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This is a Bill, not an Act. For current law, see the Acts databases.
Consumer Protection Legislation Amendment Bill 2018 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Auction Sales Act 1973 amended 3. Act amended 3 4. Section 28 amended 3 5. Section 35 amended 3 6. Various provisions amended 3 7. Various penalties amended 4 Part 3 -- Charitable Collections Act 1946 amended 8. Act amended 5 9. Section 5 amended 5 10. Section 6 amended 5 11. Section 8 amended 5 12. Section 9 amended 6 13. Section 11 amended 6 14. Section 12 amended 6 15. Section 13 amended 7 16. Section 15 amended 7 17. Section 18 deleted 9 18. Section 19 amended 9 19. Section 20A inserted 9 20A. Powers of investigation 9 20. Section 22 inserted 10 22. Transitional provision for Consumer Protection Legislation Amendment Act 2018 10 96--3 page i Consumer Protection Legislation Amendment Bill 2018 Contents Part 4 -- Debt Collectors Licensing Act 1964 amended 21. Act amended 11 22. Section 14 amended 11 23. Section 17 amended 11 24. Section 22 deleted 11 25. Various provisions amended 11 26. Various penalties amended 12 Part 5 -- Fair Trading Act 2010 amended 27. Act amended 13 28. Section 88E amended 13 29. Schedule 2 amended 13 Part 6 -- Home Building Contracts Act 1991 amended 30. Act amended 14 31. Section 25B amended 14 32. Section 25D amended 14 Part 7 -- Land Valuers Licensing Act 1978 amended 33. Act amended 17 34. Section 20 deleted 17 35. Section 22 amended 17 36. Section 33A inserted 17 33A. Offence of giving false or misleading information 17 37. Various penalties amended 18 Part 8 -- Real Estate and Business Agents Act 1978 amended 38. Act amended 19 39. Section 4 amended 19 40. Section 26 amended 19 41. Section 27 amended 20 42. Section 29 amended 20 43. Section 30 amended 21 page ii Consumer Protection Legislation Amendment Bill 2018 Contents 44. Section 31 amended 21 45. Section 32 amended 21 46. Section 33 amended 22 47. Section 34 replaced 24 34. Conditions on licences and triennial certificates 24 34AA. Imposing special conditions on licences or triennial certificates 24 34AB. Removing special conditions on licences or triennial certificates 25 48. Sections 34C and 34D inserted 26 34C. Licensee may surrender licence and triennial certificate 26 34D. Firm or body corporate must surrender licence and triennial certificate in certain circumstances 27 49. Section 40B inserted 27 40B. Licensee to comply with prescribed educational requirements 27 50. Section 48 amended 28 51. Section 50 replaced 28 50. Conditions on certificates of registration 28 50AA. Imposing special conditions on certificates of registration 28 50AB. Removing special conditions on certificates of registration 30 52. Section 50C inserted 31 50C. Sales representative to comply with prescribed educational requirements 31 53. Section 84 amended 32 54. Section 100A amended 32 55. Section 102 amended 32 56. Section 103 amended 33 57. Section 116 amended 33 58. Section 131L amended 34 59. Section 134A amended 34 60. Section 136A amended 35 61. Schedule 1 clause 1 amended 35 62. Various penalties amended 36 Part 9 -- Residential Tenancies Act 1987 amended 63. Act amended 37 64. Section 3 amended 37 page iii Consumer Protection Legislation Amendment Bill 2018 Contents 65. Section 22 amended 37 66. Section 38 amended 38 67. Section 47 amended 39 68. Section 49A amended 41 69. Section 73 amended 44 70. Section 82B amended 44 71. Part 8 inserted 45 Part 8 -- Transitional provision relating to the Consumer Protection Legislation Amendment Act 2018 98. Application of s. 49A to residential tenancy agreements and utility charges 45 Part 10 -- Settlement Agents Act 1981 amended 72. Act amended 46 73. Section 4 amended 46 74. Section 26 amended 46 75. Section 27 amended 46 76. Section 30 amended 47 77. Section 31 amended 47 78. Section 32 amended 48 79. Section 33 amended 49 80. Section 34 replaced 50 34. Conditions on licences and triennial certificates 50 34AA. Imposing special conditions on licences or triennial certificates 50 34AB. Removing special conditions on licences or triennial certificates 52 81. Sections 34C and 34D inserted 53 34C. Licensee may surrender licence and triennial certificate 53 34D. Firm or body corporate must surrender licence and triennial certificate in certain circumstances 53 82. Section 41B inserted 54 41B. Licensee to comply with prescribed educational requirements 54 83. Section 65 amended 54 84. Section 81A amended 54 85. Section 83 amended 55 86. Section 93 amended 55 page iv Consumer Protection Legislation Amendment Bill 2018 Contents 87. Section 111A amended 56 88. Various penalties amended 57 Part 11 -- Street Collections (Regulation) Act 1940 amended 89. Act amended 58 90. Section 2 amended 58 91. Section 3 amended 58 92. Section 6 amended 59 93. Section 7 amended 59 94. Section 8 deleted 59 page v Western Australia LEGISLATIVE ASSEMBLY (As amended during consideration in detail) Consumer Protection Legislation Amendment Bill 2018 A Bill for An Act to amend -- the Auction Sales Act 1973; and the Charitable Collections Act 1946; and the Debt Collectors Licensing Act 1964; and the Fair Trading Act 2010; and the Home Building Contracts Act 1991; and the Land Valuers Licensing Act 1978; and the Real Estate and Business Agents Act 1978; and the Residential Tenancies Act 1987; and the Settlement Agents Act 1981; and the Street Collections (Regulation) Act 1940. The Parliament of Western Australia enacts as follows: page 1 Consumer Protection Legislation Amendment Bill 2018 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Consumer Protection Legislation Amendment 4 Act 2018. 5 2. Commencement 6 This Act comes into operation as follows -- 7 (a) Part 1 -- on the day on which this Act receives the 8 Royal Assent; 9 (b) the rest of the Act -- on a day fixed by proclamation, 10 and different days may be fixed for different provisions. page 2 Consumer Protection Legislation Amendment Bill 2018 Auction Sales Act 1973 amended Part 2 s. 3 1 Part 2 -- Auction Sales Act 1973 amended 2 3. Act amended 3 This Part amends the Auction Sales Act 1973. 4 4. Section 28 amended 5 (1) At the end of section 28(5) insert: 6 7 Penalty for this subsection: a fine of $25 000. 8 9 (2) Delete section 28(9). 10 5. Section 35 amended 11 Delete section 35(1) and (2). 12 6. Various provisions amended 13 At the end of the provisions listed in the Table insert: 14 15 Penalty for this subsection: a fine of $25 000. 16 17 Table s. 22(3) s. 23(1) s. 24(1) s. 26(1) and (2) s. 27(1) s. 29(2) s. 31(1), (2), (3), (4), (6) and (7) page 3 Consumer Protection Legislation Amendment Bill 2018 Part 2 Auction Sales Act 1973 amended s. 7 1 7. Various penalties amended 2 Amend the provisions listed in the Table as set out in the Table. 3 Table Provision Delete Insert s. 6(6) Penalty: $500. Penalty for this subsection: a fine of $50 000. s. 25(1) Penalty: $1 000 or Penalty for this imprisonment for subsection: a fine of 12 months. $50 000 or imprisonment for 12 months. s. 30(2) Penalty: $500. Penalty for this subsection: a fine of $10 000. s. 30(5) Penalty: A fine of Penalty for this not more than subsection: a fine of $1 000, or $50 000 or imprisonment for a imprisonment for term of not more 12 months, or both. than one year, or both such fine and imprisonment. page 4 Consumer Protection Legislation Amendment Bill 2018 Charitable Collections Act 1946 amended Part 3 s. 8 1 Part 3 -- Charitable Collections Act 1946 amended 2 8. Act amended 3 This Part amends the Charitable Collections Act 1946. 4 9. Section 5 amended 5 In section 5 insert in alphabetical order: 6 7 Commissioner has the meaning given in the Fair 8 Trading Act 2010 section 6. 9 10 10. Section 6 amended 11 (1) At the end of section 6(1) insert: 12 13 Penalty for this subsection: a fine of $20 000. 14 15 (2) Delete section 6(2). 16 11. Section 8 amended 17 In section 8: 18 (a) delete "Minister" (1st occurrence) and insert: 19 20 Commissioner 21 22 (b) delete "Minister." and insert: 23 24 Commissioner. 25 page 5 Consumer Protection Legislation Amendment Bill 2018 Part 3 Charitable Collections Act 1946 amended s. 12 1 12. Section 9 amended 2 (1) In section 9(2) delete "offence and liable to a penalty not 3 exceeding $100." and insert: 4 5 offence. 6 7 (2) At the end of section 9(2) insert: 8 9 Penalty for this subsection: a fine of $5 000. 10 11 13. Section 11 amended 12 (1) In section 11(1) delete "shall be made to the Minister, who 13 shall" and insert: 14 15 must be made to the Commissioner, who must 16 17 (2) In section 11(2) delete "shall" and insert: 18 19 must 20 21 (3) In section 11(3) delete "Minister may, in his" and insert: 22 23 Commissioner may, in the Commissioner's 24 25 14. Section 12 amended 26 (1) In section 12(1) delete "Minister" and insert: 27 28 Commissioner 29 page 6 Consumer Protection Legislation Amendment Bill 2018 Charitable Collections Act 1946 amended Part 3 s. 15 1 (2) In section 12(2) delete "fixed by the Minister." and insert: 2 3 imposed by the Commissioner. 4 5 (3) In section 12(3) delete "Minister" and insert: 6 7 Commissioner 8 9 (4) In section 12(4): 10 (a) delete "Minister --" and insert: 11 12 Commissioner -- 13 14 (b) in paragraph (b) delete "Minister or a person authorised 15 by him" and insert: 16 17 Commissioner or a person authorised by the 18 Commissioner 19 20 15. Section 13 amended 21 In section 13(1) delete "Minister," and insert: 22 23 Commissioner, 24 25 16. Section 15 amended 26 (1) Delete section 15(1) to (3) and insert: 27 28 (1) In this section -- 29 collection records means -- 30 (a) accounts setting out the money and goods page 7 Consumer Protection Legislation Amendment Bill 2018 Part 3 Charitable Collections Act 1946 amended s. 16 1 collected or received by the collector for a 2 charitable purpose; and 3 (b) statements setting out the way the money and 4 goods collected or received by the collector 5 have been dealt with; 6 collector means a person, society, body, or association 7 that collects or receives money or goods for a 8 charitable purpose. 9 (2) A collector must keep collection records and retain 10 them for 7 years after the end of the financial year to 11 which they relate. 12 Penalty for this subsection: a fine of $5 000. 13 (3) The Commissioner may require in writing that a 14 collector, within a specified time -- 15 (a) give the Commissioner a copy of, or access to, 16 the collection records of the collector; or 17 (b) have the collection records of the collector 18 audited by an auditor approved by the 19 Commissioner and give the Commissioner a 20 copy of, or access to, the audited collection 21 records. 22 (3A) A collector must comply with a requirement under 23 subsection (3). 24 Penalty for this subsection: a fine of $5 000. 25 (3B) Without limiting section 12(2), the Commissioner may 26 impose conditions relating to giving the Commissioner 27 collection records. 28 29 (2) In section 15(4) delete "any such penalty" and insert: 30 31 a penalty under subsection (2) or (3A), 32 page 8 Consumer Protection Legislation Amendment Bill 2018 Charitable Collections Act 1946 amended Part 3 s. 17 1 17. Section 18 deleted 2 Delete section 18. 3 18. Section 19 amended 4 (1) In section 19(1): 5 (a) delete "shall be instituted" and insert: 6 7 is to be commenced 8 9 (b) delete "Minister." and insert: 10 11 Commissioner. 12 13 (2) In section 19(2): 14 (a) delete "Minister" (1st and 2nd occurrence) and insert: 15 16 Commissioner 17 18 (b) delete "Minister," and insert: 19 20 Commissioner, 21 22 19. Section 20A inserted 23 After section 20 insert: 24 25 20A. Powers of investigation 26 The Fair Trading Act 2010 section 61 and Part 6 of 27 that Act, other than section 88E, apply for the purposes 28 of this Act. 29 page 9 Consumer Protection Legislation Amendment Bill 2018 Part 3 Charitable Collections Act 1946 amended s. 20 1 20. Section 22 inserted 2 After section 21 insert: 3 4 22. Transitional provision for Consumer Protection 5 Legislation Amendment Act 2018 6 (1) In this section -- 7 authority means the authority referred to in 8 section 6(1)(g); 9 commencement day means the day on which the 10 Consumer Protection Legislation Amendment Act 2018 11 section 11 comes into operation. 12 (2) The Minister's approval of a means of giving an 13 authority under section 8 of this Act, as in force 14 immediately before commencement day, is taken, on 15 and from commencement day, to be a means approved 16 by the Commissioner under section 8 of this Act. 17 page 10 Consumer Protection Legislation Amendment Bill 2018 Debt Collectors Licensing Act 1964 amended Part 4 s. 21 1 Part 4 -- Debt Collectors Licensing Act 1964 amended 2 21. Act amended 3 This Part amends the Debt Collectors Licensing Act 1964. 4 22. Section 14 amended 5 (1) At the end of section 14(1) insert: 6 7 Penalty for this subsection: a fine of $20 000. 8 9 (2) In section 14(2) delete the Penalty and insert: 10 11 Penalty for this subsection: a fine of $20 000. 12 13 23. Section 17 amended 14 (1) At the end of section 17(1) insert: 15 16 Penalty for this subsection: a fine of $25 000. 17 18 (2) Delete section 17(3). 19 24. Section 22 deleted 20 Delete section 22. 21 25. Various provisions amended 22 At the end of the provisions listed in the Table insert: 23 24 Penalty for this subsection: a fine of $25 000. 25 page 11 Consumer Protection Legislation Amendment Bill 2018 Part 4 Debt Collectors Licensing Act 1964 amended s. 26 1 Table s. 6(2) s. 16(1) s. 18(4) 2 26. Various penalties amended 3 Amend the provisions listed in the Table as set out in the Table. 4 Table Provision Delete Insert s. 5(2) Penalty: For an Penalty for this individual, $200. subsection: a fine of For a body $50 000. corporate, $400. s. 15(5) Penalty: $200. Penalty for this subsection: a fine of $25 000. s. 26(1)(h) $200 $5 000 page 12 Consumer Protection Legislation Amendment Bill 2018 Fair Trading Act 2010 amended Part 5 s. 27 1 Part 5 -- Fair Trading Act 2010 amended 2 27. Act amended 3 This Part amends the Fair Trading Act 2010. 4 28. Section 88E amended 5 Before section 88E(1) insert: 6 7 (1A) This section does not apply to the extent that the 8 purpose of exercising a power under subsection (1) is 9 in relation to a regulated activity carried on by a 10 regulated person under the Charitable Collections 11 Act 1946. 12 13 29. Schedule 2 amended 14 In Schedule 2 insert in alphabetical order: 15 16 Charitable Collections Act 1946 17 page 13 Consumer Protection Legislation Amendment Bill 2018 Part 6 Home Building Contracts Act 1991 amended s. 30 1 Part 6 -- Home Building Contracts Act 1991 amended 2 30. Act amended 3 This Part amends the Home Building Contracts Act 1991. 4 31. Section 25B amended 5 After section 25B(4) insert: 6 7 (4A) This Division does not apply to residential building 8 work if -- 9 (a) a building permit under the Building Act 2011 10 is not required for the work; or 11 (b) if a building permit is required for the work -- 12 the work is not, or is not part of, a prescribed 13 building service under the Building Services 14 (Registration) Act 2011 section 3. 15 16 32. Section 25D amended 17 (1) Before section 25D(1) insert: 18 19 (1A) In this section -- 20 relevant circumstance, in relation to a builder, 21 means -- 22 (a) if the builder is an individual -- the builder -- 23 (i) has died; or 24 (ii) after due search and enquiry, cannot be 25 found in Australia; 26 or 27 (b) if the builder is not an individual -- the builder 28 ceased to exist; or 29 (c) the builder is insolvent; or page 14 Consumer Protection Legislation Amendment Bill 2018 Home Building Contracts Act 1991 amended Part 6 s. 32 1 (d) if the builder is a building service contractor 2 under the Building Services (Registration) 3 Act 2011 -- the builder's registration as a 4 building service contractor was cancelled or not 5 renewed because the builder did not satisfy the 6 financial requirements (if any) prescribed by 7 the regulations under section 18(1)(b) of that 8 Act. 9 10 (2) In section 25D(1): 11 (a) delete paragraph (a) and insert: 12 13 (a) in the case of residential building work to be 14 performed by a builder on behalf of another 15 person, other than a developer, under a 16 residential building work contract, it insures 17 that person and that person's successors in title 18 against the following losses occurring because 19 a relevant circumstance exists in relation to the 20 builder -- 21 (i) loss of an amount paid by way of 22 deposit under the residential building 23 work contract, up to a limit of $20 000 24 or another prescribed limit; 25 (ii) loss, other than indirect, incidental or 26 consequential loss, resulting from 27 non-completion of the residential 28 building work; 29 and 30 page 15 Consumer Protection Legislation Amendment Bill 2018 Part 6 Home Building Contracts Act 1991 amended s. 32 1 (b) in paragraph (b) delete "by reason of the insolvency or 2 death of the builder or by reason of the fact that, after 3 due search and enquiry, the builder cannot be found; 4 and" and insert: 5 6 because a relevant circumstance exists in relation to the 7 builder; and 8 page 16 Consumer Protection Legislation Amendment Bill 2018 Land Valuers Licensing Act 1978 amended Part 7 s. 33 1 Part 7 -- Land Valuers Licensing Act 1978 amended 2 33. Act amended 3 This Part amends the Land Valuers Licensing Act 1978. 4 34. Section 20 deleted 5 Delete section 20. 6 35. Section 22 amended 7 Delete section 22(2)(a) and insert: 8 9 (a) an application is made during the period that 10 begins on the day on which the licence expired 11 and ends on the day that is 28 days after the day 12 on which the licence expired; and 13 14 36. Section 33A inserted 15 After section 33 insert: 16 17 33A. Offence of giving false or misleading information 18 (1) A person who gives false or misleading information to 19 the Commissioner when required to give information to 20 the Commissioner under this Act commits an offence. 21 Penalty for this subsection: a fine of $20 000. 22 (2) For the purposes of subsection (1), a person gives false 23 or misleading information if the person does 1 or more 24 of the following -- 25 (a) states anything that the person knows is false or 26 misleading in a material particular; page 17 Consumer Protection Legislation Amendment Bill 2018 Part 7 Land Valuers Licensing Act 1978 amended s. 37 1 (b) omits anything from a statement without which 2 the statement is, to the person's knowledge, 3 misleading in a material particular; 4 (c) gives or produces any information that -- 5 (i) the person knows is false or misleading 6 in a material particular; or 7 (ii) omits anything without which the 8 information is, to the person's 9 knowledge, misleading in a material 10 particular. 11 12 37. Various penalties amended 13 Amend the provisions listed in the Table as set out in the Table. 14 Table Provision Delete Insert s. 23(1) Penalty: $50 000. Penalty for this subsection: a fine of $100 000. s. 24(1) Penalty: $50 000. Penalty for this subsection: a fine of $100 000. s. 25(3) Penalty: $5 000. Penalty for this subsection: a fine of $5 000. s. 29A(1) Penalty: $2 000. Penalty for this subsection: a fine of $2 000. page 18 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 38 1 Part 8 -- Real Estate and Business Agents 2 Act 1978 amended 3 38. Act amended 4 This Part amends the Real Estate and Business Agents Act 1978. 5 39. Section 4 amended 6 (1) In section 4(1) delete the definition of agents code of conduct. 7 (2) In section 4(1) insert in alphabetical order: 8 9 code of conduct for agents means the code of conduct 10 for agents prescribed and published under 11 section 101(a); 12 13 (3) In section 4(1) in the definition of code of conduct for sales 14 representatives delete "101;" and insert: 15 16 101(b); 17 18 40. Section 26 amended 19 (1) In section 26 delete "On" and insert: 20 21 (1) On 22 page 19 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 41 1 (2) At the end of section 26 insert: 2 3 (2) For subsection (1), a person is taken not to be licensed 4 or holding a current triennial certificate in respect of 5 the licence if the person is required to surrender a 6 licence and triennial certificate under section 34D(2) 7 or (3). 8 9 41. Section 27 amended 10 In section 27(1): 11 (a) delete "a person, not being a body corporate," and 12 insert: 13 14 an individual 15 16 (b) delete "that -- " and insert: 17 18 that the individual -- 19 20 (c) in paragraphs (a) to (c) delete "he". 21 (d) in paragraph (c) delete "to him to enable him" and 22 insert: 23 24 to enable them 25 26 (e) in paragraph (d) delete "he". 27 Note: The heading to amended section 27 is to read: 28 Licensing of individuals 29 42. Section 29 amended 30 In section 29(b) delete "that". page 20 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 43 1 43. Section 30 amended 2 Delete section 30(3) and (4). 3 44. Section 31 amended 4 (1) In section 31(2)(a) delete "a person other than a body corporate; 5 or" and insert: 6 7 an individual; or 8 9 (2) Delete section 31(3) and insert: 10 11 (3) The Commissioner must not renew a licensee's 12 triennial certificate unless the Commissioner is 13 satisfied of the matters in -- 14 (a) for an individual -- section 27(1)(b), (c) and 15 (d); or 16 (b) for a firm -- section 28(a), (b), (c) and (d); or 17 (c) for a body corporate -- section 29(a), (b), (c) 18 and (d). 19 Note: The heading to amended section 31 is to read: 20 Licensee's triennial certificate: grant and renewal 21 45. Section 32 amended 22 (1) In section 32(1): 23 (a) delete "Where a" and insert: 24 25 If a licensee's 26 page 21 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 46 1 (b) delete "expired, the renewal shall be deemed to take 2 effect for the period of 3 years" and insert: 3 4 expired or was surrendered, the renewal takes effect 5 6 (c) delete "expired." and insert: 7 8 expired or was surrendered. 9 10 (2) Delete section 32(2) and insert: 11 12 (2) If a licensee's triennial certificate is renewed more than 13 1 month but not more than 12 months after the day on 14 which the triennial certificate expired or was 15 surrendered, the renewal takes effect -- 16 (a) if the Commissioner is satisfied that there is 17 reasonable cause for the renewal to take effect 18 on and from the day after the day on which the 19 triennial certificate expired or was 20 surrendered -- on that day; or 21 (b) otherwise -- on the day the renewal is granted. 22 23 Note: The heading to amended section 32 is to read: 24 Licensee's triennial certificate: late renewal 25 46. Section 33 amended 26 (1) Delete section 33(1) and insert: 27 28 (1) This section applies if -- 29 (a) a licensee's triennial certificate expires or was 30 surrendered; and page 22 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 46 1 (b) the licensee applies to renew the certificate 2 more than 12 months after the day on which the 3 triennial certificate expired or was surrendered. 4 5 (2) In section 33(2) delete "The application shall" and insert: 6 7 The application for renewal must 8 9 (3) In section 33(4) delete "applicant shall" and insert: 10 11 licensee must 12 13 (4) In section 33(5) delete "applicant" and insert: 14 15 licensee 16 17 (5) After section 33(5) insert: 18 19 (6) If the triennial certificate is renewed, the renewal takes 20 effect on the day the renewal is granted. 21 22 Note: The heading to amended section 33 is to read: 23 Licensee's triennial certificate: late renewal after 12 months page 23 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 47 1 47. Section 34 replaced 2 Delete section 34 and insert: 3 4 34. Conditions on licences and triennial certificates 5 (1) It is a condition of every licence that the licensee must 6 comply with the provisions of this Act and the code of 7 conduct for agents. 8 (2) It is a condition of every licence that the licensee must 9 comply with any special condition to which the 10 licensee's licence or triennial certificate is subject 11 under section 34AA. 12 34AA. Imposing special conditions on licences or triennial 13 certificates 14 (1) In this section -- 15 licensee includes an applicant for a licence. 16 (2) The Commissioner may, at any time, impose a special 17 condition on a licence or triennial certificate. 18 (3) Before imposing a special condition on a licence or 19 triennial certificate, the Commissioner must -- 20 (a) give a licensee notice in writing setting out -- 21 (i) that the Commissioner proposes to 22 impose the special condition; and 23 (ii) the reasons for the proposed decision; 24 and 25 (iii) that the licensee may make submissions 26 to the Commissioner in relation to the 27 proposed decision within the time 28 specified in the notice; 29 and page 24 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 47 1 (b) consider any submissions received under 2 paragraph (a)(iii). 3 (4) After making a decision under subsection (2), the 4 Commissioner must -- 5 (a) notify the licensee of the Commissioner's 6 decision; and 7 (b) if the decision is to impose a special condition 8 on the licence or triennial certificate, give the 9 licensee notice in writing setting out -- 10 (i) the reasons for the decision; and 11 (ii) that a person aggrieved by the 12 Commissioner's decision may apply to 13 the State Administrative Tribunal for a 14 review of the decision under section 23. 15 34AB. Removing special conditions on licences or triennial 16 certificates 17 (1) The Commissioner may remove a special condition 18 imposed on a licensee's licence or triennial 19 certificate -- 20 (a) at any time; or 21 (b) on application by the licensee. 22 (2) If a licensee makes an application under 23 subsection (1)(b), the Commissioner must, before 24 deciding not to remove the special condition on the 25 licensee's licence or triennial certificate -- 26 (a) give the licensee notice in writing setting out -- 27 (i) that the Commissioner proposes to 28 make a decision not to remove the 29 special condition; and 30 (ii) the reasons for the proposed decision; 31 and page 25 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 48 1 (iii) that the licensee may make submissions 2 to the Commissioner in relation to the 3 proposed decision within the time 4 specified in the notice; 5 and 6 (b) consider any submissions received under 7 paragraph (a)(iii). 8 (3) After making a decision on an application by a 9 licensee, the Commissioner must -- 10 (a) notify the licensee of the Commissioner's 11 decision; and 12 (b) if the decision is to not remove the special 13 condition, give the licensee notice in writing 14 setting out -- 15 (i) the reasons for the decision; and 16 (ii) that a person aggrieved by the 17 Commissioner's decision may apply to 18 the State Administrative Tribunal for a 19 review of the decision under section 23. 20 21 48. Sections 34C and 34D inserted 22 After section 34B insert: 23 24 34C. Licensee may surrender licence and triennial 25 certificate 26 A licensee may surrender the licensee's triennial 27 certificate, or licence and triennial certificate held in 28 respect of the licence, at any time. page 26 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 49 1 34D. Firm or body corporate must surrender licence and 2 triennial certificate in certain circumstances 3 (1) This section applies to a licensee that is a firm or body 4 corporate if paragraph (c) or (d) of section 28 or 29 (as 5 is relevant) ceases to apply in relation to the licensee. 6 (2) The licensee must, within 5 days after the day on which 7 the paragraph ceased to apply to the licensee, surrender 8 the licensee's licence and triennial certificate held in 9 respect of the licence, unless the licensee is carrying on 10 business under Schedule 1 clause 6. 11 (3) If a licensee carries on business under Schedule 1 12 clause 6 then, at the end of the period referred to in that 13 clause, the licensee must immediately surrender the 14 licensee's licence and triennial certificate unless the 15 licensee satisfies section 28(c) and (d) or section 29(c) 16 and (d) (as is relevant). 17 18 49. Section 40B inserted 19 After section 40A insert: 20 21 40B. Licensee to comply with prescribed educational 22 requirements 23 A licensee must comply with the educational 24 requirements prescribed by the regulations. 25 Penalty: a fine of $5 000. 26 page 27 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 50 1 50. Section 48 amended 2 Delete section 48(4) and (5) and insert: 3 4 (4) The Commissioner must not renew a sales 5 representative's certificate of registration unless the 6 Commissioner is satisfied -- 7 (a) of the matters in section 47(1)(b) and (c); and 8 (b) that the sales representative was employed by a 9 licensee at the time of making the application 10 or will be employed by a licensee upon the 11 renewal of the certificate. 12 13 51. Section 50 replaced 14 Delete section 50 and insert: 15 16 50. Conditions on certificates of registration 17 (1) It is a condition of every certificate of registration that 18 the registered sales representative must comply with 19 the provisions of this Act and the code of conduct for 20 sales representatives. 21 (2) It is a condition of every certificate of registration that 22 the registered sales representative must comply with 23 any special condition to which the sales 24 representative's certificate of registration is subject 25 under section 50AA. 26 50AA. Imposing special conditions on certificates of 27 registration 28 (1) In this section -- 29 registered sales representative includes an applicant 30 for a certificate of registration. page 28 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 51 1 (2) The Commissioner may, at any time, impose a special 2 condition on a certificate of registration. 3 (3) Before imposing a special condition on a certificate of 4 registration, the Commissioner must -- 5 (a) give a registered sales representative notice in 6 writing setting out -- 7 (i) that the Commissioner proposes to 8 impose the special condition; and 9 (ii) the reasons for the proposed decision; 10 and 11 (iii) that the registered sales representative 12 may make submissions to the 13 Commissioner in relation to the 14 proposed decision within the time 15 specified in the notice; 16 and 17 (b) consider any submissions received under 18 paragraph (a)(iii). 19 (4) Subsection (3) does not apply if the special condition to 20 be imposed on the certificate of registration restricts 21 the type of work that may be performed under the 22 certificate because the sales representative does not 23 have a particular qualification that the sales 24 representative is required to have under section 47(2) 25 to perform the work. 26 (5) After making a decision under subsection (2), the 27 Commissioner must -- 28 (a) notify the registered sales representative of the 29 Commissioner's decision; and page 29 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 51 1 (b) if the decision is to impose a special condition 2 on the certificate of registration, give the 3 registered sales representative notice in writing 4 setting out -- 5 (i) the reasons for the decision; and 6 (ii) that a person aggrieved by the 7 Commissioner's decision may apply to 8 the State Administrative Tribunal for a 9 review of the decision under section 23. 10 50AB. Removing special conditions on certificates of 11 registration 12 (1) The Commissioner may remove a special condition 13 imposed on a registered sales representative's 14 certificate of registration -- 15 (a) at any time; or 16 (b) on application by the registered sales 17 representative. 18 (2) If a registered sales representative makes an application 19 under subsection (1)(b), the Commissioner must, 20 before deciding not to remove the special condition on 21 the registered sales representative's certificate of 22 registration -- 23 (a) give the registered sales representative notice in 24 writing setting out -- 25 (i) that the Commissioner proposes to 26 make a decision not to remove the 27 special condition; and 28 (ii) the reasons for the proposed decision; 29 and 30 (iii) that the registered sales representative 31 may make submissions to the 32 Commissioner in relation to the page 30 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 52 1 proposed decision within the time 2 specified in the notice; 3 and 4 (b) consider any submissions received under 5 paragraph (a)(iii). 6 (3) After making a decision on an application by a 7 registered sales representative, the Commissioner 8 must -- 9 (a) notify the registered sales representative of the 10 Commissioner's decision; and 11 (b) if the decision is to not remove the special 12 condition, give the registered sales 13 representative notice in writing setting out -- 14 (i) the reasons for the decision; and 15 (ii) that a person aggrieved by the 16 Commissioner's decision may apply to 17 the State Administrative Tribunal for a 18 review of the decision under section 23. 19 20 52. Section 50C inserted 21 After section 50B insert: 22 23 50C. Sales representative to comply with prescribed 24 educational requirements 25 A sales representative must comply with the 26 educational requirements prescribed by the regulations. 27 Penalty: a fine of $5 000. 28 page 31 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 53 1 53. Section 84 amended 2 In section 84(1) delete the Penalty and insert: 3 4 Penalty for this subsection: 5 (a) in the case of an offence against 6 section 68(4) or (5), a fine of $25 000, or 7 2 years' imprisonment; 8 (b) in the case of an offence against 9 section 68B(1), a fine of $50 000; 10 (c) in any other case, a fine of $25 000. 11 12 54. Section 100A amended 13 (1) Delete section 100A(4). 14 (2) In section 100A(7) delete "subsection (4)." and insert: 15 16 section 134A. 17 18 55. Section 102 amended 19 After section 102(6) insert: 20 21 (7) Despite the surrender by a person of a licence or 22 triennial certificate or a licensee ceasing to be licensed 23 or to hold a triennial certificate -- 24 (a) an allegation under subsection (1)(a) in respect 25 of an agent may be made to the State 26 Administrative Tribunal not later than 27 12 months after the day on which the licence or 28 certificate was surrendered or the licensee 29 ceased to be licensed or ceased holding the 30 certificate; and page 32 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 56 1 (b) the State Administrative Tribunal may exercise 2 the powers conferred by section 103, other than 3 the power to suspend or cancel the agent's 4 licence or certificate. 5 6 56. Section 103 amended 7 Delete section 103(2)(c)(iii) and insert: 8 9 (iii) the code of conduct for agents; 10 11 57. Section 116 amended 12 Delete section 116(1) and (2A) and insert: 13 14 (1) The Fidelity Account is to be held and applied to 15 reimburse a person for the person's pecuniary or 16 property loss to the extent of the defalcation of -- 17 (a) a licensee during any period when the licensee 18 was the holder of a current triennial certificate; 19 or 20 (b) a person who ceased to be licensed or to hold a 21 triennial certificate, if -- 22 (i) the defalcation occurred during the 23 period of 6 months immediately 24 following the day on which the person 25 ceased to be licensed or the holder of 26 the triennial certificate; and 27 (ii) the chief executive officer considers that 28 it is just and reasonable in the 29 circumstances of the claim. 30 page 33 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 58 1 58. Section 131L amended 2 (1) Before section 131L(1) insert: 3 4 (1AA) In this section -- 5 settlement has the meaning given in the Settlement 6 Agents Act 1981 section 3(1). 7 8 (2) In section 131L(1): 9 (a) after "date of " insert: 10 11 settlement of 12 13 (b) delete "prescribed form" and insert: 14 15 approved form 16 17 59. Section 134A amended 18 (1) In section 134A(1) delete "in relation to an application under 19 section 24, 33, 43, 48 or 49" and insert: 20 21 to the Commissioner or the chief executive officer under this 22 Act 23 24 (2) In section 134A(2): 25 (a) delete "in relation to an application referred to in 26 subsection (1)" and insert: 27 28 to the Commissioner or the chief executive officer 29 30 (b) in paragraph (a) delete "in relation to an application"; page 34 Consumer Protection Legislation Amendment Bill 2018 Real Estate and Business Agents Act 1978 amended Part 8 s. 60 1 (c) in paragraph (b) delete "made in relation to an 2 application"; 3 (d) in paragraph (c) delete "in relation to an application". 4 5 60. Section 136A amended 6 In section 136A delete "licence or triennial certificate" and 7 insert: 8 9 licence, triennial certificate or certificate of registration 10 11 61. Schedule 1 clause 1 amended 12 (1) In Schedule 1 delete clause 1(b) and insert: 13 14 (b) who has, within the period of 5 years immediately 15 preceding the application -- 16 (i) held a licence, other than a licence held 17 because the person was qualified only under 18 paragraph (c) or (d), under this Act for at 19 least 2 years; and 20 (ii) acted in the State as, and carried out the 21 functions of, an agent for a period of at least 22 2 years, whether on the person's own behalf 23 or on behalf of a firm or body corporate; 24 or 25 (ba) who has, within the period of 5 years immediately 26 preceding the application -- 27 (i) held for a period of at least 2 years a licence 28 or similar authority under an approved 29 corresponding enactment of a State or 30 Territory to act as an agent or the approved 31 equivalent, other than under a licence or 32 authority held under that enactment only 33 because the person was qualified under an page 35 Consumer Protection Legislation Amendment Bill 2018 Part 8 Real Estate and Business Agents Act 1978 amended s. 62 1 equivalent provision in the enactment to 2 paragraph (c) or (d); and 3 (ii) acted as, and carried out the functions of, an 4 agent or the approved equivalent for a 5 period of at least 2 years in the State or 6 Territory in which the licence or authority 7 was held, whether on the person's own 8 behalf or on behalf of a firm or body 9 corporate; 10 or 11 12 62. Various penalties amended 13 Amend the provisions listed in the Table as set out in the Table. 14 Table Provision Delete Insert s. 26(1) Penalty: $20 000. Penalty for this subsection: a fine of $100 000. s. 39(3) Penalty: $20 000. Penalty for this subsection: a fine of $100 000. s. 44(1), (2) and (3) Penalty: $3 000. Penalty for this subsection: a fine of $25 000. s. 45(1), (2) and (3) Penalty: $3 000. Penalty for this subsection: a fine of $25 000. s. 46 $2 000. a fine of $20 000. page 36 Consumer Protection Legislation Amendment Bill 2018 Residential Tenancies Act 1987 amended Part 9 s. 63 1 Part 9 -- Residential Tenancies Act 1987 amended 2 63. Act amended 3 This Part amends the Residential Tenancies Act 1987. 4 64. Section 3 amended 5 In section 3 insert in alphabetical order: 6 7 common area -- 8 (a) means an area accessible to, or provided for the 9 common use of, tenants; and 10 (b) includes common property (as defined in the 11 Strata Titles Act 1985 section 3) of a strata 12 scheme or survey strata scheme; 13 14 65. Section 22 amended 15 (1) Delete section 22(2) and insert: 16 17 (2) A party to any proceedings may be represented or 18 assisted by an agent in the presentation of the party's 19 case if -- 20 (a) the agent is authorised by the party to do so and 21 is -- 22 (i) the property manager of the premises 23 the subject of the proceedings; or 24 (ii) employed or engaged by a non-profit 25 association or similar body to act as an 26 advocate for tenants or lessors in 27 proceedings; 28 or 29 (b) the court makes an order under subsection (3C). 30 page 37 Consumer Protection Legislation Amendment Bill 2018 Part 9 Residential Tenancies Act 1987 amended s. 66 1 (2) In section 22(3A) after "authorisation" insert: 2 3 mentioned in subsection (2)(a) 4 5 (3) After section 22(3A) insert: 6 7 (3B) Without limiting how an agent representing or assisting 8 a party under subsection (2)(a) may represent or assist 9 the party, the agent may initiate proceedings on behalf 10 of the party. 11 (3C) The court may order that a party to proceedings may be 12 represented or assisted by an agent in the presentation 13 of the party's case if the court hearing the proceeding is 14 satisfied that -- 15 (a) the party is unable to appear personally or 16 conduct the proceedings on the party's own 17 behalf; and 18 (b) another party to the proceedings will not be 19 disadvantaged by the party being represented 20 by, or assisted by, the agent. 21 22 66. Section 38 amended 23 In section 38(1)(c) delete "premises." and insert: 24 25 premises or, where relevant, a common area or chattels in the 26 common area. 27 page 38 Consumer Protection Legislation Amendment Bill 2018 Residential Tenancies Act 1987 amended Part 9 s. 67 1 67. Section 47 amended 2 (1) Before section 47(1) insert: 3 4 (1A) In this section -- 5 disability means a disability -- 6 (a) which is attributable to an intellectual, 7 psychiatric, cognitive, neurological, sensory, or 8 physical impairment or a combination of those 9 impairments; and 10 (b) which is permanent or likely to be permanent; 11 and 12 (c) which may or may not be of a chronic or 13 episodic nature; and 14 (d) which results in a substantially reduced 15 capacity of the person for communication, 16 social interaction, learning or mobility. 17 18 (2) In section 47(1) delete "subsection (4)," and insert: 19 20 subsections (2A) and (4), 21 22 (3) After section 47(2) insert: 23 24 (2A) It is a term of every residential tenancy agreement 25 that -- 26 (a) a tenant may affix either or both of the 27 following items to a wall of premises the 28 subject of the agreement for the purpose of 29 ensuring the safety of a child or a person with a 30 disability, but only with the lessor's consent -- 31 (i) furniture; page 39 Consumer Protection Legislation Amendment Bill 2018 Part 9 Residential Tenancies Act 1987 amended s. 67 1 (ii) a thing to affix the furniture to the wall; 2 and 3 (b) the lessor may only refuse consent -- 4 (i) if affixing the item to the wall would 5 disturb material containing asbestos; or 6 (ii) if the premises are entered in the 7 Register of Heritage Places compiled 8 under the Heritage of Western Australia 9 Act 1990 section 46; or 10 (iii) if the premises is a lot in a scheme 11 under the Strata Titles Act 1985, the 12 by-laws for the scheme prohibit affixing 13 the item to the wall of the premises; or 14 (iv) for a prescribed reason; 15 and 16 (c) unless the lessor agrees otherwise in writing, 17 the tenant must remove the item from the wall 18 when the tenant vacates the premises and 19 either -- 20 (i) restore the wall to its original condition; 21 or 22 (ii) compensate the lessor for any 23 reasonable expenses incurred by the 24 lessor in doing that restoration; 25 and 26 (d) the cost of affixing the item to the wall, 27 removing it and restoring the wall to its original 28 condition must be borne by the tenant; and page 40 Consumer Protection Legislation Amendment Bill 2018 Residential Tenancies Act 1987 amended Part 9 s. 68 1 (e) if the tenant causes damage to the premises 2 when affixing or removing the item or restoring 3 the wall to its original condition -- 4 (i) the tenant must notify the lessor in 5 writing that damage has been caused to 6 the premises; and 7 (ii) the lessor may require the tenant to 8 repair the damage and restore the 9 premises to their original condition or 10 compensate the lessor for the reasonable 11 expenses incurred in doing the repair 12 and restoration. 13 (2B) The lessor is taken to have consented to affixing the 14 furniture or thing to the wall of the premises under 15 subsection (2A)(a) if, and only if -- 16 (a) the tenant has given the lessor a request, in a 17 form approved by the Commissioner, seeking 18 the lessor's consent to affix the item to the wall; 19 and 20 (b) the lessor has not refused consent under 21 subsection (2A)(b) within 14 days after the day 22 on which the lessor receives the request. 23 24 68. Section 49A amended 25 (1) In section 49A(1) insert in alphabetical order: 26 27 consumption, in relation to a public utility service, 28 means consumption of the utility that is calculated by 29 metered unit; 30 strata company has the meaning given in the Strata 31 Titles Act 1985 section 3(1). 32 page 41 Consumer Protection Legislation Amendment Bill 2018 Part 9 Residential Tenancies Act 1987 amended s. 68 1 (2) In section 49A(1) in the definition of public utility services 2 delete "3(1)." and insert: 3 4 3(1); 5 6 (3) Delete section 49A(2) and insert: 7 8 (2) It is a term of every residential tenancy agreement that 9 subsections (3) to (5) are terms of the agreement if -- 10 (a) a public utility service is provided in relation to 11 the premises the subject of the agreement; and 12 (b) the public utility service is provided under a 13 contract between the provider of the public 14 utility service and the lessor or a strata 15 company. 16 (3) The tenant must pay a charge for the provision of the 17 service only if -- 18 (a) the charge is for the tenant's consumption of 19 the utility at the premises; and 20 (b) either -- 21 (i) the tenant's consumption of the utility is 22 separately metered; or 23 (ii) although consumption at the premises is 24 not separately metered, the charge is 25 calculated in accordance with a method 26 previously agreed to in writing by the 27 lessor and the tenant; 28 and 29 (c) the lessor gives the tenant a written notice 30 under subsection (4) within 30 days after the 31 lessor receives an invoice for the public utility 32 service. page 42 Consumer Protection Legislation Amendment Bill 2018 Residential Tenancies Act 1987 amended Part 9 s. 69 1 (4) The notice must be in writing and set out the full 2 details of the account for the charge, including -- 3 (a) the total charge for the tenant's consumption of 4 the utility; and 5 (b) if consumption at the premises is metered -- 6 (i) the meter readings; and 7 (ii) the charge per metered unit; 8 and 9 (c) if consumption at the premises is not 10 metered -- the charge calculated by the method 11 agreed to under subsection (3)(b)(ii); and 12 (d) the amount of GST payable in respect of the 13 provision of the service to the premises. 14 (5) However, despite subsection (3)(c), if the tenancy ends 15 within 30 days after the lessor receives an invoice for 16 the public utility service, or the lessor receives the 17 invoice after the tenancy has ended, the lessor -- 18 (a) is not required to give the written notice under 19 subsection (4) within 30 days after the lessor 20 receives the invoice; and 21 (b) may give the notice to the tenant (or former 22 tenant) as soon as practicable after the lessor 23 receives the notice and locates the tenant. 24 page 43 Consumer Protection Legislation Amendment Bill 2018 Part 9 Residential Tenancies Act 1987 amended s. 69 1 69. Section 73 amended 2 In section 73(1) delete "permit, serious damage to the premises 3 or injury to the lessor or the property manager of the premises 4 or any person in occupation of or permitted on adjacent 5 premises." and insert: 6 7 permit -- 8 (a) serious damage to the premises or, where 9 relevant, a common area or chattels in the 10 common area; or 11 (b) injury to -- 12 (i) the lessor; or 13 (ii) the property manager of the premises; or 14 (iii) any person in occupation of or permitted 15 on adjacent premises. 16 17 70. Section 82B amended 18 (1) In section 82B delete "This" and insert: 19 20 (1) This 21 22 (2) After section 82B(1) insert: 23 24 (2) This Part applies to a database operator, regardless of 25 whether the database operator is inside or outside of the 26 State, if the database operator operates a residential 27 tenancy database containing personal information -- 28 (a) about a person who resides in the State; or 29 (b) relating to, or arising from, the occupation of 30 residential premises under a residential tenancy 31 agreement within the State. 32 page 44 Consumer Protection Legislation Amendment Bill 2018 Residential Tenancies Act 1987 amended Part 9 s. 71 1 71. Part 8 inserted 2 After section 97 insert: 3 4 Part 8 -- Transitional provision relating to the 5 Consumer Protection Legislation Amendment 6 Act 2018 7 98. Application of s. 49A to residential tenancy 8 agreements and utility charges 9 (1) In this section -- 10 commencement day means the day on which the 11 Consumer Protection Legislation Amendment Act 2018 12 section 68 comes into operation; 13 public utility services has the meaning given in the 14 Land Administration Act 1997 section 3(1). 15 (2) Subject to subsections (3) and (4), section 49A, as in 16 force on and after commencement day, applies to a 17 residential tenancy agreement (to the extent relevant) 18 even though it was entered into before commencement 19 day. 20 (3) If a tenant is provided with full details of an account 21 for a charge for a public utility service and the charge 22 was not paid in full before commencement day, 23 section 49A, as in force immediately before 24 commencement day continues to apply to the payment 25 of the charge. 26 (4) If, before commencement day, a lessor or strata 27 company received a notice of account in relation to a 28 public utility service and the lessor or strata company 29 has not given the tenant full details of the account for 30 the charge, the 30 day requirement in section 49A(3)(c) 31 does not apply. 32 page 45 Consumer Protection Legislation Amendment Bill 2018 Part 10 Settlement Agents Act 1981 amended s. 72 1 Part 10 -- Settlement Agents Act 1981 amended 2 72. Act amended 3 This Part amends the Settlement Agents Act 1981. 4 73. Section 4 amended 5 In section 4(2) delete "section 34(2)(a) and (b)," and insert: 6 7 section 34AA(3), 8 9 74. Section 26 amended 10 After section 26(2) insert: 11 12 (3) For subsection (1), a person is taken not to be licensed 13 or holding a current triennial certificate in respect of 14 the licence if the person is required to surrender a 15 licence and triennial certificate under section 34D(2) 16 and (3). 17 18 75. Section 27 amended 19 In section 27(1): 20 (a) delete "a person, not being a body corporate," and 21 insert: 22 23 an individual 24 25 (b) delete "that -- " and insert: 26 27 that the individual -- 28 29 (c) in paragraphs (a) to (c) delete "he". page 46 Consumer Protection Legislation Amendment Bill 2018 Settlement Agents Act 1981 amended Part 10 s. 76 1 (d) in paragraph (c) delete "to him to enable him" and 2 insert: 3 4 to enable them 5 6 (e) in paragraphs (d) and (e) delete "he". 7 8 Note: The heading to amended section 27 is to read: 9 Licensing of individuals 10 76. Section 30 amended 11 Delete section 30(4) and (5). 12 77. Section 31 amended 13 (1) In section 31(2)(a) delete "a person other than a body corporate; 14 or" and insert: 15 16 an individual; or 17 18 (2) Delete section 31(2A) and insert: 19 20 (2A) The Commissioner must not renew a licensee's 21 triennial certificate unless the Commissioner is 22 satisfied of the matters in -- 23 (a) for an individual -- section 27(1)(b), (c), (d) 24 and (e); or 25 (b) for a firm -- section 28(1)(a), (b), (c) and (d); 26 or 27 (c) for a body corporate -- section 29(1)(a), (b), 28 (c) and (d). 29 page 47 Consumer Protection Legislation Amendment Bill 2018 Part 10 Settlement Agents Act 1981 amended s. 78 1 (3) Delete section 31(3)(a) and insert: 2 3 (a) if the licensee is an individual, the individual; 4 or 5 6 Note: The heading to amended section 31 is to read: 7 Licensee's triennial certificate: grant and renewal 8 78. Section 32 amended 9 (1) In section 32(1): 10 (a) delete "Where a" and insert: 11 12 If a licensee's 13 14 (b) delete "expired, the renewal shall be deemed to take 15 effect for the period of 3 years" and insert: 16 17 expired or was surrendered, the renewal takes effect 18 19 (c) delete "expired." and insert: 20 21 expired or was surrendered. 22 23 (2) Delete section 32(2) and insert: 24 25 (2) If a licensee's triennial certificate is renewed more than 26 1 month but not more than 12 months after the day on 27 which the triennial certificate expired or was 28 surrendered, the renewal takes effect -- 29 (a) if the Commissioner is satisfied that there is 30 reasonable cause for the renewal to take effect 31 on and from the day after the day on which the page 48 Consumer Protection Legislation Amendment Bill 2018 Settlement Agents Act 1981 amended Part 10 s. 79 1 triennial certificate expired or was 2 surrendered -- on that day; or 3 (b) otherwise -- on the day the renewal is granted. 4 5 Note: The heading to amended section 32 is to read: 6 Licensee's triennial certificate: late renewal 7 79. Section 33 amended 8 (1) Delete section 33(1) and insert: 9 10 (1) This section applies if -- 11 (a) a licensee's triennial certificate expires or was 12 surrendered; and 13 (b) the licensee applies to renew the certificate 14 more than 12 months after the day on which the 15 triennial certificate expired or was surrendered. 16 17 (2) In section 33(2) delete "The application shall" and insert: 18 19 The application for renewal must 20 21 (3) In section 33(4) delete "applicant shall" and insert: 22 23 licensee must 24 25 (4) In section 33(5) delete "applicant" and insert: 26 27 licensee 28 page 49 Consumer Protection Legislation Amendment Bill 2018 Part 10 Settlement Agents Act 1981 amended s. 80 1 (5) After section 33(5) insert: 2 3 (6) If the triennial certificate is renewed, the renewal takes 4 effect on the day the renewal is granted. 5 6 Note: The heading to amended section 33 is to read: 7 Licensee's triennial certificate: late renewal after 12 months 8 80. Section 34 replaced 9 Delete section 34 and insert: 10 11 34. Conditions on licences and triennial certificates 12 (1) It is a condition of every licence that the licensee must 13 comply with the provisions of this Act and the 14 settlement agents' code of conduct. 15 (2) It is a condition of every licence that the licensee must 16 comply with any special condition to which the 17 licensee's licence or triennial certificate is subject 18 under section 34AA. 19 34AA. Imposing special conditions on licences or triennial 20 certificates 21 (1) In this section -- 22 licensee includes an applicant for a licence. 23 (2) The Commissioner may, at any time, impose a special 24 condition on a licence or triennial certificate. 25 (3) Without limiting subsection (2), the Commissioner 26 may impose a condition that relates to -- 27 (a) the holding of a policy of indemnity insurance 28 or fidelity insurance in a specified amount; or page 50 Consumer Protection Legislation Amendment Bill 2018 Settlement Agents Act 1981 amended Part 10 s. 80 1 (b) the payment of fees under this Act or to 2 contributions to the Account and may vary such 3 prescribed fees or contributions. 4 (4) Before imposing a special condition on a licence or 5 triennial certificate, the Commissioner must -- 6 (a) give a licensee notice in writing setting out -- 7 (i) that the Commissioner proposes to 8 impose the special condition; and 9 (ii) the reasons for the proposed decision; 10 and 11 (iii) that the licensee may make submissions 12 to the Commissioner in relation to the 13 proposed decision within the time 14 specified in the notice; 15 and 16 (b) consider any submissions received under 17 paragraph (a)(iii). 18 (5) After making a decision under subsection (2), the 19 Commissioner must -- 20 (a) notify the licensee of the Commissioner's 21 decision; and 22 (b) if the decision is to impose the special 23 condition, give the licensee notice in writing 24 setting out -- 25 (i) the reasons for the decision; and 26 (ii) that a person aggrieved by the 27 Commissioner's decision may apply to 28 the State Administrative Tribunal for a 29 review of the decision under section 23. page 51 Consumer Protection Legislation Amendment Bill 2018 Part 10 Settlement Agents Act 1981 amended s. 80 1 34AB. Removing special conditions on licences or triennial 2 certificates 3 (1) The Commissioner may remove a special condition 4 imposed on a licensee's licence or triennial 5 certificate -- 6 (a) at any time; or 7 (b) on application by the licensee. 8 (2) If the licensee applies under subsection (1)(b), the 9 Commissioner must, before deciding not to remove the 10 special condition on the licensee's licence or triennial 11 certificate -- 12 (a) give the licensee notice in writing setting out -- 13 (i) that the Commissioner proposes to 14 make a decision not to remove the 15 special condition; and 16 (ii) the reasons for the proposed decision; 17 and 18 (iii) that the licensee may make submissions 19 to the Commissioner in relation to the 20 proposed decision within the time 21 specified in the notice; 22 and 23 (b) consider any submissions received under 24 paragraph (a)(iii). 25 (3) After making a decision on an application by a 26 licensee, the Commissioner must -- 27 (a) notify the licensee of the Commissioner's 28 decision; and 29 (b) if the decision is to not remove the special 30 condition, give the licensee notice in writing 31 setting out -- 32 (i) the reasons for the decision; and page 52 Consumer Protection Legislation Amendment Bill 2018 Settlement Agents Act 1981 amended Part 10 s. 81 1 (ii) that a person aggrieved by the 2 Commissioner's decision may apply to 3 the State Administrative Tribunal for a 4 review of the decision under section 23. 5 6 81. Sections 34C and 34D inserted 7 After section 34B insert: 8 9 34C. Licensee may surrender licence and triennial 10 certificate 11 A licensee may surrender the licensee's triennial 12 certificate, or licence and triennial certificate held in 13 respect of the licence, at any time. 14 34D. Firm or body corporate must surrender licence and 15 triennial certificate in certain circumstances 16 (1) This section applies to a licensee that is a firm or body 17 corporate if paragraph (c) or (d) of section 28(1) or 18 29(1) (as is relevant) ceases to apply in relation to the 19 licensee. 20 (2) The licensee must, within 5 days after the day on which 21 the paragraph ceased to apply to the licensee, surrender 22 the licensee's licence and triennial certificate held in 23 respect of the licence, unless the licensee is carrying on 24 business under Schedule 1 clause 10. 25 (3) If a licensee carries on business under Schedule 1 26 clause 10 then, at the end of the period referred to in 27 that clause, the licensee must immediately surrender 28 the licensee's licence and triennial certificate unless the 29 licensee satisfies section 28(1)(c) and (d) or 30 section 29(1)(c) and (d) (as is relevant). 31 page 53 Consumer Protection Legislation Amendment Bill 2018 Part 10 Settlement Agents Act 1981 amended s. 82 1 82. Section 41B inserted 2 After section 41A insert: 3 4 41B. Licensee to comply with prescribed educational 5 requirements 6 A licensee must comply with the educational 7 requirements prescribed by the regulations. 8 Penalty: a fine of $5 000. 9 10 83. Section 65 amended 11 In section 65(1) delete the Penalty and insert: 12 13 Penalty for this subsection: 14 (a) in the case of an offence against 15 section 49(4) or (5), a fine of $25 000, or 16 2 years' imprisonment; 17 (b) in the case of an offence against 18 section 49B(1), a fine of $50 000; 19 (c) in any other case, a fine of $25 000. 20 21 84. Section 81A amended 22 (1) Delete section 81A(4). 23 (2) In section 81A(7) delete "subsection (4)." and insert: 24 25 section 111A. 26 page 54 Consumer Protection Legislation Amendment Bill 2018 Settlement Agents Act 1981 amended Part 10 s. 85 1 85. Section 83 amended 2 (1) In section 83 delete "The" and insert: 3 4 (1) The 5 6 (2) At the end of section 83 insert: 7 8 (2) Despite the surrender by a person of a licence or 9 triennial certificate or a licensee ceasing to be licensed 10 or to hold a triennial certificate -- 11 (a) an allegation under subsection (1) in respect of 12 a person may be made to the State 13 Administrative Tribunal not later than 14 12 months after the day on which the licence or 15 certificate was surrendered or the licensee 16 ceased to be licensed or ceased holding the 17 certificate; and 18 (b) the State Administrative Tribunal may exercise 19 the powers conferred by section 84, other than 20 the power to suspend or cancel the person's 21 licence or certificate. 22 23 86. Section 93 amended 24 Delete section 93(1) and (2A) and insert: 25 26 (1) The Account is to be held and applied to reimburse a 27 person for the person's pecuniary or property loss to 28 the extent of the defalcation of -- 29 (a) a licensee during any period when the licensee 30 was the holder of a current triennial certificate; 31 or page 55 Consumer Protection Legislation Amendment Bill 2018 Part 10 Settlement Agents Act 1981 amended s. 87 1 (b) a person who ceased to be the holder of a 2 licence or triennial certificate, if -- 3 (i) the defalcation occurred during the 4 period of 6 months immediately 5 following the day on which the person 6 ceased to be licensed or the holder of 7 the triennial certificate; and 8 (ii) the chief executive officer considers that 9 it is just and reasonable in the 10 circumstances of the claim. 11 12 87. Section 111A amended 13 (1) In section 111A(1) delete "in relation to an application under 14 section 24, 26A, 26B, 31 or 33" and insert: 15 16 to the Commissioner or the chief executive officer under this 17 Act 18 19 (2) In section 111A(2): 20 (a) delete "in relation to an application referred to in 21 subsection (1)" and insert: 22 23 to the Commissioner or the chief executive officer 24 25 (b) in paragraph (a) delete "in relation to an application"; 26 (c) in paragraph (b) delete "made in relation to an 27 application"; 28 (d) in paragraph (c) delete "in relation to an application". page 56 Consumer Protection Legislation Amendment Bill 2018 Settlement Agents Act 1981 amended Part 10 s. 88 1 88. Various penalties amended 2 Amend the provisions listed in the Table as set out in the Table. 3 Table Provision Delete Insert s. 26(1) Penalty: $20 000. Penalty for this subsection: a fine of $100 000. s. 40(3) Penalty: $20 000. Penalty for this subsection: a fine of $100 000. page 57 Consumer Protection Legislation Amendment Bill 2018 Part 11 Street Collections (Regulation) Act 1940 amended s. 89 1 Part 11 -- Street Collections (Regulation) Act 1940 2 amended 3 89. Act amended 4 This Part amends the Street Collections (Regulation) Act 1940. 5 90. Section 2 amended 6 (1) In section 2 delete the definition of Metropolitan area. 7 (2) In section 2 insert in alphabetical order: 8 9 metropolitan region has the meaning given by the 10 Planning and Development Act 2005 section 4(1); 11 12 (3) In section 2 in the definition of Collection delete 13 "contributions." and insert: 14 15 contributions; 16 17 91. Section 3 amended 18 (1) In section 3(1) delete "area" and insert: 19 20 region 21 22 (2) At the end of section 3(1) insert: 23 24 Penalty for this subsection: a fine of $5 000. 25 26 Note: The heading to amended section 3 is to read: 27 No collection in metropolitan region except by permission of 28 Minister page 58 Consumer Protection Legislation Amendment Bill 2018 Street Collections (Regulation) Act 1940 amended Part 11 s. 92 1 92. Section 6 amended 2 At the end of section 6 insert: 3 4 Penalty: a fine of $5 000. 5 6 93. Section 7 amended 7 In section 7(2) delete "$40" and insert: 8 9 a fine of $2 000 10 11 94. Section 8 deleted 12 Delete section 8. 13
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