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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Finance Brokers Control Amendment Bill 2003
CONTENTS
1. Short title 1
2. Commencement 2
3. The Act amended 2
4. Section 4 amended 2
5. Section 5 amended 3
6. Part II heading replaced 4
7. Sections 6, 7, 8, 9, 10, 11 and 12 replaced 4
8. Section 13 amended 7
9. Section 14 amended 8
10. Sections 15, 16 and 17 replaced 8
11. Part II Division 2A heading inserted 10
12. Section 18 replaced 10
13. Part II Division 3 heading amended 19
14. Section 23 amended 19
15. Section 24 amended 20
16. Section 25 amended 20
17. Section 26 amended 21
18. Section 27 amended 21
19. Section 28 amended 22
20. Section 29 amended 23
21. Section 30 amended 25
22. Section 31 amended 25
23. Section 32 amended 26
24. Section 33 replaced 27
25. Section 34 amended 27
26. Section 34A repealed 28
27. Section 35 amended 28
28. Section 35A inserted 29
29. Section 36 amended 30
30. Section 37 amended 30
31. Section 38 amended 30
257--2 page i
Finance Brokers Control Amendment Bill 2003
Contents
32. Section 39 repealed 31
33. Section 40 amended 31
34. Section 40A inserted 31
35. Section 41 amended 32
36. Section 43 amended 32
37. Section 44 amended 33
38. Section 45 amended 33
39. Section 49 amended 34
40. Section 50 amended 34
41. Section 51 amended 35
42. Section 52 amended 36
43. Section 53 amended 36
44. Section 54 amended 36
45. Section 55 amended 37
46. Section 59 amended 37
47. Section 61 amended 37
48. Section 63 amended 37
49. Section 64 amended 38
50. Section 66 amended 38
51. Section 68 amended 38
52. Section 69 amended 38
53. Section 70 amended 39
54. Section 71 amended 39
55. Section 72 amended 39
56. Section 73 amended 39
57. Section 74 amended 40
58. Section 75 amended 41
59. Section 76 amended 41
60. Section 78 amended 41
61. Section 79 amended 42
62. Section 80 amended 42
63. Section 81 amended 42
64. Section 82 amended 43
65. Section 82A inserted 43
66. Section 83 amended 44
67. Section 84 replaced 45
68. Section 85 amended 46
69. Section 86 repealed 46
70. Section 87 amended 46
71. Section 88 replaced 47
72. Section 92 amended 48
page ii
Finance Brokers Control Amendment Bill 2003
Contents
73. Sections 92A and 92B inserted 49
74. Section 93 amended 52
75. Section 94 amended 52
76. Section 95 amended 52
77. Part VI repealed 53
78. Savings and transitional 53
79. Consequential amendment 53
Schedule 1 -- Transitional and savings 54
1. Meanings of terms used in this Schedule 54
2. Interpretation Act to apply 54
3. Board dissolved 54
4. Winding up of affairs of the Board 54
5. Registrar's certificate 55
6. Final report 55
7. Bond in respect of business certificate 56
8. Persons licensed or to whom an exception applied
under the Finance Brokers Act before the
commencement day 56
9. Persons licensed, but without a business certificate,
under the Finance Brokers Act before the
commencement day 56
10. Applications for certificates and licenses 57
11. Further transitional provision may be made 57
Schedule 2 -- Consequential
amendment
1. Constitution Acts Amendment Act 1899 amended 59
page iii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Finance Brokers Control Amendment Bill 2003
A Bill for
An Act to amend the Finance Brokers Control Act 1975, to make a
consequential amendment to another Act and for related purposes.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Finance Brokers Control
Amendment Act 2003.
page 1
Finance Brokers Control Amendment Bill 2003
s. 2
2. Commencement
This Act comes into operation on a day fixed by proclamation.
3. The Act amended
The amendments in this Act are to the Finance Brokers Control
5 Act 1975*.
[* Reprinted as at 3 March 2000.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 132 and
Act No. 21 of 2003.]
10 4. Section 4 amended
Section 4 is amended as follows:
(a) by deleting the definitions of "Board", "business
certificate", "chairman", "finance broker", "inspector",
"member", "Registrar" and "Treasury";
15 (b) by inserting in the appropriate alphabetical positions the
following definitions --
"
"Commissioner" means the person for the time being
designated as the Commissioner under section 6;
20 "condition", in relation to a licence or exemption,
includes restriction or limitation;
"department" means the department of the Public
Service principally assisting the Minister in the
administration of this Act;
25 "finance broker" means a person who --
(a) as an intermediary, in the course of business
negotiates or arranges loans of money for or
on behalf of other persons; or
page 2
Finance Brokers Control Amendment Bill 2003
s. 5
(b) in the course of business, manages loans of
money arranged or negotiated by the person
for or on behalf of other persons,
but does not include the exceptions specified in
5 section 5(1);
"investigator" means a person designated under
section 15 as an investigator and a member of the
Police Force undertaking an investigation or
inquiry or report under section 14;
10 "motor vehicle" has the meaning given in section 5(1)
of the Road Traffic Act 1974;
";
(c) in the definition of "approved" by deleting "Board" and
inserting instead --
15 " Commissioner ";
(d) in the definition of "finance brokers code of conduct" by
deleting "approved" and inserting instead --
" prescribed ";
(e) in the definition of "renewal" by deleting "business
20 certificate" and inserting instead --
" licence ";
(f) in the definition of "supervisor" by deleting "Board" and
inserting instead --
" Commissioner ";
25 (g) at the end of the definition of "Treasurer" by deleting
"; and" and inserting a full stop instead.
5. Section 5 amended
(1) Section 5(1) is amended as follows:
(a) in paragraph (g) by deleting "agent" and inserting
30 instead --
" intermediary ";
page 3
Finance Brokers Control Amendment Bill 2003
s. 6
(b) in paragraph (h) by deleting "in respect of whom
exceptions under subsection (2) are in force" and
inserting instead --
" exempted from the Act under subsection (2) ".
5 (2) Section 5(2) is repealed and the following subsections are
inserted instead --
"
(2) The Governor may make regulations under this
subsection exempting a person or class of persons from
10 the operation of this Act, or specified provisions of this
Act.
(3) Regulations made under subsection (2) may make an
exemption subject to specified terms or conditions.
".
15 6. Part II heading replaced
The heading to Part II is deleted and the following Part heading
is inserted instead --
"
Part II -- The Commissioner
20 ".
7. Sections 6, 7, 8, 9, 10, 11 and 12 replaced
Sections 6, 7, 8, 9, 10, 11 and 12 are repealed and the following
sections are inserted instead --
"
25 6. Commissioner
(1) The Minister is required, by notice published in the
Gazette, to designate a person who is an executive
officer of the department as the Commissioner for the
purposes of this Act.
page 4
Finance Brokers Control Amendment Bill 2003
s. 7
(2) The Commissioner may be referred to by a title
specified by the Minister by notice published in the
Gazette.
(3) In this section --
5 "executive officer" has the meaning given by
section 3(1) of the Public Sector Management
Act 1994.
(4) The Commissioner --
(a) is the licensing and supervisory authority for
10 the purposes of this Act; and
(b) has the powers, duties, and functions,
conferred, imposed, or prescribed by or under
this Act.
7. General functions of the Commissioner
15 As a part of the Commissioner's functions under this
Act, the Commissioner may --
(a) decide how an application for licensing is to be
dealt with;
(b) decide who may be licensed under this Act;
20 (c) make recommendations and submit proposals
to the Minister from time to time with respect
to regulations to be made under this Act;
(d) administer the scheme of licensing established
under this Act;
25 (e) conduct and promote education and provide
advisory services for persons who are licensed
under this Act, or involved in the
administration of this Act, and for members of
the public on --
30 (i) matters relating to the operation of this
Act;
page 5
Finance Brokers Control Amendment Bill 2003
s. 7
(ii) matters relating to the policies of the
Commissioner; or
(iii) matters relating to the operations of
finance brokers;
5 and
(f) carry out such other functions as are conferred
upon the Commissioner under this Act.
8. Commissioner may delegate
(1) The Commissioner may delegate to a person any power
10 or duty of the Commissioner under another provision
of this Act, other than an investigative function under
section 13.
(2) The delegation must be in writing signed by the
Commissioner.
15 (3) A person to whom a power or duty is delegated under
this section cannot delegate that power or duty.
(4) A person exercising or performing a power or duty that
has been delegated to the person under this section is to
be taken to do so in accordance with the terms of the
20 delegation unless the contrary is shown.
(5) A function performed by a delegate of the
Commissioner is taken to be performed by the
Commissioner.
(6) Nothing in this section limits the ability of the
25 Commissioner to perform a function through an officer
or agent.
9. Judicial notice
All courts, judges, and persons acting judicially shall
take judicial notice of the official signature of every
30 person who is for the time being the Commissioner or
an investigator and every person who has at any time
page 6
Finance Brokers Control Amendment Bill 2003
s. 8
been the Commissioner, an investigator, Registrar,
Deputy Registrar, Assistant Registrar, or inspector of
the Board, and of the fact that such person holds or has
held such position or office.
5 ".
8. Section 13 amended
Section 13 is amended as follows:
(a) by deleting "Registrar may, of his or her own motion,
and shall at the direction of the Board, and an inspector
10 shall, at the direction of the Board or Registrar, make
any investigation or inquiry that the Registrar or the
Board" and inserting instead --
"
Commissioner may, of his own motion, make
15 any investigation or inquiry that the
Commissioner
";
(b) in paragraph (a) by deleting "Board" and inserting
instead --
20 " Commissioner ";
(c) in paragraph (b) by deleting "special conditions, if any,
of their licenses and business certificates and are
complying with the requirements of this Act;" and the
"and" following that paragraph and inserting instead --
25 "
conditions, if any, of their licenses and are
complying with the requirements of this Act or
the finance brokers code of conduct;
";
30 (d) after paragraph (b) by inserting the following --
"
(ba) determining whether or not any other causes
exist that may be considered by the State
page 7
Finance Brokers Control Amendment Bill 2003
s. 9
Administrative Tribunal to render finance
brokers unfit to hold their licences; and
".
9. Section 14 amended
5 (1) Section 14(1) is amended by deleting "Board or the Registrar"
and inserting instead --
" Commissioner ".
(2) Section 14(2) is amended by deleting "Registrar" and inserting
instead --
10 " Commissioner ".
10. Sections 15, 16 and 17 replaced
Sections 15, 16 and 17 are repealed and the following sections
are inserted instead --
"
15 15. Investigators
(1) The chief executive officer may designate as
investigators for the purposes of this Act as many
persons employed in the department as the chief
executive officer considers necessary to assist the
20 Commissioner to perform investigative functions under
this Act.
(2) A reference in section 13 to the Commissioner includes
a reference to an investigator.
(3) The chief executive officer is to provide each
25 investigator with a document, signed by the chief
executive officer, certifying that the person is entitled
to exercise the powers of an investigator, and that
document is to be produced when demanded by a
person in respect of whom the Commissioner or an
30 investigator performs, has performed, or is proposing
page 8
Finance Brokers Control Amendment Bill 2003
s. 10
to perform, any function under this Act, including
Division 2A.
(4) In this section --
"investigative function" means any of the
5 Commissioner's functions under section 13.
16. Additional investigative powers
The Commissioner is, and each investigator is,
authorised to exercise the powers of an investigator
under Division 2A for the purposes of the performance
10 of any function under section 13.
17. Compliance checks at licensee's business premises
(1) For the purposes of determining whether or not a
licensee is acting in conformity with the conditions, if
any, of the licence and is complying with the
15 requirements of this Act or the finance brokers code of
conduct, the Commissioner or an investigator may --
(a) during normal business hours, enter premises
where the business of the licensee is being
carried on, without obtaining a warrant under
20 Division 2A; and
(b) exercise the powers in sections 18, 18D and
18H once entry is made.
(2) The Commissioner or an investigator may invoke the
powers in subsection (1) without an investigation being
25 under way in relation to any particular licensee.
(3) A person must not prevent or attempt to prevent the
Commissioner or an investigator from entering
business premises in the exercise of his or her powers
under subsection (1).
30 Penalty: $2 000.
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Finance Brokers Control Amendment Bill 2003
s. 11
(4) A person must not obstruct or impede the
Commissioner or an investigator in the exercise of his
or her powers under subsection (1).
Penalty: $2 000.
5 (5) A person must comply with a requirement to furnish
reasonable access to business premises, or to give other
reasonable assistance to the Commissioner or an
investigator, when exercising his or her powers under
subsection (1).
10 Penalty: $2 000.
".
11. Part II Division 2A heading inserted
Before section 18 the following Division heading is inserted --
"
15 Division 2A -- Specific investigatory powers
".
12. Section 18 replaced
Section 18 is repealed and the following sections are inserted
instead --
20 "
18. Powers
(1) An investigator may --
(a) require any person --
(i) to give such information as is required;
25 and
(ii) to answer any question put to the
person,
in relation to any matter the subject of an
investigation;
30 (b) require any person to produce any document;
page 10
Finance Brokers Control Amendment Bill 2003
s. 12
(c) enter at all reasonable times and search any
premises or motor vehicle named in a warrant
obtained in accordance with this Division and
exercise the powers set out in that warrant; and
5 (d) make a copy or abstract of any document
produced or inspected under this section, or of
any entry made in the document.
(2) A requirement made under subsection (1)(a) --
(a) may be made orally or by notice in writing
10 served on the person required to give
information or answer a question, as the case
may be;
(b) is to specify the time at or within which the
information is to be given or the question is to
15 be answered, as the case may be; and
(c) may, by its terms, require that the information
or answer required --
(i) be given orally or in writing;
(ii) be given at or sent or delivered to any
20 place specified in the requirement;
(iii) in the case of written information or
answers, be sent or delivered by any
means specified in the requirement; and
(iv) be given on oath or affirmation or by
25 statutory declaration.
(3) An investigator may administer an oath or affirmation
for the purposes of subsection (2)(c)(iv) and for that
purpose has the authority of a commissioner for
declarations.
30 (4) A requirement made under subsection (1)(b) --
(a) is to be made by notice in writing served on the
person required to produce a document;
page 11
Finance Brokers Control Amendment Bill 2003
s. 12
(b) is to specify the time at or within which the
document is to be produced; and
(c) may, by its terms, require that the document be
produced --
5 (i) at any place specified in the
requirement; and
(ii) by any means specified in the
requirement.
(5) Where under subsection (2)(a) an investigator orally
10 requires a person to give any information or answer
any question, the investigator is to inform that person
that he or she is required, under this Act, to give the
information or answer the question, as the case may be.
(6) Where under subsection (2)(a) or (b) a person is
15 required by notice in writing to give any information,
answer any question, or produce any document, the
notice is to state that he or she is required under this
Act to give the information, answer the question, or
produce the document, as the case may be.
20 18A. Warrant to enter premises
(1) If an investigator has determined in a particular case
that there are reasonable grounds for believing that
entry to premises or a motor vehicle is necessary for
the purpose of an investigation, the investigator may
25 apply to a magistrate or justice of the peace for a
warrant to be issued in respect of those premises or that
motor vehicle.
(2) An application for a warrant must --
(a) be in writing;
30 (b) be accompanied by a notice in writing from the
investigator stating that he or she has
determined in the particular case that there are
reasonable grounds for believing that entry to
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Finance Brokers Control Amendment Bill 2003
s. 12
premises or motor vehicle is necessary for the
purpose of the investigation;
(c) set out the grounds for seeking the warrant; and
(d) describe the premises or motor vehicle that are
5 to be entered.
(3) A magistrate or justice of the peace to whom an
application is made under this section must refuse it
if --
(a) the application does not comply with the
10 requirements of this Act; or
(b) when required to do so by the magistrate or the
justice of the peace, the investigator does not
give to the magistrate or justice of the peace
more information about the application.
15 (4) The information in an application or given to a
magistrate or justice of the peace under this section
must be verified before the magistrate or justice of the
peace on oath or affirmation or by affidavit, and the
magistrate or justice of the peace may for that purpose
20 administer an oath or affirmation or take an affidavit.
18B. Issue of warrant
(1) A magistrate or justice of the peace to whom an
application is made under section 18A may issue a
warrant, if satisfied that the investigator has reasonable
25 grounds for believing that entry and inspection of the
premises or motor vehicle are necessary for the
purpose of the investigation.
(2) A warrant under subsection (1) authorises the
investigator --
30 (a) to enter and inspect the premises or motor
vehicle named in the warrant;
page 13
Finance Brokers Control Amendment Bill 2003
s. 12
(b) to require a person on the premises to answer
questions or produce documents or other things
in the person's possession concerning the
investigation; and
5 (c) to inspect documents and other things, and take
copies of or extracts from documents, produced
in compliance with a requirement made under
paragraph (b).
(3) There must be stated in a warrant --
10 (a) the purpose for which the warrant is issued;
(b) the name of the person to whom the warrant is
issued; and
(c) a description of the premises or motor vehicle
that may be entered.
15 (4) A magistrate or justice of the peace who issues a
warrant must cause a record to be made of particulars
of the grounds that the magistrate or justice of the
peace has relied on to justify the issue of the warrant.
18C. Execution of warrant
20 (1) Entry authorised by a warrant under this Division may
be made with such assistance and equipment as is
considered necessary for the purpose for which entry is
required.
(2) If asked by the occupier or a person in charge of the
25 premises or motor vehicle, the person executing a
warrant must produce it for inspection.
(3) When executing a warrant, the investigator may require
any person, having the control or custody of any
premises, motor vehicle or thing which the investigator
30 is authorised to enter or inspect, to furnish reasonable
access to it and to give other reasonable assistance.
page 14
Finance Brokers Control Amendment Bill 2003
s. 12
(4) A warrant ceases to have effect --
(a) at the end of the period of one month after its
issue;
(b) if it is withdrawn by the magistrate or justice of
5 the peace who issued it; or
(c) when it is executed,
whichever occurs first.
18D. Seizure
(1) An investigator may seize a document or other thing
10 that is produced or given in response to a requirement
under this Division, or that is found as the result of
executing a warrant under this Division.
(2) Despite subsection (1), a document or other thing
cannot be seized unless the investigator reasonably
15 suspects it --
(a) is being, or has been, used to commit; or
(b) may afford evidence of the commission of,
a breach of this Act, a prescribed Act or prescribed part
of an Act, the finance brokers code of conduct, or a
20 licence condition.
(3) As soon as practicable after the document or other
thing is seized, the investigator is to give a receipt for it
to the person from whom it was seized.
(4) If, for any reason, it is not practicable to comply with
25 subsection (3), the investigator is to --
(a) leave the receipt at the place of seizure; and
(b) ensure the receipt is left in a reasonably secure
way and in a conspicuous position.
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Finance Brokers Control Amendment Bill 2003
s. 12
(5) Where a document or other thing is seized pursuant to
subsection (1) --
(a) an investigator may retain the document or
other thing so long as is reasonably necessary
5 for the purposes of the investigation to which
the document or other thing is relevant; and
(b) when the retention of the document or other
thing by the person ceases to be reasonably
necessary for those purposes, the investigator
10 shall cause the document or other thing to be
delivered to the person who appears to the
investigator to be entitled to possession of the
document or other thing.
18E. Incriminating information, questions, or documents
15 Without prejudice to the provisions of section 11 of the
Evidence Act 1906, where under section 18 a person is
required to --
(a) give any information;
(b) answer any question; or
20 (c) produce any document,
that person cannot refuse to comply with that
requirement on the ground that the information,
answer, or document may tend to incriminate the
person or render the person liable to any penalty, but
25 the information or answer given, or document
produced, by the person is not admissible as evidence
in any proceedings against the person other than
proceedings in respect of an offence against
section 18F(1)(b).
30 18F. Failure to comply with investigation
(1) Where under section 18 a person is required to give
any information, answer any question, or produce any
page 16
Finance Brokers Control Amendment Bill 2003
s. 12
document and that person, without reasonable excuse
(proof of which lies on the person) --
(a) fails to give that information or answer that
question at or within the time specified in the
5 requirement;
(b) gives any information or answer that is false in
any particular; or
(c) fails to produce that document at or within the
time specified in the requirement,
10 the person commits an offence.
Penalty: $2 000.
(2) It is a defence in any proceeding for an offence under
subsection (1)(a) or (c) for the defendant to show --
(a) that, in the case of an alleged offence arising
15 out of a requirement made orally under
section 18, the investigator did not, when
making the requirement, inform the defendant
that he or she was required under this Act to
give the information or answer the question, as
20 the case may be;
(b) that, in the case of an alleged offence arising
out of a requirement made by notice in writing
under section 18, the notice did not state that he
or she was required under this Act to give the
25 information, answer the question, or produce
the document, as the case may be;
(c) that the time specified in the requirement did
not afford the defendant sufficient notice to
enable him or her to comply with the
30 requirement; or
(d) that, in any case, the investigator did not, before
making the requirement, have reasonable
grounds to believe that compliance with the
page 17
Finance Brokers Control Amendment Bill 2003
s. 12
requirement would materially assist in the
investigation being carried out.
18G. Obstruction of investigator
(1) A person must not prevent or attempt to prevent an
5 investigator from entering premises in the exercise of
his or her powers under section 18.
Penalty: $2 000.
(2) A person must not obstruct or impede an investigator in
the exercise of his or her powers under section 18.
10 Penalty: $2 000.
(3) A person must comply with a requirement to furnish
reasonable access to a place or motor vehicle, or to
give other reasonable assistance to an investigator
under section 18C(3).
15 Penalty: $2 000.
18H. Information
(1) Information obtained under this Division by an
investigator may (for the purposes of section 88) be
recorded, used, or disclosed on the basis that it has
20 been acquired by the investigator for the purposes of
this Act.
(2) A document copied by an investigator under
section 18(1)(d), or when executing a warrant, may be
certified by that investigator as being a true and
25 accurate copy of a document and, in the absence of
proof to the contrary, any copy so certified is to be
accepted by any court or tribunal as evidence of, and as
having equal validity as, the original.
(3) In this section --
30 "information" means information concerning the
affairs of a person.
".
page 18
Finance Brokers Control Amendment Bill 2003
s. 13
13. Part II Division 3 heading amended
The heading to Part II Division 3 is amended by deleting
"Board" and inserting instead --
" Commissioner ".
5 14. Section 23 amended
(1) Section 23(1) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
(2) Section 23(2) is amended in the definition of "person
10 aggrieved" as follows:
(a) by deleting paragraph (a) of the definition and the "or"
following that paragraph and inserting instead --
"
(a) a person whose licence is affected by a
15 reviewable decision or who, under Part III,
applies for or objects to the grant of a licence
or applies for or objects to the renewal of a
licence; or
";
20 (b) in paragraph (b) of the definition by deleting "Board"
and inserting instead --
" Commissioner ".
(3) Section 23(2) is amended in paragraph (b) of the definition of
"reviewable decision" after "Division 2" by inserting --
25 " or section 82A(1) ".
page 19
Finance Brokers Control Amendment Bill 2003
s. 15
15. Section 24 amended
(1) Section 24(1) is amended by deleting "a manner and form
determined by the Board in respect of such an application and
shall contain such information as is required by the Board in
5 respect of such an application." and inserting instead --
"
the manner prescribed and a form approved by the
Commissioner and shall contain such information as is
prescribed.
10 ".
(2) Section 24(4) is amended by deleting "Board" in the 3 places
where it occurs and inserting instead in each place --
" Commissioner ".
16. Section 25 amended
15 (1) Section 25(1) is amended as follows:
(a) after "grant" in the 2 places where it occurs, by
inserting --
" or renewal ";
(b) by deleting "have all or any of the qualifications
20 required" and inserting instead --
" satisfy all the requirements ".
(2) Section 25(2) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
25 (3) After section 25(3) the following subsections are inserted --
"
(4) The Commissioner is to have regard to the rules of
natural justice in so far as they are relevant to the
determination of an objection.
page 20
Finance Brokers Control Amendment Bill 2003
s. 17
(5) If an objection is found by the Commissioner to be
frivolous or vexatious, the chief executive officer may
recover, from the objector, any additional costs
incurred as a debt in a court of competent jurisdiction.
5 ".
17. Section 26 amended
Section 26(1) is amended as follows:
(a) by deleting "and holds a current business certificate in
respect of the licence";
10 (b) by deleting the penalty at the foot of that subsection and
inserting the following penalty instead --
" Penalty: $50 000. ".
18. Section 27 amended
(1) Section 27(1) is amended as follows:
15 (a) by deleting "Board for a licence and pays to the Board"
and inserting instead --
"
Commissioner for a licence and pays to the
chief executive officer
20 ";
(b) before "is satisfied" by deleting "Board" and inserting
instead --
" Commissioner ";
(c) in paragraph (c) by deleting "and a fit and proper person
25 to hold a licence";
(d) after paragraph (c) by inserting the following
paragraph --
"
(ca) he is a fit and proper person to hold a licence;
30 ".
page 21
Finance Brokers Control Amendment Bill 2003
s. 19
(e) after paragraph (d) by deleting "and";
(f) at the end of paragraph (e) by deleting the full stop and
inserting instead --
"
5 ; and
(f) he has such other qualifications and satisfies
such other requirements (if any) as may be
prescribed by the regulations.
".
10 (2) Section 27(2) is repealed.
19. Section 28 amended
Section 28 is amended as follows:
(a) by deleting "Board for a licence and pays to the Board"
and inserting instead --
15 "
Commissioner for a licence and pay to the chief
executive officer
";
(b) before "is satisfied" by deleting "Board" and inserting
20 instead --
` " Commissioner ";
(c) in paragraph (a) by deleting "and are persons fit to be
concerned as directors of, or in the management and
control of a finance broker's business";
25 (d) after paragraph (a) by inserting the following
paragraph --
"
(aa) all of the natural persons, if any, by whom the
firm is constituted and all of the directors of,
30 and all of the persons concerned in the
management or control of, any body corporate
by which the firm is constituted are persons fit
page 22
Finance Brokers Control Amendment Bill 2003
s. 20
to be concerned as directors of, or in the
management and control of a finance broker's
business;
";
5 (e) after paragraph (b) by deleting "and";
(f) at the end of paragraph (c) by deleting the full stop and
inserting instead --
"
; and
10 (d) the person in bona fide control of the business
has such other qualifications and satisfies such
other requirements (if any) as may be
prescribed by the regulations.
".
15 20. Section 29 amended
(1) Section 29(1) is amended as follows:
(a) by deleting "Board for a licence and pays to the Board"
and inserting instead --
"
20 Commissioner for a licence and pays to the
chief executive officer
";
(b) before "is satisfied" by deleting "Board" and inserting
instead --
25 " Commissioner ";
(c) in paragraph (a) by deleting "and are persons fit to be
concerned as directors of, or in the management and
control of a finance broker's business";
page 23
Finance Brokers Control Amendment Bill 2003
s. 20
(d) after paragraph (a) by inserting the following
paragraph --
"
(aa) all of the directors of the body corporate, and
5 all of the persons concerned in the management
or conduct of the body corporate, are persons fit
to be concerned as directors of, or in the
management and control of a finance broker's
business;
10 ";
(e) after paragraph (b) by deleting "and";
(f) at the end of paragraph (c) by deleting the full stop and
inserting instead --
"
15 ; and
(d) that the person in bona fide control of the
business, or the officer in bona fide control of
the finance broker's part of the business (as the
case requires), has such other qualifications and
20 satisfies such other requirements (if any) as
may be prescribed by the regulations.
".
(2) Section 29(2) is amended as follows:
(a) by deleting "Board" in the 2 places where it occurs and
25 inserting instead in each place --
" Commissioner ";
(b) by deleting "it" and inserting instead --
" the Commissioner ".
page 24
Finance Brokers Control Amendment Bill 2003
s. 21
21. Section 30 amended
(1) Section 30(1) is amended by deleting "is continuous." and
inserting instead --
"
5 continues for not longer than 3 years, or such other
licence period as may be prescribed.
".
(2) Section 30(2), (3) and (4) are repealed and the following
subsections are inserted instead --
10 "
(2) If different classes of licence are prescribed, different
licence periods, each not exceeding 3 years, may be
prescribed for each or any class of licence.
(3) A person may at any time surrender a licence and shall
15 do so --
(a) if the person ceases to satisfy the requirements
for holding the licence; or
(b) within 7 days, if the person has the licence
suspended by the Commissioner under
20 section 82A.
".
(3) Section 30(5) is amended as follows:
(a) by deleting "or a business certificate";
(b) by deleting "or certificate".
25 22. Section 31 amended
(1) Section 31(1) is amended as follows:
(a) by deleting "the Board shall on the grant of a licence
grant the licensee a certificate which confers on the
licensee" and inserting instead --
30 " a licensee has ";
page 25
Finance Brokers Control Amendment Bill 2003
s. 23
(b) by deleting "period prescribed." and inserting instead --
" relevant period described in section 30. ".
(2) Section 31(2) is amended as follows:
(a) by deleting "business certificate" and inserting
5 instead --
" licence ";
(b) by deleting "period prescribed." and inserting instead --
" relevant period described in section 30. ".
23. Section 32 amended
10 (1) Section 32(1) is amended as follows:
(a) by deleting "business certificate" in the 2 places where it
occurs and inserting instead in each place --
" licence ";
(b) by deleting "period prescribed." and inserting instead --
15 " relevant period described in section 30. ".
(2) Section 32(1a) is amended by deleting "business certificate" and
inserting instead --
" licence ".
(3) Section 32(2) is amended as follows:
20 (a) by deleting "a manner and form determined by the
Board" and inserting instead --
"
the manner prescribed and a form approved by
the Commissioner
25 ";
(b) by deleting "Board" in the last place where it occurs and
inserting instead --
" Commissioner ".
page 26
Finance Brokers Control Amendment Bill 2003
s. 24
(4) Section 32(4) is amended by deleting "Board" in the 3 places
where it occurs and inserting instead in each place --
" Commissioner ".
24. Section 33 replaced
5 Section 33 is repealed and the following section is inserted
instead --
"
33. Refusal to renew
The Commissioner may refuse to renew a person's
10 licence if --
(a) the applicant is no longer able to satisfy the
requirements for an initial grant of a licence of
that class; or
(b) the applicant has not met further prescribed
15 educational requirements (if any).
".
25. Section 34 amended
(1) Section 34(2) is amended by deleting "Board may grant a
licence or grant or renew a business certificate subject to such
20 special conditions as it" and inserting instead --
"
Commissioner may grant or renew a licence subject to
such conditions as the Commissioner
".
25 (2) Section 34(3) is amended as follows:
(a) by deleting "special";
(b) by deleting "or business certificate".
page 27
Finance Brokers Control Amendment Bill 2003
s. 26
(3) After section 34(3) the following subsection is inserted --
"
(4) A condition to which a licence is subject may be varied
or revoked by the Commissioner, upon the application
5 of the licensee, or on the Commissioner's own motion.
".
26. Section 34A repealed
Section 34A is repealed.
27. Section 35 amended
10 (1) Section 35(1) is amended as follows:
(a) by deleting "Board" in the 2 places where it occurs and
inserting instead in each place --
" Commissioner ";
(b) by deleting "business certificate" and inserting
15 instead --
" licence ";
(c) by deleting "the Insurance Act 1932" and inserting
instead --
" the Insurance Act 1973 ".
20 (2) Section 35(2) is amended by deleting "business certificate" in
the 3 places where it occurs and inserting instead in each
place --
" licence ".
(3) Section 35(3) is amended as follows:
25 (a) by deleting "business certificate" in the 2 places where it
occurs and inserting instead in each place --
" licence ";
(b) by deleting "Board" in the 2 places where it occurs and
inserting instead in each place --
30 " Commissioner ".
page 28
Finance Brokers Control Amendment Bill 2003
s. 28
(4) Section 35(4) is amended as follows:
(a) by deleting "business certificate" in the 2 places where it
occurs and inserting instead in each place --
" licence ";
5 (b) by deleting "licensee" and inserting instead --
" person who held the licence ".
(5) Section 35(5) is amended as follows:
(a) by deleting "Board" in the 3 places where it occurs and
inserting instead in each place --
10 " Commissioner ";
(b) by deleting "its or";
(c) by deleting "it,".
28. Section 35A inserted
After section 35 the following section is inserted --
15 "
35A. Prescribed person exempt from bond requirements
(1) Despite section 35, the regulations may exempt from
the requirement to lodge a bond or guarantee --
(a) any person or class of persons;
20 (b) persons carrying on any business or any
specified class of business; or
(c) any other class of person, act or thing.
(2) An exemption may be expressed to apply --
(a) generally; or
25 (b) only in respect of a specified area or areas in
the State.
(3) The regulations may provide --
(a) for circumstances in which, and conditions
subject to which, an exemption is to apply; and
page 29
Finance Brokers Control Amendment Bill 2003
s. 29
(b) that an exemption is to have no effect at any
time when any condition to which it is subject
is not being observed.
".
5 29. Section 36 amended
(1) Section 36(1) is amended by deleting "Registrar" and inserting
instead --
" Commissioner ".
(2) Section 36(2) is amended by deleting "Registrar" and inserting
10 instead --
" Commissioner ".
(3) Section 36(3) is amended by deleting "Registrar" and inserting
instead --
" Commissioner ".
15 30. Section 37 amended
(1) Section 37(1) is amended by deleting the penalty provision at
the foot of that subsection.
(2) Section 37(3) is amended by deleting "Registrar" in the 2 places
where it occurs and inserting instead in both places --
20 " Commissioner ".
31. Section 38 amended
(1) Section 38(1) is amended as follows:
(a) by deleting "Registrar" and inserting instead --
" Commissioner ";
25 (b) by deleting the penalty provision at the foot of that
subsection.
(2) Section 38(2) is amended by deleting the penalty provision at
the foot of that subsection.
page 30
Finance Brokers Control Amendment Bill 2003
s. 32
32. Section 39 repealed
Section 39 is repealed.
33. Section 40 amended
(1) Section 40(1) is amended as follows:
5 (a) by deleting "or more than one business certificate";
(b) by inserting at the foot of that subsection the following
penalty --
" Penalty: $50 000. ".
(2) Section 40(2) is amended by deleting "or a business certificate".
10 (3) Section 40(3) is amended as follows:
(a) by deleting "or a business certificate";
(b) by deleting the penalty at the foot of the subsection and
inserting the following penalty instead --
" Penalty: $50 000. ".
15 34. Section 40A inserted
After section 40 the following section is inserted --
"
40A. Prohibition against doing business with unlicensed
finance brokers
20 (1) In this section --
"unlicensed finance broker" means a person or firm
that is required by section 26(1) to, but does not,
hold a licence for the type of finance broking
concerned.
25 (2) A licensee must not enter into an agreement for any
finance broking to be carried out by a person or firm
that is an unlicensed finance broker.
Penalty: $50 000.
page 31
Finance Brokers Control Amendment Bill 2003
s. 35
(3) A licensee must not do any act which assists, or is
intended to assist, a person or firm that is an unlicensed
finance broker to carry on a business that consists of or
includes the carrying out of any finance broking that
5 requires a licence.
Penalty: $50 000.
".
35. Section 41 amended
(1) Section 41(1) is amended as follows:
10 (a) by deleting "Board" and inserting instead --
" Commissioner ";
(b) in paragraph (a) by deleting "which shall be endorsed on
his business certificate".
(2) Section 41(2) is amended as follows:
15 (a) by deleting "Registrar" and inserting instead --
" Commissioner ";
(b) at the foot of that subsection by deleting the penalty and
inserting the following penalty instead --
" Penalty: $1 000. ".
20 36. Section 43 amended
(1) Section 43(1)(a) is amended by deleting "and he holds a current
business certificate in respect of his licence".
(2) Section 43(2) is amended at the foot of that subsection by
deleting the penalty and inserting the following penalty
25 instead --
" Penalty: $5 000. ".
page 32
Finance Brokers Control Amendment Bill 2003
s. 37
37. Section 44 amended
(1) Section 44(1) is amended by deleting "The Board shall from
time to time," and inserting instead --
"
5 After taking advice from the Commissioner, the
Minister may,
".
(2) Section 44(4) is amended after "shall be held in" by deleting
"the".
10 (3) Section 44(1) is amended after "negotiated" by inserting --
" , managed ".
(4) Section 44(5) is amended after "negotiating" by inserting --
" , managing ".
(5) Section 44(6) is amended at the foot of that subsection by
15 deleting the penalty and inserting the following penalty
instead --
" Penalty: $5 000. ".
38. Section 45 amended
(1) Section 45(2) is amended by deleting "such details as are
20 sufficient to identify the licensee." and inserting instead --
"
(as a minimum) the licence number of the licensee, and
such other details (if any) as are prescribed.
".
25 (2) Section 45(3) is amended after "licensee" by inserting --
"
other than an advertisement for credit to which the
Consumer Credit (Western Australia) Code applies,
".
page 33
Finance Brokers Control Amendment Bill 2003
s. 39
(3) After section 45(4) the following subsection is inserted --
"
(5) In this section --
"Consumer Credit (Western Australia) Code" has
5 the meaning given to it in the Consumer Credit
(Western Australia) Act 1996.
".
39. Section 49 amended
Section 49(5) is amended by deleting "Board" in the 2 places
10 where it occurs and inserting instead in both places --
" Commissioner ".
40. Section 50 amended
(1) Section 50(2) is amended by deleting "Board" and inserting
instead --
15 " Commissioner ".
(2) Section 50(3)(a) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
(3) Section 50(5) is amended as follows:
20 (a) by deleting "Board" and inserting instead --
" Commissioner ";
(b) by deleting "it" and inserting instead --
" the Commissioner ".
(4) Section 50(6) is amended by deleting "Board" in the 2 places
25 where it occurs and inserting instead in both places --
" Commissioner ".
page 34
Finance Brokers Control Amendment Bill 2003
s. 41
(5) Section 50(7) is amended as follows:
(a) by deleting "Board" in the first 2 places where it occurs
and inserting instead in both places --
" Commissioner ";
5 (b) by deleting "Board" in the last place where it occurs and
inserting instead --
" chief executive officer ".
(6) Section 50(8) is amended by deleting "Board" and inserting
instead --
10 " Commissioner ".
(7) Section 50(9) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
41. Section 51 amended
15 (1) Section 51(1) is amended as follows:
(a) by deleting "Board" in the 2 places where it occurs and
inserting instead in both places --
" Commissioner ";
(b) by deleting "its" and inserting instead --
20 " the Commissioner's ".
(2) Section 51(2) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
(3) Section 51(3) is amended by deleting "Board" in the 2 places
25 where it occurs and inserting instead in both places --
" Commissioner ".
page 35
Finance Brokers Control Amendment Bill 2003
s. 42
(4) Section 51(5) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
42. Section 52 amended
5 (1) Section 52(2) is amended by deleting "Board" in the 2 places
where it occurs and inserting instead in both places --
" Commissioner ".
(2) Section 52(4) is amended as follows:
(a) by deleting "Board" in the 2 places where it occurs and
10 inserting instead in both places --
" Commissioner ";
(b) by deleting "it" and inserting instead --
" the Commissioner ".
43. Section 53 amended
15 Section 53(3) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
44. Section 54 amended
Section 54 is amended as follows:
20 (a) by deleting "Board" in the 2 places where it occurs and
inserting instead in both places --
" Commissioner ";
(b) by deleting "it" and inserting instead --
" the Commissioner ".
page 36
Finance Brokers Control Amendment Bill 2003
s. 45
45. Section 55 amended
Section 55 is amended as follows:
(a) by deleting "Board" and inserting instead --
" Commissioner ";
5 (b) by deleting "its" and inserting instead --
" the Commissioner's ";
(c) in paragraph (b) by deleting "it" and inserting instead --
" the Commissioner ".
46. Section 59 amended
10 Section 59(e) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
47. Section 61 amended
Section 61 is amended as follows:
15 (a) after "discovers that" by inserting --
" one or more of ";
(b) after "trust moneys" by inserting --
"
(whether generally or in an individual trust
20 ledger account)
";
(c) by deleting "Board" and inserting instead --
" Commissioner ".
48. Section 63 amended
25 (1) Section 63(1) is amended by deleting "Board" in the 2 places
where it occurs and inserting instead in both places --
" Commissioner ".
page 37
Finance Brokers Control Amendment Bill 2003
s. 49
(2) Section 63(2) is amended by deleting "Board" in the 2 places
where it occurs and inserting instead in both places --
" Commissioner ".
49. Section 64 amended
5 Section 64(1) is amended at the foot of that subsection by
deleting the penalty and inserting the following penalty
instead --
" Penalty: $10 000. ".
50. Section 66 amended
10 Section 66 is amended by deleting "Board" and inserting
instead --
" Commissioner ".
51. Section 68 amended
Section 68 is amended as follows:
15 (a) by deleting "Board" in the 2 places where it occurs and
inserting instead in both places --
" Commissioner ";
(b) by deleting "it may" and inserting instead --
" the Commissioner may ".
20 52. Section 69 amended
Section 69(a) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
page 38
Finance Brokers Control Amendment Bill 2003
s. 53
53. Section 70 amended
Section 70 is amended as follows:
(a) by deleting "Board" in the first 2 places where it occurs
and inserting instead in both places --
5 " Commissioner ";
(b) by deleting "Board" in the last place where it occurs and
inserting instead --
" chief executive officer ".
54. Section 71 amended
10 Section 71 is amended by deleting "Board" and inserting
instead --
" Commissioner ".
55. Section 72 amended
Section 72(1) is amended by deleting "Board" and inserting
15 instead --
" Commissioner ".
56. Section 73 amended
(1) Section 73(1) is amended by deleting "Board" in the 3 places
where it occurs and inserting instead in each place --
20 " Commissioner ".
(2) Section 73(2) is amended by deleting "Board" in the 2 places
where it occurs and inserting instead in each place --
" Commissioner ".
(3) Section 73(3) is amended as follows:
25 (a) after "authorizes the" by deleting "Board" and inserting
instead --
" Commissioner ";
page 39
Finance Brokers Control Amendment Bill 2003
s. 57
(b) after paragraph (a) by deleting "and" and inserting
instead --
"
(aa) may give such orders and directions that the
5 State Administrative Tribunal considers
necessary or appropriate to allow the supervisor
to preserve the property or rights of any person
on whose behalf a finance broker or deceased
finance broker has received monies; and
10 ";
(c) in paragraph (b) by deleting "Board" in the 2 places
where it occurs and inserting instead in each place --
" chief executive officer ";
(d) in paragraph (b)(ii) by deleting "at the Treasury".
15 (4) Section 73(4) is amended as follows:
(a) in paragraph (a) by deleting "Board" and inserting
instead --
" chief executive officer ";
(b) in paragraph (b) by deleting "Board" in the first place
20 where it occurs and inserting instead --
" Commissioner ";
(c) by deleting "Board" in the last place where it occurs and
inserting instead --
" chief executive officer ".
25 57. Section 74 amended
(1) Section 74(1) is amended as follows:
(a) by deleting "Board" in the first 3 places where it occurs
and inserting instead in each place --
" Commissioner ";
page 40
Finance Brokers Control Amendment Bill 2003
s. 58
(b) in paragraph (c) by deleting "Board" and inserting
instead --
" chief executive officer ".
(2) Section 74(2) is amended by deleting "Chairman or by
5 2 members of the Board" and inserting instead --
" Commissioner ".
58. Section 75 amended
After section 75(2) the following subsection is inserted --
"
10 (3) The supervisor may apply to the State Administrative
Tribunal for further orders or directions under
section 73(3)(aa) as may be relevant or necessary to
preserve the property or rights of any person on whose
behalf a finance broker or deceased finance broker has
15 received monies.
".
59. Section 76 amended
Section 76 is amended at the foot of that section by deleting the
penalty and inserting the following penalty instead --
20 " Penalty: $4 000. ".
60. Section 78 amended
(1) Section 78(1) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
25 (2) Section 78(2)(a) is amended by deleting "to be kept at the
Treasury".
page 41
Finance Brokers Control Amendment Bill 2003
s. 61
61. Section 79 amended
(1) Section 79(1) is amended by deleting "Board" in the 2 places
where it occurs and inserting instead in each place --
" Commissioner ".
5 (2) Section 79(2)(b) is amended by deleting "Board" and inserting
instead --
" Commissioner ".
(3) Section 79(3)(c) is amended by deleting "Board" and inserting
instead --
10 " Commissioner ".
(4) Section 79(5) is amended at the foot of that section by deleting
the penalty and inserting the following penalty instead --
" Penalty: $4 000. ".
62. Section 80 amended
15 Section 80 is amended as follows:
(a) by deleting "Board" in the 2 places where it occurs and
inserting instead in both places --
" Commissioner ";
(b) in paragraph (b) by deleting "it" and inserting instead --
20 " the Commissioner ".
63. Section 81 amended
Section 81 is amended by deleting "Board may approve" and
inserting instead --
" Governor may make regulations prescribing ".
page 42
Finance Brokers Control Amendment Bill 2003
s. 64
64. Section 82 amended
Section 82 is amended as follows:
(a) by deleting "Board" and inserting instead --
" Commissioner ";
5 (b) by deleting "section 83(2)." and inserting instead --
"
section 83(2), to be taken against --
(a) a person who is a licensed finance broker; or
(b) a person who was a licensed finance broker
10 when the conduct the subject of an inquiry
allegedly occurred but who is no longer a
licensed finance broker.
".
65. Section 82A inserted
15 After section 82 the following section is inserted --
"
82A. Suspension pending possible disciplinary action
(1) If the Commissioner has reasonable grounds for
believing that --
20 (a) a licensee has engaged in conduct that
constitutes grounds for suspension or
cancellation of that licence under this Act;
(b) it is likely that the licensee will continue to
engage in that conduct; and
25 (c) there is a risk that a person or persons may
suffer significant loss or damage as a result of
that conduct, if immediate action is not taken,
the Commissioner may, by notice served on the
licensee, suspend the licence for a period of not more
30 than 60 days.
page 43
Finance Brokers Control Amendment Bill 2003
s. 66
(2) A notice under subsection (1) is to set out a brief
summary of the basis for the suspension and, for the
purposes of administrative review, that summary is to
be regarded as a written statement of the reasons for
5 the decision.
(3) Suspension under subsection (1) has effect whether or
not the licensee has been afforded an opportunity to
make representations, and from the time of service of
the notice.
10 (4) Within 21 days of serving a notice under
subsection (1), the Commissioner must either revoke
the suspension, or make an allegation in relation to the
licensee under section 82.
(5) Upon receiving an allegation under section 82, the
15 State Administrative Tribunal may, in addition to any
other order it may make, affirm or revoke a suspension
under subsection (1), or vary the term of the suspension
by extending the period to which it applies.
(6) Where the Commissioner or the State Administrative
20 Tribunal revokes a licence suspension under
subsections (4) or (5), the Commissioner is to ensure
that the licence is returned to the licensee.
".
66. Section 83 amended
25 (1) Section 83(1) is amended as follows:
(a) in paragraph (b) by deleting "$1 000" and inserting
instead --
" $10 000 ";
(b) in paragraph (c) by deleting "and any business
30 certificate in respect thereof ";
(c) in paragraph (c) by deleting "or business certificate, or
both".
page 44
Finance Brokers Control Amendment Bill 2003
s. 67
(2) Section 83(2) is amended as follows:
(a) in paragraph (a) by deleting "or business certificate";
(b) in paragraph (b) by deleting "been guilty of " and
inserting instead --
5 " engaged in ";
(c) by deleting subparagraph (c)(i) and inserting the
following subparagraph instead --
" (i) a condition of his licence; ".
(3) After section 83(2) the following subsection is inserted --
10 "
(3) In this section --
"finance broker" includes a person who was a
licensed finance broker when the conduct giving
rise to the allegation occurred but who is no longer
15 a licensed finance broker.
".
67. Section 84 replaced
Section 84 is repealed and the following section is inserted
instead --
20 "
84. Register
(1) The Commissioner shall keep a register of licensees.
(2) The Commissioner shall cause to be recorded in the
register any prescribed particulars.
25 (3) The Commissioner shall cause to be removed from the
register the name of every licensee who dies, or ceases
for any reason to be licensed.
(4) The Commissioner shall, upon receipt of the prescribed
fee from a person desiring to inspect the register, make
30 it available for the inspection of that person.
".
page 45
Finance Brokers Control Amendment Bill 2003
s. 68
68. Section 85 amended
(1) Section 85(1) is repealed and the following subsection is
inserted instead --
"
5 (1) A list of the names and descriptions of all persons
holding licences on a date specified therein, together
with such of the particulars appearing in the register as
the Commissioner thinks fit, shall be published
annually in a manner approved by the Commissioner.
10 ".
(2) Section 85(2) is amended by deleting "Registrar" and inserting
instead --
" Commissioner ".
(3) Section 85(3) is amended as follows:
15 (a) by deleting "Registrar" and inserting instead --
" Commissioner ";
(b) by deleting "or the holder of a business certificate".
(4) Section 85(4) is amended by deleting "Registrar" and inserting
instead --
20 " Commissioner ".
69. Section 86 repealed
Section 86 is repealed.
70. Section 87 amended
Section 87 is amended as follows:
25 (a) by deleting "member or the deputy of a member, or the
Registrar, an inspector, or any other officer, of the
Board" and inserting instead --
" person ";
page 46
Finance Brokers Control Amendment Bill 2003
s. 71
(b) by deleting ", or by the Board,";
(c) by deleting "or its" in the 2 places where it occurs.
71. Section 88 replaced
Section 88 is repealed and the following section is inserted
5 instead --
"
88. Secrecy
(1) This section applies to --
(a) any person who has been, a member or the
10 deputy of a member, or the Registrar, or any
other officer, whether permanent or temporary,
of the former Board; and
(b) a person who has, or has had, a function under
this Act.
15 (2) A person to whom this section applies shall not either
directly or indirectly, except in the performance of a
duty under or in connection with this Act, make a
record of, or divulge or communicate to any person,
any information concerning the affairs of any other
20 person acquired by him by reason of his office,
position or employment under or for the purposes of
this Act.
Penalty: $5 000.
(3) Nothing in subsection (2) prohibits the recording,
25 divulging or communicating of any information
referred to in that subsection --
(a) for the purpose of performing a function under
or in connection with this Act;
(b) for the purpose of giving information
30 concerning the affairs of a licensee or a former
licensee to a body established under a written
page 47
Finance Brokers Control Amendment Bill 2003
s. 72
law in relation to the performance by that body
of a function under or in connection with that
written law;
(c) for the purposes of legal proceedings arising
5 out of the administration of this Act or another
written law;
(d) for the purpose of investigation of any
suspected offence or the conduct of
proceedings against any person for any offence;
10 or
(e) by the Commissioner for the purpose of making
the public aware of --
(i) investigations or inquiries being
conducted into the conduct of a
15 licensee, a former licensee or a
purported licensee, and the results of
those inquiries; and
(ii) disciplinary action being contemplated
or undertaken in relation to a licensee, a
20 former licensee or a purported licensee,
and the outcome of that action.
(4) In subsection (1) --
"former Board" means the Finance Brokers
Supervisory Board constituted under section 6 of
25 this Act immediately before the commencement
of the Finance Brokers Control Amendment
Act 2003.
".
72. Section 92 amended
30 Section 92(2) is amended by deleting "$200" and inserting
instead --
" $2 000 ".
page 48
Finance Brokers Control Amendment Bill 2003
s. 73
73. Sections 92A and 92B inserted
After section 92 the following sections are inserted --
"
92A. Infringement notices
5 (1) In subsection (2), (3), (6), or (7) --
"authorised person" means a person appointed under
subsection (13) by the chief executive officer to be
an authorised person for the purposes of the
subsection in which the term is used.
10 (2) An authorised person who has reason to believe that a
person has committed a prescribed offence under this
Act may, within 21 days after the alleged offence is
believed to have been committed, give an infringement
notice to the alleged offender.
15 (3) An infringement notice is to be in the prescribed form
and is to --
(a) contain a description of the alleged offence;
(b) advise that if the alleged offender does not wish
to have a complaint of the alleged offence
20 heard and determined by a court, the amount of
money specified in the notice as being the
modified penalty for the offence may be paid to
an authorised person within a period of 28 days
after the giving of the notice; and
25 (c) inform the alleged offender as to who are
authorised persons for the purposes of receiving
payment of modified penalties.
(4) In an infringement notice the amount specified as being
the modified penalty for the offence referred to in the
30 notice is to be the amount that was the prescribed
modified penalty at the time the alleged offence is
believed to have been committed.
page 49
Finance Brokers Control Amendment Bill 2003
s. 73
(5) The modified penalty that may be prescribed for an
offence is not to exceed 20% of the maximum penalty
that could be imposed for that offence by a court.
(6) An authorised person may, in a particular case, extend
5 the period of 28 days within which the modified
penalty may be paid and the extension may be allowed
whether or not the period of 28 days has elapsed.
(7) An authorised person may, whether or not the modified
penalty has been paid, withdraw an infringement notice
10 by sending to the alleged offender a notice in the
prescribed form stating that the infringement notice has
been withdrawn.
(8) Where an infringement notice is withdrawn after the
modified penalty has been paid, the amount is to be
15 refunded.
(9) Subsection (10) applies if the modified penalty
specified in an infringement notice has been paid
within 28 days or such further time as is allowed and
the notice has not been withdrawn.
20 (10) If this subsection applies it prevents the bringing of
proceedings and the imposition of penalties to the same
extent that they would be prevented if the alleged
offender had been convicted by a court of, and
punished for, the alleged offence.
25 (11) Payment of a modified penalty is not to be regarded as
an admission for the purposes of any proceedings,
whether civil or criminal.
(12) Unless subsection (8) requires it to be refunded, an
amount paid as a modified penalty is to be dealt with as
30 if it were a penalty imposed by a court as a penalty for
an offence.
(13) The chief executive officer may, in writing, appoint
persons or classes of persons to be authorised persons
page 50
Finance Brokers Control Amendment Bill 2003
s. 73
for the purposes of subsection (2), (3), (6), or (7) or for
the purposes of 2 or more of those subsections, but a
person who is authorised to give infringement notices
under subsection (2) is not eligible to be an authorised
5 person for the purposes of any of the other subsections.
(14) The chief executive officer is to issue to each person
who is authorised to give infringement notices under
this section a certificate of that person's authorisation,
and the authorised person is to produce the certificate
10 whenever required to do so by a person to whom an
infringement notice has been or is about to be given.
92B. Public warnings
(1) The Commissioner may publish in any manner
statements and other information identifying, and
15 giving warnings about, any or all of the following --
(a) services performed in an unsatisfactory manner
and licensees who performed those services in
that unsatisfactory manner;
(b) unfair business practices adopted or performed
20 and licensees who engage in those practices;
(c) matters that may adversely affect the interests
of persons in connection with the acquisition by
them of services from licensees or goods using
the services of licensees.
25 (2) The Commissioner cannot publish a statement or
warning under this section unless the Commissioner is
of the opinion that it is in the public interest to do so.
(3) No liability is incurred by a person for publishing --
(a) a notice under this section; or
30 (b) a fair report or summary of a notice.
".
page 51
Finance Brokers Control Amendment Bill 2003
s. 74
74. Section 93 amended
(1) Section 93(1) is amended by deleting "Registrar or an
inspector" and inserting instead --
" Commissioner ".
5 (2) Section 93(3) is amended by deleting "or the holder of a
business certificate".
75. Section 94 amended
Section 94 is amended by deleting "Board" and inserting
instead --
10 " Commissioner ".
76. Section 95 amended
Section 95(2) is amended as follows:
(a) by deleting paragraph (a) and inserting the following
paragraphs instead --
15 "
(a) prescribe the form that a licence is to take, and
the details to be included on that licence;
(b) prescribe particular classes of licence that may
be granted or renewed under this Act;
20 (ba) prescribe particular qualifications or
requirements that may be imposed as criteria
for the grant or renewal of a particular class of
licence;
";
25 (b) after paragraph (e) by inserting the following
paragraph --
"
(f) prescribe --
(i) offences for which an infringement
30 notice may be given under section 92A;
and
page 52
Finance Brokers Control Amendment Bill 2003
s. 77
(ii) for each prescribed offence --
(I) a modified penalty; or
(II) a different modified penalty
according to the circumstances
5 of the offence,
but not in any case exceeding the amount
allowed by section 92A(5);
";
(c) in paragraph (g) by deleting "$100" and inserting
10 instead --
" $1 000 ".
77. Part VI repealed
Part VI is repealed.
78. Savings and transitional
15 Schedule 1 has effect to make savings and transitional
provisions.
79. Consequential amendment
The Act specified in Schedule 2 is amended as set out in that
Schedule.
page 53
Finance Brokers Control Amendment Bill 2003
Schedule 1 Transitional and savings
Schedule 1 -- Transitional and savings
[s. 78]
1. Meanings of terms used in this Schedule
In this Schedule, unless the contrary intention appears --
5 "Board" means the Finance Brokers Supervisory Board as
constituted under the Finance Brokers Act;
"commencement day" means the day fixed under section 2 as the
day on which this Act comes into operation;
"Finance Brokers Act" means the Finance Brokers Control
10 Act 1975 as in force immediately before the commencement day.
2. Interpretation Act to apply
This Schedule does not limit the operation of the Interpretation
Act 1984.
3. Board dissolved
15 (1) Subject to clause 6, the Board is dissolved.
(2) Subject to clause 6, the members of the Board cease to hold office.
4. Winding up of affairs of the Board
(1) On and after the commencement day --
(a) the Commissioner is to take control of all registers,
20 documents, books and other records (however compiled,
recorded or stored) relating to the Board and the exercise of
its functions, and of any tape, disc or other device or medium
relating to such records;
(b) all rights, liabilities and obligations of the Board that existed
25 immediately before the commencement day devolve on the
Commissioner acting on behalf of, and in the name of, the
State;
(c) all contracts, agreements and undertakings made by and with
the Board and having effect immediately before the
30 commencement day have effect as contracts, agreements and
undertakings made with the Commissioner acting on behalf
page 54
Finance Brokers Control Amendment Bill 2003
Transitional and savings Schedule 1
of, and in the name of, the State and may be enforced by or
against the State accordingly;
(d) any legal or other proceedings or any remedies that might, but
for the operation of the Finance Brokers Control Amendment
5 Act 2003, have been commenced or continued by or against
or have been available to the Board may be commenced or
continued by or against or are available to the Commissioner
acting on behalf of, and in the name of, the State, as the case
requires; and
10 (e) any fees, charges or other moneys payable to the Board under
the Finance Brokers Act and outstanding at the
commencement day become payable to the chief executive
officer at the time, and in the manner, in which those moneys
would have been payable to the Board under that Act.
15 (2) A reference to the Board in a document in existence immediately
before the commencement day is to be construed, on and after the
commencement day, as a reference to the Commissioner, unless in the
context it would be inappropriate to do so.
5. Registrar's certificate
20 A certificate issued before the commencement day under the hand of
the Registrar that any person is or is not, or was or was not, licensed
or the holder of a business certificate on the date of or a date referred
to, in the certificate, or as to any other matter contained in a register,
shall, in the absence of proof to the contrary, be taken as proof of the
25 matter so certified.
6. Final report
(1) As soon as practicable after the commencement day, the Chairman of
the Board immediately before the commencement day shall prepare a
report on the Board's activities under the Finance Brokers Act for the
30 period beginning on the day after the period for which the last report
was submitted under section 86 of the Finance Brokers Act and
ending on the commencement day and submitting that report to the
Minister.
(2) Section 86(2) of the Finance Brokers Act applies to a report prepared
35 and submitted under subclause (1) as if the section had not been
repealed.
page 55
Finance Brokers Control Amendment Bill 2003
Schedule 1 Transitional and savings
7. Bond in respect of business certificate
On and after the commencement day, a bond or guarantee entered into
under section 35 of the Finance Brokers Act continues to have effect
as if the bond or guarantee was entered into in relation to the
5 licensee's licence held (by virtue of clause 8) under the Finance
Brokers Control Act 1975 after the commencement day.
8. Persons licensed or to whom an exception applied under the
Finance Brokers Act before the commencement day
(1) A person who immediately before the commencement day was
10 licensed under the Finance Brokers Act and held a business certificate
under that Act is, on that day, to be taken to be licensed under the
Finance Brokers Control Act 1975 for the period that the business
certificate would have been valid under the Finance Brokers Act, and
for the licence to be subject to any conditions imposed on that
15 business certificate.
(2) A person who immediately before the commencement day was
excepted from the meaning of "finance broker" under section 5(2) of
the Finance Brokers Act is, on that day, to be taken to be exempted in
a similar manner for a period of up to 12 months beginning on the
20 commencement day.
(3) A person who is taken to be exempted under subclause (2) is no
longer to be taken to be exempted if the person becomes licensed
under the Finance Brokers Control Act 1975.
(4) The Commissioner is to enter the name of a person to whom
25 subclause (1) or (2) applies in the register kept under section 84 of the
Finance Brokers Control Act 1975.
9. Persons licensed, but without a business certificate, under the
Finance Brokers Act before the commencement day
(1) A licence issued under the Finance Brokers Act within 3 years of the
30 commencement day and that does not have a business certificate
associated with it is, on that day, to be taken to be a licence of the
appropriate category under the Finance Brokers Control Act 1975 for
a period equal to 3 years from the day of its issue.
page 56
Finance Brokers Control Amendment Bill 2003
Transitional and savings Schedule 1
(2) A licence issued under the Finance Brokers Act that is valid
immediately before the commencement day as a result of payment of
a holding fee under section 30(4)(b) of the Finance Brokers Act is, on
that day, to be taken to be a licence of the appropriate category under
5 the Finance Brokers Control Act 1975 for the period that the holding
fee would have been effective under the Finance Brokers Act.
(3) A licence under subclause (1) or (2) is subject to the condition that the
licensee is not to carry on business in his or her own right.
10. Licence condition revoked on commencement day
10 If a licence issued under the Finance Brokers Act has a condition to
the effect that a licence does not confer the right for a licensee to carry
on business as a finance broker unless he or she also holds a business
certificate in respect of that licence, that condition is revoked on the
commencement day.
15 11. Applications for certificates and licenses
A person who has, before the commencement day, made an
application for --
(a) a licence under section 24 of the Finance Brokers Act; or
(b) a business certificate or the renewal of a business certificate
20 under section 31 of the Finance Brokers Act,
but in respect of which a decision has not been made by the Board
before the commencement day, is to be taken to have made an
application for a licence under the Finance Brokers Control Act 1975.
12. Further transitional provision may be made
25 (1) The regulations may make provision for any transitional matter for
which there is no sufficient provision in this Schedule.
(2) If in the opinion of the Minister an anomaly arises in the carrying out
of any provision of this Schedule, the regulations may --
(a) modify that provision to remove the anomaly; and
30 (b) make such provision as is necessary or expedient to carry out
the intention of that provision.
page 57
Finance Brokers Control Amendment Bill 2003
Schedule 1 Transitional and savings
(3) Regulations may be made for the purposes of this clause to have
effect from the commencement of this Act.
(4) To the extent that a provision of any such regulation has effect on a
day that is earlier than the day of its publication in the Gazette, the
5 provision does not operate so as --
(a) to affect, in a manner prejudicial to any person (other than the
State), the rights of that person existing before the day of
publication; or
(b) to impose liabilities on any person (other than the State) in
10 respect of anything done or omitted to be done before the day
of publication.
(5) In subclause (1) --
"transitional matter" means a matter or thing necessary or
convenient to provide for the change from the Finance Brokers
15 Act, to the Finance Brokers Control Act 1975 as in force after
the commencement day.
page 58
Finance Brokers Control Amendment Bill 2003
Consequential amendment Schedule 2
Schedule 2 -- Consequential amendment
[s. 79]
1. Constitution Acts Amendment Act 1899 amended
(1) The amendment in this section is to the Constitution Acts Amendment
5 Act 1899*.
[* Reprint 12 as at 3 October 2003.]
(2) Schedule V Part 3 is amended by deleting the item "The Finance
Brokers Supervisory Board constituted under the Finance Brokers
Control Act 1975.".
10
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