Queensland: Motor Dealers and Chattel Auctioneers Act 2014 (Qld)

Motor Dealers and Chattel Auctioneers Act 2014 An Act to provide comprehensively for the regulation of the activities, licensing and conduct of motor dealers and chattel auctioneers and their employees and to protect consumers against particular undesirable practices Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Motor Dealers and Chattel Auctioneers Act 2014. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Act binds all persons (1) This Act binds all persons, including the State, and, so far as the legislative power of Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State, the Commonwealth or any other State liable to be prosecuted for an offence. 4 Relationship with Fair Trading Inspectors Act 2014 (1) The Fair Trading Inspectors Act 2014 (the FTI Act) enacts common provisions for this Act and particular other Acts about fair trading. (2) Unless this Act otherwise provides in relation to the FTI Act, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act. Division 2 Exemptions 5 Financial institutions and trustee companies (1) Part 3 does not apply to a financial institution or trustee company. (2) In this section— trustee company means— (a) a trustee company under the Trustee Companies Act 1968; or (b) the public trustee when the public trustee is— (i) performing the activities that may be performed by a trustee company; or (ii) exercising the powers that may be exercised by a trustee company; or (iii) holding an office that may be held by a trustee company. 6 Particular auctions Part 4 does not apply to— (a) a sale made under a rule, order, or judgment of the Supreme Court or District Court; or (b) a sale made by a person obeying an order of, or a process issued by, a court, judge or justice, or the registrar of the State Penalties Enforcement Registry for the recovery of a fine, penalty or award; or (c) a sale of an animal lawfully seized and sold under the Animal Care and Protection Act 2001 or another law about seizing or impounding animals; or (d) a sale of goods distrained for rent or arrears of rent; or (e) a sale by postal bids of stamps or coins; or (f) a sale conducted for a charity, a religious denomination, or an organisation formed for a community purpose, within the meaning of the Collections Act 1966 (a relevant entity) if— (i) the person conducting the sale does not receive from the relevant entity a reward for the person's services; and (ii) amounts received from the sale are paid directly to an officer or employee of the relevant entity who is authorised by the relevant entity to receive and deal with the amounts; or (g) a sale conducted by or for Magic Millions Sales Pty Limited ACN 078 396 317 as part of the event known as the Gold Coast Horses in Training Sale if the sale is conducted by a person approved by the chief executive before the sale as a suitable person to conduct the sale; or (h) a sale of goods directly connected with a sale by auction of a place of residence or land performed by a property agent appointed under the Property Occupations Act 2014, part 4; or (i) an auction held by an officer under the Forestry Act 1959 for that Act. 7 Administrators etc. (1) This section applies to the following persons (each an appointee)— (a) a person appointed under the Corporations Act as an administrator of a corporation that is or was authorised under a licence or former licence to perform an activity; (b) a person appointed under the Corporations Act as an administrator of a deed of company arrangement for a corporation that is or was authorised under a licence or former licence to perform an activity; (c) a person appointed under the Corporations Act as a liquidator, or controller of property, of a corporation that is or was authorised under a licence or former licence to perform an activity; (d) a person appointed under the Administration Act as a receiver of an entity that is or was authorised under a licence or former licence to perform an activity; (e) a person appointed under the Bankruptcy Act 1966 (Cwlth) as the trustee in bankruptcy, or the Official Receiver, for an individual who is or was authorised under a licence or former licence to perform an activity. (2) The appointee is exempt from the provisions mentioned in subsection (3) while performing the activity in relation to a business that is or was authorised to be carried on under— (a) for a licence that is in force—the licence; or (b) for a former licence—the former licence immediately before it stopped being in force. (3) For subsection (2) the provisions are the following— • section 70 • section 71 • section 72 • section 79 • section 80 • part 3, division 3 • section 119 • section 124 • part 4, division 3 • section 148 • section 149. (4) In this section— former licence means— (a) a licence that was previously in force; or (b) a motor dealer's licence or former auctioneers licence under PAMDA. person appointed as the trustee in bankruptcy, for an individual, includes the Official Trustee in Bankruptcy under Bankruptcy Act 1966 (Cwlth) if the Official Trustee is the trustee in bankruptcy for the individual. Division 3 Object of Act 8 Main object (1) The main object of this Act is to provide a system for licensing and regulating persons as motor dealers and chattel auctioneers and for registering and regulating persons as motor salespersons that achieves an appropriate balance between— (a) the need to regulate for the protection of consumers; and (b) the need to promote freedom of enterprise in the market place. (2) The object is to be achieved mainly by— (a) ensuring— (i) only suitable persons with appropriate qualifications are licensed or registered; and (ii) persons who carry on business or are in charge of a licensee's business at a place under the authority of a motor dealer licence or chattel auctioneer licence maintain close personal supervision of the way the business is carried on; and (b) providing— (i) protection for consumers in their dealings with licensees and their employees; and (ii) a legislative framework within which persons performing activities for licensees may lawfully operate; and (c) regulating fees and commissions that can be charged for particular transactions; and (d) providing increased flexibility in enforcement measures through injunctions and undertakings; and (e) promoting administrative efficiency by providing that— (i) responsibility for licensing rests with the chief executive; and (ii) responsibility for reviewing particular decisions of the chief executive rests with QCAT; and (iii) responsibility for disciplinary matters rests with QCAT. Division 4 Interpretation 9 Definitions The dictionary in schedule 3 defines particular words used in this Act. 10 Meaning of beneficial interest (1) For this Act, other than section 19(2)(a) or (4)(b)(i), a licensee is taken to have a beneficial interest in property, for example, if— (a) the purchase of the property is made for the licensee or an associate of the licensee; or (b) an option to purchase the property is held by the licensee or an associate of the licensee; or (c) the purchase of the property is made for a corporation (having not more than 100 members) of which the licensee or an associate of the licensee is a member; or (d) an option to purchase the property is held by a corporation (having not more than 100 members) of which the licensee or an associate of the licensee is a member; or (e) the purchase of the property is made for a corporation of which the licensee or an associate of the licensee is an executive officer; or (f) an option to purchase the property is held by a corporation of which the licensee or an associate of the licensee is an executive officer; or (g) for a licensee that is a corporation— (i) the purchase of the property is made for an executive officer of the licensee or an associate of the executive officer; or (ii) an option to purchase the property is held by an executive officer of the licensee or an associate of the executive officer; or (h) the purchase of the property is made for a member of a firm or partnership of which the licensee or an associate of the licensee is also a member; or (i) the purchase of the property is made for a person carrying on a business for profit or gain and the licensee or an associate of the licensee has, directly or indirectly, a right to participate in the income or profits of the person's business or the purchase of the property. (2) For this Act, other than section 19(2)(a) or (4)(b)(i), a motor salesperson is taken to have a beneficial interest in property, for example, if— (a) the purchase of the property is made for the motor salesperson or an associate of the salesperson; or (b) the motor salesperson or an associate of the salesperson has an option to purchase the property; or (c) the purchase of the property is made for a corporation (having not more than 100 members) of which the motor salesperson or an associate of the salesperson is a member; or (d) an option to purchase the property is held by a corporation (having not more than 100 members) of which the motor salesperson or an associate of the salesperson is a member; or (e) the purchase of the property is made for a corporation of which the motor salesperson or an associate of the salesperson is an executive officer; or (f) an option to purchase the property is held by a corporation of which the motor salesperson or an associate of the salesperson is an executive officer; or (g) the purchase of the property is made for an executive officer of a corporation of which the motor salesperson or an associate of the salesperson is an executive officer; or (h) an option to purchase the property is held by an executive officer of a corporation of which the motor salesperson or an associate of the salesperson is an executive officer; or (i) the purchase of the property is made for a member of a firm or partnership of which the motor salesperson or an associate of the salesperson is also a member; or (j) the purchase of the property is made for a person carrying on a business for profit or gain and the motor salesperson or an associate of the salesperson has, directly or indirectly, a right to participate in the income or profits of the person's business or the purchase of the property. 11 Meaning of in charge (1) A person is in charge of a licensee's business at a place where the licensee carries on business only if the person personally supervises, manages or controls the conduct of the licensee's business at the place. (2) In this section— licensee's business means the licensee's business carried on under the authority of the licensee's licence. 12 Meaning of motor vehicle (1) A motor vehicle means— (a) a vehicle that moves on wheels and is propelled by a motor that forms part of the vehicle, whether or not the vehicle is capable of being operated or used in a normal way; or (b) a caravan. (2) However, a motor vehicle does not include any of the following— (a) a hovercraft; (b) a low powered toy scooter; (c) a motorised golf buggy; (d) a motorised mobility device; (e) a personal mobility device; (f) a trailer, other than a caravan; (g) a tractor or farm machinery; (h) a vehicle designed for use exclusively in the mining industry; (i) a vehicle designed for use exclusively on a railway or tramway. (3) In this section— low powered toy scooter see the Transport Operations (Road Use Management) Act 1995, schedule 4. motorised golf buggy means a motorised golf buggy under the Transport Operations (Road Use Management) Act 1995. motorised mobility device see the Transport Operations (Road Use Management) Act 1995, schedule 4. personal mobility device see the Transport Operations (Road Use Management) Act 1995, schedule 4. 13 Meaning of sale by auction (1) Generally, a sale by auction of a used motor vehicle or other goods under this Act means the sale of the vehicle or goods in any way commonly known and understood to be by auction. (2) However, the sale of a used motor vehicle or other goods by auction is not a sale by auction under this Act if— (a) the person selling the vehicle or goods by auction (the seller) owns the vehicle or goods and is not selling the vehicle or goods for someone else; and (b) the auction is conducted, whether by the seller or another entity, wholly by 1 or more electronic communications. (3) In this section— conducting, an auction, includes facilitating the conduct of the auction. Example of facilitating the conduct of an auction— operating an online marketplace auction facility (for example, the facility known as eBay) that is available for a person to use to sell a used motor vehicle or other goods by auction electronic communication see the Electronic Transactions (Queensland) Act 2001, schedule 2. Part 2 Licensing Division 1 Categories of licence 14 Categories of licence The chief executive may issue the following categories of licence under this Act— (a) a motor dealer licence; (b) a chattel auctioneer licence. Division 2 Limited motor dealer licence 15 Limited motor dealer licence (1) The chief executive may issue a motor dealer licence (a limited motor dealer licence) prescribed under a regulation, that limits the activities that may otherwise be performed under a motor dealer licence. (2) To be eligible for a limited motor dealer licence, an applicant for the licence must have the educational qualifications approved by the chief executive for obtaining the licence. Editor's note— The qualifications are stated on the department's website. Division 3 How to obtain a licence 16 Steps involved in obtaining a licence (1) A person who wishes to obtain a licence must be a suitable person to hold a licence under division 5. (2) The person must apply for the licence by— (a) giving the chief executive an application showing, among other things, the person is eligible for the licence; and (b) paying— (i) the fees prescribed under a regulation; and (ii) if, before or when the application is made, a criminal history costs requirement is made of the applicant—the amount of the costs required to be paid; and (c) giving the chief executive the other information required under section 18. (3) In deciding the application, the chief executive must have regard, among other things, to— (a) the person's suitability to hold a licence under this Act; and (b) the person's eligibility for the licence. Division 4 Applications for licence 17 Application for licence (1) An applicant for a licence must— (a) apply to the chief executive in the approved form; and (b) state the category of licence being applied for; and (c) state the term of the licence being applied for; and (d) establish the applicant's eligibility for the category of licence being applied for; and (e) state the names and addresses of the applicant's business associates; and (f) provide any information the chief executive reasonably requires to decide whether the applicant is a suitable person to hold a licence. (2) The application must be accompanied by— (a) the application fee prescribed under a regulation; and (b) the licence issue fee prescribed under a regulation; and (c) if, before or when the application is made, a criminal history costs requirement is made of the applicant—the amount of the costs required to be paid. 18 Applicant must state business address (1) The applicant must also state in the applicant's application— (a) if the applicant intends carrying on business under the licence immediately after the issue of the licence—the place or places in Queensland where the applicant proposes to carry on business under the licence; or (b) if the applicant does not intend carrying on business under the licence immediately after the issue of the licence— (i) the capacity in which the applicant intends performing activities under the licence and the address where the activities are to be performed (business address); and (ii) if the applicant intends to be a person in charge of a licensee's business at a place of business—the name of the applicant's employer and the address of the place of business where the applicant is to be in charge (also a business address). Examples of capacity in which activities may be performed— • person in charge of a corporation's business • licensed employee of a licensee Example of business address of an employed licensee— the address of the person's employer's place of business where the person generally reports for work (2) If the applicant intends to carry on business under the licence at more than 1 place, the applicant must state in the application the place the applicant intends to be the applicant's principal place of business. (3) A place of business or an address under this section must be a place where a document can be served personally. (4) A place of business or an address must not be a post office box. 19 Particular persons can not make application (1) A person who is a disqualified person can not make an application for a licence during the period for which the person is disqualified. (2) A corporation that was the holder of a licence that was cancelled can not make an application for a licence unless the corporation satisfies the chief executive that, because of a genuine sale— (a) no person who was a shareholder of, or held a beneficial interest in, the corporation when the licence was cancelled is a shareholder of, or holds a beneficial interest in, the applicant corporation; and (b) no person who was in a position to control or influence the affairs of the corporation when the licence was cancelled is in a position to control or influence the affairs of the applicant corporation. (3) If a person applies for a licence and the chief executive decides to refuse to issue the licence, the person can not make another application for a licence of that type— (a) for 3 months after the day the chief executive gives the person the information notice about the decision; or (b) if the person applies to QCAT to review the decision and the decision is confirmed—for 3 months after the day the decision is confirmed. (4) Subsection (3) does not apply if— (a) the person is a corporation; and (b) the person satisfies the chief executive that, because of a genuine sale— (i) no person who was a shareholder of, or held a beneficial interest in, the corporation when the refused application was made is a shareholder of, or holds a beneficial interest in, the corporation; and (ii) no person who was in a position to control or influence the affairs of the corporation when the refused application was made is in a position to control or influence the affairs of the corporation. (5) In this section— disqualified person means a person who is— (a) disqualified from holding a licence as a consequence of an order made by QCAT under section 199 or by a court under section 229; or (b) subject to a relevant control order. 20 Requirement to give information or material about application or request (1) This section applies to any of the following— (a) an applicant for a licence; (b) an applicant for renewal of a licence; (c) an applicant for restoration of a licence; (d) an applicant for the appointment or extension of the appointment of a nominated person mentioned in section 51(3) or 52(4) as the applicant's substitute licensee; (e) a licensee who has asked the chief executive to reactivate the licensee's licence. (2) The chief executive may, by written notice given to the applicant or licensee, require the applicant or licensee to give the chief executive within a stated reasonable period information or material the chief executive reasonably considers is needed to consider the application or request. Example of information or material— information or material the chief executive reasonably considers is needed to establish the applicant's or licensee's suitability for the licence (3) The applicant or licensee is taken to have withdrawn the application or request if, within the stated reasonable period, the applicant or licensee fails to comply with the chief executive's requirement. Division 5 Suitability of applicants and licensees 21 Suitability of applicants and licensees—individuals (1) An individual is not a suitable person to hold a licence if the individual— (a) is an insolvent under administration; or (b) has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or (c) is currently disqualified from holding a licence or registration certificate; or (d) is a person the chief executive decides under section 23 is not a suitable person to hold a licence; or (e) is subject to a relevant control order. (2) An individual who is not a suitable person can not hold a licence. 22 Suitability of applicants and licensees—corporations (1) A corporation is not a suitable person to hold a licence if the corporation— (a) has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; or (b) is currently disqualified from holding a licence; or (c) is a person the chief executive decides under section 23 is not a suitable person to hold a licence; or (d) is subject to a relevant control order. (2) A corporation is not a suitable person to hold a licence if any of the following applies to an executive officer of the corporation— (a) the executive officer is an insolvent under administration; (b) the executive officer has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence; (c) the executive officer is currently disqualified from holding a licence or registration certificate; (d) the chief executive decides under section 23 the executive officer is not a suitable person to hold a licence; (e) the executive officer is subject to a relevant control order. (3) A corporation that is not a suitable person can not hold a licence. 23 Chief executive must consider suitability of applicants and licensees (1) The chief executive must, when deciding whether a person is a suitable person to hold a licence, consider all of the following things— (a) the character of the person; (b) the character of the person's business associates; (c) whether the person held a licence or registration certificate under a relevant Act that was suspended or cancelled under the relevant Act; (d) whether an amount has been paid from the fund because the person did, or omitted to do, something that gave rise to the claim against the fund; (e) whether the person has been disqualified under a relevant Act from being the holder of a licence or registration certificate within the meaning of the relevant Act; (f) whether the person has been disqualified from managing corporations under the Corporations Act; (g) whether, within the preceding 5 years, QCAT, the former tribunal or the District Court has made an order under this Act or PAMDA adverse to the person; (h) for an individual— (i) the individual's criminal history; and (ii) whether the individual has been an insolvent under administration; and (iii) whether the individual has been convicted of an offence against a relevant Act or the Administration Act; and (iv) whether the individual is subject to a relevant control order; and (v) whether the individual is capable of satisfactorily performing the activities of a licensee; and (vi) whether the individual's name appears in the register of persons disqualified from managing corporations under the Corporations Act; Note— See the Corporations Act, section 1274AA (Register of disqualified company directors and other officers). (i) for a corporation— (i) whether the corporation has been placed in receivership or liquidation; and (ii) whether the corporation, or an executive officer of the corporation, is subject to a relevant control order; and (iii) whether an executive officer of the corporation has been an insolvent under administration; and (iv) whether an executive officer of the corporation has been convicted of an offence against a relevant Act or the Administration Act; and (v) whether each executive officer of the corporation is a suitable person to hold a licence; (j) another thing the chief executive may consider under this Act. (2) However, the chief executive, when deciding whether a person is a suitable person to hold a licence, may not have regard to criminal intelligence given by the commissioner to the chief executive under section 230A. (3) If the chief executive decides a person is not a suitable person to hold a licence, the chief executive must give the person an information notice about the decision within 14 days after making the decision. (4) In this section— fund includes the claim funds under PAMDA and the repealed Auctioneers and Agents Act 1971. relevant Act means this Act, an Agents Act, PAMDA or a corresponding law. 24 Public trustee is a suitable person The corporation sole called The Public Trustee of Queensland is taken to be a suitable person to hold a licence. 25 Chief executive of department is a suitable person The chief executive of a department is taken to be a suitable person to hold a licence. 26 Investigations about suitability of applicants, nominated persons and licensees (1) The chief executive may make investigations about the following persons to help the chief executive decide whether an applicant or nominated person mentioned in section 20(1) or licensee is a suitable person to hold a licence— (a) the applicant, nominated person or licensee; (b) if the applicant, nominated person or licensee intends carrying on, or carries on, business in partnership or in conjunction with others—each member of the partnership or each person with whom the applicant, nominated person or licensee intends carrying on, or carries on, business in partnership or in conjunction; (c) if the applicant or licensee is a corporation—each executive officer of the corporation; (d) a business associate of the applicant, nominated person or licensee. (2) Without limiting subsection (1), the chief executive may ask the commissioner for a criminal history report about any of the persons. (3) The commissioner must give the report to the chief executive. (4) However, the report is required to contain only criminal history in the commissioner's possession or to which the commissioner has access. (5) If the person's criminal history includes a conviction recorded against the person, the report must be written. (6) If the person is, or has been, subject to a control order or registered corresponding control order, the report must— (a) state the details of the order; or (b) be accompanied by a copy of the order. 27 Notice of change in criminal history (1) This section applies if the commissioner reasonably suspects the criminal history of either of the following persons has changed— (a) a person who is the holder of a licence; (b) a person who is a nominated person mentioned in section 51(3) or 52(4) and appointed as a substitute licensee. (2) The commissioner may notify the chief executive that the person's criminal history has changed. (3) The notice must— (a) state the following details— (i) the person's name and any other name the commissioner believes the person may use or may have used; (ii) the person's date and place of birth; (iii) a brief description of the nature of the offence giving rise to the conviction or charge to which the change relates; and (b) if the change includes the person becoming subject to a control order or registered corresponding control order— (i) state the details of the order; or (ii) be accompanied by a copy of the order. (4) The chief executive may confirm the commissioner's suspicions under subsection (1). (5) For a person who does not have a criminal history, there is taken to be a change in the person's criminal history if the person acquires a criminal history. (6) In this section— criminal history, in relation to a person, includes a charge of an offence laid against the person that has not been dismissed. offence includes an alleged offence. 28 Costs of criminal history report (1) The chief executive may require an applicant mentioned in section 20(1) or a licensee to pay the reasonable, but no more than actual, costs of obtaining a criminal history report under section 26 about— (a) the applicant or licensee; or (b) a nominated person mentioned in section 51(3) or 52(4) as the applicant's substitute licensee; or (c) a person to whom section 26(1)(b), (c) or (d) applies for deciding whether the applicant, licensee or nominated person is a suitable person to hold a licence. (2) The requirement is a criminal history costs requirement. (3) The chief executive may notify the applicant or licensee of the requirement to pay a criminal history costs requirement— (a) in an approved form; or (b) on the department's website; or (c) in a written notice given by the chief executive to the applicant or licensee. (4) If the criminal history costs requirement is made in a written notice given by the chief executive to the applicant or licensee, the notice must include a requirement for the costs to be paid within a stated reasonable period. (5) The applicant or licensee is taken to have withdrawn the application for which the criminal history report was requested if the applicant or licensee fails to comply with the criminal history costs requirement. (6) The chief executive must refund to an applicant or licensee an amount paid under the requirement if— (a) the chief executive refuses the application without asking for the report; or (b) the applicant or licensee withdraws the application before the chief executive asks for the report. (7) In this section— applicant includes proposed applicant. 29 Use of information obtained under s 26 or s 27 (1) This section applies to the chief executive in considering— (a) information obtained under section 26 or 27 about an applicant or nominated person mentioned in section 20(1) or a licensee (each a relevant person); or (b) information obtained under section 26 about an associate of a relevant person. (2) Information about the following may be used only for making a decision about whether a relevant person is, or continues to be, a suitable person to hold a licence— (a) a conviction of the relevant person or an associate of the relevant person; (b) if the relevant person, or an associate of the relevant person, is subject to a control order or registered corresponding control order—the control order. (3) Information about a charge against a relevant person may not be relied on as a basis for making a decision as to whether the person is, or continues to be, a suitable person to hold a licence. (4) In this section— associate, of a relevant person, means a person to whom section 26(1)(b), (c) or (d) applies for deciding whether the relevant person is a suitable person to hold a licence. 30 [Repealed] 31 [Repealed] Division 6 Eligibility for licence Subdivision 1 Motor dealer licence 32 Eligibility for motor dealer licence (1) An individual is eligible to obtain a motor dealer licence only if the individual— (a) is at least 18 years; and (b) has the educational or other qualifications approved by the chief executive for a motor dealer licence. Editor's note— The qualifications are stated on the department's website. (2) An individual is to be taken to satisfy the requirement mentioned in subsection (1)(b) if the chief executive is satisfied the individual— (a) has comparable qualifications to the qualifications mentioned in subsection (1)(b); or (b) within 2 years before the day the individual's application for a motor dealer licence is received by the chief executive— (i) has been licensed as a motor dealer; or (ii) has been the holder of a motor dealer's licence granted under PAMDA. (3) A corporation is eligible to obtain a motor dealer licence only if a person in charge of the corporation's business is a motor dealer. Subdivision 2 Chattel auctioneer licence 33 Eligibility for chattel auctioneer licence (1) An individual is eligible to obtain a chattel auctioneer licence only if the individual— (a) is at least 18 years; and (b) has the educational or other qualifications for a chattel auctioneer licence approved by the chief executive. Editor's note— The qualifications are stated on the department's website. (2) An individual is to be taken to satisfy the requirement mentioned in subsection (1)(b) if the chief executive is satisfied the individual— (a) has a qualification comparable to the qualification mentioned in subsection (1)(b); or (b) within 2 years before the day the individual's application for a chattel auctioneer licence is received by the chief executive— (i) has been licensed as a chattel auctioneer; or (ii) has been the holder of an auctioneer's licence granted under PAMDA. (3) A corporation is eligible to obtain a chattel auctioneer licence only if a person in charge of the corporation's business is a chattel auctioneer. Subdivision 3 Chief executives and corporation sole 34 Public trustee is eligible for licence The corporation sole called The Public Trustee of Queensland is taken to be eligible for a licence. 35 Chief executive of department is eligible for licence The chief executive of a department is taken to be eligible for a licence. Division 7 Issue of licences 36 Chief executive may issue or refuse to issue licence (1) The chief executive may decide to issue or refuse to issue a licence to an applicant. (2) The chief executive may decide to issue a licence to an applicant only if the chief executive is satisfied that— (a) the applicant is a suitable person to hold a licence and— (i) if the applicant intends carrying on business in partnership or in conjunction with others—each member of the partnership or each person with whom the applicant intends carrying on business in conjunction is a suitable person to hold a licence; and (ii) if the applicant is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and (b) the applicant is eligible for a licence of the category of licence being applied for; and (c) the application complies with sections 17 and 18. (3) If the chief executive decides to refuse to issue the licence, the chief executive must give the applicant an information notice about the decision within 14 days after making the decision. 37 Licence—public trustee (1) The chief executive may issue a licence to the public trustee in the public trustee's capacity as a corporation sole in the name 'The Public Trustee of Queensland'. (2) A licence issued to the public trustee authorises an officer or employee of the public trustee to perform any activity authorised by the public trustee that the public trustee may perform under the licence. (3) To remove any doubt, it is declared that an officer or employee performing an activity authorised by the public trustee is not required to be licensed or registered under this Act to perform the activity. 38 Licence—chief executive of department (1) The chief executive may issue a licence to the chief executive of a department in the name 'The Chief Executive of the (name of department)'. (2) The licence is taken to be issued to the chief executive for the time being of the department. (3) The chief executive of a department, as licensee, is taken to represent the State. (4) A licence issued to the chief executive of a department authorises an officer or employee of the department to perform any activity authorised by the chief executive that the chief executive may perform under the licence. (5) To remove any doubt, it is declared that an officer or employee performing an activity authorised by the chief executive is not required to be licensed or registered under this Act to perform the activity. 39 Licence—conditions (1) The chief executive may decide to issue a licence on the conditions the chief executive considers necessary or desirable for the proper performance of the activities authorised by the licence. (2) Without limiting subsection (1), a condition may— (a) limit or prohibit the performance of an activity authorised under this Act or the Administration Act; or (b) require a licensee to hold insurance of a kind and in an amount prescribed under a regulation. (3) If the chief executive decides to issue a licence on condition, the chief executive must give the applicant an information notice about the decision within 14 days after making the decision. Division 8 Restrictions on performing activities under licences 40 Restriction—corporations (1) A corporation that holds a licence may perform an activity under its licence at a place only if the activity may be performed by— (a) a licensed person who is in charge of the corporation's business at the place; or (b) a liquidator or controller appointed under the Corporations Act of property of the corporation; or (c) an administrator of the corporation appointed under the Corporations Act; or (d) an administrator of a deed of company arrangement for the corporation appointed under the Corporations Act; or (e) a receiver appointed under the Administration Act for property of the corporation. (2) However, subsection (1) does not prevent a corporation that holds a motor dealer licence selling a used motor vehicle by auction if the auction is conducted by a chattel auctioneer who is an employed licensee of the corporation. (3) A corporation that is a former licensee may perform an activity authorised under the former licence if the activity is performed by a person mentioned in subsection (1)(b), (c), (d) or (e). (4) If a corporation that holds a licence or is a former licensee performs an activity it is not authorised to perform, it is taken to be a person who acts as a licensee without a licence for the performance of the activity. (5) In this section— former licensee means— (a) a licensee under a licence that was previously in force; or (b) a licensee under a motor dealer's licence under PAMDA. 41 Restriction—individuals (1) An individual who is an employed licensee may perform an activity authorised under the individual's licence only if the activity may also be performed by the individual's employer under the employer's licence. Example— E is a licensed employee of P, a licensed motor dealer. E's licence is not subject to a condition. However, P's licence is subject to a condition that P deal only in motorcycles. Because of the condition, E is only authorised to deal in motorcycles under E's licence during E's employment with P and while P is subject to the condition. (2) However, subsection (1) does not prevent an individual who holds a chattel auctioneer licence selling goods by auction for the individual's licensed employer. (3) If the employed licensee performs an activity the employed licensee is not authorised to perform because of subsection (1), the employed licensee is taken to be a person who acts as a licensee without a licence for the performance of the activity. 42 Restriction—conditions (1) This section applies to a licensee who performs an activity under the licensee's licence that the licensee is not authorised to perform because of a condition on the licensee's licence. (2) The licensee is taken to be a person who acts as a licensee without a licence for the performance of the activity. Note— For some of the consequences of a licensee performing an activity that the licensee is not authorised to perform because of a condition on the licensee's licence, see sections 88, 119, 132 and 149. Division 9 Renewal and restoration of licences Subdivision 1 Renewal 43 Application for renewal (1) A licensee may only apply for renewal of the licensee's licence before the licence expires. (2) The application must— (a) be made to the chief executive in the approved form; and (b) state the term of the licence being applied for; and (c) state the names and addresses of the licensee's business associates; and (d) be accompanied by— (i) the application fee prescribed under a regulation; and (ii) the licence renewal fee prescribed under a regulation; and (iii) if the licensee is required as a condition of the licensee's licence to hold insurance, proof of the currency of the insurance; and (iv) if, before or when the application is made, a criminal history costs requirement is made of the licensee—the amount of the costs required to be paid. (3) The application must also be accompanied by— (a) an audit report for all trust accounts kept by the licensee during the relevant audit period; or (b) a statutory declaration by the licensee that the licensee did not operate a trust account during the relevant audit period. (4) In this section— relevant audit period, for a licensee's licence, means the audit period ending immediately before the licence's expiry date. 44 Chief executive may renew or refuse to renew licence (1) The chief executive must consider the renewal application and decide to renew or refuse to renew the licence. (2) The chief executive may decide to renew the licence only if the chief executive is satisfied— (a) the licensee is a suitable person to hold a licence and— (i) if the licensee carries on business in partnership or in conjunction with others—each member of the partnership or each person with whom the licensee carries on business in conjunction is a suitable person to hold a licence; and (ii) if the licensee is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and (b) the application is made under section 43; and (c) the licensee meets the eligibility requirements, other than eligibility requirements of an educational nature, for the licence. (3) If the chief executive decides to refuse to renew the licence, the chief executive must give the applicant an information notice about the decision within 14 days after making the decision. 45 Licence taken to be in force while application for renewal is considered If an application is made under section 43, the licensee's licence is taken to continue in force from the day that it would, apart from this section, have expired until the licensee's application for renewal is— (a) decided under section 44; or (b) withdrawn by the licensee; or (c) taken to have been withdrawn under section 20(3). Subdivision 2 Restoration 46 Application for restoration (1) If a person's licence expires, the person may apply for restoration of the licence. (2) The application must— (a) be made to the chief executive in the approved form; and (b) be made within 3 months after the expiry; and (c) state the term of the licence being applied for; and (d) state the names and addresses of the person's business associates; and (e) be accompanied by— (i) the application fee prescribed under a regulation; and (ii) the licence renewal fee prescribed under a regulation; and (iii) the licence restoration fee prescribed under a regulation; and (iv) if the person was required as a condition of the person's licence to hold insurance—proof of the currency of the insurance; and (v) if, before or when the application is made, a criminal history costs requirement is made of the person—the amount of the costs required to be paid. (3) The application must also be accompanied by— (a) an audit report about all trust accounts maintained by the person during the relevant audit period; or (b) a statutory declaration by the person that the person did not operate a trust account during the relevant audit period. (4) In this section— relevant audit period, for a person's licence, means the audit period ending immediately before the licence expired. 47 Licence taken to be in force while application for restoration is considered If an application is made under section 46, the person's licence is taken to have continued in force from the day that it would, apart from this section, have expired until the application is— (a) decided under section 48; or (b) withdrawn by the person; or (c) taken to have been withdrawn under section 20(3). 48 Chief executive may restore or refuse to restore licence (1) The chief executive must consider the application for restoration and may decide to restore or refuse to restore the licence. (2) The chief executive may decide to restore the licence only if the chief executive is satisfied— (a) the person is a suitable person to hold a licence and— (i) if the person carries on, or intends to carry on, business in partnership or in conjunction with others—each member of the partnership or each person with whom the person carries on, or intends to carry on, business in conjunction is a suitable person to hold a licence; and (ii) if the person is a corporation—each executive officer of the corporation is a suitable person to hold a licence; and (b) the application is made under section 46; and (c) the person meets the eligibility requirements, other than eligibility requirements of an educational nature, for the licence. (3) If the chief executive decides to refuse to restore the licence, the chief executive must give the person an information notice about the decision within 14 days after the making the decision. (4) If the chief executive decides to restore the licence— (a) the licence is taken to have been renewed on the day it would, apart from section 47, have expired (the initial expiry date); and (b) to remove any doubt, it is declared that a thing done during the period starting on the initial expiry date and ending on the day the decision is made under this section is taken to have been as validly done as it would have been if the licence had been renewed immediately before the initial expiry date. Division 10 Dealings with licences Subdivision 1 Transfer of licence 49 Transfer of licence prohibited A licence may not be transferred. 50 Offence to sell, lend or borrow licence (1) A licensee must not— (a) sell, lend or hire out the licensee's licence to someone else; or (b) notify or advertise that a licence is available for sale, loan or hire to someone else, whether licensed or not; or (c) permit or allow someone else to hold out that the person is the holder of the licensee's licence. Maximum penalty—200 penalty units or 2 years imprisonment. (2) A person must not buy, borrow or hire a licensee's licence. Maximum penalty—200 penalty units or 2 years imprisonment. (3) If a person who is not the holder of an appropriate licence or the licensee's substitute has the effective or apparent management or control of a licensee's business, the licensee is taken to have lent, and the person is taken to have borrowed, the licensee's licence. Subdivision 2 Substitute licences 51 Appointment of substitute licensee—principal licensee—individual (1) A principal licensee may appoint an adult as the licensee's substitute licensee for a period of not more than 30 days only if— (a) the licensee will be absent from the licensee's registered office for the period; and (b) the adult consents to the appointment; and (c) if the licensee is required as a condition of the licensee's licence to hold insurance, the adult is covered by the insurance or holds insurance that complies with the requirements of the condition. (2) The principal licensee must ensure— (a) an appointment under subsection (1) and the substitute licensee's consent to the appointment are in writing and state the period of appointment; and (b) the appointment, consent and evidence of any insurance the substitute licensee is required to have are— (i) kept at the licensee's registered office; and (ii) made available for immediate inspection by an inspector who asks to see them. Maximum penalty—100 penalty units. (3) A principal licensee who will be absent from the licensee's registered office for a period of more than 30 days must apply to the chief executive in the approved form for the appointment or the extension of the appointment of an adult (the nominated person) as the licensee's substitute licensee. Maximum penalty—200 penalty units. (4) If the principal licensee is a person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 or is deceased, the licensee's representative may make the application under subsection (3). (5) The application must be accompanied by— (a) the nominated person's signed consent to the appointment; and (b) enough information about the nominated person to enable the chief executive to decide whether the person— (i) is a suitable person to hold a licence; and (ii) is sufficiently qualified to perform the licensee's activities during the period; and (iii) if the licensee is required as a condition of the licensee's licence to hold insurance—is covered by the insurance or holds insurance that complies with the requirements of the condition; and (c) the application fee prescribed under a regulation; and (d) if, before or when the application is made, a criminal history costs requirement is made of the principal licensee—the amount of the costs required to be paid. (6) In this section— principal licensee includes— (a) for a licensee for whom an administrator has been appointed under the Guardianship and Administration Act 2000—the licensee's administrator; and (b) for a deceased licensee—the licensee's personal representative. representative, of a principal licensee, means— (a) for a licensee for whom an administrator has been appointed under the Guardianship and Administration Act 2000—the licensee's administrator; or (b) for a deceased licensee—the licensee's personal representative. 52 Appointment of substitute licensee—employed licensee in charge of a licensee's business at a place (1) This section applies if an employed licensee who is in charge of a principal licensee's business at a place will be absent from the place for any reason, other than the employed licensee's resignation or termination of employment. (2) If the employed licensee will be absent from the place for a period of not more than 30 days, the principal licensee may appoint an adult as the employed licensee's substitute licensee for the period if the adult consents to the appointment. (3) The principal licensee must ensure an appointment under subsection (2) and the person's consent to the appointment are— (a) in writing and state the period of appointment; and (b) kept at the licensee's registered office; and (c) made available for immediate inspection by an inspector who asks to see them. Maximum penalty—100 penalty units. (4) If the employed licensee will be absent from the place for a period of more than 30 days, the principal licensee who employs the employed licensee must apply to the chief executive in the approved form for the appointment or the extension of the appointment of an adult (also the nominated person) as the licensee's substitute licensee. Maximum penalty—200 penalty units. (5) The application must be accompanied by— (a) the nominated person's signed consent to the appointment; and (b) enough information about the nominated person to enable the chief executive to decide whether the person is— (i) a suitable person to hold a licence; and (ii) sufficiently qualified to perform the employed licensee's activities during the period; and (c) the application fee prescribed under a regulation; and (d) if, before or when the application is made, a criminal history costs requirement is made of the principal licensee—the amount of the costs required to be paid. (6) In this section— principal licensee includes— (a) for a licensee for whom an administrator has been appointed under the Guardianship and Administration Act 2000—the licensee's administrator; and (b) for a deceased licensee—the licensee's personal representative. 53 Chief executive may appoint or refuse to appoint substitute licensee (1) The chief executive may decide to appoint or refuse to appoint a nominated person mentioned in section 51(3) or 52(4) as a licensee's substitute licensee. (2) The chief executive may appoint the nominated person only if the chief executive is satisfied that the person— (a) is, under division 5, a suitable person to hold a licence; and (b) is sufficiently qualified to perform the licensee's activities during the period of the licensee's absence; and (c) if the licensee is required as a condition of the licensee's licence to hold insurance—is covered by the insurance or holds insurance that complies with the requirements of the condition. (3) An appointment under this section may be made subject to the conditions the chief executive considers appropriate. (4) The chief executive must give written notice of the appointment to the licensee and the substitute licensee. (5) If the chief executive decides to refuse to appoint the nominated person or impose conditions on the appointment, the chief executive must give the licensee an information notice about the decision within 14 days after making the decision. 54 Substitute licensee (1) On appointment, a substitute licensee— (a) must act as substitute for the licensee for whom the substitute is appointed; and (b) is taken to be the licensee during the period of the appointment. (2) A licensee for whom a substitute has been appointed must not act under the authority of the licensee's licence while the appointment of the substitute licensee continues. Maximum penalty—200 penalty units. (3) The appointment of the substitute licensee ends if— (a) the period of the appointment ends; or (b) the principal licensee gives written notice to end the appointment from a date stated in the notice— (i) for a substitute licensee appointed under section 51(1) or 52(2)—to the substitute licensee; or (ii) for a substitute licensee appointed under section 53—to the chief executive and the substitute licensee; or (c) the substitute licensee gives written notice to end the appointment from a date stated in the notice— (i) for a substitute licensee appointed under section 51(1) or 52(2)—to the principal licensee who made the appointment; or (ii) for a substitute licensee appointed under section 53—to the chief executive and the principal licensee who applied for the appointment; or (d) the chief executive revokes the substitute licensee's appointment; or (e) the licensee's licence is suspended or cancelled; or (f) if the licensee is a principal licensee—the licensee stops carrying on business as a licensee. 55 Limitation on period of substitution (1) A principal licensee may not appoint a substitute licensee for himself or herself for more than 12 weeks in any period of 12 months. (2) A principal licensee may not appoint a substitute licensee for an employed licensee for more than 12 weeks in any period of 12 months. (3) The chief executive may not appoint a substitute licensee for a licensee for more than 26 weeks in any period of 12 months. Subdivision 3 General 56 Amendment of licence conditions (1) The chief executive may amend the conditions of a licence— (a) on the licensee's application; or (b) on the order of QCAT after a disciplinary hearing; or (c) on the chief executive's own initiative. Note— QCAT may deal with the conditions of a person's licence under section 199. (2) An application under subsection (1)(a) must be made in the approved form and be accompanied by the application fee prescribed under a regulation. (3) Before deciding to make an amendment under subsection (1)(a), the chief executive must be satisfied the licensee meets the requirements the chief executive considers the licensee must meet to be eligible for the amendment. (4) Before deciding to make an amendment under subsection (1)(c), the chief executive must— (a) give written notice to the licensee— (i) of the particulars of the proposed amendment; and (ii) that the licensee may make written submissions to the chief executive about the proposed amendment before a stated day, not later than 14 days after the notice is given to the licensee; and (b) have regard to submissions made to the chief executive by the licensee before the stated day. (5) Subsection (4) does not apply if the chief executive decides that the amendment must be made urgently— (a) to avoid potential claims against the fund; or (b) to ensure compliance with this Act or the Administration Act. (6) If the chief executive decides to amend the conditions of a licence under subsection (1)(c), the chief executive must give the licensee an information notice about the decision within 14 days after making the decision. (7) The amendment takes effect— (a) on the day the written notice of the amendment is given to the licensee; or (b) if a later day is stated in the notice, on the stated day. (8) If the chief executive decides to refuse to make an amendment requested under subsection (1)(a), the chief executive must give the applicant an information notice about the decision within 14 days after making the decision. 57 Return of licence for amendment or replacement (1) The chief executive may require a licensee to produce the licensee's licence for amendment or replacement within a stated period of not less than 14 days if the chief executive intends to— (a) amend the conditions of the licence under section 56; or (b) replace the licence under section 67(5). (2) The licensee must comply with the requirement unless the person has a reasonable excuse. Maximum penalty—100 penalty units. 58 Return of licence for suspension or cancellation (1) A person whose licence has been suspended or cancelled under section 229(1) or an order made by QCAT must return the licence to the chief executive within 14 days after the suspension or cancellation unless the person has a reasonable excuse. Maximum penalty—100 penalty units. (2) Subsection (1) does not apply if section 61(6) or 62(2) applies. 59 Surrender of licence (1) A licensee may surrender the licensee's licence by giving written notice to the chief executive and returning the licence. (2) A licence surrendered under this section stops having effect on the day it is surrendered. 60 Licence may be deactivated (1) A licensee may ask the chief executive to deactivate the licensee's licence. (2) A request under subsection (1) must be made in the approved form and be accompanied by the licensee's licence and the fee prescribed under a regulation. (3) The licence is taken to be deactivated when the request, the licence and the prescribed fee are received by the chief executive under subsection (2). (4) A licence that is deactivated does not authorise the licensee to perform an activity under the authority of the licence. (5) The deactivation of a licence under this section does not— (a) affect the term of the licence; or (b) entitle the licensee to a refund of fees for the licence for the balance of the licence's term. (6) The holder of a deactivated licence may apply to have the licence renewed under section 43 or restored under section 46 as a deactivated licence at a reduced fee prescribed under a regul