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PARLIAMENT OF VICTORIA
Estate Agents (Amendment) Act 1999
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Principal Act 2
PART 2--DUTIES OF ESTATE AGENTS 3
4. Amendment of definitions 3
5. New section 30AAA inserted 3
30AAA. Exception for retail shopping centre offices 3
PART 3--MATTERS RELATING TO MONEY 6
6. New section 49B inserted 6
49B. Rebates, discounts and commissions for outgoings 6
7. Offence not to comply with section 49B 7
8. Certain trust money not to be deposited into trust accounts 8
9. Costs of audit under section 64A 8
10. Application of Fund to VCAT costs 9
11. Application of excess money in Fund 9
PART 4--INSPECTION POWERS 10
12. Amendment of definitions 10
13. Section 70 repealed 10
14. New Part VIIA inserted 10
PART VIIA--INSPECTION POWERS 10
91A. Definitions 10
91B. Production of identity card 12
91C. Accounts and other documents available for inspection 12
91D. Licensed estate agent to produce documents and answer
questions 13
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Clause Page
91E. Third parties to produce documents and answer
questions relating to specified business 14
91F. Ministers, police and public authorities to produce
information to inspectors 14
91G. Certain other specified persons or bodies to produce
information 15
91H. Powers on production of documents 16
91I. Order requiring supply of information and answers to
questions 17
91J. Entry or search with consent 18
91K. Entry without consent or warrant 20
91L. Search warrants 21
91M. Announcement before entry 23
91N. Details of warrant to be given to occupier 23
91O. Seizure of things not mentioned in the warrant 24
91P. Embargo notice 24
91Q. Copies of seized documents 25
91R. Retention and return of seized documents or things 26
91S. Magistrates' Court may extend 3 month period 26
91T. Requirement to assist inspector during entry 27
91U. Refusal or failure to comply with requirement 28
91V. Rule against self-incrimination does not apply 28
91W. Offence to give false or misleading information 28
91X. Application of provisions relating to inspections 29
91Y. Service of documents 29
91Z. Confidentiality 29
15. New sections 92D and 92E inserted 30
92D. Production of information to Authority 30
92E. Rule against self-incrimination does not apply 31
PART 5--INFRINGEMENT NOTICES 32
16. Division headings inserted 32
17. New Division 2 of Part VIII inserted 32
Division 2--Infringement Notices 32
98. Definitions 32
98A. Power to serve a notice 32
98B. Form of notice 33
98C. Infringement penalty 34
98D. Late payment of penalty 34
98E. Withdrawal of notice 34
98F. Payment expiates offence 35
98G. Payment not to have certain consequences 35
98H. Prosecution after service of infringement notice 36
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Clause Page
98I. Enforcement of infringement penalty 36
98J. Tribunal inquires and disciplinary actions not affected 37
18. Amendment of regulation-making powers 37
PART 6--FUNDRAISING APPEALS ACT 1998 38
19. Meaning of "fundraising appeal" 38
NOTES 39
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532190B.I1-4/5/99
PARLIAMENT OF VICTORIA
A BILL
to amend the Estate Agents Act 1980 and the Fundraising Appeals
Act 1998 and for other purposes.
Estate Agents (Amendment) Act 1999
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
(1) The main purpose of this Act is to amend the
Estate Agents Act 1980--
5 (a) to make provision with respect to estate
agency offices in retail shopping centres;
(b) to provide for inspectors powers in relation
to estate agents;
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Estate Agents (Amendment) Act 1999
s. 2
Act No.
(c) to provide for the issuing of infringement
notices in relation to certain offences;
(d) to make provision with respect to the
payment of money to estate agents and the
5 audit of the accounts of estate agents.
(2) This Act also amends section 5 of the
Fundraising Appeals Act 1998 to clarify what
activities are not a fundraising appeal.
2. Commencement
10 (1) This Part and Part 6 come into operation on the
day on which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
15 (3) If a provision referred to in sub-section (2) does
not come into operation before 1 February 2000, it
comes into operation on that day.
3. Principal Act
No. 9428. In this Act, the Estate Agents Act 1980 is called
Reprint No. 6
20 the Principal Act.
as at 1 July
1998. Further
amended by
No. 101/1998.
_______________
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Estate Agents (Amendment) Act 1999
s. 4
Act No.
PART 2--DUTIES OF ESTATE AGENTS
4. Amendment of definitions
(1) In section 4 of the Principal Act, in the definition
of "estate agent"--
5 (a) at the end of paragraph (b) insert "or"; and
(b) for paragraphs (c) and (d) substitute--
"(c) collecting rents for--".
(2) In section 4 of the Principal Act insert--
' "retail shopping centre office" means an estate
10 agency office in a retail shopping centre to
which section 30AAA applies;'.
(3) In section 4 of the Principal Act, in the definition
of "branch office" after "principal office" insert
"or a retail shopping centre office".
15 5. New section 30AAA inserted
After section 30 of the Principal Act insert--
'30AAA. Exception for retail shopping centre offices
(1) Despite section 30(1), an agent's
representative may manage one or more
20 estate agency offices if--
(a) each estate agency office so managed is
in a retail shopping centre; and
(b) each retail shopping centre in which an
estate agency office so managed is
25 situated is owned by the same person or
a related body corporate; and
(c) the only estate agency business carried
on at each of the estate agency offices
so managed in a retail shopping centre
30 is one or more of the following--
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(i) the letting or taking on lease of
premises in the retail shopping
centre or a related retail shopping
centre on behalf of the owner of
5 that centre;
(ii) negotiating in respect of the
letting or taking on lease of
premises in the retail shopping
centre or a related retail shopping
10 centre on behalf of the owner of
that centre;
(iii) collecting rents relating to
premises in the retail shopping
centre or a related retail shopping
15 centre on behalf of the owner of
that centre.
(2) Despite section 30(1A), a licensed estate
agent may manage more than one estate
agency office if--
20 (a) each additional estate agency office so
managed is in a retail shopping centre;
and
(b) each additional retail shopping centre in
which an estate agency office so
25 managed is situated is owned by the
same person or a related body
corporate; and
(c) the only estate agency business carried
on at each additional estate agency
30 office so managed in a retail shopping
centre is one or more of the
following--
(i) the letting or taking on lease of
premises in the retail shopping
35 centre or a related retail shopping
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Estate Agents (Amendment) Act 1999
s. 5
Act No.
centre on behalf of the owner of
that centre;
(ii) negotiating in respect of the
letting or taking on lease of
5 premises in the retail shopping
centre or a related retail shopping
centre on behalf of the owner of
that centre;
(iii) collecting rents relating to
10 premises in the retail shopping
centre or a related retail shopping
centre on behalf of the owner of
that centre.
(3) In this section--
15 "related body corporate" means a related
body corporate within the meaning of
the Corporations Law;
"related retail shopping centre" in relation
to a retail shopping centre, means a
20 retail shopping centre which is owned
by the same person who owns the first-
mentioned retail shopping centre or by
a related body corporate;
"retail shopping centre" has the same
25 meaning as it has in the Retail
Tenancies Reform Act 1998.'.
_______________
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Estate Agents (Amendment) Act 1999
s. 6
Act No.
PART 3--MATTERS RELATING TO MONEY
6. New section 49B inserted
After section 49A of the Principal Act insert--
'49B. Rebates, discounts and commissions for
5 outgoings
(1) Subject to this section, the outgoings,
including advertising expenses, payable by a
principal must not exceed the actual amount
payable by the estate agent for those
10 outgoings.
(2) If a discount is received or receivable by the
estate agent in respect of the outgoings, the
amount of the discount must be taken into
account in determining the actual amount of
15 outgoings payable.
(3) If a rebate or commission is received or
receivable by the estate agent in respect of
the outgoings--
(a) the amount of the rebate or commission
20 must be taken into account in
determining the actual amount of
outgoings payable; or
(b) the estate agent must--
(i) pay the amount of the rebate or
25 commission to the principal; or
(ii) deduct the amount of the rebate or
commission from the money owed
by the principal to the estate
agent.
30 (4) If the actual amount of the outgoings is not
ascertainable at the time when the principal
pays an amount to the estate agent for the
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outgoings, the estate agent may estimate the
amount of outgoings payable.
(5) If the actual amount paid for the outgoings
by the estate agent is less than the amount
5 paid for the outgoings by the principal, the
estate agent must when the difference
becomes known to the estate agent--
(a) refund the difference to the principal;
or
10 (b) deduct the amount of the difference
from the money owed by the principal
to the estate agent.
(6) In this section, "principal" means a person
in respect of whom an estate agent holds a
15 written engagement or appointment.'.
7. Offence not to comply with section 49B
(1) In section 50(1) of the Principal Act--
(a) for "Subject to sub-section (2) an" substitute
"An";
20 (b) after paragraph (b) insert--
"; or
(c) the agent has complied with section
49B with respect to the outgoings for
the transaction.".
25 (2) After section 50(4) of the Principal Act insert--
"(4A) Without limiting sub-section (4), an estate
agent who demands, receives or retains an
amount in contravention of section 49B is
guilty of an offence and liable to a penalty
30 not exceeding--
(a) in the case of a natural person, 5 years
imprisonment or 600 penalty units or
both; or
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(b) in the case of a corporation, 600
penalty units.
(4B) An offence against sub-section (4A) is an
indictable offence.
5 (4C) In addition to imposing any penalty under
sub-section (4A), the Court may order that
the estate agent refund any excess or
improper amount received or retained by the
agent.".
10 8. Certain trust money not to be deposited into trust
accounts
(1) In section 59(1) of the Principal Act, for "Every"
substitute "Subject to sub-section (1A), every".
(2) After section 59(1) of the Principal Act insert--
15 "(1A) Sub-section (1) does not apply if--
(a) the person for whom or on whose
behalf the money is received gives the
agent, before or at the same time as the
agent receives the money, a written
20 direction to pay the money--
(i) to another person; or
(ii) in accordance with the direction;
and
(b) the agent complies with that direction.".
25 9. Costs of audit under section 64A
After section 64A(4) of the Principal Act,
insert--
"(5) The Director may recover the costs of an
audit conducted under this section from an
30 estate agent if the report of the audit reveals
that the agent has contravened this Act or the
regulations in relation to the keeping of trust
accounts.".
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s. 10
Act No.
10. Application of Fund to VCAT costs
After section 75(1)(f) of the Principal Act
insert--
"(fa) the costs and expenses incurred by or in
5 relation to the Tribunal in exercising its
jurisdiction under the Residential Tenancies
Act 1997, including the fees and
remuneration payable to the members of the
Tribunal;".
10 11. Application of excess money in Fund
After section 76(3)(f) of the Principal Act
insert--
"(g) advising, assisting or providing
information to or in respect of--
15 (i) purchasers or providers or
potential purchasers or providers
of domestic building services
under domestic building contracts;
or
20 (ii) other persons involved in the
provision of domestic building
services under domestic building
contracts;
(h) advising, assisting or providing
25 information in respect of credit
contracts within the meaning of the
Consumer Credit (Victoria) Code
relating to the purchase of real estate or
the purchase of domestic building
30 services under domestic building
contracts.".
_______________
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Estate Agents (Amendment) Act 1999
s. 12
Act No.
PART 4--INSPECTION POWERS
12. Amendment of definitions
In section 4 of the Principal Act insert--
' "inspector" means an inspector appointed under
5 the Fair Trading Act 1999;
"OFTBA Act" has the same meaning as it has in
the Fair Trading Act 1999;'.
13. Section 70 repealed
Section 70 of the Principal Act is repealed.
10 14. New Part VIIA inserted
After Part VII of the Principal Act insert--
'PART VIIA--INSPECTION POWERS
91A. Definitions
In this Part--
15 "financial institution" means--
(a) an authorised deposit-taking
institution within the meaning of
the Banking Act 1959 of the
Commonwealth; or
20 (b) a body approved by the Governor
in Council by order published in
the Government Gazette;
"licensed estate agent", except in section
91C, includes--
25 (a) a person whose licence has been
surrendered or cancelled within
the last 7 years; and
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(b) a person whose licence is
suspended; and
(c) a person who is a director or
officer of a corporation which is a
5 licensed estate agent; and
(d) if the licence of a corporation as
an estate agent has been
surrendered or cancelled within
the last 7 years, a person who was
10 a director or officer of the
corporation at the time the licence
was surrendered or cancelled; and
(e) if the licence of a corporation as
an estate agent has been
15 suspended, a person who was a
director or officer of the
corporation at the time the licence
was suspended; and
(f) a person who is an executor,
20 administrator or trustee (including
a trustee company within the
meaning of the Trustee
Companies Act 1984) of the
estate of a deceased estate agent
25 who is carrying on the business of
the estate agent pursuant to this
Act;
"money" includes an instrument for the
payment of money in any case where
30 an instrument may be paid into a bank;
"occupier" in relation to a premises, means
a person who appears to be of or over
16 years of age and who appears to be
in control of the premises;
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"trust account" includes any account of or
with respect to any money received or
held by a person in respect of any
transaction by that person as an estate
5 agent.
91B. Production of identity card
An inspector must produce his or her identity
card for inspection--
(a) before exercising a power under this
10 Part other than a requirement made by
post; and
(b) at any time during the exercise of a
power under this Part, if asked to do so.
Penalty: 10 penalty units.
15 91C. Accounts and other documents available
for inspection
(1) A licensed estate agent must at all reasonable
times at each office at which that estate agent
carries on business as an estate agent keep--
20 (a) all trust accounts which relate to the
business carried on by that agent at that
office; and
(b) all other documents relating to that
business--
25 available for inspection by an inspector in a
form in which they can be readily and
expeditiously inspected by an inspector.
Penalty: 25 penalty units.
(2) If the licence of a licensed estate agent has
30 been cancelled or surrendered in the last
7 years, the former licensed estate agent
must make all trust accounts and other
documents relating to the former business
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available for inspection by an inspector in a
form and at a place where they can be
readily and expeditiously inspected by an
inspector.
5 Penalty: 25 penalty units.
(3) If the licence of a licensed estate agent is
suspended, the suspended estate agent must
during the period of the suspension make all
trust accounts and other documents relating
10 to the business of the estate agent available
for inspection by an inspector in a form and
at a place where they can be readily and
expeditiously inspected by an inspector.
Penalty: 25 penalty units.
15 (4) An estate agent who has a principal office
outside Victoria pursuant to section 35(3B)
must when required by an inspector produce
or make available for inspection at the estate
agent's registered office or the Office of Fair
20 Trading and Business Affairs--
(a) all the trust accounts which relate to the
business carried on by the agent as an
estate agent in Victoria; and
(b) all other documents relating to that
25 business.
Penalty: 25 penalty units.
91D. Licensed estate agent to produce documents
and answer questions
For the purpose of monitoring compliance
30 with this Act or the regulations, an inspector
may require a licensed estate agent at a time
and place specified by the inspector--
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(a) to answer orally or in writing any
questions put by the inspector relating
to the estate agent's business as an
estate agent;
5 (b) to supply orally or in writing
information required by the inspector
relating to that business;
(c) to produce to the inspector specified
documents or documents of a specified
10 class relating to that business.
91E. Third parties to produce documents and
answer questions relating to specified
business
For the purpose of monitoring compliance
15 with this Act or the regulations, an inspector
may require any person who has possession,
custody or control of documents relating to a
licensed estate agent's business as an estate
agent--
20 (a) to answer orally or in writing any
questions put by the inspector relating
to the licensed estate agent's business as
an estate agent;
(b) to supply orally or in writing
25 information required by the inspector
relating to that business;
(c) to produce to the inspector specified
documents or documents of a specified
class relating to that business.
30 91F. Ministers, police and public authorities to
produce information to inspectors
(1) For the purpose of monitoring compliance
with this Act or the regulations, the Director
or an inspector may request a specified
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s. 14
Act No.
public body within a time specified by the
Director or inspector--
(a) to answer orally or in writing any
questions put by the inspector relating
5 to a licensed estate agent's business as
an estate agent;
(b) to supply orally or in writing
information required by the inspector
relating to that business.
10 (2) An inspector can only make a request under
sub-section (1) with the written consent of
the Director.
(3) A specified public body must comply with a
request under sub-section (1).
15 (4) In this section "specified public body"
means--
(a) a Minister; or
(b) a public statutory authority; or
(c) a municipal council; or
20 (d) the Chief Commissioner of Police.
91G. Certain other specified persons or bodies to
produce information
(1) For the purpose of monitoring compliance
with this Act or the regulations, the Director
25 or an inspector may require a specified
person or body within a time specified by the
Director or inspector--
(a) to answer orally or in writing any
questions put by the inspector relating
30 to a licensed estate agent's business as
an estate agent;
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(b) to supply orally or in writing
information required by the inspector
relating to that business.
(2) An inspector can only make a requirement
5 under sub-section (1) with the written
consent of the Director.
(3) In this section "specified person or body"
means--
(a) a person who is a publisher of a
10 publication; or
(b) a person who is the owner or operator
of a broadcasting service; or
(c) a person who is the owner or operator
of a telecommunications service; or
15 (d) a person who is the owner or operator
of a postal service; or
(e) a financial institution.
91H. Powers on production of documents
(1) If any documents are produced to an
20 inspector under section 91D or 91E, the
inspector may--
(a) inspect the documents or authorise a
person to inspect the documents;
(b) make copies of or take extracts from
25 the documents;
(c) seize the documents if the inspector
considers the documents necessary for
the purpose of obtaining evidence for
the purpose of any proceedings under
30 this Act or the regulations;
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(d) seize the documents if the inspector--
(i) considers the documents
necessary for the purpose of
obtaining evidence for the purpose
5 of any proceedings under any
OFTBA Act; and
(ii) believes on reasonable grounds,
that it is necessary to seize the
documents in order to prevent
10 their concealment, loss or
destruction or their use in the
contravention of any OFTBA Act;
(e) secure any seized documents against
interference;
15 (f) retain possession of the documents in
accordance with this Part.
(2) An inspector must not require a person to
produce a document at a place other than the
person's place of business or the Office of
20 Fair Trading and Business Affairs without
the consent of the person.
91I. Order requiring supply of information and
answers to questions
(1) For the purpose of monitoring compliance
25 with this Act or the regulations, an inspector,
with the written approval of the Director,
may apply to the Magistrates' Court for an
order requiring any person at a time and
place specified by an inspector--
30 (a) to answer orally or in writing any
questions put by an inspector relating to
a licensed estate agent's business as an
estate agent; or
(b) to supply orally or in writing
35 information required by an inspector in
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relation to a licensed estate agent's
business as an estate agent.
(2) If the Magistrates' Court is satisfied on the
basis of evidence presented by the Director
5 that the order is necessary for the purpose of
monitoring compliance with this Act or the
regulations, the Court may grant the order
sought.
(3) An order under this section must state a day,
10 not later than 28 days after the making of the
order, on which the order ceases to have
effect.
(4) An inspector who executes an order under
this section must, as soon as practicable after
15 that execution, notify the Magistrates' Court
in writing of the time and place of execution
of the order.
91J. Entry or search with consent
(1) For the purpose of monitoring compliance
20 with this Act and the regulations, an
inspector, with the consent of the occupier of
the premises, may--
(a) enter and search any premises;
(b) seize anything found on the premises
25 which the inspector believes on
reasonable grounds to be connected
with a contravention of this Act or the
regulations;
(c) examine and take and keep samples of
30 any goods found on the premises which
the inspector believes on reasonable
grounds to be connected with a
contravention of this Act or the
regulations;
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(d) inspect and make copies of, or take
extracts from, any document found on
the premises.
(2) An inspector must not enter and search any
5 premises with the consent of the occupier
unless, before the occupier consents to that
entry, the inspector has--
(a) produced his or her identity card for
inspection; and
10 (b) informed the occupier--
(i) of the purpose of the search; and
(ii) that the occupier may refuse to
give consent to the entry and
search or to the seizure of
15 anything found during the search;
and
(iii) that the occupier may refuse to
consent to the taking of any
sample of goods or any copy or
20 extract from a document found on
the premises during the search;
and
(iv) that anything seized or taken
during the search with the consent
25 of the occupier may be used in
evidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
must before entering the premises ask the
30 occupier to sign an acknowledgment in the
prescribed form stating--
(a) that the occupier has been informed of
the purpose of the search and that
anything seized or taken in the search
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with the consent of the occupier may be
used in evidence in proceedings; and
(b) that the occupier has been informed that
he or she may refuse to give consent to
5 the entry and search; and
(c) that the occupier has consented to such
an entry and search; and
(d) the date and time that the occupier
consented.
10 (4) If an occupier consents to the seizure or
taking of any thing during a search under this
section, the inspector must before seizing or
taking the thing ask the occupier to sign an
acknowledgment stating--
15 (a) that the occupier has consented to the
seizure or taking of the thing; and
(b) the date and time that the occupier
consented.
(5) An occupier who signs an acknowledgment
20 must be given a copy of the signed
acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
25 must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry and search or to the seizure or
taking of the thing.
91K. Entry without consent or warrant
30 (1) For the purpose of monitoring compliance
with this Act or the regulations, an inspector
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may (with the assistance, if necessary, of
another inspector or a member of the police
force) do all or any of the following--
(a) enter and search any premises at which
5 a licensed estate agent is carrying on
business at any time that the premises
are open for business or between the
hours of 9 a.m. and 5 p.m.;
(b) seize or secure against interference
10 anything that the Director or inspector
believes on reasonable grounds to be
connected with a contravention of this
Act or the regulations that is found on
or in the premises;
15 (c) inspect and make copies of or take
extracts from any document kept on the
premises.
(2) An inspector must not enter or search any
premises under sub-section (1) unless, before
20 that entry, the inspector has produced his or
her identity card for inspection by the
occupier of the premises.
91L. Search warrants
(1) An inspector, with the written approval of
25 the Director, may apply to a magistrate for
the issue of a search warrant in relation to
particular premises for the purpose of
monitoring compliance with this Act or the
regulations.
30 (2) If a magistrate is satisfied by the evidence,
on oath or by affidavit, of the inspector that
the warrant is necessary for the purpose of
monitoring compliance with this Act or the
regulations, the magistrate may issue a
35 search warrant, in accordance with the
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Act No.
Magistrates' Court Act 1989, authorising
an inspector named in the warrant, together
with any other person or persons named or
otherwise identified in the warrant and with
5 any necessary equipment--
(a) to enter the premises specified in the
warrant, if necessary by force; and
(b) to do all or any of the following--
(i) search for;
10 (ii) seize;
(iii) secure against interference;
(iv) examine and inspect;
(v) make copies of or take extracts
from--
15 a thing or things of a particular kind
named or described in the warrant and
which the inspector believes, on
reasonable grounds, to be connected
with a contravention of this Act or the
20 regulations.
(3) A search warrant issued under this section
must state--
(a) the purpose for which the search is
required; and
25 (b) any conditions to which the warrant is
subject; and
(c) whether entry is authorised to be made
at any time of the day or night or during
stated hours of the day or night; and
30 (d) a day, not later than 28 days after the
issue of the warrant, on which the
warrant ceases to have effect.
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(4) Except as provided by this Act, the rules to
be observed with respect to search warrants
under the Magistrates' Court Act 1989
extend and apply to warrants under this
5 section.
91M. Announcement before entry
(1) On executing a search warrant, the inspector
executing the warrant--
(a) must announce that he or she is
10 authorised by the warrant to enter the
premises; and
(b) if the inspector has been unable to
obtain unforced entry, must give any
person at the premises an opportunity
15 to allow entry to the premises.
(2) An inspector need not comply with sub-
section (1) if he or she believes on
reasonable grounds that immediate entry to
the premises is required to ensure--
20 (a) the safety of any person; or
(b) that the effective execution of the
search warrant is not frustrated.
91N. Details of warrant to be given to occupier
(1) If the occupier is present at premises where a
25 search warrant is being executed, the
inspector must--
(a) identify himself or herself to the
occupier; and
(b) give to the occupier a copy of the
30 warrant.
(2) If the occupier is not present at premises
where a search warrant is being executed, the
inspector must--
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(a) identify himself or herself to a person
(if any) at the premises; and
(b) give to the person a copy of the
warrant.
5 91O. Seizure of things not mentioned in the
warrant
A search warrant under section 91L
authorises an inspector executing the search
warrant, in addition to the seizure of any
10 thing of the kind described in the warrant, to
seize or take a sample of any thing which is
not of the kind described in the warrant if--
(a) the inspector believes, on reasonable
grounds, that the thing--
15 (i) is of a kind which could have been
included in a search warrant
issued under this Part; or
(ii) will afford evidence about the
contravention of any OFTBA Act;
20 and
(b) in the case of seizure, the inspector
believes, on reasonable grounds, that it
is necessary to seize that thing in order
to prevent its concealment, loss or
25 destruction or its use in the
contravention of this Act or any other
OFTBA Act.
91P. Embargo notice
(1) An inspector executing a search warrant who
30 is authorised by that warrant to seize any
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thing may, if the thing cannot, or cannot
readily, be physically seized and removed,
issue an embargo notice in the prescribed
form--
5 (a) by causing a copy of the notice to be
served on the occupier; or
(b) if the occupier cannot be located after
all reasonable steps have been taken to
do so, by affixing a copy of the notice
10 to the thing in a prominent position.
(2) A person who knows that an embargo notice
relates to a thing and who--
(a) sells; or
(b) leases; or
15 (c) without the written consent of the
inspector who issued the embargo
notice, moves; or
(d) transfers; or
(e) otherwise deals with--
20 the thing or any part of the thing is guilty of
an offence and liable to a penalty not
exceeding 100 penalty units.
(3) It is a defence to a prosecution for an offence
against sub-section (2) to prove that the
25 defendant moved the thing or the part of the
thing for the purpose of protecting and
preserving it.
(4) Despite anything in any other Act, a sale,
lease, transfer or other dealing with a thing
30 in contravention of this section is void.
91Q. Copies of seized documents
(1) If an inspector retains possession of a
document taken or seized from a person
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under this Part, the inspector must give the
person, within 21 days of the seizure, a copy
of the document certified as correct by the
inspector.
5 (2) A copy of a document certified under sub-
section (1) shall be received in all courts and
tribunals to be evidence of equal validity to
the original.
91R. Retention and return of seized documents
10 or things
(1) If an inspector seizes a document or
other thing under this Part, the
inspector must take reasonable steps to
return the document or thing to the
15 person from whom it was seized if the
reason for its seizure no longer exists.
(2) If the document or thing seized has not
been returned within 3 months after it
was seized, the inspector must take
20 reasonable steps to return it unless--
(a) proceedings for the purpose for
which the document or thing was
retained have commenced within
that 3 month period and those
25 proceedings (including any
appeal) have not been completed;
or
(b) the Magistrates' Court makes an
order under section 91S extending
30 the period during which the
document or thing may be
retained.
91S. Magistrates' Court may extend 3 month
period
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(1) An inspector may apply to the
Magistrates' Court within 3 months
after seizing a document or other thing
under this Part for an extension of the
5 period for which the inspector may
retain the document or thing.
(2) The Magistrates' Court may order such
an extension if it is satisfied that
retention of the document or other thing
10 is necessary--
(a) for the purposes of an
investigation into whether a
contravention of this Act or the
regulations has occurred; or
15 (b) to enable evidence of a
contravention of this Act or the
regulations to be obtained for the
purposes of a proceeding under
this Act or the regulations.
20 (3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
91T. Requirement to assist inspector during
entry
25 To the extent that it is reasonably necessary
to determine compliance with this Act or the
regulations, an inspector exercising a power
of entry under this Part who produces his or
her identity card for inspection by the
30 occupier of the premises or an agent or
employee of the occupier may require that
person--
(a) to give information to the inspector,
orally or in writing; and
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(b) to produce documents to the inspector;
and
(c) to give reasonable assistance to the
inspector.
5 91U. Refusal or failure to comply with
requirement
A person must not refuse or fail, without
reasonable excuse, to comply with a
requirement of the Director or an inspector
10 under this Part.
Penalty: 100 penalty units.
91V. Rule against self-incrimination does not
apply
(1) A person is not excused from answering a
15 question or producing a document under this
Part on the ground that the answer or
document might tend to incriminate the
person.
(2) If the person claims, before answering a
20 question, that the answer might tend to
incriminate them, the answer is not
admissible in evidence in any criminal
proceedings, other than in proceedings in
respect of the falsity of the answer.
25 91W. Offence to give false or misleading
information
A person must not--
(a) give information to an inspector under
this Part that the person believes to be
30 false or misleading in any material
particular; or
(b) produce a document to an inspector
under this Part that the person knows to
be false or misleading in a material
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particular without indicating the respect
in which it is false or misleading and, if
practicable, providing correct
information.
5 Penalty: 100 penalty units.
91X. Application of provisions relating to
inspections
Sections 120, 135, 136, 137, 138 and 139 of
the Fair Trading Act 1999 apply (with any
10 necessary modifications) in relation to the
exercise or attempted exercise of a power of
an inspector under this Part as if any
reference in those sections to Part 10 of that
Act were a reference to this Part.
15 91Y. Service of documents
(1) A written requirement by an inspector under
this Part may be given personally or by
registered post to a person--
(a) at the last known place of business,
20 employment or residence of the person;
or
(b) in the case of a body corporate, at the
registered office of the body corporate.
(2) A person who provides a document or
25 information in response to a requirement of
an inspector under this Part may send that
document or information to the Director at
the Office of Fair Trading and Business
Affairs by registered post.
30 91Z. Confidentiality
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(1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Part, give to any other
person, whether directly or indirectly, any
5 information acquired by the inspector in
carrying out those functions.
Penalty: 25 penalty units.
(2) Sub-section (1) does not apply to the giving
of information--
10 (a) to a court or tribunal in the course of
legal proceedings; or
(b) pursuant to an order of a court or
tribunal; or
(c) to the extent reasonably required to
15 enable the investigation or the
enforcement of a law of this State or of
any other State or Territory or of the
Commonwealth; or
(d) to the Authority; or
20 (e) with the written authority of the
Director; or
(f) with the written authority of the person
to whom the information relates.'.
15. New sections 92D and 92E inserted
25 After section 92C of the Principal Act insert--
"92D. Production of information to Authority
(1) The Authority may require a licensed estate
agent to answer any question or provide
information relating to the business of the
30 licensed estate agent that the Authority
reasonably requires to carry out its functions
in relation to that licensed estate agent.
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(2) A licensed estate agent must not refuse or
fail, without reasonable excuse, to comply
with a requirement made by the Authority
under this section.
5 Penalty: 100 penalty units.
92E. Rule against self-incrimination does not
apply
(1) A licensed estate agent is not excused from
answering a question or providing
10 information under section 92D on the ground
that the answer or the information might tend
to incriminate the licensed estate agent.
(2) If the licensed estate agent claims, before
answering a question, that the answer might
15 tend to incriminate the licensed estate agent,
the answer is not admissible in evidence in
any criminal proceedings, other than in
proceedings in respect of the falsity of the
answer.".
20 _______________
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Act No.
PART 5--INFRINGEMENT NOTICES
16. Division headings inserted
In Part VIII of the Principal Act--
(a) before section 92 insert--
5 "Division 1--Miscellaneous";
(b) before section 99 insert--
"Division 3--Regulations".
17. New Division 2 of Part VIII inserted
After section 97A of the Principal Act insert--
10 'Division 2--Infringement Notices
98. Definitions
In this Division--
"authorised officer" means--
(a) an inspector; or
15 (b) a member of the police force;
"prescribed offence" means an offence
against the regulations which has been
prescribed as an offence in respect of
which an infringement notice may be
20 issued.
98A. Power to serve a notice
(1) An authorised officer may serve an
infringement notice on any person that he or
she has reason to believe has committed a
25 prescribed offence.
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(2) An infringement notice may be served on a
person--
(a) by delivering it personally to the
person; or
5 (b) by sending it by post addressed to the
person's last known place of residence
or business.
98B. Form of notice
An infringement notice must state--
10 (a) the date of the notice;
(b) the provision of the regulations that
creates the offence;
(c) the nature, and a brief description, of
the alleged offence;
15 (d) the date, time and place of the alleged
offence;
(e) the infringement penalty for the alleged
offence;
(f) the manner in which the infringement
20 penalty may be paid;
(g) the time (being not less than 28 days
after the date on which the notice is
served) within which the infringement
penalty must be paid;
25 (h) that, if the amount of the infringement
penalty is paid before the end of the
time specified in the notice, the matter
will not be brought before the
Magistrates' Court unless the notice is
30 withdrawn within 28 days after the date
on which it was served;
(i) that the person is entitled to disregard
the notice and defend any proceedings
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in respect of the offence in the
Magistrates' Court;
(j) any other prescribed particulars.
98C. Infringement penalty
5 The infringement penalty for an offence
against the regulations is the amount
prescribed by the regulations as the
infringement penalty for that offence.
98D. Late payment of penalty
10 An authorised officer may accept payment of
the infringement penalty even after the
expiration of the time for payment stated in
the infringement notice if--
(a) neither a charge has been filed nor a
15 courtesy letter served under Part 2 of
Schedule 7 to the Magistrates' Court
Act 1989 in respect of the offence to
which the infringement penalty relates;
and
20 (b) the infringement notice has not been
withdrawn.
98E. Withdrawal of notice
(1) An authorised officer may withdraw an
infringement notice at any time within
25 28 days after the date on which the notice
was served by serving a withdrawal notice
on the person served with the infringement
notice.
(2) A withdrawal notice may be served on a
30 person--
(a) by delivering it personally to the
person; or
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(b) by sending it by post addressed to the
person's last known place of residence
or business.
(3) An infringement notice may be withdrawn
5 even if the infringement penalty has been
paid.
(4) If an infringement notice is withdrawn, the
amount of any infringement penalty paid
must be refunded and the Consolidated Fund
10 is, to the necessary extent, appropriated
accordingly.
98F. Payment expiates offence
If an infringement notice is not withdrawn
and the infringement penalty is paid within
15 the time for payment stated in the notice or is
accepted in accordance with section 98D,
then--
(a) the person on whom the notice was
served has expiated the offence by that
20 payment; and
(b) no proceedings may be taken against
that person in respect of that offence;
and
(c) no conviction is to be taken to have
25 been recorded against that person for
that offence.
98G. Payment not to have certain consequences
(1) The payment of an infringement penalty
under this Division is not and must not be
30 taken to be--
(a) an admission of guilt in relation to the
offence; or
(b) an admission of liability for the purpose
of any civil claim or proceeding arising
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out of the same occurrence and the
payment does not in any way affect or
prejudice any such claim or proceeding.
(2) The payment of an infringement penalty
5 under this Division must not be referred to in
any report provided to a court for the
purpose of determining sentence for an
offence.
98H. Prosecution after service of infringement
10 notice
A charge may be filed in respect of an
offence to which an infringement notice
relates if--
(a) the infringement penalty has not been
15 paid within the time for payment stated
in the notice or in accordance with
section 98D; or
(b) the notice is withdrawn.
98I. Enforcement of infringement penalty
20 Payment of the infringement penalty may be
enforced in accordance with Part 2 of
Schedule 7 to the Magistrates' Court Act
1989 if--
(a) the infringement notice is an
25 infringement notice within the meaning
of Schedule 7 to that Act; and
(b) the infringement penalty has not been
paid within the time stated in the notice
or in accordance with section 98D; and
30 (c) the notice has not been withdrawn; and
(d) a charge has not been filed in
accordance with section 98H.
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98J. Tribunal inquires and disciplinary actions
not affected
Nothing in this Division prevents the
Tribunal from conducting an inquiry under
5 section 25 or 28 and taking disciplinary
action under section 28A against a person for
any act or omission for which an
infringement notice was issued.'.
18. Amendment of regulation-making powers
10 After section 99(gg) of the Principal Act, insert--
"(gh) prescribing, for the purposes of Division 2 of
Part VIII--
(i) the offences under the regulations in
respect of which an infringement notice
15 may be issued; and
(ii) the penalties that apply if those
offences are dealt with by infringement
notice;".
_______________
20
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s. 19
Act No.
PART 6--FUNDRAISING APPEALS ACT 1998
19. Meaning of "fundraising appeal"
No. 78/1998. In section 5(3)(c) of the Fundraising Appeals
Act 1998--
5 (a) in sub-paragraph (ii), after "who" insert "is
or";
(b) in sub-paragraph (iii) omit "a member of the
organisation or".
10
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
39
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Act No.
40
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