Consumer Affairs Legislation Amendment Act 2010

Consumer Affairs Legislation Amendment Act 2010

No. 1 of 2010

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Conveyancers Act 2006

3Annual audit of trust records

Part 3—Estate Agents Act 1980

4Definitions

5Estate Agents Council

6Eligibility to obtain licence

7Eligibility for employment as an agent's representative

8Application for estate agent's licence

9Certain documents to be lodged by particular corporations

10Section 30AB repealed

11Restriction on agent purchasing property

12Definitions

13Trust money

14Secretary's power to enter into arrangements with financial institutions

15Section 61 repealed

16New section 101 substituted

101Rural branch manager's licence

Part 4—Fair Trading Act 1999

17Definitions

18New Part 5B inserted

Part 5B—Debt Collection

Division 1—Preliminary

93EDefinitions

Division 2—Offences

93FCertain persons prohibited from engaging in debt collection

93GApplications by prohibited persons for permission to engage in debt collection

93HPermission from the Authority

93IAuthority may impose conditions

93JApplication for review

93KOffence to charge debtor for cost of debt collection

93LOffence to purchase debt for the purpose of collection

19Transitional provisions

16Transitional—Consumer Affairs Legislation Amendment Act 2010

17Transitional—Repeal of Trade Measurement
Act 1995

18Transitional—Repeal of Trade Measurement (Administration) Act1995

19Transitional—Transfer of information for the purpose
of the National Measurement Act 1960 of the Commonwealth

Part 5—Owners Corporations Act 2006

20Power to delegate

21The common seal

22When can the common seal be used?

23Penalty interest on arrears

24What is an insurable building?

25Reinstatement and replacement insurance

26Agenda for annual general meeting

27Notice of annual general meeting

28Who chairs the general meeting?

29Owners corporation may require certain matters to be dealt
with at general meetings

30New section 94 substituted

94Can a lot owner vote if fees are unpaid?

31Chairperson of owners corporation

32Secretary

33Functions and powers of the committee

34Chairperson of committee

35Secretary of committee

36Notice of meetings

37Functions of the manager where there is a committee

38New section 121 inserted

121Functions of the manager where there is no committee

39Availability of register

40Owners corporation certificate

Part 6—Property Law Act 1958

41New Division 5A of Part II inserted

Division 5A—Removal of buildings and fixtures

154ATenant may remove buildings and fixtures

Part 7—Prostitution Control Act 1994

42Updated references to prostitute and prostitution

43New section 3B inserted

3BExemptions for sex on premises venues

44New section 18A inserted

18ASex workers and clients must adopt safer sex
practices

45Permitting sex worker infected with a disease to work in a brotheletc.

46Sex worker working while infected with a disease

47Sex work service providers to be licensed

48New section 24A inserted

24AAnnual statement regarding exemption

49New section 39A inserted

39ALicensee identity cards

50Amendment of licence

51Cancelled or suspended licence must be returned

52Requirement for licensee to be in effective control of business

53New section 46AA inserted

46AAAuthority may conduct checks upon receipt of information relating to change of ownership of
premises

54New section 47A inserted

47ADeath, disability etc. of licensed sex work service provider

55New section 52AAA

52AAAApproved manager identity cards

56New sections 53A, 53B and 53C inserted

53AApplication for permission to act as approved
manager

53BPermission from the Authority

53CAuthority may impose conditions

57Cancelled or suspended approval must be returned

58Licence and approvals register

59Application for review

60New section 60A inserted

60ADisplay of prescribed signage relating to sexual
slavery

61Production of licence or certificate of approval

62Accounts and other documents available for inspection

63New section 61DA inserted

61DAPersons to answer questions in relation to suspected nonlicensed sex work service providing businesses

64Third parties to produce documents and answer questions
relating to specified business

65Department Heads, police and public authorities to produce information to inspectors

66Certain other specified persons or bodies to produce
information

67Order requiring the supply of information and answers to questions

68Entry to licensed premises by police

69Entry to unlicensed premises—without search warrant

70New section 65A inserted

65ADelegations by the Chief Commissioner

71Restriction on certain permit applications

72New section 74A inserted

74AConditions on permits for licence applicants

73Power to serve an infringement notice

74New section 94 inserted

94Saving provision concerning change of Act name

Part 8—Sale of Land Act 1962

75Deposit moneys held by legal practitioner, conveyancer or
estate agent to be held as stakeholder

Part 9—Trade Measurement (Administration) Act1995

76Trade Measurement (Administration) Act 1995

25AInformation sharing with National Measurement
Institute

Part 10—Repeals and Amendments

Division 1—Repeal of redundant Acts

77Collusive Practices Act 1965

78Fuel Prices Regulation Act 1981

79Marketable Securities Act 1970

80Petroleum Retail Selling Sites Act 1981

81Petroleum Products (Terminal Gate Pricing) Act2000

82Private Agents Act 1966

83Trade Measurement Act 1995

84Trade Measurement (Administration) Act 1995

85Utility Meters (Metrological Controls) Act 2002

Division 2—Repeal of redundant provisions

86Carriers and Innkeepers Act 1958

87Companies (Administration) Act 1981

88Conveyancers Act 2006

89Gambling Regulation Act 2003

90Land Act 1958

91Landlord and Tenant Act 1958

92Owners Corporations Act 2006

93Water Act 1989

Division 3—Repeal of spent transitional provisions

94Co-operatives Act 1996

95Fair Trading Act 1999

96Fundraising Act 1998

97Funerals Act 2006

98Partnership Act 1958

99Retirement Villages Act 1986

100Second-Hand Dealers and Pawnbrokers Act 1989

101Travel Agents Act 1986

Division 4—Consequential and other amendments

102Corporations (Ancillary Provisions) Act 2001

27Transitional—Repeal of Marketable Securities Act1970

103County Court Act 1958

104Duties Act 2000

105Fair Trading Act 1999

106Liquor Control Reform Amendment (Licensing) Act2009

107Police Regulation Act 1958

108Private Security Act 2004

63ADisclosure of cancellation or suspension of private security licence

118ADisclosure of cancellation or suspension of private security registration

109Residential Tenancies Act 1997

Division 5—Repeal of amending Act

110Repeal of amending Act

______

SCHEDULE—Amendments to Prostitution Control Act 1994

═══════════════

Endnotes

SectionPage

Victoria

SectionPage

Consumer Affairs Legislation Amendment Act 2010[†]

No. 1 of 2010

[Assented to 9 February 2010]

Consumer Affairs Legislation Amendment Act 2010
No. 1 of 2010

The Parliament of Victoriaenacts:

Consumer Affairs Legislation Amendment Act 2010
No. 1 of 2010

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to repeal the Private Agents Act 1966 and insert provisions in the Fair Trading Act 1999 to regulate debt collection;

(b)to amend the Conveyancers Act 2006 to clarify its operation;

(c)to amend the licensing and financial auditing requirements in the Estate Agents Act 1980;

(d)to repeal Parts I, II and III of the Landlord and Tenant Act 1958 and re-enact section28(2) in the Property Law Act 1958;

(e)to amend the Owners Corporations Act 2006 to clarify its operation;

(f)to amend the Prostitution Control Act 1994 to change licensing arrangements, strengthen enforcement powers and clarify its operation;

(g)to amend the Sale of Land Act 1962 in relation to the transfer of deposit moneys for the sale of lots under that Act;

(h)to amendthe Trade Measurement (Administration) Act 1995 to enable the transfer of information to the Commonwealth and to repeal that Act, the Trade Measurement Act 1995 and the Utility Meters (Metrological Controls) Act 2002;

(i)to repeal other redundant legislation and make consequential amendments to some of the above and several other Acts.

2Commencement

s. 2

(1)This Part comes into operation on the day on which this Act receives the Royal Assent.

(2)Sections 83, 84 and 105(2) come into operation on 1 July 2010.

(3)Section 106is deemed to have come into operation on 21 October 2009.

(4)Subject to subsection (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(5)If a provision referred to in subsection (4) does not come into operation before 1 January 2011, it comes into operation on that day.

s. 2

______

Part 2—Conveyancers Act 2006

3Annual audit of trust records

s. 3

See:
Act No.
75/2006
and amending
Act Nos
12/2007, 17/2007, 12/2008 and 2/2009.
LawToday:
www.
legislation.
vic.gov.au

(1)In section 84(1) of the Conveyancers Act 2006omit "in accordance with the regulations".

(2)After section 84(1) of the Conveyancers Act 2006insert—

"(1A)The regulations may make provision for the conduct of audits under subsection (1).".

______

Part 3—Estate Agents Act 1980

4Definitions

s. 4

See:
Act No.
9428.
Reprint No. 10
as at
1 July 2008
and amending
Act Nos
4/2008, 12/2008 and 44/2008.
LawToday:
www.
legislation.
vic.gov.au

(1)In section 4(1) of the Estate Agents Act 1980insert the following definition—

"authorised financial institution means a financial institution that—

(a)was an authorised financial institution for the purposes of section 60 immediately before section 30 of the Estate Agents (Amendment) Act 1994 came into operation; or

(b)has entered into an arrangement with the Secretary under section 60(1);".

(2)In section 4(1) of the Estate Agents Act 1980, in the definition of approved industry association for "Stock and Station Agents' Association Limited A.C.N. 096 142 880" substitute "Australian Livestock & Property Agents Association Limited ACN 096 142 880".

(3)In section 4(1) of the Estate Agents Act 1980, in the definition of principal office for "under section 34" substitute "on the register under section 33(3)(g)".

(4)In section 4(1) of the Estate Agents Act 1980 the following definitionsarerepealed—

(a)declared corporation;

(b)stock and station agent.

5Estate Agents Council

In section 6(2)(b) of the Estate Agents Act 1980for "Stock and Station Agents' Association Limited A.C.N. 096 142 880" substitute "Australian Livestock & Property Agents Association Limited ACN 096 142 880".

6Eligibility to obtain licence

s. 6

Section 14(2) of the Estate Agents Act 1980 is repealed.

7Eligibility for employment as an agent's representative

In section 16of the Estate Agents Act 1980—

(a)in subsection (4)(a)—

(i)in subparagraph (i)(B),for "offence; or" substitute "offence; and".

(ii)subparagraph (ii) is repealed;

(b)the note preceding subsection(4)(b)is repealed.

8Application for estate agent's licence

In section 17of the Estate Agents Act 1980—

(a)subsection (2)(c)(i) is repealed;

(b)for subsection (4)(c) and (d) substitute—

"(c)be accompanied by the documents referred to in section 19.".

9Certain documents to be lodged by particular corporations

In section 19(1) of the Estate Agents Act 1980omit "other than a declared corporation".

10Section 30AB repealed

Section 30AB of the Estate Agents Act 1980is repealed.

11Restriction on agent purchasing property

In section 55(9)(b) of the Estate Agents Act 1980 for "a stock and station agent" substitute
"an estate agent".

12Definitions

s. 12

In section 58 of the Estate Agents Act 1980, in the definition of financial institution, for "section 60(6)(b) of this Act" substitute "an authorised financial institution".

13Trust money

(1)At the foot of section 59(1) of the Estate Agents Act 1980insert—

"Penalty:120 penalty units.".

(2)Section 59(2) of the Estate Agents Act 1980is repealed.

(3)At the foot of section 59(7) of the Estate Agents Act 1980insert—

"Penalty:60 penalty units.".

14Secretary's power to enter into arrangements with financial institutions

(1)In section 60(1) of the Estate Agents Act 1980 for "with an authorised" substitute "with a".

(2)In section 60(5) of the Estate Agents Act 1980 for "an authorised financial institution" substitute "a financial institution under this section".

(3)Section 60(6) of the Estate Agents Act 1980is repealed.

15Section 61 repealed

Section 61 of the Estate Agents Act 1980 is repealed.

16New section 101substituted

s. 16

For section 101 of the Estate Agents Act 1980substitute—

"101Rural branch manager's licence

Despite the repeal of section 30AB of this Act, that section continues to apply to a person who was, immediately before the commencement of section 10 of the Consumer Affairs Legislation Amendment Act 2010, the holder of a rural branch manager's licence.".

______

Part 4—Fair Trading Act 1999

17Definitions

s. 17

See:
Act No.
16/1999.
Reprint No. 4
as at
11 June 2009
and amending
Act No
45/2009.
LawToday:
www.
legislation.
vic.gov.au

In section 3 of the Fair Trading Act 1999 insertthe following definition—

"Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;".

18New Part 5B inserted

After Part 5A of the Fair Trading Act 1999 insert—

"Part5B—Debt Collection

Division 1—Preliminary

93EDefinitions

In this Part—

debt collector means a person who engages in debt collection—

(a)as a principal or agent;

(b)as an employee of a principal or agent in exchange for salary, wages or commission;

engage in debt collection means to perform any of the following for remuneration or reward—

(a)to find, or repossess, for another person any goods or chattels that the other person is entitled to repossess under an agreement or goods mortgage;

(b)to collect, attempt to collect, or request payment of, debts owed to another person;

prohibited person means a person who is prohibited from engaging in debt collection under section 93F(1) and who does not hold a current permission given by the Authority under section93H.

Division 2—Offences

93FCertain persons prohibited from engaging in debt collection

s. 18

(1)A person is prohibited from engaging in debt collection if that person—

(a)in the case of a natural person—

(i)is under 18 years of age; or

(ii)is a represented person within the meaning of the Guardianship and Administration Act 1986; or

(iii)is an insolvent under administration; or

(iv)who, in the preceding 5 years, held a private security licence under the Private Security Act 2004 that was cancelled or suspended under section 56 or 61 of that Act; or

(v)who, in the preceding 5 years, held a private security registration under the Private Security Act 2004 that has been cancelled or suspended under section 111 or116 of that Act; or

(vi)who, in the preceding 5 years, has been found guilty in Victoria or elsewhere, of an offence involving fraud, dishonesty, drug trafficking or violence punishable by imprisonment of 3 months or more; or

(vii)who, in the preceding 5 years, has been found to have been involved in the use of physical force, undue harassment or coercion in contravention of—

(A)section 12DJ of the Australian Securities and Investments Commission Act 2001 of the Commonwealth; or

s. 18

(B)an equivalent provision in an Act of the Commonwealth or Act of another State or Territory; or

(C)this Act or the regulations;

(b)in the case of a corporation—

(i)is an externally administered body corporate; or

(ii)is a corporation—

(A)one or more of the directors of which is a person referred to in paragraph (a); or

(B)managed or effectively controlled by a natural person who is a person referred to in paragraph (a); or

(iii)has, in the preceding 5 years, been found to have contravened section60 of the Trade Practices Act 1974 of the Commonwealth.

(2)Aprohibited person must not engage in debt collection.

Penalty:In the case of a body corporate, 1200 penalty units;

In any other case, 240 penalty units or 2 years imprisonment.

93GApplications by prohibited persons for permission to engage in debt collection

s. 18

(1)Subject to subsection (4), aprohibited person may apply to the Authority at any time for permission to—

(a)engage in debt collection;

(b)be a director of a corporation that engages in debt collection;

(c)manage or effectively control a corporation that engages in debt collection.

(2)An application under this section must—

(a)be in the form approved by the Authority; and

(b)contain the information required by the Authority; and

(c)be accompanied by the documents required by the Authority; and

(d)be accompanied by the prescribed fee (ifany).

(3)In considering an application under this section, the Authority may—

(a)conduct any inquiries it thinks fit;

(b)require the applicant to provide any further information relating to the application that the Authority thinks fit in the manner required by the Authority;

(c)seek advice and information on the application from any other person or body as it thinks fit.

(4)The Authority may refuse to give its permission if the applicant does not provide the further information required, or his or her consent for the Authority to obtain that information, within a reasonable time after the requirement is made.

(5)An application may be withdrawn at any time before the Authority determines it.

(6)Subsection (1) does not apply to a person who is—

(a)under the age of 18 years; or

(b)a represented person within the meaning of the Guardianship and Administration Act 1986.

93HPermission from the Authority

s. 18

The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.

93IAuthority may impose conditions

(1)In giving its permission under this Division, the Authority may impose any conditions it considers appropriate to ensure the ongoing protection of the public interest.

(2)The Authority may vary any of the conditions it has imposed—

(a)on the application of the person given the permission, upon the payment of the prescribed fee (if any);

(b)on the application of the Director;

s. 18

(c)of its own motion.

(3)The person given the permission must comply with any conditions imposed in respect of that permission.

Penalty:In the case of a body corporate, 1200 penalty units;

In any other case, 240 penalty units or 2 years imprisonment.

(4)If the Authority is satisfied that any condition imposed in respect of a permission has been contravened or not complied with, it may revoke the permission.

(5)Before taking any action under this section the Authority may seek and use information and advice from any person or body or other source as it thinks fit.

93JApplication for review

(1)A person whose interests are affected by a decision of the Authority under sections 93H and93I may apply to the Tribunal for review of the decision.

(2)An application for review must be made within 28 days after the later of—

(a)the day on which the decision is made; or

(b)if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

93KOffence to charge debtor for cost of debt collection

s. 18

(1)A debt collector must not recover, or attempt to recover, from a debtor any remuneration or payment in connection with the collection of a debt including the costs and expenses of a debt collector for—

(a)finding or attempting to find goods or chattels of the debtor;

(b)repossessing or attempting to repossess goods or chattels from the debtor;

(c)collecting or attempting to collect a debt owed by the debtor.

Penalty:120 penalty units.

(2)Subsection (1)(b)does not apply to a debt collector appointed by a person to repossess goods or chattels from a debtor if that person has a right under agoods mortgage or other agreement with the debtor to recover the costs or expenses for the repossession of goods.

(3)Any costs or expenses recovered in contravention of subsection (1)—

(a)may be recovered by the debtor as a debt; and

(b)if the debt collector is the creditor—

(i)may be set off against the debt; or

(ii)may be recovered by the debtor from the debt collector or the creditor.

(4)In this section—

costs do not include—

(a)stamp duty; or

s. 18

(b)legal costs fixed by, or payable under, rules of court or a court order;

creditor includes a partner, employer, employee, principal or agent of the creditor or a person who is in any way acting in collusion with the creditor;

debtor includes a person from whom goods or chattels may be lawfully repossessed.

(5)This section applies subject to the Consumer Credit Code.

93LOffence to purchase debt for the purpose of collection

A prohibited person must not knowingly purchase, or accept assignment of, a debt from a creditor for the purpose of collecting that debtif—

(a)the debtor is a natural person; and

(b)the debt is wholly or predominantly accrued in connection with personal, domestic or household purposes.

Penalty:In the case of a body corporate, 1200 penalty units;

In any other case, 240 penalty units or 2 years imprisonment.

______".

19Transitional provisions

s. 19

In Schedule 3 to the Fair Trading Act 1999, after clause 15 insert—

"16Transitional—Consumer Affairs Legislation Amendment Act 2010

(1)As soon as practicable after 1 January 2011, the Director must take possession, and have custody, control and use of the register within the meaning of section 7 of the Private Agents Act 1966.

(2)As soon as practicable after 1 January 2011, the Director must send a notice to every person who, immediately before that date, held a licence in respect of any category of private agent under the Private Agents Act 1966, requiring that person to give or send their licence to the Director.