traders (licensing) bill 2016 - act legislation register · part 1 preliminary section 1 page 2...

J2015-838

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

2016

THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Chief Minister)

Traders (Licensing) Bill 2016

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 Meaning of operational Act 4

7 Meaning of trader 4

8 Meaning of car market operator 4

9 Meaning of motor vehicle dealer 5

10 Meaning of motor vehicle repairer 5

11 Meaning of motor vehicle wholesaler 5

Contents

Page

contents 2 Traders (Licensing) Bill 2016


12 Meaning of pawnbroker 5

13 Meaning of second-hand dealer 5

14 Classes of traders 5

Part 3 Traders licences

Division 3.1 Preliminary

15 Definitions—pt 3 6

Division 3.2 About traders licences

16 Licensable entity 7

17 Eligibility of entity 7

18 Suitability of entity 8

19 Traders licence term and form 8

20 Conditions for traders licence 9

21 Exemption from licensing 10

Division 3.3 Licensing and licence management

22 Licence application 10

23 Licence issue 11

24 Transfer application 11

25 Transfer decision 12

26 Renewal application 13

27 Renewal decision 13

28 Late renewal application 14

29 Late renewal decision 15

30 Temporary licence following death of licensee 15

31 Amendment of licence 17

32 Commissioner may request more information 17

33 Issue of copy of licence 18

34 Surrender of licence 18

35 Surrender of licence during suspension 18

36 Cancellation of licence issued by mistake 19

Division 3.4 Licence register

37 Licence register 19

38 Correcting register and keeping it up-to-date 20

Contents

Page


contents 3


Part 4 Occupational discipline and other disciplinary action

39 Meaning of licensee—pt 4 21

40 Meaning of ground for occupational discipline—pt 4 21

41 Application to ACAT for occupational discipline 22

42 Considerations before making occupational discipline orders 22

43 Information about cancellations etc to be given to corresponding authorities 23

Part 5 Offences 44 Meaning of licensed—pt 5 24

45 Carrying out licensed activity when not licensed 24

46 False or misleading representations 24

47 Failure to meet condition of licence 25

48 Failure to surrender licence 25

Part 6 Notification and review of decisions 49 Meaning of reviewable decision—pt 6 26

50 Reviewable decision notices 26

51 Applications for review 26

Part 7 Miscellaneous 52 Determination of fees 27

53 Regulation-making power 27

54 Operation of Act with other rights etc 28

55 Evidence of licensing 28

Part 8 Repeal and consequential amendments 56 Repeal of Sale of Motor Vehicles Regulation 1977 29

57 Legislation amended—sch 2 29

Part 20 Transitional 150 Definitions—pt 20 30

151 Current trader remains licensed 30

152 Applications under operational Act 31

Contents

Page

contents 4 Traders (Licensing) Bill 2016


153 Application by former licensee 32

154 Occupational discipline 32

155 Review of decision 32

156 Transitional regulations 33

157 Expiry—pt 20 33

Schedule 1 Reviewable decisions 34

Schedule 2 Consequential amendments 35

Part 2.1 Fair Trading (Australian Consumer Law) Act 1992 35

Part 2.2 Fair Trading (Motor Vehicle Repair Industry) Act 2010 35

Part 2.3 Pawnbrokers Act 1902 38

Part 2.4 Sale of Motor Vehicles Act 1977 40

Part 2.5 Second-hand Dealers Act 1906 43

Part 2.6 Second-hand Dealers Regulation 2002 45

Dictionary 46

J2015-838


2016

THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Chief Minister)


A Bill for

An Act to regulate the licensing of traders, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1 Preliminary

Section 1

page 2 Traders (Licensing) Bill 2016


Part 1 Preliminary 1

1 Name of Act 2

This Act is the Traders (Licensing) Act 2016. 3

2 Commencement 4

(1) This Act commences on a day fixed by the Minister by written 5

notice. 6

Note 1 The naming and commencement provisions automatically commence on 7

the notification day (see Legislation Act, s 75 (1)). 8

Note 2 A single day or time may be fixed, or different days or times may be 9

fixed, for the commencement of different provisions (see Legislation 10

Act, s 77 (1)). 11

(2) If this Act has not commenced within 12 months beginning on its 12

notification day, it automatically commences on the first day after 13

that period. 14

(3) The Legislation Act, section 79 (Automatic commencement of 15

postponed law) does not apply to this Act. 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 in this Act. 21

For example, the signpost definition ‘licensee, for part 4 (Occupational 22

discipline and other disciplinary action)—see section 39.’ means that 23

the term ‘licensee’ is defined in that section for part 4. 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)). 28

http://www.legislation.act.gov.au/a/2001-14�





Preliminary Part 1

Section 4


page 3


4 Notes 1

A note included in this Act is explanatory and is not part of this Act. 2

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of 3

notes. 4

5 Offences against Act—application of Criminal Code etc 5

Other legislation applies in relation to offences against this Act. 6

Note 1 Criminal Code 7

The Criminal Code, ch 2 applies to all offences against this Act (see 8

Code, pt 2.1). 9

The chapter sets out the general principles of criminal responsibility 10

(including burdens of proof and general defences), and defines terms 11

used for offences to which the Code applies (eg conduct, intention, 12

recklessness and strict liability). 13

Note 2 Penalty units 14

The Legislation Act, s 133 deals with the meaning of offence penalties 15

that are expressed in penalty units. 16




Part 2 Important concepts

Section 6



Part 2 Important concepts 1

6 Meaning of operational Act 2

Each of the following is an operational Act: 3

(a) the Fair Trading (Motor Vehicle Repair Industry) Act 2010; 4

(b) the Pawnbrokers Act 1902; 5

(c) the Sale of Motor Vehicles Act 1977; 6

(d) the Second-hand Dealers Act 1906. 7

Note A reference to an Act includes a reference to the statutory instruments 8

made or in force under the Act, including any regulation (see 9

Legislation Act, s 104). 10

7 Meaning of trader 11

Each of the following (a trader category) is a trader: 12

(a) car market operator; 13

(b) motor vehicle dealer; 14

(c) motor vehicle repairer; 15

(d) motor vehicle wholesaler; 16

(e) pawnbroker; 17

(f) second-hand dealer. 18

8 Meaning of car market operator 19

In this Act: 20

car market operator—see the Sale of Motor Vehicles Act 1977, 21

dictionary. 22







Important concepts Part 2

Section 9


page 5


9 Meaning of motor vehicle dealer 1

In this Act: 2

motor vehicle dealer means a dealer under the Sale of Motor 3

Vehicles Act 1977. 4

10 Meaning of motor vehicle repairer 5

(1) In this Act: 6

motor vehicle repairer means an entity that carries on business as a 7

motor vehicle repairer if the entity performs motor vehicle repair 8

work for reward. 9

(2) In this section: 10

motor vehicle repair work—see the Fair Trading (Motor Vehicle 11

Repair Industry) Act 2010, dictionary. 12

11 Meaning of motor vehicle wholesaler 13

In this Act: 14

motor vehicle wholesaler means a wholesaler under the Sale of 15

Motor Vehicles Act 1977. 16

12 Meaning of pawnbroker 17

In this Act: 18

pawnbroker—see the Pawnbrokers Act 1902, dictionary. 19

13 Meaning of second-hand dealer 20

In this Act: 21

second-hand dealer—see the Second-hand Dealers Act 1906, 22

dictionary. 23

14 Classes of traders 24

A regulation may divide a trader category into classes. 25












Part 3 Traders licences Division 3.1 Preliminary

Section 15



Part 3 Traders licences 1

Division 3.1 Preliminary 2


(1) In this part: 4

influential person, for a corporation, means any of the following: 5

(a) an executive officer of the corporation; 6

(b) a person who may exercise a relevant power in relation to the 7

corporation; 8

(c) a related corporation; 9

(d) an executive officer of a related corporation. 10

trading address means the address of the premises where a trader 11

carries on a licensed activity. 12

trading name means the name under which a trader carries on a 13

licensed activity. 14


related corporation means a related body corporate under the 16

Corporations Act. 17

relevant power, for a corporation, means a power— 18

(a) to take part in a directorial, managerial or executive decision 19

for the corporation; or 20

(b) to elect or appoint a person as an executive officer in the 21

corporation; or 22

(c) to exercise a significant influence in relation to the conduct of 23

the corporation. 24

http://www.comlaw.gov.au/Series/C2004A00818�

Traders licences Part 3About traders licences Division 3.2

Section 16


page 7


Division 3.2 About traders licences 1

16 Licensable entity 2

The following entities may be licensed as a trader: 3

(a) an individual; 4

(b) a partnership; 5

(c) a corporation; 6

(d) an association declared under the Associations Incorporation 7

Act 1991, section 15 and incorporated under that Act. 8

17 Eligibility of entity 9

(1) A regulation may provide eligibility requirements for an entity to be 10

licensed as a trader, including the qualifications the entity must have 11

to be licensed. 12

(2) A regulation may provide for how an entity may, or must, show that 13

the entity satisfies an eligibility requirement. 14

Note Power to make a statutory instrument (including a regulation) includes 15

power to make different provision in relation to different matters or 16

different classes of matters, and to make an instrument that applies 17

differently by reference to stated exceptions or factors (see Legislation 18

Act, s 48). 19

(3) The Minister may declare that a class of corporation is only eligible 20

to hold a licence if a stated number or percentage of individuals 21

carrying out a licensed activity for the corporation hold individual 22

licences to carry out the activity. 23

(4) The Minister may only make a declaration if satisfied on reasonable 24

grounds the declaration is in the public interest. 25

(5) A declaration is a disallowable instrument. 26

Note A disallowable instrument must be notified, and presented to the 27

Legislative Assembly, under the Legislation Act. 28







Part 3 Traders licences Division 3.2 About traders licences

Section 18



18 Suitability of entity 1

In deciding whether an entity is a suitable entity to hold a licence, 2

the commissioner— 3

(a) must consider the following: 4

(i) suitability information about the entity, and each relevant 5

person for the entity, prescribed by regulation; 6

(ii) any information given to the commissioner under 7

section 32 (Commissioner may request more 8

information); and 9

(b) may consider whether the premises where the entity intends to 10

carry out the licensed activity are— 11

(i) suitable premises for carrying out the licensed activity; 12

and 13

(ii) premises that the entity is entitled to use. 14

19 Traders licence term and form 15

(1) A licence may be issued for up to 5 years. 16

(2) A licence must state, in writing— 17

(a) a unique identifying number for the licence; and 18

(b) the licensee’s name; and 19

(c) the licensee’s trading name; and 20

(d) the trader category and trader class (if any) for which the 21

licence is issued; and 22

(e) the date of expiry for the licence; and 23

(f) any condition that applies to the licence. 24

Traders licences Part 3About traders licences Division 3.2

Section 20


page 9


20 Conditions for traders licence 1

(1) A licence is subject to any condition— 2

(a) required under an operational Act; or 3

(b) imposed by the commissioner when issuing the licence or by 4

written notice given to the licensee at any other time; or 5

(c) prescribed by regulation. 6



different classes of matters (see Legislation Act, s 48). 9

(2) The commissioner may impose a condition on a licence at any 10

time— 11

(a) if satisfied on reasonable grounds the condition is in the public 12

interest; or 13

(b) for a reason prescribed by regulation. 14

(3) The commissioner must give the licensee written notice of the 15

condition. 16

(4) A condition on a licence takes effect on the later of— 17

(a) the day stated by the commissioner in the notice; or 18

(b) if the applicant applies to the ACAT for a review of the 19

imposition of the condition and the ACAT upholds the 20

condition—5 working days after the day the ACAT makes the 21

decision; or 22

(c) 5 working days after the day the commissioner gives the 23

licensee notice. 24


Part 3 Traders licences Division 3.3 Licensing and licence management

Section 21



21 Exemption from licensing 1

(1) The commissioner may declare that an entity may carry out the 2

activities of a trader in a trader category or trader class without a 3

licence. 4

(2) The commissioner may only make a declaration if the commissioner 5

is satisfied that allowing the trader to trade without a licence is in 6

the public interest. 7

(3) A declaration is a notifiable instrument. 8

Note A notifiable instrument must be notified under the Legislation Act. 9

Division 3.3 Licensing and licence management 10

22 Licence application 11

(1) An entity may apply to the commissioner for a licence as a trader in 12

a trader category or trader class. 13

(2) An application may be made for a licence in more than 1 trader 14

category or trader class. 15

(3) The application must— 16

(a) be in writing; and 17

(b) state— 18

(i) the applicant’s name; and 19

(ii) the applicant’s trading name; and 20

(iii) the applicant’s proposed trading address or addresses; and 21

(c) include information to show the applicant is eligible to be 22

licensed in the trader category or class; and 23

(d) include any information prescribed by regulation. 24

Note A fee may be determined under s 52 for this provision. 25


Traders licences Part 3Licensing and licence management Division 3.3

Section 23


page 11


23 Licence issue 1

(1) If an entity applies for a licence, the commissioner must, within the 2

decision-making period— 3

(a) issue the licence; or 4

(b) refuse to issue the licence. 5

Note A licence may be issued with a condition (see s 20). 6

(2) The licence may authorise the entity to carry on business in— 7

(a) more than 1 trader category; and 8

(b) more than 1 trader class. 9

(3) The commissioner may issue the licence to the entity only if the 10

commissioner is satisfied— 11

(a) about the identity of each relevant person for the entity; and 12

(b) that the entity— 13

(i) is eligible to hold the licence; and 14

(ii) is a suitable entity to hold the licence. 15

24 Transfer application 16

(1) A licensee may apply to the commissioner to transfer a licence in a 17

prescribed trader category or trader class to another entity (the 18

transferee). 19

(2) An application must— 20


(b) include evidence to show that the licensee and transferee agree 22

to the transfer; and 23

(c) state— 24

(i) the transferee’s name; and 25

(ii) the transferee’s trading name; and 26


Section 25



(iii) the transferee’s proposed trading address or addresses; 1

and 2

(d) include information to show the transferee is eligible to be 3


(e) include any information prescribed by regulation. 5


25 Transfer decision 7

(1) If a licensee applies to transfer a licence, the commissioner must, 8

within the decision-making period— 9

(a) approve the transfer; or 10

(b) refuse to approve the transfer. 11

(2) The commissioner may approve the transfer to the transferee only if 12

the commissioner is satisfied— 13

(a) about the identity of a relevant person for the transferee; and 14

(b) that the transferee— 15

(i) is eligible to hold the licence; and 16

(ii) is a suitable entity to hold the licence. 17

(3) A transfer is subject to any condition— 18


(b) if the commissioner is satisfied on reasonable grounds that 20

imposing a condition is in the public interest—imposed by the 21

commissioner when approving the transfer; or 22







Section 26


page 13


26 Renewal application 1

(1) A licensee may apply, in writing, to the commissioner to renew the 2

licence up to 6 months before the licence expires. 3



(b) include information to show the applicant remains eligible and 6

suitable to be licensed in the trader category or class; and 7

(c) include any information prescribed by regulation. 8


(3) If a licensee applies to renew a licence, the licence remains in force 10

until the application is decided. 11

27 Renewal decision 12

(1) If a licensee applies to renew a licence, the commissioner must, 13


(a) renew the licence; or 15

(b) refuse to renew the licence. 16

(2) However, if the commissioner has asked the licensee to do a thing in 17

relation to being a licensee, and the licensee has not yet done the 18

thing, the commissioner must not renew the licence until the thing is 19

done. 20

Examples—thing not done 21

pay a fee 22

provide information 23

condition of licence met 24

Note An example is part of the Act, is not exhaustive and may extend, but 25

does not limit, the meaning of the provision in which it appears (see 26

Legislation Act, s 126 and s 132). 27

(3) A licence may be renewed for up to 5 years. 28



Section 28



(4) The renewal of a licence— 1

(a) starts immediately after the licence would have expired if it 2

had not been renewed; and 3

(b) if there is a condition imposed on the licence—does not affect 4

the condition. 5

(5) A renewal is subject to any condition— 6


(b) if the commissioner is satisfied on reasonable grounds 8

imposing a condition is in the public interest—imposed by the 9

commissioner when approving the renewal; or 10





28 Late renewal application 15

(1) This section applies if a licensee fails to apply to the commissioner 16

to renew the licence before the day the licence expires (the expiry 17

day). 18

(2) Within 1 year after the expiry day the licensee may apply to the 19

commissioner to renew the licence (a late renewal). 20



(b) include information to show the applicant remains eligible and 23

suitable to be licensed in the trader category or class; and 24

(c) include any information prescribed by regulation. 25


(4) If a licensee applies for a late renewal, the licence remains in force 27

but is taken to be suspended for the period between the expiry day 28

and the day the renewal decision is made. 29



Section 29


page 15


29 Late renewal decision 1

(1) If a licensee applies for a late renewal, the commissioner must, 2


(a) renew the licence; or 4

(b) refuse to renew the licence. 5

(2) However, if the commissioner has asked the licensee to do a thing in 6

relation to being a licensee, and the licensee has not yet done the 7

thing, the commissioner must not renew the licence until the thing is 8

done. 9

(3) A licence may be renewed for up to 5 years. 10

(4) The renewal of a licence starts on the day the renewal decision is 11

made. 12

(5) If a condition is imposed on the licence, late renewal does not affect 13

the condition. 14

30 Temporary licence following death of licensee 15

(1) This section applies if— 16

(a) a licensee dies; and 17

(b) an entity is, is named as, or is otherwise entitled to become, a 18

legal personal representative of the deceased licensee (an 19

eligible personal legal representative). 20

(2) The entity may apply to the commissioner for authorisation to carry 21

on the business of the deceased licensee for a period of not longer 22

than 6 months. 23



(b) be made within— 26

(i) 28 days after the death of the licensee; or 27

(ii) a longer period agreed by the commissioner; and 28


Section 30



(c) state the applicant’s name; and 1

(d) include information to show the applicant is eligible to be 2


(e) include evidence to show the applicant is an eligible personal 4

legal representative; and 5

(f) state the period, not longer than 6 months after the date of 6

death of the deceased licensee, for which the authorisation is 7

sought; and 8

(g) include any information prescribed by regulation. 9


(4) The commissioner may authorise the applicant to carry on the 11

deceased licensee’s business only if the commissioner is satisfied 12

the applicant is— 13

(a) eligible and suitable to be licensed in the trader category or 14

class for which the deceased licensee was licensed; and 15

(b) an eligible personal legal representative of the deceased 16

licensee. 17

(5) An entity authorised to carry on the business of the deceased 18

licensee— 19

(a) is taken to be the licensee of the deceased licensee’s licence for 20

the period for which the authorisation is approved; and 21

(b) must carry on the business with the same trading name and 22

trading address. 23


Section 31


page 17


31 Amendment of licence 1

(1) If the commissioner becomes aware that 1 or more of the following 2

change, the commissioner may amend a licensee’s licence to reflect 3

the change: 4

(a) the licensee’s name; 5

(b) the licensee’s trading name; 6

(c) a trading address for the licensee; 7

(d) a condition that applies to the licence. 8

(2) The commissioner may also amend the licence at any time, at the 9

request of the licensee or otherwise, if the commissioner believes on 10

reasonable grounds the amendment is necessary. 11

32 Commissioner may request more information 12

(1) This section applies to— 13

(a) an application for a licence under section 22; and 14

(b) an application to transfer a licence under section 24; and 15

(c) an application to renew a licence under section 26; and 16

(d) an application for a late renewal of a licence under section 28; 17

and 18

(e) an application for a temporary licence under section 30; and 19

(f) a request to amend a licence under section 31. 20

(2) The commissioner may ask an applicant to give the commissioner, 21

within a stated reasonable time, information about the applicant or a 22

relevant person for the applicant that the commissioner reasonably 23

needs to decide the application. 24

(3) If the applicant does not comply with a requirement in the request, 25

the commissioner may refuse to consider the application further. 26


Section 33



33 Issue of copy of licence 1

The commissioner may issue a licensed trader with a copy of the 2

trader’s licence if the commissioner is satisfied the licence— 3

(a) is in force; and 4

(b) has been lost or destroyed. 5

34 Surrender of licence 6

(1) A licensee may surrender the licensee’s licence to the commissioner 7

before the licence expires by giving the commissioner— 8

(a) a written statement that the licensee surrenders the licence; and 9

(b) for a physical licence—the licence. 10


(2) The licence is cancelled on the day stated by the commissioner after 12

receiving— 13

(a) the written statement; and 14

(b) for a physical licence—the licence. 15

(3) The commissioner must tell the former licensee, in writing, the day 16

on which the licence is cancelled. 17

35 Surrender of licence during suspension 18

(1) This section applies if a licensee’s licence is suspended. 19

(2) The licensee must surrender the licensee’s licence to the 20

commission for the period of the suspension. 21

Note It is an offence not to surrender the licence within 7 days of the licence 22

being suspended (see s 48(2)). 23

(3) The commissioner must return the licensee’s licence within 10 24

business days after the end of the suspension. 25

Traders licences Part 3Licence register Division 3.4

Section 36


page 19


36 Cancellation of licence issued by mistake 1

(1) This section applies to a licence that was issued by mistake. 2

(2) The commissioner may cancel the licence. 3

(3) The licence is cancelled on the day stated by the commissioner. 4

(4) The commissioner must tell the former licensee, in writing, the day 5

on which the licence is cancelled. 6

Division 3.4 Licence register 7

37 Licence register 8

(1) The commissioner must keep a register of licences. 9

(2) The register may include information about licences given to the 10

commissioner under this Act and any other information the 11

commissioner considers appropriate. 12

(3) The register may be kept in any form, including electronically, that 13

the commissioner decides. 14

(4) The register may be kept in 1 or more parts, as the commissioner 15

considers appropriate. 16

(5) The commissioner must make the following information in the 17

register about a licensee available for public inspection: 18

(a) the licensee’s trading name; 19

(b) if the licensee is an individual—the individual’s name; 20

(c) if the licensee is a partnership—the name of each partner; 21

(d) the trader category and class (if any) for which the licensee is 22

licensed; 23

(e) if the licensee has an Australian business number (an ABN)—24

the ABN; 25

(f) if the licensee has an Australian company number (an ACN)—26

the ACN; 27

Part 3 Traders licences Division 3.4 Licence register

Section 38



(g) if the licensee is an association—the association’s unique 1

identifying number (if any); 2

(h) whether the licensee’s licence is subject to a condition; 3

(i) whether the licensee’s licence is suspended; 4

(j) the date the licensee’s licence expires; 5

(k) information prescribed by regulation. 6

Note The Commissioner must comply with the Territory privacy principles 7

under the Information Privacy Act 2014. 8

Example 9

the information may be available on a website 10

Note An example is part of the Act, is not exhaustive and may extend, but 11

does not limit, the meaning of the provision in which it appears (see 12

Legislation Act, s 126 and s 132). 13

38 Correcting register and keeping it up-to-date 14

(1) The commissioner may correct a mistake, error or omission in the 15

register. 16

(2) The commissioner may change a detail included in the register to 17

keep the register up-to-date. 18



Occupational discipline and other disciplinary action Part 4

Section 39


page 21


Part 4 Occupational discipline and 1

other disciplinary action 2

39 Meaning of licensee—pt 4 3

In this part: 4

licensee includes a former licensee. 5

40 Meaning of ground for occupational discipline—pt 4 6

(1) For this part, each of the following is a ground for occupational 7

discipline in relation to a licensee: 8

(a) the licensee gave information to the commissioner in relation 9

to 1 of the following that was false or misleading in a material 10

particular: 11

(i) an application for a licence under section 22; 12

(ii) an application to transfer a licence under section 24; 13

(iii) an application to renew a licence under section 26; 14

(iv) an application for a late renewal of a licence under 15

section 28; 16

(v) an application for a temporary licence under section 30; 17

(b) the licensee is no longer eligible for the licensee’s licence; 18

(c) the licensee, or a relevant person for the licensee, is no longer 19

suitable for the licensee’s licence; 20

(d) the licensee has contravened, or is contravening, this Act or an 21

operational Act, whether or not the licensee has been convicted 22

or found guilty of an offence for the contravention; 23

(e) the licensee has contravened, or is contravening, a territory law 24

(other than this Act or an operational Act) or a law of the 25

Commonwealth, a State or another Territory, whether or not 26

the licensee has been convicted or found guilty of an offence 27

for the contravention; 28

Part 4 Occupational discipline and other disciplinary action

Section 41



(f) the licensee has contravened, or is contravening, an order of 1

the ACAT in relation to being a trader; 2

(g) the licensee has contravened, or is contravening a condition of 3

the licence; 4

(h) the licence was obtained by fraud; 5

(i) a ground prescribed by regulation. 6

(2) A ground for occupational discipline applies to a former licensee if 7

the ground applied to the licensee while licensed. 8

41 Application to ACAT for occupational discipline 9

If the commissioner believes on reasonable grounds that a ground 10

for occupational discipline exists in relation to a licensee, the 11

commissioner may apply to the ACAT for an occupational 12

discipline order in relation to the licensee. 13

Note The ACT Civil and Administrative Tribunal Act 2008, s 66 sets out 14

occupational discipline orders the ACAT may make. 15

42 Considerations before making occupational discipline 16

orders 17

(1) This section applies if the ACAT is considering an application for 18

occupational discipline in relation to a licensee. 19

(2) Without limiting the matters the ACAT must consider in relation to 20

the licensee, the ACAT must consider the following: 21

(a) the degree of responsibility of the licensee for the act or 22

omission that made up the ground for occupational discipline; 23

(b) the extent to which it is necessary to discourage the licensee 24

and others from doing something, or not doing something, that 25

made up the disciplinary ground; 26

(c) whether, and the extent to which, it is necessary to protect the 27

public from the licensee; 28


Occupational discipline and other disciplinary action Part 4

Section 43


page 23


(d) the desirability of making the licensee responsible for the 1

consequences of the licensee’s actions or omissions; 2

(e) the desirability of maintaining public confidence in the 3

regulatory system set up by this Act. 4

Note The ACT Civil and Administrative Tribunal Act 2008, s 65 (3) sets out 5

other considerations that must be taken into account by the ACAT. 6

43 Information about cancellations etc to be given to 7

corresponding authorities 8

(1) This section applies if the ACAT cancels or suspends a licensee’s 9

licence or disqualifies a licensee from applying for a licence. 10

(2) The commissioner may give the corresponding authority of each 11

State the following information about the licensee: 12

(a) the name and any other identifying details of the licensee; 13

(b) a short description of the ground for occupational discipline on 14

which the occupational discipline order was based; 15

(c) whether the licence has been cancelled or suspended or the 16

licensee disqualified; 17

(d) if the licence has been suspended—the period of suspension; 18

(e) if the licensee has been disqualified—the period of 19

disqualification. 20

(3) This section does not limit any other requirement or power, under 21

this Act or another law in force in the ACT, to give information to 22

an entity in another jurisdiction. 23


corresponding authority, of a State, means the entity responsible in 25

the State for regulation of the trader category or class equivalent to 26

the trader category or class for which the licensee is, or was, 27

licensed. 28


Part 5 Offences

Section 44



Part 5 Offences 1

44 Meaning of licensed—pt 5 2

For this part, a person is not licensed if the person’s licence is 3

suspended, cancelled or expired. 4

45 Carrying out licensed activity when not licensed 5

(1) A person commits an offence if the person— 6

(a) carries out a licensed activity; and 7

(b) is not licensed to carry out the licensed activity. 8

Maximum penalty: 50 penalty units. 9


(a) carries out a licensed activity at premises; and 11

(b) does not hold a licence authorising the person to carry out the 12

licensed activity at the premises. 13


(3) This section does not apply to a trader declared by the commissioner 15

under section 21 to be exempt from holding a licence. 16

46 False or misleading representations 17


(a) represents that the person is licensed to carry out a licensed 19

activity; and 20

(b) is not licensed to carry out the licensed activity. 21




Offences Part 5

Section 47


page 25


47 Failure to meet condition of licence 1

(1) A person commits an offence if— 2

(a) the person is licensed to carry out a licensed activity; and 3

(b) the licence is subject to a condition; and 4

(c) the person carries out the licensed activity in a way that fails to 5

comply with the condition. 6




48 Failure to surrender licence 10


(a) the person’s licence is cancelled; and 12

(b) the person fails to surrender the person’s licence to the 13

commissioner within 7 days of the cancellation. 14



(a) the person’s licence is suspended; and 17

(b) the person fails to surrender the person’s licence to the 18

commissioner within 7 days of the suspension. 19


(3) This section does not apply if the person has a reasonable excuse. 21

Part 6 Notification and review of decisions

Section 49



Part 6 Notification and review of 1

decisions 2

49 Meaning of reviewable decision—pt 6 3

In this part: 4

reviewable decision means a decision mentioned in schedule 1, 5

column 3 under a provision of this Act mentioned in column 2 in 6

relation to the decision. 7

50 Reviewable decision notices 8

If a person makes a reviewable decision, the person must give a 9

reviewable decision notice to each entity mentioned in schedule 1, 10

column 4 in relation to the decision. 11

Note 1 The person must also take reasonable steps to give a reviewable 12

decision notice to any other person whose interests are affected by the 13

decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A). 14

Note 2 The requirements for reviewable decision notices are prescribed under 15

the ACT Civil and Administrative Tribunal Act 2008. 16

51 Applications for review 17

The following may apply to the ACAT for review of a reviewable 18

decision: 19

(a) an entity mentioned in schedule 1, column 4 in relation to the 20

decision; 21

(b) any other person whose interests are affected by the decision. 22

Note If a form is approved under the ACT Civil and Administrative Tribunal 23

Act 2008 for the application, the form must be used. 24






Miscellaneous Part 7

Section 52


page 27


Part 7 Miscellaneous 1

52 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

53 Regulation-making power 9

(1) The Executive may make regulations for this Act. 10

(2) A regulation may make provision in relation to the following: 11

(a) licences; 12

(b) the keeping of a register, including the particulars that must or 13

may be entered in the register; 14

(c) the supervision of licensees’ activities. 15

(3) A regulation may create offences and fix maximum penalties of not 16

more than 10 penalty units for offences. 17

(4) A regulation may adopt an Australian Standard as in force from time 18

to time. 19

Note The text of an applied, adopted or incorporated law or instrument, 20

whether applied as in force from time to time or at a particular time, is 21

taken to be a notifiable instrument if the operation of the Legislation 22

Act, s 47 (5) or (6) is not disapplied (see s 47 (7)). 23

(5) The Legislation Act, section 47 (6) does not apply to an Australian 24

Standard mentioned in subsection (4). 25






Part 7 Miscellaneous

Section 54



54 Operation of Act with other rights etc 1

(1) This Act does not limit or affect a legal right a person would have 2

had if this Act had not been made. 3

(2) A term of an agreement, other than an agreement between a licensee 4

and a corporation, that attempts to do 1 or more of the following is 5

void: 6

(a) exclude or limit the operation of this Act; 7

(b) prevent a right of action for failure to comply with this Act; 8

(c) prevent a defence for failure to comply with this Act. 9

55 Evidence of licensing 10

A document signed by the commissioner stating the period or 11

periods during which an entity was licensed under this Act is 12

evidence of whether the entity was, or was not, licensed on a day or 13

during a period. 14

Repeal and consequential amendments Part 8

Section 56


page 29


Part 8 Repeal and consequential 1

amendments 2

56 Repeal of Sale of Motor Vehicles Regulation 1977 3

The Sale of Motor Vehicles Regulation 1977 (SL1977-21) is 4

repealed. 5

57 Legislation amended—sch 2 6

This Act amends the legislation mentioned in schedule 2. 7

http://www.legislation.act.gov.au/sl/1977-21�

Part 20 Transitional

Section 150



Part 20 Transitional 1


In this part: 3

commencement day means the day this Act, section 3 commences. 4

operational Act licence, for a trader category, means the following: 5

(a) for a car market operator—a car market operator licence under 6

the Sale of Motor Vehicles Act 1977; 7

(b) for a motor vehicle dealer—a vehicle sale licence under the 8

Sale of Motor Vehicles Act 1977; 9

(c) for a motor vehicle repairer—a licence under the Fair Trading 10

(Motor Vehicle Repair Industry) Act 2010; 11

(d) for a motor vehicle wholesaler—a vehicle sale licence to carry 12

on business as a wholesaler under the Sale of Motor Vehicles 13

Act 1977; 14

(e) for a pawnbroker—a licence under the Pawnbrokers Act 1902; 15

(f) for a second-hand dealer—a licence under the Second-hand 16

Dealers Act 1906. 17

151 Current trader remains licensed 18

(1) A person who, immediately before the commencement day, held an 19

operational Act licence for a trader category is taken to be licensed 20

for the trader category under section 23 (Licence issue). 21

(2) If the operational Act licence was issued subject to a condition, the 22

condition is taken to be a condition of the licence imposed under 23

section 20 (Conditions for traders licence). 24













Transitional Part 20

Section 152


page 31


(3) The licence under this Act expires when the licence would have 1

expired under the operational Act. 2

Note The repeal of a law does not affect the previous operation of the law or 3

anything done, begun or suffered under the law and does not affect an 4

existing right, privilege or liability acquired, accrued or incurred under 5

the law. An investigation, proceeding or remedy in relation to an 6

existing right, privilege or liability under a repealed law may be started, 7

exercised, continued or completed, and the right, privilege or liability 8

may be enforced and any penalty imposed, as if the repeal had not 9

happened (see Legislation Act, s 84). 10

152 Applications under operational Act 11

(1) This section applies if, before the commencement day— 12

(a) a person made an application— 13

(i) under an operational Act— 14

(A) for an operational Act licence for a trader category; 15

or 16

(B) for the transfer of an operational Act licence; or 17

(C) for the renewal of an operational Act licence for a 18

trader category; or 19

(ii) under the Sale of Motor Vehicles Act 1977, section 89A 20

(Temporary revival of licence following death of 21

licensee); and 22

(b) the application had not been decided. 23

(2) The application is taken to be— 24

(a) for an application for an operational Act licence for a trader 25

category—an application for a licence for the trader category 26

under section 22; and 27



Part 20 Transitional

Section 153



(b) for an application for the transfer of an operational Act 1

licence—an application for a transfer under section 24; and 2

(c) for an application for the renewal of an operational Act licence 3

for a trader category—an application for the renewal of a 4

licence for the trader category under section 26. 5

153 Application by former licensee 6

(1) This section applies to a person if the person— 7

(a) had an operational Act licence for a trader category that 8

expired not more than 18 months before the commencement 9

day; and 10

(b) applies for a licence for the trader category under section 22. 11

(2) The application is taken to be an application for a late renewal of a 12

licence for the trader category under section 29. 13

154 Occupational discipline 14

(1) This section applies if, before the commencement day, an 15

application was made to the ACAT in relation to occupational 16

discipline for a trader or former trader under an operational Act. 17

(2) The application is taken to have been made under section 41. 18

(3) However, a ground for occupational discipline for the application 19

is a ground for occupational discipline under the operational Act 20

immediately before the commencement day. 21

155 Review of decision 22

(1) This section applies if, before the commencement day, an 23

application was made to the ACAT for the review of a reviewable 24

decision under an operational Act. 25

(2) The application is taken to have been made under section 51 as if 26

the decision were a decision mentioned in schedule 1, column 3. 27

Transitional Part 20

Section 156


page 33


156 Transitional regulations 1

(1) A regulation may prescribe transitional matters necessary or 2

convenient to be prescribed because of the enactment of this Act. 3

(2) A regulation may modify this part (including in relation to another 4

territory law) to make provision in relation to anything that, in the 5

Executive’s opinion, is not, or is not adequately or appropriately, 6

dealt with in this part. 7

(3) A regulation under subsection (2) has effect despite anything 8

elsewhere in this Act or another territory law. 9

157 Expiry—pt 20 10

This part expires 2 years after the commencement day. 11

Note Transitional provisions are kept in the Act for a limited time. 12

A transitional provision is repealed on its expiry but continues to have 13

effect after its repeal (see Legislation Act, s 88). 14


Schedule 1 Reviewable decisions



Schedule 1 Reviewable decisions (see pt 6)

column 1

item

column 2

section

column 3

decision

column 4

entity

1 20 (2) imposition of condition applicant for licence

licensee

2 21 (1) exemption from holding licence

3 23 (1) (b) refuse to issue licence applicant for licence

4 25 (1) (b) refuse to approve transfer of licence

licensee

transferee

5 25 (3) imposition of condition on transfer

transferee

6 27 (1) (b) refuse to renew licence licensee

7 29 (1) (b) refuse to renew licence licensee

8 30 (4) refusal to authorise temporary licence

eligible personal legal representative

9 31 (2) refuse to amend licence

licensee

10 32 (3) refuse to further consider application

applicant for licence

licensee

transferee

Consequential amendments Schedule 2Fair Trading (Australian Consumer Law) Act 1992 Part 2.1

Amendment [2.1]


page 35


Schedule 2 Consequential amendments 1

(see s 44) 2

Part 2.1 Fair Trading (Australian 3

Consumer Law) Act 1992 4

[2.1] Section 34 (2), definition of consumer and trader 5

legislation, new paragraph (h) 6

insert 7

(h) the Traders (Licensing) Act 2016. 8

[2.2] Dictionary, definition of fair trading legislation, new 9

paragraph (ia) 10

insert 11

(ia) the Traders (Licensing) Act 2016; or 12

Part 2.2 Fair Trading (Motor Vehicle 13

Repair Industry) Act 2010 14

[2.3] Section 6 15

omit 16

[2.4] Parts 3 to 5 17

omit 18

Schedule 2 Consequential amendments Part 2.2 Fair Trading (Motor Vehicle Repair Industry) Act 2010

Amendment [2.5]



[2.5] Section 40 (a) (i) 1

substitute 2

(i) the licensing, registration or training of people in the 3

motor vehicle repair industry; and 4

[2.6] Section 40 (b) 5

substitute 6

(b) advising the Minister about conditions of a licence under the 7

Traders (Licensing) Act 2016; 8

[2.7] Sections 46 and 48 9

omit 10

[2.8] Part 8 11

omit 12

[2.9] Sections 54 and 55 13

omit 14

[2.10] Schedule 1 15

omit 16

[2.11] Dictionary, note 2 17

omit 18

Corporations Act 19

Consequential amendments Schedule 2Fair Trading (Motor Vehicle Repair Industry) Act 2010 Part 2.2

Amendment [2.12]


page 37


[2.12] Dictionary 1

omit the definitions of 2

carries on business as a motor vehicle repairer 3

corporation 4

disqualified person 5

ground for occupational discipline 6

licence 7

licence number 8

licensee 9

[2.13] Dictionary, definition of motor vehicle repair work 10

substitute 11

motor vehicle repair work— 12

(a) means— 13

(i) any of the following work performed on a motor vehicle, 14

motor vehicle part or motor vehicle system: 15

(A) examining or assessing condition or performance 16

improvement; 17

(B) diagnosing and detecting of faults; 18

(C) overhauling; 19

(D) dismantling and assembling; 20

(E) servicing and maintenance; 21

(F) replacing and adjusting of objects for performance 22

improvement; 23

Schedule 2 Consequential amendments Part 2.3 Pawnbrokers Act 1902

Amendment [2.14]



(G) painting and treatment; 1

(H) modifying, altering, installing or fitting work; and 2

(ii) giving advice on any of the work mentioned in 3

subparagraph (i); and 4

(iii) any other work prescribed by regulation to be motor 5

vehicle repair work; but 6

(b) does not include any work prescribed by regulation not to be 7

motor vehicle repair work. 8

[2.14] Dictionary, definitions of police certificate and register 9

omit 10

Part 2.3 Pawnbrokers Act 1902 11

[2.15] Section 2, note 1 12

substitute 13




For example, the signpost definition ‘redemption period—see 17

section 13 (1) (Period for sale of pawned articles).’ means that the term 18

‘redemption period’ is defined in that section. 19

[2.16] Part 2 20

omit 21

[2.17] Sections 6, 21 to 24, 27 and 28 22

omit 23

Consequential amendments Schedule 2Pawnbrokers Act 1902 Part 2.3

Amendment [2.18]


page 39



omit 2

commissioner for fair trading 3

CrimTrac 4

substitute 5

fail 6

[2.19] Dictionary 7


commissioner 9

disqualified 10

executive officer 11

licence 12

[2.20] Dictionary, new definition of licensed 13

insert 14

licensed means licensed under the Traders (Licensing) Act 2016. 15

[2.21] Dictionary, definition of licensed pawnbroker 16

omit 17

[2.22] Dictionary, definition of pawnbroker, new note 18

insert 19

Note A person must not carry on business as a pawnbroker unless the person 20

is licensed as a pawnbroker under the Traders (Licensing) Act 2016. 21

[2.23] Dictionary, definition of suitable person 22

omit 23

Schedule 2 Consequential amendments Part 2.4 Sale of Motor Vehicles Act 1977

Amendment [2.24]



Part 2.4 Sale of Motor Vehicles Act 1977 1


substitute 3




For example, the signpost definition ‘occupier, of premises, for 7

part 10A (Enforcement)—see section 70.’ means that the term 8

‘occupier’ is defined in that section for part 10A. 9

[2.25] Sections 6 and 6AA 10

omit 11

[2.26] Parts 2, 6 and 7 12

omit 13

[2.27] Sections 71 to 74 14

omit 15

[2.28] Sections 82 and 83 16

after 17

this Act 18

insert 19

or the Traders (Licensing) Act 2016 20

[2.29] Sections 88 and 89A 21

omit 22

[2.30] Schedule 2, items 1 to 10, 12 and 13 23

omit 24

Consequential amendments Schedule 2Sale of Motor Vehicles Act 1977 Part 2.4

Amendment [2.31]


page 41



omit 2

CrimTrac 3

[2.32] Dictionary, definition of car market operator, new note 4

insert 5

Note A person must not carry on the activities of a car market operator unless 6

the person is licensed as a motor vehicle dealer under the Traders 7

(Licensing) Act 2016. 8

[2.33] Dictionary, definition of dealer 9

substitute 10

dealer— 11

(a) means a person who— 12

(i) buys, sells or exchanges motor vehicles as a business; or 13

(ii) sells more than 6 vehicles in any 12-month period; but 14

(b) does not include— 15

(i) a person whose business consists exclusively of buying 16

motor vehicles for the purpose of demolishing or 17

dismantling those vehicles; or 18

(ii) a wholesaler; or 19

(iii) a car market operator; or 20

(iv) a financier; or 21

(v) a person who is exempted by the commissioner by 22

written notice. 23

Note A person must not carry on the activities of a dealer unless the person is 24

licensed as a motor vehicle dealer under the Traders (Licensing) 25

Act 2016. 26

Schedule 2 Consequential amendments Part 2.4 Sale of Motor Vehicles Act 1977

Amendment [2.34]



[2.34] Dictionary, definition of ground for occupational 1

discipline 2

omit 3

[2.35] Dictionary, definition of licence 4

substitute 5

licence means a licence under the Traders (Licensing) Act 2016. 6


insert 8


[2.37] Dictionary 10


licensed car market operator 12

licensed dealer 13

licensed wholesaler 14

police certificate 15

register 16

suitable person 17

unsuitable person 18

vehicle sale licence 19

[2.38] Dictionary, definition of wholesaler, new note 20

insert 21

Note A person must not carry on the activities of a wholesaler unless the 22

person is licensed as a motor vehicle dealer under the Traders 23


Consequential amendments Schedule 2Second-hand Dealers Act 1906 Part 2.5

Amendment [2.39]


page 43


Part 2.5 Second-hand Dealers Act 1906 1


substitute 3




For example, the signpost definition ‘carries on business as a 7

second-hand dealer—see section 2A.’ means that the term ‘carries on 8

business as a second-hand dealer’ is defined in that section. 9

[2.40] Part 2 10

omit 11

[2.41] Section 4 12

omit 13

[2.42] New section 10 (5) 14

insert 15


licence, of a licensed second-hand dealer, means the second-hand 17

dealer’s licence under the Traders (Licensing) Act 2016. 18

[2.43] Sections 11, 12, 14, 15, 17 and 18 19

omit 20

Schedule 2 Consequential amendments Part 2.5 Second-hand Dealers Act 1906

Amendment [2.44]




substitute 2

Note 2 In particular, the Legislation Act, dict, pt 1, defines the following terms: 3

chief police officer 4

home address 5

police officer. 6

[2.45] Dictionary, new definition of carries on business as a 7

second-hand dealer 8

insert 9

carries on business as a second-hand dealer––see section 2A. 10

[2.46] Dictionary 11


carrying on business as a second-hand dealer 13

commissioner 14

executive officer 15

licence 16


insert 18


[2.48] Dictionary, definition of licensed second-hand dealer 20

omit 21


Consequential amendments Schedule 2Second-hand Dealers Regulation 2002 Part 2.6

Amendment [2.49]


page 45


[2.49] Dictionary, definition of second-hand dealer, new note 1

insert 2

Note A person must not carry on business as a second-hand dealer unless the 3

person is licensed as a second-hand dealer under the Traders 4


[2.50] Dictionary, definition of suitable person 6

omit 7

Part 2.6 Second-hand Dealers 8

Regulation 2002 9

[2.51] Section 5A 10

omit 11


substitute 13

Note 3 Terms used in this regulation have the same meaning that they have in 14

the Second-hand Dealers Act 1906 (see Legislation Act, s 148.) For 15

example, the following terms are defined in the Second-hand Dealers 16

Act 1906, dict: 17

licensed 18

second-hand dealer. 19

[2.53] Dictionary, definition of exempt entity 20

substitute 21

exempt entity means an entity exempt under the Traders (Licensing) 22

Act 2016, section 21. 23






Dictionary



Dictionary 1

(see s 3) 2

Note 1 The Legislation Act contains definitions and other provisions relevant to 3

this Act. 4

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms: 5

ACAT 6

Australian Standard (see s 164 (1)) 7

commissioner for fair trading 8

Corporations Act 9

entity 10

fail 11

occupational discipline order 12

reviewable decision notice 13

working day. 14

car market operator—see section 8. 15

commissioner means the commissioner for fair trading. 16

decision-making period means— 17

(a) 60 days; or 18

(b) if a period is prescribed by regulation for a certain decision—19

the period prescribed. 20

executive officer, of a corporation, means a person, however 21

described and whether or not the person is a director of the 22

corporation, who is concerned with, or takes part in, the 23

corporation’s management. 24

ground for occupational discipline, for part 4 (Occupational 25

discipline and other disciplinary action)—see section 40. 26

influential person, for a corporation, for part 3 (Traders licences)—27

see section 15. 28

licensee, for part 4 (Occupational discipline and other disciplinary 29

action)—see section 39. 30

licensed, for part 5 (Offences)—see section 44. 31



Dictionary


page 47


motor vehicle dealer—see section 9. 1

motor vehicle repairer—see section 10. 2

motor vehicle wholesaler—see section 11. 3

operational Act—see section 6. 4

pawnbroker—see section 12. 5

relevant person, for an entity, means— 6

(a) if the entity is an individual— 7

(i) the individual; and 8

(ii) if the individual is also a partner in a partnership—9

another partner of the partnership; or 10

(b) if the entity is a partnership—a partner of the partnership; or 11

(c) if the entity is a corporation—an executive officer of the 12

corporation; or 13

(d) if the entity is an association—an office bearer for the 14

association. 15

reviewable decision, for part 6 (Notification and review of 16

decisions)—see section 49. 17

second-hand dealer—see section 13. 18

suitable entity, to hold a licence, for part 3 (Traders licences)—see 19

section 18. 20

trader—see section 7. 21

trader category—see section 7. 22

trading address, for part 3 (Traders licences)—see section 15. 23

trading name, for part 3 (Traders licences)—see section 15. 24

transferee—see section 24. 25



Endnotes

1 Presentation speech

Presentation speech made in the Legislative Assembly on 8 June 2016.

2 Notification

Notified under the Legislation Act on 2016.

3 Republications of amended laws

For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2016


http://www.legislation.act.gov.au/�

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