money--
53
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s. 45
Act No.
the Registrar may give the refund to which
the person is entitled to the Authority or the
Committee to enable it to be applied towards
the debt owed to the Authority or the
Committee.".
5
45. Change concerning the functions of Deputy
Registrars
(1) For section 109(4) of the Motor Car Traders Act
1986 substitute--
"(4) A Deputy Registrar may exercise any of the
10
powers of the Registrar, but is subject to the
directions of the Registrar in exercising
those powers.".
(2) In section 109(5) of the Motor Car Traders Act
1986--
15
(a) omit "or (4)";
(b) omit "or Registrar, as the case may be".
46. Substitution of section 112
For section 112 of the Motor Car Traders Act
1986 substitute--
20
"112. Authority may request Director to
investigate matters
The Authority may request the Director to
investigate a matter, and the Director may
investigate that matter.".
25
47. Addition to list of those who may ask for extension of
time or amendment
(1) In section 113(1) of the Motor Car Traders Act
1986, after "the Director" insert ", the Chief
Commissioner of Police".
30
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Motor Car Traders (Amendment) Act 1996
s. 48 Act No.
(2) After section 113A(1)(a)(ii) of the Motor Car
Traders Act 1986 insert--
"(iii) the Chief Commissioner of Police; or".
48. Insertion of section 115A
After section 115 of the Motor Car Traders Act
5
1986 insert--
"115A. Simplified procedure concerning proof that
person traded in motor cars
(1) In any hearing of a charge for an offence
against section 7, a statement by the
10
prosecutor or the informant--
(a) that an address, telephone number or
post office box number is a person's
address, telephone number or post
office box number is evidence of that
15
fact;
(b) that a person was registered in relation
to a business name on a specified date
is evidence of that fact;
(c) that an advertisement (or invitation to
20
treat) for the purchase, sale or exchange
of a motor car contained--
(i) the name, address, telephone
number or post office box number
of the person charged or an agent
25
of the person charged; or
(ii) a business name in relation to
which the person charged or an
agent of the person charged is
registered--
30
is evidence that the person charged
offered to buy, sell or exchange the
motor car (as the case may be);
55
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s. 49
Act No.
(d) that such an advertisement (or
invitation to treat) was published is
evidence that the advertisement (or
invitation) was published;
(e) that such an advertisement (or
5
invitation to treat) was published on a
specified date is evidence that the
advertisement (or invitation) was
published on that date.
(2) Nothing in this section prevents the asking of
10
any question concerning the basis on which a
statement was made under this section.".
49. Change to secrecy provision
After section 116(2) of the Motor Car Traders
Act 1986 insert--
15
"(3) Despite sub-section (2), a person to whom
this section applies may disclose any
information referred to in that sub-section
to--
(a) the Committee; or
20
(b) a law enforcement or regulatory agency
of the Commonwealth or any State or
Territory specified by the regulations
for the purposes of this section.".
50. Changes to penalties
25
In the Motor Car Traders Act 1986--
(a) in section 14(2), for "50 penalty units"
substitute "100 penalty units";
(b) in sections 15(2), 25(2), 34, 52(1) and (6)
and 116(2), for "5 penalty units" substitute
30
"10 penalty units";
(c) in section 35(2), for "10 penalty units"
substitute "50 penalty units";
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s. 51 Act No.
(d) in section 35(3), for "50 penalty units"
substitute "100 penalty units";
(e) at the foot of section 43(3) insert--
"Penalty: 50 penalty units .";
(f) in section 48(1), for "50 penalty units"
5
substitute "100 penalty units or
imprisonment for 12 months";
(g) in section 82(2), for "10 penalty units"
substitute "50 penalty units or imprisonment
for 6 months".
10
51. Minor consequential amendments
In the Motor Car Traders Act 1986--
(a) sections 5, 6, 8(4), 16(10) and 53 are
repealed;
(b) in section 8(3), for "prescribed fee for the
15
licence" substitute "first annual fee for the
licence";
(c) in section 25(1) for "police officer or the
Registrar" substitute "member of the police
force";
20
(d) in section 102, omit "or renewal of licence"
(wherever occurring).
52. Amendment of the Small Claims Tribunals Act 1973
(1) In section 2(1) of the Small Claims Tribunals
Act 1973, in the definition of "small claim", for
25
paragraph (a) substitute--
"(a) a claim for payment of money in an amount
not exceeding "$5000" (or $10 000 if the
claim is against a motor car trader within the
meaning of the Motor Car Traders Act
30
1986 in relation to the purchase, sale or
exchange of a motor car);".
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s. 53
Act No.
(2) After section 2(3A) of the Small Claims
Tribunals Act 1973 insert--
"(3B) The amendment made by section 52 of the
Motor Car Traders (Amendment) Act
1996 increasing the limit on what constitutes
5
a small claim in relation to a motor car trader
from $5000 to $10 000 only applies to small
claims referred to a Small Claims Tribunal
on or after the date that section came into
operation.".
10
53. Amendment to the Second-Hand Dealers and
Pawnbrokers Act 1989
(1) After section 4(e) of the Second-Hand Dealers
and Pawnbrokers Act 1989 insert--
"; or
15
(f) a licensed motor car trader under the Motor
Car Traders Act 1986 in buying, selling,
exchanging or otherwise dealing in a motor
car (within the meaning of that Act) in
accordance with that Act.".
20
(2) After section 6(5) of the Second-Hand Dealers
and Pawnbrokers Act 1989 insert--
"(6) Despite sub-section (1), a person who holds
a motor car trader's licence under the Motor
Car Traders Act 1986 may buy, sell,
25
exchange or otherwise deal in second-hand
goods that are motor car parts without
holding a second-hand dealer's licence, but
must in all other respects comply with this
Act.".
30
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Motor Car Traders (Amendment) Act 1996
s. 54 Act No.
54. Statute law revision
(1) In the Motor Car Traders Act 1986--
(a) in section 3(3)(e)(ii), for "him by the
Companies (Victoria) Code" substitute "her
or him by the Corporations Law";
5
(b) in section 62, for "Public Service Act
1974" substitute "Public Sector
Management Act 1992";
(c) in section 84(a), for "purchases" substitute
"purchasers";
10
(d) in section 109(1), for "Public Service Act
1974" substitute "Public Sector
Management Act 1992";
(e) sections 118, 119, 121 and 122 and the
Schedule are repealed.
15
(2) For section 58(2) of the Motor Car Traders Act
1986 substitute--
"(2) The Public Sector Management Act 1992
(including Part 9) does not apply to a
member of the Committee in respect of the
20
office of member.".
(3) For section 93(3) of the Motor Car Traders Act
1986 substitute--
"(3) The Public Sector Management Act 1992
(including Part 9) does not apply to a
25
member of the Authority in respect of the
office of member.".
59
531053B.I1-25/10/96 BILL LA INTRODUCTION 25/10/96
Motor Car Traders (Amendment) Act 1996
Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
60
531053B.I1-25/10/96 BILL LA INTRODUCTION 25/10/96
Motor Car Traders (Amendment) Act 1996
Act No.
61
531053B.I1-25/10/96 BILL LA INTRODUCTION 25/10/96
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