Ms TIERNEY (Minister for Training and Skills) — I move:
That the bill be now read a second time.
Incorporated speech as follows:
This bill illustrates the government’s ongoing commitment to improving and updating the consumer protection framework in Victoria. It will amend several acts within the consumer affairs portfolio to improve their operation, clarify their requirements and update outdated references.
Part 2 of the bill will amend the Associations Incorporation Reform Act 2012 to make it simpler to reduce red tape and duplicated reporting requirements for a range of not-for-profit incorporated associations. It will do this by inserting into that act a discretion for the responsible minister, by order published in the gazette, to exempt an incorporated association or a class of incorporated associations, from one or more of the annual reporting requirements under the act.
An exemption will be able to be made subject to any conditions specified by the minister.
An example of where such a discretion could be exercised is where an incorporated association is also registered with, and required to report to, another regulator. The minister could consider exempting incorporated associations that are registered with the other regulator from the reporting requirements under the Associations Incorporation Reform Act on condition that they comply with their annual reporting requirements to the other regulator. Such an exemption could be supported by an agreement between the registrar of incorporated associations and the other regulator to share annually reported information, including financial statements submitted by relevant associations.
To this end, the bill will also amend the act to authorise the registrar to enter into appropriate information-sharing arrangements with other regulators.
The bill will also make a number of amendments to the entry and inspection powers under the Associations Incorporation Reform Act to align them with the equivalent provisions in the Australian Consumer Law and Fair Trading Act 2012 on which they are modelled.
The entry and inspection powers provisions in the Australian Consumer Law and Fair Trading Act were amended in June 2016 by the Consumer Acts and Other Acts Amendment Act 2016 to enhance a nationally uniform approach to consumer law enforcement and to address developments in contemporary business practices.
For example, existing search warrant provisions are predicated upon the presence of physical evidence, including documents and business records, at a location specified in the search warrant. However, in large businesses, computer users are often connected to a network via a computer that simply functions as a terminal with data actually stored on servers located elsewhere in the network. If an inspector simply searches a computer at a specified physical location, little data may be found because all important records are stored elsewhere on the network.
In addition, in many instances contemporary business practice is shifting to electronic document storage on the internet rather than on a corporate network, for example, cloud storage of electronic business records.
To address these developments, the search warrant provisions of the act will be amended, consistent with the amendments made to the Australian Consumer Law and Fair Trading Act, to enable a warrant to be issued that will authorise an inspector to access electronic material via any computer or electronic device located on premises and to require any necessary assistance to do so, such as logon details, passwords or relevant software to view encrypted data.
To address the new online MyCAV transaction system, the bill will also amend the Associations Incorporation Reform Act to enable provision or inspection of a physical document (where that is available) or provision or inspection of a physical record of the relevant transaction showing the data entered through that transaction.
The bill makes a minor amendment to the Conveyancers Act 2006 to insert a general offence provision, consistent with other licensing acts in the consumer affairs portfolio, for failing to comply with a requirement of an inspector or the director of Consumer Affairs Victoria under the enforcement provisions in part 8 of that act.
It will also make a minor amendment to the Second-Hand Dealers and Pawnbrokers Act 1989 to provide a discretion to the registrar of the Business Licensing Authority to reduce or waive fees for applications under that act where it may be appropriate to do so.
The bill will amend the Motor Car Traders Act 1986 to enable a licensed motor car trader to sell a motor vehicle subject to a security interest registered on the national Personal Property Securities Register in favour of the sheriff of Victoria where the trader has been engaged by the sheriff to sell that vehicle, notwithstanding the registration of any other security interest subsequent to that of the sheriff.
The sheriff, upon seizing a motor car pursuant to a court order in satisfaction of a judgement debt, registers its right to sell the car on the Personal Property Securities Register under the commonwealth Personal Property Securities Act 2009. The sheriff relies on this registered interest to sell the car and commonly engages a licensed motor car trader to sell the vehicle on its behalf. Where the vehicle is sold, the sheriff is entitled to satisfy the debt owing with the proceeds of sale, subject to the sheriff’s position as a priority creditor.
However, under section 48(1) of the Motor Car Traders Act, a licensed motor car trader is unable to sell a motor car without first procuring the cancellation of any security registration relating to the motor car. This essentially serves to prevent them from selling the vehicle unless they first cancel all other security registrations relating to the vehicle, including any entered into the register after that of the sheriff.
There have been instances where a third party, often a colleague or relative of the debtor, has been able to prevent the sheriff’s sale of a vehicle by registering an interest over the seized vehicle subsequent to its seizure. The third party’s interest, created by a transaction such as a sham loan from the third party to the debtor, is often of similar or of greater value than the seized vehicle. Such a loan would, in effect, have been made against a false security. The third party can then refuse to remove its interest from the register, and effectively block the sale.
To address this issue, the bill will amend section 48(1) of the Motor Car Traders Act to exempt a licensed motor car trader from the requirement to procure cancellation of any security interests registered in respect of the seized motor car before sale, where a sale is being conducted on behalf of, or pursuant to, a registered interest of the sheriff to sell.
It is important to note that all the existing rights, obligations and requirements under the Personal Property Securities Act will continue to apply in respect of any sale by a licensed motor car trader of a vehicle seized by the sheriff and the proceeds from the sale of the seized vehicle will continue to be applied in order of priority of registered interests. That is, proceeds of the sale will continue to be required to be applied to satisfy any valid security interest registered prior to the registration of the sheriff’s interest.
The bill will also amend the cooling-off provisions in the Sale of Land Act 1962. The cooling-off provisions are an important consumer protection in the Sale of Land Act which allow a purchaser under a contract for the sale of land to give notice to the vendor that they do not wish to go ahead with the contract. A cooling-off notice must be given within three clear business days after the purchaser has signed the contract.
Section 31(3) of the Sale of Land Act currently provides that the cooling-off notice ‘shall be given to the vendor or his agent or left at the address for service of the vendor specified in the contract …’.
It has been standing industry practice that where a vendor has engaged an estate agent to act on their behalf in the sale of land, that estate agent can accept service on behalf of the vendor of any cooling-off notice given by a purchaser. Service of a cooling-off notice on a vendor’s estate agent has commonly been assumed by each party to have been a valid exercise of the cooling-off rights under the act.
However, in a decision of the Supreme Court in the matter of Tan v. Russell in early 2016, the court held that the term ‘agent’ in section 31(3) meant ‘agent at law’. The court found that the authority commonly granted by a vendor to an estate agent to sell a property does not make the estate agent an agent for the vendor for all purposes, including for the purpose of accepting service of a cooling-off notice on behalf of the vendor.
The bill will amend section 31 of the Sale of Land Act to expressly include reference to the vendor’s estate agent. This amendment will remove any uncertainty about service on the vendor’s estate agent and, as I have noted earlier, accords with longstanding industry practice.
To further address any uncertainty in instances where a purchaser has, in good faith, served a cooling-off notice on a vendor’s estate agent, the bill will also amend the Sale of Land Act to retrospectively validate any such service. Importantly, however, in making such a retrospective validation, the bill clearly provides for an exception in the case only of the parties in the Supreme Court matter of Tan v. Russell and in the case of any other parties who may have already commenced court proceedings based on the decision in that matter.
Lastly, the bill will make minor amendments to the Veterans Act 2005 to enable patriotic funds to be used to support a wider range of ex-service personnel and their dependants than is currently the case, and to enable the director of Consumer Affairs Victoria to approve the amendment or adoption of a new trust deed for a patriotic fund where the objects and purposes of the new deed or amended deed are generally consistent with the purposes of a patriotic fund as specified in section 23 of the act.
I commend the bill to the house.
Debate adjourned for Mr O’DONOHUE (Eastern Victoria) on motion of Mr Ondarchie.
Debate adjourned until Thursday, 2 March.