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1
Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions)
Bill 2004
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004.
Policy Objectives of the Legislation
The policy objective of the Legislation is to ensure that statutes
administered by the Department of Tourism, Fair Trading and Wine
Industry Development (the Department) continue to operate in the manner
intended.
Reasons for the Bill
The Department is responsible for the administration of over 70 Acts.
There is a necessity for minor and technical amendments to be made
regularly to various legislative provisions to ensure that the statutes
continue to operate in the manner intended.
Amendments are required for the following Acts:
· Associations Incorporation Act 1981;
· Bills of Sale and Other Instruments Act 1955;
· Body Corporate and Community Management Act 1997;
· Building Act 1975;
· Building Units and Group Titles Act 1980;
· Business Names Act 1962;
· Charitable Funds Act 1958;
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
· Collections Act 1966;
· Commercial and Consumer Tribunal Act 2003;
· Cooperatives Act 1997;
· Fair Trading Act 1989;
· Funeral Benefit Business Act 1982;
· Introduction Agents Act 2001;
· Land Sales Act 1984;
· Liquor Act 1992;
· Manufactured Homes (Residential Parks) Act 2003;
· Motor Vehicles and Boats Securities Act 1986;
· Property Agents and Motor Dealers Act 2000;
· Racing Act 2002;
· Residential Services (Accreditation) Act 2002;
· Retirement Villages Act 1999;
· Second-hand Dealers and Pawnbrokers Act 2003;
· Security Providers Act 1993;
· Tourism Services Act 2003; and
· Wine Industry Act 1994.
Achieving the Objectives
The Bill contains a number of relatively minor and technical amendments
to other Acts administered by the Department; one Act administered jointly
with the Department of Natural Resources and Mines; one Act
administered by the Department of Local Government and Planning; and
one Act administered by the Department of Housing, which will ensure
that these Acts continue to operate in the manner intended.
Administrative costs
Any financial impact from the development and implementation of
activities or initiatives in the Bill will be met from the Department's
existing budget allocations.
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
Fundamental Legislative Principles
None of the amendments raise issues relating to Fundamental Legislative
Principles.
Consultation
Community
The proposed amendments generally only address deficiencies and
therefore do not require industry consultation.
In relation to the Cooperatives Act 1997, the national Cooperatives
Working Party, comprising the cooperative registry representatives of
Queensland, New South Wales, Victoria, South Australia, Western
Australia, Tasmania, Northern Territory and Australian Capital Territory
was consulted in relation to amendments affecting sections 10(3)(d),
256(1) and section 266(2).
The Motor Trades Association of Queensland and Dealers Network
Systems were consulted in relation to amendments to the Property Agents
and Motor Dealers Act 2000 in relation to:
(a) statutory warranty for motor vehicles; and
(a) used motor vehicles contract warning statements.
Government
Key government stakeholders involved in consultation include the
Queensland Treasury and the Department of State Development (Business
Regulation Reform Unit).
The Department of Justice and the Attorney-General was consulted on the
proposed amendment to section 4(a) of the Property Agents and Motor
Dealers Act 2000 and the increase in monetary penalty proposed for
section 17 Business Names Act 1962; the Department of Housing in
relation to the proposed amendments to the Racing Act 2002; the
Department of Local Government and Planning in relation to the Building
Act 1975; and the Department of Natural Resources and Mines in relation
to the Land Sales Act 1984 and the Building Units and Group Titles Act
1980.
No concerns have been raised in relation to the proposed amendments.
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
Notes on Provisions
Clause 1 sets out the short title by which the Act will be known.
Clause 2 provides that the Schedule amends the Acts mentioned in the
Schedule.
Schedule Acts Amended
Associations Incorporation Act 1981
Item 1 amends a reference to a section in the Corporations Act 2001
(Cwlth) as a result of renumbering of the Commonwealth legislation.
Bills of Sale and Other Instruments Act 1955
Item 1 amends section 18I(8) of the Bills of Sale and Other Instruments Act
1955 by removing the reference made to subsection (4) and replacing it
with a reference to subsection (5). This rectifies a technical numbering
error.
Body Corporate and Community Management Act 1997
Items 1 and 2 and 4 address minor drafting or grammatical issues.
Items 3 and 5 address incorrect references to sections.
Building Act 1975
Decisions made under the Building Act 1975 are reviewable by either a
building and development tribunal or the Commercial and Consumer
Tribunal.
Item 1 amends section 3(1) by omitting the two definitions of "tribunal" in
the section. Item 2 inserts the definitions of "building and development
tribunal" and "Commercial and Consumer Tribunal". This will assist in
clarifying which tribunal's jurisdiction is relevant to other provisions of the
Act.
As a consequence, items 3, 4, 5, 6, 8, 9 and 10 contain amendments which
complement items 1 and 2 by replacing the word "tribunal" with "building
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
and development tribunal" or "Commercial and Consumer Tribunal" as
appropriate.
Item 7 amends section 30B(2)(d) by inserting the word "building" before
the word "certifier" in order to make it consistent with the wording in other
subsections and thereby avoid any ambiguity.
Building Units and Group Titles Act 1980
Items 1, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, and 16, replace references to
maximum penalties expressed in dollar figures with maximum penalties
expressed in penalty units, consistent with current drafting practice.
Item 2 inserts a definition of `qualified auditor'. The Act currently requires
a person auditing books to be a registered public accountant under the
Public Accountants Registration Act 1946, which was repealed in 1990.
The new definition is in line with similar provisions in other statutes.
Item 3 replaces section 29(2)(h) and item 4 inserts a new section 29(2AA)
for clarity.
Items 9 and 25 make amendments to refer to a `qualified auditor' to
complement the amendment in item 2.
Items 17 to 24, 26 to 37 are minor technical drafting amendments to reflect
current practice and ensure clarity.
Business Names Act 1962
Item 1 amends section 5(2)(a)(iv) to address a minor drafting issue.
Item 2 amends section 13(2) consequent to the amendment in item 3 and to
avoid duplication.
Item 3 deletes and replaces section 17 which provides a penalty for making
a false statement to the registrar. The operation of the current section is
limited as it only applies to `statements'. However, people requiring a
business name may supply information through supporting documentation.
This documentation does not fall within the definition of `statement'. The
amendment is required to ensure the integrity of all information to be
supplied to the registrar.
The maximum penalty for breach of the current Item 17 is 4 penalty units
or 3 months imprisonment. The penalty when the Act was passed in 1962
was 100 pounds or three months imprisonment. On decimalization in
1966, this would have translated to $200. In 1995 this was translated into 4
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
penalty units, currently totalling $300. The monetary penalty no longer
reflects the seriousness with which this matter was viewed in 1962 and
there is therefore a great disparity between the possible fine and the term of
imprisonment. The replacement for section 17 raises the maximum
monetary penalty for an offence of this nature from 4 penalty units to 100
penalty units. The amendment is within current parameters. For example,
the Property Agents and Motor Dealers Act 2000 has a penalty of 200
penalty units or 2 years imprisonment for providing false information or
making a false statement to a departmental official in relation to that Act.
In addition, the court may order the cancellation of the registration of a
business name where there is a conviction under the new section 17
regarding false or misleading information provided to the registrar in
relation to an application for registration of a business name. To maintain
the registration in this situation is not acceptable as holding a registered
business name provides a business with some legitimacy for consumers.
However, it is considered that the court should make this judgment in the
light of all the facts before it and other penalties imposed.
If the court orders that the registration be cancelled, the registrar,
immediately before cancellation, must give notice in writing to all those
who hold the registration that this has occurred so that any persons not
involved in the false or misleading conduct are aware of the cancellation.
Item 4 renumbers the current sections 19A and 19B as 19B and 19C
respectively due to the insertion of new section 19A in item 5.
Item 5 inserts a new section 19A which empowers the registrar to cancel
the registration of a business name if it is found that prescribed proof of
identity was not provided as required by section 7(2). The registrar already
has power to cancel registration in other situations under section 19. Under
the new section 19A, a notice must be provided to the holder giving them
the opportunity to provide the proof of identity and, if this is not complied
with, a further notice must be given advising that the business name is
cancelled.
The provisions in section 19 permitting a person to whom a business name
was registered to apply to the District Court for an order directing the
registrar to restore the registration of the business name and associated
orders where the registrar has cancelled the business name, are extended to
cover cancellations under the new section 19A.
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Tourism, Fair Trading and Wine Industry
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Charitable Funds Act 1958
Item 1 amends a reference to a section in the Corporations Act 2001
(Cwlth) as a result of renumbering of the Commonwealth legislation.
Collections Act 1966
Item 1 amends a reference to a section in the Corporations Act 2001
(Cwlth) as a result of renumbering of the Commonwealth legislation.
Commercial and Consumer Tribunal Act 2003
Item 1 resolves a drafting error by amending section 47(6)(c) of the
Commercial and Consumer Tribunal Act 2003 by omitting the term
"mediation" and inserting the term "proceeding", which was the original
intention.
Item 2 resolves a minor error by amending the heading of section 73 of the
Tribunal Act to refer to "div 8" instead of "div 7".
Item 3 resolves a minor typographical error by correcting the name of the
Act referred to.
Item 4 resolves an incorrect reference to section 93 in section 97, referring
instead to section 94.
Item 5 removes an unnecessary heading.
Cooperatives Act 1997
Item 1 makes an amendment which, in effect, inserts a new subsection (c)
and renumbers the current sections 10(3)(c) and (d).
The Financial Services Reform Act 2001 (Cwlth) substituted a new Chapter
7 (Financial Services and Markets) for Chapters 7 and 8 of the
Corporations Act 2001 (Cwlth). The Financial Services Reform
(Consequential Amendments) Act 2003 (Qld) amended references or
terminology in relevant Queensland Acts, including the Cooperatives Act
1997, to ensure that they were consistent with the substituted provisions
regulating financial services and markets in the Corporations Act 2001.
However, continuous disclosure provisions applicable to cooperatives were
placed in Chapter 6CA instead of the substituted Chapter 7 Corporations
Act 2001. Appropriate reference was not made to Chapter 6CA in the
Cooperatives Act. The amendment in item 1 rectifies this situation.
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
Item 2 resolves a numbering error.
Item 3 amends section 256(1) for the reasons set out above in relation to
item 1.
Item 4 renumbers section 266(3) as section 266(4) as a result of the
amendments in item 5.
Item 5 amends section 266(2) to allow a rebate or dividend payable to a
member to be applied as a loan to a cooperative, not only where the
member consents, but also if the loan is authorised by a cooperative's rules.
The Act currently only allows this to happen with the consent of a member.
There are currently 2 cooperatives that operate a members' loan fund under
their rules for the application of any dividend or rebate retained by the
cooperative. This practice was permitted under the repealed Cooperative
and Other Societies Act 1967.
Industry has approached the Ministerial Council on Consumer Affairs
(MCCA) national Cooperatives Working Party to request that the practice
be reinstated in legislation due to potential risks where members take
dividends or rebates and the cooperative is not financially able to bear this.
The safeguard is that should a cooperative wish to include such provisions
in its Rules, this would require a special resolution for the amendment of
the Rules which further requires the agreement of a two thirds majority at a
general meeting of members. A new cooperative, in relation to the Rules,
has to have agreement of two thirds of its proposed members attending the
formation meeting. If the Rules do not provide for such loans, any loan
could only be with a member's consent.
Item 6 amends section 287(8) to make it clear that the reference to section
746 Corporations Law is a reference to the repealed Corporations Law.
Item 7 amends section 329(1) to make it clear that the reference to part
5.7A Corporations Law is a reference to the repealed Corporations Law.
Items 6 and 7 are an interim measure. The Cooperatives Act 1997 is part of
a nationally harmonised scheme and these sections will be referred to the
MCCA Cooperatives Working Party for further consideration on the
redrafting of the sections in light of the repeal of the Corporations Law.
Fair Trading Act 1989
Item 1 inserts a definition of the term `TPA' which is currently lacking
although used extensively throughout the Act.
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
Item 2 replaces sections 5A(a) and (b) with redrafted sections for greater
readability and clarity.
Item 3 amends section 25(1) to allow the Minister to appoint a member to
the Consumer Safety Committee for up to 3 years. Section 25(1) currently
provides that each member of the Committee shall be appointed for a term
of 3 years ending on the same day as every other appointee. However, this
is not workable when members do not see out their full term and a person is
appointed to fill a casual vacancy.
Item 4 amends section 26(2) of the Act to permit a person who is appointed
to fill a casual vacancy to hold that position for the remaining period of the
vacancy only.
Item 5 addresses a minor drafting issue.
Item 6 removes reference to section 61 of the Trade Practices Act 1974
(Cwlth) as section 61 was repealed in amendments passed in 2002.
Items 7, 9 and 10 address grammatical or typographical errors.
Item 8 removes a reference in a heading to a repealed section of the Trade
Practices Act 1974 (Cwlth).
Item 11 redrafts part of section 112(1)(b)(ii) to improve readability.
Item 12 addresses a minor drafting issue.
Funeral Benefit Business Act 1982
Item 1 addresses a minor drafting issue.
Item 2 amends the definition of "registrar" in section 5 to complement the
amendment under item 3.
Item 3 replaces section 6 to specify that the chief executive is appointed as
the registrar of funeral benefit businesses.
Items 4 to 20 contain a number of amendments to address minor drafting or
grammatical issues to ensure accuracy or clarity.
Introduction Agents Act 2001
Item 1 inserts a new section 89A to provide the chief executive with the
power to enforce an undertaking through application to the District Court.
Item 1 also inserts a new section 89B to provide for the keeping of a
register of undertakings.
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
These new sections remedy practical deficiencies in the Act. Unless the
chief executive can enforce an undertaking, the effectiveness of section 88
(Undertakings about contravention of Act) is seriously reduced. This is to
be achieved through the District Court, ensuring procedural fairness. It is
also good practice to keep a register of such undertakings. Both of these
issues are addressed in a similar manner in other fair trading legislation
such as the Property Agents and Motor Dealers Act 2000.
Land Sales Act 1984
Item 1 amends section 9(6) to ensure that where a cadastral surveyor stakes
a proposed allotment to indicate its boundaries under section 9(3)(e)(i), this
is not regarded as a survey mark which would then require the surveyor to
lodge plans with the chief executive or Registrar of Titles under section
16(1) Survey and Mapping Infrastructure Act 2003.
Item 2 amends section 21(5)(b) to rectify an incorrect reference due to
amendments made to the Body Corporate and Community Management
Act 1997 in 2003. The Land Sales Act 1984 was not amended at the time to
reflect this change.
Liquor Act 1992
Item 1 amends section 4 by omitting the definitions of "presiding case
manager" and "registrar".
Item 2 amends section 4 by inserting a definition of "director" to mean the
director appointed under the Commercial and Consumer Tribunal Act
2003.
Items 3, 4 and 5 omit all references to `registrar' and `registrar of the
tribunal' and replace them with references to `director'.
These amendments are necessary to ensure that the correct terminology is
used in the Act in relation to the Commercial and Consumer Tribunal in
light of the passing of the Commercial and Consumer Tribunal Act 2003
which is relevant to the operation of the Liquor Act.
Item 6 omits section 232A as this provision is a duplicate of a provision in
the Commercial and Consumer Tribunal Act 2003. Section 232A should
have been removed with other sections dealing with tribunal procedure
which are now dealt with in the Tribunal Act.
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Tourism, Fair Trading and Wine Industry
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Manufactured Homes (Residential Parks) Act 2003
Item 1 addresses a numbering error.
Items 2 and 3 make amendments to sections 49(5) and (6) to complement
the amendment in item 4.
Item 4 replaces section 50. The current section 50 provides that where a
home owner wishes to sell his or her home, but the park owner does not
agree to the assignment of the home owner's interest in the site to the
proposed buyer, then the seller (the home owner) may apply to the Tribunal
for a review of the park owner's decision. In deciding the application, the
Tribunal may confirm or override the park owner's decision and may
require the park owner to consent to the assignment of the home owner's
interest.
The Tribunal has two heads of power under which it can hear matters:
section 102 of the Commercial and Consumer Tribunal Act 2003 (the
Tribunal Act) which deals with applications for review of a reviewable
decision; and section 113 which provides that the Tribunal may hear and
decide matters that it may hear and decide under an empowering Act (as
defined).
By defining the dispute between the park owner and home owner as a
review of the park owner's decision, a strict legal interpretation of section
50 of the Manufactured Homes (Residential Parks) Act 2003 (MHRP Act)
means that it falls under section 102 of the Tribunal Act. However, the
policy intention behind section 102 was that it would apply to decisions
made by government departments or other official bodies. For example,
applications already listed in Schedule 2 of the Commercial and Consumer
Tribunal Regulation 2003 as being under the head of power in section 102
include reviews of some decisions made by the chief executive under the
Property Agents and Motor Dealers Act 2000 and the Architects Board
under the Architects Act 2002.
The consequences of a matter concerning a disagreement of an assignment
under the MHRP Act coming within the head of power under section 102
of the Tribunal Act are clearly unsuited to the circumstances of section 50
of the MHRP Act. For example-
· a park owner may fall within the term "State agency". Although
it was not intended to capture entities other than government
departments or official bodies, the definition of "State agency" is
broad enough for park owners to fall within it; and
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Tourism, Fair Trading and Wine Industry
Development (Miscellaneous Provisions) Bill 2004
· the home owner and the park owner would have to follow a strict
procedure which is inappropriate for individuals using the
Tribunal in order to obtain access to justice in a relatively
inexpensive and timely manner.
The Bill amends section 50 by allowing the Tribunal, on application by the
seller whose request for consent to an assignment has been refused, to
decide whether the park owner has unreasonably refused to consent to the
assignment. If it finds that this is the case, the Tribunal may make an order
that the park owner sign the form of assignment, thereby giving consent.
The Bill also provides that despite the failure of the park owner to comply
with the order and sign the assignment within 7 days, the park owner is
deemed to have consented after 7 days so that the home owner may
proceed with a sale. To remove all doubt, new section 50(6) confirms that
an application is to be dealt with under section 113 of the Tribunal Act.
This ensures that all applications involving disputes between home owners
and park owners are all dealt with in the same manner.
Item 5 amends section 132(3)(a) removing the reference to the term "head
office" as the Department's head office is not a place open to the public and
it is not therefore possible for a person to view a register there. Since
public offices will change from time to time and there are offices in
regional areas of Queensland, the provision is changed to a flexible one
which allows the chief executive to nominate where the register will be
available.
Item 6 inserts a new section 155 to address the situation where an
application has been lodged in relation to refusal of an assignment, but not
finalized, before the Bill is passed. It provides that the matter will progress
as if it were an application under the new provision since this will be of
greater assistance to the parties.
Motor Vehicles and Boats Securities Act 1986
Item 1 addresses a minor drafting issue.
Property Agents and Motor Dealers Act 2000
Item 1 amends section 4(a) to specifically exempt a Supreme, District or
Magistrate Court bailiff acting within that office from the auctioneer's
licensing and regulation provisions in Chapter 7 of the Act.
This amendment allows exemptions in relation to actions of a bailiff in line
with other exemptions from the licensing and regulation of auctioneers'
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Tourism, Fair Trading and Wine Industry
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provisions in Chapter 7 where court processes are involved, for example, a
sale ordered by the sheriff under any process issued out of a court.
Item 2 inserts a new section 49(6) to remove the three month waiting
period to remedy possible injustice in certain corporate licence
applications.
Where a corporate applicant is refused a licence, the directors sometimes
sell the business, in the form of the corporation, to another person. If the
corporation lodges a second application within 3 months, the second
application will be refused because section 49(5) prevents applicants from
lodging another application for a licence within 3 months of refusal of a
licence. In these circumstances refusal of a corporate licence is through no
fault of the new owners of the corporation. However, item 2 also provides
safeguards to ensure that any sale is genuine and is not a mechanism to
avoid the provisions of section 49(5).
Items 3 and 4 amend section 57 by deleting section 57(2)(d)(iv) and
inserting a new subsection (4A) so that on renewal of a licence an applicant
only has to lodge 2 certified recent colour photographs when required to do
so by the chief executive. Industry has advised that the provision of
photographs for each application for renewal of a licence is a financial and
administrative burden.
Items 5 and 6 similarly amend section 60 with respect to restoration of a
licence; items 8 and 9 amend section 94 with respect to renewal of an
employee's registration certificate; and items 10 and 11 amend section 97
with respect to restoration of an employee's registration certificate.
Item 7 amends section 80(3)(a) by removing the reference to the term
"head office" as the Department's head office is not a place open to the
public and it is not therefore possible for a person to view a register there.
Since public offices will change from time to time and there are offices in
regional areas of Queensland, the provision is changed to a flexible one
which allows the chief executive to nominate where the register will be
available.
Item 12 amends section 117(4) (restriction on remedy for reward or
expense with respect to restricted letting agents) to make it consistent with
similar provisions for real estate agents, auctioneers and pastoral house
licencees. It allows restricted letting agents only to claim for expenses as
agreed in their appointment and actually expended.
Items 13 and 14 amend sections 132(1)(b) and 132(2)(b) to allow a
restricted letting agent to be in charge of a real estate agent's other place of
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Tourism, Fair Trading and Wine Industry
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business where that business is only for the letting of lots and collection of
rent in a building complex. This is to remove any ambiguity as to whether
a real estate agent with more than one place of business may employ a
restricted letting agent, rather than a real estate agent, to take charge of the
real estate agent's other place of business in these limited circumstances.
Item 15 inserts a new section 132(4) to provide a definition to complement
the amendments in items 13 and 14.
Item 16 inserts a new section 133(1) to ensure that it is clear that a real
estate agent can only perform an activity for a person after that person
appoints the real estate agent in writing in accordance with section 133.
Some real estate agents have been interpreting the current section in such a
way that allows them to advertise a property when they have not been
instructed to do so and hold no written authority.
Item 17 inserts a definition of `time of taking possession' in section 234 to
complement the new section 236 inserted by item 18.
Item 18 omits section 236 and replaces it with a new section 236 to ensure
that the warranty period in relation to a used vehicle commences whenever
the buyer takes possession of the vehicle, rather than when the property in
the vehicle passes.
This amendment addresses the situation where a buyer pays for a motor
vehicle by cheque and the auctioneer protects their interests by adding a
clause in the standard sale of a motor vehicle contract to the effect that
ownership in the vehicle does not pass to the buyer until the amount
represented by the cheque has been cleared by the respective financial
institution.
Items 19 and 20 amend section 240 to provide consistency of terminology
and complement the changes made in items 17 and 18.
Item 21 replaces section 241 to ensure that the warranty notice required
under the section must be given immediately after the buyer enters into a
contract for the purchase of a used motor vehicle, rather than when
property in the vehicle passes, and thereby give effect to the original policy
intention of the provision. Item 21 also deletes the provisions which
prescribe the information that must appear on the approved form of the
warranty notice. The current provisions result in loss of flexibility in
relation to the design of the form and reduced effectiveness as a result. In
addition, the new item makes reference to `after the purchase' rather than
`after the sale' to be consistent with wording in other provisions.
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Tourism, Fair Trading and Wine Industry
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Items 22 to 24 are also amended to use the phrase `time of taking
possession' to ensure that the terminology is consistent and clear.
Item 25 amends section 300(3)(c) by omitting the words "in the way
prescribed under a regulation".
Section 300 of the Act requires a motor dealer to give a prospective buyer
of a used motor vehicle a written statement in the approved form informing
the buyer about the buyer's rights when buying the vehicle. Section
300(3)(c) provides that "the statement must include......... a clear
statement, in the way prescribed under a regulation, that the prospective
buyer may avoid any contract for the purchase of the vehicle from the
motor dealer during the cooling-off period". Section 27 of the Property
Agents and Motor Dealers Regulation 2001 (the Regulation) prescribes a
lengthily worded statement relating to the cooling-off period that must
appear on the approved form for the purposes of section 300(3)(c) of the
Act.
The prescriptive nature of section 300(3)(c) of the Act and section 27 of the
Regulation results in very little flexibility when redesigning the approved
form and, in particular, a more effective statement relating to cooling-off
rights. This flexibility will be provided while still preserving the right of a
prospective buyer to be properly and clearly informed about their cooling-
off rights by removing the reference in section 300(3)(c) to the form of the
statement being "in the way prescribed under a regulation".
Item 26 deletes section 300(3)(g) to complement the amendment to section
300(3)(c) under item 25.
Item 27 inserts a definition of `time of taking possession' in section 312 to
complement the new section 314 inserted by item 29. Item 28 replaces the
definition of `warrantor' for the same reason.
Item 29 omits section 314 and replaces it with a new section 314 to ensure
that the warranty period in relation to a used vehicle commences whenever
the buyer takes possession of the vehicle, rather than when the property in
the vehicle passes.
This amendment addresses the situation where a buyer pays for a motor
vehicle by cheque and the motor dealer protects their interests by adding a
clause in the standard sale of a motor vehicle contract to the effect that
ownership in the vehicle does not pass to the buyer until the amount
represented by the cheque has been cleared by the respective financial
institution.
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Tourism, Fair Trading and Wine Industry
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Item 30 replaces section 317 to ensure that the warranty notice required
under the section must be given before the buyer enters into a contract for
the purchase of a used motor vehicle, rather than when property in the
vehicle passes, and thereby give effect to the original policy intention of the
provision. Item 30 also deletes the provisions which prescribe the
information that must appear on the approved form of the warranty notice.
The current provisions result in loss of flexibility in relation to the design
of the form and reduced effectiveness as a result. In addition, the new
section makes reference to `before the purchase' rather than `before the
sale' to be consistent with wording in other provisions.
Items 31 to 33 are also amended to use the phrase `time of taking
possession' to ensure that the terminology is consistent and clear.
Item 34 amends a reference to a section in the Corporations Act 2001
(Cwlth) as a result of renumbering of the Commonwealth legislation.
Item 35 amends section 469 by omitting the reference to section 60 of the
repealed Auctioneers and Agents Act 1971. This was a drafting error as
section 60 (guarantee of title to motor vehicles) has no relevance
whatsoever to section 469 (definition of a "marketeering contravention").
Item 36 inserts a new section 472(5) to ensure that a claimant, who
commences proceedings in the Small Claims Tribunal within the relevant
time periods for making a claim, may also make a claim under section
472(3).
Section 472(2) currently sets the time periods for making a claim against
the Claim Fund in relation to the purchase of a non-investment residential
property, other than a claim because of, or arising out of, a marketeering
contravention. If a claimant commences proceedings in a court to recover
financial loss within those time periods, section 472(3) of the Act also
permits a claimant to make a claim against the Fund within 3 months after
proceedings in the court end. A large number of claimants have sought
redress in the Small Claims Tribunal. This provision removes the
ambiguity of whether the Small Claims Tribunal is a court for the purposes
of section 472(3) and ensures that a claimant who commences proceedings
in the Small Claims Tribunal within the relevant time periods for making a
claim, may also make a claim under section 472(3) against the Fund.
Item 37 amends the heading to section 473 for greater clarity.
Item 38 replaces section 476 of the Act. Under the current section, where a
claim against the Claim Fund is not settled within 28 days of the claim
having been given to the respondent, the claimant can then apply for the
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matter to be dealt with by the chief executive if it is a minor claim (the
amount concerned is under $5,000), or by the Commercial and Consumer
Tribunal if it is not a minor claim. This process simply repeats the process
the claimant followed when originally lodging a claim form with the Office
of Fair Trading and unnecessarily increases the time it takes to resolve a
claim. The amendment does not affect a person's rights in having the
matter determined. It provides that the claimant simply notify the chief
executive in writing if they wish to proceed with their claim.
Item 39 amends sections 478(2) and (3) in order to provide a designated
period of 14 days for comments to be provided in relation to an inspector's
report where there is a claim with respect to the Claim Fund. This is to
address the problem that the Act does not currently set down a time limit,
instead allowing the chief executive a discretion in the time to be provided
for comment (subject to a minimum of 7 days). The chief executive is often
challenged on the time allowed for comment. If a 14 day period is required
in the Act, this will avoid unnecessary disputes and provide clarity.
Item 40 inserts a new section 490(4) requiring that a letter of demand be
sent by the chief executive to a person from whom reimbursement of
monies paid out from the Claim Fund can be claimed before action is
commenced to recover the debt.
Where a claim against the Claim Fund is successful, and a person is named
as responsible for that loss, the chief executive may recover the amount as a
debt. Sections 490 and 491 as contained in the Act when passed by
Parliament in 2000 were omitted and replaced by a new section 490 in
amendments passed in 2002. The amended section did not retain the
requirement that a letter of demand be sent in relation to the debt.
However, it has been regarded as good practice to send a letter of demand
and it can be cost effective where the debtor pays in response to the letter,
thus avoiding the necessity for further court proceedings. The Office of
Fair Trading has therefore continued to send a letter but it is appropriate
that this be a legislatively mandated part of the process to ensure
procedural fairness.
Item 41 consequently amends the Act by removing references to section
491, since that section no longer exists, and replacing them with references
to the new section 490(4).
Item 42 amends section 572(3)(a) by removing the reference to the term
"head office" as the Department's head office is not a place open to the
public and it is not therefore possible for a person to view a register there.
Since public offices will change from time to time and there are offices in
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regional areas of Queensland, the provision is changed to a flexible one
which allows the chief executive to nominate where the register will be
available.
Item 43 addresses an incorrect reference due to changes which have been
made to the Body Corporate and Community Management Act 1997.
Item 44 contains transitional provisions to ensure that there is no confusion
as to the situation in relation to statutory warranties existing at the time the
amendments in the Bill become effective.
Items 45 and 46 replace the current definition of `beneficial interest' to
complement the amendment to section 49 in item 2. The term as used in
new section 49(6) has its usual common law meaning.
Item 46 also provides a definition of `actually expended' with respect to
expenses incurred when acting for a client under sections 117(4), 141(3),
180(3) and 218(3).
This is to ensure that restricted letting agents, real estate agents,
auctioneers and pastoral house licencees not only cannot claim for
expenses unless they actually paid the monies out, but are also not able to
retain any rebates, discounts or other benefits associated with the expenses.
Racing Act 2002
Items 1 to 7 make amendments which reflect the current role of the director
of the Commercial and Consumer Tribunal in relation to the registry
functions of the Racing Appeals Tribunal.
Whilst the Racing Appeals Tribunal has separate jurisdiction to the
Commercial and Consumer Tribunal, since the introduction of the
Commercial and Consumer Tribunal Act 2003, the registry functions of the
Racing Appeals Tribunal have been performed by the Commercial and
Consumer Tribunal Registry. The amendments are required to properly
reflect the current role of the director of the Commercial and Consumer
Tribunal in relation to the registry functions of the Racing Appeals Tribunal
and are therefore administrative in nature.
Residential Services (Accreditation) Act 2002
Item 1 addresses a numbering error.
Item 2 deletes section 4(5)(l), replaces it with a new section 4(5)(l) and
inserts a new section 4(5)(m) to clarify the circumstances in which
residential services are exempt from the Act's operation.
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It was recognised prior to enactment of the Accreditation Act that some
existing residential service providers would not be able to comply with the
requirements of the Act without financial assistance. To this end, `one-off'
financial packages were available from the Department of Housing to assist
in the upgrading of premises to meet the new requirements.
The Housing Department also provides grants under the Housing Act 2003
for the delivery of services. Residential service providers who are in receipt
of such grants may be exempt from the requirements of the Accreditation
Act since the grant process already contains significant accountability
mechanisms.
The amendment will ensure that a service provider cannot claim exemption
from regulation under the Accreditation Act simply by having been granted
a financial package for the purpose of upgrading premises to meet the Act's
requirements.
Item 3 reinstates section 157. Section 156 allows a person to apply to the
chief executive for a review of a decision. The Commercial and Consumer
Tribunal Act 2003 omitted section 157 which gave the chief executive the
ability to stay a decision pending determination of the review. The
Explanatory Notes to the Commercial and Consumer Bill 2003 state this
was because section 157 will now be covered by a generic provision in this
Bill. It was recently realized that this is not, in fact, the case, and therefore
the section has been repealed as the result of a misapprehension.
Retirement Villages Act 1999
Item 1 amends section 35(4)(a) by removing the reference to the term
"head office" as the Department's head office is not a place open to the
public and it is not therefore possible for a person to view a register there.
Since public offices will change from time to time and there are offices in
regional areas of Queensland, the provision is changed to a flexible one
which allows the chief executive to nominate where the register will be
available.
Item 2 amends references to sections in the Body Corporate and
Community Management Act 1997 to address the renumbering of those
sections of that Act.
Second-hand Dealers and Pawnbrokers Act 2003
Item 1 inserts a new section 112A to allow the chief executive to delegate
powers under the Act to appropriately qualified officers. This is generally
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provided for under statutes but was inadvertently omitted when the Act was
passed.
Security Providers Act 1993
Item 1 amends a reference to a section in the Corporations Act 2001
(Cwlth) as a result of renumbering of the Commonwealth legislation.
Tourism Services Act 2003
Item 1 amends section 28(4)(a) by removing the reference to the term
"head office" as the Department's head office is not a place open to the
public and it is not therefore possible for a person to view a register there.
Since public offices will change from time to time and there are offices in
regional areas of Queensland, the provision is changed to a flexible one
which allows the commissioner to nominate where the register will be
available.
Items 2 and 3 contain amendments to ensure that successful prosecution is
not avoided by a technicality, namely that it is not necessary in relation to a
charge of knowingly making a false or misleading statement or providing a
document that contains false and misleading information that it is
necessary to specify whether it is false or it is misleading.
Wine Industry Act 1994
Item 1 amends section 57 to enable the chief executive to delegate to "an
appropriately qualified public service employee" rather than "an officer of
the Department".
Item 2 amends section 60 to provide protection from liability to "a public
service employee" rather than "an officer of the Department" as a
consequence of the amendment in item 1.
These amendments are required to provide flexibility where a delegation
may be needed beyond Departmental employees for particular projects.
© State of Queensland 2004