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


FAIR TRADING INSPECTORS BILL 2011

           Queensland



Fair Trading Inspectors
Bill 2011

 


 

 

Queensland Fair Trading Inspectors Bill 2011 Contents Page Chapter 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4 Operation of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5 Modifying operation of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 6 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Chapter 2 Inspectors Part 1 General matters about inspectors Division 1 Functions 7 Functions of inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Division 2 Appointment 8 Appointment and qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . 15 9 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . 15 10 When office ends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 11 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Division 3 Identity cards 12 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 13 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . 17 14 Return of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Division 4 Miscellaneous provisions 15 References to exercise of powers . . . . . . . . . . . . . . . . . . . . . . . . 17 16 Reference to document includes reference to reproductions from electronic document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Part 2 Entry to places by inspectors Division 1 Power to enter 17 General power to enter places . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

 


 

Fair Trading Inspectors Bill 2011 Contents Division 2 Entry by consent 18 Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 19 Incidental entry to ask for access . . . . . . . . . . . . . . . . . . . . . . . . . 20 20 Matters inspector must tell occupier . . . . . . . . . . . . . . . . . . . . . . . 20 21 Consent acknowledgement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Division 3 Entry under warrant Subdivision 1 Obtaining warrant 22 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 23 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 24 Electronic application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 25 Additional procedure if electronic application . . . . . . . . . . . . . . . . 24 26 Defect in relation to a warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Subdivision 2 Entry procedure 27 Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Part 3 Other inspectors' powers and related matters Division 1 Stopping or moving vehicles 28 Application of div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 29 Power to stop or move . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 30 Identification requirements if vehicle moving . . . . . . . . . . . . . . . . 27 31 Failure to comply with direction . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Division 2 General powers after entering places 32 Application of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 33 General powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 34 Power to require reasonable help. . . . . . . . . . . . . . . . . . . . . . . . . 30 35 Offence to contravene help requirement . . . . . . . . . . . . . . . . . . . 31 Division 3 Seizure and forfeiture Subdivision 1 Power to seize 36 Seizing evidence at a place that may be entered without consent or warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 37 Seizing evidence at a place that may be entered only with consent or warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 38 Seizure of property subject to security . . . . . . . . . . . . . . . . . . . . . 32 Subdivision 2 Powers to support seizure 39 Requirement of person in control of thing to be seized . . . . . . . . 33 40 Offence to contravene seizure requirement . . . . . . . . . . . . . . . . . 33 41 Power to secure seized thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Page 2

 


 

Fair Trading Inspectors Bill 2011 Contents 42 Offence to contravene other seizure requirement . . . . . . . . . . . . 34 43 Offence to interfere. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Subdivision 3 Safeguards for seized things 44 Receipt and information notice for seized thing . . . . . . . . . . . . . . 35 45 Access to seized thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 46 Return of seized thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Subdivision 4 Forfeiture 47 Forfeiture by chief executive decision. . . . . . . . . . . . . . . . . . . . . . 37 48 Information notice about forfeiture decision . . . . . . . . . . . . . . . . . 38 49 Dealing with forfeited things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 50 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 51 Procedure and powers for making forfeiture order . . . . . . . . . . . . 39 Subdivision 5 Dealing with property forfeited or transferred to State 52 When thing becomes property of the State . . . . . . . . . . . . . . . . . 40 53 How property may be dealt with . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Division 4 Disposal orders 54 Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Division 5 Other information-obtaining powers 55 Power to require name and address. . . . . . . . . . . . . . . . . . . . . . . 41 56 Offence to contravene personal details requirement . . . . . . . . . . 42 57 Power to require production of document. . . . . . . . . . . . . . . . . . . 43 58 Offence to contravene document production requirement . . . . . . 44 59 Offence to contravene document certification . . . . . . . . . . . . . . . 44 60 Power to require information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 61 Offence to contravene information requirement . . . . . . . . . . . . . . 46 Part 4 Obtaining criminal history reports 62 Purpose of pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 63 Chief executive's power to obtain criminal history report . . . . . . . 46 64 Criminal history is confidential document . . . . . . . . . . . . . . . . . . . 47 Part 5 Miscellaneous provisions Division 1 Damage 65 Duty to avoid inconvenience and minimise damage. . . . . . . . . . . 48 66 Notice of damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Division 2 Compensation 67 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Page 3

 


 

Fair Trading Inspectors Bill 2011 Contents Division 3 Other offences relating to inspectors 68 Giving inspector false or misleading information . . . . . . . . . . . . . 50 69 Obstructing inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 70 Impersonating inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Division 4 Other provisions 71 Evidential immunity for individuals complying with particular requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Chapter 3 Appeals, evidence and legal proceedings Part 1 Reviews and appeals Division 1 Right of appeal 72 Right of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Division 2 Internal review of decisions 73 Appeal process starts with internal review . . . . . . . . . . . . . . . . . . 53 74 How to apply for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 75 Stay of operation of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 76 Review decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Division 3 Appeals 77 Who may appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 78 Procedure for an appeal to the court . . . . . . . . . . . . . . . . . . . . . . 55 79 Stay of operation of review decision . . . . . . . . . . . . . . . . . . . . . . . 56 80 Powers of court on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 81 Effect of decision of court on appeal . . . . . . . . . . . . . . . . . . . . . . 57 Part 2 Evidence and legal proceedings Division 1 Evidentiary provisions 82 Application of div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 83 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 84 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 85 Other evidentiary aids . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Division 2 Offence proceedings 86 Offences under Act are summary. . . . . . . . . . . . . . . . . . . . . . . . . 58 87 Statement of complainant's knowledge . . . . . . . . . . . . . . . . . . . . 59 Chapter 4 Miscellaneous provisions 88 Supervision by inspector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 89 Reasonable excuse defences. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 90 Protection from liability for particular persons . . . . . . . . . . . . . . . 59 91 Delegation by chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Page 4

 


 

Fair Trading Inspectors Bill 2011 Contents 92 Confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 93 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 94 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Chapter 5 Transitional provisions Part 1 Purposes, definitions and general approach 95 Main purposes of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 96 Definitions for ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 97 Document, action, obligation or protection under previous provision of primary Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 98 Terminology in things mentioned in s 97(1) . . . . . . . . . . . . . . . . . 63 99 Period stated in previous provision. . . . . . . . . . . . . . . . . . . . . . . . 64 100 Period or date stated in document given under previous provision ..................................... 64 101 Action happening before commencement may be relevant to proceeding for particular acts or omissions . . . . . . . . . . . . . . . . . 65 102 Acts Interpretation Act 1954, s 20 not limited. . . . . . . . . . . . . . . . 65 Part 2 Transitional provisions relating to particular provisions of primary Acts Division 1 Examples for chapter 2 103 Examples for ch 2 of documents under s 97 . . . . . . . . . . . . . . . . 66 104 Examples for ch 2 of obligations under s 97. . . . . . . . . . . . . . . . . 67 105 Examples for ch 2 of protections under s 97 . . . . . . . . . . . . . . . . 69 Division 2 General matters 106 Existing authorised officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 107 Existing inspectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 108 Reviews and appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 109 References in Acts and documents . . . . . . . . . . . . . . . . . . . . . . . 71 Chapter 6 Amendment of Acts Part 1 Amendment of Funeral Benefit Business Act 1982 110 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 111 Insertion of new s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 3 Relationship with Fair Trading Inspectors Act 2011 . 71 112 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 71 113 Replacement of pt 2, hdg (Appointment of officers) . . . . . . . . . . . 72 114 Omission of ss 6B-6D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 115 Amendment of s 52 (Cancellation of registration by QCAT) . . . . . 72 116 Replacement of s 81 (Powers of inspectors) . . . . . . . . . . . . . . . . 72 Page 5

 


 

Fair Trading Inspectors Bill 2011 Contents Division 1 Forfeiture and disposal orders 81 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 73 81A Procedure and powers for making forfeiture order . . . 73 81B When thing becomes property of the State . . . . . . . . 73 81C How property may be dealt with . . . . . . . . . . . . . . . . . 74 81D Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 117 Insertion of new pt 8, div 3, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Part 2 Amendment of Introduction Agents Act 2001 118 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 119 Insertion of new s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 4A Relationship with Fair Trading Inspectors Act 2011 . 75 120 Amendment of pt 2, div 1, hdg (Definitions and notes) . . . . . . . . 76 121 Omission of s 6 (Notes in text) . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 122 Replacement of pt 6 (Enforcement) . . . . . . . . . . . . . . . . . . . . . . . 76 Part 6 Forfeiture and disposal orders 61 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 76 62 Procedure and powers for making forfeiture order . . . 77 63 When thing becomes property of the State . . . . . . . . 77 64 How property may be dealt with . . . . . . . . . . . . . . . . . 77 65 Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 123 Amendment of s 91 (Evidence) . . . . . . . . . . . . . . . . . . . . . . . . . . 78 124 Amendment of s 96 (Protecting officials from liability) . . . . . . . . . 79 125 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 79 Part 3 Amendment of Land Sales Act 1984 126 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 127 Insertion of new s 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 5A Relationship with Fair Trading Inspectors Act 2011 . 80 128 Amendment of s 6 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 80 129 Replacement of pt 3A (Enforcement) . . . . . . . . . . . . . . . . . . . . . . 80 Part 3A Forfeiture and disposal orders 30 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 80 30A Procedure and powers for making forfeiture order . . . 81 30B When thing becomes property of the State . . . . . . . . 81 30C How property may be dealt with . . . . . . . . . . . . . . . . . 81 30D Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Page 6

 


 

Fair Trading Inspectors Bill 2011 Contents Part 4 Amendment of Manufactured Homes (Residential Parks) Act 2003 130 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 131 Amendment of pt 1, div 2, hdg (Objects) . . . . . . . . . . . . . . . . . . . 83 132 Insertion of new s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 4A Relationship with Fair Trading Inspectors Act 2011 . 83 133 Replacement of pts 16 and 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Part 16 Forfeiture and disposal orders 104 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 84 105 Procedure and powers for making forfeiture order . . . 84 106 When thing becomes property of the State . . . . . . . . 84 107 How property may be dealt with . . . . . . . . . . . . . . . . . 85 108 Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 134 Amendment of s 134 (Appointments and authority) . . . . . . . . . . . 86 135 Amendment of s 143 (Protection from liability). . . . . . . . . . . . . . . 86 136 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 86 Part 5 Amendment of Residential Services (Accreditation) Act 2002 137 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 138 Insertion of new s 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 2A Relationship with Fair Trading Inspectors Act 2011 . 87 139 Replacement of pt 8 (Investigation and enforcement) . . . . . . . . . 88 Part 8 Forfeiture and disposal orders 105 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 88 106 Procedure and powers for making forfeiture order . . . 88 107 When thing becomes property of the State . . . . . . . . 89 108 How property may be dealt with . . . . . . . . . . . . . . . . . 89 109 Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 110 Procedure and powers for making disposal order . . . 90 140 Relocation and renumbering of s 139 (Alteration of certificates) . 90 141 Amendment of s 165 (Appointments and authority) . . . . . . . . . . . 91 142 Amendment of s 166 (Signatures) . . . . . . . . . . . . . . . . . . . . . . . . 91 143 Amendment of s 167 (Other evidentiary aids) . . . . . . . . . . . . . . . 91 144 Amendment of s 180 (Confidentiality) . . . . . . . . . . . . . . . . . . . . . 91 145 Amendment of s 182 (Protection from liability). . . . . . . . . . . . . . . 91 146 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 92 Page 7

 


 

Fair Trading Inspectors Bill 2011 Contents Part 6 Amendment of Retirement Villages Act 1999 147 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 148 Amendment of pt 1, div 2, hdg (Objects) . . . . . . . . . . . . . . . . . . . 92 149 Insertion of new s 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 3A Relationship with Fair Trading Inspectors Act 2011 . 92 150 Replacement of pt 8 (Enforcement) . . . . . . . . . . . . . . . . . . . . . . . 93 Part 8 Forfeiture and disposal orders 134 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 93 135 Procedure and powers for making forfeiture order . . . 93 136 When thing becomes property of the State . . . . . . . . 94 137 How property may be dealt with . . . . . . . . . . . . . . . . . 94 138 Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 151 Amendment of s 220 (Appointments and authority) . . . . . . . . . . . 95 152 Amendment of s 221 (Evidentiary provisions) . . . . . . . . . . . . . . . 95 153 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 96 Part 7 Amendment of Second-hand Dealers and Pawnbrokers Act 2003 154 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 155 Insertion of new s 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 3A Relationship with Fair Trading Inspectors Act 2011 . 96 156 Replacement of pt 5 (Enforcement) . . . . . . . . . . . . . . . . . . . . . . . 96 Part 5 Forfeiture and disposal orders 75 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 97 76 Procedure and powers for making forfeiture order . . . 97 77 When thing becomes property of the State . . . . . . . . 97 78 How property may be dealt with . . . . . . . . . . . . . . . . . 98 79 Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 157 Amendment of s 96 (False or misleading information) . . . . . . . . . 99 158 Omission of s 97 (Obstruction of authorised officers) . . . . . . . . . 99 159 Amendment of s 103 (Authorised officer may prosecute) . . . . . . 99 160 Amendment of s 104 (Evidence) . . . . . . . . . . . . . . . . . . . . . . . . . 99 161 Amendment of s 113 (Officials not civilly liable) . . . . . . . . . . . . . . 100 162 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 100 Part 8 Amendment of Security Providers Act 1993 163 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 164 Insertion of new s 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Page 8

 


 

Fair Trading Inspectors Bill 2011 Contents 2A Relationship with Fair Trading Inspectors Act 2011 . 101 165 Replacement of s 25A (Production of licence) . . . . . . . . . . . . . . . 101 25A Production of licence . . . . . . . . . . . . . . . . . . . . . . . . . 101 166 Replacement of pt 3 (Inspectors) . . . . . . . . . . . . . . . . . . . . . . . . . 101 Part 3 Forfeiture and disposal orders 32 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 102 33 Procedure and powers for making forfeiture order . . . 102 34 When thing becomes property of the State . . . . . . . . 102 35 How property may be dealt with . . . . . . . . . . . . . . . . . 103 36 Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 167 Amendment, relocation and renumbering of s 44 (False or misleading documents) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 168 Amendment of s 48 (Confidentiality of information) . . . . . . . . . . . 104 169 Replacement of s 49 (Protection from liability) . . . . . . . . . . . . . . . 104 49 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . 104 170 Amendment of s 51 (Evidentiary provisions) . . . . . . . . . . . . . . . . 105 171 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 105 Part 9 Amendment of Tourism Services Act 2003 172 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 173 Insertion of new s 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 6A Relationship with Fair Trading Inspectors Act 2011 . 106 174 Amendment of s 13 (Suitability for registration) . . . . . . . . . . . . . . 106 175 Replacement of pt 6 (Investigation and enforcement) . . . . . . . . . 106 Part 6 Forfeiture and disposal orders 39 Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 107 40 Procedure and powers for making forfeiture order . . . 107 41 When thing becomes property of the State . . . . . . . . 107 42 How property may be dealt with . . . . . . . . . . . . . . . . . 108 43 Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 176 Amendment of s 85 (Review by tribunal) . . . . . . . . . . . . . . . . . . . 109 177 Amendment of s 88 (Evidence) . . . . . . . . . . . . . . . . . . . . . . . . . . 109 178 Amendment of s 95 (Protecting officials from liability) . . . . . . . . . 109 179 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 109 Part 10 Amendment of Travel Agents Act 1988 180 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 181 Insertion of new s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Page 9

 


 

Fair Trading Inspectors Bill 2011 Contents 4 Relationship with Fair Trading Inspectors Act 2011 . 110 182 Amendment of s 6 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 110 183 Insertion of new ss 43A-43E . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 43A Forfeiture on conviction . . . . . . . . . . . . . . . . . . . . . . . 111 43B Procedure and powers for making forfeiture order . . . 111 43C When thing becomes property of the State . . . . . . . . 112 43D How property may be dealt with . . . . . . . . . . . . . . . . . 112 43E Disposal order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 184 Omission of ss 45-45J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 185 Omission of s 47 (Investigations) . . . . . . . . . . . . . . . . . . . . . . . . . 113 186 Amendment of s 50 (False or misleading information or documents) .................................. 113 187 Replacement of s 54 (Proceedings for offences) . . . . . . . . . . . . . 114 54 Offences under Act are summary. . . . . . . . . . . . . . . . 114 188 Amendment of s 56 (Evidence) . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Schedule 1 Modifying provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Manufactured Homes (Residential Parks) Act 2003. . . . . . . . . . . 115 Residential Services (Accreditation) Act 2002 . . . . . . . . . . . . . . . 115 Retirement Villages Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Tourism Services Act 2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Travel Agents Act 1988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Schedule 2 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Page 10

 


 

2011 A Bill for An Act to provide for the powers of inspectors under legislation about fair trading, and to make consequential amendments, and other amendments for particular purposes, of the Funeral Benefit Business Act 1982, Introduction Agents Act 2001, Land Sales Act 1984, Manufactured Homes (Residential Parks) Act 2003, Residential Services (Accreditation) Act 2002, Retirement Villages Act 1999, Second-hand Dealers and Pawnbrokers Act 2003, Security Providers Act 1993, Tourism Services Act 2003 and Travel Agents Act 1988

 


 

Fair Trading Inspectors Bill 2011 Chapter 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Chapter 1 Preliminary 2 1 Short title 3 This Act may be cited as the Fair Trading Inspectors 4 Act 2011. 5 2 Commencement 6 This Act commences on a day to be fixed by proclamation. 7 3 Act binds all persons 8 (1) This Act binds all persons, including the State, and, so far as 9 the legislative power of the Parliament permits, the 10 Commonwealth and the other States. 11 (2) Nothing in this Act makes the State, the Commonwealth or 12 another State liable to be prosecuted for an offence. 13 4 Operation of Act 14 (1) This Act enacts common provisions for the following Acts 15 (each a primary Act)-- 16 (a) Funeral Benefit Business Act 1982; 17 (b) Introduction Agents Act 2001; 18 (c) Land Sales Act 1984; 19 (d) Manufactured Homes (Residential Parks) Act 2003; 20 (e) Residential Services (Accreditation) Act 2002; 21 (f) Retirement Villages Act 1999; 22 (g) Second-hand Dealers and Pawnbrokers Act 2003; 23 Page 12

 


 

Fair Trading Inspectors Bill 2011 Chapter 1 Preliminary [s 5] (h) Security Providers Act 1993; 1 (i) Tourism Services Act 2003; 2 (j) Travel Agents Act 1988. 3 (2) The common provisions mostly concern-- 4 (a) the appointment and powers of inspectors for primary 5 Acts; and 6 (b) the procedures relating to the exercise of the powers. 7 5 Modifying operation of Act 8 (1) The common provisions are modified, for the following 9 primary Acts, by the provisions (the modifying provisions) 10 stated in schedule 1 for the primary Act-- 11 (a) Manufactured Homes (Residential Parks) Act 2003; 12 (b) Residential Services (Accreditation) Act 2002; 13 (c) Retirement Villages Act 1999; 14 (d) Tourism Services Act 2003; 15 (e) Travel Agents Act 1988. 16 (2) A word defined in a primary Act and used in a modifying 17 provision for that Act has the same meaning in the modifying 18 provision as it has in the primary Act. 19 6 Definitions 20 The dictionary in schedule 2 defines particular words used in 21 this Act. 22 Page 13

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 1 General matters about inspectors [s 7] Chapter 2 Inspectors 1 Part 1 General matters about 2 inspectors 3 Division 1 Functions 4 7 Functions of inspectors 5 (1) For this Act or a primary Act, an inspector has the following 6 functions-- 7 (a) to investigate, monitor and enforce compliance with this 8 Act or the primary Act; 9 (b) to investigate or monitor whether an occasion has arisen 10 for the exercise of powers under this Act or the primary 11 Act; 12 (c) to facilitate the exercise of powers under this Act or the 13 primary Act. 14 (2) Subject to this Act, an inspector may exercise the powers 15 under this Act for the purpose of these functions. 16 (3) Subject to the modifying provisions for a primary Act and any 17 provisions of the primary Act, the functions are in addition to 18 and do not limit any functions the inspector has under the 19 primary Act. 20 (4) It is unnecessary for the inspector to hold a separate 21 appointment for this Act. 22 Page 14

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 1 General matters about inspectors [s 8] Division 2 Appointment 1 8 Appointment and qualifications 2 (1) The chief executive may, by instrument in writing, appoint 3 any of the following persons as an inspector for a primary 4 Act-- 5 (a) a public service employee; 6 (b) a person prescribed by the primary Act; 7 (c) a person prescribed under a regulation. 8 (2) However, the chief executive may appoint a person as an 9 inspector only if the chief executive is satisfied the person is 10 qualified for appointment because the person has the 11 necessary expertise or experience. 12 (3) The instrument must state the primary Act for which the 13 person is appointed as an inspector. 14 (4) A person may be appointed as an inspector for more than 1 15 primary Act. 16 9 Appointment conditions and limit on powers 17 (1) An inspector holds office on any conditions stated in-- 18 (a) the inspector's instrument of appointment; or 19 (b) a signed notice given to the inspector; or 20 (c) a regulation. 21 (2) The instrument of appointment, a signed notice given to the 22 inspector or a regulation may limit the inspector's powers. 23 (3) In this section-- 24 signed notice means a notice signed by the chief executive. 25 Page 15

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 1 General matters about inspectors [s 10] 10 When office ends 1 (1) The office of a person as an inspector ends if any of the 2 following happens-- 3 (a) the term of office stated in a condition of office ends; 4 (b) under another condition of office, the office ends; 5 (c) the inspector's resignation under section 11 takes effect. 6 (2) Subsection (1) does not limit the ways the office of a person as 7 an inspector ends. 8 (3) In this section-- 9 condition of office means a condition under which the 10 inspector holds office. 11 11 Resignation 12 (1) An inspector may resign by signed notice given to the chief 13 executive. 14 (2) However, if holding office as an inspector is a condition of the 15 inspector holding another office, the inspector may not resign 16 as an inspector without resigning from the other office. 17 Division 3 Identity cards 18 12 Issue of identity card 19 (1) The chief executive must issue an identity card to each 20 inspector. 21 (2) The identity card must-- 22 (a) contain a recent photo of the inspector; and 23 (b) contain a copy of the inspector's signature; and 24 (c) identify the person as an inspector under this Act or a 25 primary Act; and 26 (d) state an expiry date for the card. 27 Page 16

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 1 General matters about inspectors [s 13] (3) This section does not prevent the issue of a single identity 1 card to a person for this Act, or a primary Act, and other 2 purposes. 3 13 Production or display of identity card 4 (1) In exercising a power in relation to a person in the person's 5 presence, an inspector must-- 6 (a) produce the inspector's identity card for the person's 7 inspection before exercising the power; or 8 (b) have the identity card displayed so it is clearly visible to 9 the person when exercising the power. 10 (2) However, if it is not practicable to comply with subsection (1), 11 the inspector must produce the identity card for the person's 12 inspection at the first reasonable opportunity. 13 (3) For subsection (1), an inspector does not exercise a power in 14 relation to a person only because the inspector has entered a 15 place as mentioned in section 17(1)(b) or (d). 16 14 Return of identity card 17 If the office of a person as an inspector ends, the person must 18 return the person's identity card to the chief executive within 19 21 days after the office ends unless the person has a 20 reasonable excuse. 21 Maximum penalty--20 penalty units. 22 Division 4 Miscellaneous provisions 23 15 References to exercise of powers 24 If-- 25 (a) a provision of this chapter refers to the exercise of a 26 power by an inspector; and 27 Page 17

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 16] (b) there is no reference to a specific power; 1 the reference is to the exercise of all or any inspectors' powers 2 under this chapter or a warrant, to the extent the powers are 3 relevant. 4 16 Reference to document includes reference to 5 reproductions from electronic document 6 A reference in this chapter to a document includes a reference 7 to an image or writing-- 8 (a) produced from an electronic document; or 9 (b) not yet produced, but reasonably capable of being 10 produced, from an electronic document, with or without 11 the aid of another article or device. 12 Part 2 Entry to places by inspectors 13 Division 1 Power to enter 14 17 General power to enter places 15 (1) An inspector may enter a place if-- 16 (a) an occupier of the place consents under division 2 to the 17 entry and section 20 has been complied with for the 18 occupier; or 19 (b) it is a public place and the entry is made when it is open 20 to the public; or 21 (c) the entry is authorised under a warrant and, if there is an 22 occupier of the place, division 3, subdivision 2 has been 23 complied with for the occupier; or 24 Page 18

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 17] (d) it is a place of business that is regulated under a primary 1 Act and is-- 2 (i) open for carrying on the business; or 3 (ii) otherwise open for entry; or 4 (iii) required to be open for inspection under the 5 primary Act. 6 (2) For subsection (1)(d), a place of business does not include a 7 part of the place where a person resides. 8 (3) If the power to enter arose only because an occupier of the 9 place consented to the entry, the power is subject to any 10 conditions of the consent and ceases if the consent is 11 withdrawn. 12 (4) If the power to enter is under a warrant, the power is subject to 13 the terms of the warrant. 14 (5) The consent may provide consent for re-entry and is subject to 15 the conditions of consent. 16 (6) If the power to enter is under a warrant, the re-entry is subject 17 to the terms of the warrant. 18 (7) In this section-- 19 authority, under a primary Act, means a licence, registration, 20 permit or other authority, however called, issued under the 21 primary Act. 22 regulated under a primary Act, for a place of business, 23 means-- 24 (a) the person who carries on business at the place holds, or 25 is required to hold, an authority under a primary Act to 26 carry on the business; or 27 (b) the place of business is, or is required to be, mentioned 28 in an authority under a primary Act. 29 Page 19

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 18] Division 2 Entry by consent 1 18 Application of div 2 2 This division applies if an inspector intends to ask an occupier 3 of a place for consent to the inspector or another inspector 4 entering the place under section 17(1)(a). 5 19 Incidental entry to ask for access 6 For the purpose of asking the occupier for the consent, the 7 inspector may, without the occupier's consent or a warrant-- 8 (a) enter land around premises at the place to an extent that 9 is reasonable to contact the occupier; or 10 (b) enter part of the place the inspector reasonably 11 considers members of the public ordinarily are allowed 12 to enter when they wish to contact an occupier of the 13 place. 14 20 Matters inspector must tell occupier 15 Before asking for the consent, the inspector must give a 16 reasonable explanation to the occupier-- 17 (a) about the purpose of the entry, including the powers 18 intended to be exercised; and 19 (b) that the occupier is not required to consent; and 20 (c) that the consent may be given subject to conditions and 21 may be withdrawn at any time. 22 21 Consent acknowledgement 23 (1) If the consent is given, the inspector may ask the occupier to 24 sign an acknowledgement of the consent. 25 (2) The acknowledgement must state-- 26 Page 20

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 22] (a) the purpose of the entry, including the powers intended 1 to be exercised; and 2 (b) the following has been explained to the occupier-- 3 (i) the purpose of the entry, including the powers 4 intended to be exercised; 5 (ii) that the occupier is not required to consent; and 6 (c) the occupier gives the inspector or another inspector 7 consent to enter the place and exercise the powers; and 8 (d) the time and day the consent was given; and 9 (e) any conditions of the consent. 10 (3) If the occupier signs the acknowledgement, the inspector must 11 immediately give a copy to the occupier. 12 (4) However, if it is impractical for the inspector to give the 13 occupier a copy of the acknowledgement immediately, the 14 inspector must give the copy as soon as practicable. 15 (5) If-- 16 (a) an issue arises in a proceeding about whether the 17 occupier consented to the entry; and 18 (b) an acknowledgement complying with subsection (2) for 19 the entry is not produced in evidence; 20 the onus of proof is on the person relying on the lawfulness of 21 the entry to prove the occupier consented. 22 Division 3 Entry under warrant 23 Subdivision 1 Obtaining warrant 24 22 Application for warrant 25 (1) An inspector may apply to a magistrate for a warrant for a 26 place. 27 Page 21

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 23] (2) The inspector must prepare a written application that states 1 the grounds on which the warrant is sought. 2 (3) The written application must be sworn. 3 (4) The magistrate may refuse to consider the application until the 4 inspector gives the magistrate all the information the 5 magistrate requires about the application in the way the 6 magistrate requires. 7 Example-- 8 The magistrate may require additional information supporting the 9 written application to be given by statutory declaration. 10 23 Issue of warrant 11 (1) The magistrate may issue a warrant for the place only under 12 subsection (2) or (3). 13 (2) The magistrate may issue a warrant for the place if the 14 magistrate is satisfied there are reasonable grounds for 15 suspecting that there is at the place, or will be at the place 16 within the next 7 days, a particular thing or activity that may 17 provide evidence of an offence against this Act or a primary 18 Act. 19 (3) Also, the magistrate may issue a warrant for the place for the 20 purpose of the inspector's performance of the function 21 mentioned in section 7(1)(a) at the place if-- 22 (a) the place is a place mentioned in section 17(1)(b) or (d); 23 and 24 (b) the magistrate is satisfied it is reasonably necessary that 25 the inspector should have access to the place for the 26 purpose of effectively performing the function at the 27 place. 28 Example for paragraph (b)-- 29 The magistrate may be satisfied under paragraph (b) if the 30 inspector has made a reasonable attempt to perform the function 31 at the place without a warrant, but because of obstruction has 32 been unsuccessful. 33 Page 22

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 24] (4) The warrant must state-- 1 (a) the place to which the warrant applies; and 2 (b) that a stated inspector or any inspector may with 3 necessary and reasonable help and force-- 4 (i) enter the place and any other place necessary for 5 entry to the place; and 6 (ii) exercise the inspector's powers; and 7 (c) particulars of the offence or other circumstances that the 8 magistrate considers appropriate; and 9 (d) if the warrant is issued under subsection (2)--the name 10 of the person suspected of having committed the offence 11 unless the name is unknown or the magistrate considers 12 it inappropriate to state the name; and 13 (e) the evidence that may be seized under the warrant; and 14 (f) the hours of the day or night when the place may be 15 entered; and 16 (g) the magistrate's name; and 17 (h) the day and time of the warrant's issue; and 18 (i) the day, within 14 days after the warrant's issue, the 19 warrant ends. 20 (5) Subsection (3) does not limit the powers that an inspector can 21 exercise in the absence of a warrant. 22 24 Electronic application 23 (1) An application under section 22 may be made by phone, fax, 24 email, radio, videoconferencing or another form of electronic 25 communication if the inspector reasonably considers it 26 necessary because of-- 27 (a) urgent circumstances; or 28 (b) other special circumstances, including, for example, the 29 inspector's remote location. 30 Page 23

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 25] (2) The application-- 1 (a) may not be made before the inspector prepares the 2 written application under section 22(2); but 3 (b) may be made before the written application is sworn. 4 25 Additional procedure if electronic application 5 (1) For an application made under section 24, the magistrate may 6 issue the warrant (the original warrant) only if the magistrate 7 is satisfied-- 8 (a) it was necessary to make the application under section 9 24; and 10 (b) the way the application was made under section 24 was 11 appropriate. 12 (2) After the magistrate issues the original warrant-- 13 (a) if there is a reasonably practicable way of immediately 14 giving a copy of the warrant to the inspector, including, 15 for example, by sending a copy by fax or email, the 16 magistrate must immediately give a copy of the warrant 17 to the inspector; or 18 (b) otherwise-- 19 (i) the magistrate must tell the inspector the 20 information mentioned in section 23(4); and 21 (ii) the inspector must complete a form of warrant, 22 including by writing on it the information 23 mentioned in section 23(4) provided by the 24 magistrate. 25 (3) The copy of the warrant mentioned in subsection (2)(a), or the 26 form of warrant completed under subsection (2)(b) (in either 27 case the duplicate warrant), is a duplicate of, and as effectual 28 as, the original warrant. 29 (4) The inspector must, at the first reasonable opportunity, send to 30 the magistrate-- 31 Page 24

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 26] (a) the written application complying with section 22(2) 1 and (3); and 2 (b) if the inspector completed a form of warrant under 3 subsection (2)(b)--the completed form of warrant. 4 (5) The magistrate must keep the original warrant and, on 5 receiving the documents under subsection (4)-- 6 (a) attach the documents to the original warrant; and 7 (b) give the original warrant and documents to the clerk of 8 the court of the relevant magistrates court. 9 (6) Despite subsection (3), if-- 10 (a) an issue arises in a proceeding about whether an 11 exercise of a power was authorised by a warrant issued 12 under this section; and 13 (b) the original warrant is not produced in evidence; 14 the onus of proof is on the person relying on the lawfulness of 15 the exercise of the power to prove a warrant authorised the 16 exercise of the power. 17 (7) This section does not limit section 22. 18 (8) In this section-- 19 relevant magistrates court, in relation to a magistrate, means 20 the Magistrates Court that the magistrate constitutes under the 21 Magistrates Act 1991. 22 26 Defect in relation to a warrant 23 (1) A warrant is not invalidated by a defect in-- 24 (a) the warrant; or 25 (b) compliance with this subdivision; 26 unless the defect affects the substance of the warrant in a 27 material particular. 28 (2) In this section-- 29 Page 25

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 2 Entry to places by inspectors [s 27] warrant includes a duplicate warrant mentioned in section 1 25(3). 2 Subdivision 2 Entry procedure 3 27 Procedure 4 (1) This section applies if an inspector is intending to enter a 5 place under a warrant issued under this division. 6 (2) Before entering the place, the inspector must do or make a 7 reasonable attempt to do the following things-- 8 (a) identify himself or herself to a person who is an 9 occupier of the place and is present by producing the 10 inspector's identity card or another document 11 evidencing the inspector's appointment; 12 (b) give the person a copy of the warrant; 13 (c) tell the person the inspector is permitted by the warrant 14 to enter the place; 15 (d) give the person an opportunity to allow the inspector 16 immediate entry to the place without using force. 17 (3) However, the inspector need not comply with subsection (2) if 18 the inspector believes on reasonable grounds that entry to the 19 place is required to ensure the execution of the warrant is not 20 frustrated. 21 (4) In this section-- 22 warrant includes a duplicate warrant mentioned in section 23 25(3). 24 Page 26

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 28] Part 3 Other inspectors' powers and 1 related matters 2 Division 1 Stopping or moving vehicles 3 28 Application of div 1 4 This division applies if an inspector reasonably suspects, or is 5 aware, that a thing in or on a vehicle may provide evidence of 6 the commission of an offence against this Act or a primary 7 Act. 8 29 Power to stop or move 9 (1) If the vehicle is moving, the inspector may, to exercise his or 10 her powers, signal or otherwise direct the person in control of 11 the vehicle to stop the vehicle and to bring the vehicle to, and 12 keep it at, a convenient place within a reasonable distance to 13 allow the inspector to exercise the powers. 14 (2) If the vehicle is stopped, the inspector may direct the person 15 in control of the vehicle-- 16 (a) not to move it until the inspector has exercised the 17 inspector's powers; or 18 (b) to move the vehicle to, and keep it at, a stated reasonable 19 place to allow the inspector to exercise the powers. 20 (3) When giving the direction under subsection (2), the inspector 21 must give the person in control an offence warning for the 22 direction. 23 30 Identification requirements if vehicle moving 24 (1) This section applies if the inspector proposes to give a 25 direction under section 29(1) and the vehicle is moving. 26 Page 27

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 31] (2) The inspector must clearly identify himself or herself as an 1 inspector exercising the inspector's powers. 2 Examples-- 3 1 If the inspector is in a moving vehicle, he or she may use a loud 4 hailer to identify himself or herself as an inspector exercising 5 powers. 6 2 If the inspector is standing at the side of the road, he or she may use 7 a sign to identify himself or herself as an inspector exercising 8 powers. 9 (3) When the vehicle stops, the inspector must-- 10 (a) have with him or her the inspector's identity card; and 11 (b) immediately produce the identity card for the inspection 12 of the person in control of the vehicle. 13 (4) Subsection (3) applies despite section 13. 14 31 Failure to comply with direction 15 (1) The person in control of the vehicle must comply with a 16 direction under section 29 unless the person has a reasonable 17 excuse. 18 Maximum penalty--165 penalty units. 19 (2) It is a reasonable excuse for the person not to comply with a 20 direction if-- 21 (a) the vehicle was moving and the inspector did not 22 comply with section 30; or 23 (b) to comply immediately would have endangered 24 someone else or caused loss or damage to property, and 25 the person complies as soon as it is practicable to do so. 26 (3) Subsection (2) does not limit subsection (1). 27 (4) A person does not commit an offence against subsection (1) 28 if-- 29 (a) the direction the person fails to comply with is given 30 under section 29(2); and 31 Page 28

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 32] (b) the person is not given an offence warning for the 1 direction. 2 Division 2 General powers after entering 3 places 4 32 Application of div 2 5 (1) The powers under this division may be exercised if an 6 inspector enters a place under-- 7 (a) section 17(1)(a); or 8 (b) section 17(1)(c); or 9 (c) section 17(1)(d). 10 (2) However, if the inspector enters under section 17(1)(a) or (c), 11 the powers under this division are subject to any conditions of 12 the consent or terms of the warrant. 13 33 General powers 14 (1) The inspector may do any of the following (each a general 15 power)-- 16 (a) search any part of the place; 17 (b) inspect, examine or film any part of the place or 18 anything at the place; 19 (c) take for examination a thing, or a sample of or from a 20 thing, at the place; 21 (d) place an identifying mark in or on anything at the place; 22 (e) take an extract from, or copy, a document at the place, or 23 take the document to another place to copy; 24 (f) produce an image or writing at the place from an 25 electronic document or, to the extent it is not 26 practicable, take a thing containing an electronic 27 Page 29

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 34] document to another place to produce an image or 1 writing; 2 (g) take to, into or onto the place and use any person, 3 equipment and materials the inspector reasonably 4 requires for exercising the inspector's powers under this 5 division; 6 (h) remain at the place for the time necessary to achieve the 7 purpose of the entry. 8 (2) The inspector may take a necessary step to allow the exercise 9 of a general power. 10 (3) If the inspector takes a document from the place to copy it, the 11 inspector must copy and return the document to the place as 12 soon as practicable. 13 (4) If the inspector takes from the place an article or device 14 reasonably capable of producing a document from an 15 electronic document to produce the document, the inspector 16 must produce the document and return the article or device to 17 the place as soon as practicable. 18 (5) In this section-- 19 examine includes analyse, test, account, measure, weigh, 20 grade, gauge and identify. 21 film includes photograph, videotape and record an image in 22 another way. 23 inspect, a thing, includes open the thing and examine its 24 contents. 25 34 Power to require reasonable help 26 (1) The inspector may make a requirement (a help requirement) 27 of an occupier of the place or a person at the place to give the 28 inspector reasonable help to exercise a general power, 29 including, for example, to produce a document or to give 30 information. 31 Page 30

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 35] (2) When making the help requirement, the inspector must give 1 the person an offence warning for the requirement. 2 35 Offence to contravene help requirement 3 (1) A person of whom a help requirement has been made must 4 comply with the requirement unless the person has a 5 reasonable excuse. 6 Maximum penalty--200 penalty units or 1 year's 7 imprisonment. 8 (2) It is a reasonable excuse for an individual not to comply with 9 a help requirement if complying might tend to incriminate the 10 individual or expose the individual to a penalty. 11 (3) However, subsection (2) does not apply if a document or 12 information the subject of the help requirement (the subject) 13 is required to be held or kept by the defendant under this Act 14 or a primary Act. 15 Note-- 16 See, however, section 71. 17 Division 3 Seizure and forfeiture 18 Subdivision 1 Power to seize 19 36 Seizing evidence at a place that may be entered without 20 consent or warrant 21 (1) An inspector who enters a place the inspector may enter under 22 this Act without the consent of an occupier of the place and 23 without a warrant under section 23(2) may seize a thing at the 24 place if the inspector reasonably believes the thing is evidence 25 of an offence against this Act or a primary Act. 26 (2) Subsection (1) applies even if the entry is under a warrant 27 issued under section 23(3). 28 Page 31

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 37] 37 Seizing evidence at a place that may be entered only with 1 consent or warrant 2 (1) This section applies if-- 3 (a) an inspector is authorised to enter a place only with the 4 consent of an occupier of the place or a warrant; and 5 (b) the inspector enters the place after obtaining the consent 6 or under a warrant issued under section 23(2). 7 (2) If the inspector enters the place with the occupier's consent, 8 the inspector may seize a thing at the place only if-- 9 (a) the inspector reasonably believes the thing is evidence 10 of an offence against this Act or a primary Act; and 11 (b) seizure of the thing is consistent with the purpose of 12 entry as explained to the occupier when asking for the 13 occupier's consent. 14 (3) If the inspector enters the place under a warrant issued under 15 section 23(2), the inspector may seize the evidence for which 16 the warrant was issued. 17 (4) The inspector may also seize anything else at the place if the 18 inspector reasonably believes-- 19 (a) the thing is evidence of an offence against this Act or a 20 primary Act; and 21 (b) the seizure is necessary to prevent the thing being-- 22 (i) hidden, lost or destroyed; or 23 (ii) used to continue, or repeat, the offence. 24 (5) The inspector may also seize a thing at the place if the 25 inspector reasonably believes it has just been used in 26 committing an offence against this Act or a primary Act. 27 38 Seizure of property subject to security 28 (1) An inspector may seize a thing, and exercise powers relating 29 to the thing, despite a lien or other security over the thing 30 claimed by another person. 31 Page 32

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 39] (2) However, the seizure does not affect the other person's claim 1 to the lien or other security against a person other than the 2 inspector or a person acting for the inspector. 3 Subdivision 2 Powers to support seizure 4 39 Requirement of person in control of thing to be seized 5 (1) To enable a thing to be seized, an inspector may require the 6 person in control of it-- 7 (a) to take it to a stated reasonable place by a stated 8 reasonable time; and 9 (b) if necessary, to remain in control of it at the stated place 10 for a stated reasonable time. 11 (2) The requirement-- 12 (a) must be made by notice; or 13 (b) if for any reason it is not practicable to give a notice, 14 may be made orally and confirmed by notice as soon as 15 practicable. 16 40 Offence to contravene seizure requirement 17 A person of whom a requirement is made under section 39 18 must comply with the requirement unless the person has a 19 reasonable excuse. 20 Maximum penalty--50 penalty units. 21 41 Power to secure seized thing 22 (1) Having seized a thing under this division, an inspector may-- 23 (a) leave it at the place where it was seized (the place of 24 seizure) and take reasonable action to restrict access to 25 it; or 26 (b) move it from the place of seizure. 27 Page 33

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 42] (2) For subsection (1)(a), the inspector may, for example-- 1 (a) seal the thing, or the entrance to the place of seizure, and 2 mark the thing or place to show access to the thing or 3 place is restricted; or 4 (b) for equipment--make it inoperable; or 5 Example-- 6 make it inoperable by dismantling it or removing a component 7 without which the equipment can not be used 8 (c) require a person the inspector reasonably believes is in 9 control of the place or thing to do an act mentioned in 10 paragraph (a) or (b) or anything else an inspector could 11 do under subsection (1)(a). 12 42 Offence to contravene other seizure requirement 13 A person must comply with a requirement made of the person 14 under section 41(2)(c) unless the person has a reasonable 15 excuse. 16 Maximum penalty--50 penalty units. 17 43 Offence to interfere 18 (1) If access to a seized thing is restricted under section 41, a 19 person must not tamper with the thing or with anything used 20 to restrict access to the thing without-- 21 (a) an inspector's approval; or 22 (b) a reasonable excuse. 23 Maximum penalty--50 penalty units. 24 (2) If access to a place is restricted under section 41, a person 25 must not enter the place in contravention of the restriction or 26 tamper with anything used to restrict access to the place 27 without-- 28 (a) an inspector's approval; or 29 Page 34

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 44] (b) a reasonable excuse. 1 Maximum penalty--50 penalty units. 2 Subdivision 3 Safeguards for seized things 3 44 Receipt and information notice for seized thing 4 (1) This section applies if an inspector seizes anything under this 5 division unless-- 6 (a) the inspector reasonably believes there is no-one 7 apparently in possession of the thing or the thing has 8 been abandoned; or 9 (b) because of the condition, nature and value of the thing it 10 would be unreasonable to require the inspector to 11 comply with this section. 12 (2) The inspector must, as soon as practicable after seizing the 13 thing, give an owner or person in control of the thing before it 14 was seized-- 15 (a) a receipt for the thing that generally describes the thing 16 and its condition; and 17 (b) an information notice about the decision to seize it. 18 (3) However, if an owner or person from whom the thing is seized 19 is not present when it is seized, the receipt and information 20 notice may be given by leaving them in a conspicuous 21 position and in a reasonably secure way at the place at which 22 the thing is seized. 23 (4) The receipt and information notice may-- 24 (a) be given in the same document; and 25 (b) relate to more than 1 seized thing. 26 (5) The inspector may delay giving the receipt and information 27 notice if the inspector reasonably suspects giving them may 28 frustrate or otherwise hinder an investigation by the inspector 29 under this Act. 30 Page 35

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 45] (6) However, the delay may be only for so long as the inspector 1 continues to have the reasonable suspicion and remains in the 2 vicinity of the place at which the thing was seized to keep it 3 under observation. 4 45 Access to seized thing 5 (1) Until a seized thing is forfeited or returned, the inspector who 6 seized the thing must allow an owner of the thing-- 7 (a) to inspect it at any reasonable time and from time to 8 time; and 9 (b) if it is a document--to copy it. 10 (2) Subsection (1) does not apply if it is impracticable or would 11 be unreasonable to allow the inspection or copying. 12 (3) The inspection or copying must be allowed free of charge. 13 46 Return of seized thing 14 (1) This section applies if a seized thing has some intrinsic value 15 and is not-- 16 (a) forfeited or transferred under subdivision 4 or 5; or 17 (b) subject to a disposal order under division 4. 18 (2) The inspector must return the seized thing to an owner-- 19 (a) generally--at the end of 1 year after the seizure; or 20 (b) if a proceeding for an offence involving the thing is 21 started within the 1 year--at the end of the proceeding 22 and any appeal from the proceeding. 23 (3) Despite subsection (2), if the thing was seized as evidence, the 24 inspector must return the thing seized to an owner as soon as 25 practicable after the inspector is satisfied-- 26 (a) its continued retention as evidence is no longer required; 27 and 28 Page 36

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 47] (b) its continued retention is not necessary to prevent it 1 being used to continue, or repeat, an offence against this 2 Act or a primary Act; and 3 (c) it is lawful for the owner to possess it. 4 (4) Nothing in this section affects a lien or other security over the 5 seized thing. 6 Subdivision 4 Forfeiture 7 47 Forfeiture by chief executive decision 8 (1) The chief executive may decide a seized thing is forfeited to 9 the State if an inspector-- 10 (a) after making reasonable inquiries, can not find an 11 owner; or 12 (b) after making reasonable efforts, can not return it to an 13 owner; or 14 (c) reasonably believes it is necessary to keep the thing to 15 prevent it being used to commit the offence for which it 16 was seized. 17 (2) However, the inspector is not required to-- 18 (a) make inquiries if it would be unreasonable to make 19 inquiries to find an owner; or 20 (b) make efforts if it would be unreasonable to make efforts 21 to return the thing to an owner. 22 Example for paragraph (b)-- 23 the owner of the thing has migrated to another country 24 (3) Regard must be had to the thing's condition, nature and value 25 in deciding-- 26 (a) whether it is reasonable to make inquiries or efforts; and 27 Page 37

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 48] (b) if inquiries or efforts are made--what inquiries or 1 efforts, including the period over which they are made, 2 are reasonable. 3 48 Information notice about forfeiture decision 4 (1) If the chief executive decides under section 47(1) to forfeit a 5 thing, the chief executive must as soon as practicable give a 6 person who owned the thing immediately before the forfeiture 7 (the former owner) an information notice about the decision. 8 (2) If the decision was made under section 47(1)(a) or (b), the 9 information notice may be given by leaving it at the place 10 where the thing was seized, in a conspicuous position and in a 11 reasonably secure way. 12 (3) The information notice must state that the former owner may 13 apply for a stay of the decision if he or she appeals against the 14 decision. 15 (4) However, subsections (1) to (3) do not apply if-- 16 (a) the decision was made under section 47(1)(a) or (b); and 17 (b) the place where the thing was seized is-- 18 (i) a public place; or 19 (ii) a place where the notice is unlikely to be read by 20 the former owner. 21 49 Dealing with forfeited things 22 (1) On the forfeiture of a thing to the State, the chief executive 23 may deal with it as the chief executive considers appropriate, 24 including, for example, by destroying it or giving it away. 25 (2) However, the chief executive must not deal with the thing in a 26 way that could prejudice the outcome of an appeal under this 27 Act, or a primary Act, of which the chief executive is aware. 28 Page 38

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 50] (3) If the chief executive sells the thing, the chief executive may, 1 after deducting the costs of the sale, return the proceeds of the 2 sale to the former owner of the thing. 3 (4) This section is subject to any disposal order made for the 4 thing. 5 50 Forfeiture on conviction 6 (1) On the conviction of a person for an offence against this Act, 7 the court may order the forfeiture to the State of-- 8 (a) anything used to commit the offence; or 9 (b) anything else the subject of the offence. 10 (2) The court may make the order-- 11 (a) whether or not the thing has been seized; and 12 (b) if the thing has been seized--whether or not the thing 13 has been returned to the former owner of the thing. 14 (3) The court may make any order to enforce the forfeiture it 15 considers appropriate. 16 (4) This section does not limit the court's powers under another 17 law. 18 51 Procedure and powers for making forfeiture order 19 (1) A forfeiture order may be made on a conviction on the court's 20 initiative or on an application by the prosecution. 21 (2) In deciding whether to make a forfeiture order for a thing, the 22 court-- 23 (a) may require notice to be given to anyone the court 24 considers appropriate, including, for example, any 25 person who may have any property in the thing; and 26 (b) must hear any submissions that any person claiming to 27 have any property in the thing may wish to make. 28 Page 39

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 52] Subdivision 5 Dealing with property forfeited or 1 transferred to State 2 52 When thing becomes property of the State 3 A thing becomes the property of the State if-- 4 (a) the thing is forfeited to the State under section 47(1) or 5 50; or 6 (b) the owner of the thing and the State agree, in writing, to 7 the transfer of the ownership of the thing to the State. 8 53 How property may be dealt with 9 (1) This section applies if, under section 52, a thing becomes the 10 property of the State. 11 (2) The chief executive may deal with the thing as the chief 12 executive considers appropriate, including, for example, by 13 destroying it or giving it away. 14 (3) The chief executive must not deal with the thing in a way that 15 could prejudice the outcome of an appeal against the 16 forfeiture under this Act. 17 (4) If the chief executive sells the thing, the chief executive may, 18 after deducting the costs of the sale, return the proceeds of the 19 sale to the former owner of the thing. 20 (5) This section is subject to any disposal order made for the 21 thing. 22 Division 4 Disposal orders 23 54 Disposal order 24 (1) This section applies if a person is convicted of an offence 25 against this Act. 26 Page 40

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 55] (2) The court may make an order (a disposal order), on its own 1 initiative or on an application by the prosecution, for the 2 disposal of any of the following things owned by the person-- 3 (a) anything that was the subject of, or used to commit, the 4 offence; 5 (b) another thing the court considers is likely to be used by 6 the person or another person in committing a further 7 offence against this Act. 8 (3) The court may make a disposal order for a thing-- 9 (a) whether or not it has been seized under this Act; and 10 (b) if the thing has been seized--whether or not it has been 11 returned to the former owner. 12 (4) In deciding whether to make a disposal order for a thing, the 13 court-- 14 (a) may require notice to be given to anyone the court 15 considers appropriate, including, for example, any 16 person who may have any property in the thing; and 17 (b) must hear any submissions that any person claiming to 18 have any property in the thing may wish to make. 19 (5) The court may make any order to enforce the disposal order 20 that it considers appropriate. 21 (6) This section does not limit the court's powers under another 22 law. 23 Division 5 Other information-obtaining powers 24 55 Power to require name and address 25 (1) This section applies if an inspector-- 26 (a) finds a person committing an offence against this Act or 27 a primary Act; or 28 Page 41

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 56] (b) finds a person in circumstances that lead the inspector to 1 reasonably suspect the person has just committed an 2 offence against this Act or a primary Act; or 3 (c) has information that leads the inspector to reasonably 4 suspect a person has just committed an offence against 5 this Act or a primary Act. 6 (2) The inspector may require the person to state the person's 7 name and address. 8 (3) The inspector may also require the person to give evidence of 9 the correctness of the stated name or address if, in the 10 circumstances, it would be reasonable to expect the person 11 to-- 12 (a) be in possession of evidence of the correctness of the 13 stated name or address; or 14 (b) otherwise be able to give the evidence. 15 (4) When making a personal details requirement, the inspector 16 must give the person an offence warning for the requirement. 17 (5) A requirement under this section is a personal details 18 requirement. 19 (6) In this section-- 20 address, of a person, includes the person's residential and 21 business address and, for a person temporarily in Queensland, 22 includes the place where the person is living in Queensland. 23 56 Offence to contravene personal details requirement 24 (1) A person of whom a personal details requirement has been 25 made must comply with the requirement unless the person has 26 a reasonable excuse. 27 Maximum penalty--50 penalty units. 28 (2) A person may not be convicted of an offence under subsection 29 (1) unless the person is found guilty of the offence in relation 30 to which the personal details requirement was made. 31 Page 42

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 57] 57 Power to require production of document 1 (1) An inspector may require a person to make available for 2 inspection by an inspector, or to produce to the inspector for 3 inspection, at a reasonable time and place nominated by the 4 inspector-- 5 (a) a document issued to the person under a primary Act; or 6 (b) a document required to be kept by the person under a 7 primary Act; or 8 (c) if a document or information required to be kept by the 9 person under a primary Act is stored or recorded by 10 means of a device--a document that is a clear written 11 reproduction of the stored or recorded document or 12 information. 13 (2) A requirement under subsection (1) is a document production 14 requirement. 15 (3) For an electronic document, compliance with the document 16 production requirement requires the making available or 17 production of a clear written reproduction of the electronic 18 document. 19 (4) The inspector may keep the document to copy it. 20 (5) If the inspector copies the document, or an entry in the 21 document, the inspector may require the person responsible 22 for keeping the document to certify the copy as a true copy of 23 the document or entry. 24 (6) A requirement under subsection (5) is a document 25 certification requirement. 26 (7) The inspector must return the document to the person as soon 27 as practicable after copying it. 28 (8) However, if a document certification requirement is made of a 29 person, the inspector may keep the document until the person 30 complies with the requirement. 31 Page 43

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 58] 58 Offence to contravene document production requirement 1 (1) A person of whom a document production requirement has 2 been made must comply with the requirement unless the 3 person has a reasonable excuse. 4 Maximum penalty--200 penalty units. 5 (2) It is not a reasonable excuse for a person to fail to comply 6 with a document production requirement on the basis that 7 complying with the requirement might tend to incriminate the 8 person or expose the person to a penalty. 9 Note-- 10 See, however, section 71. 11 (3) The inspector must inform the person, in a way that is 12 reasonable in the circumstances-- 13 (a) that the person must comply with the document 14 production requirement even though complying might 15 tend to incriminate the person or expose the person to a 16 penalty; and 17 (b) that, under section 71, there is a limited immunity 18 against the future use of the information or document 19 given in compliance with the requirement. 20 (4) If the person fails to comply with the document production 21 requirement when the inspector has failed to comply with 22 subsection (3), the person can not be convicted of the offence 23 against subsection (1). 24 (5) If a court convicts a person of an offence against subsection 25 (1), the court may, as well as imposing a penalty for the 26 offence, order the person to comply with the document 27 production requirement. 28 59 Offence to contravene document certification 29 (1) A person of whom a document certification requirement has 30 been made must comply with the requirement unless the 31 person has a reasonable excuse. 32 Page 44

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 3 Other inspectors' powers and related matters [s 60] Maximum penalty--200 penalty units. 1 (2) It is not a reasonable excuse for a person to fail to comply 2 with a document certification requirement on the basis that 3 complying with the requirement might tend to incriminate the 4 person or expose the person to a penalty. 5 Note-- 6 See, however, section 71. 7 (3) The inspector must inform the person, in a way that is 8 reasonable in the circumstances-- 9 (a) that the person must comply with the document 10 certification requirement even though complying might 11 tend to incriminate the person or expose the person to a 12 penalty; and 13 (b) that, under section 71, there is a limited immunity 14 against the future use of the information or document 15 given in compliance with the requirement. 16 (4) If the person fails to comply with the document certification 17 requirement when the inspector has failed to comply with 18 subsection (3), the person can not be convicted of the offence 19 against subsection (1). 20 60 Power to require information 21 (1) This section applies if an inspector reasonably believes-- 22 (a) an offence against this Act or a primary Act has been 23 committed; and 24 (b) a person may be able to give information about the 25 offence. 26 (2) The inspector may, by notice given to the person, require the 27 person to give the inspector information related to the offence 28 at a stated reasonable time and place. 29 (3) A requirement under subsection (2) is an information 30 requirement. 31 Page 45

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 4 Obtaining criminal history reports [s 61] (4) For information that is an electronic document, compliance 1 with the information requirement requires the giving of a clear 2 image or written version of the electronic document. 3 (5) In this section-- 4 information includes a document. 5 61 Offence to contravene information requirement 6 (1) A person of whom an information requirement is made must 7 comply with the requirement unless the person has a 8 reasonable excuse. 9 Maximum penalty--200 penalty units or 1 year's 10 imprisonment. 11 (2) It is a reasonable excuse for an individual not to give the 12 information if giving the information might tend to 13 incriminate the individual or expose the individual to a 14 penalty. 15 Part 4 Obtaining criminal history 16 reports 17 62 Purpose of pt 4 18 The purpose of this part is to help an inspector to decide 19 whether the inspector's unaccompanied entry of a place under 20 part 2 would create an unacceptable level of risk to the 21 inspector's safety. 22 63 Chief executive's power to obtain criminal history report 23 (1) The chief executive may ask the commissioner of the police 24 service for a written report about the criminal history of a 25 person if an inspector reasonably suspects the person-- 26 Page 46

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 4 Obtaining criminal history reports [s 64] (a) may be present at a place when the inspector enters the 1 place under part 2; and 2 (b) may create an unacceptable level of risk to the 3 inspector's safety. 4 (2) The commissioner of the police service must give the report to 5 the chief executive. 6 (3) However, the report is required to contain only criminal 7 history that is in the commissioner's possession or to which 8 the commissioner has access. 9 (4) The chief executive must examine the report and identify, to 10 the extent it is reasonably practicable to do so, offences 11 involving the use of a weapon or violence against a person. 12 (5) The chief executive may give the inspector information in the 13 report about the offences identified under subsection (4). 14 64 Criminal history is confidential document 15 (1) A person must not, directly or indirectly, disclose to anyone 16 else a report about a person's criminal history, or information 17 contained in the report, given under section 63. 18 Maximum penalty--100 penalty units. 19 (2) However, the person does not contravene subsection (1) if-- 20 (a) the disclosure of the report or information is for the 21 purpose of the other person performing a function in 22 relation to this Act; or 23 (b) the disclosure of the report or information is for the 24 purpose of the other person performing a function in 25 relation to a primary Act and the function is 26 substantially the same as a function under this Act; or 27 (c) the disclosure of the report or information is otherwise 28 required or permitted by law. 29 (3) The chief executive or an inspector to whom the report or 30 written information in the report is provided must destroy the 31 Page 47

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 5 Miscellaneous provisions [s 65] report as soon as practicable after the inspector considers the 1 risk mentioned in section 62. 2 Part 5 Miscellaneous provisions 3 Division 1 Damage 4 65 Duty to avoid inconvenience and minimise damage 5 In exercising a power, an inspector must take all reasonable 6 steps to cause as little inconvenience, and do as little damage, 7 as possible. 8 Note-- 9 See also section 67. 10 66 Notice of damage 11 (1) This section applies if-- 12 (a) an inspector damages something when exercising, or 13 purporting to exercise, a power; or 14 (b) a person (the assistant) acting under the direction or 15 authority of an inspector damages something. 16 (2) However, this section does not apply to damage the inspector 17 reasonably considers is trivial or if the inspector reasonably 18 believes-- 19 (a) there is no-one apparently in possession of the thing; or 20 (b) the thing has been abandoned. 21 (3) The inspector must give notice of the damage to the person 22 who appears to the inspector to be an owner, or person in 23 control, of the thing. 24 Page 48

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 5 Miscellaneous provisions [s 67] (4) However, if for any reason it is not practicable to comply with 1 subsection (3), the inspector must-- 2 (a) leave the notice at the place where the damage 3 happened; and 4 (b) ensure it is left in a conspicuous position and in a 5 reasonably secure way. 6 (5) The inspector may delay complying with subsection (3) or (4) 7 if the inspector reasonably suspects complying with the 8 subsection may frustrate or otherwise hinder the performance 9 of the inspector's functions. 10 (6) The delay may be only for so long as the inspector continues 11 to have the reasonable suspicion and remains in the vicinity of 12 the place. 13 (7) If the inspector believes the damage was caused by a latent 14 defect in the thing or circumstances beyond the control of the 15 inspector or the assistant the inspector may state the belief in 16 the notice. 17 (8) The notice must state-- 18 (a) particulars of the damage; and 19 (b) that the person who suffered the damage may claim 20 compensation under section 67. 21 Division 2 Compensation 22 67 Compensation 23 (1) A person may claim compensation from the State if the person 24 incurs loss because of the exercise, or purported exercise, of a 25 power by or for an inspector including a loss arising from 26 compliance with a requirement made of the person under this 27 chapter. 28 (2) However, subsection (1) does not include loss arising from a 29 lawful seizure. 30 Page 49

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 5 Miscellaneous provisions [s 68] (3) The compensation may be claimed and ordered in a 1 proceeding-- 2 (a) brought in a court with jurisdiction for the recovery of 3 the amount of compensation claimed; or 4 (b) for an alleged offence against this Act or a primary Act 5 the investigation of which gave rise to the claim for 6 compensation. 7 (4) A court may order the payment of compensation only if it is 8 satisfied it is just to make the order in the circumstances of the 9 particular case. 10 (5) In considering whether it is just to order compensation, the 11 court must have regard to any relevant offence committed by 12 the claimant. 13 (6) A regulation may prescribe other matters that may, or must, be 14 taken into account by the court when considering whether it is 15 just to order compensation. 16 (7) Section 65 does not provide for a statutory right of 17 compensation other than is provided by this section. 18 (8) In this section-- 19 loss includes costs and damage. 20 Division 3 Other offences relating to 21 inspectors 22 68 Giving inspector false or misleading information 23 (1) A person must not, in relation to the administration of this Act 24 or a primary Act, give an inspector information, or a 25 document containing information, that the person knows is 26 false or misleading in a material particular. 27 Maximum penalty--200 penalty units or 2 years 28 imprisonment. 29 Page 50

 


 

Fair Trading Inspectors Bill 2011 Chapter 2 Inspectors Part 5 Miscellaneous provisions [s 69] (2) Subsection (1) applies to information or a document given in 1 relation to the administration of this Act or a primary Act 2 whether or not the information or document was given in 3 response to a specific power under this Act or the primary 4 Act. 5 69 Obstructing inspector 6 (1) A person must not obstruct an inspector, or someone helping 7 an inspector, exercising a power under this Act or a primary 8 Act unless the person has a reasonable excuse. 9 Maximum penalty--200 penalty units or 1 year's 10 imprisonment. 11 (2) If a person has obstructed an inspector, or someone helping an 12 inspector, and the inspector decides to proceed with the 13 exercise of the power, the inspector must warn the person 14 that-- 15 (a) it is an offence to cause an obstruction unless the person 16 has a reasonable excuse; and 17 (b) the inspector considers the person's conduct an 18 obstruction. 19 (3) In this section-- 20 obstruct includes assault, hinder, resist, attempt to obstruct 21 and threaten to obstruct. 22 70 Impersonating inspector 23 A person must not impersonate an inspector. 24 Maximum penalty--80 penalty units. 25 Page 51

 


 

Fair Trading Inspectors Bill 2011 Chapter 3 Appeals, evidence and legal proceedings Part 1 Reviews and appeals [s 71] Division 4 Other provisions 1 71 Evidential immunity for individuals complying with 2 particular requirements 3 (1) Subsection (2) applies if an individual gives or produces 4 information or a document to an inspector under section 34 or 5 60. 6 (2) Evidence of the information or document, and other evidence 7 directly or indirectly derived from the information or 8 document, is not admissible against the individual in any 9 proceeding to the extent it tends to incriminate the individual, 10 or expose the individual to a penalty, in the proceeding. 11 (3) Subsection (2) does not apply to a proceeding about the false 12 or misleading nature of the information or anything in the 13 document or in which the false or misleading nature of the 14 information or document is relevant evidence. 15 Chapter 3 Appeals, evidence and legal 16 proceedings 17 Part 1 Reviews and appeals 18 Division 1 Right of appeal 19 72 Right of appeal 20 A person who has a right to be given an information notice 21 about a decision made under this Act has a right to appeal 22 against the decision. 23 Page 52

 


 

Fair Trading Inspectors Bill 2011 Chapter 3 Appeals, evidence and legal proceedings Part 1 Reviews and appeals [s 73] Division 2 Internal review of decisions 1 73 Appeal process starts with internal review 2 (1) Every appeal against a decision must be, in the first instance, 3 by way of an application for an internal review. 4 (2) A person who has a right to appeal against a decision may 5 apply to the chief executive for a review of the decision. 6 74 How to apply for review 7 (1) An application for review of a decision must be-- 8 (a) in the approved form; and 9 (b) supported by enough information to enable the chief 10 executive to decide the application. 11 (2) The application must be made within 20 business days after-- 12 (a) the day the person is given the information notice about 13 the decision; or 14 (b) if the person is not given an information notice about the 15 decision--the day the person otherwise becomes aware 16 of the decision. 17 (3) The chief executive may extend the period for applying for the 18 review. 19 (4) The application must not be dealt with by-- 20 (a) the person who made the decision; or 21 (b) a person in a less senior office than the person who 22 made the decision. 23 (5) Subsection (4)-- 24 (a) applies despite the Acts Interpretation Act 1954, section 25 27A; and 26 (b) does not apply to a decision made by the chief 27 executive. 28 Page 53

 


 

Fair Trading Inspectors Bill 2011 Chapter 3 Appeals, evidence and legal proceedings Part 1 Reviews and appeals [s 75] 75 Stay of operation of decision 1 (1) An application for review of a decision does not stay the 2 decision. 3 (2) However, the applicant may immediately apply for a stay of 4 the decision to the court. 5 (3) The court may stay the decision to secure the effectiveness of 6 the review and a later appeal to the court. 7 (4) The stay-- 8 (a) may be given on conditions the court considers 9 appropriate; and 10 (b) operates for the period fixed by the court; and 11 (c) may be amended or revoked by the court. 12 (5) The period of the stay must not extend past the time when the 13 chief executive makes a review decision about the decision 14 and any later period the court allows the applicant to enable 15 the applicant to appeal against the review decision. 16 (6) An application for review of a decision affects the decision, or 17 carrying out of the decision, only if the decision is stayed. 18 76 Review decision 19 (1) The chief executive must, within 30 business days after 20 receiving the application-- 21 (a) review the decision (the original decision); and 22 (b) make a decision (the review decision) to-- 23 (i) confirm the original decision; or 24 (ii) amend the original decision; or 25 (iii) substitute another decision for the original 26 decision; and 27 (c) give the applicant notice (the review notice) of the 28 review decision. 29 Page 54

 


 

Fair Trading Inspectors Bill 2011 Chapter 3 Appeals, evidence and legal proceedings Part 1 Reviews and appeals [s 77] (2) If the review decision is not the decision sought by the 1 applicant, the review notice must state the following-- 2 (a) the day the notice is given to the applicant (the review 3 notice day); 4 (b) the reasons for the decision; 5 (c) that the applicant may appeal against the decision to the 6 court within 28 days after the review notice day; 7 (d) how to appeal; 8 (e) that the applicant may apply to the court for a stay of the 9 decision. 10 (3) If the chief executive does not give the review notice within 11 the 30 days, the chief executive is taken to have made a review 12 decision confirming the original decision. 13 Division 3 Appeals 14 77 Who may appeal 15 A person who has applied for review of an original decision 16 and is dissatisfied with the review decision may appeal to the 17 court against the decision. 18 78 Procedure for an appeal to the court 19 (1) An appeal to the court is started by filing notice of appeal with 20 the clerk of the court. 21 (2) A copy of the notice must be served on the chief executive. 22 (3) The notice of appeal must be filed within 28 days after the 23 review notice day. 24 (4) The court may, whether before or after the time for filing the 25 notice of appeal ends, extend the period for filing the notice of 26 appeal. 27 Page 55

 


 

Fair Trading Inspectors Bill 2011 Chapter 3 Appeals, evidence and legal proceedings Part 1 Reviews and appeals [s 79] (5) The notice of appeal must state fully the grounds of the 1 appeal. 2 79 Stay of operation of review decision 3 (1) The court may grant a stay of the operation of a review 4 decision appealed against to secure the effectiveness of the 5 appeal. 6 (2) A stay-- 7 (a) may be granted on conditions the court considers 8 appropriate; and 9 (b) operates for the period fixed by the court; and 10 (c) may be amended or revoked by the court. 11 (3) The period of a stay stated by the court must not extend past 12 the time when the court decides the appeal. 13 (4) An appeal against a decision affects the decision, or the 14 carrying out of the decision, only if the decision is stayed. 15 80 Powers of court on appeal 16 (1) In deciding an appeal, the court-- 17 (a) has the same powers as the chief executive in making 18 the review decision appealed against; and 19 (b) is not bound by the rules of evidence; and 20 (c) must comply with natural justice. 21 (2) An appeal is by way of rehearing. 22 (3) The court may-- 23 (a) confirm the review decision; or 24 (b) set aside the review decision and substitute another 25 decision; or 26 Page 56

 


 

Fair Trading Inspectors Bill 2011 Chapter 3 Appeals, evidence and legal proceedings Part 2 Evidence and legal proceedings [s 81] (c) set aside the review decision and return the matter to the 1 chief executive with directions the court considers 2 appropriate. 3 81 Effect of decision of court on appeal 4 (1) If the court acts to set aside the review decision and return the 5 matter to the chief executive with directions the court 6 considers appropriate, and the chief executive makes a new 7 decision, the new decision is not subject to review or appeal 8 under this part. 9 (2) If the court substitutes another decision, the substituted 10 decision is taken to be the decision of the chief executive, and 11 the chief executive may give effect to the decision as if the 12 decision was the original decision of the chief executive and 13 no application for review or appeal had been made. 14 Part 2 Evidence and legal 15 proceedings 16 Division 1 Evidentiary provisions 17 82 Application of div 1 18 This division applies to a proceeding under this Act. 19 83 Authority 20 The power of the chief executive or an inspector to do 21 anything under this Act must be presumed unless a party to 22 the proceeding, by reasonable notice, requires proof of it. 23 Page 57

 


 

Fair Trading Inspectors Bill 2011 Chapter 3 Appeals, evidence and legal proceedings Part 2 Evidence and legal proceedings [s 84] 84 Signatures 1 A signature purporting to be the signature of the chief 2 executive or an inspector is evidence of the signature it 3 purports to be. 4 85 Other evidentiary aids 5 A certificate purporting to be signed by the chief executive 6 stating any of the following matters is evidence of the 7 matter-- 8 (a) that a stated document of any of the following types is a 9 document given, issued, kept or made under this Act-- 10 (i) an appointment, approval or decision; 11 (ii) a direction or requirement; 12 (iii) a notice or other document given under this Act; 13 (b) that a stated document is another document kept under 14 this Act; 15 (c) that a stated document is a copy of, or an extract from or 16 part of, a thing mentioned in paragraph (a) or (b); 17 (d) that on a stated day-- 18 (i) a stated person was given a stated decision, 19 direction or notice under this Act; or 20 (ii) a stated requirement under this Act was made of a 21 stated person; 22 (e) that a stated amount is payable under this Act by a stated 23 person and has not been paid. 24 Division 2 Offence proceedings 25 86 Offences under Act are summary 26 (1) An offence against this Act is a summary offence. 27 Page 58

 


 

Fair Trading Inspectors Bill 2011 Chapter 4 Miscellaneous provisions [s 87] (2) A proceeding for an offence against this Act must start within 1 the later of the following periods to end-- 2 (a) 1 year after the commission of the offence; 3 (b) 6 months after the offence comes to the complainant's 4 knowledge but within 2 years after the commission of 5 the offence. 6 87 Statement of complainant's knowledge 7 In a complaint starting a proceeding for an offence against this 8 Act, a statement that the matter of the complaint came to the 9 complainant's knowledge on a stated day is evidence the 10 matter came to the complainant's knowledge on that day. 11 Chapter 4 Miscellaneous provisions 12 88 Supervision by inspector 13 If a direction or requirement under this Act allows or requires 14 a person to take action, the direction or requirement may also 15 require the person to take the action under an inspector's 16 supervision. 17 89 Reasonable excuse defences 18 A provision of this Act that states what is or is not a 19 reasonable excuse for a provision of this Act does not limit the 20 reasonable excuses that may be relied on in relation to the 21 provision. 22 90 Protection from liability for particular persons 23 (1) A person as follows (a designated person) does not incur civil 24 liability for an act done, or omission made, honestly and 25 without negligence under this Act-- 26 Page 59

 


 

Fair Trading Inspectors Bill 2011 Chapter 4 Miscellaneous provisions [s 91] (a) the chief executive; 1 (b) an inspector; 2 (c) a person acting under the authority or direction of an 3 inspector. 4 (2) If subsection (1) prevents a civil liability attaching to a 5 designated person, the liability attaches instead to the State. 6 (3) In this section-- 7 civil liability includes liability for the payment of costs 8 ordered to be paid in a proceeding for an offence against this 9 Act. 10 91 Delegation by chief executive 11 (1) The chief executive may delegate the chief executive's 12 functions under this Act to an appropriately qualified public 13 service employee. 14 (2) In this section-- 15 appropriately qualified includes having the qualifications, 16 experience or standing appropriate for the functions. 17 Example of standing-- 18 a person's classification level in the public service 19 92 Confidentiality of information 20 (1) An inspector must not, whether directly or indirectly, disclose 21 confidential information. 22 Maximum penalty--100 penalty units. 23 (2) However, subsection (1) does not apply if-- 24 (a) the confidential information is disclosed-- 25 (i) in the performance of functions under this Act; or 26 (ii) with the written consent of the person to whom the 27 information relates; or 28 (iii) to the person to whom the information relates; or 29 Page 60

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 1 Purposes, definitions and general approach [s 93] (iv) in a form that could not identify any person; or 1 (b) the disclosure of the confidential information is 2 authorised under an Act or another law. 3 (3) In this section-- 4 confidential information means information that has become 5 known to an inspector in the course of performing the 6 inspector's functions for this Act. 7 93 Approved forms 8 The chief executive may approve forms for use under this Act. 9 94 Regulation-making power 10 (1) The Governor in Council may make regulations under this 11 Act. 12 (2) A regulation may impose a penalty of no more than 20 penalty 13 units for a contravention of a regulation. 14 Chapter 5 Transitional provisions 15 Part 1 Purposes, definitions and 16 general approach 17 95 Main purposes of ch 5 18 The main purposes of this chapter are-- 19 (a) to provide for provisions of this Act that are 20 substantially the same as repealed provisions of a 21 primary Act to be dealt with as replacements of the 22 repealed provisions; and 23 Page 61

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 1 Purposes, definitions and general approach [s 96] (b) without limiting paragraph (a), if matters relating to the 1 appointment and powers of inspectors for a primary Act, 2 and the procedures relating to the exercise of the 3 powers, were dealt with in a primary Act, to provide for 4 the continuation of the matters under this Act. 5 96 Definitions for ch 5 6 In this chapter-- 7 commencement means the day this section commences. 8 corresponding provision, for a previous provision of a 9 primary Act, means a provision of this Act that is 10 substantially the same as the previous provision of the 11 primary Act. 12 made includes given and issued. 13 obligation includes duty. 14 previous, in relation to a stated provision of a primary Act that 15 includes a number, means the provision of the primary Act 16 with that number immediately before the commencement, if 17 the provision is repealed under this Act. 18 previous provision, of a primary Act, means a provision of the 19 primary Act, as in force immediately before the 20 commencement, if the provision is repealed under this Act. 21 protection includes a statement to the effect of any of the 22 following-- 23 (a) that there is no liability; 24 (b) that there is no invalidity; 25 (c) that a person has an entitlement. 26 97 Document, action, obligation or protection under 27 previous provision of primary Act 28 (1) This section applies to any of the following-- 29 Page 62

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 1 Purposes, definitions and general approach [s 98] (a) a document made or kept under a previous provision of 1 a primary Act (the relevant previous provision for the 2 document) if the document continued to have effect or 3 was in force immediately before the commencement; 4 (b) an action done under a previous provision of a primary 5 Act (the relevant previous provision for the action) if 6 the action continued to have effect immediately before 7 the commencement; 8 (c) an entity's obligation under a previous provision of a 9 primary Act (the relevant previous provision for the 10 obligation) if the obligation applied to the entity 11 immediately before the commencement; 12 (d) an entity's protection under a previous provision of a 13 primary Act (the relevant previous provision for the 14 protection) that applied to the entity immediately before 15 the commencement. 16 (2) Subject to a specific provision of this Act in relation to the 17 document, action, obligation or protection, if there is a 18 corresponding provision for the relevant previous provision 19 for the document, action, obligation or protection, the 20 document, action, obligation or protection-- 21 (a) continues in force or to have effect according to its 22 terms; and 23 (b) may be taken to have been made, kept or done under the 24 corresponding provision. 25 (3) Subsection (2)(b) applies whether or not the relevant previous 26 provision refers to the document, action, obligation or 27 protection by reference to a provision of the primary Act. 28 (4) Other provisions of this part include examples of the 29 operation of this section. 30 98 Terminology in things mentioned in s 97(1) 31 (1) This section applies to a document (the relevant document) 32 that is-- 33 Page 63

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 1 Purposes, definitions and general approach [s 99] (a) a document as mentioned in section 97(1); or 1 (b) evidence of a document, action, obligation or protection 2 as mentioned in section 97(1). 3 (2) A reference in the relevant document to a document, action, 4 obligation or protection as mentioned in section 97(1) is to be 5 read, if the context permits and with the necessary changes to 6 terminology, as if the document, action, obligation or 7 protection were made, kept or done under this Act. 8 Example for subsection (2)-- 9 An instrument of appointment given under a primary Act by the chief 10 executive to an inspector limiting the powers of the inspector is to be 11 read as if the instrument limited the powers of the inspector under this 12 Act. 13 99 Period stated in previous provision 14 (1) This section applies if, in a previous provision of a primary 15 Act, there is a period for doing something, and the period for 16 doing the thing started but did not finish before the 17 commencement. 18 (2) If there is a corresponding provision to the previous provision 19 of the primary Act and both the corresponding provision and 20 the previous provision provide for the same period, the period 21 for doing the thing continues to have started from when the 22 period started under the previous provision but ends under the 23 corresponding provision. 24 100 Period or date stated in document given under previous 25 provision 26 (1) This section applies if-- 27 (a) there was a previous provision of a primary Act that 28 provided for a document to be made under it; and 29 (b) there is a corresponding provision to the previous 30 provision of the primary Act; and 31 Page 64

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 1 Purposes, definitions and general approach [s 101] (c) under the previous provision and before the 1 commencement, a document was given to a person, 2 whether or not the person had received the document 3 before the commencement. 4 Example for paragraph (c)-- 5 a notice under the Residential Services (Accreditation) Act 2002, 6 previous section 127, that states a period within which a person 7 who is in control of a thing to be seized must take the thing to a 8 place stated in the notice 9 (2) If the document stated a period for doing something-- 10 (a) the stated period continues to apply for doing the thing; 11 and 12 (b) the period continues to have started from when the 13 period started under the previous provision of the 14 primary Act. 15 (3) If the document stated a day before which, or by which, a 16 thing is to be done (however expressed), the thing must be 17 done by the stated day. 18 101 Action happening before commencement may be 19 relevant to proceeding for particular acts or omissions 20 (1) An action as mentioned in section 97(1) happening before the 21 commencement may be relevant to a proceeding relating to a 22 contravention of a provision of this Act involving an act or 23 omission that happened after the commencement. 24 (2) This section does not limit the Acts Interpretation Act 1954, 25 section 20C. 26 (3) In this section-- 27 contravention includes an alleged contravention. 28 102 Acts Interpretation Act 1954, s 20 not limited 29 This chapter does not limit the Acts Interpretation Act 1954, 30 section 20. 31 Page 65

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 2 Transitional provisions relating to particular provisions of primary Acts [s 103] Part 2 Transitional provisions relating 1 to particular provisions of 2 primary Acts 3 Division 1 Examples for chapter 2 4 103 Examples for ch 2 of documents under s 97 5 For the operation of chapter 2, the following are examples of 6 documents as mentioned in section 97(1)(a) in relation to 7 matters dealt with under a primary Act-- 8 (a) an acknowledgement given under a previous provision 9 of a primary Act of consent for an inspector to enter a 10 place; 11 Examples of previous provisions-- 12 the Residential Services (Accreditation) Act 2002, previous 13 section 114 14 the Second-hand Dealers and Pawnbrokers Act 2003, 15 previous section 83 16 the Travel Agents Act 1988, previous section 45I 17 (b) a warrant issued under a previous provision of a primary 18 Act; 19 Examples of previous provisions-- 20 the Residential Services (Accreditation) Act 2002, previous 21 section 116 22 the Retirement Villages Act 1999, previous section 142 23 the Second-hand Dealers and Pawnbrokers Act 2003, 24 previous section 85 25 the Travel Agents Act 1988, previous section 45B 26 (c) a notice under a previous provision of a primary Act 27 requiring a person to take a thing to be seized to a stated 28 place; 29 Page 66

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 2 Transitional provisions relating to particular provisions of primary Acts [s 104] Example of previous provision-- 1 the Residential Services (Accreditation) Act 2002, previous 2 section 127 3 (d) a notice under the Residential Services (Accreditation) 4 Act 2002, previous section 133 requiring a person to 5 give information; 6 (e) a receipt for a seized thing under a previous provision of 7 a primary Act; 8 Examples of previous provisions-- 9 the Second-hand Dealers and Pawnbrokers Act 2003, 10 previous section 91 11 the Tourism Services Act 2003, previous section 55 12 (f) an information notice under a previous provision of a 13 primary Act; 14 Example of previous provision-- 15 a QCAT information notice under the Tourism Services Act 16 2003, previous section 56 17 104 Examples for ch 2 of obligations under s 97 18 For the operation of chapter 2, the following are examples of 19 an obligation as mentioned in section 97(1)(c) in relation to 20 matters dealt with under a primary Act-- 21 (a) an obligation under a previous provision of a primary 22 Act for an inspector to give notice of the particulars of 23 damage to anything; 24 Examples of previous provisions-- 25 the Manufactured Homes (Residential Parks) Act 2003, 26 previous section 123 27 the Residential Services (Accreditation) Act 2002, previous 28 section 137 29 the Tourism Services Act 2003, previous section 63 30 Page 67

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 2 Transitional provisions relating to particular provisions of primary Acts [s 104] (b) an obligation under a previous provision of a primary 1 Act to return a seized thing to the person from whom it 2 is seized or its owner; 3 Examples of previous provisions-- 4 the Land Sales Act 1984, previous section 30H(3) 5 the Manufactured Homes (Residential Parks) Act 2003, 6 previous section 120 7 the Residential Services (Accreditation) Act 2002, previous 8 section 130 9 the Security Providers Act 1993, previous section 39 10 (c) an obligation under a previous provision of a primary 11 Act to allow an owner of a seized thing to inspect the 12 thing; 13 Examples of previous provisions-- 14 the Land Sales Act 1984, previous section 30H(2) 15 the Manufactured Homes (Residential Parks) Act 2003, 16 previous section 121 17 the Residential Services (Accreditation) Act 2002, previous 18 section 131 19 (d) a requirement under a previous provision of a primary 20 Act to make a particular document available for 21 inspection; 22 Examples of previous provisions-- 23 the Manufactured Homes (Residential Parks) Act 2003, 24 previous section 122 25 the Residential Services (Accreditation) Act 2002, previous 26 section 134 27 (e) a requirement under the Residential Services 28 (Accreditation) Act 2002, previous section 127, to take a 29 thing to be seized to a stated place. 30 Page 68

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 2 Transitional provisions relating to particular provisions of primary Acts [s 105] 105 Examples for ch 2 of protections under s 97 1 For the operation of chapter 2, the following are examples of a 2 protection as mentioned in section 97(1)(d) in relation to 3 matters dealt with under a primary Act-- 4 (a) the statement in the Land Sales Act 1984, previous 5 section 30F(5), that particular information or a 6 particular document is not admissible in evidence 7 against an individual in any criminal proceedings; 8 (b) a right for a person to claim compensation under a 9 previous provision of a primary Act. 10 Examples of previous provisions-- 11 the Land Sales Act 1984, previous section 30J 12 the Manufactured Homes (Residential Parks) Act 2003, 13 previous section 124 14 the Residential Services (Accreditation) Act 2002, previous 15 section 138 16 the Retirement Villages Act 1999, previous section 152 17 the Security Providers Act 1993, previous section 46 18 the Travel Agents Act 1988, previous section 45H 19 Division 2 General matters 20 106 Existing authorised officers 21 (1) This section applies to a person who-- 22 (a) before the commencement, was appointed under a 23 primary Act as an authorised officer; and 24 (b) still held the appointment immediately before the 25 commencement. 26 Note-- 27 The relevant primary Acts are the Residential Services (Accreditation) 28 Act 2002, the Second-hand Dealers and Pawnbrokers Act 2003 and the 29 Travel Agents Act 1988. 30 Page 69

 


 

Fair Trading Inspectors Bill 2011 Chapter 5 Transitional provisions Part 2 Transitional provisions relating to particular provisions of primary Acts [s 107] (2) On the commencement-- 1 (a) the person's appointment as an authorised officer under 2 the primary Act ends; and 3 (b) the person is taken to hold office under this Act as an 4 inspector for the primary Act on the conditions stated in 5 the person's instrument of appointment under the 6 primary Act. 7 107 Existing inspectors 8 (1) This section applies to a person who-- 9 (a) before the commencement, was appointed under a 10 primary Act as an inspector; and 11 (b) still held the appointment immediately before the 12 commencement. 13 Note-- 14 The relevant primary Acts are the Introduction Agents Act 2001, the 15 Manufactured Homes (Residential Parks) Act 2003 and the Security 16 Providers Act 1993, but not the Tourism Services Act 2003 or the Travel 17 Agents Act 1988 which adopted inspectors appointed under the Fair 18 Trading Act 1989. 19 (2) On the commencement, the person is taken to hold office 20 under this Act as an inspector for the primary Act on the 21 conditions stated in the person's instrument of appointment 22 under the primary Act. 23 108 Reviews and appeals 24 Previous provisions of any primary Act that provide for 25 review or appeal of a decision made under the primary Act 26 continue to apply after the commencement in relation to a 27 decision made before the commencement as if the primary 28 Act had not been amended by this Act. 29 Page 70

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 1 Amendment of Funeral Benefit Business Act 1982 [s 109] 109 References in Acts and documents 1 A reference in an Act or document to a previous provision of a 2 primary Act may, if the context permits, be taken as a 3 reference to the corresponding provision of the previous 4 provision. 5 Chapter 6 Amendment of Acts 6 Part 1 Amendment of Funeral Benefit 7 Business Act 1982 8 110 Act amended 9 This part amends the Funeral Benefit Business Act 1982. 10 111 Insertion of new s 3 11 After section 2-- 12 insert-- 13 `3 Relationship with Fair Trading Inspectors Act 2011 14 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 15 common provisions for this Act and particular other Acts 16 about fair trading. 17 `(2) Unless this Act otherwise provides in relation to the FTI Act, 18 the powers that an inspector has under that Act are in addition 19 to and do not limit any powers the inspector has under this 20 Act.'. 21 112 Amendment of s 5 (Definitions) 22 (1) Section 5, definition inspector-- 23 Page 71

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 1 Amendment of Funeral Benefit Business Act 1982 [s 113] omit. 1 (2) Section 5-- 2 insert-- 3 `disposal order see section 81D(2). 4 FTI Act see section 3(1). 5 inspector means a person who holds office under the FTI Act 6 as an inspector for this Act.'. 7 113 Replacement of pt 2, hdg (Appointment of officers) 8 Part 2, heading-- 9 omit, insert-- 10 `Part 2 The registrar'. 11 114 Omission of ss 6B-6D 12 Sections 6B to 6D-- 13 omit. 14 115 Amendment of s 52 (Cancellation of registration by 15 QCAT) 16 Section 52(14), `whether as registrar or as an inspector under 17 this Act,'-- 18 omit. 19 116 Replacement of s 81 (Powers of inspectors) 20 Section 81-- 21 omit, insert-- 22 Page 72

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 1 Amendment of Funeral Benefit Business Act 1982 [s 116] `Division 1 Forfeiture and disposal orders 1 `81 Forfeiture on conviction 2 `(1) On the conviction of a person for an offence against this Act, 3 the court may order the forfeiture to the State of-- 4 (a) anything used to commit the offence; or 5 (b) anything else the subject of the offence. 6 `(2) The court may make any order to enforce the forfeiture it 7 considers appropriate. 8 `(3) This section does not limit the court's powers under another 9 law. 10 `81A Procedure and powers for making forfeiture order 11 `(1) A forfeiture order may be made on a conviction on the court's 12 initiative or on an application by the prosecution. 13 `(2) In deciding whether to make a forfeiture order for a thing, the 14 court-- 15 (a) may require notice to be given to anyone the court 16 considers appropriate, including, for example, any 17 person who may have any property in the thing; and 18 (b) must hear any submissions that any person claiming to 19 have any property in the thing may wish to make. 20 `81B When thing becomes property of the State 21 `A thing becomes the property of the State if-- 22 (a) the thing is forfeited to the State under a forfeiture 23 order; or 24 (b) the owner of the thing and the State agree, in writing, to 25 the transfer of the ownership of the thing to the State. 26 Page 73

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 1 Amendment of Funeral Benefit Business Act 1982 [s 116] `81C How property may be dealt with 1 `(1) This section applies if, under section 81B, a thing becomes the 2 property of the State. 3 `(2) The chief executive may deal with the thing as the chief 4 executive considers appropriate, including, for example, by 5 destroying it or giving it away. 6 `(3) The chief executive must not deal with the thing in a way that 7 could prejudice the outcome of an appeal against the 8 forfeiture under this Act. 9 `(4) If the chief executive sells the thing, the chief executive may, 10 after deducting the costs of the sale, return the proceeds of the 11 sale to the person who was the thing's owner immediately 12 before the thing became the property of the State. 13 `(5) This section is subject to any disposal order made for the 14 thing. 15 `81D Disposal order 16 `(1) This section applies if a person is convicted of an offence 17 against this Act. 18 `(2) The court may make an order (a disposal order), on its own 19 initiative or on an application by the prosecution, for the 20 disposal of any of the following things owned by the person-- 21 (a) anything that was the subject of, or used to commit, the 22 offence; 23 (b) another thing the court considers is likely to be used by 24 the person or another person in committing a further 25 offence against this Act. 26 `(3) In deciding whether to make a disposal order for a thing, the 27 court-- 28 (a) may require notice to be given to anyone the court 29 considers appropriate, including, for example, any 30 person who may have any property in the thing; and 31 Page 74

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 2 Amendment of Introduction Agents Act 2001 [s 117] (b) must hear any submissions that any person claiming to 1 have any property in the thing may wish to make. 2 `(4) The court may make any order to enforce the disposal order 3 that it considers appropriate. 4 `(5) This section does not limit the court's powers under another 5 law. 6 `Division 2 Evidence and legal proceedings'. 7 117 Insertion of new pt 8, div 3, hdg 8 After section 85-- 9 insert-- 10 `Division 3 Miscellaneous provisions'. 11 Part 2 Amendment of Introduction 12 Agents Act 2001 13 118 Act amended 14 This part amends the Introduction Agents Act 2001. 15 119 Insertion of new s 4A 16 Part 1-- 17 insert-- 18 `4A Relationship with Fair Trading Inspectors Act 2011 19 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 20 common provisions for this Act and particular other Acts 21 about fair trading. 22 Page 75

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 2 Amendment of Introduction Agents Act 2001 [s 120] `(2) Unless this Act otherwise provides in relation to the FTI Act, 1 the powers that an inspector has under that Act are in addition 2 to and do not limit any powers the inspector may have under 3 this Act. 4 `(3) In this section-- 5 inspector means a person who holds office under the FTI Act 6 as an inspector for this Act.'. 7 120 Amendment of pt 2, div 1, hdg (Definitions and notes) 8 Part 2, division 1, heading, `and notes'-- 9 omit. 10 121 Omission of s 6 (Notes in text) 11 Section 6-- 12 omit. 13 122 Replacement of pt 6 (Enforcement) 14 Part 6-- 15 omit, insert-- 16 `Part 6 Forfeiture and disposal orders 17 `61 Forfeiture on conviction 18 `(1) On the conviction of a person for an offence against this Act, 19 the court may order the forfeiture to the State of-- 20 (a) anything used to commit the offence; or 21 (b) anything else the subject of the offence. 22 `(2) The court may make any order to enforce the forfeiture it 23 considers appropriate. 24 Page 76

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 2 Amendment of Introduction Agents Act 2001 [s 122] `(3) This section does not limit the court's powers under another 1 law. 2 `62 Procedure and powers for making forfeiture order 3 `(1) A forfeiture order may be made on a conviction on the court's 4 initiative or on an application by the prosecution. 5 `(2) In deciding whether to make a forfeiture order for a thing, the 6 court-- 7 (a) may require notice to be given to anyone the court 8 considers appropriate, including, for example, any 9 person who may have any property in the thing; and 10 (b) must hear any submissions that any person claiming to 11 have any property in the thing may wish to make. 12 `63 When thing becomes property of the State 13 `A thing becomes the property of the State if-- 14 (a) the thing is forfeited to the State under a forfeiture 15 order; or 16 (b) the owner of the thing and the State agree, in writing, to 17 the transfer of the ownership of the thing to the State. 18 `64 How property may be dealt with 19 `(1) This section applies if, under section 63, a thing becomes the 20 property of the State. 21 `(2) The chief executive may deal with the thing as the chief 22 executive considers appropriate, including, for example, by 23 destroying it or giving it away. 24 `(3) The chief executive must not deal with the thing in a way that 25 could prejudice the outcome of an appeal against the 26 forfeiture under this Act. 27 Page 77

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 2 Amendment of Introduction Agents Act 2001 [s 123] `(4) If the chief executive sells the thing, the chief executive may, 1 after deducting the costs of the sale, return the proceeds of the 2 sale to the person who was the thing's owner immediately 3 before the thing became the property of the State. 4 `(5) This section is subject to any disposal order made for the 5 thing. 6 `65 Disposal order 7 `(1) This section applies if a person is convicted of an offence 8 against this Act. 9 `(2) The court may make an order (a disposal order), on its own 10 initiative or on an application by the prosecution, for the 11 disposal of any of the following things owned by the person-- 12 (a) anything that was the subject of, or used to commit, the 13 offence; 14 (b) another thing the court considers is likely to be used by 15 the person or another person in committing a further 16 offence against this Act. 17 `(3) In deciding whether to make a disposal order for a thing, the 18 court-- 19 (a) may require notice to be given to anyone the court 20 considers appropriate, including, for example, any 21 person who may have any property in the thing; and 22 (b) must hear any submissions that any person claiming to 23 have any property in the thing may wish to make. 24 `(4) The court may make any order to enforce the disposal order 25 that it considers appropriate. 26 `(5) This section does not limit the court's powers under another 27 law.'. 28 123 Amendment of s 91 (Evidence) 29 (1) Section 91(2)-- 30 Page 78

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 3 Amendment of Land Sales Act 1984 [s 124] omit. 1 (2) Section 91(3), `or an inspector'-- 2 omit. 3 (3) Section 91(3) and (4)-- 4 renumber as section 91(2) and (3). 5 124 Amendment of s 96 (Protecting officials from liability) 6 Section 96(4), definition official, paragraphs (d) and (e)-- 7 omit, insert-- 8 `(d) a public service employee.'. 9 125 Amendment of sch 2 (Dictionary) 10 (1) Schedule 2, definition inspector-- 11 omit. 12 (2) Schedule 2-- 13 insert-- 14 `disposal order see section 65(2).'. 15 Part 3 Amendment of Land Sales Act 16 1984 17 126 Act amended 18 This part amends the Land Sales Act 1984. 19 127 Insertion of new s 5A 20 After section 5-- 21 Page 79

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 3 Amendment of Land Sales Act 1984 [s 128] insert-- 1 `5A Relationship with Fair Trading Inspectors Act 2011 2 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 3 common provisions for this Act and particular other Acts 4 about fair trading. 5 `(2) Unless this Act otherwise provides in relation to the FTI Act, 6 the powers that an inspector has under that Act are in addition 7 to and do not limit any powers the inspector may have under 8 this Act. 9 `(3) In this section-- 10 inspector means a person who holds office under the FTI Act 11 as an inspector for this Act.'. 12 128 Amendment of s 6 (Definitions) 13 Section 6-- 14 insert-- 15 `disposal order see section 30D(2).'. 16 129 Replacement of pt 3A (Enforcement) 17 Part 3A-- 18 omit, insert-- 19 `Part 3A Forfeiture and disposal orders 20 `30 Forfeiture on conviction 21 `(1) On the conviction of a person for an offence against this Act, 22 the court may order the forfeiture to the State of-- 23 (a) anything used to commit the offence; or 24 (b) anything else the subject of the offence. 25 `(2) The court may make any order to enforce the forfeiture it 26 considers appropriate. 27 Page 80

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 3 Amendment of Land Sales Act 1984 [s 129] `(3) This section does not limit the court's powers under another 1 law. 2 `30A Procedure and powers for making forfeiture order 3 `(1) A forfeiture order may be made on a conviction on the court's 4 initiative or on an application by the prosecution. 5 `(2) In deciding whether to make a forfeiture order for a thing, the 6 court-- 7 (a) may require notice to be given to anyone the court 8 considers appropriate, including, for example, any 9 person who may have any property in the thing; and 10 (b) must hear any submissions that any person claiming to 11 have any property in the thing may wish to make. 12 `30B When thing becomes property of the State 13 `A thing becomes the property of the State if-- 14 (a) the thing is forfeited to the State under a forfeiture 15 order; or 16 (b) the owner of the thing and the State agree, in writing, to 17 the transfer of the ownership of the thing to the State. 18 `30C How property may be dealt with 19 `(1) This section applies if, under section 30B, a thing becomes the 20 property of the State. 21 `(2) The chief executive may deal with the thing as the chief 22 executive considers appropriate, including, for example, by 23 destroying it or giving it away. 24 `(3) The chief executive must not deal with the thing in a way that 25 could prejudice the outcome of an appeal against the 26 forfeiture under this Act. 27 Page 81

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 3 Amendment of Land Sales Act 1984 [s 129] `(4) If the chief executive sells the thing, the chief executive may, 1 after deducting the costs of the sale, return the proceeds of the 2 sale to the person who was the thing's owner immediately 3 before the thing became the property of the State. 4 `(5) This section is subject to any disposal order made for the 5 thing. 6 `30D Disposal order 7 `(1) This section applies if a person is convicted of an offence 8 against this Act. 9 `(2) The court may make an order (a disposal order), on its own 10 initiative or on an application by the prosecution, for the 11 disposal of any of the following things owned by the person-- 12 (a) anything that was the subject of, or used to commit, the 13 offence; 14 (b) another thing the court considers is likely to be used by 15 the person or another person in committing a further 16 offence against this Act. 17 `(3) In deciding whether to make a disposal order for a thing, the 18 court-- 19 (a) may require notice to be given to anyone the court 20 considers appropriate, including, for example, any 21 person who may have any property in the thing; and 22 (b) must hear any submissions that any person claiming to 23 have any property in the thing may wish to make. 24 `(4) The court may make any order to enforce the disposal order 25 that it considers appropriate. 26 `(5) This section does not limit the court's powers under another 27 law.'. 28 Page 82

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 4 Amendment of Manufactured Homes (Residential Parks) Act 2003 [s 130] Part 4 Amendment of Manufactured 1 Homes (Residential Parks) Act 2 2003 3 130 Act amended 4 This part amends the Manufactured Homes (Residential 5 Parks) Act 2003. 6 131 Amendment of pt 1, div 2, hdg (Objects) 7 Part 1, division 2, heading, after `Objects'-- 8 insert-- 9 `of Act and relationship with FTI Act'. 10 132 Insertion of new s 4A 11 Part 1, division 2-- 12 insert-- 13 `4A Relationship with Fair Trading Inspectors Act 2011 14 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 15 common provisions for this Act and particular other Acts 16 about fair trading. 17 `(2) Unless this Act otherwise provides in relation to the FTI Act, 18 the powers that an inspector has under that Act are in addition 19 to and do not limit any powers the inspector may have under 20 this Act. 21 `(3) In this section-- 22 inspector means a person who holds office under the FTI Act 23 as an inspector for this Act. 24 Note-- 25 See also the modifying provisions for this Act stated in the FTI Act, 26 schedule 1.'. 27 Page 83

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 4 Amendment of Manufactured Homes (Residential Parks) Act 2003 [s 133] 133 Replacement of pts 16 and 17 1 Parts 16 and 17-- 2 omit, insert-- 3 `Part 16 Forfeiture and disposal orders 4 `104 Forfeiture on conviction 5 `(1) On the conviction of a person for an offence against this Act, 6 the court may order the forfeiture to the State of-- 7 (a) anything used to commit the offence; or 8 (b) anything else the subject of the offence. 9 `(2) The court may make any order to enforce the forfeiture it 10 considers appropriate. 11 `(3) This section does not limit the court's powers under another 12 law. 13 `105 Procedure and powers for making forfeiture order 14 `(1) A forfeiture order may be made on a conviction on the court's 15 initiative or on an application by the prosecution. 16 `(2) In deciding whether to make a forfeiture order for a thing, the 17 court-- 18 (a) may require notice to be given to anyone the court 19 considers appropriate, including, for example, any 20 person who may have any property in the thing; and 21 (b) must hear any submissions that any person claiming to 22 have any property in the thing may wish to make. 23 `106 When thing becomes property of the State 24 `A thing becomes the property of the State if-- 25 (a) the thing is forfeited to the State under a forfeiture 26 order; or 27 Page 84

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 4 Amendment of Manufactured Homes (Residential Parks) Act 2003 [s 133] (b) the owner of the thing and the State agree, in writing, to 1 the transfer of the ownership of the thing to the State. 2 `107 How property may be dealt with 3 `(1) This section applies if, under section 106, a thing becomes the 4 property of the State. 5 `(2) The chief executive may deal with the thing as the chief 6 executive considers appropriate, including, for example, by 7 destroying it or giving it away. 8 `(3) The chief executive must not deal with the thing in a way that 9 could prejudice the outcome of an appeal against the 10 forfeiture under this Act. 11 `(4) If the chief executive sells the thing, the chief executive may, 12 after deducting the costs of the sale, return the proceeds of the 13 sale to the person who was the thing's owner immediately 14 before the thing became the property of the State. 15 `(5) This section is subject to any disposal order made for the 16 thing. 17 `108 Disposal order 18 `(1) This section applies if a person is convicted of an offence 19 against this Act. 20 `(2) The court may make an order (a disposal order), on its own 21 initiative or on an application by the prosecution, for the 22 disposal of any of the following things owned by the person-- 23 (a) anything that was the subject of, or used to commit, the 24 offence; 25 (b) another thing the court considers is likely to be used by 26 the person or another person in committing a further 27 offence against this Act. 28 `(3) In deciding whether to make a disposal order for a thing, the 29 court-- 30 Page 85

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 4 Amendment of Manufactured Homes (Residential Parks) Act 2003 [s 134] (a) may require notice to be given to anyone the court 1 considers appropriate, including, for example, any 2 person who may have any property in the thing; and 3 (b) must hear any submissions that any person claiming to 4 have any property in the thing may wish to make. 5 `(4) The court may make any order to enforce the disposal order 6 that it considers appropriate. 7 `(5) This section does not limit the court's powers under another 8 law.'. 9 134 Amendment of s 134 (Appointments and authority) 10 Section 134(1)(b) and (c)-- 11 omit, insert-- 12 `(b) the authority of the chief executive to do anything under 13 this Act.'. 14 135 Amendment of s 143 (Protection from liability) 15 (1) Section 143(1), `An official'-- 16 omit, insert-- 17 `The chief executive'. 18 (2) Section 143(2), `an official'-- 19 omit, insert-- 20 `the chief executive'. 21 (3) Section 143(3)-- 22 omit. 23 136 Amendment of schedule (Dictionary) 24 (1) Schedule, definition inspector-- 25 omit. 26 Page 86

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 5 Amendment of Residential Services (Accreditation) Act 2002 [s 137] (2) Schedule-- 1 insert-- 2 `disposal order see section 108(2). 3 FTI Act see section 4A(1)'. 4 Part 5 Amendment of Residential 5 Services (Accreditation) Act 6 2002 7 137 Act amended 8 This part amends the Residential Services (Accreditation) Act 9 2002. 10 138 Insertion of new s 2A 11 Part 1, division 1-- 12 insert-- 13 `2A Relationship with Fair Trading Inspectors Act 2011 14 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 15 common provisions for this Act and particular other Acts 16 about fair trading. 17 `(2) Unless this Act otherwise provides in relation to the FTI Act, 18 the powers that an inspector has under that Act are in addition 19 to and do not limit any powers the inspector may have under 20 this Act. 21 `(3) In this section-- 22 inspector means a person who holds office under the FTI Act 23 as an inspector for this Act. 24 Page 87

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 5 Amendment of Residential Services (Accreditation) Act 2002 [s 139] Note-- 1 See also the modifying provisions for this Act stated in the FTI Act, 2 schedule 1.'. 3 139 Replacement of pt 8 (Investigation and enforcement) 4 Part 8, other than section 139-- 5 omit, insert-- 6 `Part 8 Forfeiture and disposal orders 7 `105 Forfeiture on conviction 8 `(1) On the conviction of a person for an offence against this Act, 9 the court may order the forfeiture to the State of-- 10 (a) anything used to commit the offence; or 11 (b) anything else the subject of the offence. 12 `(2) The court may make any order to enforce the forfeiture it 13 considers appropriate. 14 `(3) This section does not limit the court's powers under another 15 law. 16 `106 Procedure and powers for making forfeiture order 17 `(1) A forfeiture order may be made on a conviction on the court's 18 initiative or on an application by the prosecution. 19 `(2) In deciding whether to make a forfeiture order for a thing, the 20 court-- 21 (a) may require notice to be given to anyone the court 22 considers appropriate, including, for example, any 23 person who may have any property in the thing; and 24 (b) must hear any submissions that any person claiming to 25 have any property in the thing may wish to make. 26 Page 88

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 5 Amendment of Residential Services (Accreditation) Act 2002 [s 139] `107 When thing becomes property of the State 1 `A thing becomes the property of the State if-- 2 (a) the thing is forfeited to the State under a forfeiture 3 order; or 4 (b) the owner of the thing and the State agree, in writing, to 5 the transfer of the ownership of the thing to the State. 6 `108 How property may be dealt with 7 `(1) This section applies if, under section 107, a thing becomes the 8 property of the State. 9 `(2) The chief executive may deal with the thing as the chief 10 executive considers appropriate, including, for example, by 11 destroying it or giving it away. 12 `(3) The chief executive must not deal with the thing in a way that 13 could prejudice the outcome of an appeal against the 14 forfeiture under this Act. 15 `(4) If the chief executive sells the thing, the chief executive may, 16 after deducting the costs of the sale, return the proceeds of the 17 sale to the person who was the thing's owner immediately 18 before the thing became the property of the State. 19 `(5) This section is subject to any disposal order made for the 20 thing. 21 `109 Disposal order 22 `(1) This section applies if a person is convicted of an offence 23 against this Act. 24 `(2) The court may make an order (a disposal order), on its own 25 initiative or on an application by the prosecution, for the 26 disposal of any of the following things owned by the person-- 27 (a) anything that was the subject of, or used to commit, the 28 offence; 29 Page 89

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 5 Amendment of Residential Services (Accreditation) Act 2002 [s 140] (b) another thing the court considers is likely to be used by 1 the person or another person in committing a further 2 offence against this Act. 3 `(3) In deciding whether to make a disposal order for a thing, the 4 court-- 5 (a) may require notice to be given to anyone the court 6 considers appropriate, including, for example, any 7 person who may have any property in the thing; and 8 (b) must hear any submissions that any person claiming to 9 have any property in the thing may wish to make. 10 `(4) The court may make any order to enforce the disposal order 11 that it considers appropriate. 12 `(5) This section does not limit the court's powers under another 13 law. 14 `110 Procedure and powers for making disposal order 15 `(1) A disposal order may be made on the court's initiative or on 16 an application by or for the prosecution. 17 `(2) In deciding whether to make a disposal order for a thing, the 18 court-- 19 (a) may require notice to be given to anyone the court 20 considers appropriate, including, for example, any 21 person who may have any property in the thing; and 22 (b) must hear any submissions that any person claiming to 23 have any property in the thing may wish to make.'. 24 140 Relocation and renumbering of s 139 (Alteration of 25 certificates) 26 Section 139-- 27 relocate and renumber as section 82A. 28 Page 90

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 5 Amendment of Residential Services (Accreditation) Act 2002 [s 141] 141 Amendment of s 165 (Appointments and authority) 1 Section 165, `, an associated accreditation officer or an 2 authorised officer, or the authority of the chief executive or an 3 authorised officer'-- 4 omit, insert-- 5 `or an associated accreditation officer, or the authority of the 6 chief executive'. 7 142 Amendment of s 166 (Signatures) 8 Section 166, `or an authorised officer'-- 9 omit. 10 143 Amendment of s 167 (Other evidentiary aids) 11 Section 167(f), `residential service, associated accreditation 12 officer or authorised officer'-- 13 omit, insert-- 14 `residential service or as an associated accreditation officer'. 15 144 Amendment of s 180 (Confidentiality) 16 Section 180(1)(a), `, an associated accreditation officer or an 17 authorised officer'-- 18 omit, insert-- 19 `or an associated accreditation officer'. 20 145 Amendment of s 182 (Protection from liability) 21 Section 182(3), definition official, paragraphs (d) and (e)-- 22 omit, insert-- 23 `(d) a person acting under the direction of the chief 24 executive.'. 25 Page 91

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 6 Amendment of Retirement Villages Act 1999 [s 146] 146 Amendment of sch 2 (Dictionary) 1 (1) Schedule 2, definition authorised officer-- 2 omit. 3 (2) Schedule 2-- 4 insert-- 5 `disposal order see section 109(2).'. 6 Part 6 Amendment of Retirement 7 Villages Act 1999 8 147 Act amended 9 This part amends the Retirement Villages Act 1999. 10 148 Amendment of pt 1, div 2, hdg (Objects) 11 Part 1, division 2, heading, after `Objects'-- 12 insert-- 13 `of Act and relationship with FTI Act'. 14 149 Insertion of new s 3A 15 Part 1, division 2-- 16 insert-- 17 `3A Relationship with Fair Trading Inspectors Act 2011 18 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 19 common provisions for this Act and particular other Acts 20 about fair trading. 21 `(2) Unless this Act otherwise provides in relation to the FTI Act, 22 the powers that an inspector has under that Act are in addition 23 Page 92

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 6 Amendment of Retirement Villages Act 1999 [s 150] to and do not limit any powers the inspector may have under 1 this Act. 2 `(3) In this section-- 3 inspector means a person who holds office under the FTI Act 4 as an inspector for this Act. 5 Note-- 6 See also the modifying provisions for this Act stated in the FTI Act, 7 schedule 1.'. 8 150 Replacement of pt 8 (Enforcement) 9 Part 8-- 10 omit, insert-- 11 `Part 8 Forfeiture and disposal orders 12 `134 Forfeiture on conviction 13 `(1) On the conviction of a person for an offence against this Act, 14 the court may order the forfeiture to the State of-- 15 (a) anything used to commit the offence; or 16 (b) anything else the subject of the offence. 17 `(2) The court may make any order to enforce the forfeiture it 18 considers appropriate. 19 `(3) This section does not limit the court's powers under another 20 law. 21 `135 Procedure and powers for making forfeiture order 22 `(1) A forfeiture order may be made on a conviction on the court's 23 initiative or on an application by the prosecution. 24 `(2) In deciding whether to make a forfeiture order for a thing, the 25 court-- 26 Page 93

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 6 Amendment of Retirement Villages Act 1999 [s 150] (a) may require notice to be given to anyone the court 1 considers appropriate, including, for example, any 2 person who may have any property in the thing; and 3 (b) must hear any submissions that any person claiming to 4 have any property in the thing may wish to make. 5 `136 When thing becomes property of the State 6 `A thing becomes the property of the State if-- 7 (a) the thing is forfeited to the State under a forfeiture 8 order; or 9 (b) the owner of the thing and the State agree, in writing, to 10 the transfer of the ownership of the thing to the State. 11 `137 How property may be dealt with 12 `(1) This section applies if, under section 136, a thing becomes the 13 property of the State. 14 `(2) The chief executive may deal with the thing as the chief 15 executive considers appropriate, including, for example, by 16 destroying it or giving it away. 17 `(3) The chief executive must not deal with the thing in a way that 18 could prejudice the outcome of an appeal against the 19 forfeiture under this Act. 20 `(4) If the chief executive sells the thing, the chief executive may, 21 after deducting the costs of the sale, return the proceeds of the 22 sale to the person who was the thing's owner immediately 23 before the thing became the property of the State. 24 `(5) This section is subject to any disposal order made for the 25 thing. 26 `138 Disposal order 27 `(1) This section applies if a person is convicted of an offence 28 against this Act. 29 Page 94

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 6 Amendment of Retirement Villages Act 1999 [s 151] `(2) The court may make an order (a disposal order), on its own 1 initiative or on an application by the prosecution, for the 2 disposal of any of the following things owned by the person-- 3 (a) anything that was the subject of, or used to commit, the 4 offence; 5 (b) another thing the court considers is likely to be used by 6 the person or another person in committing a further 7 offence against this Act. 8 `(3) In deciding whether to make a disposal order for a thing, the 9 court-- 10 (a) may require notice to be given to anyone the court 11 considers appropriate, including, for example, any 12 person who may have any property in the thing; and 13 (b) must hear any submissions that any person claiming to 14 have any property in the thing may wish to make. 15 `(4) The court may make any order to enforce the disposal order 16 that it considers appropriate. 17 `(5) This section does not limit the court's powers under another 18 law.'. 19 151 Amendment of s 220 (Appointments and authority) 20 Section 220(1)(c) and (d)-- 21 omit, insert-- 22 `(c) the authority of the chief executive or the registrar to do 23 anything under this Act.'. 24 152 Amendment of s 221 (Evidentiary provisions) 25 Section 221(2), `or an inspector'-- 26 omit. 27 Page 95

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 7 Amendment of Second-hand Dealers and Pawnbrokers Act 2003 [s 153] 153 Amendment of schedule (Dictionary) 1 Schedule-- 2 insert-- 3 `disposal order see section 138(2). 4 FTI Act see section 3A(1).'. 5 Part 7 Amendment of Second-hand 6 Dealers and Pawnbrokers Act 7 2003 8 154 Act amended 9 This part amends the Second-hand Dealers and Pawnbrokers 10 Act 2003. 11 155 Insertion of new s 3A 12 Part 1-- 13 insert-- 14 `3A Relationship with Fair Trading Inspectors Act 2011 15 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 16 common provisions for this Act and particular other Acts 17 about fair trading. 18 `(2) Unless this Act otherwise provides in relation to the FTI Act, 19 the powers that an inspector has under that Act are in addition 20 to and do not limit any powers the inspector has under this 21 Act.'. 22 156 Replacement of pt 5 (Enforcement) 23 Part 5-- 24 Page 96

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 7 Amendment of Second-hand Dealers and Pawnbrokers Act 2003 [s 156] omit, insert-- 1 `Part 5 Forfeiture and disposal orders 2 `75 Forfeiture on conviction 3 `(1) On the conviction of a person for an offence against this Act, 4 the court may order the forfeiture to the State of-- 5 (a) anything used to commit the offence; or 6 (b) anything else the subject of the offence. 7 `(2) The court may make any order to enforce the forfeiture it 8 considers appropriate. 9 `(3) This section does not limit the court's powers under another 10 law. 11 `76 Procedure and powers for making forfeiture order 12 `(1) A forfeiture order may be made on a conviction on the court's 13 initiative or on an application by the prosecution. 14 `(2) In deciding whether to make a forfeiture order for a thing, the 15 court-- 16 (a) may require notice to be given to anyone the court 17 considers appropriate, including, for example, any 18 person who may have any property in the thing; and 19 (b) must hear any submissions that any person claiming to 20 have any property in the thing may wish to make. 21 `77 When thing becomes property of the State 22 `A thing becomes the property of the State if-- 23 (a) the thing is forfeited to the State under a forfeiture 24 order; or 25 (b) the owner of the thing and the State agree, in writing, to 26 the transfer of the ownership of the thing to the State. 27 Page 97

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 7 Amendment of Second-hand Dealers and Pawnbrokers Act 2003 [s 156] `78 How property may be dealt with 1 `(1) This section applies if, under section 77, a thing becomes the 2 property of the State. 3 `(2) The chief executive may deal with the thing as the chief 4 executive considers appropriate, including, for example, by 5 destroying it or giving it away. 6 `(3) The chief executive must not deal with the thing in a way that 7 could prejudice the outcome of an appeal against the 8 forfeiture under this Act. 9 `(4) If the chief executive sells the thing, the chief executive may, 10 after deducting the costs of the sale, return the proceeds of the 11 sale to the person who was the thing's owner immediately 12 before the thing became the property of the State. 13 `(5) This section is subject to any disposal order made for the 14 thing. 15 `79 Disposal order 16 `(1) This section applies if a person is convicted of an offence 17 against this Act. 18 `(2) The court may make an order (a disposal order), on its own 19 initiative or on an application by the prosecution, for the 20 disposal of any of the following things owned by the person-- 21 (a) anything that was the subject of, or used to commit, the 22 offence; 23 (b) another thing the court considers is likely to be used by 24 the person or another person in committing a further 25 offence against this Act. 26 `(3) In deciding whether to make a disposal order for a thing, the 27 court-- 28 (a) may require notice to be given to anyone the court 29 considers appropriate, including, for example, any 30 person who may have any property in the thing; and 31 Page 98

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 7 Amendment of Second-hand Dealers and Pawnbrokers Act 2003 [s 157] (b) must hear any submissions that any person claiming to 1 have any property in the thing may wish to make. 2 `(4) The court may make any order to enforce the disposal order 3 that it considers appropriate. 4 `(5) This section does not limit the court's powers under another 5 law.'. 6 157 Amendment of s 96 (False or misleading information) 7 Section 96(1) and (2)(a), `authorised officer'-- 8 omit, insert-- 9 `inspector'. 10 158 Omission of s 97 (Obstruction of authorised officers) 11 Section 97-- 12 omit. 13 159 Amendment of s 103 (Authorised officer may prosecute) 14 (1) Section 103, heading, `Authorised officer'-- 15 omit, insert-- 16 `Inspector'. 17 (2) Section 103, `authorised officer'-- 18 omit, insert-- 19 `inspector'. 20 160 Amendment of s 104 (Evidence) 21 (1) Section 104(4), `authorised officer'-- 22 omit, insert-- 23 `inspector'. 24 Page 99

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 8 Amendment of Security Providers Act 1993 [s 161] (2) Section 104(6), definition official, paragraph (c)-- 1 omit, insert-- 2 `(c) an inspector.'. 3 161 Amendment of s 113 (Officials not civilly liable) 4 Section 113(3), definition official, paragraph (b)-- 5 omit, insert-- 6 `(b) an inspector; or'. 7 162 Amendment of sch 3 (Dictionary) 8 (1) Schedule 3, definition authorised officer-- 9 omit. 10 (2) Schedule 3-- 11 insert-- 12 `disposal order see section 79(2). 13 FTI Act see section 3A(1). 14 inspector means a person who holds office under the FTI Act 15 as an inspector for this Act.'. 16 Part 8 Amendment of Security 17 Providers Act 1993 18 163 Act amended 19 This part amends the Security Providers Act 1993. 20 Page 100

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 8 Amendment of Security Providers Act 1993 [s 164] 164 Insertion of new s 2A 1 After section 2-- 2 insert-- 3 `2A Relationship with Fair Trading Inspectors Act 2011 4 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 5 common provisions for this Act and particular other Acts 6 about fair trading. 7 `(2) Unless this Act otherwise provides in relation to the FTI Act, 8 the powers that an inspector has under that Act are in addition 9 to and do not limit any powers the inspector may have under 10 this Act. 11 `(3) In this section-- 12 inspector means a person who holds office under the FTI Act 13 as an inspector for this Act.'. 14 165 Replacement of s 25A (Production of licence) 15 Section 25A-- 16 omit, insert-- 17 `25A Production of licence 18 `(1) This section applies if-- 19 (a) a licensee is not wearing the prescribed identification 20 when carrying out a function of a security provider; and 21 (b) a person with whom the licensee is dealing when 22 carrying out the function asks to inspect the licensee's 23 licence. 24 `(2) The licensee must produce the licensee's licence for 25 inspection. 26 Maximum penalty--20 penalty units.'. 27 166 Replacement of pt 3 (Inspectors) 28 Part 3, other than section 44-- 29 Page 101

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 8 Amendment of Security Providers Act 1993 [s 166] omit, insert-- 1 `Part 3 Forfeiture and disposal orders 2 `32 Forfeiture on conviction 3 `(1) On the conviction of a person for an offence against this Act, 4 the court may order the forfeiture to the State of-- 5 (a) anything used to commit the offence; or 6 (b) anything else the subject of the offence. 7 `(2) The court may make any order to enforce the forfeiture it 8 considers appropriate. 9 `(3) This section does not limit the court's powers under another 10 law. 11 `33 Procedure and powers for making forfeiture order 12 `(1) A forfeiture order may be made on a conviction on the court's 13 initiative or on an application by the prosecution. 14 `(2) In deciding whether to make a forfeiture order for a thing, the 15 court-- 16 (a) may require notice to be given to anyone the court 17 considers appropriate, including, for example, any 18 person who may have any property in the thing; and 19 (b) must hear any submissions that any person claiming to 20 have any property in the thing may wish to make. 21 `34 When thing becomes property of the State 22 `A thing becomes the property of the State if-- 23 (a) the thing is forfeited to the State under a forfeiture 24 order; or 25 (b) the owner of the thing and the State agree, in writing, to 26 the transfer of the ownership of the thing to the State. 27 Page 102

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 8 Amendment of Security Providers Act 1993 [s 166] `35 How property may be dealt with 1 `(1) This section applies if, under section 34, a thing becomes the 2 property of the State. 3 `(2) The chief executive may deal with the thing as the chief 4 executive considers appropriate, including, for example, by 5 destroying it or giving it away. 6 `(3) The chief executive must not deal with the thing in a way that 7 could prejudice the outcome of an appeal against the 8 forfeiture under this Act. 9 `(4) If the chief executive sells the thing, the chief executive may, 10 after deducting the costs of the sale, return the proceeds of the 11 sale to the person who was the thing's owner immediately 12 before the thing became the property of the State. 13 `(5) This section is subject to any disposal order made for the 14 thing. 15 `36 Disposal order 16 `(1) This section applies if a person is convicted of an offence 17 against this Act. 18 `(2) The court may make an order (a disposal order), on its own 19 initiative or on an application by the prosecution, for the 20 disposal of any of the following things owned by the person-- 21 (a) anything that was the subject of, or used to commit, the 22 offence; 23 (b) another thing the court considers is likely to be used by 24 the person or another person in committing a further 25 offence against this Act. 26 `(3) In deciding whether to make a disposal order for a thing, the 27 court-- 28 (a) may require notice to be given to anyone the court 29 considers appropriate, including, for example, any 30 person who may have any property in the thing; and 31 Page 103

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 8 Amendment of Security Providers Act 1993 [s 167] (b) must hear any submissions that any person claiming to 1 have any property in the thing may wish to make. 2 `(4) The court may make any order to enforce the disposal order 3 that it considers appropriate. 4 `(5) This section does not limit the court's powers under another 5 law.'. 6 167 Amendment, relocation and renumbering of s 44 (False or 7 misleading documents) 8 (1) Section 44(1), `or an inspector'-- 9 omit. 10 (2) Section 44(2), `or inspector'-- 11 omit. 12 (3) Section 44-- 13 relocate and renumber as section 49A. 14 168 Amendment of s 48 (Confidentiality of information) 15 Section 48(4)(c)-- 16 omit. 17 169 Replacement of s 49 (Protection from liability) 18 Section 49-- 19 omit, insert-- 20 `49 Protection from liability 21 `(1) An official does not incur civil liability for an act or omission 22 done honestly and without negligence under this Act. 23 `(2) A liability that would, apart from this section, attach to an 24 official attaches instead to the State. 25 `(3) In this section-- 26 Page 104

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 9 Amendment of Tourism Services Act 2003 [s 170] official means-- 1 (a) the chief executive; or 2 (b) a public service employee.'. 3 170 Amendment of s 51 (Evidentiary provisions) 4 (1) Section 51(2)-- 5 omit. 6 (2) Section 51(3), `or an inspector'-- 7 omit. 8 (3) Section 51(3) and (4)-- 9 renumber as section 51(2) and (3). 10 171 Amendment of sch 2 (Dictionary) 11 (1) Schedule 2, definition inspector-- 12 omit. 13 (2) Schedule 2-- 14 insert-- 15 `disposal order see section 36(2).'. 16 Part 9 Amendment of Tourism 17 Services Act 2003 18 172 Act amended 19 This part amends the Tourism Services Act 2003. 20 Page 105

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 9 Amendment of Tourism Services Act 2003 [s 173] 173 Insertion of new s 6A 1 Part 1-- 2 insert-- 3 `6A Relationship with Fair Trading Inspectors Act 2011 4 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 5 common provisions for this Act and particular other Acts 6 about fair trading. 7 `(2) Unless this Act otherwise provides in relation to the FTI Act, 8 the powers that an inspector has under that Act are in addition 9 to and do not limit any powers the inspector may have under 10 this Act. 11 `(3) In this section-- 12 inspector means a person who holds office under the FTI Act 13 as an inspector for this Act. 14 Note-- 15 See also the modifying provisions for this Act stated in the FTI Act, 16 schedule 1.'. 17 174 Amendment of s 13 (Suitability for registration) 18 Section 13(3)(c), after `this Act,'-- 19 insert-- 20 `the FTI Act if the offence is in relation to a matter under this 21 Act,'. 22 175 Replacement of pt 6 (Investigation and enforcement) 23 Part 6-- 24 omit, insert-- 25 Page 106

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 9 Amendment of Tourism Services Act 2003 [s 175] `Part 6 Forfeiture and disposal orders 1 `39 Forfeiture on conviction 2 `(1) On the conviction of a person for an offence against this Act, 3 the court may order the forfeiture to the State of-- 4 (a) anything used to commit the offence; or 5 (b) anything else the subject of the offence. 6 `(2) The court may make any order to enforce the forfeiture it 7 considers appropriate. 8 `(3) This section does not limit the court's powers under another 9 law. 10 `40 Procedure and powers for making forfeiture order 11 `(1) A forfeiture order may be made on a conviction on the court's 12 initiative or on an application by the prosecution. 13 `(2) In deciding whether to make a forfeiture order for a thing, the 14 court-- 15 (a) may require notice to be given to anyone the court 16 considers appropriate, including, for example, any 17 person who may have any property in the thing; and 18 (b) must hear any submissions that any person claiming to 19 have any property in the thing may wish to make. 20 `41 When thing becomes property of the State 21 `A thing becomes the property of the State if-- 22 (a) the thing is forfeited to the State under a forfeiture 23 order; or 24 (b) the owner of the thing and the State agree, in writing, to 25 the transfer of the ownership of the thing to the State. 26 Page 107

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 9 Amendment of Tourism Services Act 2003 [s 175] `42 How property may be dealt with 1 `(1) This section applies if, under section 41, a thing becomes the 2 property of the State. 3 `(2) The chief executive may deal with the thing as the chief 4 executive considers appropriate, including, for example, by 5 destroying it or giving it away. 6 `(3) The chief executive must not deal with the thing in a way that 7 could prejudice the outcome of an appeal against the 8 forfeiture under this Act. 9 `(4) If the chief executive sells the thing, the chief executive may, 10 after deducting the costs of the sale, return the proceeds of the 11 sale to the person who was the thing's owner immediately 12 before the thing became the property of the State. 13 `(5) This section is subject to any disposal order made for the 14 thing. 15 `43 Disposal order 16 `(1) This section applies if a person is convicted of an offence 17 against this Act. 18 `(2) The court may make an order (a disposal order), on its own 19 initiative or on an application by the prosecution, for the 20 disposal of any of the following things owned by the person-- 21 (a) anything that was the subject of, or used to commit, the 22 offence; 23 (b) another thing the court considers is likely to be used by 24 the person or another person in committing a further 25 offence against this Act. 26 `(3) In deciding whether to make a disposal order for a thing, the 27 court-- 28 (a) may require notice to be given to anyone the court 29 considers appropriate, including, for example, any 30 person who may have any property in the thing; and 31 Page 108

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 9 Amendment of Tourism Services Act 2003 [s 176] (b) must hear any submissions that any person claiming to 1 have any property in the thing may wish to make. 2 `(4) The court may make any order to enforce the disposal order 3 that it considers appropriate. 4 `(5) This section does not limit the court's powers under another 5 law.'. 6 176 Amendment of s 85 (Review by tribunal) 7 Section 85(3)-- 8 omit. 9 177 Amendment of s 88 (Evidence) 10 (1) Section 88(2)-- 11 omit. 12 (2) Section 88(3), `or an inspector'-- 13 omit. 14 (3) Section 88(3) and (4)-- 15 renumber as section 88(2) and (3). 16 178 Amendment of s 95 (Protecting officials from liability) 17 Section 95(3), definition official, paragraph (c)-- 18 omit. 19 179 Amendment of sch 2 (Dictionary) 20 (1) Schedule 2, definition inspector-- 21 omit. 22 (2) Schedule 2-- 23 insert-- 24 Page 109

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 10 Amendment of Travel Agents Act 1988 [s 180] `disposal order see section 43(2). 1 FTI Act see section 6A(1).'. 2 Part 10 Amendment of Travel Agents 3 Act 1988 4 180 Act amended 5 This part amends the Travel Agents Act 1988. 6 181 Insertion of new s 4 7 After section 3-- 8 insert-- 9 `4 Relationship with Fair Trading Inspectors Act 2011 10 `(1) The Fair Trading Inspectors Act 2011 (the FTI Act) enacts 11 common provisions for this Act and particular other Acts 12 about fair trading. 13 `(2) Unless this Act otherwise provides in relation to the FTI Act, 14 the powers that an inspector has under that Act are in addition 15 to and do not limit any powers the inspector may have under 16 this Act. 17 `(3) In this section-- 18 inspector means a person who holds office under the FTI Act 19 as an inspector for this Act.'. 20 Note-- 21 See also the modifying provisions for this Act stated in the FTI Act, 22 schedule 1.'. 23 182 Amendment of s 6 (Definitions) 24 (1) Section 6, definitions authorised officer and inspector-- 25 Page 110

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 10 Amendment of Travel Agents Act 1988 [s 183] omit. 1 (2) Section 6-- 2 insert-- 3 `disposal order see section 43E(2).'. 4 183 Insertion of new ss 43A-43E 5 Part 6-- 6 insert-- 7 `43A Forfeiture on conviction 8 `(1) On the conviction of a person for an offence against this Act, 9 the court may order the forfeiture to the State of-- 10 (a) anything used to commit the offence; or 11 (b) anything else the subject of the offence. 12 `(2) The court may make any order to enforce the forfeiture it 13 considers appropriate. 14 `(3) This section does not limit the court's powers under another 15 law. 16 `43B Procedure and powers for making forfeiture order 17 `(1) A forfeiture order may be made on a conviction on the court's 18 initiative or on an application by the prosecution. 19 `(2) In deciding whether to make a forfeiture order for a thing, the 20 court-- 21 (a) may require notice to be given to anyone the court 22 considers appropriate, including, for example, any 23 person who may have any property in the thing; and 24 (b) must hear any submissions that any person claiming to 25 have any property in the thing may wish to make. 26 Page 111

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 10 Amendment of Travel Agents Act 1988 [s 183] `43C When thing becomes property of the State 1 `A thing becomes the property of the State if-- 2 (a) the thing is forfeited to the State under a forfeiture 3 order; or 4 (b) the owner of the thing and the State agree, in writing, to 5 the transfer of the ownership of the thing to the State. 6 `43D How property may be dealt with 7 `(1) This section applies if, under section 43C, a thing becomes the 8 property of the State. 9 `(2) The chief executive may deal with the thing as the chief 10 executive considers appropriate, including, for example, by 11 destroying it or giving it away. 12 `(3) The chief executive must not deal with the thing in a way that 13 could prejudice the outcome of an appeal against the 14 forfeiture under this Act. 15 `(4) If the chief executive sells the thing, the chief executive may, 16 after deducting the costs of the sale, return the proceeds of the 17 sale to the person who was the thing's owner immediately 18 before the thing became the property of the State. 19 `(5) This section is subject to any disposal order made for the 20 thing. 21 `43E Disposal order 22 `(1) This section applies if a person is convicted of an offence 23 against this Act. 24 `(2) The court may make an order (a disposal order), on its own 25 initiative or on an application by the prosecution, for the 26 disposal of any of the following things owned by the person-- 27 (a) anything that was the subject of, or used to commit, the 28 offence; 29 Page 112

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 10 Amendment of Travel Agents Act 1988 [s 184] (b) another thing the court considers is likely to be used by 1 the person or another person in committing a further 2 offence against this Act. 3 `(3) In deciding whether to make a disposal order for a thing, the 4 court-- 5 (a) may require notice to be given to anyone the court 6 considers appropriate, including, for example, any 7 person who may have any property in the thing; and 8 (b) must hear any submissions that any person claiming to 9 have any property in the thing may wish to make. 10 `(4) The court may make any order to enforce the disposal order 11 that it considers appropriate. 12 `(5) This section does not limit the court's powers under another 13 law.'. 14 184 Omission of ss 45-45J 15 Sections 45 to 45J-- 16 omit. 17 185 Omission of s 47 (Investigations) 18 Section 47-- 19 omit. 20 186 Amendment of s 50 (False or misleading information or 21 documents) 22 (1) Section 50(1), (2) and (3), `or an inspector'-- 23 omit. 24 (2) Section 50(4), `or the inspector'-- 25 omit. 26 Page 113

 


 

Fair Trading Inspectors Bill 2011 Chapter 6 Amendment of Acts Part 10 Amendment of Travel Agents Act 1988 [s 187] 187 Replacement of s 54 (Proceedings for offences) 1 Section 54-- 2 omit, insert-- 3 `54 Offences under Act are summary 4 `(1) An offence against this Act is a summary offence. 5 `(2) A proceeding for an offence against this Act must start within 6 the later of the following periods to end-- 7 (a) 1 year after the commission of the offence; 8 (b) 6 months after the offence comes to the complainant's 9 knowledge but within 2 years after the commission of 10 the offence.'. 11 188 Amendment of s 56 (Evidence) 12 (1) Section 56(a), from `commissioner'-- 13 omit, insert-- 14 `commissioner;'. 15 (2) Section 56(b), `or an inspector'-- 16 omit. 17 Page 114

 


 

Fair Trading Inspectors Bill 2011 Schedule 1 Schedule 1 Modifying provisions 1 section 5 2 Manufactured Homes (Residential Parks) Act 2003 3 1 References to occupier of a place 4 (1) This section modifies schedule 2, definition occupier, of a 5 place. 6 (2) Without limiting who may be an occupier under the 7 definition, the park owner for a residential park is an occupier 8 of the residential park, other than any part of the park that is a 9 home owner's manufactured home or the site on which it is 10 positioned. 11 2 Power to enter particular place 12 The power for an inspector to enter a place under section 13 17(1)(d) includes the power to enter a place (other than a part 14 of the place where a person resides) that is an office or other 15 place for administering or managing a residential park for 16 which site agreements are in force, and that is-- 17 (a) open for carrying on the business of the park; or 18 (b) otherwise open for entry. 19 Residential Services (Accreditation) Act 2002 20 1 References to occupier of a place 21 (1) This section modifies schedule 2, definition occupier, of a 22 place. 23 Page 115

 


 

Fair Trading Inspectors Bill 2011 Schedule 1 (2) Without limiting who may be an occupier under the 1 definition, the service provider for a residential service is an 2 occupier of premises in which the residential service is being 3 conducted, other than any part of the premises that is occupied 4 by a person as the person's place of residence. 5 2 Preservation of privacy 6 (1) If an inspector enters a private residence under section 7 17(1)(a) or (c), the inspector must preserve, as far as 8 practicable, the privacy of anyone living at the residence. 9 (2) In this section-- 10 private residence includes a room in registered premises 11 occupied by a person as the person's place of residence. 12 Retirement Villages Act 1999 13 1 Power to enter particular place 14 The power for an inspector to enter a place under section 15 17(1)(d) includes the power to enter a place (other than a part 16 of the place where a person resides) that is an office or other 17 place for administering or managing a retirement village and 18 that is-- 19 (a) open for carrying on the business of the retirement 20 village; or 21 (b) otherwise open for entry. 22 Page 116

 


 

Fair Trading Inspectors Bill 2011 Schedule 1 Tourism Services Act 2003 1 1 Power to enter place where business records are located 2 Section 17(1) is taken to include a power for an inspector to 3 enter a place if the inspector reasonably believes that records 4 relating to carrying on the business of an inbound tour 5 operator, or business as a tour guide, are kept at the place and 6 the place is open for carrying on business or otherwise open 7 for entry. 8 2 Limitation on power to seize 9 (1) This section applies to seizure of a thing under section 36 or 10 37. 11 (2) An inspector must not seize the thing if the inspector knows or 12 suspects it is the property, or in the possession, of a tourist. 13 3 Offence includes a relevant contravention in particular 14 circumstances 15 In sections 23, 28, 36, 37, 46, 55 and 67 a reference to an 16 offence against a primary Act is taken to include a reference 17 to a relevant contravention. 18 Travel Agents Act 1988 19 1 Power to require production of document and statement 20 about document 21 (1) This section applies to the power for an inspector to make a 22 document production requirement under section 57(1) in 23 relation to a document that is not written in the English 24 language or is not decipherable on sight. 25 (2) Compliance with the document production requirement 26 requires making available for inspection by an inspector, or 27 Page 117

 


 

Fair Trading Inspectors Bill 2011 Schedule 1 producing to the inspector for inspection, in addition to the 1 document, a statement, written in the English language and 2 decipherable on sight, containing the whole of the information 3 in the document. 4 (3) This section does not limit section 57. 5 Page 118

 


 

Fair Trading Inspectors Bill 2011 Schedule 2 Schedule 2 Dictionary 1 section 6 2 approved form means a form approved by the chief executive 3 under section 93. 4 court means a Magistrates Court. 5 document certification requirement see section 57(6). 6 document production requirement see section 57(2). 7 electronic document means a document of a type under the 8 Acts Interpretation Act 1954, section 36, definition document, 9 paragraph (c). 10 former owner see section 48(1). 11 general power see section 33(1). 12 help requirement see section 34(1). 13 identity card, for a provision about inspectors, means an 14 identity card issued under section 12(1). 15 information notice, about a decision, means a notice stating 16 the following-- 17 (a) the decision; 18 (b) the reasons for it; 19 (c) that the person to whom the notice is given may apply to 20 the chief executive for a review of the decision within 20 21 business days after the person receives the notice; 22 (d) how to apply for a review. 23 information requirement see section 60(3). 24 inspector means a person who holds office under chapter 2, 25 part 1 as an inspector for a primary Act. 26 modifying provisions see section 5(1). 27 notice means a written notice. 28 Page 119

 


 

Fair Trading Inspectors Bill 2011 Schedule 2 occupier, of a place, includes the following-- 1 (a) if there is more than 1 person who apparently occupies 2 the place--any 1 of the persons; 3 (b) any person at the place who is apparently acting with the 4 authority of a person who apparently occupies the place; 5 (c) if no-one apparently occupies the place--any person 6 who is an owner of the place. 7 of, a place, includes at or on the place. 8 offence warning, for a direction or requirement by an 9 inspector, means a warning that, without a reasonable excuse, 10 it is an offence for the person to whom the direction or 11 requirement is made not to comply with it. 12 original decision see section 76(1)(a). 13 owner, for a thing that has been seized under this Act, 14 includes a person who would be entitled to possession of the 15 thing had it not been seized. 16 personal details requirement see section 55(5). 17 person in control-- 18 (a) of a vehicle, includes-- 19 (i) the vehicle's driver or rider; and 20 (ii) anyone who reasonably appears to be, claims to be, 21 or acts as if he or she is, the vehicle's driver or rider 22 or the person in control of the vehicle; or 23 (b) of another thing, includes anyone who reasonably 24 appears to be, claims to be, or acts as if he or she is, the 25 person in possession or control of the thing. 26 place includes the following-- 27 (a) premises; 28 (b) vacant land; 29 (c) a place in Queensland waters; 30 (d) a place held under more than 1 title or by more than 1 31 owner; 32 Page 120

 


 

Fair Trading Inspectors Bill 2011 Schedule 2 (e) the land or water where a building or structure, or a 1 group of buildings or structures, is situated. 2 premises includes-- 3 (a) a building or other structure; and 4 (b) a part of a building or other structure; and 5 (c) a caravan or vehicle; and 6 (d) a cave or tent; and 7 (e) premises held under more than 1 title or by more than 1 8 owner. 9 primary Act-- 10 (a) generally--see section 4(1); or 11 (b) in relation to a particular inspector--means a primary 12 Act for which the inspector is appointed; or 13 (c) in relation to the exercise of a power by an 14 inspector--means a primary Act for which the inspector 15 is exercising the power. 16 public place means-- 17 (a) a place, or part of the place-- 18 (i) the public is entitled to use, is open to members of 19 the public or is used by the public, whether or not 20 on payment of money; or 21 Examples of a place that may be a public place under 22 subparagraph (i)-- 23 a beach, a park, a road 24 (ii) the occupier of which allows, whether or not on 25 payment of money, members of the public to enter; 26 or 27 Examples of a place that may be a public place under 28 subparagraph (ii)-- 29 a saleyard, a showground 30 (b) a place that is a public place under another Act. 31 Page 121

 


 

Fair Trading Inspectors Bill 2011 Schedule 2 reasonably believes means believes on grounds that are 1 reasonable in the circumstances. 2 reasonably suspects means suspects on grounds that are 3 reasonable in the circumstances. 4 review decision see section 76(1)(b). 5 review notice day see section 76(2)(a). 6 vehicle-- 7 (a) means a vehicle under the Transport Operations (Road 8 Use Management) Act 1995; and 9 (b) includes a vessel under that Act. 10 State of Queensland 2011 Page 122

 


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