Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Business Licensing Legislation (Amendment)
Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
The Business Licensing Legislation (Amendment) Bill amends 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 enable government services under each Act to be
delivered online via the Internet. The Bill also contains a number of further
amendments necessary for the efficient operation of each Act.
In particular, the Bill will remove impediments to online transactions, such as
requirements for multiple signatures on documents and the lodgement of
statutory declarations. The Bill widens the regulation-making powers to
ensure that different fees can be prescribed for transactions conducted online.
The Bill imposes requirements to retain the original of certain documents
lodged with the Director of Consumer and Business Affairs ("the Director")
or the Business Licensing Authority ("the Authority") in order that the
authenticity of documents lodged electronically can be verified if necessary.
The Bill also clarifies the provisions relating to the public registers,
established by 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, by specifying the information that
must be contained in each register and the right of the public to access that
information. In order to ensure the protection of the privacy of people whose
personal information is held in a register, purposes have been included for the
keeping of each register and a mechanism inserted into the Associations
Incorporation Act 1981, the Business Names Act 1962 and the Business
Licensing Authority Act 1998, which enables a person to apply to have
public access to their personal information restricted. The restriction would
only be permitted in exceptional circumstances. A person affected by a
decision relating to the restriction or otherwise of personal information will
have a right to have that decision reviewed by the Victorian Civil and
Administrative Tribunal.
1
541286 BILL LA CIRCULATION 17/5/2002
The Bill also removes the requirement in the Business Names Act 1962 that
a person, not resident in Victoria, appoint a person as his or her resident
agent. All resident agents appointed before the commencement of the Bill
will remain until the cessation of their appointment.
The Bill also seeks to remove the confusion surrounding the use of the term
"statements" in the Business Names Act 1962 and to modernise the Act by
replacing this term with "document" or "notice" where appropriate.
The Bill will enable an incorporated association with gross assets of $10,000
or less, to appoint an unregistered liquidator when voluntarily winding up.
This provision will assist small associations who often cannot afford the cost
of appointing a registered liquidator.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 provides for the commencement of the Bill on a day or days to be
proclaimed or on 31 December 2003 if no date is proclaimed
before then.
PART 2--AMENDMENT OF ASSOCIATIONS
INCORPORATION ACT 1981
Clause 3 amends section 3(1) to insert a definition of "CPA Australia" to
take into account the new name of the Australian Society of
Certified Practising Accountants. This clause also inserts a
definition of "personal information" and amends the definition of
"reproduction" to include an "electronic copy of the document".
Clause 4 removes the requirement in section 5 that an application for
incorporation include details of the place or places where the
association was formed and is carried on. The clause also
replaces the requirement that an application for incorporation be
accompanied by a statutory declaration made by the applicant.
The clause requires the applicant to certify that he or she is
authorised to make the application on behalf of the association,
that the information contained in the application is true and
correct and that any copies of documents lodged with the
application are true copies.
Clause 5 repeals the requirement in section 10(3)(a) that an application for
incorporation by a company contain details of the place or places
where the association is to be carried on.
2
Clause 6 amends section 13A to require an association to give the
Registrar of Incorporated Associations (in Part 2 "the Registrar")
notice of a change in its registered address within 14 days of the
change. The notice must be in a form approved by the Registrar,
rather than simply by a written notice of indeterminate content.
Clause 7 amends sections 12A and 14(2) to make the use of a common
seal optional.
Clause 8 substitutes a new section 24 which allows an association to
nominate a person, other than the person making the application
for incorporation, as its first public officer.
Section 24(2) requires that a person nominated as the first public
officer be at least 18, be resident in Victoria and consent to being
appointed public officer.
Clause 9 amends section 29 to allow an association to make an application
to the Registrar for approval to pass a special resolution
otherwise than in accordance with the requirements set down in
sub-section (2). The Registrar may specify another manner for
passing a special resolution where satisfied that it is not
practicable to pass the resolution in accordance with sub-
section (2).
Clause 10 sub-clause (1) inserts section 30(3B) to require a committee
member who attended the association's annual general meeting to
certify that he or she attended the meeting and that the statement
containing the particulars required by sub-section (3) was
presented to the meeting. The certification must be made in a
form approved by the Registrar at, or as soon as practicable after,
the conclusion of the annual general meeting.
Sub-clause (2) amends section 30(4)(aa) to require a prescribed
association to lodge with the association's annual statement a
copy of its auditor's report.
Sub-clause (3) amends section 30(4) to remove the requirement
that a certificate signed by a person who attended the annual
general meeting accompany an association's annual statement.
The amended sub-section replaces this requirement with a
requirement that the public officer certify, in the association's
annual statement, that the committee member has made the
certification and that it is being kept by the association.
Sub-clause (4) inserts a new section 30(4A) to require the
association to keep the statement referred to in sub-section (3)
and the certificate referred to in sub-section (3B) for at least
7 years. A penalty of 20 penalty units applies.
3
Clause 11 sub-clause (1) updates the reference in section 30B(1)(c) to the
"Australian Society of Certified Practising Accountants" to its
new name of "CPA Australia".
Sub-clause (2) inserts a new section 30B(1A) to require that an
auditor of the accounts of a prescribed association provide a
written report to the association.
Sub-clause (3) inserts new section 30B(2A) which permits the
Registrar to approve a suitably qualified person, or class of
persons, to be appointed to audit the accounts of a prescribed
association or class of prescribed associations.
Clause 12 repeals the requirement in section 31(3)(d)(ii) that an application
for amalgamation of two or more associations set out the place or
places where the amalgamated association is to be carried on.
Clause 13 amends section 36D(1) to allow an incorporated association with
assets of $10,000 or less to appoint an unregistered liquidator.
An unregistered liquidator must be a member of CPA Australia,
the Institute Chartered Accountants in Australia or a person
approved by the Registrar.
Clause 14 allows the Registrar to reinstate the registration of an association
where the Registrar is satisfied that the association should not
have been deregistered.
Clause 15 replaces the existing section 39(1) with new requirements that the
Registrar keep a register of incorporated associations open for
public inspection. The register must be kept in a form
determined by the Registrar.
New section 39(1A) inserts the purposes of keeping the register.
New section 39(1B) sets out the information that must be
contained in the register.
Clause 16 inserts two new sections. New section 39B enables a person to
apply to the Registrar to have public access to their personal
information held on the register restricted. The Registrar may
restrict public access to all or some of that person's personal
information if satisfied that there are exceptional circumstances
for doing so.
The new section also allows another person to apply for the
release of personal information to which the Registrar has
restricted public access. Despite the restriction on public access,
the Registrar may release the information to that other person if
the Registrar is satisfied that it is in the public interest to do so.
If the Registrar has decided to release personal information, the
4
information must not be released until 28 days after the Registrar
gives written notice to the person whose information is to be
released.
The new section 39C allows any person affected by a decision of
the Registrar in relation to personal information to apply for
review of that decision to the Victorian Civil and Administrative
Tribunal.
Clause 17 amends section 45A to require a person to produce and lodge the
original of a document lodged by facsimile or electronic
transmission within 28 days of the Registrar making the request
that the document be lodged. A penalty of 5 penalty units applies
for failing to produce and lodge a document within the required
time. The requirement to produce and lodge contained in sub-
sections (2) and (2A) does not apply to a document or notice
created by a person using software approved by the Director and
lodged on a state government Internet site and forwarded to the
Registrar by electronic transmission.
The clause also provides that an association must keep the
original of any document lodged with the Registrar for a period
of 7 years. A penalty of 20 penalty units applies for non-
compliance.
Clause 18 inserts a new provision that allows the Registrar to waive, reduce,
or refund, fees that would otherwise be payable, or have been
paid, under the Act.
Clause 19 amends section 50A to provide the maximum fine payable for a
continuing offence.
Clause 20 inserts a transitional provision that refers to an application for
incorporation which has been lodged with the Registrar prior to
the commencement of this Bill but in relation to which the
Registrar has not decided whether to grant a certificate of
incorporation. This provision requires the Registrar to consider
the application in accordance with the Act as in force
immediately prior to the commencement of the relevant provision
of this Bill.
Clause 21 makes a consequential amendment to item 12 in the Schedule
relating to an association's common seal.
PART 3--AMENDMENT OF THE BUSINESS NAMES ACT
1962
5
Clause 22 amends section 4 to repeal the definition of "machine-copy" and
"transparency" and to insert a definition of "personal
information".
Clause 23 amends section 6 of the Act--
New sub-section (1) requires the Director to keep a register of
business names open for public inspection. The register must be
in a form determined by the Director;
New sub-section (2) inserts the purpose for keeping the register;
New sub-section (2A) replaces the existing provision in section 6
which deems statements lodged with the Director to be part of the
register with a requirement that the register contain specified
information;
New sub-sections (2B), (2C) and (2D) insert provisions that
allow the Director to request from a person who carries on or
seeks to carry on a business under a registered business name any
additional information or authorisation necessary for the
administration of the Act. The additional information must be
provided within 28 days and it does not form part of the Register.
Clause 24 replaces the requirement, in section 7(1), that an application for
registration of a business name be signed by all the persons
carrying on, or proposing to carry on, the business. The clause
allows application to be made by lodging an application, in a
form approved by the Director, signed in accordance with the
signature requirements contained in section 15. The clause also
replaces the word "statement" with the word "application"
wherever it appears in section 7.
Clause 25 repeals the requirement, in section 8, that an application for
registration of a business name, made by a person not resident in
Victoria, nominate a resident agent.
Clause 26 substitutes the word "application" for the word "statement" in
section 11.
Clause 27 sub-clause (1) substitutes section 12(1) regarding notification of
certain changes with a requirement that a notice be lodged with
the Director where there is a change in the nature of the business,
in the address of the place or places in which business is carried
on or in the registered business address or a nominated postal or
electronic mailing address. The notice must be in the form
approved by the Director and be signed in accordance with the
6
signature requirements contained in section 15. The notice must
be lodged within one month of the change or a later time if
allowed by the Director.
Sub-clause (2) replaces the existing signature requirements in
section 12 with the requirement that a notice be signed in
accordance with signature requirements set out in section 15.
The sub-clause also repeals requirements in relation to resident
agents and replaces "statement" with "notice".
Clause 28 substitutes the word "document" for the word "statement" in
section 13.
Clause 29 substitutes the word "notice" for the word "statement" in
section 14.
Clause 30 substitutes section 15 relating to who can sign documents lodged
with the Director. The new section 15 allows a document to be
signed by the person or one of the persons carrying on, or
proposing to carry on, the business, by a person who is authorised
to sign on behalf of that person or persons, or, in the case of a
corporation, a director or secretary authorised to sign on behalf of
the corporation.
New sub-section 15(2) provides that where the Director is
satisfied that it is not practicable to obtain the signature of a
person required by the Act, the Director may accept a document
for registration without it being signed by that person.
New sub-section 15 (3) makes it clear that, 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 the Act, evidence of a
person's interest in a business.
Clause 31 deletes the words "statement or" in section 15AA.
Clause 32 substitutes the words "documents" and "document" for the word
"statements" and "statement" in section 15AB, which is to be
inserted by section 22 of the Business Registration Acts
(Amendment) Act 2000.
Clause 33 inserts a new section 15AC that allows the Director to waive,
reduce, or refund, fees that would otherwise be payable, or have
been paid, under the Act.
Clause 34 substitutes the word "document" for the word "statement" in
section 16.
7
Clause 35 amends proposed section 17(1), which is to be inserted by
section 24 of the Business Registration Acts (Amendment)
Act 2000, to replace "a statement required" and "the statement
required" with "a document required" and "the document
required". The clause also replaces "statement" with "document"
in section 17(2).
Clause 36 substitutes the word "document" for the word "statement" in
section 17A which is to be inserted by section 24 of the Business
Registration Acts (Amendment) Act 2000.
Clause 37 substitutes the word "notice" for the word "statement" where
appropriate in section 19(1)(a) and (e) and the word "document"
for the word "statement" where appropriate in section 19(1)(b).
Clause 38 substitutes the word "document" for the word "statement" in
section 21(4).
Clause 39 replaces section 22 with three new sections--
New section 22 entitles a person, on payment of the prescribed
fee, to inspect or obtain a copy of, or an extract from, any
information contained in the register. The entitlement to inspect
or obtain an extract or copy, does not entitle a person to inspect
or obtain a copy of or an extract from any document lodged with
the Director or any information not forming part of the register.
A copy of, or extract from, the register certified by the Director
as a true copy is admissible in evidence.
New section 22A, enables a person to apply to the Director to
restrict public access to their personal information held on the
register. The Director may restrict public access to all or some of
that person's personal information if satisfied that there are
exceptional circumstances for doing so. The new section also
allows another person to apply for the release of personal
information to which the Director has restricted public access.
Despite the restriction on public access, the Director may release
the information to that other person if the Director is satisfied that
it is in the public interest that the information is released to that
person. Where the Director has decided to release the person's
personal information, the information must not be released until
28 days after the Director gives written notice to that person.
New section 22B allows any person affected by a decision of the
Director in relation to personal information to apply for review of
that decision to the Victorian Civil and Administrative Tribunal.
8
Clause 40 substitutes the word "document" for the word "notice" in
section 25.
Clause 41 repeals section 31(1)(b), relating to the service of documents at
the address of a resident agent.
Clause 42 amends section 32(1)(a) to enable the regulations to prescribe a
fee for a copy of any information contained in the register.
The clause also removes current paragraph 32(1)(b) which
currently allows the Governor-in-Council to prescribe the
conditions under and subject to which the Director or the
Minister may waive fees. The clause also substitutes the words
"any information supplied in forms " for the words "statements in
forms prescribed" in paragraph (da) and the word "documents"
for the word "statements" in paragraph (dd).
Clause 43 inserts a transitional provision that requires a notice be given to
the Director where a person appointed as a resident agent, prior
to the commencement of clause 25 of the Bill, ceases to be a
resident agent. The notice must be in a form approved by the
Director and be signed by one of the persons carrying on the
business or by the person ceasing to be the registered agent or
that person's personal representative. The notice must be lodged
within one month of the person ceasing to be a registered agent,
unless the Director allows a later time for lodging.
PART 4--AMENDMENT OF THE ESTATE AGENTS ACT
1980
Clause 44 inserts a definition of "Fund", which was previously defined in
section 71, and amends the definition of "registered office" to
replace the reference to section 34, which is to be repealed, and
to define it as the registered office recorded in the register.
Clause 45 removes the requirement, in section 17, that an application for an
estate agent's licence be accompanied by three testimonials and a
statutory declaration. New section 17(2)(c) requires that the
application include the name and contact details of three
character references (including one that is employment-related)
and, if the application is made under section 14(1)(a), provides
details of the applicant's employment as an agent's representative.
The applicant must also certify that the information contained in
the application is true and correct.
Clause 46 removes the requirement in section 19 that an application for an
estate agent's licence by a corporation be accompanied by a
9
statutory declaration. The new provisions in section 19 deal with
applications for estate agent's licences made by corporations.
They specify who in the corporation must make the application
and what that application must contain.
Clause 47 inserts new section 19A allowing the Authority to require an
applicant for a licence, or a licensee, to provide any consent
necessary for the Authority to check or confirm information
relevant to the application or licence. The Authority can require
the consent to be provided at the time of submitting the
application or at any time during the currency of a licence.
The clause also allows the Authority to refuse to consider an
application if the applicant does not provide the consent within
14 days.
These provisions will allow the Authority to conduct, for
example, an interstate police check before determining an
application, or other checks, where the Authority has notice that
the licensee may have committed a disqualifying offence, at any
time during the course of a licence.
Clause 48 inserts new section 20A allowing, information to be disclosed by
the Authority and the Director to each of them for the purposes of
this Act. The clause also requires the Director to give the
Authority details of any successful claims made on the Fund.
Clause 49 inserts a new section 31A(2A) that an application to the
Authority for permission to hold an estate agent's licence where
the applicant has had a claim allowed against the Fund must be
made in the form approved by the Authority and be accompanied
by any information or documents required by the Authority and
any prescribed fee payable. New section 31A(2B) allows the
Authority to conduct any inquiries and to require the applicant
provide any further information relating to the application that
the Authority thinks fit. New section 31A(2C) allows the
Authority to refuse its permission if the applicant does not
provide the required information within a reasonable time.
The Act currently makes no provision for an application form nor
does it specify the information that should be provided to the
Authority in support of an application. The new provision will
give guidance to people making an application to regain an estate
agent's licence as to the information that should be provided in
support of the application.
Clause 50 inserts new section 31B(2A) requiring that an application to the
Authority for permission to hold an estate agent's licence where
the applicant is an insolvent under administration must be made
in the form approved by the Authority and be accompanied by
10
any information or documents required by the Authority.
New section 31B(2B) and (2C) allow the Authority to conduct
any inquiries and require the applicant to provide any further
information required by the Authority. The Authority may refuse
the application if the information is not provided within a
reasonable time.
The Act currently makes no provision for an application form nor
does it specify the information that should be provided to the
Authority in support of an application. The insertion of this
provision will give guidance to people making an application as
to the information that should be provided in support of the
application.
Clause 51 inserts new section 31C(2A) requiring that that an application to
the Authority for permission to hold an estate agent's licence
where the applicant has been convicted of, or had proven against
him or her, an offence involving fraud, dishonesty, drug
trafficking or violence must be made in the form approved by the
Authority and be accompanied by any information or documents
required by the Authority. New section 31C(2B) and (2C) allow
the Authority to conduct any inquiries and to require the
applicant provide any further information required by the
Authority and to refuse the application if the information is not
provided within a reasonable time.
The Act currently makes no provision for an application form nor
does it specify the information that should be provided to the
Authority in support of an application. The insertion of this
provision will give guidance to people making an application as
to the information that should be provided in support of the
application.
Clause 52 replaces the requirement under sections 33, 34, and 34A that the
register of estate agents comprise the record of estate agents and
agent's representatives kept under section 34 and the record of
ineligible persons kept under section 34A. Instead, the new
section 33 specifies that the Registrar of the Business Licensing
Authority (in Parts 4,5, 6 and 7 "the Registrar") must keep a
register of estate agents open for public inspection. The register
must be kept in a form determined by the Registrar. The clause
also inserts a provision setting out the purposes of keeping the
register and a provision specifying a list of information that must
be contained in the register. The clause also inserts an
entitlement to inspect and obtain copies of, or extracts from, the
register upon payment of any prescribed fee. Subject to the
requirements under the Public Records Act 1973, the Registrar
may remove any information from the register after 12 years.
11
Clause 53 replaces the existing requirement in section 43(2) that a notice
from an estate agent who has entered into a franchising
agreement be in a prescribed form. The new provision requires
that the notice be in a form approved by the Authority.
The particulars will still be prescribed.
Clause 54 inserts in section 64 a requirement that an estate agent retain a
signed copy of an auditor's report for 7 years. A penalty of
20 penalty units for non-compliance applies. The clause also
substitutes the requirement that an auditor's report be in a
prescribed form with the requirement that it be in a form
approved by the Director. The particulars will still be prescribed.
Clause 55 removes the definition of "Fund" from section 71. This definition
now appears in the definition section (section 4).
Clause 56 removes the requirement in section 81 that a claim to the Fund
for compensation be made in a prescribed form and be supported
by affidavit or statutory declaration. The claim must now be in a
form approved by the Director, contain the prescribed particulars
and be accompanied by any documents required by the Director.
Clause 57 amends section 92. The amended section provides that a
certificate signed by the Registrar certifying as to any matter
relating to the contents of the register is deemed to be evidence of
that matter.
Clause 58 inserts new section 98 that requires a person who sends a copy of
a document or notice to the Director or Authority to retain the
original of that document for 7 years. The requirement does not
apply to documents created and lodged on the Department's
Internet site and forwarded by electronic transmission.
The clause also requires a person to keep a document that the Act
or regulations require they keep, for a period of 7 years.
Non-compliance with this requirement attracts a penalty of
20 penalty units.
The clause also inserts a new section 98A that provides for a new
offence where a person destroys, conceals, mutilates or alters any
document that he or she is required to keep under the Act or the
regulations. A penalty of 100 penalty units applies. It is a
defence if the person charged can establish that the action was
not done with the intention of defeating the purposes of the Act.
Clause 59 clarifies the regulation making power contained in section 99 to
ensure that fees can be prescribed for copies of, or extracts from,
the register. The clause also enables different fees to be
prescribed according to differences in circumstances.
12
For example, different fees may be charged for electronic and
paper transactions.
PART 5--AMENDMENT OF THE MOTOR CAR TRADERS
ACT 1986
Clause 60 removes the requirement, in section 8(2), that an application for a
motor car trader's licence made by a partnership be signed by
each partner. Instead, the clause inserts a requirement that an
application be signed by a partner authorised by the other
partners to sign on behalf of the partnership. The clause also
replaces the requirement that an application for a licence made by
a corporation be signed by a Director, Secretary or officer of the
corporation, with a requirement that the application be signed by
a director who has the authority of the other directors to sign on
behalf of the corporation.
Clause 61 inserts new section 11A allowing the Authority to require an
applicant for a licence, or a licensee, to provide any consent
necessary for the Authority to check or confirm information
relevant to the application or licence. The Authority can require
the consent to be provided at the time of submitting the
application or at any during the currency of a licence. The clause
also allows the Authority to refuse to consider an application if
the applicant does not provide the consent within 14 days.
These provisions will, for example, allow the Authority to
conduct an interstate police check before determining an
application or other checks at any time during the course of a
licence.
Clause 62 inserts new section 12A allowing, for the purposes of the Act,
information collected in the course of carrying out functions
under the Act to be disclosed by the Authority to the Guarantee
Fund Claims Committee ("the Committee"), by the Director to
the Authority and the Committee, and by the Committee to the
Authority and the Director.
Clause 63 provides that a reference in section 13(4) to a conviction for a
serious offence also includes a finding of guilt, whether or not a
conviction was recorded.
Clause 64 sub-clause (1) removes the existing requirement in section 22 that
the register of motor car traders contain the particulars of all
applications to, and decisions of, the Authority. Instead, the new
section 22(1) specifies that the Registrar keep a register of motor
car traders open for public inspection. The register must be kept
in the form determined by the Registrar.
13
Sub-clause (2) inserts a new section 22(2) setting out the
purposes of keeping the register and specifying the information
that must be contained in the register. Subject to the
requirements under the Public Records Act 1973, the Registrar
may remove any information from the register after 12 years.
Clause 65 provides that a reference in section 28(3) to a conviction for a
serious offence also includes a finding of guilt, whether or not a
conviction was recorded.
Clause 66 sub-clause (1) inserts a new section 29A(1A) to allow a person
who was a director of a corporation, or a partner in a partnership,
against which a claim against the Motor Car Traders Guarantee
Fund was allowed, in relation to a matter that arose whilst that
person was a director or partner, to apply to the Authority under
section 29A to regain his or her licence.
Sub-clause (2) inserts a new section 29A(2) requiring that an
application under section 29A must be made in the form
approved by the Authority and be accompanied by any
information or documents required by the Authority. New section
29A(2A) allows the Authority to conduct further enquiries,
require the applicant to provide any further information required
by the Authority and to seek advice and information from any
other person or body. New section 29A(2C) provides that the
Authority may refuse the application if the applicant does not
provide the required information or consent with a reasonable
time.
The insertion of this provision will give guidance to people
making an application as to the information that should be
provided in support of the application.
Clause 67 sub-clause (1) amends section 29B(1) to provide that a conviction
for a serious offence also includes a finding of guilt, whether or
not a conviction was recorded.
Sub-clause (2) inserts a new requirement in section 29B that an
application under section 29B to the Authority for permission to
hold a motor car trader's licence where a person has been
convicted, or found guilty, of a serious offence, must be made in
the form approved by the Authority and be accompanied by any
information or documents required by the Authority. The new
provision also allows the Authority to conduct further enquiries,
require the applicant to provide any further information required
by the Authority and to seek advice and information from any
14
other person or body. The Authority may refuse the application
if the applicant does not provide the required information or
consent with a reasonable time.
The insertion of this provision will give guidance to people
making an application as to the information that should be
provided in support of the application.
Clause 68 sub-clause (1) amends section 29C(1) to provide that a conviction
for a serious offence also includes a finding of guilt, whether or
not a conviction was recorded.
Sub-clause (2) amends section 29C to require that an application
to the Authority for permission to hold a motor car trader's
licence where a partner or director has been convicted, or found
guilty, of a serious offence, must be made in the form approved
by the Authority and be accompanied by any information or
documents required by the Authority. The clause also allows the
Authority to conduct further enquiries, require the applicant to
provide any further information required by the Authority and to
seek advice and information from any other person or body.
The Authority may refuse the application if the applicant does
not provide the required information or consent with a reasonable
time.
The insertion of this provision will give guidance to people
making an application as to the information that should be
provided in support of the application.
Clause 69 amends section 35A to provide that a motor car trader is
prohibited from employing a person who has within the last
10 years been convicted or found guilty of a serious offence,
whether or not a conviction was recorded.
Clause 70 sub-clause (1) removes the requirement, in section 76(1), that an
application to the Fund be in a prescribed form verified by
statutory declaration. The amended section 76(1) requires the
claim to be in a form approved by the Committee. Allowing the
Committee to determine the form of an application to the Fund
will allow the form to be easily altered in response to changing
practices within the industry that lead to claims being made on
the Fund. The consumer and industry groups represented on the
Committee are best placed to identify these trends and the
information that is required to determine consumer claims.
Sub-clause (2) amends section 76 to require the person making
the claim to certify that the particulars in the claim are true and
correct. The amended section 76 also allows the Committee to
specify how information contained in a claim is to be verified and
15
may require the information to be supplied by way of a statutory
declaration.
Clause 71 inserts new section 83A which requires a person who sends a
copy of a document or notice to the Director or Authority to
retain the original of that document for 7 years. The requirement
does not apply to documents created and lodged on the
Department's Internet site and forwarded by electronic
transmission. The clause also requires a person to keep a
document that the Act or regulations require they keep, for a
period of 7 years. A penalty of 20 penalty units applies for non-
compliance with either of these provisions.
Clause 72 reduces the penalty for destroying, concealing, mutilating or
altering any document that a motor car trader is required by the
Act or regulations to keep to 100 penalty units and removes the
option previously open to a court of imposing a term of
imprisonment.
Clause 73 inserts in section 84A a penalty of 100 penalty units where a
corporation commits the offence of making a false or misleading
statement.
Clause 74 removes the requirement in section 87 that a certificate, signed by
the Registrar and stating the a person is or is not licensed,
authorised to carry on business under a specified name or
authorised to sell motor cars at public auction, be in a prescribed
form. The new section 87 provides that a certificate, signed by
the Registrar and certifying as to any matter relating to the
register, is evidence of that matter.
Clause 75 inserts in section 90 a power that allow regulations to be made
prescribing documents, accounts and records to be kept by a
motor car trader and the manner in, and period for, which they
must be kept. The clause also allows different fees to be
prescribed according to different circumstances. For example,
different fees may be charged for electronic and paper
transactions.
PART 6--AMENDMENT OF THE TRAVEL AGENTS ACT
1986
Clause 76 Sub-clause (1) removes the requirement, in section 8, that an
application for a travel agent's licence, made by a body corporate
with more than one director, be signed by at least two directors.
16
Sub-clause (2) inserts a requirement that an application, signed
by a director, certify that the director has the authority to make
the application, that the information contained in the application
is true and correct and that any accompanying documents are true
copies of those documents.
Sub-clause (3) inserts a penalty of 100 penalty units for a
corporation found guilty of making a false or misleading
statement.
Clause 77 inserts new section 8A allowing the Authority to require an
applicant for a licence, or a licensee, to provide any consent
necessary for the Authority to check or confirm information
relevant to the application or licence. The Authority can require
the consent to be provided at the time of submitting the
application or at any during the currency of a licence. The new
section 8A allows the Authority to refuse to consider an
application if the applicant does not provide the consent within
14 days.
These provisions will allow the Authority to conduct, for
example, an interstate police check before determining an
application or other checks during the course of a licence.
Clause 78 replaces the existing requirements in section 15 relating to the
register with a requirement that the Registrar keep a register of
travel agents open for public inspection. The register must be
kept in a form determined by the Registrar. New section 15(2)
sets out the purposes for keeping the register and specifies the
information that must be contained in the register. Subject to the
requirements under the Public Records Act 1973, the Registrar
may remove any information from the register after 12 years.
Clause 79 sub-clause (1) removes the ability for the partners of a travel
agency business to lodge a joint annual statement.
Accordingly, each licensee must lodge an annual statement.
Sub-clause (2) substitutes a reference to section "8(6)" with the
correct reference to section "8(5)". The sub-clause also amends
section 17 to ensure that notice is given to the Authority where
there is a change in the person in charge of a place where a travel
agency business is conducted.
Sub-clause (3) inserts a new section 17(11A) which requires a
licensee to notify the Authority if the licensee proposes to replace
the person in charge of a place of business with another person.
The notice must be in a form approved by the Authority and be
accompanied by any fee payable. The clause allows the
Authority to conduct any inquiries it thinks fit, to require the
17
person to provide additional information and to seek advice or
information from any other person or body.
Clause 80 inserts new section 41 which requires a person who sends a copy
of a document or notice to the Director or Authority to retain the
original of that document for 7 years. The requirement does not
apply to documents created and lodged on the Department's
Internet site and forwarded by electronic transmission.
The clause also requires a person to keep a document that the Act
or regulations require they keep, for a period of 7 years.
A penalty of 20 penalty units applies for non-compliance with
either of these provisions.
Clause 81 amends section 42B(1) in relation to the giving of information or
the making of statements that are false or misleading and imposes
a penalty of 100 penalty units for a corporation found guilty of
this offence.
Clause 82 inserts new section 42C making it an offence for a person to
destroy, conceal, mutilate or alter any document that he or she is
required to keep under the Act or the regulations. A penalty of
100 penalty units applies. It is a defence if the person charged
can establish that the act was not done with the intention of
defeating the purposes of the Act.
Clause 83 inserts in section 48 power for the regulations to prescribe
different fees in different circumstances and prescribe the
documents, accounts and records required to be kept by a travel
agent and the manner in, and period for, which they must be kept.
PART 7--AMENDMENT OF THE BUSINESS LICENSING
AUTHORITY ACT 1998
Clause 84 inserts a definition of "personal information".
Clause 85 amends the delegation power contained in section 11 to enable
the Authority to delegate any of its powers or functions except
the power to determine an application for a licence or for
permission to be licensed or to continue to be licensed despite the
applicant being otherwise ineligible and the power to delegate.
Clause 86 inserts a new provision, which enables a person to apply to the
Authority to have public access to their personal information held
on the register restricted. The Authority may restrict public
access to all or some of that person's personal information if
satisfied that there are exceptional circumstances for doing so.
The clause also allows another person to apply for the release of
personal information to which the Authority has restricted public
18
access. Despite the restriction on public access, the Authority
may release the information to that other person if the Authority
is satisfied that it is in the public interest that the information is
released to that person. If the Authority has decided to release
the person's personal information, the information must not be
released until 28 days after the Authority gives written notice to
that person.
The clause also inserts a provision that allows any person
affected by a decision of the Authority in relation to personal
information to apply to the Victorian Civil and Administrative
Tribunal for review of that decision within 28 days after notice of
the decision was given.
19