Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill

Transcription

1 ,-~ 1'" L "" '.,: --".' Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill EXPLANATORY MEMORANDUM General In general terms this Act makes the many consequential amendments necessary to implement the creation of the Victorian Civil and Administrative Tribunal ("VCAT") by the proposed Victorian Civil and Administrative Tribunal Act ("VCAT Act") and the Business Licensing Authority ("BLA") by the proposed Business Licensing Authority Act ("BLA Act"), and the consequent abolition of a number of statutory bodies. It amends various Acts and also contains transitional arrangements necessary to make provision for the bodies, persons, parties and personnel affected by the creation of VCAT and the BLA and the abolition of those former statutory bodies. PART I-PRELIMINARY Clause 1 Clause 2 sets out the purpose of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Bill (the Bill). provides for the commencement of the Bill. General PART 2-CONSUMER CREDIT (VICTORIA) ACT 1995 In general terms Part 2 amends the Consumer Credit (Victoria) Act 1995 to reflect the abolition of the Credit Authority and the conferral of the function of registering credit providers on the BLA. Further amendments reflect the abolition of the Credit Tribunal and the conferral of its jurisdiction on VCAT. Amendments are also made to other provisions to ensure consistency with a number of other licensing and registration Acts that the BLA will administer. Clause 3 Clause 4 provides that in Part 2 the Consumer Credit (Victoria) Act 1995 is called the Principal Act. amends, inserts or repeals certain definitions in section 3(1) of the Principal Act, including substituting a definition of B.I1 1 BILL LA CIRCULATION 14/4/98

2 "Authority" to refer to BLA and inserting a definition of "Tribunal" to refer to VCAT. Clause 5 Clause 6 Clause 7 Clause 8 Clause 9 amends section 8 of the Principal Act, which deals with the conferral of judicial functions, to accord with the replacement of the Credit Tribunal by VCAT. amends section 13 of the Principal Act to clarify that an application fee for registration must accompany an annual statement if such a fee is prescribed. amends section 14 of the Principal Act to extend the offence of providing false or misleading statements in respect of a licence application to also cover annual statements under section 24. amends section 19 of the Principal Act to provide for the evidentiary status of Registrar's certificates. amends section 22 of the Principal Act, which deals with the period of registration, to take account of the possibility of the surrender, suspension and cancellation of licences. Clause 10 amends section 23 of the Principal Act, which deals with annual fees, to conform with the other fees arrangements to be administered by BLA. Clause 11 amends section 24 of the Principal Act, which deals with annual statements, to conform with the other statement arrangements to be administered by BLA. Clause 12 substitutes a new section 27 in the Principal Act to deal with cancellation of registration at the request of the credit provider. This matter was formerly dealt with by section 27(1)(a). The remainder of the matter formerly dealt with by section 27 will now be dealt with by section 30. Clause 13 substitutes a new section 28 in the Principal Act to provide that the Director of the Office of Fair Trading and Business Affairs and the Chief Commissioner of Police may apply to VCAT for an inquiry into a credit provider. This replaces a right of objection to continued registration in the Director. The right of objection of other persons is now covered by section 30. 2

3 Clause 14 repeals section 29 of the Principal Act, which deals with disciplinary action. These matters will be dealt with by section 30. Clause 15 substitutes a new section 30 in the Principal Act, to provide that VCAT must conduct a disciplinary inquiry on the application of the Director of the Office of Fair Trading and Business Affairs and the Chief Commissioner of Police, and may conduct an inquiry on the application of any other person. The section also spells out the grounds of disciplinary action and the disciplinary powers available to VCAT. These matters were formerly dealt with by sections 27, 29 and 30. Clause 16 amends section 31 of the Principal Act, which deals with the effect of suspension of registration, consequentially upon the amendment of section 27. Clause 17 inserts a new section 31A of the Principal Act to provide for the return of certificates of registration upon suspension or cancellation. Clause 18 amends section 33 of the Principal Act (which relates to reregistration) to accord with the revised administrative arrangements under the Act. Clause 19 repeals section 34, which deals with appeals against cancellation etc. of registration. This matter will be dealt with by the VCAT Act. Clause 20 amends section 41, which deals with regulations, to accord with the revised administrative arrangements under the Act. PART 3-CREDIT ACT 1984 General In general terms Part 3 amends the Credit Act 1984 to reflect the abolition of the Credit Tribunal and the conferral of its jurisdiction on VCAT. Clause 21 provides that in Part 3 the Credit Act 1984 is called the Principal Act. Clause 22 amends, inserts or repeals certain definitions in section 5(1) of the Principal Act, including substituting a definition of "Tribunal" to refer to VCAT. 3

4 Clause 23 amends section 6 of the Principal Act, which relates to the jurisdiction of courts and the Tribunal, to accord with the replacement of the Credit Tribunal and the Small Claims Tribunal by VCAT. Clause 24 amends numerous sections of the Principal Act to accord with the replacement of the Credit Tribunal by VCAT. Clause 25 amends numerous sections of the Principal Act to accord with the replacement of the Credit Authority by VCAT. PART 4-CREDIT (ADMINISTRATION) ACT 1984 General In general terms Part 4 amends the Credit (Administration) Act 1984 to reflect the abolition of the Credit Authority and the conferral of the function of registering credit providers on BLA. Further amendments reflect the abolition of the Credit Tribunal and the conferral of its jurisdiction on VCAT. Clause 26 provides that in Part 4 the Credit (Administration) Act 1984 is called the Principal Act. Clause 27 amends, inserts or repeals certain definitions in section 4 of the Principal Act, including substituting a definition of "Authority" to refer to BLA and substituting a definition of "Tribunal" to refer to VCAT. Clause 28 repeals Part 3 of the Principal Act, which deals with the Credit Authority. Clause 29 repeals Part 5 of the Principal Act, which deals with the Credit Tribunal. Clause 30 amends section 86AA of the Principal Act, which deals with the Consumer Credit Fund, to conform with the Financial Management Act Clause 31 repeals sections 87 to 89B of the Principal Act, which deals with procedural matters that will be dealt with by the VCAT Act. Clause 32 amends section 89C of the Principal Act, which deals with protection for things done under various Acts, to accord with the revised administrative arrangements for the Principal Act. 4

5 Clause 33 amends section 89D of the Principal Act, which deals with payments from the Consolidated Fund, to accord with the replacement of the Credit Tribunal by VCAT. Clause 34 amends section 95, which deals with regulations, to accord with the revised administrative arrangements for the Principal Act. PART S-DOMESTIC BUILDING CONTRACTS AND TRIBUNAL ACT 1995 General In general terms Part 5 amends the Domestic Building Contracts and Tribunal Act 1995 to facilitate the abolition of the Domestic Building Tribunal and grant jurisdiction under the Domestic Building and Contracts Act to VCAT. Clause 35 provides that in this Part the Domestic Building Contracts and Tribunal Act 1995 is referred to as the Principal Act. Clause 36 changes the title of the Principal Act to remove reference to the word "Tribunal". Clause 37 amends clause 1 of the Principal Act to alter the purpose and inserts a new definition in clause 3. Clause 38 abolishes the Domestic Building Tribunal by repealing Division 1 of Part 5 of the Principal Act and a number of other sections relating to the Domestic Building Tribunal. This clause also amends section 57 by inserting two new sub-sections. Section 57 provides that VCAT has jurisdiction to hear proceedings which are wholly or predominantly a domestic building dispute. If an action arising from a building dispute is commenced in a court the court must stay the action on the application of either party provided that the action could be heard by VCAT and the court has not heard any oral evidence. The new sub-sections provide that if an action is stayed in these circumstances and a party then applies to VCAT to have the matter heard'notice must be given to the court and the court must dismiss the action. If VCAT refers the matter to the Court under section 77(3) of the VCAT Act no notice is required. A number of sections dealing with procedural matters have also been repealed by this clause on the basis that they are now provided for in the VCAT Act. 5

6 Clause 39 inserts a new section 59A which provides that VCAT has jurisdiction to hear and determine any dispute concerning an insurance claim concerning domestic building work or an insurer's decision on such a claim. Clause 40 makes a number of amendments to the Principal Act to substitute language which is consistent with language used in the VCAT Bill. It also repeals a number of procedural provisions. Clause 41 amends section 124 of the Principal Act which relates to the Domestic Building Fund. All fees received or recovered by or on behalf of VCAT in respect of proceedings under the Principal Act are to be paid into this Fund. The costs and expenses of VCAT in respect of proceedings under the Principal Act may be paid out of this Fund. Clause 42 substitutes a new section 134 which provides that it is the intention of section 57 of the Principal Act as amended by clause 38 of this Bill to alter or vary section 85 of the Constitution Act Clause 43 amends the regulation making power under the Principal Act. Clause 44 amends a transitional provision in section 168 of the Principal Act to substitute a reference to the Administrative Appeals Tribunal with a reference to VCAT. Clause 45 repeals Schedule 1 to the Principal Act which relates to the appointment and conditions of appointment if members of the Domestic Building Tribunal. PART 6-EQUAL OPPORTUNITY ACT 1995 General In general terms Part 6 amends the Equal Opportunity Act 1995 to facilitate the abolition of the Anti-Discrimination Tribunal and grant jurisdiction under the Equal Opportunity Act tovcat. Clause 46 provides that in this Part the Equal Opportunity Act 1995 is referred to as the Principal Act. Clause 47 sets out definitions to be inserted into the Principal Act and repeals a number of existing definitions. 6

7 Clause 48 amends section 83 of the Principal Act to make it clear that VCAT may grant or renew an exemption subject to any conditions it thinks fit and sets out that an exemption may be granted on application or on VCA T's own initiative. Clause 49 amends section 109 to clearly provide that the complainant is a party to a proceeding where the respondent applies to VCAT to strike out a complaint. This clause also amends section 111 to clarify that the Minister is not a party to a complaint referred by the Minister directly to VCAT. Amendments are also made to section 115 to replace references to the President with references to VCAT. Section 121 is amended to clarify the parties to a proceeding to review a detennination of the Commission in respect of an application to have a complaint expedited. Similarly section 124 is amended to clarify who the parties are where application is made to VCAT to have a complaint expedited without the complaint going to conciliation. Clause 50 amends section 125 by inserting a new sub-section (2) which provides that the President of VCAT determines whether a complaint is a special complaint. The criteria on which that decision is made is set out in sub-section (1). Clause 51 inserts a new section 126 which sets out the factors which must be considered by VCAT in proceedings involving special complaints. Clause 52 repeals a number or provisions relating to special complaints. Special complaints will no longer be referred to the Supreme Court. Special complaints will now be dealt with by the President of VCA T sitting with or without others. Clause 53 amends section 131 to clarify that the party against whom an interim order is sought is a party to the proceeding. This clause also repeals sections 132 and 133 of the Principal Act because they are procedural provisions now provided for in the VCAT Act. Clause 54 inserts a new section 134A in the Principal Act to clarify who the parties are in a proceeding in respect of a complaint referred to in section 134(1). This clause also provides that the Equal Opportunity Commission is not a party to these proceedings unless joined by VCAT. 7

8 Clause 55 amends section 135 to provide that VCAT constituted by a presidential member may extend the time in which VCAT must hear an expedited complaint. Clause 56 repeals a number of sections dealing with procedural matters which are now provided for in the VCAT Act. Clause 57 inserts a new section 172A to provide that any employees that are necessary for the purposes of this Act are to be appointed or employed under the Public Sector Management Act This clause is necessary because section 191 of the Principal Act has been repealed. Section 191 provided for the appointment of the registrar and staff of both the Equal Opportunity Commission and the Anti-Discrimination Tribunal. The registrar and staff of the Anti-Discrimination Tribunal will be transferred to VCAT. Clause 58 provides for the abolition of the Anti-Discrimination Tribunal by repealing section 180 of the Principal Act and a number of other sections relating to the Anti-Discrimination Tribunal. Clause 59 repeals a number of offence provisions in the Principal Act. Similar offences have been provided for in the VCAT Act. Clause 60 inserts a new section 202 to provide that obstruction of the Equal Opportunity Commission is an offence. This is a re-enactment of the repealed section 202 as it related to the Commission. Clause 61 substitutes a new section 203 to provide that the giving of false or misleading information to the Equal Opportun~ty Commission is an offence. This is a re-enactment of the repealed section 203 as it related to the Commission. Clause 62 amends section 210 to remove a reference to the Anti Discrimination Tribunal. Clause 63 amends the regulation making power in section 212 of the Principal Act to remove a reference to the Anti-Discrimination Tribunal. Clause 64 repeals a spent transitional provision in section

9 PART 7-ESTATE AGENTS ACT 1980 General In general tenns Part 7 amends the Estate Agents Act 1980 to reflect the abolition of the Estate Agents Licensing Authority and the conferral of the function of licensing estate agents upon BLA. Further amendments reflect the abolition of the Estate Agents Disciplinary and Licensing Appeals Tribunal and the conferral of that body's jurisdiction on VCAT. Other amendments reflect the status of the Director of the Office of Fair Trading as the person primarily responsible for the ongoing supervision of estate agents. Miscellaneous amendments are also made to the application, disciplinary and review procedures and other provisions to ensure consistency with the business licensing Acts that BLA will administer. Clause 65 provides that the Principal Act for the purposes of Part 7 is the Estate Agents Act Clause 66 amends, inserts or repeals certain defmitions in section 4 of the Principal Act, including amending the definition of "Authority" to refer to BLA and the definition of "Tribunal" to refer to VCAT. Clause 67 amends section 6B of the Principal Act to amend the functions and powers of the Estate Agents Council to take into account the altered administrative arrangements for the Principal Act. Clause 68 substitutes a new Part lib in the Principal Act governing administration, which sets out the functions of BLA and the Director, the powers of BLA and the Director to enter agreements, and delegation powers of the Director and the Secretary to the Department of Justice. Delegation by BLA is dealt with in the BLA Act. Clause 69 removes a specific appeal right under section 13B of the Principal Act. The matter will be dealt with under section 32 of the Principal Act. Clause 70 amends section 14 of the Principal Act, which relates to eligibility to obtain a licence, by adding being a represented person under the Guardianship and Administration Act 1986 as a ground of ineligibility. 9

10 Clause 71 amends section 16 of the Principal Act, which relates to eligibility for employment as an agent's representative, to add being a represented person under the Guardianship and Administration Act 1986 as a ground of ineligibility, and to make other technical amendments. Clause 72 repeals section 16A of the Principal Act, which relates to the record of persons ineligible to be employed as an agent's representative. The matter will be covered by a new section 34A. Clause 73 repeals section 17(3) of the Principal Act, which requires details of applications to be forwarded to the Chief Commissioner of Police. The matter will be covered by section 20(1). Clause 74 inserts a new section 20 in the Principal Act, requiring applications to be referred to the Director of the Office of Fair Trading and Business Affairs and the Chief Commissioner of Police who must then report to BLA. Clause 75 amends section 21 of the Principal Act, which deals with the grant and effect of licences, to accommodate the uniform procedure of BLA in considering licence applications, and so as to provide that a person may not surrender a licence while disciplinary action is on foot. Clause 76 inserts new sections 21A and 2IB in the Principal Act to provide as to the imposition of conditions of licences and endorsement of those conditions on licences. Clause 77 makes a technical amendment to section 24B of the Principal Act to clarify when details of changes in an application must be notified to BLA. Clause 78 inserts new sections 24C and 24D in the Principal Act. Section 24C provides that an application may not be made within two years of a refused application unless BLA otherwise allows. Section 24D provides for replacements for lost licences to be issued. Clause 79 amends section 25 of the Principal Act to provide that disciplinary inquiries before VCAT can be sought by the Director of the Office of Fair Trading or the Chief Commissioner of Police. This function was formerly exercised 10

11 by the Estate Agents Licensing Authority by application to the Estate Agents Disciplinary and Licensing Appeals Tribunal. Procedural provisions of section 25 are also repealed. These matters will be dealt with by the VCAT Act. Clause 80 repeals sections 26 and 27 of the Principal Act which are reenacted under clause 78. Clause 81 makes consequential amendments to section 28 of the Principal Act. Clause 82 inserts a new section 28A in the Principal Act providing for the disciplinary powers of VC AT. These provisions were formerly dealt with by section 9IB, which will be repealed. Clause 83 substitutes a new section 29A in the Principal Act, which deals with the return of cancelled or suspended licences, to better deal with the various ways in which licences may be cancelled and provide for return of such licences to BLA. Clause 84 amends sections 31A to 31D of the Principal Act, which deal with applications for 'permission to practice despite ineligibility, by providing that such applications will be made to BLA, in accordance with BLA's procedure. These applications were formerly 11Ulde to the Estate Agents Disciplinary and Licensing Appeals Tribunal. Clause 85 substitutes a new section 32 in the Principal Act, which deals with applications for review to VCAT. The time limit for applications for review was formerly provided for in the Administrative Appeals Tribunal Act Clause 86 substitutes a new section 33 in the Principal Act, which deals with keeping a register under the Act. The register will administratively consolidate a number of registers previously kept under the Principal Act. Clause 87 amends section 34 of the Principal Act to provide for keeping of the record of estate agents and agents' representatives by the Registrar rather than by BLA. Clause 88 inserts a new section 34A in the Principal Act to provide for the keeping of the record of persons ineligible to be employed as 11

12 agent's representatives. This matter was formerly dealt with by section 16A, which will be repealed. Clause 89 makes amendments to section 35 of the Principal Act, which deals with registered office and address, consequential upon the amendments to sections 33 to 34A. Clause 90 amends section 41 of the Principal Act to add the Director of the Office of Fair Trading and Business Affairs as a person to whom an estate agent is obliged to produce the estate agent's licence in recognition of the functions of the Director. Clause 91 amends section 46, which deals with employees statements, by requiring that such statements be lodged with the Director of the Office of Fair Trading and Business Affairs rather than with BLA. Clause 92 amends section 49A, which deals with information about commission, by conferring the function of requiring details of commissions on the Director of the Office of Fair Trading and Business Affairs rather than BLA. Clause 93 amends section 55, which deals with restrictions on agents purchasing property, by conferring certain functions relating to such restrictions on the Director of the Office of Fair Trading and Business Affairs rather than BLA. Clause 94 inserts new sections 56A and 56B in the Principal Act. Section 56A deals with the power of the Director of the Office of Fair Trading and Business Affairs to investigate disputes and confers on VCAT the jurisdiction formerly conferred on the Estate Agents Disciplinary and Licensing Appeals Tribunal to determine disputes relating to commission or outgoings of estate agents. Section 56B deals with the powers of VCAT in relation to such disputes. Some of these matters were formerly dealt with by section 91B, which will be repealed. Clause 95 amends section 59 of the Principal Act to provide that certain notices about trust accounts will be sent to the Director of the Office of Fair Trading and Business Affairs rather than to BLA. Clause 96 amends section 60 of the Principal Act to provide that the Secretary to the Department of Justice, rather than BLA, will 12

13 enter arrangements with financial institutions for the keeping of trust accounts. Clause 97 amends section 61 of the Principal Act to provide that the Secretary to the Department of Justice, rather than BLA, will recommend to the Minister that a financial institution be authorised for the purposes of section 60. Clause 98 amends section 63 of the Principal Act to provide that the Director of the Office of Fair Trading and Business Affairs, rather than BLA, will exercise certain functions in relation to trust moneys. Clause 99 amends sections 64, 64A, 64B, 65, 66, 68, 69 and 70 of the Principal Act to provide that the Director of the Office of Fair Trading and Business Affairs, rather than BLA, will exercise certain functions in relation to the audit of trust accounts. Clause 100 amends section 72 of the Principal Act to take into account that the Estate Agents' Guarantee Fund will be kept as an account in the Trust Fund under the Financial Management Act 1994 and provides that the Secretary to the Department of Justice will be responsible for administration of the Fund. Clause 101 amends section 73 of the Principal Act, which deals with moneys constituting the Estate Agents' Guarantee Fund, to deal with the altered administrative arrangements under the Principal Act. Clause 102 repeals section 74 of the Principal Act, which deals with keeping the Estate Agents' Guarantee Fund in a separate bank account. The matter is dealt with under the Financial Management Act Clause 103 amends section 75 of the Principal Act, which deals with payment of moneys out of the Estate Agents' Guarantee Fund, to deal with the altered administrative arrangements under the Principal Act. Clause 104 amends sections 76,81,83,84 and 89 of the Principal Act to deal with the altered administrative arrangements under the Principal Act. 13

14 Clause 105 substitutes the Secretary as a party to certain insurance arrangements under section 87 of the Principal Act. Clause 106 repeals Part VllA of the Principal Act, which deals with the Estate Agents Disciplinary and Licensing Appeals Tribunal. Clause 107 makes a technical amendment to section 92 of the Principal Act, which deals with proof by official certificate. Clause 108 amends section 92A of the Principal Act to confer the power to waive fees on the Registrar rather than BLA. Clause 109 amends section 92C of the Principal Act, which deals with protection for certain complaints, by encompassing complaints to the Director of the Office of Fair Trading and Business Mfairs. Clause 110 repeals section 95A of the Principal Act, which deals with the enforcement of orders of the Estate Agents Disciplinary and Licensing Appeals Tribunal. This matter will be dealt with by the VCAT Act. Clause 111 amends section 97 A of the Principal Act, which relates to protection for things done under the Act, to accord with the revised administrative arrangements for the Act. Clause 112 makes consequential amendments to section 99 of the Principal Act, which relates to regulations. Clause 113 is a statute law revision. PART 8-GUARDIANSmp AND ADMINISTRATION BOARD ACT 1986 General In general terms Part 8 amends the Guardianship and Administration Board Act to facilitate the abolition of the Guardianship and Administration Board and transfer jurisdiction under the Act to VCAT. Clause 114 provides that in this Part the Guardianship and Administration Board Act 1986 is referred to as the Principal Act. Clause 115 changes the title of the Principal Act to remove reference to the word "Board". 14

15 Clause 116 amends section 3 of the Principal Act to insert two new definitions and amend some of the existing definitions. It repeals section 4(1) to remove reference to the Guardianship and Administration Board. Clause 117 abolishes the Guardianship and Administration Board by repealing Part 2 of the Principal Act. Clause 118 amends sections 15 and 16 of the Principal Act to substitute references to the Board with references to VCAT. This clause also substitutes to a new sub-section 16(1)0) which is a reformulation of the repealed section 16( 1)0) to remove a reference to the Anti-Discrimination Tribunal. The new subsection 16(1)(k) provides that in addition to other powers and duties the Public Advocate may perform any other function and exercise any other power conferred on him or her by this or any other Act. This clause repeals section 17(2) of the Principal Act. Clause 119 amends section 19 of the Principal Act to make it clear who the parties to the proceedings are in respect of an application for a guardianship order. Clause 120 substitutes a new section 20 which sets out who is entitled"to a notice of the making of an application for a guardianship order, notice of the hearing and notice of any subsequent order made in respect of the application. Clause 121 amends a number of sections of the Principal Act to substitute references to the Board with references to VCAT. This clause also substitutes a new section 27(4) of the Act to reformulate the offence provision to remove the reference to contravention of an order. The offence of failure to comply with an order is provided for in the VCAT Act. A new section 32(3) has been substituted to set out who is entitled to notice for an application for a temporary order, notice of the hearing and notice of any subsequent order made in respect of the application. Sub-section 32(4) has been repealed on the basis that the VCAT Act provides for the constitution of VCAT. Clause 122 substitutes a new section 39 in the Principal Act to provide that a represented party is a party to the proceedings where an application is made for consent to certain medical procedures under section 38(2). 15

16 Clause 123 inserts a new section 39A which provides that the Public Advocate is entitled to notice of an application under section 38(2), notice of the hearing and notice of any subsequent order made in respect of the application. Clause 124 amends several sections to substitute references to the Board with references to VCAT. Clause 125 amends several sections to substitute references to the Board with references to VCAT. This clause also amends section 43 to clarify who the parties are to an application for an administration order. Clause 126 substitutes a new section 44 to set out who is entitled to a notice of an application for an order appointing an administrator, notice of the hearing and notice of any subsequent order made by VCAT in respect of the application. Clause 127 amends several sections to substitute references to the Board with references to VCAT. A number of provisions dealing with procedural matters have also been repealed by this clause on the basis that they are now provided for in the VCAT Act. This clause also substitutes a new section 59 to provide who is entitled to notice of an application for a temporary order, notice of the hearing of the application and notice of any order made by VCAT in respect of the application. Clause 128 substitutes new sections 61 and 62. Section 61 provides for the internal review by VCATof a guardianship order or an administration order. This is a re-enactment of the old section 61 with changes in language to reflect language used in the VCAT Act. It also makes it clear that a person who receives notice of the review does not have to attend if that person has no issues to raise in respect of the review. Section 62 sets out who is entitled to notice of the making of an application for a review under section 61, notice of the hearing of the review and any subsequent order made by VCAT in respect of the application. Clause 129 makes amendments to a number of provisions to alter references and repeal procedural provisions. This clause also amends section 66 to provide that where a court refeis an issue under section 66(1) that the referral is to be treated as if it were an application to VCAT for the making of a guardianship order or 16

17 an administration order as the case may be and that the prothonotary of the Supreme Court or the Principal Registrar of the County Court as the case may be is to be treated as the applicant. Schedule 1 which sets out provisions with respect to members of the Board and Schedule 2 which deals with provisions with respect to the proceedings of the Board have also been repealed by this clause. PART 9-INTRODUCTION AGENTS ACT 1997 General In general terms Part 9 amends the Introduction Agents Act 1997 to reflect the substitution of BLA for the Secretary to the Department of Justice in the administration of the Register of Introduction Agents. In practical terms this does not affect introduction agents as the Introduction Agents Act 1997 is not yet proclaimed. Clause 130 provides that in Part 9 the Introduction Agents Act 1997 is called the Principal Act. Clause 131 amends, inserts or repeals certain definitions in section 3 of the Principal Act, including substituting a definition of "Authority" to refer to BLA and substituting a definition of "Tribunal" to refer to VCAT. Clause 132 amends section 15 of the Principal Act, which deals with notices of intention to act as an introduction agent, by substituting BLA for the Secretary to the Department of Justice as the person to whom the notices should be directed. Clause 133 amends section 26 of the Principal Act, which deals with notices that agreements are void, by substituting BLA for the Secretary to the Department of Justice as the person who will give those notices. Clause 134 amends sections 35, 36 and 37 of the Principal Act, to accord with the revised administrative arrangements for the Principal Act. Clause 135 amends section 39 of the Principal Act, which deals with the keeping of the Register, to accord with the revised administrative arrangements for the Act. 17

18 Clause 136 substitutes a new section 40 in the Principal Act, which deals with certificates as to the contents of the Register, to accord with the revised administrative arrangements for the Act. Clause 137 amends section 41 of the Principal Act, which deals with delegations, to accord with the revised administrative arrangements for the Act. Clause 138 adds a power of delegation for the Director of the Office of Fair Trading and Business Mfairs. PART 100MOTOR CAR TRADERS ACT 1986 General In general terms Part 10 amends the Motor Car Traders Act 1986 to reflect the abolition of the Motor Car Traders Licensing Authority and the conferral of the function of licensing motor car traders upon BLA. Further amendments reflect the conferral of the disciplinary jurisdiction of the Motor Car Traders Licensing Authority on VCAT. Amendments are also made to the application, disciplinary and review procedures and other provisions to ensure consistency with the business licensing Acts that BLA will administer. Clause 139 provides that in Part 10 the Motor Car Traders Act 1986 is called the Principal Act. Clause 140 amends, inserts or repeals certain definitions in section 3(1) of the Principal Act, including amending the definition of "Authority" to refer to BLA and inserting a definition of "Tribunal" to refer to VCAT. Clause 141 amends section 8 of the Principal Act by providing that applications will be made in an approved form to BLA. Clause 142 inserts a new section 10 in the Principal Act to require an applicant to notify BLA of changes to an applicant's particulars while an application is being considered. Clause 143 amends section 11 of the Principal Act to clarify that a report of the Director of the Office of Fair Trading and Business Mfairs or the Chief Commissioner of Police on an application under section 11 may contain a recommendation. This is necessary because an objection will no longer be lodged under section

19 A further amendment is made to allow appropriate details of the application to be provided. Clause 144 repeals section l1a of the Principal Act, which provides that BLA may require further infonnation in considering an application. This is now provided for in section 12. Clause 145 substitutes a new section 12 in the Principal Act, which sets out the powers of BLA in considering an application, to confonn with the unifonn procedure of BLA under the business licensing Acts it will administer. Clause 146 amends section 13 of the Principal Act by clarifying the circumstances under which BLA will grant or refuse licences and making certain amendments to eligibility criteria and the procedure for granting or refusing applications, including removing the requirement of a hearing. BLA will make its decisions on the papers. Clause 147 amends section 15 of the Principal Act by broadening the circumstances under which BLA may require return of a licence for endorsement of conditions to meet the circumstances when those conditions can be imposed. Clause 148 amends section 16 of the Principal Act to modify the procedure for granting authorities to sell motor cars at public auction in a similar manner to that provided for in the case of applications for licences. Clause 149 amends section 17 of the Principal Act to clarify that BLA may vary or revoke an authorisation under section 17 to trade under names other than the name of the licensee. Clause 150 amends section 18 of the Principal Act to provide for alteration of licence endorsements where an authorisation is varied or revoked under section 17. Clause 151 amends section 19A of the Principal Act to take into account recent amendments to the Corporations Law concerning the minimum number of directors of a proprietary company. Clause 152 amends section 20 of the Principal Act to provide that notice of changes of particulars should be given to BLA. 19

20 Clause 153 amends section 21 of the Principal Act to provide that returned licences should be given to BLA. Clause 154 makes a minor amendment to section 22 of the Principal Act, which relates to the form of the register. Clause 155 makes a technical amendment to section 23 of the Principal Act to clarify when an annual fee is due to conform with the uniform procedure of BLA under the business licensing Acts it will administer. Clause 156 amends section 27 of the Principal Act to provide that surrendered licences should be given to BLA and to provide that licences may not be surrendered while disciplinary action is on foot. Clause 157 amends section 29D of the Principal Act, which deals with the procedure for imposing conditions on a permission under sections 29A to 29C, so as to conform with BLA's uniform procedure for considering applications. Clause 158 amends section 30 of the Principal Act, to conform with the uniform procedure of the Tribunal in respect of disciplinary inquiries under the business licensing Acts and take into account that disciplinary inquiries will be now be conducted by VCA T notbla. Clause 159 amends section 30A of the Principal Act to take into account that disciplinary inquiries will be conducted by VCAT not BLA. Clause 160 amends section 31 of the Principal Act, which deals with the powers available on a disciplinary inquiry, to take into account that disciplinary inquiries will be conducted by VCAT not BLA, and to standardise the disciplinary powers of VCAT under a number of business licensing Acts. Clause 161 amends section 31B of the Principal Act, which provides that suspended and cancelled licences must be returned, to take into account that disciplinary inquiries will be conducted by VCAT notbla. Clause 162 substitutes section 32 of the Principal Act, which deals with administrative review of BLA's decisions, to take into account that VCAT will replace the Administrative Appeals Tribunal. 20

21 The time limit for review applications was formerly provided for under the Administrative Appeals Tribunal Act Clause 163 amends sections 45 and 47 ofthe Principal Act, which deal with rescission of agreements for the sale of motor cars, to take into account that VCAT will replace the Credit Tribunal. Clause 164 amends section 49 of the Principal Act, which deals with notifications by credit providers of breaches of the Principal Act, to take into account that the Director of the Office of Fair Trading and Business Affairs will be primarily responsible for consumer protection and market supervision under the Principal Act. Clause 165 amends section 52 of the Principal Act, which requires certain particulars to be displayed on motor cars for sale, to take into account that the Director of the Office of Fair Trading and Business Affairs will be primarily responsible for consumer protection and market supervision under the Principal Act. Clause 166 repeals sections 64, 65, 68, 69, 71A, 71B and 72 of the Principal Act, which relate to claims on the Motor Car Traders Guarantee Fund, to take into account the change in procedure of the Motor Car Traders Guarantee Fund Claims Committee. Clause 167 amends section 70 of the Principal Act, which provides for the procedure of the Motor Car Traders Guarantee Fund Claims Committee, to take into account that the Motor Car Traders Guarantee Fund Claims Committee will not hold hearings, but rather determine matters on the papers. Clause 168 is a consequential amendment of section 73 of the Principal Act to take into account the change in procedure of the Motor Car Traders Guarantee Fund Claims Committee. Clause 169 amends section 74 of the Principal Act, which deals with the Motor Car Traders Guarantee Fund, to make consistent the description of the Fund with terms under the Financial Management Act Clause 170 amends section 76 of the Principal Act, which deals with determination of claims on the Motor Car Traders Guarantee Fund, to make certain technical amendments clarifying what breaches of the Act are actionable before the Motor Car Traders 21

22 Guarantee Fund Claims Committee, taking into account that the Small Claims Tribunals will be replaced by VCAT, and taking into account that VCA T will have disciplinary functions under the Act. Clause 171 substitutes a new section 79 of the Principal Act to make technical amendment to the provision for review of decisions of the Motor Car Traders Guarantee Fund Claims Committee. Clause 172 is a technical amendment of section 83H of the Principal Act to take into account that VCAT will hear disciplinary matters. Clause 173 amends section 83D of the Principal Act to provide that where complaints are lodged with the Director, these complaints are also protected in certain circumstances. Clause 174 amends section 84A of the Principal Act, which deals with false or misleading statements, to take into account that objections to the grant of licences will now be replaced by submissions. Clause 175 amends section 84B of the Principal Act, which deals with the production of records, to take into account the altered procedures for determining licence applications and claims before the Motor Car Traders Guarantee Fund Claims Committee. Clause 176 re-enacts section 115A of the Principal Act, which deals with simplified proof of trading in motor cars as a new section 85A of the Principal Act. The Part in which section 115A appears currently is to be repealed. Clause 177 re-enacts section 113 ofthe Principal Act, which deals with extension of time for procedures under the Act as a new section 86A of the Principal Act. The Part in which section 113 appears currently is to be repealed. Clause 178 inserts as a new section 87 A of the Principal Act a provision enabling BLA to waive or refund fees. Clause 179 inserts a delegation power for the Director of Fair Trading and Business Affairs. Clause 180 amends section 90 of the Principal Act, which deals with regulations, by clarifying the regulation-making powers under the Principal Act. 22

23 Clause 181 repeals Part 7 of the Principal Act, which relates to the Motor Car Traders Licensing Authority and its procedure. PART ll-planning AND ENVIRONMENT ACT 1987 General In general terms Part 11 amends the Planning and Environment Act 1987 to grant jurisdiction under this Act to VCAT and substitutes language which is consistent with language used in the VCAT Bill. A number of amendments have also been made to insert provisions which were contained in the Planning Appeals Act 1980 which is repealed by this Act. Clause 182 provides for the purposes of this Part the Planning and Environment Act 1987 is referred to as the Principal Act. Clause 183 omits the definition of "Administrative Appeals Tribunal" in section 3 of the Principal Act and inserts a definition of "principal registrar" and "Tribunal". Clause 184 substitutes a new section 83 to clarify who the parties are in a proceeding for review under the Principal Act. This section must be read in conjunction with the VCAT Act which also sets out who the parties are in particular proceedings. This clause also inserts a new section 83A to provide that in certain circumstances objectors are entitled to notice of an application for review by the applicant. This clause also inserts a new section 83B provides for notice where the President of VCAT is satisfied that notice of an application was not given or was not adequate. Clause 185 amends section 84(1) to replace the words "appeal is lodged against" with "application is made for review of". The purpose of this change is to make the language used in this section consistent with language used in the VCA T Act. This clause also amends section 84 to insert several new suj;>-sections. These sections are a reformulation of section 34 of the Planning Appeals Act 1980 and relate to what happens when a responsible authority decides to grant a permit after an application is made to VCAT of a failure to grant a permit. Clause 186 inserts a new section 84A to provide that parties are not restricted to the ground previously notified to other parties or 23

24 VCAT in a proceeding for review. This is a re-enactment of section 52(1A) of the Planning Appeals Act This clause also inserts a new section 84B which sets out the matters which VCAT may take into account in determining an application for review under the Principal Act. This is a re-enactment of section 27 of the Planning Appeals Act Clause 187 inserts a new section 86 in the Principal Act to set out that if VCA T requires a responsible authority to issue a permit the responsible authority must issue the permit within a specified time frame. This is a re-enactment of section 63 of the Planning Appeals Act Clause 188 substitutes a new section 115(1) in the Principal Act to provide who is entitled to notice of an application for an enforcement order. This clause also repeals a number of procedural provisions in the Principal Act which are now dealt with in the VCAT Act. Clause 189 substitutes a heading. Clause 190 inserts a new section 148 in the Principal Act to provide for a defmition of "specified body" and "specified person" in Division 5 of the Principal Act. This clause also inserts a new section 149 to provide that a specified person may apply to VCAT for review of certain decisions. This is reformulation of section 149A(I)(a)(i)-(iia) of the Principal Act with language consistent with language used in the VCAT Act. The new section 148 also specifies that the application must be made within 28 days after the date on which the decision is made and it also sets out that the responsible authority is a party to any proceeding under section 148. This clause also inserts a new section 149A which sets that a specified person may apply to VCAT for the determination of certain matters. This is a reformulation of section 149A(I)(iii) and (v) ofthe Principal Act with language consistent with language used in the VCAT Act. The new section 149A also provides what VCAT may do in determining the matter. It also provides that the responsible authority is a party to any proceeding under this section. This clause also inserts a new section 149B which provides that a person may apply to VCAT for a declaration concerning any matter which 24

25 may be the subject of an application to VCAT under this Act or any thing done by a responsible authority under this Act. Clause 191 makes a number of amendments to various sections of the Principal Act 10 alter references to the "Administrative Appeals Tribunal" to "Tribunal". It also makes a number of amendments to various sections to make the language used consistent with language used in the VCAT Act. Clause 192 repeals section 209 and 210 of the Principal Act which are spent provisions. PART 12-PROSTITUTION CONTROL ACT 1994 General In general terms Part 12 amends the Prostitution Control Act 1994 to reflect the abolition of the Prostitution Control Board and the conferral of the function of licensing prostitution service providers and approving managers for those services upon BLA. Further amendments reflect the conferral of the disciplinary jurisdiction of the Prostitution Control Board on VCAT. Amendments are also made to the application, disciplinary and review procedures and other provisions to ensure consistency with the business licensing Acts that BLA will administer. Clause 193 provides that in Part 12 the Prostitution Control Act 1994 is called the Principal Act. Clause 194 amends, inserts or repeals certain definitions in section 3 of the Principal Act, including the addition of a definition of "Authority" to refer to BLA and a deftnition of "Tribunal" to refer to VCAT. Clause 195 amends section 24 of the Principal Act by providing that a person relying on an exemption to hold a licence must give prescribed particulars to BLA in place of the former Board, inserts references to the Registrar of BLA and adds the Director of the Offtce of Fair Trading and Business Affairs to certain others persons entitled to inspect the register of exempt businesses. Clause 196 inserts a substituted Division 2 of Part 3 of the Principal Act, setting out functions of BLA and functions of the Director of the 25

26 Office of Fair Trading and Business Affairs. A delegation power is inserted for the Director. Clause 197 amends section 33 of the Principal Act which sets out the procedure for making application for a licence as a prostitution service provider, by inserting references to BLA in place of the former Board. Clause 198 substitutes a new section 34 in the Principal Act providing that BLA must make copies of undetermined applications for licences available for inspection by any person. Clause 199 substitutes sections 35 and 36 in the Principal Act and inserts a new section 36A. Section 35 generally provides the process of notice BLA must follow on receipt of a licence application, and provides for submissions to be made to BLA in respect of licence applications. Section 36 sets out the process of notice BLA must follow in respect to the Director of the Office of Fair Trading and Business Affairs and the Chief Commissioner of Police and provides that the Chief Commissioner of Police must inquire and report back to BLA. Section 36A sets out the powers of BLA in considering an application. Clause 200 amends section 37 of the Principal Act by clarifying the circumstances under which BLA will refuse a licence. Clause 201 amends section 38 of the Principal Act by inserting references to BLA in place of the former Board and removing references to renewals. Licences under the Principal Act will be perpetual unless suspended, cancelled or surrendered, as provided in the new section 39. Clause 202 amends section 39 of the Principal Act by clarifying the circumstances under which BLA must grant a licence. Clause 203 amends section 40 of the Principal Act by inserting references to BLA in place of the former Board and provides that where conditions on a licence are added, varied or revoked those matters are to be set out in the licence. Clause 204 inserts a new section 40AA and provides that BLA may require the return of a licence for endorsement where a condition is imposed, varied or revoked by BLA or where this occurs through disciplinary proceedings before VCAT. 26

27 Clause 205 amends section 40A of the Principal Act, which provides for surrender of a licence at any time save when a disciplinary inquiry is on foot, (when leave of VC AT will be needed), by inserting references to BLA and VCAT in place of the former Board. Clause 206 repeals section 41 of the Principal Act which relates to renewals. A system of renewals will no longer apply. A new section 41 is inserted which provides that if a licence is suspended or cancelled it must be returned to BLA. Clause 207 consequentially repeals section 42 of the Principal Act which also relates to renewals. Clause 208 makes consequential amendments of section 43 of the Principal Act by removing references to renewals and inserting references to BLA in place of the former Board. Clause 209 makes consequential amendments of section 44 of the Principal Act by removing references to renewals. Clause 210 makes a consequential amendment of section 45 of the Principal Act by removing references to renewals and provides that a licensee must give particulars to BLA of changes in information provided in annual statements. Clause 211 makes consequential amendments of section 46 of the Principal Act by removing references to renewals, adding references to annual statements and inserting references to BLA in place of the former Board. Clause 212 substitutes section 46A of the Principal Act and adds section 46B and 46C. Section 46A is a technical amendment to clarify when an annual statement is due and what period it covers. Section 46B provides that an extension of time may be given on payment of a late fee. Section 46C makes provision for the process of automatic cancellation of a licence in the event a licensee fails to comply with annual fee and statement requirements. Clause 213 amends section 47 of the Principal Act by inserting references to VCAT in place of the former Board and providing who may make application for such a cancellation. Section 47 sets out the process of licence cancellation in the event of circumstances 27

28 such as conviction of the licensee for certain offences and adds grounds for automatic cancellation where a licensee becomes an insolvent or a represented person within the meaning of the Guardianship and Administration Act 1986 consistent with other licensing schemes administered by BLA. Clause 214 amends section 48 of the Principal Act to take into account that disciplinary inquiries will be conducted by VCAT. Clause 215 amends section 48A of the Principal Act to take into account that disciplinary inquiries will be conducted by VCAT not the Board, and to standardise the disciplinary powers of VC AT. Clause 216 amends section 50 of the Principal Act, which deals with approval of managers, to take into account that manager approvals will be given by BLA in place of the former Board. Clause 217 is a con~equential amendment of section 51 of the Principal Act, to take into account that manager approvals will be given by BLA in place of the former Board. Standardised grounds for ineligibility to be approved as a manager are added for insolvency and represented person status. Clause 218 amends section 52 of the Principal Act, which deals with the grant or refusal of manager approvals, to take into account that manager approvals will be granted by BLA in place of the former Board. Clause 219 amends section 52A of the Principal Act, which deals with surrender of approvals, by inserting references to BLA and VCAT in place of the former Board to take into account that a surrender of a manager approval will be giving to BLA in place of the former Board; VCAT must give approval for a surrender where disciplinary action is on foot. Clause 220 amends section 53 of the Principal Act, which deals with cancellation of manager approval, by removing references to renewals and inserting references to VCA T in place of the former Board to take into account that VCA T will cancel manager approvals. Clause 221 amends section 54 of the Principal Act, which deals with disciplinary action against approved managers, by inserting references to BLA and VCAT in place of the former Board to 28

29 take into account that VCAT will hear disciplinary inquiries against approved managers in place of the former Board. Clause 222 amends section 54A of the Principal Act, which deals with disciplinary powers, to take into account that disciplinary inquiries will be conducted by VCAT not the Board, and to standardise the disciplinary powers of VC AT. Clause 223 amends section 55 of the Principal Act, which deals with the licences and approvals register, by inserting references to the Registrar of BLA who will keep the register of particulars of licences, inserting references to BLA in place of the former Board, removing references to renewals and adding a reference to annual statements. Clause 224 substitutes Division 7 of Part 3 of the Principal Act. The reference to an appeal on a question of law to the Supreme Court is now contained in the VCAT Act. The substituted section 56 makes provision for application for review to VCAT from certain decisions of the Authority within a specific period. Clause 225 amends section 62 of the Principal Act by inserting references to the Director of the Office of Fair Trading and Business Affairs and BLA in place of the former Board to take into account that the function of monitoring entry to licensed premises by police under the Principal Act will be carried out by the Director. BLA is provided with access to this information to assist it in its licensing functions. Clause 226 is a consequential amendment of section 64 of the Principal Act to take into account that the function of monitoring entry to licensed premises by police under the Principal Act will be carried out by the Director of the Office of Fair Trading and Business Affairs. Clause 227 amends section 66 to update the reference to keeping of the Fund consistent with the Financial Management Act Clause 228 amends section 67 of the Principal Act to take into account that certain functions of the Board will now be carried out by the Advisory Committee. 29

30 Clause 229 amends section 68 of the Principal Act, which deals with regulation making powers, to take into account the abolition of the Board. Clause 230 amends section 87 of the Principal Act, which deals with secrecy, by removing references to the former Board. Clause 231 amends section 88 of the Principal Act, which deals with immunity, by removing references to the former Board and removing the immunity granted to the Advisory Committee. Clause 232 amends section 88A of the Principal Act, which deals with destruction of fmgerprints, by removing reference to renewals and inserting references to BLA in place of the Board. Clause 233 repeals Schedules 1 and 2 to the Principal Act which made provision for membership of the Board. Membership provisions for BLA are contained in the BLA Act. PART 13-RESIDENTIAL TENANCIES ACT 1997 General In general terms Part 13 amends the Residential Tenancies Act 1997 to facilitate the abolition of the Residential Tenancies Tribunal and grant jurisdiction under the Act to VCAT. Clause 234 provides that in this Part the Residential Tenancies Act 1997 is referred to as the Principal Act. Clause 235 amends section 1 of the Principal Act to remove references to the Residential Tenancies Tribunal and amends section 3 to insert, substitute, amend and repeal definitions. Clause 236 amends several sections to substitute references to the Board with references to VCAT and references to the registrar with references to the principal registrar of VC AT. A number of provisions dealing with procedural matters have also been repealed by this clause on the basis that they are now provided for in the VCAT Act. Clause 237 substitutes a new section 415 which provides that where a landlord makes an application to VCAT for the payment out of a bond and VCAT if satisfied that it is proper to do so, VCAT must make a determination of the amount of rent owing to the landlord by the tenant at the date of the application and make an 30

31 order directing the Rental Bond Authority to payout an amount of bond to the landlord in respect of the amount owing. The principal registrar of VCAT exercises the Tribunal's power under this section. This new section is a reformulation of the repealed section 415. Clause 238 repeals a number of provisions dealing with procedural matters which have been repealed on the basis that they are now provided for in the VCAT Act. This clause amends a number of sections substituting the term "determination" with the term "order" and the word "registrar" with "principal registrar". This clause also repeals Division 1 of Part 11 which removes references to the Residential Tenancies Tribunal which would have been established had the VCAT Act not come into operation. Clause 239 inserts a new section 498A of the Principal Act to provide that the Director may authorise the payment of money out of the Residential Tenancies Fund for some or all of the costs incurred where VCAT refers a question of law in a proceeding under this Act to the Supreme Court or Court of Appeal under section 96 of the VCAT Act and the Director considers the question is of general public importance. Clause 240 amends section 499 to remove reference to members and registrars of the Residential Tenancies Tribunal from the requirements relating to confidentiality. The VCAT Act contains a confidentiality section which applies to members, registrars and staff of VCAT. This clause also amends the offence provision contained in section 504 [the giving of false information] to remove reference to the Tribunal and registrar. The VCAT Act provides for a similar offence. Clause 241 sets out who are the parties to a proceeding in VCAT under the Principal Act. Clause 242 amends the regulation making power set out in section 511 where the regulation making power is to be exercised pursuant to the VCAT Act. This clause also amends some sections to alter references. 31

32 PART 14-RETAIL TENANCIES REFORM ACT 1998 General In general terms Part 14 amends the Retail Tenancies Reform Act 1998 by substituting a new Part 3 (Determination of disputes). The new Part 3 confers exclusive jurisdiction on VCAT in respect of certain kinds of retail tenancies disputes. Other consequential amendments are made to accommodate this conferral. Clause 243 provides that in Part 14 the Retail Tenancies Reform Act 1998 is called the Principal Act. Clause 244 inserts a definition of "Tribunal" in section 3(1) of the Principal Act, referring to VCAT. It also contains a transitional provision. Clause 245 substitutes a new Part 3 in the Principal Act dealing with dispute resolution, as follows: Section 33 provides for the objects of the Part. Section 34 provides that the Part applies to any dispute between a landlord and a tenant arising under or in relation to a retail premises lease, with certain exceptions. Section 35 confers on VCAT exclusive jurisdiction in relation to disputes to which the Part applies. Section 36 provides that a landlord and tenant may apply to VCA T if a dispute to which the Part applies has arisen. Section 37 provides that the parties to the proceeding in VCAT are the applicant and the other party to the dispute and any person joined as a party by VCAT. Section 38 provides for the types of orders which can be made by VCAT in resolving a dispute to which the Part applies. This should be read together with VCA T's general powers to make declarations and injunctions under the VCAT Act. Section 39 provides for transitional provisions in relation to matters under conciliation or arbitration under the Retail Tenancies Act

33 Clause 246 makes consequential amendments to sections 11(4)(b), 15(8), and 47(1) of the Principal Act to accommodate the changed nature of the dispute resolution procedure under the Principal Act. Clause 247 substitutes a new section 48 in the Principal Act, providing for the limitation of the Supreme Court's jurisdiction in relation to disputes to which the new dispute resolution procedure applies. PART 15-SECOND-HAND DEALERS AND PAWN BROKERS ACT 1989 General In general terms Part 15 amends the Second-Hand Dealers and Pawnbrokers Act 1989 to reflect the substitution of BLA for the Secretary to the Department of Justice in the administration of the Register of Second-Hand Dealers and Pawnbrokers. Clause 248 provides that in Part 15 the Second-Hand Dealers and Pawnbrokers Act 1989 is called the Principal Act. Clause 249 amends, inserts or repeals certain definitions in section 3(1) of the Principal Act, including substituting a definition of "Authority" to refer to BLA and substituting a definition of "Tribunal" to refer to VCAT. Clause 250 amends section 6 of the Principal Act, which deals with eligibility for registration, by inserting as a new ground of ineligibility being a represented person within the meaning of the Guardianship and Administration Act Clause 251 amends section 7 of the Principal Act, which deals with applications for registration, by substituting BLA for the Secretary to the Department of Justice, and by requiring an application to be updated where particulars change prior to grant. Clause 252 amends section 8 of the Principal Act, which relates to investigations and reports, by substituting BLA for the Secretary to the Department of Justice, and by clarifying that a report may include recommendations. Clause 253 inserts a new section 8A in the Principal Act, setting out BLA's uniform procedure and powers in considering applications. 33

34 Clause 254 amends section 9 of the Principal Act, which deals with registration, by substituting BLA for the Secretary to the Department of Justice, and by removing a provision for cancellation of licences which will be dealt with by section 11. Clause 255 inserts new sections 9A and 9B in the Principal Act. Section 9A deals with notice of decision whether to register an applicant; section 9B confers a new right of administrative review to VCAT in respect of decisions of BLA about registration. Clause 256 amends section 10 of the Principal Act, which deals with automatic cancellation of registration, by adding as a new ground being a represented person within the meaning of the Guardianship and Administration Act Clause 257 substitutes a new section 11 and inserts a new section lla in the Principal Act, dealing with annual fees and statements to accord with consistent arrangements dealt with by BLA. Clause 258 amends section 12 of the Principal Act, which deals with notification of changes to particulars, by substituting BLA for the Secretary to the Department of Justice. Clause 259 amends section 13 of the Principal Act, which deals with the register of second-hand dealers and pawnbrokers, by substituting BLA and the Registrar for the Secretary to the Department of Justice; and amends section 14, which deals with correction of the register, by substituting BLA and the Registrar for the Secretary to the Department of Justice, and by substituting VCAT for the Administrative Appeals Tribunal. Clause 260 repeals section 15 of the Principal Act, which deals with approved forms. Forms will be approved by BLA from time to time but there will not be a requirement that they be published in the Government Gazette and amends section 23 of the Principal Act, which deals with notices of interest charges, by substituting BLA for the Secretary to the Department of Justice as the body which approves the form of the notice. Clause 261 amends section 24 of the Principal Act, which deals with ownership disputes, by clarifying a reference to the Registrar as being a reference to the Registrar of the Court. 34

35 Clause 262 substitutes section 28 of the Principal Act, which deals with delegation by the Secretary to the Department of Justice, to provide for delegation by the Director of the Office of Fair Trading and Business Mfairs. Clause 263 amends section 29 of the Principal Act, which deals with evidentiary provisions, by substituting the Registrar for the Secretary to the Department of Justice. Clause 264 is a statute law revision. PART 16-SMALL CLAIMS TRIBUNALS ACT 1973 General Generally Part 16 amends the Small Claims Tribunals Act 1973 to facilitate the abolition of the Small Claims Tribunals and grant jurisdiction under the Act to VCAT. Clause 265 provides that in this Part the Small Claims Tribunals Act 1973 is referred to as the Principal Act Clause 266 changes the title of the Principal Act to remove reference to the word "Tribunals". Clause 267 amends section 2 to repeal some defmitions and insert and substitute some new definitions. As a result of an amendment to the definition of "small claim" the monetary jurisdiction of VCAT in respect of small claims is $ The increase on the limit on what constitutes a small claim only applies to small claims in respect of which an application is made to VCAT on or after the commencement of this clause. Clause 268 abolishes the Small Claims Tribunal by repealing Part 1 of the Principal Act. Clause 269 changes the heading of Part 2 of the Principal Act. Clause 270 inserts a new section 14 in the Principal Act to provide that a consumer may apply to VCAT for an order in respect of a small claim. A person who receives an application is placed under a duty to assist the consumer in making the application. A similar duty exists under the VCA T Act. However, it only applies to the principal registrar of VCAT. It is intended that an application under this Part can be lodged in a Magistrates' Court in rural areas. This section places the staff of the Magistrates' Court 35

36 under the same duty. The new section 15 sets out who the parties are in a small claim proceeding. The new section 16 provides that VCAT has exclusive jurisdiction in respect of small claims except in those circumstances set out in section 16(1)(a) and (b). Clause 2~ 1 repeals section 17 of the Principal Act which excluded the jurisdiction to review decisions relating to small claims unless these had been a denial of natural justice or VCAT had no jurisdiction to hear the matter. Clause 272 inserts a new section 18 which sets out what orders VCAT can make in a proceeding in respect of a small claim. Clause 273 repeals section 20 on the basis that the enforcement of orders is now dealt under the VCAT Act and amends references in section 19 to refer to VCA T's increased monetary jurisdiction in small claims proceedings. Clause 274 substitutes a new section 20A to provide for the lodging of money with the principal registrar. Clause 275 repeals a number of procedural provisions on the basis that they are now dealt with in the VCAT Act. Clause 276 inserts a new section 39B which provides that it is the intention of section 16 of the Principal Act as substituted by clause 270 to alter or vary section 85 of the Constitution Act Clause 277 amends the regulation making power in section 40 to remove references to the Small Claims Tribunals. Clause 278 makes a consequential amendment to the Motor Cars Traders (Amendment) Act PART 17-TRA VEL AGENTS ACT 1986 General In general terms Part 17 amends the Travel Agents Act 1986 to reflect the abolition of the Travel Agents Licensing Authority and the conferral of the function of licensing travel agents upon BLA. Further amendments reflect the conferral of the Travel Agents Licensing Authority'S disciplinary jurisdiction on VCAT. Amendments are also made to other provisions to ensure 36

37 consistency with the business licensing Acts that BLA will administer. Clause 279 provides that the Principal Act for the purposes of Part 17 is the Travel Agents Act Clause 280 amends, inserts or repeals certain definitions in section 3(1) of the Principal Act, including substituting a definition of "Authority" referring to BLA and inserting a definition of "Tribunal" referring to VCAT. Clause 281 amends section 8 ofthe Principal Act, which relates to applications for licences, to confonn with BLA's unifonn procedure for dealing with licence applications. Clause 282 substitutes a new section 9 in the Principal Act and inserts a new section 9A in the Principal Act. New section 9 requires applications to be referred to the Director of the Office of Fair Trading and Business Affairs and to the Chief Commissioner of Police. New section 9A sets out the powers of BLA in considering an application. Clause 283 amends section 10 of the Principal Act to provide that BLA is not required to hold a hearing in detennining a licence application, and to remove a reference to notification of the grounds of refusal. This matter will be dealt with by the VCAT Act. Clause 284 amends section 11 of the Principal Act to remove a requirement for BLA to hold a hearing before imposing or varying conditions or restrictions on a licence. Clause 285 inserts a new section lla in the Principal Act to provide for the endorsement of conditions and restrictions on licences. Clause 286 amends section 15 of the Principal Act to take into account the replacement of the Travel Agents Licensing Authority by BLA and to provide for Registrar's certificates and correction of the Register of Travel Agents. Some of these matters were fonnerly dealt with under Part 5 of the Act, which will be repealed. Clause 287 inserts a new section 16A in the Principal Act to provide for automatic cancellation of a licence in the case of insolvency or 37

38 becoming a represented person under the Guardianship and Administration Act Clause 288 amends section 17 of the Principal Act to bring the timing and coverage of annual fees and annual statements into line with the general scheme to be administered by BLA. Clause 289 substitutes a new section 18 in the Principal Act to provide that cancelled or suspended licences must be returned to BLA, and inserts a new section 18A in the Principal Act providing for surrender of licences. Clause 290 amends section 19 of the Principal Act, which deals with duplicate licences, to take into account the replacement of the Travel Agents Licensing Authority by BLA. Clause 291 amends section 20 of the Principal Act, which relates to disciplinary inquiries. Such inquiries will be heard by VCAT rather than by BLA. The Chief Commissioner of Police is added as a person able to seek an inquiry. The procedure of the inquiry will be generally provided for in the VCAT Act. Clause 292 amends section 21 of the Principal Act, which provides for disciplinary powers, to accord with the standard disciplinary powers of VCAT under a number of business licensing Acts, and to take into account that VCA T's procedure will be governed by the VCAT Act. Clause 293 amends section 22 of the Principal Act, which deals with administrative review, to take into account that reviews of decisions of BLA will be heard by VCAT. The time limit on reviews was formerly provided for in the Administrative Appeals Tribunal Act Clause 294 amends sections 25, 26, 27 and 28 of the Principal Act, which deal with unjust conduct by travel agents, to confer on the Tribunal the jurisdiction formerly exercised by the Travel Agents Licensing Authority in relation to breaches of undertakings and the replacement of the Travel Agents Licensing Authority by BLA. Clause 295 amends section 34 of the Principal Act to clarify that BLA is not empowered to approve the employment of a person in contravention of an order of VCAT. 38

39 Clause 296 amends section 41 of the Principal Act to grant members of the police force powers of entry and associated inspection powers. Clause 297 amends section 42 of the Principal Act to grant members of the police force powers to demand the production of records. Clause 298 amends section 42A of the Principal Act, which relates to the production of records in proceedings, to take into account the altered procedure in relation to applications for licences. Clause 299 amends section 42B of the Principal Act, which relates to false or misleading statements, to take into account that formal objections to licence applications will no longer be made. Clause 300 inserts a new section 42BA in the Principal Act to provide for waiver and refund of fees. This matter was formerly dealt with by section 68(2A). Clause 301 amends section 42C of the Principal Act, which relates to payments by the Registrar, to take into account the replacement of the Travel Agents Licensing Authority by BLA. Clause 302 amends section 45 of the Principal Act to provide that members of the police force may prosecute offences against the Act. Clause 303 amends section 46 of the Principal Act, which relates to compensation claims, to take into account the replacement of the Administrative Appeals 'J;'ribunal by VCAT. Clause 304 inserts a new section 46A in the Principal Act permitting BLA to grant extensions of time. This matter was formerly dealt with by section 66A. Clause 305 inserts a new section 47 A in the Principal Act, providing for protection for things done under the Act. This matter was formerly dealt with by section 71. A new section 47B is inserted providing a power of delegation to the Director. Clause 306 amends section 48 of the Act, which relates to regulations. Clause 307 repeals Parts 5 and 6 of the Act. Part 5 relates to the Travel Agents Licensing Authority and Part 6 is a spent provision. 39

40 PART IS-VALUATION OF LAND ACT 1960 General Generally Part 18 amends the Valuation or Land Act 1960 to grant jurisdiction under the Act to VCAT and substitute language which is consistent with language used in the VCAT Act. Clause 308 inserts a new sub-section 3A(6) which provides that despite the requirements to maintain secrecy placed on the Valuer-General and other officers appointed to administer this Act under section 3(3A) the Secretary of the Department administering this Act has access to any material required for the purposes of the Freedom or Information Act 1982 and prepared under or for the purposes of this Act. Clause 309 inserts a new Part ill into the Act. This is essentially a reenactment of the old Part ill of the Principal Act with language which is consistent with language used in the VCAT Act. A number of provisions relating to procedure have not been reenacted because it is now provided for in the VCAT Act or alternatively if it provided for procedure to apply in the Supreme Court it has not been reproduced on the basis that the procedure is already provided for in rules of the court. PART 19-GENERAL This Part provides for the repeal of various Acts and makes provision for consequential amendments and transitional matters. SCHEDULE 1 This Schedule amends a number of Acts as a consequence of the abolition of a number of Tribunals and the establishment of VCAT and BLA. Amendments have been made to the Acts referred to in this Schedule to remove references to Tribunals, Boards and Authorities which have been abolished by this Act and refer to VCAT or BLA as appropriate. Where necessary amendments have also be made to set out- who may bring an application to VCAT; who are the parties to an application; time limits for making an application; and the substantive relief that VCAT may provide. 40

41 The amendments also standardise the test for standing before VCAT. Acts conferring jurisdiction on the Administrative Appeals Tribunals have set a variety of tests for standing. This Act amends those Acts to make it clear that a person whose interests are affected by a decision may apply to VCAT for review of the decision. The VCAT Act sets out when a person's interests are affected by a decision. SCHEDULE 2 General Item 1 Item 2 In general terms Schedule 2 provides transitional arrangements for the bodies, persons, parties and personnel affected by the creation of VCAT and BLA and the abolition of former statutory bodies. Provision is made amongst other things, to transfer assets and liabilities of those former bodies, to provide for references to those old bodies in legislation and other documents, to transfer personnel along with their terms and conditions, provide for the treatment of pending proceedings in those former bodies, the continuing status of certain declarations and orders of those former bodies and provide for the continuing effect of certain subordinate instruments until new regulations and rules can be put in place. The transitional arrangements will allow the commencement of VCAT and BLA with staff and members in place to begin operations and maintain services in respect of matters already on foot in those former bodies. provides definitions for the interpretation of a number of terms used in Schedule 2. The definitions provide, amongst other things for a distinction of former tribunals and former licensing bodies to reflect the division of functions put in place by the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act A further distinction is made between "Tribunal matters" and "non-tribunal matters" to reflect this division of functions between matters now to be dealt with by VCAT and matters to be dealt with by BLA. abolishes each former tribunal and transfers rights, property, assets, debts, liabilities and obligations of former tribunals (except former licensing bodies) to VCAT. VCAT is substituted as a party to pending proceedings, contracts and other arrangements where before commencement a former tribunal was a party. It also abolishes each former licensing body and transfers rights, property, assets, debts, liabilities and obligations of former licensing bodies to the State. VCAT or BLA are 41

42 substituted as a party to pending proceedings depending on which body will now have those particular functions. BLA is substituted as a party to existing contracts and other arrangements where before commencement a former licensing body was a party to these arrangements. Item 3 Item 4 provides that after commencement day references to former tribunals will generally be construed as references to VCAT. It also provides that after commencement day references to former licensing bodies will generally be construed as references to BLA. provides for the transfer of members from former bodies to VCAT and BLA. The President of the Administrative Appeals Tribunal and the Chairperson of the Domestic Building Tribunal, who are County Court judges will be transferred to become vice-presidents of VC AT. Persons currently holding offices as a Deputy President of the Administrative Appeals Tribunal, the President or a Deputy President of the Anti Discrimination Tribunal, the Chairperson of the Credit Tribunal, the Deputy Chairperson of the Domestic Building Tribunal, the President of the Guardianship and Administration Board, the chairman of the Residential Tenancies Tribunal and the Senior referee of the Small Claims Tribunal will be transferred to become senior members of VCAT. The persons currently holding a number of licensing offices under different statutes will be transferred to become respectively, the Chairperson and a member of BLA. Persons currently holding office as an appointed member of a former tribunal will be transferred to become ordinary members of VCAT. Some exceptions are necessary in the transfer provisions. Police nominees under the Estate Agents Act and the Motor Car Traders Act will not be transferred to VCAT. Under these Acts, the Chief Commissioner of Police may nominate a member of the police force to be a member of the Estate Agents Disciplinary and Appeals Tribunal or the Motor Car Traders Licensing Authority. The new constitution provisions of VCAT are designed to be less prescriptive than the current constitution arrangements and allow for flexibility of membership of panels of VCAT to best suit each particular matter. As no nominee provisions are made, police representatives will need to be appointed in the manner any new member of VCAT would be 42