Occupational Licensing (Adoption of National Law) Act 2010 (NSW)
An Act to apply as a law of this State a national law relating to the regulation of certain occupations.
This Act is the Occupational Licensing (Adoption of National Law) Act 2010.
This Act commences on a day or days to be appointed by proclamation.
Different days may be appointed under subsection (1) for the commencement of different provisions of the Occupational Licensing National Law set out in the Schedule to the Occupational Licensing National Law Act 2010 of Victoria.
In this Act:
Terms used in this Act and also in the Occupational Licensing National Law set out in the Schedule to the Occupational Licensing National Law Act 2010 of Victoria have the same meanings in this Act as they have in that Law.
The Occupational Licensing National Law, as in force from time to time, set out in the Schedule to the Occupational Licensing National Law Act 2010 of Victoria:
(a) applies as a law of this jurisdiction, and
(b) as so applying may be referred to as the Occupational Licensing National Law (NSW), and
(c) so applies as if it were part of this Act.
The following Acts of this jurisdiction do not apply to the Occupational Licensing National Law (NSW) or to instruments made under that Law:
(a) the Annual Reports (Statutory Bodies) Act 1984,
(b) the Government Information (Public Access) Act 2009, other than to the extent that functions are being exercised under the Law by a State entity,
(c) the Interpretation Act 1987, other than to the extent provided for by section 163 of the Occupational Licensing National Law,
(d) the Ombudsman Act 1974, other than to the extent that functions are being exercised under the Law by a State entity,
(e) the Privacy and Personal Information Protection Act 1998, other than to the extent that functions are being exercised under the Law by a State entity and do not relate to the national registers kept under the Law,
(f) the Public Finance and Audit Act 1983,
(g) the Public Sector Employment and Management Act 2002,
(h) the State Records Act 1998, other than to the extent that functions are being exercised under the Law by a State entity,
(i) the Subordinate Legislation Act 1989.
For the purposes of the definition of
(a) the Civil and Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of sections 93 and 94 of the Law, and
(b) the Supreme Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 13 of the Law.
It is declared that, for the purposes of section 51 of the Occupational Licensing National Law, Division 4 of Part 3 of that Law applies to licensees carrying out the following occupations:
(a) airconditioning and refrigeration,
(b) electrical,
(c) plumbing and gasfitting,
(d) property-related occupations.
In the Occupational Licensing National Law, a penalty specified at the end of a provision indicates that a contravention of the provision is punishable on conviction by a penalty not more than the specified penalty.
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• this Act
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Section 159 of the Occupational Licensing National Law provides that the Ministerial Council is to conduct periodic independent public reviews of the operation of the national licensing system and the Law to determine whether the system and the Law continue to comply with the objectives and principles set out in clause 4 of the COAG Agreement. A report on the outcome of each review is to be tabled in each House of the NSW Parliament.
The text of the Occupational Licensing National Law set out in the Schedule to the Occupational Licensing National Law Act 2010 of Victoria (as at the date of its enactment) is set out below. The National Law (as in force from time to time) is applied as a law of New South Wales.
This Law may be cited as the Occupational Licensing National Law.
This Law commences in a participating jurisdiction as provided by the Act of that jurisdiction that applies this Law as a law of that jurisdiction.
The objectives of the national licensing system are as follows—
(a) to ensure that licences issued by the Licensing Authority allow licensees to operate in all participating jurisdictions;
(b) to ensure that licensing arrangements are effective and proportionate to ensure consumer protection and worker and public health and safety while ensuring economic efficiency and equity of access;
(c) to facilitate a consistent skill and knowledge base for licensed occupations;
(d) to ensure effective coordination exists between the Licensing Authority and jurisdictional regulators;
(e) to promote national consistency in—
(i) licensing structures and policy across comparable occupations; and
(ii) regulation affecting the requirements relating to the conduct of licensees; and
(iii) the approach to disciplinary arrangements for licensees;
(f) to provide flexibility to deal with issues specific to particular jurisdictions or occupations;
(g) to provide the public with access to information about licensees.
In this Law—
(a) convictions of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law;
(b) pleas of guilty or findings of guilt by a court of the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law and whether or not a conviction is recorded for the offence;
(c) charges made against the person for an offence, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law;
(d) the person’s history in relation to traffic offences, in a participating jurisdiction or elsewhere, and whether before or after the commencement of this Law.
(a) the Licensing Authority; or
(b) a tribunal or court of a participating jurisdiction; or
(c) another person or body declared by or under an Act of a participating jurisdiction to be a disciplinary body for the purposes of this Law.
(a) airconditioning and refrigeration;
(b) electrical;
(c) plumbing and gasfitting;
(d) property-related occupations;
(e) any other occupation prescribed by the national regulations as being a licensed occupation.
When an occupation is prescribed by the national regulations as being a licensed occupation it is envisaged each jurisdiction will need to return to Parliament to make consequential amendments to existing legislation regulating the occupation. This would enable this Law (as set out in the Schedule to the Occupational Licensing National Law Act 2010 of Victoria) to be amended to include the occupation in this definition and, to the extent it is practicable, describe the scope of work that may be carried out under a licence for that occupation.
(a) in which this Law applies as a law of the State or Territory; or
(b) a law that substantially corresponds to the provisions of this Law has been enacted.
When an occupation is prescribed by the national regulations as being a licensed occupation (see paragraph (e) of the definition of
(a) for an applicant for a licence or a licensee who is an individual (other than an individual acting in the individual’s capacity as a member of a partnership), the jurisdiction in which the individual’s principal place of residence is located; or
(b) for an applicant for a licence or a licensee that is a body corporate or an individual acting in the individual’s capacity as a member of a partnership, the jurisdiction in which the body corporate’s or partnership’s principal place of business is located.
(a) an entity, or the chief executive of an entity or department of government, of a participating jurisdiction to whom the Licensing Authority has delegated any of its functions; or
(b) an entity to which a function delegated by the Licensing Authority has been subdelegated.
(a) a group of vehicles, known as a combination, that consists of a motor vehicle connected to 1 or more vehicles; and
(b) a caravan being towed by a motor vehicle; and
(c) a train, tram or vessel; and
(d) a crane or earthmoving machinery; and
(e) any other type of transport, machine or equipment prescribed by the national regulations.
Schedule 1 applies in relation to this Law.
It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of the other participating jurisdictions, has the effect that an entity established by this Law is one single national entity, with functions conferred by this Law as so applied.
An entity established by this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction.
An entity established by this Law may exercise its functions in relation to—
(a) one participating jurisdiction; or
(b) 2 or more or all participating jurisdictions collectively.
In this section, a reference to this Law as applied by an Act of a jurisdiction includes a reference to a law that substantially corresponds to this Law enacted in a jurisdiction.
It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following—
(a) things situated in or outside the territorial limits of this jurisdiction;
(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.
This Law binds the State.
In this section—
(a) the Government of this jurisdiction; and
(b) a Minister of the Crown in right of this jurisdiction; and
(c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction.
An individual must not carry out, or enter into a contract to carry out, prescribed work unless the individual—
(a) holds a licence to carry out the prescribed work; or
(b) is exempt under the national regulations from the requirement to hold a licence to carry out the prescribed work; or
(c) is exempted by the Licensing Authority, in accordance with the national regulations, from the requirement to hold a licence to carry out the prescribed work.
Penalty—
(a) for an offence involving a specified licensed occupation—
(i) for a first or second offence—$50,000; or
(ii) for a third or subsequent offence—$50,000 or 12 months imprisonment or both; or
(b) for any other offence—$50,000.
In this section—
A body corporate or a partnership must not enter into a contract to carry out prescribed work unless the body corporate or the partnership—
(a) holds a licence authorising the body corporate or partnership to carry on a business that involves carrying out the prescribed work; or
(b) is exempt under the national regulations from the requirement to hold a licence authorising the body corporate or partnership to carry on a business that involves carrying out the prescribed work; or
(c) is exempted by the Licensing Authority, in accordance with the national regulations, from the requirement to hold a licence authorising the body corporate or partnership to carry on a business that involves carrying out the prescribed work.
Penalty—$250,000.
A body corporate or a partnership that enters into a contract to carry out prescribed work must not engage an individual to carry out the prescribed work unless the individual—
(a) holds a licence to carry out the prescribed work; or
(b) is exempt under the national regulations from the requirement to hold a licence to carry out the prescribed work; or
(c) is exempted by the Licensing Authority, in accordance with the national regulations, from the requirement to hold a licence to carry out the prescribed work.
Penalty—$250,000.
A reference in this section to a partnership means the individuals who are members of the partnership.
A person must not advertise that the person is able to carry out, or offer to carry out, prescribed work unless the person—
(a) holds a licence to carry out the prescribed work; or
(b) is exempt under the national regulations from the requirement to hold a licence to carry out the prescribed work; or
(c) is exempted by the Licensing Authority, in accordance with the national regulations, from the requirement to hold a licence to carry out the prescribed work.
Penalty—
(a) for an individual for an offence involving a specified licensed occupation—
(i) for a first or second offence—$50,000; or
(ii) for a third or subsequent offence—$50,000 or 12 months imprisonment or both; or
(b) for an individual for any other offence—$50,000; or
(c) for a body corporate—$250,000.
It is a defence to a prosecution for an offence against subsection (1)(a) if the defendant proves that—
(a) at the time the advertisement was placed the person (the
relevant person ) the subject of the advertisement was licensed to carry out the prescribed work referred to in the advertisement; and(b) the defendant took all reasonable action to prevent the advertisement, or to stop it from continuing, once the relevant person ceased being licensed to carry out the work.
A person does not commit an offence against subsection (1) merely because the person, as part of the person’s business, prints or publishes an advertisement for another person.
A reference in this section to carrying out prescribed work includes carrying on a business that involves carrying out prescribed work.
In this section—
A person must not hold out that the person is licensed—
(a) to carry out a licensed occupation unless the person holds a licence for the licensed occupation; or
(b) to carry out prescribed work unless the person holds a licence to carry out the prescribed work.
Penalty—
(a) for an individual for an offence involving a specified licensed occupation—
(i) for a first or second offence—$50,000; or
(ii) for a third or subsequent offence—$50,000 or 12 months imprisonment or both; or
(b) for an individual for any other offence—$50,000; or
(c) for a body corporate—$250,000.
A person must not hold out that another person (the
(a) to carry out a licensed occupation unless the second person holds a licence for the licensed occupation; or
(b) to carry out prescribed work unless the second person holds a licence to carry out the prescribed work.
Penalty—
(a) for an individual for an offence involving a specified licensed occupation—
(i) for a first or second offence—$50,000; or
(ii) for a third or subsequent offence—$50,000 or 12 months imprisonment or both; or
(b) for an individual for any other offence—$50,000; or
(c) for a body corporate—$250,000.
A reference in this section to carrying out prescribed work includes carrying on a business that involves carrying out prescribed work.
In this section—
If a person has engaged in, is engaging in or is proposing to engage in conduct in a participating jurisdiction that constituted, constitutes or would constitute a contravention of this Law or the national regulations, the Licensing Authority may apply to the relevant tribunal or court for that participating jurisdiction for an injunction in relation to the conduct.
If the relevant tribunal or court is satisfied the person has engaged in, is engaging in or is proposing to engage in conduct that constituted, constitutes or would constitute a contravention of this Law or the national regulations, the relevant tribunal or court may grant an injunction restraining the person from engaging in the conduct.
The relevant tribunal or court may grant the injunction on the terms the tribunal or court considers appropriate.
Without limiting subsection (3), the injunction may state that it applies not only in the participating jurisdiction in which it is made but in other participating jurisdictions.
See section 7 which provides for the extraterritorial operation of this Law.
The relevant tribunal or court may grant an interim injunction until the application is finally decided.
A licensee must not—
(a) lend the licensee’s licence to another person; or
(b) otherwise allow another person to use the licensee’s licence or licence number.
Penalty—
(a) for an individual for an offence involving a specified licensed occupation—
(i) for a first or second offence—$50,000; or
(ii) for a third or subsequent offence—$50,000 or 12 months imprisonment or both; or
(b) for an individual for any other offence—$50,000; or
(c) for a body corporate—$250,000.
In this section—
An application for a licence for a licensed occupation may be made by a person who is a member of a prescribed class of persons for the occupation.
For the purposes of subsection (1), the national regulations may provide that applications for licences for a licensed occupation may be made by any of the following—
(a) individuals;
(b) individuals acting in their capacity as members of a partnership;
(c) bodies corporate.
An application for a licence cannot be made by a trust.
An application for a licence must be—
(a) made to the Licensing Authority; and
(b) in the approved form; and
(c) accompanied by the prescribed fee payable to the prescribed person; and
(d) accompanied by any other documents, identified in the approved form, the Licensing Authority reasonably requires.
Without limiting subsection (1)(b), a form approved by the Licensing Authority for the purposes of that paragraph must require an applicant—
(a) to provide a declaration about the applicant’s primary jurisdiction; and
(b) if the applicant is a body corporate, to nominate an adult as the nominee for the proposed licence.
An individual may be nominated as the nominee for the proposed licence only if the individual—
(a) holds a licence personally for the licensed occupation; and
(b) is a director or employee of the body corporate as provided by the national regulations.
The national regulations may prescribe further requirements in relation to the nominees for licences.
Before deciding an application for a licence, the Licensing Authority may, by written notice given to the applicant, require the applicant to give the Authority, within a reasonable time stated in the notice, further information or a document the Authority reasonably requires to decide the application.
The Licensing Authority may require the information or document to be verified by a statutory declaration.
The applicant is taken to have withdrawn the application if the applicant does not comply with the written notice.
A person is eligible for a licence for a licensed occupation if—
(a) the person or, if the person is a body corporate, the person’s nominee, has the prescribed qualifications, skills, knowledge and experience for the licence; and
(b) the person and, if the person is a body corporate, the person’s nominee, satisfy the prescribed personal probity requirements for the licence; and
(c) the person satisfies the prescribed financial probity requirements for the licence; and
(d) the person and, if the person is a body corporate, the person’s nominee, are not excluded persons for the licence; and
(e) the person or, if the person is a body corporate, the person’s nominee, satisfies any other requirements prescribed by the national regulations for the licence.
Section 24 of Schedule 1 provides that a regulation may—
(a) apply generally to all persons, matters or things or be limited in its application to particular persons, matters or things or classes of persons, matters or things; or
(b) apply generally or be limited in its application; or
(c) apply differently according to different specified factors.
Accordingly, the national regulations may prescribe different eligibility requirements for different licensed occupations or different types of licences for the same licensed occupation.
For the purposes of subsection (1), if an individual in the individual’s capacity as a member of a partnership would not be eligible for a licence for a licensed occupation but the individuals who are members of the partnership would jointly be eligible for the licence, the individuals are, in their capacity as members of the partnership, taken to be eligible for the licence.
For the purposes of section 18(1)(b), the national regulations may provide for—
(a) the personal probity requirements a person must satisfy to be eligible for a licence; and
(b) the personal probity requirements a person must satisfy to be eligible to be a nominee for a licensee that is a body corporate.
Without limiting subsection (1), the national regulations may provide for requirements in relation to the following for persons who are applicants for licences, licensees, nominees or relevant persons for a body corporate that is an applicant or licensee—
(a) matters relating to the criminal history of the persons, to the extent there is a connection between the criminal history of the persons and the inherent requirements of the occupation for which the persons are applicants, licensees, nominees or relevant persons;
Note— Matters relating to the criminal history of persons will be subject to legislation of participating jurisdictions that prohibits, or does not require, the disclosure of spent convictions.
(b) matters relating to the conduct of persons in carrying out business including, for example, matters relating to duties as a director of a corporation or the imposition of civil penalties or orders in relation to carrying out business;
(c) security clearances to be held by the persons, to the extent that it is an inherent requirement of the occupation for which the persons are applicants, licensees, nominees or relevant persons.
In this section—
(a) will have authority or influence in the conduct of the business of the body corporate; and
(b) is prescribed by the national regulations as being a relevant person for the body corporate.
For the purposes of section 18(1)(c), the national regulations may provide for the financial probity requirements a person must satisfy to be eligible for a licence.
Without limiting subsection (1), the national regulations may provide—
(a) for the financial requirements a person must satisfy to be eligible for a licence; or
(b) a person who is an applicant or a licensee is not eligible for a licence if—
(i) the person is bankrupt, insolvent, compounds with creditors, enters into a compromise or scheme of arrangement with creditors or otherwise applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(ii) the person fails to pay a penalty, fine or other amount ordered by a court or tribunal to be paid or required to be paid under this Law.
For the purposes of section 18(1)(d), a person is an excluded person for a licence for a licensed occupation if—
(a) the person is prohibited by an order of a disciplinary body from carrying out work that is within the scope of the licence; or
(b) the person’s licence under this Law to carry out the licensed occupation has been cancelled by a disciplinary body and any period ordered by the disciplinary body during which the person is disqualified from applying for a new licence has not ended; or
(c) the person’s licence under a corresponding prior Act to carry out the licensed occupation was cancelled as a result of disciplinary action taken by a corresponding disciplinary body and—
(i) any period ordered by the disciplinary body during which the person is disqualified from applying for a new licence has not ended; or
(ii) if the disciplinary body did not disqualify the person from applying for a new licence, a period of 2 years from the day the cancellation occurred has not ended; or
(d) the person’s application for a licence for the licensed occupation under this Law or a corresponding prior Act within the previous 2 years has been refused on the basis that the person provided information or a document in relation to the application that was false or misleading; or
(e) a business partner or other close associate of the person is a person whose licence under this Law to carry out the licensed occupation has been cancelled by a disciplinary body and any period ordered by the disciplinary body during which the person is disqualified from applying for a new licence has not ended; or
(f) a business partner or other close associate of the person is a person whose licence under a corresponding prior Act to carry out the licensed occupation was cancelled by a court, tribunal or other entity and—
(i) any period ordered by the court, tribunal or other entity during which the person is disqualified from applying for a new licence has not ended; or
(ii) if the court, tribunal or other entity did not disqualify the person from applying for a new licence, a period of 2 years from the day the cancellation occurred has not ended; or
(g) the person is an excluded person under the national regulations; or
(h) the person has, within the previous 5 years, been convicted of an offence under section 9, 10, 11 or 12 or a provision of a corresponding prior Act that corresponds to section 9, 10, 11 or 12.
In this section—
(a) was in force before the day on which the jurisdiction became a participating jurisdiction; and
(b) has been declared by a law of that jurisdiction to be a corresponding prior Act for the purposes of this section.
After considering an application for a licence, the Licensing Authority must decide to—
(a) grant the licence to the applicant if the applicant is eligible for the licence; or
(b) refuse to grant the licence to the applicant if the applicant is not eligible for the licence.
Within 28 days after making the decision to grant or refuse to grant a licence to the applicant, the Licensing Authority must—
(a) give the applicant written notice of its decision; and
(b) if the decision was to grant the licence, give the applicant a licence.
If the Licensing Authority decides not to grant the licence, the notice must state—
(a) the reasons for the decision; and
(b) that the applicant may apply for a review of the decision; and
(c) how an application for review may be made and the period within which the application must be made.
If the Licensing Authority fails to decide an application for a licence within 120 days after its receipt, or the longer period agreed between the Authority and the applicant, the failure by the Authority to make a decision is taken to be a decision to refuse to grant a licence to the applicant.
A licence is to be in the approved form.
A licence may be granted for the period, not more than 5 years, prescribed by the national regulations.
A licence is subject to the following conditions—
(a) any conditions prescribed by the national regulations for a licence of that category;
(b) any conditions imposed on the licence by a disciplinary body.
A licensee must, as soon as practicable but not later than 14 days after any of the following changes occurs, give the Licensing Authority written notice of the change and any evidence providing proof of the change required by the Authority, unless the licensee has a reasonable excuse—
(a) if the licensee is an individual, a change in the licensee’s principal place of residence;
(b) if the licensee is a body corporate or an individual acting in the individual’s capacity as a member of a partnership, a change in the body corporate’s or partnership’s principal place of business;
(c) a change in the licensee’s criminal history prescribed by the national regulations;
(d) any other change prescribed by the national regulations.
Penalty—
(a) for an individual—$10,000; or
(b) for a body corporate—$50,000.
If a person is given written notice by the Licensing Authority that the person’s licence has been suspended, cancelled or revoked and the licence is for a specified licensed occupation, the person must return the person’s licence to the Authority within 7 days after receiving the notice, unless the person has a reasonable excuse.
Penalty—
(a) for an individual—$5,000;
(b) for a body corporate—$25,000.
The Licensing Authority must, immediately after the suspension of a licensee’s licence ends, return the licence to the licensee.
In this section—
A licence may not be transferred.
A licence is not personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth.
A licensee may, before the licensee’s licence expires, apply to renew the licence.
An application for the renewal of a licence must—
(a) be made to the Licensing Authority; and
(b) be in the approved form; and
(c) be accompanied by the prescribed fee payable to the prescribed person; and
(d) be accompanied by any other documents, identified in the approved form, the Licensing Authority reasonably requires; and
(e) comply with any other requirement prescribed by the national regulations, including any requirement about when the application must be made.
Before deciding an application for renewal of a licence, the Licensing Authority may, by written notice given to the applicant, require the applicant to give the Authority, within a reasonable time stated in the notice, further information or a document the Authority reasonably requires to decide the application.
The Licensing Authority may require the information or document to be verified by a statutory declaration.
The applicant is taken to have withdrawn the application if the applicant does not comply with the written notice.
Divisions 3 and 4 apply to the renewal of a licence, with any changes prescribed by the national regulations, as if the application for the renewal of the licence were an application for the grant of a licence.
If a person applies under section 31 to renew the person’s licence, the licence is taken to continue in force from the day it would, apart from this section, have ended until—
(a) if the Licensing Authority decides to renew the licence, the day the new licence is given to the person; or
(b) if the Licensing Authority decides to refuse to renew the licence, the day the person is given notice of the decision.
If a person’s licence has expired and the licence is for a specified licensed occupation, the person may apply for the restoration of the licence within 3 months after the expiry.
However, an application for the restoration of licence may not be made—
(a) during any period in which the licence is suspended; or
(b) if the licence has been cancelled.
An application for the restoration of a licence must—
(a) be made to the Licensing Authority; and
(b) be in the approved form; and
(c) be accompanied by the prescribed fee payable to the prescribed person; and
(d) be accompanied by any other documents, identified in the approved form, the Licensing Authority reasonably requires; and
(e) comply with any other requirement prescribed by the national regulations.
In this section—
Before deciding an application for restoration of a licence, the Licensing Authority may, by written notice given to the applicant, require the applicant to give the Authority, within a reasonable time stated in the notice, further information or a document the Authority reasonably requires to decide the application.
The Licensing Authority may require the information or document to be verified by a statutory declaration.
The applicant is taken to have withdrawn the application if the applicant does not comply with the written notice.
Divisions 3 and 4 apply to the restoration of a licence, with any changes prescribed by the national regulations, as if the application for the restoration of the licence were an application for the grant of a licence.
If a person applies under section 35 to restore an expired licence, the licence is taken to have continued in force from the day it would, apart from this section, have ended until—
(a) if the Licensing Authority decides to restore the licence, the day the new licence is given to the person; or
(b) if the Licensing Authority decides to refuse to restore the licence, the day the person is given notice of the decision.
If the Licensing Authority decides to restore a person’s licence, the licence is taken to have commenced immediately after the person’s previous licence expired.
A licensee may apply to vary the licensee’s licence.
An application for the variation of a licence must—
(a) be made to the Licensing Authority; and
(b) be in the approved form; and
(c) be accompanied by the prescribed fee payable to the prescribed person; and
(d) be accompanied by any other documents, identified in the approved form, the Licensing Authority reasonably requires; and
(e) comply with any other requirement prescribed by the national regulations.
Divisions 3 and 4 apply to the variation of a licence, with any changes prescribed by the national regulations, as if the application for the variation of the licence were an application for the grant of a licence.
This section applies if the Licensing Authority reasonably believes it is necessary to vary a licensee’s licence.
The Licensing Authority must give the licensee a written notice stating—
(a) that the Authority proposes to vary the licence; and
(b) how the Authority proposes to vary the licence; and
(c) the reason for the proposed variation; and
(d) that the licensee may, within 28 days after receipt of the notice, make a written submission to the Authority about the proposed variation.
The licensee may make a written submission about the proposed variation as stated in the notice.
The Licensing Authority must consider a submission made under subsection (3) and decide whether or not to vary the licence.
The Licensing Authority’s decision must be made—
(a) within 28 days after receiving the licensee’s submission; or
(b) if the licensee does not make a submission, within 28 days after the last day on which the licensee may make a submission.
As soon as practicable after making its decision, the Licensing Authority must give written notice of the decision to the licensee.
If the Licensing Authority decides to vary the licence, the notice must state—
(a) the decision made by the Authority; and
(b) that the licensee may apply for a review of the decision; and
(c) how an application for a review must be made and the period within which the application must be made.
A licensee may surrender the licensee’s licence.
In surrendering a licence, the licensee must comply with any requirements prescribed by the national regulations.
The Licensing Authority may decide to revoke a person’s licence if the Authority reasonably believes the licence was issued in error.
The Licensing Authority may decide to revoke a licence under this section only if the decision is made not more than 28 days after the Authority becomes aware of the ground that forms the basis for believing the licence was issued in error.
If the Licensing Authority decides to revoke a licence, it must give a notice to the licensee stating—
(a) the decision made by the Authority; and
(b) that the person may apply for a review of the decision; and
(c) how an application for a review must be made and the period within which the application must be made.
The decision takes effect on—
(a) the day the notice is given to the person; or
(b) the later day stated in the notice.
A licensee may apply to the Licensing Authority for the replacement of the licensee’s licence if it has been lost, stolen, destroyed or damaged.
The application must be—
(a) in the approved form; and
(b) accompanied by the prescribed fee payable to the prescribed person.
The Licensing Authority must issue a replacement licence to the licensee.
Disciplinary proceedings may be taken under this Part in relation to a former licensee’s behaviour while a licensee as if the former licensee were still a licensee.
However, disciplinary proceedings may be taken against a former licensee only in relation to behaviour that occurred not more than 6 years before the day the disciplinary proceedings start.
For the purposes of subsection (1), this Part (other than Division 3) applies, with any necessary changes, as if a reference to a licensee included a former licensee.
(a) reprimand the licensee;
(b) direct the licensee to do or not to do something;
(c) require the licensee to give the Licensing Authority an undertaking;
(d) impose a condition on the licensee’s licence;
(e) impose demerit points on the licensee as provided for in the national regulations;
(f) require the licensee to pay to the Licensing Authority a penalty of not more than the prescribed amount;
(g) suspend the licensee’s licence for a stated period;
(h) cancel the licensee’s licence and disqualify the person from applying for a specified licence for a period of not more than 5 years;
(i) cancel the licensee’s licence and disqualify the person from applying for a specified licence for life.
(a) direct the former licensee to do or not to do something;
(b) require the former licensee to pay to the Licensing Authority a penalty of not more than the prescribed amount;
(c) disqualify the former licensee from applying for a specified licence for a period of not more than 5 years;
(d) disqualify the former licensee from applying for a specified licence for life.
The disciplinary action referred to in subsection (1) or (2) is listed in a hierarchy from the least serious action that may be taken to the most serious action.
Each of the following is a ground for which disciplinary action may be taken against a licensee—
(a) the licensee has contravened this Law or the national regulations;
(b) the licensee has contravened—
(i) a prescribed Act or regulation of the Commonwealth or a State or Territory; or
(ii) a prescribed provision of an Act or regulation of the Commonwealth or a State or Territory;
(c) the licensee is no longer eligible for a licence or the particular licence held by the licensee;
(d) the licensee has not completed the prescribed skills maintenance requirements or prescribed training requirements;
(e) the licensee has not paid a fee or other amount required to be paid under—
(i) this Law; or
(ii) a prescribed Act of the Commonwealth or a State or Territory;
(f) the licensee has not complied with an order made by a disciplinary body in relation to the licensee’s licensed occupation;
(g) the licensee has not complied with a direction given by a disciplinary body to do or not to do something;
(h) the licensee has not complied with a direction given by the Licensing Authority to the licensee under section 101;
(i) the licensee’s licence was obtained on the basis of information or a document that was false or misleading;
(j) the licensee has contravened a condition of the licensee’s licence or an undertaking given by the licensee to the Licensing Authority;
(k) the licensee has failed to maintain insurance the licensee is required by the national regulations to maintain;
(l) an immediate suspension ground exists in relation to the licensee.
However, disciplinary action may not be taken against a licensee on a ground referred to in subsection (1) if the ground is prescribed under the national regulations as being a ground for which the licensee’s licence is automatically suspended or cancelled.
A ground for the immediate suspension of a licensee’s licence exists if—
(a) the licensee is bankrupt or insolvent; or
(b) the licensee has contravened a relevant law; or
(c) the licensee has misappropriated funds held on trust by the licensee; or
(d) the licensee has been charged with or convicted of an offence that, under the national regulations, would make the person ineligible to hold a licence.
Subsection (1)(a) applies only in relation to a licensee who is a member of a prescribed class of licensees.
In this section—
(a) has become bankrupt or insolvent; or
(b) has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) has compounded with creditors or made an assignment of remuneration for the benefit of creditors; or
(d) has entered into a compromise or scheme of management with creditors.
The Licensing Authority may, by written notice given to a licensee, immediately suspend the licensee’s licence if the Authority reasonably believes—
(a) an immediate suspension ground exists in relation to the licensee; and
(b) it is necessary in the public interest to immediately suspend the licensee’s licence.
The written notice must state the following—
(a) the decision;
(b) the reasons for the decision;
(c) the period of the suspension;
(d) that the licensee may apply to the Licensing Authority for a review of the decision within 14 days;
(e) the way the licensee may apply for the review of the decision.
The suspension—
(a) takes effect when the notice is given to the licensee; and
(b) continues until the earlier of the following days—
(i) the day the suspension is revoked by the Licensing Authority;
(ii) the day the suspension is revoked on appeal under Division 3 of Part 5.
The Licensing Authority may start disciplinary proceedings against a licensee under this Division only if an Act of the participating jurisdiction in which the conduct that provides the grounds for the disciplinary proceedings occurred has declared that this Division applies to licensees carrying out the licensed occupation for which the licensee is licensed.
If the Licensing Authority reasonably believes a ground for taking disciplinary action against a licensee exists, the Authority must give the licensee a notice under this section (a
The show cause notice must state the following—
(a) that the Licensing Authority proposes to take disciplinary action (the
proposed action );(b) the licence in relation to which the proposed action is to be taken;
(c) the ground for the proposed action;
(d) an outline of the facts and circumstances forming the basis for the ground;
(e) an invitation to the licensee to show within a stated period (the
show cause period ) why the proposed action should not be taken.
The show cause period must be a period ending at least 14 days after the show cause notice is given to the licensee.
The licensee may—
(a) make written representations about the show cause notice to the Licensing Authority within the show cause period; or
(b) make oral representations about the show cause notice to the Licensing Authority at the time within the show cause period, and at the place, agreed by the Licensing Authority and the licensee.
The Licensing Authority must keep a record of oral representations made to it under subsection (1)(b).
Within 28 days after the show cause period ends, the Licensing Authority must decide whether a ground exists to take disciplinary action against the licensee.
If the Licensing Authority no longer believes a ground exists to take disciplinary action against the licensee, the Authority—
(a) must not take further action about the show cause notice; and
(b) must, as soon as practicable after making its decision, give notice to the licensee that no further action will be taken about the show cause notice.
If the Licensing Authority still believes a ground exists to take disciplinary action against the licensee, the Authority may—
(a) take the proposed action; or
(b) take one or more disciplinary actions that, in accordance with the hierarchy specified in section 47, are less serious than the proposed action.
In making its decision about what disciplinary action should be taken, the Licensing Authority must have regard to the following—
(a) the licensee’s licensing history;
(b) whether the ground for the disciplinary action is that the licensee has contravened—
(i) this Law or the national regulations; or
(ii) another Act or regulation;
(c) if the ground for disciplinary action is a contravention referred to in paragraph (b), the severity of the contravention and the period for which the contravention continued.
The Licensing Authority may not take action referred to in section 47(1)(f) with respect to a ground for disciplinary action if the licensee has already been fined by a court or a tribunal with respect to the same behaviour.
The Licensing Authority must, as soon as practicable after making its decision, give a written notice about the decision to the licensee.
The written notice must state the following—
(a) the decision;
(b) the reasons for the decision;
(c) that the licensee may apply for a review of the decision within 28 days;
(d) the way the licensee may apply for the review of the decision.
The decision takes effect on—
(a) the day the notice is given to the licensee; or
(b) the later day stated in the notice.
The Licensing Authority may start disciplinary proceedings against a licensee under this Division only if an Act of the participating jurisdiction in which the conduct that provides the grounds for the disciplinary proceedings occurred has declared that this Division applies to licensees carrying out the licensed occupation for which the licensee is licensed.
If the Licensing Authority reasonably believes a ground for taking disciplinary action against a licensee exists, the Authority may apply to the relevant tribunal or court for the participating jurisdiction.
After hearing the matter about the licensee, the relevant tribunal or court must decide—
(a) the licensee has no case to answer; or
(b) that a ground exists to take disciplinary action against the licensee.
If the relevant tribunal or court decides that a ground exists to take disciplinary action against the licensee, the tribunal or court may decide to take one or more disciplinary actions against the licensee.
However, the relevant tribunal or court may not take action referred to in section 47(1)(f) with respect to a ground for discplinary action if the licensee has already been fined by a court or a tribunal with respect to the same behaviour.
The Licensing Authority must give effect to a decision of the relevant tribunal or court, unless the decision is stayed on appeal.
This section applies if an authorised officer reasonably believes—
(a) an offence against this Law or a prescribed Act has been committed; and
(b) a person may be able to give information about the offence.
The authorised officer may, by written notice given to a person, require the person to—
(a) give stated information to the authorised officer within a stated reasonable time and in a stated reasonable way; or
(b) attend before the authorised officer at a stated reasonable time and a stated reasonable place to answer questions or produce documents.
A person required to give stated information to an authorised officer under section 61(2)(a) must not fail, without reasonable excuse, to give the information as required by the notice.
Penalty—
(a) for an individual—$10,000; or
(b) for a body corporate—$50,000.
A person given a notice to attend before an authorised officer under section 61(2)(b) must not fail, without reasonable excuse, to—
(a) attend as required by the notice; and
(b) continue to attend as required by the authorised officer until excused from further attendance; and
(c) answer a question the person is required to answer by the authorised officer; and
(d) produce a document the person is required to produce by the notice.
Penalty—
(a) for an individual—$10,000; or
(b) for a body corporate—$50,000.
For the purposes of subsections (1) and (2), it is a reasonable excuse for an individual to fail to give stated information, answer a question or produce a document, if giving the information, answering the question or producing the document might tend to incriminate the individual.
An authorised officer may require a licensee to make available, or produce, for inspection by the authorised officer at a reasonable time and place nominated by the authorised officer, a document to which the licensee has access and that the licensee is required to keep under this Law or a prescribed Act or that otherwise relates to the licensee’s obligations under this Law or a prescribed Act.
A licensee required to make available or produce a document under subsection (1) must not fail, without reasonable excuse, to comply with the requirement.
Penalty—
(a) for an individual—$10,000;
(b) for a body corporate—$50,000.
If a document is produced to an authorised officer under section 61 or 63, the authorised officer may—
(a) inspect the document; and
(b) make a copy of, or take an extract from, the document; and
(c) keep the document while it is necessary for an investigation being carried out by the authorised officer.
If the authorised officer keeps the document, the authorised officer must—
(a) give the person who produced the document a receipt for the document; and
(b) permit a person otherwise entitled to possession of the document to inspect, make a copy of, or take an extract from, the document at the reasonable time and place decided by the authorised officer.
An authorised officer may enter and inspect a place for the purpose of investigating—
(a) whether this Law or a prescribed Act is being complied with; or
(b) whether work being carried out under a licence has been, or is being, carried out in accordance with this Law or a prescribed Act.
An authorised officer may only enter and inspect a place—
(a) if the place is a relevant place—
(i) with the consent of the occupier or person in control of the place; or
(ii) during times prescribed work is being carried out at the place; or
(iii) if it is a public place and the entry is made when it is open to the public; or
(iv) if the entry is authorised by a warrant; or
(b) if the place is not a relevant place, if the entry is authorised by a warrant.
For the purpose of asking the occupier or person in control of a relevant place for consent to enter, an authorised officer may, without the consent of the occupier or person in control, enter the place to the extent that is reasonable to contact the person.
Subsection (2)(a) does not allow entry to a home without the occupier’s consent or a warrant.
In this section—
(a) a place, or a part of a place, that the public is entitled to use, that is open to members of the public or that is used by the public, whether or not on payment of money; or
(b) a place, or part of a place, that the occupier allows members of the public to enter, whether or not on payment of money.
An authorised officer may apply to a magistrate of a participating jurisdiction for a warrant for a place.
The authorised officer must prepare a written application that states the grounds on which the warrant is sought.
The written application must be sworn.
The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
The magistrate may issue the warrant only if the magistrate is satisfied—
(a) there are reasonable grounds for suspecting there is a particular thing or activity that may provide evidence of an offence against this Law or a prescribed Act at the place; or
(b) it is necessary for the purpose of determining whether work being carried out under a licence has been, or is being, carried out in accordance with this Law or a prescribed Act at the place.
The warrant must state—
(a) that a stated authorised officer may, with necessary and reasonable help and force—
(i) enter the place and any other place necessary for entry; and
(ii) exercise the authorised officer’s powers under this Part; and
(b) the matter for which the warrant is sought; and
(c) the evidence that may be seized under the warrant; and
(d) the hours of the day or night when the place may be entered; and
(e) the date, within 14 days after the warrant’s issue, the warrant ends.
An authorised officer may apply for a warrant by phone, facsimile, email, radio, video conferencing or another form of communication if the authorised officer considers it necessary because of—
(a) urgent circumstances; or
(b) other special circumstances, including the authorised officer’s remote location.
The application—
(a) may not be made before the authorised officer prepares the written application under section 66(2); but
(b) may be made before the written application is sworn.
The magistrate may issue the warrant (the
(a) it was necessary to make the application under subsection (1); and
(b) the way the application was made under subsection (1) was appropriate.
After the magistrate issues the original warrant—
(a) if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised officer, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised officer; or
(b) otherwise—
(i) the magistrate must tell the authorised officer the date and time the warrant is issued and the other terms of the warrant; and
(ii) the authorised officer must complete a form of warrant including by writing on it—
(A) the magistrate’s name; and
(B) the date and time the magistrate issued the warrant; and
(C) the other terms of the warrant.
The copy of the warrant referred to in subsection (4)(a), or the form of warrant completed under subsection (4)(b) (in either case the
The authorised officer must, at the first reasonable opportunity, send to the magistrate—
(a) the written application complying with section 66(2) and (3); and
(b) if the authorised officer completed a form of warrant under subsection (4)(b), the completed form of warrant.
The magistrate must keep the original warrant and, on receiving the documents under subsection (6), file the original warrant and documents in the court.
Despite subsection (5), if—
(a) an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and
(b) the original warrant is not produced in evidence;
the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.
This section does not limit section 66.
Before entering a place under a warrant, an authorised officer must do or make a reasonable attempt to do the following—
(a) identify himself or herself to a person present at the place who is an occupier of the place or the person apparently in control of the place by producing the authorised officer’s identity card or another document evidencing the authorised officer’s appointment;
(b) give the person a copy of the warrant;
(c) tell the person the authorised officer is permitted by the warrant to enter the place;
(d) give the person an opportunity to allow the authorised officer immediate entry to the place without using force.
However, the authorised officer need not comply with subsection (1) if the authorised officer reasonably believes that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.
This section applies if an authorised officer enters a place under section 65.
The authorised officer may for the purposes of the investigation do the following—
(a) search any part of the place;
(b) inspect, measure, test, photograph or film any part of the place or anything at the place;
(c) take a thing, or a sample of or from a thing, at the place for analysis, measurement or testing;
(d) copy, or take an extract from, a document at the place;
(e) take into or onto the place any person, equipment and materials the authorised officer reasonably requires for exercising a power under this Part;
(f) require the occupier of the place, or a person at the place, to give the authorised officer reasonable help to exercise the authorised officer’s powers under paragraphs (a) to (e);
(g) require the occupier of the place, or a person at the place, to give the authorised officer information, including, for example, the person’s name, address or licence number, to help the authorised officer ascertain whether this Law or the prescribed Act is being complied with.
The authorised officer may also require any of the following persons to do, or refrain from doing, something at the place if the officer reasonably believes it is necessary to do so to prevent injury or other harm to persons at the place—
(a) a licensee who has been carrying out prescribed work at the place or a person acting under the direction of the licensee;
(b) a person who has been carrying out prescribed work at the place under the direction of or on behalf of a licensee;
(c) the occupier of the place or a person at the place.
When making a requirement mentioned in subsection (2)(f) or (g) or (3), the authorised officer must warn the person it is an offence to fail to comply with the requirement unless the person has a reasonable excuse.
A person required to give reasonable help under section 70(2)(f) must comply with the requirement, unless the person has a reasonable excuse.
Penalty—
(a) for an individual—$10,000; or
(b) for a body corporate—$50,000.
A person of whom a requirement is made under section 70(2)(g) or (3) must comply with the requirement, unless the person has a reasonable excuse.
Penalty—
(a) for an individual—$10,000; or
(b) for a body corporate—$50,000.
It is a reasonable excuse for an individual not to comply with a requirement under section 70(2)(f) or (g) that complying with the requirement might tend to incriminate the individual.
This Division applies only in relation to a licensed occupation that is prescribed as being a relevant occupation for the purposes of this Division.
An authorised officer may enter a vehicle and exercise the powers set out in section 70(2) if—
(a) the authorised officer is investigating whether work being carried out under a licence has been, or is being, carried out in accordance with this Law or a prescribed Act; or
(b) the authorised officer suspects on reasonable grounds that—
(i) the vehicle is being, or has been, used in the commission of an offence against this Law or a prescribed Act in relation to a relevant occupation; or
(ii) the vehicle, or anything on or in the vehicle, may afford evidence of the commission of an offence against this Law or a prescribed Act in relation to a relevant occupation.
The authorised officer may enter the vehicle and exercise the powers with necessary and reasonable help and force, and without consent or a warrant.
Without limiting subsection (2), the authorised officer may require the driver of the vehicle or the person otherwise in control of the vehicle—
(a) to give the authorised officer reasonable help to enable the vehicle to be entered; or
(b) to bring the vehicle to a specified place and remain in control of the vehicle to enable the authorised officer to exercise the authorised officer’s powers in relation to the vehicle.
A person must not, without reasonable excuse, contravene a requirement under subsection (3).
Penalty—$10,000.
If the vehicle is moving or about to move the authorised officer may signal the driver of the vehicle to stop or not to move the vehicle.
A person must not, without reasonable excuse, disobey a signal under subsection (5).
Penalty—$10,000.
It is a reasonable excuse for the person to fail to stop or to move the vehicle if—
(a) to immediately obey the signal would have endangered, or damaged the property of, the person or another person; and
(b) the person obeys the signal as soon as it is practicable to obey the signal.
If an authorised officer enters a place with the consent of the occupier or person in control of the place, the authorised officer may seize a thing at the place if—
(a) the authorised officer reasonably believes the thing is evidence that is relevant to the investigation being conducted by the authorised officer; and
(b) seizing the thing is consistent with the purpose of the entry as told to the occupier or person in control when asking for the occupier’s or person in control’s consent.
If an authorised officer enters a place with a warrant, the authorised officer may seize the evidence for which the warrant was issued.
For the purposes of subsections (1) and (2), the authorised officer may also seize anything else at the place if the authorised officer reasonably believes—
(a) the thing is evidence that is relevant to the investigation; and
(b) seizing the thing is necessary to prevent the thing being hidden, lost or destroyed.
This section applies if an authorised officer does any of the following without consent or a warrant—
(a) enters a place during times when prescribed work is being carried out at the place;
(b) enters a public place when the place is open to the public;
(c) enters a vehicle.
The authorised officer may seize a thing at the place, or on or in the vehicle, if the authorised officer reasonably believes the thing is evidence that is relevant to the investigation being conducted by the authorised officer.
Having seized a thing, an authorised officer may—
(a) move the thing from the place where it was seized; or
(b) leave the thing at the place where it was seized but—
(i) take reasonable action to restrict access, or prevent or mitigate damage, to it; or
(ii) direct the person the authorised officer reasonably believes is in control of the seized thing to take reasonable action to restrict access, or prevent or mitigate damage, to it; or
(iii) for equipment, make it inoperable, or direct the person the authorised officer reasonably believes is in control of the thing to make it inoperable.
A person to whom a direction is given under subsection (1)(b)(ii) or (iii) must comply with the direction.
Penalty—$10,000.
If an authorised officer or a person acting at the officer’s direction restricts access to a seized thing, a person must not tamper or attempt to tamper with it, or something restricting access to it, without an authorised officer’s approval.
Penalty—$25,000.
If an authorised officer or a person acting at the officer’s direction makes a seized thing inoperable, a person must not tamper or attempt to tamper with the thing, without an authorised officer’s approval.
Penalty—$25,000.
As soon as practicable after an authorised officer seizes a thing, the authorised officer must give a receipt for it to the person from whom it was seized.
However, if for any reason it is not practicable to comply with subsection (1), the authorised officer must leave the receipt at the place where it was seized in a conspicuous position and in a reasonably secure way.
The receipt must describe generally the seized thing and its condition.
This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt given the thing’s nature, condition and value.
A seized thing is forfeited to the Licensing Authority if the Authority—
(a) cannot find its owner, after making reasonable inquiries; or
(b) cannot return it to its owner, after making reasonable efforts.
In applying subsection (1)—
(a) subsection (1)(a) does not require the Licensing Authority to make inquiries if it would be unreasonable to make inquiries to find the owner; and
(b) subsection (1)(b) does not require the Licensing Authority to make efforts if it would be unreasonable to make efforts to return the thing to its owner.
Regard must be had to a thing’s nature, condition and value in deciding—
(a) whether it is reasonable to make inquiries or efforts; and
(b) if making inquiries or efforts, what inquiries or efforts, including the period over which they are made, are reasonable.
On the forfeiture of a thing to the Licensing Authority, the thing becomes the Authority’s property and may be dealt with by the Authority as the Authority considers appropriate.
Without limiting subsection (1), the Licensing Authority may destroy or dispose of the thing.
If a seized thing has not been forfeited, the Licensing Authority must immediately return the thing to its owner if the Authority is no longer satisfied its continued retention as evidence is necessary.
Until a seized thing is forfeited or returned, the Licensing Authority must allow its owner to inspect it and, if it is a document, to copy it.
Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection.
A person may claim from the Licensing Authority the cost of repairing or replacing property damaged because of the exercise or purported exercise of a power under this Part by an authorised officer.
Without limiting subsection (1), compensation may be claimed for damage to property incurred in complying with a requirement made of the person under this Part.
Compensation is not payable for damage caused to the property of a relevant person if the exercise or purported exercise of the power under this Part by the authorised officer occurred in the course of an investigation of the relevant person.
Compensation may be claimed and ordered to be paid in a proceeding brought in a court with jurisdiction for the recovery of the amount of compensation claimed.
A court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.
The national regulations may provide for matters to which a court may, must or must not have regard in deciding whether to make an order under this section.
In this section—
(a) a licensee;
(b) a person, other than a licensee, who is or was carrying out prescribed work;
(c) a person, other than a licensee, who is or was advertising or holding out that he or she was licensed to carry out a licensed occupation.
A person must not, in relation to a licence or a licensed occupation, state anything to an authorised officer that the person knows is false or misleading in a material particular.
Penalty—
(a) for an individual—$25,000; or
(b) for a body corporate—$125,000.
A person must not give an authorised officer a document containing information the person knows is false or misleading in a material particular.
Penalty—
(a) for an individual—$25,000; or
(b) for a body corporate—$125,000.
Subsection (1) does not apply to a person who, when giving the document—
(a) informs the authorised officer, to the best of the person’s ability, how it is false or misleading; and
(b) gives the correct information to the authorised officer if the person has, or can reasonably obtain, the correct information.
A person must not obstruct an authorised officer in the exercise of a power, unless the person has a reasonable excuse.
Penalty—
(a) for an individual—$25,000; or
(b) for a body corporate—$125,000.
If a person has obstructed an authorised officer and the authorised officer decides to proceed with the exercise of the power, the authorised officer must warn the person that—
(a) it is an offence to obstruct the authorised officer, unless the person has a reasonable excuse; and
(b) the authorised officer considers the person’s conduct is an obstruction.
In this section—
A person must not pretend to be an authorised officer.
Penalty—$25,000.
In this Part—
(a) a decision to refuse to grant a licence;
(b) a decision to refuse to renew or vary a licence;
(c) a decision to vary a licence at the Licensing Authority’s initiative;
(d) a decision to immediately suspend a licence;
(e) a decision by the Licensing Authority to take disciplinary action against a licensee;
(f) a decision to revoke a licence;
(g) a decision to give a licensee, or a member of a class of licensees, a direction under section 101;
(h) another decision prescribed by the national regulations as being a decision for which a person may apply for an internal review under this Part.
An affected person for a reviewable decision may apply to the Licensing Authority for an internal review of the decision.
The application must be made within 28 days after the day the affected person is given notice of the reviewable decision.
The Licensing Authority may, at any time, extend the time for applying for the internal review.
The application for an internal review must be in writing and state fully the grounds of the application.
the form is not properly completed unless the requirement is complied with.
In this Law—
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication.
(a) a Saturday or Sunday; or
(b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.
(a) immediately before the beginning of the corresponding day of the next named month; or
(b) if there is no such corresponding day—at the end of the next named month.
(a) a federation; or
(b) a state, province or other part of a federation.
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or expression.
(a) any paper or other material on which there is writing; or
(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; or
(c) any computer, disc, tape or other article or any material from which sounds, images, writings or messages are capable of being reproduced (with or without the aid of another article or device);
(d) a map, plan, drawing or photograph.
(a) a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or
(b) a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system.
(a) a legal or equitable estate in the land or other property; or
(b) a right, power or privilege over, or in relation to, the land or other property.
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and a letter.
(a) a Chapter, Part, Division, Subdivision, section, subsection, paragraph, subparagraph, sub-subparagraph or Schedule of or to this Law or the Act; or
(b) a clause, section, subsection, item, column, table or form of or in a Schedule to this Law or the Act; or
(c) the long title and any preamble to the Act.
(a) revoke or rescind; or
(b) repeal by implication; or
(c) abrogate or limit the effect of this Law or instrument concerned; or
(d) exclude from, or include in, the application of this Law or instrument concerned any person, subject matter or circumstance.
In a statutory instrument—
If this Law defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.
Definitions in or applicable to this Law apply except so far as the context or subject matter otherwise indicates or requires.
In this Law, words indicating a gender include each other gender.
In this Law—
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
In this Law, the word
In this Law, the word
This section has effect despite any rule of construction to the contrary.
Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in this Law, or relevant provisions of this Law, under or for the purposes of which the instrument is made or in force.
This section has effect in relation to an instrument except so far as the contrary intention appears in the instrument.
In this Law, a reference to a person generally (whether the expression “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” or “whoever” or another expression is used)—
(a) does not exclude a reference to a body corporate or an individual merely because elsewhere in this Law there is particular reference to a body corporate (however expressed); and
(b) does not exclude a reference to an individual or a body corporate merely because elsewhere in this Law there is particular reference to an individual (however expressed).
If a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under this Law—
(a) to produce the information or a document containing the information to a court, tribunal or person; or
(b) to make a document containing the information available for inspection by a court, tribunal or person;
then, unless the court, tribunal or person otherwise directs—
(c) the requirement obliges the person to produce or make available for inspection, as the case may be, a document that reproduces the information in a form capable of being understood by the court, tribunal or person; and
(d) the production to the court, tribunal or person of the document in that form complies with the requirement.
In this Law—
(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for this jurisdiction; and
(b) a reference to a locality or other matter or thing is a reference to such a locality or other matter or thing in and of this jurisdiction.
In this Law, a reference to a particular officer, or to the holder of a particular office, includes a reference to the person for the time being occupying or acting in the office concerned.
If a provision of this Law refers—
(a) to a Part, section or Schedule by a number and without reference to this Law—the reference is a reference to the Part, section or Schedule, designated by the number, of or to this Law; or
(b) to a Schedule without reference to it by a number and without reference to this Law—the reference, if there is only one Schedule to this Law, is a reference to the Schedule; or
(c) to a Division, Subdivision, subsection, paragraph, subparagraph, sub-subparagraph, section, subsection, item, column, table or form by a number and without reference to this Law—the reference is a reference to—
(i) the Division, designated by the number, of the Part in which the reference occurs; and
(ii) the Subdivision, designated by the number, of the Division in which the reference occurs; and
(iii) the subsection, designated by the number, of the section in which the reference occurs; and
(iv) the paragraph, designated by the number, of the section, subsection, Schedule or other provision in which the reference occurs; and
(v) the paragraph, designated by the number, of the section, subsection, item, column, table or form of or in the Schedule in which the reference occurs; and
(vi) the subparagraph, designated by the number, of the paragraph in which the reference occurs; and
(vii) the sub-subparagraph, designated by the number, of the subparagraph in which the reference occurs; and
(viii) the clause, section, subsection, item, column, table or form, designated by the number, of or in the Schedule in which the reference occurs;
as the case requires.
In this Law, a reference to a portion of this Law or an Act includes—
(a) a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Law or the Act referred to that forms the beginning of the portion; and
(b) a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Law or the Act referred to that forms the end of the portion.
A reference to “sections 5 to 9” includes both section 5 and section 9.
It is not necessary to refer to “sections 5 to 9 (both inclusive)” to ensure that the reference is given an inclusive interpretation.
If this Law confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.
If this Law confers a function or power on a particular officer or the holder of a particular office, the function may be performed, or the power may be exercised, by the person for the time being occupying or acting in the office concerned.
If this Law confers a function or power on a body (whether or not incorporated), the performance of the function, or the exercise of the power, is not affected merely because of vacancies in the membership of the body.
If this Law authorises or requires the making of an instrument or decision—
(a) the power includes power to amend or repeal the instrument or decision; and
(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.
If this Law authorises or requires the making of a statutory instrument in relation to a matter, a statutory instrument made under this Law may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of—
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a different kind);
as in force at a particular time or as in force from time to time.
If a statutory instrument applies, adopts or incorporates the provisions of a document, the statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the statutory instrument otherwise expressly provides.
A statutory instrument may—
(a) apply generally throughout this jurisdiction or be limited in its application to a particular part of this jurisdiction; or
(b) apply generally to all persons, matters or things or be limited in its application to—
(i) particular persons, matters or things; or
(ii) particular classes of persons, matters or things; or
(c) otherwise apply generally or be limited in its application by reference to specified exceptions or factors.
A statutory instrument may—
(a) apply differently according to different specified factors; or
(b) otherwise make different provision in relation to—
(i) different persons, matters or things; or
(ii) different classes of persons, matters or things.
A statutory instrument may authorise a matter or thing to be from time to time determined, applied or regulated by a specified person or body.
If this Law authorises or requires a matter to be regulated by statutory instrument, the power may be exercised by prohibiting by statutory instrument the matter or any aspect of the matter.
If this Law authorises or requires provision to be made with respect to a matter by statutory instrument, a statutory instrument made under this Law may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Law in relation to another aspect of the matter or in relation to another matter.
A statutory instrument may provide for the review of, or a right of appeal against, a decision made under the statutory instrument, or this Law, and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.
A statutory instrument may require a form prescribed by or under the statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.
All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.
A statutory instrument is taken to be made under all powers under which it may be made, even though it purports to be made under this Law or a particular provision of this Law.
If this Law authorises or requires a person or body—
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a power; or
(c) to appoint a person or body to do another thing;
the person or body may make the appointment by—
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder of a particular office, by reference to the title of the office concerned.
An appointment of a particular officer, or the holder of a particular office, is taken to be the appointment of the person for the time being occupying or acting in the office concerned.
If this Law authorises a person or body to appoint a person to act in an office, the person or body may, in accordance with this Law, appoint—
(a) a person by name; or
(b) a particular officer, or the holder of a particular office, by reference to the title of the office concerned;
to act in the office.
The appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment.
The appointer may—
(a) determine the terms and conditions of the appointment, including remuneration and allowances; and
(b) terminate the appointment at any time.
The appointment, or the termination of the appointment, must be in, or evidenced by, writing signed by the appointer.
The appointee must not act for more than 1 year during a vacancy in the office.
If the appointee is acting in the office otherwise than because of a vacancy in the office and the office becomes vacant, then, subject to subsection (2), the appointee may continue to act until—
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy;
whichever happens first.
The appointment ceases to have effect if the appointee resigns by writing signed and delivered to the appointer.
While the appointee is acting in the office—
(a) the appointee has all the powers and functions of the holder of the office; and
(b) this Law and other laws apply to the appointee as if the appointee were the holder of the office.
Anything done by or in relation to a person purporting to act in the office is not invalid merely because—
(a) the occasion for the appointment had not arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not arisen or had ceased.
If this Law authorises the appointer to appoint a person to act during a vacancy in the office, an appointment to act in the office may be made by the appointer whether or not an appointment has previously been made to the office.
If this Law authorises or requires a person or body to appoint a person to an office—
(a) the power may be exercised from time to time as occasion requires; and
(b) the power includes—
(i) power to remove or suspend, at any time, a person appointed to the office; and
(ii) power to appoint another person to act in the office if a person appointed to the office is removed or suspended; and
(iii) power to reinstate or reappoint a person removed or suspended; and
(iv) power to appoint a person to act in the office if it is vacant (whether or not the office has ever been filled); and
(v) power to appoint a person to act in the office if the person appointed to the office is absent or is unable to discharge the functions of the office (whether because of illness or otherwise).
The power to remove or suspend a person under subsection (1) (b) may be exercised even if this Law provides that the holder of the office to which the person was appointed is to hold office for a specified period.
The power to make an appointment under subsection (1) (b) may be exercised from time to time as occasion requires.
An appointment under subsection (1) (b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.
If this Law authorises a person or body to delegate a function, the person or body may, in accordance with this Law and any other applicable law, delegate the function to—
(a) a person or body by name; or
(b) a specified officer, or the holder of a specified office, by reference to the title of the office concerned.
The delegation may be—
(a) general or limited; and
(b) made from time to time; and
(c) revoked, wholly or partly, by the delegator.
The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.
A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.
The delegate may, in the performance of a delegated function, do anything that is incidental to the delegated function.
A delegated function that purports to have been exercised by the delegate is taken to have been properly exercised by the delegate unless the contrary is proved.
A delegated function that is properly exercised by the delegate is taken to have been exercised by the delegator.
If, when exercised by the delegator, a function is dependent on the delegator’s opinion, belief or state of mind, then, when exercised by the delegate, the function is dependent on the delegate’s opinion, belief or state of mind.
If—
(a) the delegator is a specified officer or the holder of a specified office; and
(b) the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the holder of the office;
then—
(c) the delegation continues in force; and
(d) the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this section.
If—
(a) the delegator is a body; and
(b) there is a change in the membership of the body;
then—
(c) the delegation continues in force; and
(d) the body as constituted for the time being is taken to be delegator for the purposes of this section.
If a function is delegated to a specified officer or the holder of a specified office—
(a) the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the function was delegated ceases to be the officer or the holder of the office; and
(b) the function may be exercised by the person for the time being occupying or acting in the office concerned.
A function that has been delegated may, despite the delegation, be exercised by the delegator.
The delegation of a function does not relieve the delegator of the delegator’s obligation to ensure that the function is properly exercised.
Subject to subsection (15), this section applies to a subdelegation of a function in the same way as it applies to a delegation of a function.
If this Law authorises the delegation of a function, the function may be subdelegated only if the Law expressly authorises the function to be subdelegated.
If a provision of this Law (the
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative character; or
(c) to do another thing;
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
If a provision of a Victoria Act (the
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative character; or
(c) to do another thing;
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
If—
(a) this Law has commenced and confers a power to make a statutory instrument (the
basic instrument-making power ); and(b) a provision of a Victoria Act that does not commence on its enactment would, had it commenced, amend this Law so as to confer additional power to make a statutory instrument (the
additional instrument-making power );
then—
(c) the basic instrument-making power and the additional instrument-making power may be exercised by making a single instrument; and
(d) any provision of the instrument that required an exercise of the additional instrument-making power is to be treated as made under subsection (2).
If an instrument, or a provision of an instrument, is made under subsection (1) or (2) that is necessary for the purpose of—
(a) enabling the exercise of a power mentioned in the subsection; or
(b) bringing an appointment, instrument or other thing made or done under such a power into effect;
the instrument or provision takes effect—
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at such later time (if any) at which, the instrument or provision is expressed to take effect.
If—
(a) an appointment is made under subsection (1) or (2); or
(b) an instrument, or a provision of an instrument, made under subsection (1) or (2) is not necessary for a purpose mentioned in subsection (4);
the appointment, instrument or provision takes effect—
(c) on the commencement of the relevant empowering provision; or
(d) on such later day (if any) on which, or at such later time (if any) at which, the appointment, instrument or provision is expressed to take effect.
Anything done under subsection (1) or (2) does not confer a right, or impose a liability, on a person before the relevant empowering provision commences.
After the enactment of a provision mentioned in subsection (2) but before the provision’s commencement, this section applies as if the references in subsections (2) and (5) to the commencement of the empowering provision were references to the commencement of the provision mentioned in subsection (2) as amended by the empowering provision.
In the application of this section to a statutory instrument, a reference to the enactment of the instrument is a reference to the making of the instrument.
In the measurement of distance for the purposes of this Law, the distance is to be measured along the shortest road ordinarily used for travelling.
If a period beginning on a given day, act or event is provided or allowed for a purpose by this Law, the period is to be calculated by excluding the day, or the day of the act or event; and—
(a) if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
(b) in any other case—by including the day on which the purpose is to be fulfilled.
If the last day of a period provided or allowed by this Law for doing anything is not a business day in the place in which the thing is to be or may be done, the thing may be done on the next business day in the place.
If the last day of a period provided or allowed by this Law for the filing or registration of a document is a day on which the office is closed where the filing or registration is to be or may be done, the document may be filed or registered at the office on the next day that the office is open.
If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the prescribed occasion happens.
If, in this Law, there is a reference to time, the reference is, in relation to the doing of anything in a jurisdiction, a reference to the legal time in the jurisdiction.
For the purposes of this Law, a person attains an age in years at the beginning of the person’s birthday for the age.
If a provision of this Law is expressed—
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise have effect, until a specified day;
this provision has effect until the last moment of the specified day.
If a provision of this Law is repealed or amended by a Victorian Act, or a provision of a Victorian Act, the provision is not revived merely because the Victorian Act or the provision of the Victorian Act—
(a) is later repealed or amended; or
(b) later expires.
The repeal, amendment or expiry of a provision of this Law does not—
(a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b) affect the previous operation of the provision or anything suffered, done or begun under the provision; or
(c) affect a right, privilege or liability acquired, accrued or incurred under the provision; or
(d) affect a penalty incurred in relation to an offence arising under the provision; or
(e) affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty.
Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.
If a Victorian Act repeals some provisions of this Law and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.
This Law and all Victorian Acts amending this Law are to be read as one.
This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Law, and things that may be done or are required to be done under this Law, except so far as the context or subject matter otherwise indicates or requires.
The fact that a provision of this Schedule refers to this Law and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Law.
This Law has effect in and relation to the coastal sea of this jurisdiction as if that coastal sea were part of this jurisdiction.
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