ACT Numbered Regulations - Explanatory Statements ACT Numbered Regulations - Explanatory Statements[Index] [Search] [Download] [Related Items] [Help]
TRADERS (LICENSING) REGULATION 2017 (NO 21 OF 2017)
Traders (Licensing) Regulation 2017
Subordinate law SL2017–21
made under the
Traders (Licensing) Act 2016
EXPLANATORY
STATEMENT
The Traders (Licensing) Act 2016 allows for a modern, streamlined
licensing framework that provides flexibility to licensees, and is compatible
with a digital licensing process to be developed for the issue, maintenance and
transfer of fair trading licences. It consolidates and standardises licensing
provisions under the Sale of Motor Vehicles Act 1977; Fair Trading
(Motor Vehicle Repair Industry) Act 2010; Second-hand Dealers Act
1906; and Pawnbrokers Act 1902 into a single licensing Act.
The Sale of Motor Vehicles Act 1977; Fair Trading (Motor
Vehicle Repair Industry) Act 2010; Second-hand Dealers Act 1906; and
Pawnbrokers Act 1902 remain, minus the provisions related to licensing,
and are referred to as Operational Acts in the Traders (Licensing) Act
2016 and this Regulation. The Operational Acts are designed to regulate the
day-to-day running of a business licensed under the Traders (Licensing) Act
2016.
The object of the regulation is to make regulations under the
Traders (Licensing) Act 2016 with respect to prescribing the following
matters:
• licence eligibility requirements;
• information
that must be considered by the Commissioner of Fair Trading when deciding on the
suitability of an applicant;
• licence conditions relating to the
provision by a licensee of certain new information; and
• the trader categories are able to be transferred.
The regulation
is made under the Traders (Licensing) Act 2016 including sections 17, 18,
20, 24, and 53 (the general regulation-making power).
There are no human
rights implications associated with this regulation.
CLAUSE
NOTES
PART 1 Preliminary
Clause 1 Name of
regulation
This clause provides for the name of the regulation as the
Traders (Licensing) Regulation 2017.
Clause 2
Commencement
The regulation will commence on the commencement of the
Traders (Licensing) Act 2016.
Clause 3 Dictionary
This
clause explains that the dictionary at the end of the regulation is part of the
substantive provisions of the regulations.
Clause 4 Notes
This
clause makes it clear that the notes in the regulation are explanatory only and
do not form part of the substantive provisions of the
regulation.
PART 2 Eligibility of entity
Clause
5 Eligibility requirement – Act, s17 (1)
This clause sets out
eligibility requirements for licence applicants. This applies to individuals,
partnerships, corporations and association. These are all defined as
‘entities’. In the case of corporations and partnerships, the
requirements apply to each relevant person of the entity. ‘Relevant
person’ is defined in the Traders (Licensing) Act
2016.
PART 3 Suitability of entity
Clause 6 Meaning
of insolvent – pt 3
This clause provides the definition for
the term ‘insolvent’ used in the regulation.
Clause
7 Suitability Information – Act, s 18 (a) (i)
This clause
prescribes certain information that the Commissioner for Fair Trading must
consider when determining an entity’s suitability for a Traders Licence.
If this information is applicable to an entity, then this information must be
provided on application. This clause also allows the Commissioner to enquire
about and access this information in relation to an entity for the purposes of
considering their suitability to be issued a licence.
This clause
largely replaces previous provisions in the Operational Acts dealing with
disqualifying offences and eligibility criteria. The prescribed information must
be considered when determining suitability, but is not by itself an automatic
barrier to being granted a licence as has previously often been the case. This
allows a flexible risk-based approach to determining suitability without
undermining the power of the Commissioner to refuse a licence on appropriate
grounds.
Clause 8 Suitability Information – entity in certain
trader categories – Act, s 18 (a) (i)
This clause prescribes
suitability information that must be provided by an entity in relation to
applications for motor vehicle dealer and motor vehicle repairer trader
categories. It is in addition to clause 7 for the trader categories specified.
These relate to risk factors associated with the financial viability of the
entity’s proposed business operation. These trader categories have this
greater level of scrutiny as car sales constitute a greater risk of serious
financial loss to a consumer should the business fail or otherwise not be able
to meet its financial obligations to its customers.
PART 4 Licence
Conditions – Act, s 20 (1) (c)
Clause 9 Notification of
certain new information
This clause makes it a condition of a licence
that the licensee informs the Commissioner within ten business days of certain
changes to the contact details or corporate structure of the licensed entity, or
information relevant to the continued suitability of the entity to hold a
licence. Failure to provide this information is taken to be a breach of a
licence condition and is an offence under section 47 of the Act.
PART
5 Licensing and licence management
Clause 10 Transferable
licences – Act, s 24 (1)
This clause lists the trader categories
that may be transferred from a licensed entity to another entity after an
application is made under section 24 of the Act and approved by the Commissioner
under section 25 of the Act.
Clause 11 Notification of application in
certain trader categories
This clause prescribes that public notice must
be given within seven days of an entity making an application for a licence, or
for a licence transfer, of a car market operator, motor vehicle dealer, or motor
vehicle wholesaler licence. This requirement is unchanged from the previous
requirement under the Sale of Motor Vehicles Act 1977 and seeks to ensure
a level of community consultation regarding the suitability of the proposed
licensee and of the proposed premises.
PART 6 Motor vehicle repairer
licences
Clause 12 Definitions – pt 6
Clause 13
Motor vehicle repairer – equipment, materials and skill for carrying out
work
Clause 14 Motor vehicle repairer – agreement for
repairs
Clause 15 Motor vehicle repairer – additional
repairs
Clause 16 Motor vehicle repairer – time to carry out
work
Clause 17 Motor vehicle repairer – replaced
parts
Clause 18 Motor vehicle repairer – information
sheet
Clause 19 Motor vehicle repairer – warranties and
guarantees
These clauses are brought over from the Fair Trading (Motor
Vehicle Repair Industry) Act 2010. They outline specific requirements of
licences in the motor vehicle repair work category.