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Consumer Acts Amendment Bill 2016

  Consumer Acts Amendment Bill 2016

                        Introduction Print


              EXPLANATORY MEMORANDUM


                                 General
The object of this Bill is to amend a number of Consumer Acts to make
miscellaneous amendments to improve their operation.

                              Clause Notes

                         Part 1--Preliminary
Clause 1   sets out the main purposes of the Bill, which are--
             •       to amend the Associations Incorporation Reform
                    Act 2012 to--
                    •       enable the Minister responsible for that Act's
                           administration to make an order exempting either
                           one or a class of incorporated associations from
                           reporting requirements; and
                    •       enable the Registrar of Incorporated Associations
                           to enter into information sharing arrangements;
                           and
                    •       align provisions concerning investigations in that
                           Act with relevant provisions in the Australian
                           Consumer Law and Fair Trading Act 2012;
                           and
                    •       enable the inspection and provision of electronic
                           records under that Act; and
             •       to amend the Conveyancers Act 2006 to require
                    persons to assist the Director of Consumer Affairs
                    Victoria or an inspector appointed under the Act in
                    the conduct of investigations under the Act; and

581227                               1     BILL LA INTRODUCTION 22/11/2016

 


 

• to amend the Motor Car Traders Act 1986 to enable a motor car trader to dispose of a motor car for the Sheriff of Victoria; and • to amend the Sale of Land Act 1962 to clarify that a person wishing to exercise their right to withdraw from contract to purchase land may serve the termination notice on the estate agent engaged by the vendor to sell the land; and • to amend the Second-Hand Dealers and Pawnbrokers Act 1989 to enable the Registrar of Second-Hand Dealers and Pawnbrokers to waive, refund or reduce fees; and • to amend the Veterans Act 2005 to-- • clarify that the Director of Consumer Affairs Victoria can consent to the amendment of an existing trust deed, or the adoption of a new trust deed, provided that the purposes of the amended or adopted trust deed are consistent with the purposes of a patriotic fund set out in section 23 of the Veterans Act 2005; and • expand the class of persons who can benefit from patriotic funds. Clause 2 sets out the scheme of commencement for the provisions of the Bill. It provides that-- • the Bill, other than sections 5 to 15 and Division 2 of Part 3, comes into operation on the day after the day on which the Bill receives the Royal Assent; and • sections 5 to 15, and Division 2 of Part 3, come into operation when proclaimed; and • if not proclaimed earlier, sections 5 to 15, and Division 2 of Part 3, will come into operation by default on 1 November 2017. 2

 


 

Part 2--Amendment of the Associations Incorporation Reform Act 2012 Part 2 contains clauses 3 to 15, which set out the amendments to the Associations Incorporation Reform Act 2012. Clause 3 inserts sections 103(4) and (5) into the Associations Incorporation Reform Act 2012. Section 103(4) provides that the Minister may exempt an individual or class of incorporated association from one, some or all of the requirements set out in section 102 of the Associations Incorporation Reform Act 2012. Section 103(5) provides that the Minister may specify conditions in the Order. The exemption can apply generally or only for one year. The Order is published in the Gazette. Clause 4 inserts section 103A into the Associations Incorporation Reform Act 2012. Section 103A provides for arrangements between the Registrar of Incorporated Associations and any other person or body to enable the sharing or exchanging of information. This is intended to allow the Registrar to obtain information from the other person or body, where that person has obtained the information, which would otherwise also have been collected by the Registrar but for an exemption granted under clause 3. Clause 5 amends section 162 of the Associations Incorporation Reform Act 2012, which relates to entry and search of premises by an inspector with consent. Subclause (1) substitutes a new section 162(2)(c). New section 162(2)(c) omits the requirement that an inspector first believe on reasonable grounds that a document is connected with the alleged contravention before requiring its production and substituting the ability for an inspector to require any document kept on the premises to be produced for examination. If the inspector believes on reasonable grounds the document is connected with an alleged contravention, the inspector is authorised to examine, make copies, or take extracts from the document, or arrange for the making of copies or the taking of extracts or remove the document for so long as is reasonably necessary to take any of those actions. 3

 


 

Subclause (2) amends section 162(3) to insert the term "audio recording" in section 162(3) to allow an inspector to make an audio only recording, in addition to a still or moving image or audio-visual recording, if the inspector believes on reasonable grounds it is necessary to do so for the purpose of establishing an alleged contravention. Clause 6 inserts section 163(b)(iiia) into the Associations Incorporation Reform Act 2012, which provides that, in giving notice to an occupier for an entry and search, the inspector must inform the occupier that the occupier may refuse to produce any document required to be produced for examination. Clause 7 inserts new section 164(2)(a)(iiia) into the Associations Incorporation Reform Act 2012, which provides that an acknowledgement of consent to entry and search for the purposes of section 164 must include a statement that the occupier may refuse to produce any document required to be produced for examination. Clause 8 inserts the term "audio recording" into section 166(2)(f) of the Associations Incorporation Reform Act 2012 to allow an inspector to make an audio only recording, in addition to a still or moving image or audio-visual recording, during an entry without consent or warrant. Clause 9 substitutes section 168 of the Associations Incorporation Reform Act 2012, which relates to search warrants. The amendments recognise that an inspector can believe on reasonable grounds not only that the evidence necessary for an application for a warrant is on the premises the subject of the warrant at the time of the application, but also that the evidence may be on the premises within the 72 hours following the application. Further, the amendments recognise that the evidence may be in digital or electrical format. Section 168(1) allows an inspector to apply to a magistrate for the issue of a search warrant in relation to particular premises if the inspector believes on reasonable grounds that-- • there is, or may be within the next 72 hours, on the premises evidence that a person may have contravened the Associations Incorporation Reform Act 2012 or its regulations; or 4

 


 

• there is evidence in digital or electronic format that a person may have contravened the Associations Incorporation Reform Act 2012 or its regulations which is accessible from the premises. New section 168(2) provides that a magistrate may issue a search warrant if satisfied by the evidence, on oath or by affidavit, that there are reasonable grounds to believe that-- • there is, or may be within the next 72 hours, on the premises a thing, or thing of a particular kind, connected with a contravention of the Associations Incorporation Reform Act 2012 or its regulations; or • there is information in digital or electronic format connected with a contravention of the Associations Incorporation Reform Act 2012 or its regulations that is accessible from the premises. Clause 10 amends section 169 of the Associations Incorporation Reform Act 2012 which relates to the form and content of search warrants. Subclause (1) substitutes "168(3)" for "168(2)" wherever occurring in section 169. Following the passage of this Bill, search warrants will be issued under section 168(2) instead of section 168(3). Subclause (2) inserts in section 169(1) the following additional actions that are authorised to be taken by an inspector under a search warrant issued under section 169(3)-- • new section 169(1)(ba) provides that an inspector may enter premises and make an image of a hard drive of a computer, or a computer of a particular kind, named or described in the warrant, if the inspector believes on reasonable grounds that information contained on the hard drive is connected with the alleged contravention; • new section 169(1)(bb) provides that in the case of information in electronic or digital format described in the warrant that is accessible from the premises, if the inspector believes on reasonable grounds that the information is connected with the alleged contravention, the inspector may access the information via any computer or other electronic device located on the 5

 


 

premises, download or make an electronic copy of that information; and make or produce a physical copy of that information. Subclause (3) amends section 169(1)(c) to provide that a search warrant may authorise the inspector named in the warrant to make any "audio recording", in addition to a still or moving image or audio-visual recording when entering premises specified in the warrant. Clause 11 inserts new section 169A into the Associations Incorporation Reform Act 2012 which provides that a search warrant issued under section 168(2) may authorise the giving of a direction requiring assistance from a person with knowledge of a computer or other electronic device. Subclause (1) provides that new section 169A applies if a magistrate is satisfied by evidence, on oath or by affidavit, that there are reasonable grounds to believe that there is information in digital or electronic format connected with a contravention of the Associations Incorporation Reform Act 2012 or its regulations that is accessible from particular premises. Subclause (2) provides that a warrant issued under section 168(3) may authorise the inspector named in the warrant to require a person to provide any information or assistance that is reasonable and necessary to allow the inspector or another person to do one or more of the following things-- • access information held in, or accessible from, any computer or other electronic device located on the premises; • download or make an electronic copy of that information; • make or produce a physical copy of that information. Subclause (3) limits the application of the direction to certain persons. The inspector may require a person, who has the relevant knowledge regarding the computer or electronic device or the computer network of which the computer or device forms a part or relevant knowledge of measures applied to protect information held in, or accessible from, the computer or electronic device to provide the information or assistance referred to in subclause (2) if the person is one of the following-- 6

 


 

• the person alleged to have contravened the Associations Incorporation Reform Act 2012 or its regulations; • the owner or lessee of the computer or other electronic device; • an employee of the owner or lessee of the computer or electronic device; • a person engaged under a contract for services by the owner or lessee of the computer or electronic device. Clause 12 substitutes a reference to section 168(2) for a reference to section 168(3) in section 170(1) of the Associations Incorporation Reform Act 2012. Section 170 concerns the execution of search warrants, and following the passage of this Bill, search warrants will be issued under section 168(2) instead of section 168(3). Clause 13 substitutes a reference to section 168(2) for a reference to section 168(3) in section 172 of the Associations Incorporation Reform Act 2012. Section 172 concerns the seizure of things not mentioned in a warrant, and following the passage of this Bill, search warrants will be issued under section 168(2) instead of section 168(3). Clause 14 inserts new section 177(3) into the Associations Incorporation Reform Act 2012. Section 177(3) provides that it is not a reasonable excuse for the purposes of section 177(1) for a person to refuse or fail to provide information or assistance required under section 169A if that information would tend to incriminate that person. Clause 15 amends section 196 of the Associations Incorporation Reform Act 2012. Section 196(1) provides that a person may inspect a prescribed document kept by the Registrar of Incorporated Associations that relates to an incorporated association. Section 196(2) provides that a person may obtain a copy of a prescribed document (or a certified copy if requested) on payment of the prescribed fee (if any). 7

 


 

Clause 15(2) inserts section 196(1)(c), which provides that if a document is kept in an electronic system, the copy that a person may inspect is a physical copy of the information produced by the electronic system that shows the relevant data or electronic transaction relating to the prescribed document. Clause 15(4) inserts section 196(2)(c), which provides that a person may obtain a physical copy of the information described in section 196(1)(c). This is intended to enable a person to view and obtain a copy of information entered into an electronic system from a prescribed document that is stored in the electronic system in a database format rather than in the format of a prescribed document. Part 3--Amendment of other Acts Part 3 makes miscellaneous amendments to a range of other Consumer Acts. Division 1--Conveyancers Act 2006 Clause 16 repeals section 172(2) of the Conveyancers Act 2006. Section 172(1) provides that an inspector can require the occupier of premises that are the subject of an inspection (or an agent or employee of an occupier) to give information to, produce documents to, or provide reasonable assistance to, the inspector. Section 172(2) provides that a person must not refuse or fail to comply with the inspector's requirements, without a reasonable excuse. However, this requirement is limited to requirements under the section, and does not apply to requirements of an inspector generally under Part 8 of the Conveyancers Act 2006, which sets out a range of potential requirements of an inspector. Other Consumer Acts have a more general provision which applies to the Part of the relevant Act which sets out inspection powers (see for example, section 70T of the Estate Agents Act 1980). Section 172(2) is also limited to requirements of an inspector, and does not include requirements of the Director of Consumer Affairs Victoria. The Director also has functions under Part 8 (see for example section 157 which provides that the Director or an inspector have powers in relation to monitoring compliance with the Conveyancers Act 2006). 8

 


 

In light of these limitations, section 172(2) is repealed and new section 172A is inserted. See Clause 17. Clause 17 inserts section 172A into the Conveyancers Act 2006. Section 172A provides that a person must not refuse or fail to comply with a requirement of an inspector or the Director of Consumer Affairs Victoria under Part 8, without a reasonable excuse. A penalty of 60 penalty units applies. Division 2--Motor Car Traders Act 1986 Clause 18 inserts section 48(3) into the Motor Car Traders Act 1986. Section 48(1) of the Motor Car Traders Act 1986 prohibits a motor car trader from selling, exchanging or otherwise disposing of a motor car without first procuring the cancellation of any security interest in the motor car that is registered on the Personal Property Securities Register (PPSR) under the Personal Property Securities Act 2009 of the Commonwealth. This has prevented motor car traders, which have been engaged by the Sheriff's Office of Victoria, from carrying out the sale of motor cars seized by the Sheriff in satisfaction of a judgement debt. In some instances, subsequently registered interests have engaged section 48(1). Section 48(3) allows the motor car trader to sell the motor car notwithstanding the security interest if the motor car trader has been engaged by the Sheriff to sell, exchange or otherwise dispose of the motor car on behalf of the Sheriff. Division 3--Sale of Land Act 1962 Clause 19 inserts a definition of estate agent into the Sale of Land Act 1962. The expression is defined to have the same meaning as in the Estate Agents Act 1980. Clause 20 substitutes section 31(3) of the Sale of Land Act 1962. Substituted section 31(3) provides that a notice under section 31(2) may be given to the vendor, the agent of the vendor or an estate agent of the vendor engaged or appointed to sell the land. 9

 


 

Section 31(2) provides that a purchaser under a contract for the sale of land that is subject to section 31 can serve a notice to terminate the contract (a cooling off notice). Section 31(3) sets out how this may be done. Currently section 31(3) provides that a cooling off notice may be given to the vendor or vendor's agent. In the decision in Tan v Russell (No. 93 of 2016) in the Supreme Court of Victoria the Court held that the term "agent" in section 31(3) meant "agent at law". The Court found that the authority commonly granted by a vendor to an estate agent to sell a property does not make the estate agent an agent of the vendor for all purposes, including for the purpose of accepting service of a cooling off notice on behalf of the vendor. Commonly, the engagement or appointment of an estate agent by a vendor has not expressly authorised the estate agent to accept a cooling off notice on behalf of the vendor. Vendors and estate agents have assumed in the course of their commercial dealings that such an authority forms part of the engagement or appointment. Substituted section 31(3) confirms this by adding an estate agent appointed or engaged by the vendor to sell the land as one of the parties to whom a cooling off notice may be given. Under section 31(3) a cooling off notice may be-- • given to a vendor; or • given to an agent of the vendor who is authorised to accept a cooling off notice on behalf of the vendor; or • given to an estate agent engaged or appointed by the vendor to sell the land; or • left at the address specified by the vendor in the contract for the sale of the land as the address for service; or • left at the address of an agent of the vendor who is authorised to accept a cooling off notice on behalf of the vendor; or • left at the address of the estate agent engaged or appointed by the vendor to sell the land. 10

 


 

Clause 21 inserts section 31A into the Sale of Land Act 1962. Section 31A(1) provides that where, on or before the commencement of clause 20 of the Bill, a notice to terminate a contract for the sale of land was given under section 31(3) to an estate agent who was appointed or engaged by the vendor to sell the land, that notice is taken to have been given under section 31(3) as amended by clause 20. This ensures that such a notice is not invalid merely because it was given to the estate agent. Section 31A(2) further provides, that section 31(3) is not intended to change the status of-- • the cooling off notice that was the subject of the proceedings in Tan v Russell (No. 93 of 2016) in the Supreme Court of Victoria; or • any other cooling off notice that is the subject of proceedings concerning its validity where the proceedings commenced on or before the commencement of section 20 of the Consumer Acts Amendment Act 2016. Division 4--Second-Hand Dealers and Pawnbrokers Act 1989 Clause 22 inserts section 29A into the Second-Hand Dealers and Pawnbrokers Act 1989. Section 29A provides that the Registrar of the Business Licensing Authority may waive or reduce fees owing under that Act, or refund all or part of such fees. Division 5--Veterans Act 2005 Clause 23 makes changes to section 23 of the Veterans Act 2005. Section 23 of the Veterans Act 2005 defines a patriotic fund as being any fund raised for purposes in connection with any service or duty as an officer or member of the naval, military or air forces of Her Majesty or of the Commonwealth of Australia or of any of such forces of Her Majesty's allies. Section 23(2) provides that those purposes can include particular things, such as the relief of distress occasioned by service or duty, equipment of forces, and the supply of comforts or conveniences. 11

 


 

Clause 23(a) of the Bill substitutes section 23(2)(d) of the Veterans Act 2005 to-- • ensure that a reference to officers and members of forces in the paragraph includes a reference to those officers whose appointments have been terminated or members who have been discharged. This overcomes any confusion that the expanded reference to officers and members may only have been relevant to officers and members of auxiliary forces in section 23(2)(d)(iii) of the Act; and • remove the requirement that the need for the relief, assistance or support of officers and members is a result of any service or duty. Clause 23(b) of the Bill amends section 23(2)(e) of the Veterans Act 2005 to remove the requirement that any relief, assistance or support of dependants of the officers or members set out in section 23(2)(d) of the Act is contingent upon that officer or member having died as a result of any service or duty. Clause 24 amends section 33A(2) of the Veterans Act 2005 to increase the ability of the Director of Consumer Affairs Victoria to approve amendments to trust deeds, or the adoption of a new trust deed, for patriotic funds. Currently section 33A(2) provides that the Director may approve amendments to an existing trust deed, or consent to the adoption of a new trust deed, for a patriotic fund, if the purposes of the fund are consistent with, and do not alter, the purposes of the fund at the time of the application. The requirement that the amendments or the new deed do not alter the existing purposes has proven to be more restrictive in practice than originally intended when section 33A(2) was introduced. As amended, section 33A(2) will enable the Director to approve an amendment to a trust deed or approve the adoption of a new trust deed provided that the amended deed or new deed have purposes that are consistent with section 23 of the Veterans Act 2005 which sets out the purposes of patriotic funds. 12

 


 

Part 4--Repeal of amending Act Clause 25 provides that the Bill is repealed on 1 November 2018. The repeal does not affect the continuing operation of the amendments made by the Bill (see section 15(1) of the Interpretation of Legislation Act 1984). 13

 


 

 


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