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This is a Bill, not an Act. For current law, see the Acts databases.


MOTOR VEHICLE DEALERS AMENDMENT BILL

                         Western Australia


      Motor Vehicle Dealers Amendment Bill
                  (No. 2) 2002

                            CONTENTS

1.      Short title                                               1
2.      Commencement                                              2
3.      The Act amended                                           2
4.      Long title replaced                                       2
5.      Section 5 amended                                         2
6.      Section 6 amended                                         3
7.      Part II heading amended                                   3
8.      Part II Division 1 and Subdivision 1 headings inserted    3
9.      Section 7 amended                                         3
10.     Section 8 replaced                                        4
11.     Section 10 amended                                        5
12.     Part II Division 1 Subdivisions 2 and 3 and heading
        for Subdivision 4 inserted                                5
13.     Section 14A amended                                      11
14.     Part II Division 2 heading inserted                      11
15.     Section 17A repealed                                     11
16.     Part II Division 3 heading inserted                      12
17.     Part II Division 4 heading inserted                      12
18.     Part II Division 5 heading inserted                      12
19.     Part III Division 5 Subdivision 1 heading inserted       12
20.     Part III Division 5 Subdivision 2 inserted               12
21.     Section 50 replaced                                      15
22.     Various provisions amended to change "Chairman" to
        "Chairperson"                                            16
23.     Consequential amendment to Constitution Acts
        Amendment Act 1899                                       16




                             129--1B                              page i
Motor Vehicle Dealers Amendment Bill (No. 2) 2002



Contents



   24.     Transitional provision: membership of Board         17
   25.     Transitional provisions: change of title of Board   17




page ii
                           Western Australia


                      LEGISLATIVE ASSEMBLY



      Motor Vehicle Dealers Amendment Bill
                  (No. 2) 2002


                               A Bill for


An Act to amend the Motor Vehicle Dealers Act 1973 and to
consequentially amend the Constitution Acts Amendment Act 1899.



The Parliament of Western Australia enacts as follows:


1.      Short title
        This Act may be cited as the Motor Vehicle Dealers
        Amendment Act (No. 2) 2002.




                                                             page 1
     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



     s. 2




     2.         Commencement
          (1)   This Act comes into operation on a day fixed by proclamation.
          (2)   Different days may be fixed under subsection (1) for different
                provisions.

5    3.         The Act amended
                The amendments in this Act are to the Motor Vehicle Dealers
                Act 1973* unless otherwise indicated.
                [* Reprinted as at 14 November 1996.
                   For subsequent amendments see 2001 Index to Legislation of
10                 Western Australia, Table 1, p. 249, and Act No. 4 of 2002.]

     4.         Long title replaced
                The long title is deleted and the following long title is inserted
                instead --
            "
15                  An Act --
                    •  to constitute a body with licensing, registration and
                       other functions in respect of persons involved in
                       motor vehicle dealing and motor vehicle repair
                       work;
20                  •  to regulate dealing in motor vehicles; and
                    •  for related purposes.
                                                                                     ".

     5.         Section 5 amended
                Section 5(1) is amended, in the definition of "the Board", by
25              deleting "Dealers Licensing" and inserting instead --
                "     Industry ".




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                                   Motor Vehicle Dealers Amendment Bill (No. 2) 2002



                                                                                    s. 6



     6.             Section 6 amended
                    After section 6(2) the following subsection is inserted --
                "
                    (3)    For the purposes of carrying out investigations and
5                          inquiries for the purposes of this Act, an authorised
                           officer who is approved by the Commissioner may
                           exercise the powers in section 19, 20, 21 or 22 of the
                           Consumer Affairs Act 1971 as if the officer were the
                           Commissioner and those sections apply accordingly to
10                         and in relation to persons and matters affected by the
                           exercise of the powers.
                                                                                     ".

     7.             Part II heading amended
                    The heading to Part II is amended by deleting "Dealers
15                  Licensing" and inserting instead --
                    "     Industry ".
     8.             Part II Division 1 and Subdivision 1 headings inserted
                    Before section 7 the following headings are inserted --
            "

20                         Division 1 -- Provisions relating to Board

                              Subdivision 1 -- Constitution of Board
                                                                                     ".

     9.             Section 7 amended
          (1)       Section 7(1) is amended by deleting "Dealers Licensing" and
25                  inserting instead --
                    "     Industry ".




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     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



     s. 10



           (2)       Section 7(2) and (3) are repealed and the following subsection is
                     inserted instead --
                 "
                     (2)   The Board is a body corporate with perpetual
5                          succession.
                                                                                       ".
     10.             Section 8 replaced
                     Section 8 is repealed and the following section is inserted
                     instead --
10   "
             8.            Membership of the Board
                     (1)   The Board is to consist of 9 members appointed by the
                           Governor on the nomination of the Minister.
                     (2)   Of the members --
15                          (a) one is to be appointed as Chairperson;
                            (b) 2 are to be persons each of whom in the opinion
                                  of the Minister has knowledge of and experience
                                  in the motor vehicle industry in the motor vehicle
                                  dealing sector regulated by this Act;
20                          (c) 2 are to be persons each of whom in the opinion
                                  of the Minister has knowledge of and
                                  experience in the motor vehicle industry in the
                                  motor vehicle repairing sector regulated by the
                                  Motor Vehicle Repairers Act 2002;
25                          (d) one is to be a person nominated by the Minister
                                  after the Minister has complied with
                                  subsection (3); and
                            (e) 3 are to be persons each of whom in the opinion
                                  of the Minister represents the interests of
30                                either --
                                     (i) purchasers of motor vehicles; or
                                    (ii) customers of persons licensed under the
                                          Motor Vehicle Repairers Act 2002.

     page 4
                           Motor Vehicle Dealers Amendment Bill (No. 2) 2002



                                                                          s. 11



             (3)   For the purposes of subsection (2)(d) --
                     (a) the Minister is to request the Royal Automobile
                           Club of W.A. (Incorporated) to submit within a
                           specified time a panel of the names of 3 persons
5                          to be considered for nomination by the Minister;
                    (b) the Minister is to have due regard to the panel
                           submitted in accordance with a request under
                           paragraph (a) but may decline to nominate any
                           person on the panel;
10                  (c) if the Minister so declines he or she may --
                              (i) make a further request under
                                   paragraph (a); or
                             (ii) nominate for appointment any person
                                   that he or she thinks fit;
15                  (d) if the body referred to in paragraph (a) fails to
                           comply with a request under that paragraph, the
                           Minister may nominate for appointment any
                           person that he or she thinks fit.
                                                                              ".
20   11.     Section 10 amended
             Section 10(3) is amended by deleting "3" and inserting instead --
             " 5 ".
     12.     Part II Division 1 Subdivisions 2 and 3 and heading for
             Subdivision 4 inserted
25           After section 12 the following Subdivisions and Subdivision
             heading are inserted --
       "
            Subdivision 2 -- Functions of Board and related matters
           12A.    Functions of Board
30           (1)   The Board has the functions, powers and duties
                   conferred or imposed on it by --
                     (a) this Act; and
                     (b) the Motor Vehicle Repairers Act 2002.

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     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



     s. 12



               (2)   It is also a function of the Board to approve --
                        (a) motor vehicle industry training courses; and
                       (b) the persons who provide those courses.
               (3)   The training courses referred to in subsection (2) are
5                    those for --
                       (a) dealers, yard managers and salespersons;
                       (b) persons to whom section 9 of the Motor Vehicle
                             Repairers Act 2002 applies; and
                       (c) persons who are required to hold a repairer's
10                           certificate as provided for in section 40 of that
                             Act.

             12B.    Minister may give directions
               (1)   The Minister may give written directions to the Board
                     with respect to the performance and exercise of its
15                   functions, powers and duties.
               (2)   A direction under subsection (1) --
                      (a) may be of a general nature or relate to a
                            particular matter; but
                      (b) cannot relate to --
20                             (i) the Board's responsibilities in respect of
                                    the licensing, registration or
                                    certification of a particular person; or
                              (ii) a particular application made to, or
                                    proceeding before, the Board.
25             (3)   The Board shall give effect to any direction given to it
                     under subsection (1).

             12C.    Inclusion of direction in annual report
                     The text of a direction given under section 12B shall be
                     included in the annual report referred to in section 51.



     page 6
                     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



                                                                     s. 12



     12D.    Minister to have access to information
       (1)   The Minister is entitled --
              (a)   to have information in the possession of the
                    Board; and
5             (b)   where the information is in or on a document,
                    to have, and make and retain copies of, that
                    document.
       (2)   For the purposes of subsection (1) the Minister may --
              (a) request the Board to furnish information to him;
10            (b) request the Board to give him access to
                     information;
              (c) for the purposes of paragraph (b), make use of
                     persons whose services the Board is using
                     under section 13(4) to obtain the information
15                   and furnish it to the Minister.
       (3)   The Board is to comply with a request under
             subsection (2) and make available to the Minister for
             the purposes of paragraph (c) of that subsection --
               (a) the services of persons referred to in that
20                   paragraph; and
               (b) the facilities of the Board.
       (4)   In this section --
             "document" includes any tape, disc or other device or
                  medium on which information is recorded or
25                stored mechanically, photographically,
                  electronically or otherwise;
             "information" means information specified, or of a
                  description specified, by the Minister that relates
                  to the Board.




                                                                  page 7
     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



     s. 12



             12E.    Delegation
               (1)   The Board may delegate to an authorised officer any
                     power or duty of the Board under another provision of
                     this Act.
5              (2)   The Board may delegate to an authorised officer within
                     the meaning of the Motor Vehicle Repairers Act 2002
                     any power or duty of the Board under that Act, other
                     than the power under section 103(1) or 104(1) of that
                     Act.
10             (3)   The delegation must be in writing executed by the
                     Board.
               (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
15                   delegation, unless the contrary is shown.
               (5)   Nothing in this section limits the ability of the Board to
                     perform a function through an officer or agent.

             12F.    Execution of documents by the Board
               (1)   The Board is to have a common seal.
20             (2)   A document is duly executed by the Board if --
                      (a) the common seal of the Board is affixed to it in
                           accordance with subsections (3) and (4); or
                      (b) it is signed on behalf of the Board by a person
                           or persons authorised to do so under
25                         subsection (5).
               (3)   The common seal of the Board is not to be affixed to
                     any document except as authorised by the Board.
               (4)   The common seal of the Board is to be affixed to the
                     document in the presence of --
30                     (a) the Chairperson, or deputy chairperson; and


     page 8
                     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



                                                                       s. 12



              (b)   the secretary,
             and each of them is to sign the document to attest that
             the common seal was so affixed.
       (5)   The Board may, by writing under its seal, authorise
5            documents to be signed on behalf of the Board by --
               (a) any member of the Board;
              (b) any authorised officer; or
               (c) more than one of such persons acting in
                   conjunction,
10           and an authorisation may be either general or subject to
             any condition or restriction.
       (6)   A document purporting to be executed in accordance
             with this section is to be presumed to be duly executed
             until the contrary is shown.
15     (7)   When a document is produced bearing a seal
             purporting to be the common seal of the Board, it is to
             be presumed that the seal is the common seal of the
             Board until the contrary is shown.

             Subdivision 3 -- Disclosure of interests etc.

20   12G.    Member to disclose interest
       (1)   A member who has a material personal interest in a
             matter being considered or about to be considered by
             the Board must, as soon as possible after the relevant
             facts have come to the member's knowledge, disclose
25           the nature of the interest at a meeting of the Board.
             Penalty: $10 000.
       (2)   A disclosure under subsection (1) is to be recorded in
             the minutes of the meeting.




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     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



     s. 12



             12H.   Voting by interested members
                    A member who has a material personal interest in a
                    matter that is being considered by the Board --
                     (a) must not vote whether at a meeting or
5                           otherwise --
                               (i) on the matter; or
                              (ii) on a proposed resolution under
                                    section 12I in respect of the matter,
                                    whether relating to that member or a
10                                  different member;
                            and
                     (b) must not be present while --
                               (i) the matter; or
                              (ii) a proposed resolution of the kind
15                                  referred to in paragraph (a)(ii),
                            is being considered at a meeting.

             12I.   Section 12H may be declared inapplicable
                    Section 12H does not apply if the Board has at any
                    time passed a resolution that --
20                    (a) specifies the member, the interest and the
                           matter; and
                      (b) states that the members voting for the
                           resolution are satisfied that the interest should
                           not disqualify the member from considering or
25                         voting on the matter.

             12J.   Quorum where section 12H applies
                    Despite section 10(3), if a member of the Board is
                    disqualified under section 12H in relation to a matter, a
                    quorum is present during the consideration of the
30                  matter if at least 4 members are present who are


     page 10
                                   Motor Vehicle Dealers Amendment Bill (No. 2) 2002



                                                                                  s. 13



                           entitled to vote on any motion that may be moved at
                           the meeting in relation to the matter.

             12K.          Minister may declare sections 12H and 12J
                           inapplicable
5                (1)       The Minister may by writing declare that section 12H
                           or 12J or both of them do not apply in relation to a
                           specified matter either generally or in voting on
                           particular resolutions.
                 (2)       The Minister must within 14 days after a declaration
10                         under subsection (1) is made cause a copy of the
                           declaration to be laid before each House of Parliament.

                                 Subdivision 4 -- Miscellaneous
                                                                                     ".

     13.         Section 14A amended
15         (1)   Section 14A(1) is amended by inserting after "this Act" --
                 " or the Motor Vehicle Repairers Act 2002          ".
           (2)   Section 14A(2) is amended as follows:
                     (a)    by inserting after "under this Act" --
                            " or the Motor Vehicle Repairers Act 2002 ";
20                   (b)    by deleting "not this Act" and inserting instead --
                            " not those Acts ".

     14.         Part II Division 2 heading inserted
                 Before section 15 the following heading is inserted --
                 "     Division 2 -- Licensing and registration ".
25   15.         Section 17A repealed
                 Section 17A is repealed.



                                                                              page 11
     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



     s. 16



     16.           Part II Division 3 heading inserted
                   After section 24 the following heading is inserted --
        "
                       Division 3 -- Record-keeping and notification
5                                     of authorities
                                                                              ".
     17.           Part II Division 4 heading inserted
                   After section 26 the following heading is inserted --
        "
10                 Division 4 -- Powers to inspect vehicles and order
                                   remedial work
                                                                              ".
     18.           Part II Division 5 heading inserted
                   After section 29 the following heading is inserted --
15                 "   Division 5 -- Offences: unlicensed dealing etc. ".
     19.           Part III Division 5 Subdivision 1 heading inserted
                   Before section 36 the following heading is inserted --
                   "   Subdivision 1 -- Resolution of disputes     ".

     20.           Part III Division 5 Subdivision 2 inserted
20                 After section 38 the following Subdivision is inserted --
        "
                          Subdivision 2 -- Conciliation of disputes

             39.         Definition
                         In this Subdivision --
25                       "dealer" includes a former dealer.




     page 12
                     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



                                                                      s. 20



     39A.    When section 39B applies
       (1)   Section 39B applies if --
               (a)   a dispute has arisen between a purchaser and a
                     dealer as to any matter described in
5                    section 36(a), (b), (c) or (d); and
              (b)    the dispute --
                        (i) has not been decided by the
                             Commissioner acting under section 37,
                             or by a court or tribunal; and
10                     (ii) is not the subject of any proceedings.
       (2)   A dispute is the subject of proceedings as mentioned in
             subsection (1)(b)(ii) if --
               (a) the Commissioner has advised the parties under
                     section 36 that he proposes to determine the
15                   dispute; or
               (b) proceedings in respect of the issues in dispute
                     are pending before a court or tribunal.
       (3)   Section 39B does not apply to a dispute relating to --
              (a) a dealer's obligations in respect of a
20                  second-hand vehicle that was sold; or
              (b) any other matter that arose,
             before the commencement of section 20 of the Motor
             Vehicle Dealers Amendment Act (No. 2) 2002.

     39B.    Conciliation by Board at request of purchaser
25     (1)   The purchaser of the vehicle concerned may in writing
             request the Board to act as a conciliator in a dispute to
             which this section applies, and the Board may at its
             discretion comply with the request.
       (2)   A request under subsection (1) may be withdrawn at
30           any time and the Board must then stop dealing with the
             matter.

                                                                  page 13
     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



     s. 20



               (3)   The Board may appoint an authorised officer to assist it
                     in the conciliation and may delegate any power in
                     relation to the conciliation to such an officer.
               (4)   Anything done by an authorised officer for the
5                    purposes of a conciliation is to be taken to be done by
                     the Board.
             39C.    Conciliation function
               (1)   The function of the Board as conciliator is to encourage
                     the settlement of the dispute by --
10                     (a) communicating with the purchaser and the
                              dealer;
                       (b) arranging discussions between them and
                              assisting in those discussions; and
                       (c) taking any other step that it considers
15                            appropriate.
               (2)   It is not a function of the Board to conduct an
                     arbitration of a dispute.
               (3)   The Board must not perform the function under
                     subsection (1) if, at any time after a request is made
20                   under section 39B(1), the dispute becomes subject to
                     proceedings within the meaning in section 39A(2).
             39D.    Examination of vehicle
                     An authorised officer appointed under section 39B(3)
                     may at any reasonable time --
25                    (a) enter premises of the dealer concerned at which
                            the officer reasonably believes the relevant
                            motor vehicle is situated; and
                      (b) inspect the vehicle.




     page 14
                               Motor Vehicle Dealers Amendment Bill (No. 2) 2002



                                                                                s. 21



           39E.        False or misleading information
                       A person must not, in relation to a request under
                       section 39B(1), or any attempt at conciliation by the
                       Board, give information orally or in writing that the
5                      person knows to be --
                         (a) false or misleading in a material particular; or
                         (b) likely to deceive in a material way.
                       Penalty: $5 000.
                                                                                   ".

10   21.         Section 50 replaced
                 Section 50 is repealed and the following section is inserted
                 instead --
       "
           50.         Confidentiality
15               (1)   A person who is or has been a member of the Board
                       shall not, whether directly or indirectly, record,
                       disclose, or make use of any information that has come
                       to his knowledge in his capacity as a member except --
                         (a) in the course of duty;
20                       (b) as required or allowed by this Act or any other
                               law;
                         (c) in connection with --
                                  (i) the investigation of an offence or a
                                       possible offence; or
25                               (ii) the conduct of proceedings for an
                                       offence,
                               by a public officer acting in the course of duty;
                               or
                         (d) in other circumstances prescribed by the
30                             regulations.
                       Penalty: $5 000.

                                                                           page 15
     Motor Vehicle Dealers Amendment Bill (No. 2) 2002



     s. 22



                 (2)     In subsection (1)(c) --
                         "offence" means an offence against the law of this State,
                              the Commonwealth, another State or a Territory;
                         "public officer" means a public officer of this State,
5                             the Commonwealth, another State or a Territory.
                                                                                     ".

     22.         Various provisions amended to change "Chairman" to
                 "Chairperson"
           (1)   Section 5(1) is amended by deleting the definition of
10               "Chairman" and inserting the following definition instead --
                 "     "Chairperson" means the Chairperson of the Board;        ".
           (2)   Section 5(1) is amended, in the definition of "member", by
                 deleting "Chairman" and inserting instead --
                 "     Chairperson    ".
15         (3)   The provisions listed in the Table to this subsection are
                 amended by deleting "Chairman" in each place where it occurs
                 and inserting instead --
                 "     Chairperson    ".
                                              Table
                 s. 9(1)(a) and (b)        s. 10(5) (twice)      s. 16(2)
                 s. 10(1)                  s. 13(3)              s. 17(2)
                 s. 10(2) (3 times)        s. 14(1)(a) and (b)   s. 51(1)

20   23.         Consequential amendment to Constitution Acts Amendment
                 Act 1899
           (1)   The amendments in this section are to the Constitution Acts
                 Amendment Act 1899*.
                 [* Reprinted as at 8 June 2001.
25                  For subsequent amendments see 2001 Index to Legislation of
                    Western Australia, Table 1, p. 72 and Acts Nos. 60 of 1999, 2
                    and 76 of 2000, 24 and 25 of 2001 and 5, 20 and 30 of 2002.]

     page 16
                                 Motor Vehicle Dealers Amendment Bill (No. 2) 2002



                                                                                  s. 24



           (2)   Schedule V Part 3 is amended in the item relating to the Motor
                 Vehicle Dealers Licensing Board by deleting "Dealers
                 Licensing" and inserting instead --
                 "    Industry   ".

5    24.         Transitional provision: membership of Board
                 The persons who were members of the Motor Vehicle Dealers
                 Licensing Board immediately before the commencement of
                 section 10 cease to hold office on that commencement.

     25.         Transitional provisions: change of title of Board
10         (1)   This section relates to the amendment made by section 9(1)
                 which changes the title of the body established by section 7 of
                 the Motor Vehicle Dealers Act 1973 from the "Motor Vehicle
                 Dealers Licensing Board" to the "Motor Vehicle Industry
                 Board".
15         (2)   The change of title of the body does not affect --
                     (a)   its corporate identity;
                     (b)   any right, power, or obligation of the body;
                     (c)   any proceedings in progress; or
                     (d)   anything previously done by, to or in respect of the
20                         body.
           (3)   On and after the commencement of this Act a reference to the
                 "Motor Vehicle Dealers Licensing Board" in any instrument
                 (including any subsidiary legislation) is to be construed, unless
                 the context otherwise requires, as if the reference had been
25               amended to be a reference to the "Motor Vehicle Industry
                 Board".




 


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