Motor Vehicle Traders Act 2011 (Tas)

Motor Vehicle Traders Act 2011 An Act to provide for the licensing of motor vehicle traders, to regulate the conduct of motor vehicle traders and their sales persons, to ensure that the rights of persons who purchase certain motor vehicles are adequately protected, to provide for warranties on certain new and used motor vehicles, to allow for the regulation of park and sell operators, to consequentially amend the Australian Consumer Law (Tasmania) Act 2010 , the Consumer Affairs Act 1988 and the Duties Act 2001 , to rescind the Fair Trading (Code of Practice for Motor Vehicle Traders) Regulations 1996 and for related purposes [Royal Assent 22 July 2011] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Motor Vehicle Traders Act 2011 . 2. Commencement This Act commences on a day or days to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – ADR means – (a) the vehicle standards (Australian Design Rules) determined under the MVSA and as amended or replaced from time to time; or (b) a national road vehicle standard determined under section 12 of the RVSA and as amended or replaced from time to time; Australian Fuel Consumption Guide means – (a) the Green Vehicle Guide produced by the Commonwealth Department of Environment and Heritage, as amended or substituted from time to time, together with the Fuel Consumption Guide Database 1986-2003 kept and published by that Department; or (b) a prescribed document; authorised officer means a person who is an authorized officer within the meaning of the Consumer Affairs Act 1988 ; chief executive officer, in relation to a body corporate, means – (a) the chief executive officer of the body corporate; or (b) an individual who holds an office in the body corporate that is substantially the same as that of chief executive officer of a body corporate, regardless of the name of that office; or (c) an individual acting in the office of chief executive officer or an office referred to in paragraph (b) ; commercial vehicle means a motor vehicle, within the meaning of the Vehicle and Traffic Act 1999 , that – (a) if manufactured or imported on or after 1 July 1988, has a vehicle category code of MD, ME, NA, NB or NC stamped, engraved or otherwise placed on its compliance plate; or (b) if manufactured or imported before 1 July 1988, has the capacity to carry 1 200 kilograms or more and is constructed or adapted to be used principally for – (i) the carriage of goods; or (ii) the carriage of 10 or more passengers; or (iii) industrial purposes; or (iv) agricultural purposes; compliance plate means an identification plate approved to be attached, or taken to have been attached, to a vehicle under the MVSA; deal in motor vehicles has the meaning given by section 4 ; deemed registration means an entitlement to automatic deemed registration, within the meaning of the Mutual Recognition Act 1992 of the Commonwealth; Director means the Director of Consumer Affairs and Fair Trading appointed under section 9 of the Consumer Affairs Act 1988 ; director, in relation to a body corporate, means – (a) a director of the body corporate; or (b) an individual who holds an office in the body corporate that is substantially the same as that of a director of a body corporate, regardless of the name of that office; or (c) an individual acting in the office of director or in an office referred to in paragraph (b) ; or (d) an individual not referred to in paragraph (a) , (b) or (c) but who is concerned in the management of the body corporate; finance agreement means an agreement under which a person agrees to provide finance to another person in respect of a motor vehicle and the other person – (a) agrees to pay or repay the amount of finance provided at a later time, whether the time for repayment is fixed or indeterminate; or (b) obtains a right to use the motor vehicle (whether or not a right of purchase is also obtained) and agrees to make successive payments for that use before, during or after any period of use; or (c) agrees to give to the person who agrees to provide finance a negotiable instrument under which payment is not to be made by the person against whom the negotiable instrument is drawn until a later date; finance provider means a person who carries on the business of buying, selling or exchanging motor vehicles only for one or more of the following purposes: (a) selling motor vehicles on instalment terms; (b) hiring motor vehicles under hire-purchase agreements; (c) taking or enforcing securities over motor vehicles; (d) letting or hiring motor vehicles with or without granting a right to purchase them; (e) a prescribed purpose; (f) disposing of motor vehicles acquired by the person in connection with any of the purposes referred to in paragraph (a) , (b) , (c) , (d) or (e) ; fit and proper person to hold a motor vehicle trader licence has the meaning given by section 7 ; licence number means the identifying number on a motor vehicle trader licence issued and in force in accordance with section 14 ; licensed motor vehicle trader means a person who holds a motor vehicle trader licence; manufacturer means a person who, in Australia – (a) manufactures motor vehicles; or (b) imports new motor vehicles; or (c) assembles new motor vehicles; or (d) distributes new motor vehicles; or (e) sells new motor vehicles on a concession basis; or (f) sells new motor vehicles on a wholesale basis; motor cycle means a motor cycle within the meaning of the Vehicle and Traffic Act 1999 , other than – (a) a motor cycle that is not used, and is not intended to be used, on a public street; and (b) a motor cycle that is prescribed by the regulations not to be a motor cycle for the purposes of this definition; motor vehicle means a motor vehicle, within the meaning of the Vehicle and Traffic Act 1999 , other than a commercial vehicle; motor vehicle trader means a person carrying on the business of dealing in motor vehicles; motor vehicle trader licence means – (a) a licence issued and in force in accordance with section 14 ; or (b) a motor vehicle trader licence held by a person by virtue of holding deemed registration; MVSA means the Motor Vehicle Standards Act 1989 of the Commonwealth, as in force immediately before its repeal; park and sell operator means a person who – (a) owns or manages land; and (b) for profit, allows other persons to park motor vehicles on that land for the purpose of offering them for sale and selling them; partner, in relation to a partnership, means – (a) an individual who is a partner in the partnership; or (b) an individual who is not a partner in the partnership but is concerned in the management of the partnership; or (c) if a partner in the partnership is another partnership, an individual who is a partner in, or is concerned in the management of, that other partnership; or (d) if a partner in the partnership is a body corporate, a director or other individual concerned in the management of that body corporate; pre-sale disclosure statement means the pre-sale disclosure statement in respect of a motor vehicle required to be displayed by a licensed motor vehicle trader under section 37 ; purchaser, in relation to a motor vehicle, includes – (a) a person who receives the motor vehicle as part of an exchange arrangement; and (b) a person who is entitled to the use of the motor vehicle if a finance agreement is entered into in respect of the vehicle at the time of its sale; RAV means the Register of Approved Vehicles kept under section 14(1) of the RVSA; RVSA means the Road Vehicle Standards Act 2018 of the Commonwealth; recondition, in relation to an engine, means the process of reconditioning an engine set out in – (a) the definition of "Reconditioned (remanufactured) engine" in "AS 4182-1994: Automotive repairs – Code of practice for reconditioning reciprocating spark ignition engines" published on 21 March 1994 by Standards Australia, as amended or substituted from time to time; or (b) if another standard or other document is prescribed in the regulations for the purposes of this definition, that other standard or other document, as amended or substituted from time to time; registered, in relation to a motor vehicle, means registered under the Vehicle and Traffic Act 1999 ; regulations means regulations made and in force under this Act; repair includes replace and recondition; statutory warranty means the warranty given by a licensed motor vehicle trader to the purchaser of a warrantied vehicle by reason of section 43(2) ; trade-in, in relation to an item, means to transfer ownership of the item from a purchaser of a motor vehicle to a licensed motor vehicle trader who credits the value of the item against the purchase price of the motor vehicle; vehicle category code, in relation to a vehicle, means the code for that type of vehicle specified in the Australian Design Rules; vendor, in relation to a motor vehicle, includes a person who gives the motor vehicle under an exchange arrangement; warrantied vehicle has the meaning given by section 42 . (2) For the avoidance of doubt, a reference in this Act to buying, selling or exchanging a motor vehicle includes a reference to buying, selling or exchanging a motor vehicle on consignment. (3) If – (a) the Commonwealth Department of Environment and Heritage has a name change or ceases to exist; or (b) the production and publication of the Green Vehicle Guide referred to in the definition of "Australian Fuel Consumption Guide" in subsection (1) , or a document that is substituted for that Guide, is assigned to another Commonwealth Department; or (c) the name of that Guide is changed; or (d) the keeping and publication of the Fuel Consumption Guide Database 1986-2003 referred to in the definition of "Australian Fuel Consumption Guide" in subsection (1) is assigned to another Commonwealth Department; or (e) the name of that Database is changed – the Minister, by order, may amend that definition. (4) An order under subsection (3) that amends the definition of "Australian Fuel Consumption Guide" is a statutory rule for the purposes of the Rules Publication Act 1953 . 4. Meaning of "dealing in motor vehicles" (1) A person deals in motor vehicles if – (a) the person carries on, or holds himself or herself out as carrying on, a business of dealing in motor vehicles that is located in this State, or another State or a Territory, that deals in motor vehicles that are located in this State; or (b) the person during the immediately preceding 12-month period buys, sells or exchanges, or offers to buy, sell or exchange, a total of 6 or more motor vehicles located in this State otherwise than as an employee of a licensed motor vehicle trader. (2) For the purposes of subsection (1)(b) , an offer to sell a motor vehicle includes – (a) an invitation to treat in respect of the sale of the vehicle; and (b) the publication of, or the authorisation of the publication of, an advertisement in respect of the sale of the vehicle. (3) Despite subsection (1) , the following persons are not dealing in motor vehicles: (a) a finance provider, or an employee of a finance provider, who buys, sells or exchanges motor vehicles for the purposes of carrying on the business of the finance provider; (b) a person who buys motor vehicles for the purpose of dismantling them; (c) the Crown; (d) a person who auctions motor vehicles on behalf of the persons who own them; (e) a park and sell operator; (f) a person who buys, sells or exchanges motor vehicles as a collector of motor vehicles and those vehicles are intended to form, or formed, part of that person's collection. (4) A person – (a) referred to in subsection (3)(a) may still be dealing in motor vehicles if he or she buys, sells or exchanges motor vehicles otherwise than for the purposes of carrying on the business of finance provider; or (b) referred to in subsection (3)(b) may still be dealing in motor vehicles if he or she buys motor vehicles otherwise than for the purpose of dismantling them; or (c) referred to in subsection (3)(d) may still be dealing in motor vehicles if he or she buys motor vehicles for the purpose of auctioning or onselling them; or (d) referred to in subsection (3)(e) may still be dealing in motor vehicles if he or she buys, sells or exchanges motor vehicles from the land on which he or she, as a park and sell operator, allows other persons to park motor vehicles for the purposes of offering them for sale and selling them; or (e) referred to in subsection (3)(d) may still be dealing in motor vehicles if he or she, as an auctioneer, buys, sells or exchanges motor vehicles otherwise than on behalf of the persons who own them; or (f) referred to in subsection (3)(f) may still be dealing in motor vehicles if he or she buys, sells or exchanges motor vehicles otherwise than as a collector of motor vehicles for the purposes of the collection. 5. Displaying document If a document is required by this Act to be displayed, it must be displayed – (a) in such a way and place that it can be easily seen and read by the intended audience; and (b) in accordance with any prescribed requirements. PART 2 - Licensing of Motor Traders Division 1 - Offences relating to dealing in motor vehicles without licence 6. Offence to deal in motor vehicles without licence (1) A person must not deal in motor vehicles unless the person is a licensed motor vehicle trader. Penalty: In the case of – (a) a body corporate, a fine not exceeding 1 000 penalty units, and a further fine not exceeding 50 penalty units in respect of each motor vehicle bought, sold or exchanged while the body corporate dealt in motor vehicles in contravention of this section; or (b) an individual, a fine not exceeding 200 penalty units, and a further fine not exceeding 20 penalty units in respect of each motor vehicle bought, sold or exchanged while the individual dealt in motor vehicles in contravention of this section. (2) For the purposes of subsection (1) , if one partner in a partnership that carries on the business of dealing in motor vehicles under the name of the firm is a licensed motor vehicle trader, all the other partners are taken to be licensed motor vehicle traders. 6A. Deemed registration as a motor vehicle trader (1) In this section – occupation has the meaning it has in section 4(1) of the Mutual Recognition Act 1992 of the Commonwealth; participating jurisdiction has the meaning it has in section 4(1) of the Mutual Recognition Act 1992 of the Commonwealth. (2) A person who intends to carry on a business of dealing in motor vehicles in the State by virtue of holding deemed registration must notify the Director of the person's entitlement to hold deemed registration before carrying on the business. Penalty: Fine not exceeding 10 penalty units. (3) A notification under subsection (2) – (a) must be in a manner approved by the Director; and (b) must be in a form approved by the Director; and (c) is to contain any information that the Director considers necessary. (4) If there is a change in the information provided in a notification to the Director under subsection (2) , the person referred to in that subsection must, as soon as is practicable, in a form approved by the Director, notify the Director of the change. Penalty: Fine not exceeding 10 penalty units. (5) A person who holds a motor vehicle trader licence by virtue of holding deemed registration must not carry on work as a motor vehicle trader in this State unless the work is within the scope of the work that the person is authorised to carry on for that occupation in the relevant participating jurisdiction. Penalty: Fine not exceeding 10 penalty units. (6) If a person is found guilty of an offence against subsection (2) , (4) or (5) , the Director may – (a) suspend or cancel the deemed registration held by the motor vehicle trader; and (b) disqualify the person from holding deemed registration as a motor vehicle trader for a specified period or until the person fulfils a specified condition. Division 2 - Fit and proper person to hold a motor vehicle trader licence 6B. Application of Division This Division does not apply to a person who holds a motor vehicle trader licence by virtue of holding deemed registration. 7. Who is a fit and proper person to hold motor vehicle trader licence (1) A person is not a fit and proper person to hold a motor vehicle trader licence if – (a) in the case of – (i) an individual, the individual has not attained 18 years of age; or (ii) a body corporate, the chief executive officer of the body corporate has not attained 18 years of age; or (b) the person, within the immediately preceding 5 years – (i) has been convicted of an offence involving theft, fraud or other dishonesty that is punishable by a term of imprisonment of 3 years or more; or (ii) has completed serving a term of imprisonment for such an offence; or (c) the person is subject to a restriction order under the Sentencing Act 1997 or the Criminal Justice (Mental Impairment) Act 1999 or a similar order made under the law of another jurisdiction in Australia or elsewhere; or (d) the person – (i) is a represented person within the meaning of the Guardianship and Administration Act 1995 ; or (ii) is the subject of an order or other determination made under the law of another jurisdiction in Australia or elsewhere that is similar in effect to an order under section 20 , 51 or 65 of the Guardianship and Administration Act 1995 ; or (e) the person – (i) is bankrupt, has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, has compounded with creditors or made an assignment of remuneration or estate for the benefit of creditors; or (ii) is an externally administered body corporate within the meaning of the Corporations Act; or (f) the person is a partner in a business partnership where another partner is not a fit and proper person to hold a motor vehicle trader licence; or (g) the person is a chief executive officer or director of a body corporate that – (i) is not a fit and proper person to hold a motor vehicle trader licence; or (ii) has as chief executive officer or director a person who is not a fit and proper person to hold a motor vehicle trader licence; or (h) the person is a person of a prescribed class; or (i) the Director otherwise determines that the person is not a fit and proper person to hold a motor vehicle trader licence. (2) For the purposes of subsection (1)(b)(ii) , a person who, after serving part of a term of imprisonment to which he or she has been sentenced, is released on parole is taken to be still serving the term of imprisonment while on parole. (3) In determining, for the purposes of subsection (1)(i) , whether or not a person is a fit and proper person to hold a motor vehicle trader licence, the Director is to have regard to – (a) whether the person, within the immediately preceding 3 years, has – (i) in Tasmania, been refused a motor vehicle trader licence or had a motor vehicle trader licence cancelled; or (ii) in another jurisdiction in Australia or elsewhere, been refused a licence or other authority that would authorise the person to deal in motor vehicles, or had such a licence or other authority suspended or cancelled; or (b) whether the person, within the immediately preceding 5 years, has been convicted of an offence against – (i) this Act; or (ii) the Consumer Affairs Act 1988 ; or (iii) the Fair Trading Act 1990 ; or (iv) the Australian Consumer Law (Tasmania) Act 2010 ; or (v) the Trade Practices Act 1974 of the Commonwealth; or (c) in the case of an individual, whether the person – (i) within the immediately preceding 5 years, has been declared bankrupt; or (ii) was a director or chief executive officer of a body corporate at a time, within the immediately preceding 5 years, when the body corporate became subject to external administration under the Corporations Act; or (iii) was a partner in a partnership at a time, within the immediately preceding 5 years, when in relation to the partnership business a partner assigned any of his or her remuneration or estate, or any of his or her property or the property of the partnership, for the benefit of the creditors of the partnership business; or (d) any other matter the Director considers relevant. 8. Police report for determination of fit and proper person to hold motor vehicle trader licence (1) In an investigation involving a determination as to whether or not an applicant for a motor vehicle trader licence or a licensed motor vehicle trader is a fit and proper person to hold or to continue to hold a motor vehicle trader licence, the Director may require the applicant or licensed motor vehicle trader to authorise the Director to obtain reports from – (a) the Commissioner of Police in respect of convictions and proceedings taken against the applicant or licensed motor vehicle trader in this State; and (b) a person holding an office in another State or a Territory that corresponds to the office of Commissioner of Police in this State in respect of convictions and proceedings taken against the applicant or licensed motor vehicle trader in that other State or that Territory. (2) For the purposes of the investigation, the Director may refer to the Commissioner of Police – (a) the name of the applicant for the motor vehicle trader licence or the name of the licensed motor vehicle trader; and (b) any information and documentation that the Director considers relevant to the investigation. (3) The Commissioner of Police must inquire into, and report to the Director on, any matters concerning the applicant or licensed motor vehicle trader that the Director requests. (4) In this section, a reference to an applicant or a licensed motor vehicle trader includes – (a) in the case of an applicant or licensed motor vehicle trader that is a partner in a partnership that intends to, or does, deal in motor vehicles, a reference to each partner in the partnership; and (b) in the case of an applicant or licensed motor vehicle trader that is a body corporate, a reference to the chief executive officer and each director of the body corporate. Division 3 - Application for motor vehicle trader licence 8A. Application of Division This Division does not apply to a person who holds a motor vehicle trader licence by virtue of holding deemed registration. 9. Application (1) An individual or body corporate may apply to the Director for a motor vehicle trader licence. (2) An application must – (a) be in a form approved by the Director; and (b) include any details required by the Director; and (c) be accompanied by the prescribed documents, or relevant documents of the prescribed class, relating to the identity of the applicant; and (d) be accompanied by – (i) a statement relating to the applicant's record of offences in Tasmania issued by the Commissioner of Police; and (ii) a statement relating to the applicant's record of offences in any other place issued by a person holding an office in another State or a Territory that corresponds to the office of Commissioner of Police in this State; and (e) be accompanied by any consent by any person to the disclosure of information as the Director considers relevant for the purposes of investigating the application; and (f) if the applicant is an individual, be accompanied by a statement that shows whether or not that person is subject to the Bankruptcy Act 1966 of the Commonwealth obtained by a search of the National Personal Insolvency Index maintained by the Insolvency and Trustee Service, Australia; and (g) if the applicant is a body corporate, be accompanied by a statement, provided by the applicant, that the applicant is not an externally-administered body corporate within the meaning of the Corporations Act; and (h) be accompanied by any prescribed application fee. (3) On receipt of an application, the Director by written notice may require the applicant to provide further documents or information, or further consents of the kind referred to in subsection (2)(e) , within the period specified in the notice. (4) In this section, a reference to an applicant includes – (a) in the case of an applicant that is a partner in a partnership that intends to deal in motor vehicles, a reference to each partner in the partnership; and (b) in the case of an applicant that is a body corporate, a reference to the chief executive officer and each director of the body corporate. 10. Notifying change in application details If before an application for a motor vehicle trader licence is determined a material change occurs in respect of any details, documents, information or consents provided under section 9 in, or in respect of, the application, the applicant must notify the Director in writing of that change as soon as practicable. Penalty: Fine not exceeding 20 penalty units. 11. Investigation of application and applicant (1) On receipt of an application for a motor vehicle trader licence, the Director may investigate the application and applicant as he or she considers appropriate. (2) In this section, a reference to an applicant includes – (a) in the case of an applicant that is a partner in a partnership that intends to deal in motor vehicles, a reference to each partner in the partnership; and (b) in the case of an applicant that is a body corporate, a reference to the chief executive officer and each director of the body corporate. 12. Providing information to certain State Service officers On receipt of an application for a motor vehicle trader licence, the Director may provide any details of the application that the Director considers relevant to – (a) the Commissioner of State Revenue; and (b) the Secretary of the department responsible for the administration of the Transport Act 1981 . Division 4 - Grant, issue and terms of motor vehicle trader licence, &c. 12A. Application of Division Sections 13 , 14 , 18 and 19 do not apply to a person who holds a motor vehicle trader licence by virtue of holding deemed registration. 13. Determination of application (1) On receipt of an application for a motor vehicle trader licence under section 9 , the Director is to – (a) grant the application if the Director – (i) is satisfied that the applicant is a fit and proper person to hold a motor vehicle trader licence; and (ii) has no reasonable grounds for believing that the applicant has contravened section 10 or provided false or misleading information in the application; or (b) refuse to grant the application if the Director – (i) is not so satisfied; or (ii) does have reasonable grounds for such a belief. (2) On refusing to grant an application for a motor vehicle trader licence, the Director is to notify the applicant in writing of that refusal and the reason why the Director is not satisfied that the applicant is a fit and proper person to hold a motor vehicle trader licence. 14. Issue of motor vehicle trader licence (1) If the Director grants an application for a motor vehicle trader licence, he or she is to issue a motor vehicle trader licence to the applicant on payment of any prescribed licence fee. (2) A motor vehicle trader licence is to be in a form approved by the Director. (3) A motor vehicle trader licence takes effect on the day it is issued or a later day specified in it. 15. Authority of motor vehicle trader licence A motor vehicle trader licence authorises the person to whom it is issued to deal in motor vehicles. 16. Duration of motor vehicle trader licence (1) A motor vehicle trader licence issued and in force in accordance with section 14 has effect for the period of 3 years from the day on which it takes effect. (2) A motor vehicle trader licence held by virtue of holding deemed registration is valid for the period in respect of which the automatic deemed registration is in force. 17. Motor vehicle trader licence not transferable A motor vehicle trader licence is not transferable to any other person. 18. Renewal of motor vehicle trader licence (1) In this section – expiry day means the day on which a motor vehicle trader licence would expire if no application for its renewal were made. (2) Not less than 3 months before the expiry day of a motor vehicle trader licence, the licensed motor vehicle trader may apply to the Director for a renewal of the licence. (3) If the Director considers it appropriate to do so, the Director may allow a licensed motor vehicle trader to apply for the renewal of the motor vehicle trader licence within the 3-month period specified in subsection (2) but before the day determined by the Director. (4) Divisions 2 and 3 of this Part and this Division apply in relation to an application for the renewal of a motor vehicle trader licence, and its renewal, with necessary adaptation and modification. (5) Despite subsection (4) , the regulations – (a) may provide that a section, or part of a section, referred to in that subsection does not apply in relation to an application for the renewal