MOTOR CAR TRADERS ACT 1986 This review of the Motor Car Traders Act 1986 is designed to ensure that

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MOTOR CAR TRADERS ACT 1986This review of the
Motor Car Traders Act 1986 is designed to ensure
that the Act is serving the current needs of
motor car traders, given that the Act was
originally passed 31 years ago, amended in 1986
and 1996 certain sections are crying out for
reform.
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MOTOR CAR TRADERS ACT 1986 SECTION 7 MOTOR CAR
TRADERS TO BE LICENSED VACC RECOMMENDATION NO.
1 An amendment should be enacted that would
increase the penalty for unlicensed trading by
application of a minimum penalty of 10 penalty
points (or 1000) for each motor car exchanged or
sold. VACC RECOMMENDATION NO. 2 Subsection two
should be mandatory and 15 of the sale price of
the transaction should automatically be payable
as a fine. This matter is to be discussed with
Consumer Affairs Compliance and Enforcement
Division
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MOTOR CAR TRADERS ACT 1986 SECTION 7A DEEMED
TRADING IN MOTOR CARS VACC RECOMMENDATION NO.
3 The wording of the Section should be amended
to read, an offer to sell includes an invitation
to treat, and the publishing or authorisation to
publish, (including by electronic means) of an
advertisement. This suggestion is intended to
include all internet-based advertising.
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MOTOR
MOTOR CAR TRADERS ACT 1986 SECTION 16 AUTHORITY
TO SELL MOTOR CARS AT PUBLIC AUCTION VACC
RECOMMENDATION NO. 4 A public auction in
section 16 (1) should be made to meet the same
obligations as those binding licensed motor car
traders who are selling a vehicle this situation
is outlined in relation to Section 52 and
VSRs. This means that auctioneers selling cars
at a public auction must be able to provide VSRs
and the details required in Section 52. Also see
comments made later with regard to Section 42a
and Roadworthiness.
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MOTOR CAR TRADERS ACT 1986 SECTION 19 CHANGE IN
PARTNERSHIP VACC RECOMMENDATION NO. 5 The
requirement in Section 19 (1)(b)(i) requiring a
partnership to apply for a new licence if there
is a change in partnership, should not cause any
unnecessary burden to the partnership. For that
reason, the Director / Minister should have the
discretion to remit the fee for an application
for a new licence in certain circumstances.
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MOTOR CAR TRADERS ACT 1986 SECTION 28 AUTOMATIC
CANCELLATION OF LICENCE ON BANKRUPTCY,
ETC. VACC RECOMMENDATION NO. 6 According to
the Business Licencing Authority, the definition
of a serious offence in 28(2) is found in the
definitions section of the Act, Section three.
Section three defines a serious offence as an
offence involving fraud, dishonesty, drug
trafficking or violence punishable by
imprisonment for three months or more.
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When the Business Licencing Authority (BLA) was
contacted by VACC, they said that if a licensed
trader is charged with an apparently serious
offence, not involving fraud, dishonesty or
drugs, then the BLA will look at the court
transcript and decide whether the offence is
sufficiently serious to warrant the cancellation
of their licence. This method of determining
whether a traders licence should be revoked,
based on an arbitrary decision, is obviously
questionable. Furthermore, an exact list of
which offences will lead to automatic suspension
should be provided, to prevent confusion over the
interpretation of this section of the Act.
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MOTOR CAR TRADERS ACT 1986 SECTION
34 PRESCRIBED SIGN VACC RECOMMENDATION NO.
7 This signage requirement could give rise to
problems given that a legitimate place where a
person may carry on business may be via an
internet site. Traders should be required to
display their LMCT number on websites. A
particular concern of the VACC is to prevent
unlicensed trading using Internet websites.
Trading from a website should carry exactly the
same responsibilities and obligations as Licensed
Motor Car Traders under the Act, who are
operating from a fixed location. In this way,
website sales should mirror face-to-face
transactions, and there should be penalties for
unlicensed website operations
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MOTOR CAR TRADERS ACT 1986 SECTION
36 CONSIGNMENT SELLING PROHIBITED VACC
RECOMMENDATION NO. 8 An offence should be
created under Section 36(2) for people who are
unlicensed, trading in motor vehicles and acting
as agents, to prevent them from selling motor
vehicles, by consignment. A further offence
should be written into this Section that it is
illegal for an unlicensed person to sell by
consignment.
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MOTOR CAR TRADERS ACT 1986 SECTION 37 DEALING
WITH YOUNG PERSONS VACC RECOMMENDATION NO. 9 It
is important to note that Section 8 of the Road
Safety Act has long been repealed, thus confusion
arises when attempting to precisely define what
is intended by Section 8. It is important to
consider regulation 201 of the Road Safety
(Vehicles) Regulations 1999 which provides that a
person is eligible to be the registered operator
of a vehicle if a. In the case of a heavy
vehicle, (they have) attained the age of 18
years, and b. In the case of a motorcycle, (they
have) attained the age of 17 years and 9 months.
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However, this regulation is not altogether
authoritative, given that in general law, a
person must be 18 years of age before they can
enter into a contract, unless it is an employment
contract (Cheshire and Fifoots law of contracts,
Butterworths, 2002).
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MOTOR CAR TRADERS ACT 1986 SECTION 38 ODOMETER
TAMPERING VACC RECOMMENDATION NO. 10 Section
38(4) should be amended so that it reads (4)
A person must not, knowingly, in the course of
selling or exchanging a motor car, falsely
represent the accuracy of an odometer reading of
the car.
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MOTOR CAR TRADERS ACT 1986 SECTION 42A ALL
REGISTERED CARS MUST BE SOLD WITH A ROADWORTHY
CERTIFICATE VACC RECOMMENDATION NO. 11 The
VACC believes that Section 42(3) should be
repealed, as it creates a loophole and unfairly
advantages auctioneers over Licensed Motor Car
Traders by allowing auctioneers sell cars to the
public which have not been checked for road
safety and subject to a roadworthy check upon
transfer.
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MOTOR CAR TRADERS ACT 1986 SECTION
45 RESCISSION VACC RECOMMENDATION NO. 12 The
VACC believes that Section 45(1b), which allows
for rescission of the agreement if it does not
contain the prescribed particulars, terms and
conditions, could give rise to unfairness. This
Section is too harsh and rigorous in that is
allows for rescission in situations where the
most trivial of details has not been
completed. We invite discussion on this section,
as we are looking for a solution that will be
fair and will not give rise to injustice.
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MOTOR CAR TRADERS ACT 1986 SECTION
48 CANCELLATION OF SECURITY INTEREST BY MOTOR CAR
TRADER VACC RECOMMENDATON NO. 13 The VACC
wants to completely reform Section 48(1) so that
the Section now reads A motor car trader must
not sell, exchange or otherwise dispose of a
motor car, if it has an interest recorded under
the Chattel and Securities Act, 1987.
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MOTOR CAR TRADERS ACT 1986 SECTION
52 PARTICULARS TO BE DISPLAYED VACC
RECOMMENDATION NO. 14 The VACC is concerned
about a possible conflict between the obligation
in Section 52 of this Act to keep and make
available for viewing, the details of the owner
of the motor car, and the operation of the
National Privacy Principles. There appears to be
a conflict between the Acts aim of keeping the
details of the registered owner of a vehicle to
ensure that prospective buyers can contact the
owner to verify that the information they have
received about the state of the vehicle is
consistent with what the dealer has told them,
and the Privacy Acts intention to prevent
personal information being passed on to third
parties.
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It may be necessary to delete subsection 2(a),
(b)(i) and (b) (ii), because it appears to
conflict with the Privacy Act. A means of
overcoming this problem would be to delete the
aforementioned sections, and for the
identification of a previous owner to be replaced
by the Vehicle Information Package, soon to be
available from VicRoads. The VIP gives a short
history of the vehicles registration, vehicle
ID, VSR and WOVR, but does not actually disclose
the previous owners name or address. We are
open to discussion about the best means of
keeping information about a vehicles
registration, without compromising individual
privacy. It is worth noting that in New South
Wales, the name and address of the previous
owners is not required.
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MOTOR CAR TRADERS ACTO 1986 SECTION
76 DETERMINATION OF CLAIMS VACC RECOMMENDATION
NO. 15 This Section should be amended to
specifically exclude statutory authorities from
claiming against the Fund. This is
inconsistent with the purpose of the Motor Car
Traders Act to guarantee payments for tax
collection to Governments. It was not the
original intention of the Act to guarantee that a
Government be compensated from the Guarantee Fund.
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MOTOR CAR TRADERS ACT 1986 SECTION
82A DOCUMENTS AVAILABLE FOR INSPECTION VACC
RECOMMENDATION 16 Section 82A Section 1 should
have a sentence added to it, so that the Section
reads A Licensed Motor Car Trader must at all
reasonable times, at each office at which that
trader carries on business as a motor car trader,
keep all documents relating to the business
carried on at that office, available for
inspection by an inspector in a form in which
they can be readily and expeditiously inspected
by an inspector. This method may include
electronically stored records, or any other
electronic storage method.
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CONCLUSION Todays Forum has given VACC an
opportunity to express the views of Licensed
Motor Car Traders regarding their Motor Car
Traders Act. We would like to see more
interaction between Government, traders and
consumers and look forward to further
consultations so that the emerging issues may be
dealt with, either in discussion or by
Legislative Amendments.