2009 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Dictionary 2 4 Notes 3 5 Offences against Act--application of Criminal Code etc 3 Part 2 Important concepts 6 Carrying on business as motor vehicle repairer 4 J2009-443 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 7 Certain people not taken to carry on business as motor vehicle repairer 5 Part 3 Licences Division 3.1 Requirement for licence 8 Person carrying on business as motor vehicle repairer to be licensed 6 Division 3.2 Eligibility for licence 9 Eligibility for licence 7 10 Meaning of disqualified person 7 Division 3.3 Licence procedures and details 11 Application for motor vehicle repair licence 9 12 Decision on application 9 13 Licence conditions 10 14 Form of licence 11 15 Replacement licence 11 16 Licence term 12 17 Licence not transferable 12 18 Renewal of licence 12 19 Amendment of licence on commissioner's initiative 13 20 Amendment of licence on application 13 21 Surrendering licence 14 Division 3.4 Licence conditions 22 Licence condition--equipment, materials and skill for carrying out work 15 23 Licence condition--agreement for repairs 15 24 Licence condition--additional repairs 16 25 Licence condition--time to carry out work 16 26 Licence condition--replaced parts 17 27 Licence condition--information sheet 17 28 Licence condition--warranties and guarantees 17 29 Licence condition--display of licence 17 30 Licence condition--notification of change of name or address 17 contents 2 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page Part 4 Occupational discipline 31 Meaning of licensee--pt 4 18 32 Grounds for disciplinary action 18 33 Application to ACAT for occupational discipline 19 34 Considerations before making occupational discipline orders 19 35 Information about cancellations etc to be given to corresponding authorities 20 36 Effect of licence suspension 20 Part 5 Licence register 37 Licence register 21 38 Correcting register and keeping it up-to-date 21 Part 6 Offences 39 Unlicensed person advertising 22 40 Licensee advertising without details 22 41 Return of amended, suspended or cancelled licences 23 Part 7 Notification and review of decisions 42 Meaning of reviewable decision--pt 7 24 43 Reviewable decision notices 24 44 Applications for review 24 Part 8 Miscellaneous 45 Exemptions by regulation 25 46 Exemptions by Minister 25 47 Determination of fees 26 48 Approved forms 26 49 Regulation-making power 26 50 Legislation repealed 26 Part 9 Transitional 51 Definitions--pt 9 27 52 Principals under repealed code licensed 27 53 Registration under repealed code 27 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 contents 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 54 Transitional regulations 27 55 Expiry--pt 9 28 56 Fair Trading (Consumer Affairs) Act 1973 Dictionary, definition of fair trading legislation, new paragraph (ca) 28 Schedule 1 Reviewable decisions 29 Dictionary 30 contents 4 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Fair Trading (Motor Vehicle Repair Industry) Bill 2009 A Bill for An Act to provide for the licensing and regulation of people in the motor vehicle repair industry, and for other purposes The Legislative Assembly for the Australian Capital Territory enacts as follows: J2009-443 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 1 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Fair Trading (Motor Vehicle Repair Industry) 4 Act 2009. 5 2 Commencement 6 This Act commences on a day fixed by the Minister by written 7 notice. 8 Note 1 The naming and commencement provisions automatically commence on 9 the notification day (see Legislation Act, s 75 (1)). 10 Note 2 A single day or time may be fixed, or different days or times may be 11 fixed, for the commencement of different provisions (see Legislation 12 Act, s 77 (1)). 13 Note 3 If a provision has not commenced within 6 months beginning on the 14 notification day, it automatically commences on the first day after that 15 period (see Legislation Act, s 79). 16 3 Dictionary 17 The dictionary at the end of this Act is part of this Act. 18 Note 1 The dictionary at the end of this Act defines certain terms used in this 19 Act, and includes references (signpost definitions) to other terms 20 defined elsewhere. 21 For example, the signpost definition `consumer--see the Fair Trading 22 Act 1992, section 6.' means that the term `consumer' is defined in that 23 section and the definition applies to this Act. 24 Note 2 A definition in the dictionary (including a signpost definition) applies to 25 the entire Act unless the definition, or another provision of the Act, 26 provides otherwise or the contrary intention otherwise appears (see 27 Legislation Act, s 155 and s 156 (1)). page 2 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 4 1 4 Notes 2 A note included in this Act is explanatory and is not part of this Act. 3 Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of 4 notes. 5 5 Offences against Act--application of Criminal Code etc 6 Other legislation applies in relation to offences against this Act. 7 Note 1 Criminal Code 8 The Criminal Code, ch 2 applies to all offences against this Act (see 9 Code, pt 2.1). 10 The chapter sets out the general principles of criminal responsibility 11 (including burdens of proof and general defences), and defines terms 12 used for offences to which the Code applies (eg conduct, intention, 13 recklessness and strict liability). 14 Note 2 Penalty units 15 The Legislation Act, s 133 deals with the meaning of offence penalties 16 that are expressed in penalty units. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 6 1 Part 2 Important concepts 2 6 Carrying on business as motor vehicle repairer 3 (1) A person carries on business as a motor vehicle repairer if the 4 person performs motor vehicle repair work for reward. 5 (2) Motor vehicle repair work means-- 6 (a) any of the following work performed on a motor vehicle, 7 motor vehicle part or motor vehicle system: 8 (i) examining or assessing condition or performance 9 improvement; 10 (ii) diagnosing and detecting of faults; 11 (iii) overhauling; 12 (iv) dismantling and assembling; 13 (v) servicing and maintenance; 14 (vi) replacing and adjusting of objects for performance 15 improvement; 16 (vii) painting and treatment; 17 (viii) modifying, altering, installing or fitting work; or 18 (b) giving advice on any of the work mentioned in paragraph (a); 19 or 20 (c) any other work prescribed by regulation to be motor vehicle 21 repair work. 22 (3) However, motor vehicle repair work does not include any work 23 prescribed by regulation not to be motor vehicle repair work. 24 Note Power to make a statutory instrument (including a regulation) includes 25 power to make different provision for different categories (see 26 Legislation Act, s 48). page 4 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 7 1 7 Certain people not taken to carry on business as motor 2 vehicle repairer 3 For this Act, a person does not carry on business as a motor vehicle 4 repairer only because the person-- 5 (a) performs motor vehicle repair work in the course of 6 employment by another person; or 7 (b) is a member of a partnership that carries on the business; or 8 (c) publishes, on behalf of another person, an advertisement 9 about-- 10 (i) a business carried on, or to be carried on, by the other 11 person; or 12 (ii) a service provided, or to be provided, by the other person. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 5 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 3.1 Requirement for licence Section 8 1 Part 3 Licences 2 Division 3.1 Requirement for licence 3 8 Person carrying on business as motor vehicle repairer to 4 be licensed 5 (1) A person commits an offence if-- 6 (a) the person carries on business as a motor vehicle repairer; and 7 (b) either-- 8 (i) the person does not hold a licence; or 9 (ii) if the person is a partner in a partnership that carries on 10 the business--no partner in the partnership holds a 11 licence. 12 Maximum penalty: 50 penalty units. 13 (2) A person commits an offence if the person-- 14 (a) carries on business as a motor vehicle repairer at premises; and 15 (b) either-- 16 (i) does not hold a licence authorising the person to carry on 17 business as a motor vehicle repairer at the premises; or 18 (ii) if the person is a partner in a partnership that carries on 19 the business--no partner in the partnership holds a 20 licence authorising the person to carry on business as a 21 motor vehicle repairer at the premises. 22 Maximum penalty: 20 penalty units. 23 (3) An offence against this section is a strict liability offence. page 6 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Eligibility for licence Division 3.2 Section 9 1 Division 3.2 Eligibility for licence 2 9 Eligibility for licence 3 (1) An individual is eligible for a licence if the individual-- 4 (a) is an adult; and 5 (b) is not a disqualified person. 6 (2) A person in a partnership is eligible for a licence if-- 7 (a) the person is eligible under subsection (1); and 8 (b) no partner in the partnership is a disqualified person. 9 (3) A corporation is eligible for a licence if-- 10 (a) at least 1 director of the corporation holds a licence; and 11 (b) no director of the corporation is a disqualified person. 12 10 Meaning of disqualified person 13 (1) A person is a disqualified person if the person has committed or 14 engaged in a disqualifying act. 15 (2) However, even if a person has committed or engaged in a 16 disqualifying act, the person is not a disqualified person if the 17 commissioner is satisfied that, in all the circumstances, it would be 18 reasonable not to regard the person as a disqualified person. 19 (3) In making a decision under subsection (2) in relation to a person, the 20 commissioner must have regard to-- 21 (a) the circumstances of the disqualifying act; and 22 (b) whether the person cooperated in the investigation of the 23 disqualifying act; and 24 (c) the extent to which the person provided restitution for any loss 25 suffered because of the disqualifying act; and Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 7 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 3.2 Eligibility for licence Section 10 1 (d) the time since the disqualifying act was committed or engaged 2 in; and 3 (e) whether the disqualifying act was an isolated event. 4 (4) Subsection (3) does not limit the matters to which the commissioner 5 may have regard in making the decision. 6 (5) A director of a corporation is taken to have committed a 7 disqualifying act if the director was a director of the corporation 8 when the corporation committed the disqualifying act. 9 (6) In this section: 10 disqualifying act means-- 11 (a) a contravention of this Act (including a requirement made by 12 the commissioner under this Act) or a corresponding law of a 13 State, whether or not the contravention is an offence; or 14 (b) a contravention of a condition of a licence; or 15 (c) a contravention of the Fair Trading (Motor Vehicle Service 16 and Repair Industry) Code of Practice 1999; or 17 (d) an offence against the Trade Practices Act 1974 (Cwlth); or 18 (e) an offence against the Fair Trading Act 1992 or a 19 corresponding law of a State; or 20 (f) an offence against a law of the Territory, the Commonwealth, a 21 State, another Territory or a foreign country punishable by 22 imprisonment for longer than 1 year. page 8 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Licence procedures and details Division 3.3 Section 11 1 Division 3.3 Licence procedures and details 2 11 Application for motor vehicle repair licence 3 (1) A person may apply to the commissioner for a motor vehicle repair 4 licence. 5 Note 1 If a form is approved under s 48 for this provision, the form must be 6 used. 7 Note 2 A fee may be determined under s 47 for this provision. 8 Note 3 The Legislation Act contains provisions about the making of 9 determinations and regulations relating to fees (see pt 6.3). 10 (2) The application must be accompanied by-- 11 (a) a police certificate for the applicant, dated not earlier than 12 2 months before the day the application is made; and 13 (b) a signed statement to the effect that, apart from the licence, the 14 applicant has obtained all planning and other approvals 15 required to carry on the motor vehicle repair business at each 16 premises where the applicant proposes to carry on business 17 under the licence. 18 (3) The commissioner may, in writing, require the applicant to give the 19 commissioner additional information or documents that the 20 commissioner reasonably needs to decide the application. 21 (4) If the applicant does not comply with a requirement made of the 22 applicant under subsection (3), the commissioner may refuse to 23 consider the application further. 24 12 Decision on application 25 (1) Within 60 days after the day the commissioner receives an 26 application for a motor vehicle repair licence, the commissioner 27 must-- 28 (a) issue the licence; or Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 9 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 3.3 Licence procedures and details Section 13 1 (b) refuse to issue the licence. 2 Note Failure to issue a licence within the 60-day period is taken to be a 3 decision not to issue the licence (see ACT Civil and Administrative 4 Tribunal Act 2008, s 12). 5 (2) The commissioner must issue the licence if satisfied that the 6 applicant-- 7 (a) is eligible for the licence under section 9; and 8 (b) can comply with any conditions to which the licence is subject; 9 and 10 (c) can satisfy anything else prescribed by regulation. 11 13 Licence conditions 12 (1) A licence is subject to the conditions set out in division 3.4 (Licence 13 conditions). 14 (2) A licence is also subject to any conditions-- 15 (a) prescribed by regulation; or 16 (b) imposed on the licence by the commissioner. 17 Examples--conditions 18 1 that an approved code of practice or standard must be complied with 19 2 that particular requirements about inspection and reporting must be complied 20 with 21 3 that stated records must be kept 22 Note An example is part of the Act, is not exhaustive and may extend, but 23 does not limit, the meaning of the provision in which it appears (see 24 Legislation Act, s 126 and s 132). page 10 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Licence procedures and details Division 3.3 Section 14 1 (3) The commissioner may impose-- 2 (a) a condition on a licence when the licence is issued or renewed; 3 and 4 (b) a condition on, or amend a condition of, a licence at any other 5 time under section 19 (Amendment of licence on 6 commissioner's initiative) or section 20 (Amendment of 7 licence on application). 8 14 Form of licence 9 A licence must-- 10 (a) be in writing; and 11 (b) state the name of the person to whom the licence is issued; and 12 (c) if the licensee carries on business as a motor vehicle repairer 13 under a name other than the licensee's name--state the name 14 under which the licensee carries on business; and 15 (d) have a unique identifying number (the licence number); and 16 (e) state the premises where the licensee is authorised to carry on 17 business as a motor vehicle repairer; and 18 (f) state the period for which the licence is given; and 19 (g) include anything prescribed by regulation. 20 15 Replacement licence 21 (1) The commissioner may issue a replacement licence to a licensee if 22 satisfied that the licensee's original licence has been lost, stolen or 23 destroyed. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 11 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 3.3 Licence procedures and details Section 16 1 (2) For subsection (1), the commissioner may require the licensee to 2 give the commissioner a statutory declaration signed by the licensee, 3 stating that the original licence has been lost, stolen or destroyed. 4 Note 1 A fee may be determined under s 47 for this provision. 5 Note 2 The Statutory Declarations Act 1959 (Cwlth) applies to the making of 6 statutory declarations under ACT laws. 7 16 Licence term 8 A licence is issued for the period of up to 12 months stated in the 9 licence. 10 17 Licence not transferable 11 A licence is not transferable. 12 18 Renewal of licence 13 (1) A licensee may apply, in writing, to the commissioner to renew the 14 licence. 15 Note 1 If a form is approved under s 48 for an application, the form must be 16 used. 17 Note 2 A fee may be determined under s 47 for this provision. 18 (2) The commissioner may, in writing, require the licensee to give the 19 commissioner additional information or documents that the 20 commissioner reasonably needs to decide the application. 21 (3) If the applicant does not comply with a requirement made of the 22 applicant under subsection (2), the commissioner may refuse to 23 consider the application further. 24 (4) On an application to renew a licence, the commissioner must-- 25 (a) renew the licence; or 26 (b) refuse to renew the licence. page 12 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Licence procedures and details Division 3.3 Section 19 1 (5) The commissioner must renew the licence if satisfied of the matters 2 mentioned in section 12 (2) in relation to the applicant. 3 (6) If a licensee applies to renew a licence under this section, the licence 4 remains in force until the application is decided. 5 19 Amendment of licence on commissioner's initiative 6 (1) The commissioner may, at any time and on the commissioner's own 7 initiative, amend a licence (including by imposing a condition on, or 8 amending a condition of, the licence). 9 (2) However, the commissioner may amend a licence only if-- 10 (a) the commissioner has given the licensee written notice of the 11 proposed amendment; and 12 (b) the notice states that written comments on the proposal may be 13 made to the commissioner before the end of a stated period of 14 at least 14 days after the day the notice is given to the licensee; 15 and 16 (c) the commissioner has considered any comments made before 17 the end of the stated period. 18 (3) Subsection (2) does not apply if the licensee applied for, or agreed 19 in writing to, the amendment. 20 20 Amendment of licence on application 21 (1) A licensee may apply to the commissioner to amend the licensee's 22 licence (including by removing or amending a condition of the 23 licence). 24 Note 1 If a form is approved under s 48 for an application, the form must be 25 used. 26 Note 2 A fee may be determined under s 47 for this provision. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 13 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 3.3 Licence procedures and details Section 21 1 (2) The commissioner may, in writing, require the applicant to give the 2 commissioner additional information or documents that the 3 commissioner reasonably needs to decide the application. 4 (3) If the applicant does not comply with a requirement made of the 5 applicant under subsection (2), the commissioner may refuse to 6 consider the application further. 7 (4) On an application by a person to amend a licence, the commissioner 8 must-- 9 (a) amend the licence in the way applied for; or 10 (b) refuse to amend the licence. 11 (5) In deciding whether to amend the licence, the commissioner may 12 consider anything the commissioner may consider under 13 section 12 (2) in relation to an application for a licence. 14 21 Surrendering licence 15 (1) A licensee may surrender the licence by giving written notice of the 16 surrender to the commissioner. 17 (2) The licensee must, with the notice-- 18 (a) return the licence to the commissioner; or 19 (b) if the licence has been lost, stolen or destroyed--give the 20 commissioner a statutory declaration signed by the licensee 21 stating that the licence has been lost, stolen or destroyed. 22 Note The Statutory Declarations Act 1959 (Cwlth) applies to the making of 23 statutory declarations under ACT laws. page 14 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Licence conditions Division 3.4 Section 22 1 Division 3.4 Licence conditions 2 Note A licence is also subject to conditions prescribed by regulation or 3 imposed on the licence by the commissioner--see s 13. 4 22 Licence condition--equipment, materials and skill for 5 carrying out work 6 It is a condition of a licence that motor vehicle repair work 7 performed by the licensee or an employee of the licensee on a motor 8 vehicle, part or system be performed with the equipment, materials 9 and skill necessary to carry out the work satisfactorily, having 10 regard to the age and make of the vehicle, part or system. 11 23 Licence condition--agreement for repairs 12 (1) It is a condition of a licence that the licensee, before performing 13 motor vehicle repair work for a person that is expected to cost the 14 person $150 or more-- 15 (a) give the person an estimate of the cost of the work; and 16 (b) give the estimate in writing if asked by the person to do so. 17 (2) However, if it is not reasonably practicable to give an estimate of 18 the cost of work without first undertaking diagnostic work, it is a 19 condition of the licence that a licensee, when performing the 20 diagnostic work for a person-- 21 (a) give the person a written estimate of the cost of the work; and 22 (b) if the diagnosis is likely to result in any damage to the motor 23 vehicle--tell the person of that fact in writing; and 24 (c) obtain the person's written authorisation for the licensee to 25 perform the diagnostic work, unless the person has agreed 26 otherwise; and 27 (d) after the diagnosis and before the licensee repairs the vehicle-- 28 (i) give the person an estimate of the cost of repairs; and Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 15 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 3.4 Licence conditions Section 24 1 (ii) obtain the person's authority to perform the repairs 2 specified in the estimate. 3 (3) It is a condition of a licence that the licensee, when performing 4 motor vehicle repair work for a person after giving an estimate to 5 the person, tell the person of any variation in the cost from the 6 estimate. 7 (4) It is a condition of a licence that the licensee keep records of written 8 or verbal estimates and quotes given to people. 9 24 Licence condition--additional repairs 10 It is a condition of a licence that the licensee, before performing 11 work for a person or using parts not agreed to by a person in the 12 estimate of work-- 13 (a) explain to the person-- 14 (i) what the additional work or part is; and 15 (ii) what the cost of the work or part is; and 16 (b) obtain the person's authorisation to-- 17 (i) conduct the work or install the part; and 18 (ii) charge for the additional work or installation. 19 25 Licence condition--time to carry out work 20 It is a condition of a licence that the licensee-- 21 (a) complete motor vehicle repair work in a reasonable time; and 22 (b) tell the person for whom the work was done how much time 23 was spent performing the work. page 16 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Licence conditions Division 3.4 Section 26 1 26 Licence condition--replaced parts 2 (1) It is a condition of a licence that the licensee, on completing motor 3 vehicle repair work for a person, offer to give the person any part 4 that was replaced as part of the work. 5 (2) If the person chooses not to accept the replaced part under 6 subsection (1), the licensee must not charge a fee for disposal of the 7 part. 8 27 Licence condition--information sheet 9 It is a condition of a licence that the licensee, before performing 10 motor vehicle repair work for a person, give the person an 11 information sheet approved by the commissioner about motor 12 vehicle repair work. 13 28 Licence condition--warranties and guarantees 14 It is a condition of a licence that the licensee, on completing motor 15 vehicle repair work for a person, give the person a signed copy of 16 any warranty or guarantee relating to workmanship, parts or service 17 provided by the licensee. 18 29 Licence condition--display of licence 19 It is a condition of a licence that the licence, or a copy of the licence, 20 be displayed in a prominent place at premises where business is 21 carried on under the licence. 22 30 Licence condition--notification of change of name or 23 address 24 It is a condition of a licence that, if the licensee changes name, 25 address or any other detail on the licence, the licensee must tell the 26 commissioner, in writing, about the change as soon as practicable 27 (but not later than 7 days) after the day the change happens. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 17 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 31 1 Part 4 Occupational discipline 2 31 Meaning of licensee--pt 4 3 In this part: 4 licensee includes a former licensee. 5 32 Grounds for disciplinary action 6 (1) Each of the following is a ground for occupational discipline in 7 relation to a licensee: 8 (a) the licensee gave information to the commissioner in relation 9 to the application for, or an application for amendment of, the 10 licensee's licence that was false or misleading in a material 11 particular; 12 (b) the licensee has contravened, or is contravening, this Act, 13 whether or not the licensee has been convicted or found guilty 14 of an offence for the contravention; 15 (c) the licensee has contravened, or is contravening, a territory law 16 (other than this Act) or a law of the Commonwealth, a State or 17 another Territory, whether or not the licensee has been 18 convicted or found guilty of an offence for the contravention; 19 (d) the licensee has contravened, or is contravening, an order of 20 the ACAT; 21 (e) the licensee has contravened, or is contravening a condition of 22 the licence; 23 (f) the licence was obtained by fraud or mistake; 24 (g) a ground prescribed by regulation for this section. 25 (2) A ground for occupational discipline applies to a former licensee if 26 the ground applied to the licensee while licensed. page 18 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 33 1 33 Application to ACAT for occupational discipline 2 If the commissioner believes on reasonable grounds that a ground 3 for occupational discipline exists in relation to a licensee, the 4 commissioner may apply to the ACAT for an occupational 5 discipline order in relation to the licensee. 6 Note The ACT Civil and Administrative Tribunal Act 2008, s 66 sets out 7 occupational discipline orders the ACAT may make. 8 34 Considerations before making occupational discipline 9 orders 10 (1) This section applies if the ACAT is considering an application for 11 occupational discipline in relation to a licensee. 12 (2) Without limiting the matters the ACAT must consider in relation to 13 the licensee, the ACAT must consider the following: 14 (a) the degree of responsibility of the licensee for the act or 15 omission that made up the ground for occupational discipline; 16 (b) the extent to which it is necessary to discourage the licensee 17 and others from doing something, or not doing something, that 18 made up the disciplinary ground; 19 (c) whether, and the extent to which, it is necessary to protect the 20 public from the licensee; 21 (d) the desirability of making the licensee responsible for the 22 consequences of the licensee's actions or omissions; 23 (e) the desirability of maintaining public confidence in the 24 regulatory system set up by this Act. 25 Note The ACT Civil and Administrative Tribunal Act 2008, s 65 (3) sets out 26 other considerations that must be taken into account by the ACAT. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 19 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 35 1 35 Information about cancellations etc to be given to 2 corresponding authorities 3 (1) This section applies if the ACAT cancels or suspends a licensee's 4 licence or disqualifies a licensee from applying for a licence. 5 (2) The commissioner may give the corresponding authority of each 6 State the following information about the licensee: 7 (a) the name and any other identifying details of the licensee; 8 (b) a short description of the ground for occupational discipline on 9 which the occupational discipline order was based; 10 (c) whether the licence has been cancelled or suspended or the 11 licence disqualified; 12 (d) if the licence has been suspended--the period of suspension; 13 (e) if the licensee has been disqualified--the period of 14 disqualification. 15 (3) This section does not limit any other requirement or power, under 16 this Act or another law in force in the ACT, to give information to 17 an entity in another jurisdiction. 18 (4) In this section: 19 corresponding authority, of a State, means the entity responsible in 20 the State for regulation of the motor vehicle repair industry. 21 36 Effect of licence suspension 22 If a licence is suspended, the licence does not authorise the licensee 23 to carry on any activity under the licence during the suspension. page 20 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 37 1 Part 5 Licence register 2 37 Licence register 3 (1) The commissioner must keep a register of licences. 4 (2) The register may include information about licences given to the 5 commissioner under this Act and any other information the 6 commissioner considers appropriate. 7 (3) The register may be kept in any form, including electronically, that 8 the commissioner decides. 9 (4) The register may be kept in 1 or more parts, as the commissioner 10 considers appropriate. 11 (5) The commissioner must make information in the register available 12 for public inspection. 13 Example 14 the register may be available on a website 15 Note An example is part of the Act, is not exhaustive and may extend, but 16 does not limit, the meaning of the provision in which it appears (see 17 Legislation Act, s 126 and s 132). 18 38 Correcting register and keeping it up-to-date 19 (1) The commissioner may correct a mistake, error or omission in the 20 register. 21 (2) The commissioner may change a detail included in the register to 22 keep the register up-to-date. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 21 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 39 1 Part 6 Offences 2 Note For investigations by the commissioner--see the Fair Trading 3 (Consumer Affairs) Act 1973, div 3.2. 4 39 Unlicensed person advertising 5 (1) A person commits an offence if-- 6 (a) the person advertises that the person performs or will perform 7 motor vehicle repair work for reward; and 8 (b) either-- 9 (i) the person does not hold a licence; or 10 (ii) if the person is a partner in a partnership--no partner in 11 the partnership holds a licence. 12 Maximum penalty: 10 penalty units. 13 (2) An offence against this section is a strict liability offence. 14 40 Licensee advertising without details 15 (1) A licensee commits an offence if-- 16 (a) the licensee advertises that the person performs, or will 17 perform, motor vehicle repair work for reward; and 18 (b) the licensee does not include in the advertisement-- 19 (i) the licence number; and 20 (ii) the address of the premises where the work is or is to be 21 performed. 22 Maximum penalty: 10 penalty units. 23 (2) An offence against this section is a strict liability offence. page 22 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 41 1 41 Return of amended, suspended or cancelled licences 2 (1) A licensee commits an offence if-- 3 (a) the licensee's licence is-- 4 (i) amended under section 19 (Amendment of licence on 5 commissioner's initiative); or 6 (ii) amended under section 20 (Amendment of licence on 7 application); or 8 (iii) suspended or cancelled by the ACAT; and 9 (b) the licensee fails to return the licence to the commissioner as 10 soon as practicable (but not later than 7 days) after the day the 11 licensee is told about the amendment, suspension or 12 cancellation. 13 Maximum penalty: 20 penalty units. 14 (2) An offence against this section is a strict liability offence. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 23 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 42 1 Part 7 Notification and review of 2 decisions 3 42 Meaning of reviewable decision--pt 7 4 In this part: 5 reviewable decision means a decision mentioned in 6 schedule 1, column 3 under a provision of this Act mentioned in 7 column 2 in relation to the decision. 8 43 Reviewable decision notices 9 If the commissioner makes a reviewable decision, the commissioner 10 must give a reviewable decision notice to each person mentioned in 11 schedule 1, column 4 in relation to the decision. 12 Note 1 The commissioner must also take reasonable steps to give a reviewable 13 decision notice to any other person whose interests are affected by the 14 decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A). 15 Note 2 The requirements for a reviewable decision notice are prescribed under 16 the ACT Civil and Administrative Tribunal Act 2008. 17 44 Applications for review 18 The following people may apply to the ACAT for a review of a 19 reviewable decision: 20 (a) a person mentioned in schedule 1, column 4 in relation to the 21 decision; 22 (b) any other person whose interests are affected by the decision. 23 Note If a form is approved under the ACT Civil and Administrative Tribunal 24 Act 2008 for the application, the form must be used. page 24 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 45 1 Part 8 Miscellaneous 2 45 Exemptions by regulation 3 A regulation may exempt a person from all or any of the provisions 4 of this Act. 5 46 Exemptions by Minister 6 (1) A person may, in writing, apply to the Minister for exemption from 7 all or any of the provisions of this Act. 8 Note 1 If a form is approved under s 48 for this provision, the form must be 9 used. 10 Note 2 A fee may be determined under s 47 for this provision. 11 Note 3 A reference to an Act includes a reference to a provision of an Act (see 12 Legislation Act, s 7 (3)). 13 (2) The application must state the grounds on which it is made. 14 (3) The Minister must not grant the exemption unless satisfied on 15 reasonable grounds that the exemption is not likely to cause a 16 substantial detriment to consumers. 17 (4) In deciding whether to grant an exemption, the Minister must also 18 take into account any criteria prescribed by regulation. 19 (5) An exemption may be subject to conditions. 20 (6) The Minister may amend or revoke an exemption at any time on 21 reasonable grounds. 22 (7) An exemption, and an amendment or revocation of an exemption, is 23 a disallowable instrument. 24 Note A disallowable instrument must be notified, and presented to the 25 Legislative Assembly, under the Legislation Act. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 25 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 47 1 47 Determination of fees 2 (1) The Minister may determine fees for this Act. 3 Note The Legislation Act contains provisions about the making of 4 determinations and regulations relating to fees (see pt 6.3). 5 (2) A determination is a disallowable instrument. 6 Note A disallowable instrument must be notified, and presented to the 7 Legislative Assembly, under the Legislation Act. 8 48 Approved forms 9 (1) The commissioner may approve forms for this Act. 10 (2) If the commissioner approves a form for a particular purpose, the 11 approved form must be used for that purpose. 12 Note For other provisions about forms, see the Legislation Act, s 255. 13 (3) An approved form is a notifiable instrument. 14 Note A notifiable instrument must be notified under the Legislation Act. 15 49 Regulation-making power 16 The Executive may make regulations for this Act. 17 Note Regulations must be notified, and presented to the Legislative 18 Assembly, under the Legislation Act. 19 50 Legislation repealed 20 The following legislative instruments are repealed: 21 · Fair Trading (Motor Vehicle Service and Repair Industry) Code 22 of Practice 1999 (NI1999-278) 23 · Fair Trading (Motor Vehicle Service and Repair Industry) 24 Determination 1999 (NI1999-279). page 26 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 51 1 Part 9 Transitional 2 51 Definitions--pt 9 3 In this part: 4 commencement day means the day this Act commences. 5 repealed code means the Fair Trading (Motor Vehicle Service and 6 Repair Industry) Code of Practice 1999 as in force immediately 7 before the commencement day. 8 52 Principals under repealed code licensed 9 A principal registered under the repealed code immediately before 10 the commencement day is taken to be licensed under section 12 11 (Decision on application) until the day the person's registration 12 would have expired under the repealed code. 13 53 Registration under repealed code 14 For section 29 (Licence condition--display of licence), a 15 registration under the repealed code is taken to be a licence for this 16 Act. 17 Note It is a condition of a licence that the licence, or a copy of the licence, be 18 displayed in a prominent place at premises where business is carried on 19 under the licence--see s 29. 20 54 Transitional regulations 21 (1) A regulation may prescribe transitional matters necessary or 22 convenient to be prescribed because of the enactment of this Act. 23 (2) A regulation may modify this part (including in relation to another 24 territory law) to make provision in relation to anything that, in the 25 Executive's opinion, is not, or is not adequately or appropriately, 26 dealt with in this part. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 27 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 55 1 (3) A regulation under subsection (2) has effect despite anything 2 elsewhere in this Act or another territory law. 3 55 Expiry--pt 9 4 This part expires 1 year after the day it commences. 5 56 Fair Trading (Consumer Affairs) Act 1973 6 Dictionary, definition of fair trading legislation, new 7 paragraph (ca) 8 insert 9 (ca) the Fair Trading (Motor Vehicle Repair Industry) Act 2009; or page 28 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Schedule 1 Reviewable decisions 2 (see s 42) column 1 column 2 column 3 column 4 item section decision person 1 9 (3) (b) find person disqualified person found disqualified person 2 12 (1) (b) refuse to issue licence applicant 3 13 (3) (a) impose condition on licensee licence 4 18 (4) (b) refuse to renew licence licensee 5 19 (1) amend licence licensee 6 20 (4) (b) refuse to amend licence licensee 7 46 (3) refuse to grant applicant exemption 8 46 (6) revoke, or amend exemption holder condition of, exemption Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 29 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Dictionary 2 (see s 3) 3 Note 1 The Legislation Act contains definitions and other provisions relevant to 4 this Act. 5 Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms: 6 · ACAT 7 · Corporations Act 8 · entity 9 · Minister (see s 162) 10 · occupational discipline order 11 · reviewable decision notice 12 · State. 13 carries on business as a motor vehicle repairer--see section 6 (1). 14 commissioner means the commissioner for fair trading. 15 consumer--see the Fair Trading Act 1992, section 6. 16 corporation--see the Corporations Act. 17 disqualified person--see section 10. 18 ground for occupational discipline--see section 32. 19 licence means a motor vehicle repair licence issued under 20 section 12. 21 licence number--see section 14 (d). 22 licensee, for part 4 (Occupational discipline)--see section 31. 23 motor vehicle--see the Sale of Motor Vehicles Act 1977, dictionary. 24 motor vehicle repair work--see section 6 (2) and (3). page 30 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 police certificate, for a person, means a written statement by the 2 Australian Federal Police indicating-- 3 (a) whether, according to the records held by the Australian 4 Federal Police, the person has been charged with, or convicted 5 of, an offence against a law of-- 6 (i) the Territory; or 7 (ii) the Commonwealth; or 8 (iii) a State; or 9 (iv) another country; and 10 (b) if so--particulars of each offence. 11 Note A conviction does not include a spent conviction (see Spent Convictions 12 Act 2000, s 16 (c) (i)). 13 register means the register of licences kept under part 5. 14 reviewable decision, for part 7 (Notification and review of 15 decisions)--see section 42. Fair Trading (Motor Vehicle Repair Industry) Bill 2009 page 31 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Presentation speech Presentation speech made in the Legislative Assembly on 2009. 2 Notification Notified under the Legislation Act on 2009. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2009 page 32 Fair Trading (Motor Vehicle Repair Industry) Bill 2009 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au