Consumer Acts Amendment Act 2017 - …FILE/17-013a.docx · Web viewOCPC Victoria, Word 2007, ......

Consumer Acts Amendment Act 2017 No. 13 of 2017

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 3

Part 2—Amendment of the Associations Incorporation Reform Act 2012 4

3 Exemption from requirements under section 102 44 New section 103A inserted 45 Entry and search with consent 46 Notice before entry and search 57 Acknowledgement of consent to entry and search 58 Entry without consent or warrant 59 Section 168 substituted 610 Form and content of search warrants 711 New section 169A inserted 812 Announcement before entry 913 Seizure of things not mentioned in the warrant 1014 Protection against self-incrimination 1015 Inspection of register and obtaining copies of documents 10

Part 3—Amendment of other Acts 12

Division 1—Conveyancers Act 2006 12

16 Requirement to assist inspector during entry 1217 New section 172A inserted 12

Division 2—Motor Car Traders Act 1986 12

18 Cancellation of security interest by motor car trader 12

Division 3—Sale of Land Act 1962 13

19 Definitions 1320 Power of purchaser to terminate a contract for sale of land 1321 New section 31A inserted 14

Division 4—Second-Hand Dealers and Pawnbrokers Act 1989 15

22 New section 29A inserted 15

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Division 5—Veterans Act 2005 15

23 What is a patriotic fund? 1524 Amendment to trust deed of patriotic fund 16

Part 4—Repeal of amending Act 17

25 Repeal of amending Act 17═══════════════

Endnotes 18

1 General information 18

Consumer Acts Amendment Act 2017†

No. 13 of 2017

[Assented to 10 May 2017]

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purposes

The main purposes of this Act are—

(a) to amend the Associations Incorporation Reform Act 2012 to—

(i) give the Minister discretion to exempt an incorporated association or class of incorporated association from specific requirements of the Associations Incorporation Reform Act 2012; and

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(ii) better align the provisions in relation to powers of entry and inspection with the provisions of the Australian Consumer Law and Fair Trading Act 2012; and

(iii) enable the inspection and provision of electronic records of prescribed documents kept by the Registrar in relation to incorporated associations; and

(b) to amend the Conveyancers Act 2006 to insert an offence of failing to comply, without reasonable excuse, with a requirement of the Director or an inspector; and

(c) to amend the Motor Car Traders Act 1986 to allow a motor car trader to sell, exchange or dispose of a motor car subject to a security interest, where the motor car trader is engaged by the Sheriff to sell the motor car pursuant to a security interest registered in favour of the Sheriff; and

(d) to amend the Sale of Land Act 1962 to provide that a notice to terminate a contract for the sale of land may be given to an estate agent of the vendor; and

(e) to amend the Second-Hand Dealers and Pawnbrokers Act 1989 to allow the Registrar to waive, reduce or refund any fees payable under that Act; and

(f) to amend the Veterans Act 2005 to—

(i) broaden the purposes for which money may be expended from a patriotic fund to better enable that money to be used for the benefit and support of returned

Section Page

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and ex-service personnel or their dependents; and

(ii) provide that the Director must not approve an amendment or adoption of a trust deed unless the amendment or adoption is consistent with the purposes of a patriotic fund.

2 Commencement

(1) This Act (except sections 5 to 15 and Division 2 of Part 3) comes into operation on the day after the day on which it receives the Royal Assent.

(2) Subject to subsection (3), sections 5 to 15 and Division 2 of Part 3 of this Act come into operation on a day or days to be proclaimed.

(3) If a provision referred to in subsection (2) does not come into operation before 1 November 2017, it comes into operation on that day.

Section Page

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Part 2—Amendment of the Associations Incorporation Reform Act 2012

3 Exemption from requirements under section 102

After section 103(3) of the Associations Incorporation Reform Act 2012 insert—

"(4) The Minister, by Order published in the Government Gazette, may exempt an incorporated association or a class of incorporated association from one or more of the requirements under section 102, either generally or in relation to a specified year.

(5) An exemption under subsection (4) is subject to any conditions specified by the Minister in the Order.".

4 New section 103A inserted

After section 103 of the Associations Incorporation Reform Act 2012 insert—

"103A Information sharing

The Registrar may enter into an arrangement with a person or body for the purposes of sharing or exchanging information in relation to an exemption by the Minister of an incorporated association or a class of incorporated association in accordance with section 103(4).".

5 Entry and search with consent

(1) For section 162(2)(c) of the Associations Incorporation Reform Act 2012 substitute—

"(c) require any document on the premises to be produced for examination and, if the inspector believes on reasonable grounds that the document is connected with the alleged contravention—


Consumer Acts Amendment Act 2017No. 13 of 2017

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(i) examine, make copies or take extracts from the document, or arrange for the making of copies or the taking of extracts; or

(ii) remove the document for so long as is reasonably necessary to make copies or take extracts from the document.".

(2) In section 162(3) of the Associations Incorporation Reform Act 2012, after "image" insert ", audio recording".

6 Notice before entry and search

After section 163(b)(iii) of the Associations Incorporation Reform Act 2012 insert—

"(iiia) that the occupier may refuse to produce any document required to be produced for examination; and".

7 Acknowledgement of consent to entry and search

After section 164(2)(a)(iii) of the Associations Incorporation Reform Act 2012 insert—

"(iiia) that the occupier may refuse to produce any document required to be produced for examination; and".

8 Entry without consent or warrant

In section 166(2)(f) of the Associations Incorporation Reform Act 2012, after "image" insert ", audio recording".



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9 Section 168 substituted

For section 168 of the Associations Incorporation Reform Act 2012 substitute—

"168 Search warrants

(1) An inspector may apply to a magistrate for the issue of a search warrant in relation to particular premises if the inspector believes on reasonable grounds that—

(a) there is, or may be within the next 72 hours, on the premises evidence that a person may have contravened this Act or the regulations; or

(b) there is evidence in digital or electronic format that a person may have contravened this Act or the regulations which is accessible from the premises.

(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, that there are reasonable grounds to believe that—

(a) 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 this Act or the regulations; or

(b) there is information in digital or electronic format connected with a contravention of this Act or the regulations that is accessible from the premises—

the magistrate may issue the search warrant in accordance with the Magistrates' Court Act 1989.".



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10 Form and content of search warrants

(1) In section 169 of the Associations Incorporation Reform Act 2012, for "168(3)" (wherever occurring) substitute "168(2)".

(2) After section 169(1)(b) of the Associations Incorporation Reform Act 2012 insert—

"(ba) make an image of the 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;

(bb) 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—

(i) access the information via any computer or other electronic device located on the premises;

(ii) download or make an electronic copy of that information;

(iii) make or produce a physical copy of that information;".

(3) In section 169(1)(c) of the Associations Incorporation Reform Act 2012, after "image" insert ", audio recording".



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After section 169 of the Associations Incorporation Reform Act 2012 insert—

"169A Warrant may authorise the giving of a direction requiring assistance from person with knowledge of a computer or other electronic device

(1) This section 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 this Act or the regulations that is accessible from particular premises.

(2) Subject to subsection (3), a warrant issued by the magistrate under section 168(2) 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—

(a) access information held in, or accessible from, any computer or other electronic device located on the premises;

(b) download or make an electronic copy of that information;

(c) make or produce a physical copy of that information.



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(3) The inspector may require a person to provide the information or assistance referred to in subsection (2) if the person—

(a) is one of the following—

(i) the person alleged to have contravened this Act or the regulations;

(ii) the owner or lessee of the computer or other electronic device;

(iii) an employee of the owner or lessee of the computer or electronic device;

(iv) a person engaged under a contract for services by the owner or lessee of the computer or electronic device; and

(b) has relevant knowledge of—

(i) the computer or electronic device or a computer network of which the computer or device forms or formed part; or

(ii) measures applied to protect information held in, or accessible from, the computer or electronic device.".

12 Announcement before entry

In section 170(1) of the Associations Incorporation Reform Act 2012, for "168(3)" substitute "168(2)".



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13 Seizure of things not mentioned in the warrant

In section 172 of the Associations Incorporation Reform Act 2012, for "168(3)" substitute "168(2)".

14 Protection against self-incrimination

After section 177(2) of the Associations Incorporation Reform Act 2012 insert—

"(3) Despite subsection (1), it is not a reasonable excuse for a natural person to refuse or fail to provide information or assistance that a person is required under section 169A to provide, if the provision of the information or assistance would tend to incriminate the person.".

15 Inspection of register and obtaining copies of documents

(1) In section 196(1)(b) of the Associations Incorporation Reform Act 2012, for "association." substitute "association; or".


"(c) if a document listed in paragraph (b) is kept in an electronic system—a physical copy of information that is produced from the electronic system that shows the relevant data or electronic transaction relating to the prescribed document or prescribed class of documents.".

(3) In section 196(2)(b) of the Associations Incorporation Reform Act 2012, for "(1)(b)." substitute "(1)(b); or".



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"(c) if a document listed in subsection (1)(b) is kept in an electronic system—a physical copy of information that is produced from the electronic system that shows the relevant data or electronic transaction relating to the prescribed document or prescribed class of documents.".



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Part 3—Amendment of other Acts

Division 1—Conveyancers Act 200616 Requirement to assist inspector during entry

Section 172(2) of the Conveyancers Act 2006 is repealed.


After section 172 of the Conveyancers Act 2006 insert—

"172A Refusal or failure to comply with requirement

A person must not, without reasonable excuse, refuse or fail to comply with a requirement of an inspector or the Director under this Part.

Penalty: 60 penalty units.".

Division 2—Motor Car Traders Act 198618 Cancellation of security interest by motor car trader

After section 48(2) of the Motor Car Traders Act 1986 insert—

"(3) Subsection (1) does not apply if a motor car trader—

(a) has been engaged by the Sheriff to sell, exchange, or otherwise dispose of a motor car on behalf of the Sheriff; and

(b) sells, exchanges or otherwise disposes of that motor car subject to a security interest that is registered in favour of the Sheriff on the Personal Property Securities Register established under Chapter 5 of the Personal Property



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Securities Act 2009 of the Commonwealth.".

Division 3—Sale of Land Act 196219 Definitions

In section 30(1) of the Sale of Land Act 1962 insert the following definition—

"estate agent has the same meaning as in the Estate Agents Act 1980;".

20 Power of purchaser to terminate a contract for sale of land

For section 31(3) of the Sale of Land Act 1962 substitute—

"(3) A notice under subsection (2) must, within 3 clear business days after the purchaser has signed the contract—

(a) be given to one of the following persons—

(i) the vendor;

(ii) an agent of the vendor;

(iii) an estate agent engaged or appointed by the vendor to sell the land; or

(b) be left at one of the following addresses—

(i) the address for service of the vendor specified in the contract;

(ii) the address of the vendor's agent;

(iii) the address of the estate agent engaged or appointed by the vendor to sell the land.".



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After section 31 of the Sale of Land Act 1962 insert—

"31A Validation of notice given to estate agent

(1) If, on or before the commencement of section 20 of the Consumer Acts Amendment Act 2017, a notice for the termination of a contract for the sale of land was given to an estate agent in accordance with section 31(3) as amended by section 20 of the Consumer Acts Amendment Act 2017, that notice was, and is always taken to have been, validly given as if section 31(3) as so amended had been in operation when the notice was given.

(2) Subsection (1) does not affect the rights of the parties in—

(a) the proceeding known as Tan v Russell (No. 93 of 2016) in the Supreme Court of Victoria; or

(b) any other proceeding commenced on or before the commencement of section 20 of the Consumer Acts Amendment Act 2017 which concerns the validity of a notice given to an estate agent under section 31(3) for the termination of a contract for the sale of land.".



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Division 4—Second-Hand Dealers and Pawnbrokers Act 1989


After section 29 of the Second-Hand Dealers and Pawnbrokers Act 1989 insert—

"29A Registrar may waive fees

The Registrar may, in a particular case or class of cases—

(a) waive or reduce fees that would otherwise be payable under this Act; or

(b) refund, in whole or in part, fees paid under this Act.".

Division 5—Veterans Act 200523 What is a patriotic fund?

In section 23(2) of the Veterans Act 2005—

(a) for paragraph (d) substitute—

"(d) for the relief, assistance or support of officers and members (including officers whose appointments have been terminated and members who have been discharged) of—

(i) those forces; or

(ii) any naval, military or air forces of Her Majesty's allies; or

(iii) any force or service of men or women (including nursing services) auxiliary to any of the forces referred to in subparagraphs (i) and (ii) who are sick, wounded, disabled, unemployed or in necessitous circumstances;";



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(b) in paragraph (e) omit "who have died as a result of any service or duty".

24 Amendment to trust deed of patriotic fund

In section 33A(2) of the Veterans Act 2005, for ", and does not alter, the objects and purposes of the patriotic fund" substitute "the purposes of a patriotic fund set out in section 23".



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Part 4—Repeal of amending Act25 Repeal of amending Act

This Act is repealed on 1 November 2018. Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Endnotes


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http://www.legislation.vic.gov.au/

† Minister's second reading speech—

Legislative Assembly: 23 November 2016

Legislative Council: 23 February 2017

The long title for the Bill for this Act was "A Bill for an Act to amend the Associations Incorporation Reform Act 2012, the Conveyancers Act 2006, the Motor Car Traders Act 1986, the Sale of Land Act 1962, the Second-Hand Dealers and Pawnbrokers Act 1989 and the Veterans Act 2005 and for other purposes."

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