Business Licensing Legislation (Amendment) Act 2003

i Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 PART 2—AMENDMENT OF ASSOCIATIONS INCORPORATION ACT 1981 3 3. Definitions 3 4. Application for incorporation 3 5. Application to bring companies etc. under the Act 4 6. Change of address 4 7. Common seal 4 8. New section 24 substituted 4 24. First public officer 4 9. Special resolution 5 10. Annual general meeting 5 11. Auditors 6 12. Amalgamation of incorporated associations 7 13. Modification of Corporations legislation applying to voluntary winding up 7 14. Reinstatement of cancelled association 8 15. Register 8 16. New sections 39B and 39C inserted 10 39B. Restriction of personal information 10 39C. Rights of review 11 17. Method of lodgment 11 18. New section 45D inserted 13 45D. Waiver or refund of fees 13 19. Continuing offences 13 20. New section 55 inserted 13 55. Transitional provisions 13 21. Schedule 14 -- 1 of 67 -- Section Page ii PART 3—AMENDMENT OF BUSINESS NAMES ACT 1962 15 22. Definitions 15 23. Register of business names 15 24. Registration of business name 17 25. Resident agents 18 26. Renewal of registration 18 27. Notification of changes in particulars etc. 18 28. Duty to furnish information 20 29. Disability of persons in default 20 30. New section 15 substituted 20 15. Signing of documents 20 31. Signatures 21 32. Approval of special lodging arrangements 21 33. New section 15AC inserted 21 15AC. Waiver or refund of fees 21 34. Verification of particulars 22 35. False or misleading statements 22 36. Retention of records 22 37. Cancellation of registration 22 38. Registrar may correct errors in register etc. 23 39. New sections 22, 22A and 22B substituted 23 22. Inspection of the register 23 22A. Restriction of personal information 23 22B. Rights of review 24 40. Authority of Director to destroy documents 25 41. Service of notices on resident agents 25 42. Regulations 25 43. New section 34 inserted 25 34. Further transitionals 25 PART 4—AMENDMENT OF ESTATE AGENTS ACT 1980 27 44. Definitions 27 45. Application for estate agent's licence 27 46. Certain documents to be lodged by particular corporations 28 47. New section 19A inserted 30 19A. Consent to disclosure of information 30 48. New section 20A inserted 31 20A. Provision of information for the purposes of this Act 31 49. Requirements for regaining licence etc. in special circumstances 32 50. Requirements for allowing limited right to hold licence etc. 33 51. Requirements for being allowed limited right to hold licence etc. 34 52. New section 33 substituted 35 33. The Register 35 -- 2 of 67 -- Section Page iii 53. Franchising agreement 39 54. Annual audit of trust accounts 39 55. Consequential amendment 39 56. Claims against the Fund 39 57. New section 92 substituted 39 92. Certificate as evidence 39 58. New sections 98 and 98A inserted 40 98. Retention of documents 40 98A. Offence to destroy documents required by the Act 40 59. Regulations 41 PART 5—AMENDMENT OF MOTOR CAR TRADERS ACT 1986 42 60. Application for licence 42 61. New section 11A inserted 42 11A. Consent to disclosure of information 42 62. New section 12A inserted 43 12A. Provision of information for the purposes of this Act 43 63. Grant or refusal of licence 44 64. Register 44 65. Automatic cancellation of licence on bankruptcy etc. 47 66. Person involved in Guarantee Fund claim may regain licence etc. in special circumstances 47 67. Limited right to hold licence etc. 48 68. Permission to continue to hold licence despite criminal act of partner or director 49 69. Prohibited employees 50 70. Determination of claims 50 71. New section 83A substituted 50 83A. Retention of documents 50 72. Offence to destroy documents required by the Act 51 73. False or misleading statements 51 74. Certificates 52 87. Certificates 52 75. Regulations 52 PART 6—AMENDMENT OF TRAVEL AGENTS ACT 1986 53 76. Application for licence 53 77. New section 8A inserted 53 8A. Consent to disclosure of information 53 78. Register 54 79. Annual fee and annual statement 56 80. New section 41 inserted 57 41. Retention of documents 57 81. False or misleading statements 58 -- 3 of 67 -- Section Page iv 82. New section 42D inserted 58 42D. Offence to destroy records required by the Act 58 83. Regulations 59 PART 7—AMENDMENT OF BUSINESS LICENSING AUTHORITY ACT 1998 60 84. Definition 60 85. Delegation by Authority 60 86. New sections 17A and 17B inserted 60 17A. Restriction of personal information 60 17B. Rights of review 61 ═══════════════ ENDNOTES 63 -- 4 of 67 -- 1 Business Licensing Legislation (Amendment) Act 2003 † [Assented to 6 May 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to amend 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— Victoria No. 8 of 2003 -- 5 of 67 -- Part 1—Preliminary Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 2 (i) to facilitate electronic transactions under those Acts; and (ii) to make further provision for registers under those Acts; (b) to amend the delegation powers in the Business Licensing Authority Act 1998. 2. Commencement (1) Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 June 2004 it comes into operation on that day. __________________ s. 2 -- 6 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 3 PART 2—AMENDMENT OF ASSOCIATIONS INCORPORATION ACT 1981 3. Definitions In section 3(1) of the Associations Incorporation Act 1981— (a) insert the following definitions— ' "CPA Australia" means CPA Australia A.C.N. 008 392 452; "personal information" has the same meaning as in section 3 of the Information Privacy Act 2000;'; (b) in the definition of "reproduction" after "negative of the document" insert "or an electronic copy of the document". 4. Application for incorporation In section 5 of the Associations Incorporation Act 1981— (a) paragraph (a)(ii) is repealed; (b) in paragraph (b), after "proposed" insert "incorporated"; (c) for paragraph (e) substitute— "(e) shall include a statement from the applicant certifying that— (i) the applicant has the authority under section 4 to make the application on behalf of the association; and (ii) the particulars contained in the application are true and correct; and s. 3 See: Act No. 9713/1981. Reprint No. 5 as at 1 September 1999 and amending Act Nos 35/2000, 57/2000, 44/2001 and 9/2002. LawToday: www.dms. dpc.vic. gov.au -- 7 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 4 (iii) copies of any documents accompanying the application are true copies of those documents; and". 5. Application to bring companies etc. under the Act Section 10(3)(a)(ii) of the Associations Incorporation Act 1981 is repealed. 6. Change of address For section 13A(2) of the Associations Incorporation Act 1981 substitute— "(2) An incorporated association that changes its registered address must notify the Registrar in the form approved by the Registrar no later than 14 days after that change.". 7. Common seal In the Associations Incorporation Act 1981— (a) in section 12A(1)(a) after "seal" insert "(if any)"; (b) in section 14(2) for "shall" substitute "may". 8. New section 24 substituted For section 24 of the Associations Incorporation Act 1981 substitute— "24. First public officer (1) The first public officer of an incorporated association is— (a) the person upon whose application the association was incorporated; or (b) if the application provides for a different person, that person. s. 5 -- 8 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 5 (2) A person cannot be the first public officer of an incorporated association unless the person— (a) consents to being named as the first public officer; and (b) has attained the age of 18 years; and (c) is resident in the State.". 9. Special resolution After section 29(2) of the Associations Incorporation Act 1981 insert— "(2A) If, in the opinion of the Registrar it is not practicable for a resolution to be passed in the manner specified in sub-section (2)(a), the resolution may be passed in a manner specified by the Registrar. (2B) An incorporated association may apply to the Registrar for approval to pass a special resolution otherwise than in the manner specified in sub-section (2)(a).". 10. Annual general meeting (1) After section 30(3A) of the Associations Incorporation Act 1981 insert— "(3B) At, or as soon as practicable after, the conclusion of the annual general meeting of an incorporated association a committee member must certify, in the form approved by the Registrar, that— (a) the committee member attended the annual general meeting; and (b) the statement referred to in sub- section (3) was submitted to the members of the incorporated association at the annual general meeting.". s. 9 -- 9 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 6 (2) In section 30(4)(aa) of the Associations Incorporation Act 1981, after "30B" insert "and a copy of the auditor's report referred to in section 30B(1A)". (3) For section 30(4)(b) of the Associations Incorporation Act 1981 substitute— "(b) if the meeting has been held, containing a statement from the public officer that the certificate referred to in sub-section (3B) has been completed and signed by a committee member who attended the annual general meeting and that the certificate is being kept by the incorporated association; and". (4) After section 30(4) of the Associations Incorporation Act 1981 insert— "(4A) The incorporated association must keep the statement referred to in sub-section (3) and the certificate referred to in sub-section (3B) for at least 7 years after the date of submission or signature (as required). Penalty: 20 penalty units.". 11. Auditors (1) In section 30B(1)(c) of the Associations Incorporation Act 1981, for "the Australian Society of Certified Practising Accountants" substitute "CPA Australia". (2) After section 30B(1) of the Associations Incorporation Act 1981 insert— "(1A) A person who audits the accounts of a prescribed association must provide the association with a written report of the audit.". s. 11 -- 10 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 7 (3) After section 30B(2) of the Associations Incorporation Act 1981 insert— "(2A) The Registrar may grant approval to a suitably qualified person or class of suitably qualified persons (other than a person referred to in sub-section (2)) to audit the accounts of a prescribed association or a class of prescribed associations.". 12. Amalgamation of incorporated associations Section 31(3)(d)(ii) of the Associations Incorporation Act 1981 is repealed. 13. Modification of Corporations legislation applying to voluntary winding up After section 36D(1)(b) of the Associations Incorporation Act 1981 insert— '(ba) in the case of a winding up under Division 1, the provisions of Part 5.6 of the Corporations Act apply as if, after section 532(1)(b), there were inserted— "; or (c) in the case of an incorporated association with gross assets of $10 000 or less or any higher amount that is prescribed, a person appointed by the incorporated association who is— (i) a member of CPA Australia; or (ii) a member of the Institute of Chartered Accountants in Australia; or (iii) a person, or a member of a class of persons, approved by the Registrar whom the Registrar is satisfied has the requisite skills and experience to act as a s. 12 -- 11 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 8 liquidator of incorporated associations generally or for a specified incorporated association or class of incorporated associations."; and'. 14. Reinstatement of cancelled association For section 37(1) of the Associations Incorporation Act 1981 substitute— "(1) If the Registrar is satisfied that the incorporation of an association should not have been cancelled, the Registrar may reinstate the association as an incorporated association.". 15. Register For section 39(1) of the Associations Incorporation Act 1981 substitute— "(1) The Registrar must keep a register of incorporated associations open for public inspection in the form determined by the Registrar. (1A) The purposes of keeping the register are— (a) to enable members of the public to have access to information about the purposes, rules, contact details and public officers of incorporated associations in Victoria; (b) to enable members of the public to have access to the annual returns of incorporated associations in Victoria. (1B) The register must include details of the following in relation to each incorporated association— (a) incorporated association number issued by the Registrar; s. 14 -- 12 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 9 (b) incorporated association name; (c) previous names of the incorporated association and the dates they were current; (d) current registered address and date registered; (e) previous registered address and date registered; (f) current postal address; (g) current status of incorporation; (h) date incorporated or cancelled; (i) name and date of appointment of current public officer; (j) name and date of appointment of previous public officer; (k) date on which the financial year of the incorporated association ends; (l) copy of each annual return lodged and date of lodgment; (m) date of last annual general meeting; (n) whether or not the incorporated association is a prescribed association; (o) copy of current statement of purposes and date approved; (p) copy of current rules and date approved; (q) any business name that has been registered; (r) Australian Business Number (if any) issued under the A New Tax System (Australian Business Number) Act s. 15 -- 13 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 10 1999 of the Commonwealth issued to the incorporated association; (s) any information prescribed by the regulations as forming part of the register.". 16. New sections 39B and 39C inserted After section 39A of the Associations Incorporation Act 1981 insert— "39B. Restriction of personal information (1) A person whose personal information is held on the register of incorporated associations may apply to the Registrar to restrict public access to some or all of that personal information. (2) If the Registrar is satisfied that exceptional circumstances exist justifying the restriction of public access to that person's personal information, the Registrar may restrict public access to some or all of that personal information. (3) The restriction of public access under sub- section (2) may be for the period and on the conditions that the Registrar thinks fit. (4) If the Registrar is satisfied that it is in the public interest that restricted personal information be released to a person who applies for it, the Registrar may release some or all of the information to the person on any condition that the Registrar thinks fit. (5) If the Registrar decides to release restricted personal information, the Registrar must give written notice of the decision to the person whose restricted personal information is to be released. s. 16 -- 14 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 11 (6) The Registrar must not release restricted personal information until 28 days after giving written notice of the decision to release the information to the person whose restricted personal information is to be released. 39C. Rights of review (1) A person whose interests are affected by a decision of the Registrar under section 39B may apply to the Tribunal for review of that decision. (2) An application for review under sub-section (1) must be lodged with the Tribunal within 28 days after— (a) notice of the decision was given; or (b) if, under section 45 of 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.". 17. Method of lodgment For section 45A(2) and (3) of the Associations Incorporation Act 1981 substitute— "(2) If the Registrar receives from a person a copy of a document under sub-section (1), the Registrar may require that person to produce and lodge the original of the document. s. 17 -- 15 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 12 (2A) The Registrar may require a person to produce and lodge the original of any document an incorporated association is required to keep under this Act. (2B) Sub-sections (2) and (2A) do not apply to any document— (a) created by a person using software approved by the Director of Consumer Affairs Victoria and lodged on an Internet site operated by the State; and (b) forwarded by electronic transmission to the Registrar. (2C) A person must comply with a requirement of the Registrar under sub-section (2) or (2A) within 28 days after the person received the request from the Registrar or such longer time as determined by the Registrar. Penalty: 5 penalty units. (3) If the person does not comply with a requirement of the Registrar within the period specified in sub-section (2C), the person is to be taken not to have lodged the document. (4) An incorporated association must keep the original of any document lodged with the Registrar, whether lodged in electronic or other form, for a period of 7 years after the date of lodging. Penalty: 20 penalty units.". s. 17 -- 16 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 13 18. New section 45D inserted After section 45C of the Associations Incorporation Act 1981 insert— "45D. Waiver or refund of 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.". 19. Continuing offences In section 50A of the Associations Incorporation Act 1981— (a) in sub-section (2)(c), after "convicted" insert "or found guilty"; (b) in sub-section (2)(d), after "conviction" insert "or finding of guilt"; (c) in sub-section (3)(a), after "convicted" insert "or found guilty"; (d) in sub-section (4), for "fine of" substitute "fine not exceeding". 20. New section 55 inserted After section 54 of the Associations Incorporation Act 1981 insert— "55. Transitional provisions (1) If, immediately before the commencement of section 3 of the Business Licensing Legislation (Amendment) Act 2003, an application has been made to the Registrar for incorporation of an association but the Registrar had not decided to grant, or refuse to grant, a certificate of incorporation to the s. 18 -- 17 of 67 -- Part 2—Amendment of Associations Incorporation Act 1981 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 14 association, the Registrar must make his or her decision in accordance with this Act as in force immediately before the commencement of that section. (2) Section 37(1) as amended by section 14 of the Business Licensing Legislation (Amendment) Act 2003 applies to an incorporated association that has been deregistered before, on or after the commencement of section 14 of that Act.". 21. Schedule In item 12 of the Schedule to the Associations Incorporation Act 1981, after "seal" insert "(if any)". __________________ s. 21 -- 18 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 15 PART 3—AMENDMENT OF BUSINESS NAMES ACT 1962 22. Definitions In section 4(1) of the Business Names Act 1962— (a) the definitions of "machine-copy" and "transparency" are repealed; (b) insert the following definition— ' "personal information" has the same meaning as in section 3 of the Information Privacy Act 2000;'. 23. Register of business names For section 6(1) and (2) of the Business Names Act 1962 substitute— "(1) The Director must keep a register of business names open for public inspection in the form determined by the Director. (2) The purpose of keeping the register is to enable members of the public to have access to the contact details of the business and the persons responsible for the business operating under the business name. (2A) The register must include details of the following in relation to each registered business name— (a) business number issued by the Director; (b) business name; (c) current status of registration (registered or registration cancelled); (d) date of registration or cancellation of registration; (e) date business commenced; s. 22 See: Act No. 6853/1962. Reprint No. 5 as at 11 March 1999 and amending Act Nos 17/1999, 35/2000 and 44/2001. LawToday: www.dms. dpc.vic. gov.au -- 19 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 16 (f) renewal of registration date; (g) nature of business; (h) current registered address of the business and date address registered; (i) previous registered address and date of cessation as registered address; (j) current postal address; (k) each current address in the State where the business is carried on and date on which business commenced at that address; (l) previous address in the State where the business was carried on and date on which business ceased at that address; (m) current proprietor's name and date of commencement; (n) current proprietor's residential address; (o) current proprietor's previous name and date of change of name; (p) former proprietor's name and date of cessation as proprietor; (q) former proprietor's last recorded residential address; (r) former proprietor's previous name and date of change of name; (s) Australian Business Number (if any) issued under the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth; (t) Internet site address maintained for the purposes of the business in relation to which the business name is registered (if any); s. 23 -- 20 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 17 (u) any information prescribed by the regulations as forming part of the register. (2B) The Director may request from a person who carries on or seeks to carry on a business under a registered business name any information or authorisation that the Director determines is necessary for the administration of this Act. (2C) If, under sub-section (2B), a person who carries on or seeks to carry on a business under a registered business name is requested by the Director to provide additional information or authorisation, that person must provide the information or authorisation to the Director within 28 days after receiving the request. (2D) Any additional information obtained under sub-section (2C) does not form part of the register.". 24. Registration of business name In section 7 of the Business Names Act 1962— (a) in sub-section (1), for "An application for the registration of a business name shall be made by lodging with the Director a statement in the form approved by the Director which shall be signed by the person or persons carrying on or proposing to carry on business in the State under that name" substitute "A person may apply for the registration of a business name by lodging with the Director an application in the form approved by the Director which is signed in accordance with section 15 and"; (b) in sub-section (2), for "statement" substitute "application"; s. 24 -- 21 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 18 (c) in sub-section (3), for "a statement" substitute "an application"; (d) in sub-section (6), for "statement" (where twice occurring) substitute "application". 25. Resident agents Section 8 of the Business Names Act 1962 is repealed. 26. Renewal of registration In section 11(1) of the Business Names Act 1962 for "a statement" substitute "an application". 27. Notification of changes in particulars etc. (1) For section 12(1), (1A) and (1C) of the Business Names Act 1962 substitute— "(1) A notice must be lodged with the Director if a business name is registered under this Act and a change occurs— (a) that renders the description of the nature of the business lodged with the Director insufficient to disclose the true nature of the business; or (b) in the registered business address or the address of the place or places at which business is carried on under that name; or (c) in any other address nominated as a postal address or electronic mailing address. (1A) The notice referred to in sub-section (1) must— (a) be in the form approved by the Director and contain the date and particulars of the change; and s. 25 -- 22 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 19 (b) be signed in accordance with section 15; and (c) be lodged with the Director within one month after the change occurred or, if a later time is allowed by the Director, within that later time; and (d) in the case of a change in a nominated address, specify the new address, the date of the change and any other prescribed particulars.". (2) In section 12 of the Business Names Act 1962— (a) in sub-section (2)— (i) for "statement" substitute "notice"; (ii) for "by one of the persons in relation to whom the name is registered" substitute "in accordance with section 15"; (b) in sub-section (3)— (i) for "statement" substitute "notice"; (ii) for "by each person who was carrying on business under that name immediately before the cessation or in the case of a deceased person by his personal representative" substitute "in accordance with section 15 or, in the case of a deceased person, by his or her personal representative"; (c) in sub-section (4)— (i) for "statement" (where twice occurring) substitute "notice"; (ii) for "by each person carrying on business under that name immediately after that person commenced carrying on business under that name" s. 27 -- 23 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 20 substitute "in accordance with section 15"; (d) sub-sections (5), (6) and (7) are repealed; (e) in sub-sections (8), (9), (10) and (11) for "statement" (wherever occurring) substitute "notice". 28. Duty to furnish information In section 13(1)(b) of the Business Names Act 1962, for "statement" substitute "document". 29. Disability of persons in default In section 14(1) of the Business Names Act 1962, for "statement" (where three times occurring) substitute "notice". 30. New section 15 substituted For section 15 of the Business Names Act 1962 substitute— "15. Signing of documents (1) A document required to be lodged under this Act may be signed by— (a) the person carrying on, or seeking to carry on, the business under the business name; or (b) if more than one person carries on, or seeks to carry on that business, any one of those persons who is authorised in writing to sign on behalf of the other persons; or (c) a person authorised in writing to sign on behalf of the person or persons carrying on, or seeking to carry on, the business under the business name; or s. 28 -- 24 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 21 (d) in the case of a corporation, by a director or secretary authorised to sign on behalf of the corporation. (2) If the Director is satisfied that it is not practicable to obtain the signature of a person required by this Act to sign a document the Director may accept the document for registration without it being signed by that person. (3) 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 this Act evidence relating to that person's interest in a business.". 31. Signatures In section 15AA of the Business Names Act 1962 omit "statement or" (where three times occurring). 32. Approval of special lodging arrangements (1) In section 15AB(1), (2) and (5) of the Business Names Act 1962, for "statements" (wherever occurring) substitute "documents". (2) In section 15AB(5), (7) and (8) of the Business Names Act 1962, for "statement" (wherever occurring) substitute "document". 33. New section 15AC inserted After section 15AB of the Business Names Act 1962 insert— "15AC. Waiver or refund of fees The Director may, in a particular case or class of cases— (a) waive or reduce fees that would otherwise be payable under this Act; or s. 31 -- 25 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 22 (b) refund, in whole or in part, fees paid under this Act.". 34. Verification of particulars In section 16 of the Business Names Act 1962 for "statement" (where three times occurring) substitute "document". 35. False or misleading statements (1) In section 17(1) of the Business Names Act 1962— (a) for "a statement required" substitute "a document required"; (b) for "the statement required" substitute "the document required". (2) In section 17(2) of the Business Names Act 1962, for "statement" (where first, thirdly, fifthly and sixthly occurring) substitute "document". 36. Retention of records In section 17A of the Business Names Act 1962, for "statement" (where four times occurring) substitute "document". 37. Cancellation of registration In section 19(1) of the Business Names Act 1962— (a) in paragraph (a)— (i) for "statement" (where first, secondly and fourthly occurring) substitute "notice"; (ii) for "statement" (where thirdly occurring) substitute "document"; (b) in paragraph (e) for "statement" (where twice occurring) substitute "notice". s. 34 -- 26 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 23 38. Registrar may correct errors in register etc. In section 21(4) of the Business Names Act 1962 for "statement" (where three times occurring) substitute "document". 39. New sections 22, 22A and 22B substituted For section 22 of the Business Names Act 1962, substitute— "22. Inspection of the register (1) A person may, on payment of the prescribed fee (if any), inspect or obtain a copy of or an extract from any information contained in the register. (2) A person may, on payment of the prescribed fee (if any), request a copy of or an extract from any information contained in the register, certified by the Director. (3) This section does not entitle a person to inspect, obtain a copy of or an extract from, any document lodged with the Director or any information not forming part of the register. (4) In any proceedings, a copy of or an extract from any information contained in the register, certified to be a true copy or extract by the Director, is admissible in evidence. 22A. Restriction of personal information (1) A person whose personal information is held on the register may apply to the Director to restrict public access to some or all of that personal information. (2) If the Director is satisfied that exceptional circumstances exist justifying the restriction of public access to that person's personal information, the Director may restrict public s. 38 -- 27 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 24 access to some or all of that personal information. (3) The restriction of public access under sub- section (2) may be for the period and on the conditions that the Director thinks fit. (4) If the Director is satisfied that it is in the public interest that restricted personal information be released to a person who applies for it, the Director may release some or all of the information to the person on any condition that the Director thinks fit. (5) If the Director decides to release restricted personal information, the Director must give written notice of the decision to the person whose restricted personal information is to be released. (6) The Director must not release restricted personal information until 28 days after giving written notice of the decision to release the information to the person whose restricted personal information is to be released. 22B. Rights of review (1) A person whose interests are affected by a decision of the Director under section 22A may apply to the Tribunal for review of the decision. (2) An application for review under sub-section (1) must be lodged with the Tribunal within 28 days after— (a) notice of the decision was given; or (b) if, under section 45 of the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, s. 39 -- 28 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 25 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.". 40. Authority of Director to destroy documents In section 25 of the Business Names Act 1962, for "notice" (where twice occurring) substitute "document". 41. Service of notices on resident agents Section 31(1)(b) of the Business Names Act 1962 is repealed. 42. Regulations In section 32(1) of the Business Names Act 1962— (a) in paragraph (a)— (i) omit "required to be lodged"; (ii) for "such document" substitute "information contained in the register"; (b) paragraph (b) is repealed; (c) in paragraph (da) for "statements in forms prescribed" substitute "any information supplied in forms"; (d) in paragraph (dd) for "statements" substitute "documents". 43. New section 34 inserted After section 33 of the Business Names Act 1962 insert— "34. Further transitionals (1) If, immediately before the commencement of section 25 of the Business Licensing Legislation (Amendment) Act 2003, a s. 40 -- 29 of 67 -- Part 3—Amendment of Business Names Act 1962 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 26 person was the resident agent of a person or persons in relation to whom a business name is registered and that resident agent ceases to be the resident agent or changes his or her name or address, the person or persons in relation to whom a business name is registered must lodge a notice in accordance with sub-section (2). (2) The notice referred to in sub-section (1) must be— (a) in the form approved by the Director and contain particulars of the date of the cessation or change; and (b) signed by— (i) the person or one of the persons in whose name the business name is registered at the time of the cessation or change of name or address; or (ii) the person who has ceased to be the resident agent or changed his or her name or address or personal representative; and (c) lodged with the Director within one month of the change occurring or, if a later time is allowed by the Director, within that later time.". __________________ s. 43 -- 30 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 27 PART 4—AMENDMENT OF ESTATE AGENTS ACT 1980 44. Definitions In section 4(1) of the Estate Agents Act 1980— (a) insert the following definition— ' "Fund" means the Estate Agents' Guarantee Fund established under this Act;'; (b) in the definition of "registered office", for "under section 34" substitute "in the register". 45. Application for estate agent's licence For section 17(2)(c) of the Estate Agents Act 1980 substitute— "(c) be accompanied by— (i) the name, occupation and contact details of 3 character references (at least one of whom is a former or current employer of the applicant); and (ii) if the applicant has applied to be granted a licence in accordance with section 14(1)(a), full particulars of the applicant's employment as an agent's representative during the relevant period; and (iii) a statement by the applicant certifying that the particulars contained in the application are true and correct.". s. 44 See: Act No. 9428/1980. Reprint No. 7 as at 13 January 2000 and amending Act Nos 35/2000, 74/2000, 11/2001, 44/2001, 72/2001, 84/2001 and 9/2002. LawToday: www.dms. dpc.vic. gov.au -- 31 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 28 46. Certain documents to be lodged by particular corporations (1) For section 19(1)(a) and (b) of the Estate Agents Act 1980 substitute— "(a) in the case of a corporation with one or more directors who hold an estate agent's licence, a statement made by one of those directors— (i) certifying that he or she has the authority to make the application on behalf of the corporation; and (ii) declaring the name and address of each director and the secretary of the corporation and of the officer in effective control of its proposed estate agency business; and (iii) certifying that the particulars contained in the application are true and correct; (b) in the case of a corporation without a director who holds a current estate agent's licence, but where one or more of the directors have lodged an application for an estate agent's licence, a statement made by one of the directors who has lodged such an application— (i) certifying that he or she has the authority to make the application on behalf of the corporation; and (ii) declaring the name and address of each director and the secretary of the corporation and of the officer in effective control of its proposed estate agency business; and (iii) certifying that the particulars contained in the application are true and correct; s. 46 -- 32 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 29 (c) in the case of a private corporation with a director who holds an estate agent's licence, a statement made by that director— (i) certifying that he or she has the authority to make the application on behalf of the corporation; and (ii) declaring the name and address of each member of the corporation; and (iii) declaring— (A) the number and type of shares held by each member of the corporation; and (B) whether those shares confer voting rights; and (C) whether the member holds shares on behalf of another person and, if so, the name and address of that person; and (iv) certifying that the particulars contained in the application are true and correct; (d) in the case of a private corporation without a director who holds a current estate agent's licence, but where one or more of the directors have lodged an application for an estate agent's licence, a statement made by one of those directors— (i) certifying that he or she has the authority to make the application on behalf of the corporation; and (ii) declaring the name and address of each member of the corporation; and s. 46 -- 33 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 30 (iii) declaring— (A) the number and type of shares held by each member of the corporation; and (B) whether those shares confer voting rights; and (C) whether the member holds shares on behalf of another person and, if so, the name and address of that person; and (iv) certifying that the particulars contained in the application are true and correct.". (2) Section 19(2) of the Estate Agents Act 1980 is repealed. 47. New section 19A inserted After section 19 of the Estate Agents Act 1980 insert— "19A. Consent to disclosure of information (1) The Authority may require a licensee or an applicant for an estate agent's licence to provide the Authority, at the time of submitting the application or at any time during the currency of the licence, with any consent required by another person or body to enable the Authority to check or confirm information relevant to the licence or application. (2) Without limiting sub-section (1), consent includes— (a) the consent of the licensee or the applicant; and (b) the consent of another person other than the licensee or the applicant; and s. 47 -- 34 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 31 (c) if the licensee or applicant is a corporation, the consent of a director of the corporation and, in the case of a private corporation, the consent of a member of the private corporation. (3) The Authority may refuse to consider an application for an estate agent's licence under section 17 if the applicant does not provide to the Authority the required consent within 14 days after the requirement is made.". 48. New section 20A inserted After section 20 of the Estate Agents Act 1980 insert— "20A. Provision of information for the purposes of this Act For the purposes of determining compliance with this Act or for carrying out the functions of the Authority or the Director under this Act— (a) the Authority may disclose to the Director any information collected in the course of carrying out the Authority's functions under this Act; and (b) the Director may disclose to the Authority any information collected in the course of carrying out the Director's functions under this Act; and (c) the Director must disclose to the Authority the details of any successful claim made on the Fund in relation to an estate agent or an agent's representative.". s. 48 -- 35 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 32 49. Requirements for regaining licence etc. in special circumstances After section 31A(2) of the Estate Agents Act 1980 insert— "(2A) 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 (if any). (2B) 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. (2C) 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.". s. 49 -- 36 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 33 50. Requirements for allowing limited right to hold licence etc. After section 31B(2) of the Estate Agents Act 1980 insert— "(2A) 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 (if any). (2B) 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 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. (2C) 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.". s. 50 -- 37 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 34 51. Requirements for being allowed limited right to hold licence etc. After section 31C(2) of the Estate Agents Act 1980 insert— "(2A) 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 (if any). (2B) 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 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. (2C) The Authority may refuse to consider the application 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.". s. 51 -- 38 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 35 52. New section 33 substituted For sections 33, 34 and 34A of the Estate Agents Act 1980 substitute— "33. The Register (1) The Registrar must keep a register of estate agents and agent's representatives open for public inspection in the form determined by the Registrar. (2) The purposes of keeping the register are— (a) to enable members of the public to have access to information about— (i) licensed estate agents and agent's representatives; (ii) other people involved in estate agency business; and (b) to record the names of all persons declared ineligible to hold a licence or to be an agent's representative. (3) The register must contain details of the following in relation to each licensed estate agent or estate agency business— (a) licence number issued by the Authority; (b) name and registered office; (c) date of grant, surrender, cancellation or suspension of the licence; (d) licence conditions; (e) any Tribunal or court orders concerning the estate agent or agent's representative that affects the licence or status of the agent's representative of which the Registrar has notice; s. 52 -- 39 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 36 (f) any claims allowed by the Fund (or any like fund established under a previous enactment) in relation to a licensed estate agent or agent's representative of which the Registrar has notice; (g) address and telephone number of the principal office of the licensed estate agent; (h) if the licensed estate agent has branch offices— (i) the address of each branch office; (ii) the name of each branch manager; (iii) the date of appointment of each branch manager; (iv) the date of cessation of appointment of each branch manager; (i) if the licensed estate agent is operating under a franchise agreement— (i) the name and address of the franchisor; (ii) the date of commencement of the franchise agreement; (iii) the date of cessation of the franchise agreement; (j) if the licensed estate agent is a corporation— (i) the name of each director; (ii) the date of appointment of each director; (iii) the date of cessation of appointment of each director; s. 52 -- 40 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 37 (iv) the name of the officer in effective control; (v) the date of appointment of the officer in effective control; (vi) the date of cessation of appointment of the officer in effective control; (k) if the licensed estate agent is an employee of a licensed estate agent, the name and address of the employer; (l) if the licensed estate agent employs agent's representatives— (i) the name and registered address of each agent's representative employed by the licensee; (ii) the date of commencement of employment of each agent's representatives; (iii) the date of cessation of employment of each agent's representative; (m) if a licensed estate agent employs licensed estate agents— (i) the name of each licensed estate agent employee; (ii) the date of commencement of employment of each licensed estate agent employee; (iii) the date of cessation of employment of each licensed estate agent employee; (n) all business names under which the licensed estate agent conducts estate agency business; s. 52 -- 41 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 38 (o) Australian Business Number (if any) issued under the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth issued to the licensed estate agent; (p) Internet site address maintained by the licensee for the purposes of an estate agency business (if any). (4) The register must also contain details of— (a) all applications for licences refused by the Authority during the last two years; (b) all permission determinations under section 31A, 31B or 31C; (c) any other information prescribed by the regulations as forming part of the register. (5) A person in accordance with the regulations (if any) and on payment of the prescribed fee (if any) may— (a) inspect the register; and (b) obtain copies of, or extracts from, the register. (6) Subject to the Public Records Act 1973, the Registrar may, if in his or her opinion it is no longer necessary or desirable to retain it, remove any information from the register 12 years after the information was added to the register. (7) In the exercise and performance of his or her duties under this section the Registrar must act on any information which appears to the Registrar sufficient in each case.". s. 52 -- 42 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 39 53. Franchising agreement In section 43(2)(a) of the Estate Agents Act 1980, for "the prescribed form" substitute "a form approved by the Authority". 54. Annual audit of trust accounts In section 64 of the Estate Agents Act 1980— (a) in sub-section (3), after "report" insert "for a period of 7 years after it was delivered to the agent"; (b) at the foot of sub-section (3) insert— "Penalty: 20 penalty units."; (c) in sub-section (9), for "such form" substitute "the form approved by the Director". 55. Consequential amendment In section 71 of the Estate Agents Act 1980 the definition of "Fund" is repealed. 56. Claims against the Fund In section 81(1) of the Estate Agents Act 1980, for "in writing in the prescribed form to the Secretary supported by affidavit or statutory declaration" substitute "in the form approved by the Director and containing the prescribed particulars and accompanied by any documents required by the Director". 57. New section 92 substituted For section 92 of the Estate Agents Act 1980 substitute— "92. Certificate as evidence A certificate signed, or purporting to be signed, by the Registrar certifying as to any matter relating to the contents of the register is evidence of that matter.". s. 53 -- 43 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 40 58. New sections 98 and 98A inserted After section 97A of the Estate Agents Act 1980 insert— "98. Retention of documents (1) A person who is permitted or required under this Act to send a copy of any document or notice to the Director or Authority must retain the original document or notice for at least 7 years after the copy was sent. Penalty: 20 penalty units. (2) Sub-section (1) does not apply to any document or notice— (a) created by a person using software approved by the Director and lodged on an Internet site operated by the State; and (b) forwarded by electronic transmission to the Director or Authority. (3) A person must retain any document that is required to be kept by this Act or the regulations for at least 7 years from the date of its creation. Penalty: 20 penalty units. 98A. Offence to destroy documents required by the Act (1) A person must not destroy, conceal, mutilate or alter any document that the person is required to retain under this Act. Penalty: 100 penalty units. s. 58 -- 44 of 67 -- Part 4—Amendment of Estate Agents Act 1980 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 41 (2) It is a defence to a charge under sub-section (1) if the person charged can establish that the destruction, concealment, mutilation or alteration of the document was not done with the intention of defeating the purposes of this Act.". 59. Regulations (1) In section 99(d) of the Estate Agents Act 1980, after "accounts" insert "documents". (2) In section 99(g) of the Estate Agents Act 1980, after "searches of" insert ", copies of, or extracts from". (3) At the end of section 99 of the Estate Agents Act 1980 insert— "(2) The regulations under this Act may prescribe fees that differ according to differences in circumstances.". __________________ s. 59 -- 45 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 42 PART 5—AMENDMENT OF MOTOR CAR TRADERS ACT 1986 60. Application for licence In section 8(2) of the Motor Car Traders Act 1986— (a) in paragraph (b), for "each partner" substitute "one of the partners who has the authority of the other partners to sign on behalf of those partners"; (b) in paragraph (c), for "the director, secretary or officer of" substitute "a director of the body corporate who has the authority of the other directors to sign on behalf of". 61. New section 11A inserted After section 11 of the Motor Car Traders Act 1986 insert— "11A. Consent to disclosure of information (1) The Authority may require a licensee or an applicant for a motor car trader's licence to provide the Authority, at the time of submitting the application or at any time during the currency of the licence, with any consent required by another person or body to enable the Authority to check or confirm information relevant to the licence or application. (2) Without limiting sub-section (1), consent includes— (a) the consent of the licensee or the applicant; and s. 60 See: Act No. 104/1986. Reprint No. 4 as at 1 September 1999 and amending Act Nos 101/1998 (as amended by No. 74/2000), 35/2000, 27/2001, 44/2001 and 84/2001. LawToday: www.dms. dpc.vic. gov.au -- 46 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 43 (b) the consent of another person other than the licensee or the applicant; and (c) if the licensee or applicant is a corporation, the consent of a director of the corporation or a member of the corporation. (3) The Authority may refuse to consider an application for a licence if the applicant does not provide the Authority with the required consent within 14 days after the requirement is made.". 62. New section 12A inserted After section 12 of the Motor Car Traders Act 1986 insert— "12A. Provision of information for the purposes of this Act Despite anything to the contrary in section 18 of the Business Licensing Authority Act 1998, for the purposes of determining compliance with this Act and for carrying out the functions of the Authority or the Director under this Act— (a) the Authority may disclose to the Committee, any information collected in the course of carrying out the Authority's functions under this Act; and (b) the Director may disclose to the Authority and the Committee, any information collected in the course of carrying out the Director's functions under this Act; and s. 62 -- 47 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 44 (c) the Committee must disclose to the Authority the details of any successful claim made on the Fund in relation to a motor car trader; and (d) the Committee may disclose to the Authority and the Director, any information collected by the Committee in the course of carrying out the Committee's functions under this Act in relation to the Fund.". 63. Grant or refusal of licence In section 13 of the Motor Car Traders Act 1986, for "convicted of a serious offence" (wherever occurring) insert "convicted or been found guilty of a serious offence (whether or not a conviction was recorded)". 64. Register (1) For section 22(1) and (2) of the Motor Car Traders Act 1986 substitute— "(1) The Registrar must keep a register of licensed motor car traders open for public inspection in the form determined by the Registrar.". (2) After section 22(3) of the Motor Car Traders Act 1986 insert— "(4) The purposes of the register are— (a) to enable members of the public to have access to information about licensees; and (b) to record the name of any person, partnership or body corporate declared ineligible to be a licensee or director of, partner of or person concerned in the management of a motor car trader or any person declared ineligible to be s. 63 -- 48 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 45 employed in a customer service capacity by a motor car trader. (5) The register must include details of the following in relation to each licensed motor car trader— (a) licence number issued by the Authority; (b) name of licensee; (c) date licence granted; (d) date licence surrendered, cancelled or suspended; (e) licence conditions; (f) details of any Tribunal or court orders concerning the licensee affecting the licence and of which the Registrar has notice; (g) details of any claims allowed by the Fund (or any like fund established under a previous enactment) in relation to a licensee and of which the Registrar has notice; (h) business names under which a licensee is authorised to operate, including the date of commencement and cessation of operating under those names; (i) business addresses and telephone numbers of any premises from which a motor car trading business is conducted, including the date of commencement and cessation of business at those premises; s. 64 -- 49 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 46 (j) if the licensee is a corporation— (i) the names of the directors; (ii) the date of appointment of each director; (iii) the date of cessation of appointment of each director; (k) if the licensee is a partnership— (i) the names of the partners; (ii) the date each person became a partner; (iii) the date a partner ceased to be a partner; (l) Australian Business Number (if any) issued under the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth; (m) Internet site address maintained by the licensee for the purposes of a motor car trader's business (if any). (6) The register must also contain details of— (a) all permission determinations made under sections 29A, 29B and 29C; (b) all applications for a licence refused by the Authority during the last two years; (c) any other information prescribed by the regulations as forming part of the register. (7) Subject to the Public Records Act 1973, the Registrar may, if in his or her opinion it is no longer necessary or desirable to retain it, remove any information from the register 12 years after the information was added to the register. s. 64 -- 50 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 47 (8) In the exercise and performance of his or her duties under this section, the Registrar must act on any information which appears to the Registrar sufficient in each case.". 65. Automatic cancellation of licence on bankruptcy etc. In section 28 of the Motor Car Traders Act 1986, for "convicted of a serious offence" (where twice occurring) substitute "convicted or found guilty of a serious offence (whether or not a conviction was recorded)". 66. Person involved in Guarantee Fund claim may regain licence etc. in special circumstances (1) After section 29A(1) of the Motor Car Traders Act 1986 insert— '(1A) For the purposes of this section, "person" includes a person who was a director of a corporation, or a partner in a partnership, against which a claim was allowed in relation to a transaction that occurred while the person was a director of the corporation or a partner in the partnership.'. (2) After section 29A(2) of the Motor Car Traders Act 1986 insert— "(2A) An application under this section must be in the form approved by the Authority and contain any information and be accompanied by any documents required by the Authority. (2B) 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 that the Authority thinks fit in the manner required by the Authority; s. 65 -- 51 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 48 (c) seek advice and information on the application from any other person or body as it thinks fit. (2C) 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.". 67. Limited right to hold licence etc. (1) In section 29B(1) of the Motor Car Traders Act 1986, for "convicted of a serious offence" insert "convicted or been found guilty of a serious offence (whether or not a conviction was recorded)". (2) After section 29B(2) of the Motor Car Traders Act 1986 insert— "(2A) An application under this section must be in the form approved by the Authority and contain any information and be accompanied by any documents required by the Authority. (2B) 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 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. s. 67 -- 52 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 49 (2C) 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.". 68. Permission to continue to hold licence despite criminal act of partner or director (1) In section 29C(1) of the Motor Car Traders Act 1986, for "convicted of a serious offence" substitute "convicted or found guilty of a serious offence (whether or not a conviction was recorded)". (2) After section 29C(2) of the Motor Car Traders Act 1986, insert— "(2A) An application under this section must be in the form approved by the Authority and contain any information and be accompanied by any documents required by the Authority. (2B) 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 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. (2C) The Authority may refuse to consider the application 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.". s. 68 -- 53 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 50 69. Prohibited employees In section 35A(1)(b) of the Motor Car Traders Act 1986, for "convicted of a serious offence" substitute "convicted or been found guilty of a serious offence (whether or not a conviction was recorded)". 70. Determination of claims (1) In section 76(1) of the Motor Car Traders Act 1986, for "the prescribed form verified by a statutory declaration" substitute "a form approved by the Committee". (2) After section 76(1) of the Motor Car Traders Act 1986 insert— "(1A) The person making the claim must certify in the claim that the particulars contained in the claim are true and correct and that the person is aware that making a false or misleading statement is an offence under section 84A with a maximum penalty of 50 penalty units in the case of a natural person or, in the case of a body corporate, 100 penalty units. (1B) The Committee may specify how any information supplied to it under this Part is to be verified and, without limiting the scope of this power, may require that the information be supplied in the form of, or be verified by, a statutory declaration.". 71. New section 83A substituted For section 83A of the Motor Car Traders Act 1986 substitute— "83A. Retention of documents (1) A person who under this Act is permitted or required to send a copy of any document or notice to the Director, Authority or Committee must retain the original document s. 69 -- 54 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 51 or notice for a period of 7 years after the copy was sent. Penalty: 20 penalty units. (2) Sub-section (1) does not apply to any document or notice— (a) created by a person using software approved by the Director and lodged on an Internet site operated by the State; and (b) forwarded by electronic transmission to the Director, Authority or Committee. (3) A person must retain any document that is required to be kept by this Act or the regulations for at least 7 years from the date of its creation. Penalty: 20 penalty units.". 72. Offence to destroy documents required by the Act At the foot of section 83B(1) of the Motor Car Traders Act 1986, for "240 penalty units or imprisonment for 2 years or both" substitute "100 penalty units". 73. False or misleading statements At the foot of section 84A(1) of the Motor Car Traders Act 1986, after "units" insert ", in the case of a natural person or, in the case of a corporation, 100 penalty units". s. 72 -- 55 of 67 -- Part 5—Amendment of Motor Car Traders Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 52 74. Certificates For section 87 of the Motor Car Traders Act 1986 substitute— "87. Certificates A certificate signed or purporting to be signed by the Registrar and certifying as to any matter relating to the register is evidence of that matter.". 75. Regulations (1) After section 90(1)(f) of the Motor Car Traders Act 1986 insert— "(g) prescribing the documents, accounts and records to be kept by licensed motor car traders and the manner of keeping them and the period for which they must be kept; and". (2) In section 90(2) of the Motor Car Traders Act 1986— (a) in paragraph (c), for "regulations." substitute "regulations; and"; (b) after paragraph (c) insert— "(d) may prescribe fees that differ according to differences in circumstances.". __________________ s. 74 -- 56 of 67 -- Part 6—Amendment of Travel Agents Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 53 PART 6—AMENDMENT OF TRAVEL AGENTS ACT 1986 76. Application for licence (1) In section 8(2)(b) of the Travel Agents Act 1986, for "at least two directors of the body corporate or, if the body corporate has only one director, by that director" substitute "one director of the body corporate". (2) After section 8(2) of the Travel Agents Act 1986 insert— "(2A) If the application is signed by a director of a body corporate, the application must include a statement that the director— (a) certifies that he or she has the authority to make the application on behalf of the body corporate; and (b) certifies that the particulars contained in the application are true and correct; and (c) certifies that the accompanying documents (if any) are true copies of those documents.". 77. New section 8A inserted After section 8 of the Travel Agents Act 1986 insert— "8A. Consent to disclosure of information (1) The Authority may require a licensee, or a person submitting an application for a licence, or a person appointed as, or proposed to be appointed as, the person in charge of the day-to-day conduct of a travel agency business, to provide to the Authority, at the time of submitting the application or at any time during the currency of the licence, s. 76 See: Act No. 52/1986. Reprint No. 3 as at 1 September 1999 and amending Act Nos 35/2000 and 44/2001. LawToday: www.dms. dpc.vic. gov.au -- 57 of 67 -- Part 6—Amendment of Travel Agents Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 54 any consent required by another person or body to enable the Authority to check or confirm information relevant to the licence or application. (2) Without limiting sub-section (1), consent includes— (a) the consent of the licensee or the applicant; and (b) the consent of another person other than the licensee or applicant; and (c) if the licensee or applicant is a corporation, the consent of a director of the corporation or a member of the corporation. (3) The Authority may refuse to consider an application for a licence if the applicant does not provide to the Authority the required consent within 14 days after the requirement is made.". 78. Register For section 15(1) and (2) of the Travel Agents Act 1986 substitute— "(1) The Registrar must keep a register of licensed travel agents open for public inspection in the form determined by the Registrar. (2) The purposes of the register are— (a) to enable members of the public to have access to information about licensees; (b) to record the names of people disqualified under section 21(2) or refused a licence under section 10(2)(e) or (f) or section 10(4)(g) or (h). s. 78 -- 58 of 67 -- Part 6—Amendment of Travel Agents Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 55 (2A) The register must include the following details in relation to each licensed travel agent— (a) licence number issued by the Authority; (b) name of licensee; (c) date licence granted; (d) date licence surrendered, cancelled or suspended; (e) licence conditions; (f) details of any Tribunal or court orders concerning the licensee affecting the licence and of which the Registrar has notice; (g) business names under which a licensee is authorised to carry on travel agency business, including the date of commencement and cessation of business in that name; (h) business addresses and telephone numbers of any premises from which the travel agency business is conducted and, in each place of business, the manager of that place, including the date of commencement and cessation of business at that place and the date of the manager's commencement and cessation of appointment; (i) if the licensee is a corporation, the names of the directors and the date of appointment and cessation of appointment of each director; (j) if the licensee carries on business in a partnership, the names of the partners; s. 78 -- 59 of 67 -- Part 6—Amendment of Travel Agents Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 56 (k) Australian Business Number (if any) issued under the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth; (l) Internet site address maintained by the licensee for the purposes of a travel agent's business (if any); (m) any other information prescribed by the regulations as forming part of the register. (2B) Subject to the Public Records Act 1973, the Registrar may, if in his or her opinion it is no longer necessary or desirable to retain it, remove any information from the register 12 years after the information was added to the register.". 79. Annual fee and annual statement (1) Section 17(4) of the Travel Agents Act 1986 is repealed. (2) In section 17(11) of the Travel Agents Act 1986— (a) for "8(6)" substitute "8(5)"; (b) omit "or a change of the person in charge at an unchanged place of business". (3) After section 17(11) of the Travel Agents Act 1986 insert— '(11A) If at any time during the period of the licence the licensee proposes to replace the person in charge of a place of business with another person (the "proposed person")— (a) the licensee must notify the Authority in the form approved by the Authority; and s. 79 -- 60 of 67 -- Part 6—Amendment of Travel Agents Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 57 (b) the licensee must pay the prescribed fee (if any) for lodgment of the notice. (11B) The Authority may— (a) conduct any inquiries it thinks fit; (b) require the proposed person to provide any further information that the Authority thinks fit in the manner required by the Authority; (c) seek advice and information on the proposed person from any other person or body it thinks fit.'. 80. New section 41 inserted After section 40 of the Travel Agents Act 1986 insert— "41. Retention of documents (1) A person who under this Act is permitted or required to send a copy of any document or notice to the Director or Authority must retain the original document or notice for a period of 7 years after the copy was sent. Penalty: 20 penalty units. (2) Sub-section (1) does not apply to any document or notice— (a) created by a person using software approved by the Director and lodged on an Internet site operated by the State; and (b) forwarded by electronic transmission to the Director or Authority. s. 80 -- 61 of 67 -- Part 6—Amendment of Travel Agents Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 58 (3) A person must retain any document that is required to be kept by this Act or the regulations for at least 7 years from the date of its creation. Penalty: 20 penalty units.". 81. False or misleading statements For section 42B(1) of the Travel Agents Act 1986 substitute— "(1) A person must not give information or make a statement that is false or misleading by reason of the inclusion of any false or misleading matter or the omission of any material matter, in relation to anything covered by this Act. Penalty: 50 penalty units for a natural person or, in the case of a body corporate, 100 penalty units.". 82. New section 42D inserted After section 42C of the Travel Agents Act 1986 insert— "42D. Offence to destroy records required by the Act (1) A person must not destroy, conceal, mutilate or alter any record that the person is required to keep by this Act or the regulations. Penalty: 100 penalty units. (2) It is a defence to a charge under sub-section (1) if the person charged can prove that the destruction, concealment, mutilation or alteration of the document was not done with the intention of defeating the purposes of this Act.". s. 81 -- 62 of 67 -- Part 6—Amendment of Travel Agents Act 1986 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 59 83. Regulations After section 48(3) of the Travel Agents Act 1986 insert— "(3A) The regulations may prescribe fees that differ according to differences in circumstances. (3B) The regulations may prescribe the documents, accounts and records required to be kept by licensed travel agents and the manner of keeping them and the period for which they must be kept.". __________________ s. 83 -- 63 of 67 -- Part 7—Amendment of Business Licensing Authority Act 1998 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 60 PART 7—AMENDMENT OF BUSINESS LICENSING AUTHORITY ACT 1998 84. Definition In section 3 of the Business Licensing Authority Act 1998 insert the following definition— ' "personal information" has the same meaning as in section 3 of the Information Privacy Act 2000;'. 85. Delegation by Authority For section 11(a) and (b) of the Business Licensing Authority Act 1998 substitute— "(a) a power to determine an application made by a person for a licence or for permission to be, or continue to be, licensed or to be, or continue to be, a director or partner of a licensee or to be employed by a licensee despite that person being otherwise ineligible; and (b) this delegation power.". 86. New sections 17A and 17B inserted After section 17 of the Business Licensing Authority Act 1998 insert— "17A. Restriction of personal information (1) A person whose personal information is held on any register kept by the Registrar under a business licensing Act may apply to the Authority to restrict public access to some or all of that personal information. s. 84 See: Act No. 49/1998 and amending Act Nos 46/1998 and 17/1999. LawToday: www.dms. dpc.vic. gov.au -- 64 of 67 -- Part 7—Amendment of Business Licensing Authority Act 1998 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 61 (2) If the Authority is satisfied that exceptional circumstances exist justifying the restriction of public access to that person's personal information, the Authority may restrict public access to some or all of that personal information. (3) The restriction of public access under sub- section (2) may be for the period and on the conditions that the Authority thinks fit. (4) If the Authority is satisfied that it is in the public interest that restricted personal information be released to a person who applies for it, the Authority may release some or all of the information to that person on such conditions as the Authority thinks fit. (5) If the Authority decides to release restricted personal information, the Authority must give written notice of the decision to the person whose restricted personal information is to be released. (6) The Authority must not release restricted personal information for 28 days after giving written notice of the decision to release the information to the person whose restricted personal information is to be released. 17B. Rights of review (1) A person whose interests are affected by a decision of the Authority under section 17A may apply to the Tribunal for review of that decision. (2) An application for review under sub-section (1) must be lodged with the Tribunal within 28 days after— (a) notice of the decision was given; or s. 86 -- 65 of 67 -- Part 7—Amendment of Business Licensing Authority Act 1998 Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 62 (b) if, under section 45 of 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.". ═══════════════ s. 86 -- 66 of 67 -- Business Licensing Legislation (Amendment) Act 2003 Act No. 8/2003 63 ENDNOTES † Minister's second reading speech— Legislative Assembly: 20 March 2003 Legislative Council: 10 April 2003 The long title for the Bill for this Act was "to amend 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 facilitate electronic document transactions and to make further provision for registers under those Acts and to amend the Business Licensing Authority Act 1998 and for other purposes." Endnotes -- 67 of 67 --