Part 6Miscellaneous

Part 6—Miscellaneous 33—No waiver of rights (1) Subject to this section, a purported exclusion, limitation, modification or waiver of the rights conferred by this Act is void. (2) A person of or above the age of 18 years who proposes to purchase a second-hand vehicle may, in accordance with the regulations, waive a right conferred by this Act (other than a right conferred under section 23 relating to a defect that is present in the vehicle at the time of sale) in relation to the proposed purchase of the vehicle. (2a) A document for the waiver of the right of a prospective purchaser of a second‑hand vehicle under section 18B to rescind a contract for the sale of the vehicle must conform with the following requirements: (a) the document must contain— (i) a statement of the rights of a prospective purchaser under section 18B to rescind the contract; and (ii) a statement warning a prospective purchaser of the legal effect if he or she waives the right to rescind the contract under section 18B; (b) the document must be written in plain English; (c) the document may be completed electronically or manually but must be signed by the prospective purchaser and witnessed by a person other than the dealer; (d) the document must contain any other prescribed information. (3) If a dealer purports to exclude, limit or modify any of the rights conferred by this Act otherwise than as authorised by this section, the dealer is guilty of an offence. (4) A person who enters into an agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Act is guilty of an offence. (5) A dealer must not exhibit or otherwise publish a statement, notice or advertisement in connection with a second-hand vehicle— (a) to the effect that sale of the vehicle is conditional on the purchaser waiving a right conferred by this Act; or (b) in such manner as to induce a prospective purchaser of the vehicle to waive such a right. (5a) A dealer must not induce or attempt to induce, or make a representation or negotiate with a view to inducing, a prospective purchaser of a second‑hand vehicle to waive his or her right under section 18B to rescind a contract for the sale of the vehicle. Maximum penalty: $20 000. (5b) If a dealer is found guilty of an offence against subsection (5a), a person who has suffered loss or damage as a result of the offence may apply to the Magistrates Court for an order that the dealer compensate the person for the loss or damage. (5c) The regulations may require a person or body prescribed by the regulations to report to the Minister, in accordance with requirements specified in the regulations, on the extent to which rights in general, or particular rights, conferred by this Act have been waived under subsection (2). (6) A contract for the sale of a second-hand vehicle conditional on the purchaser taking steps in accordance with the regulations to waive a right conferred by this Act is void. 34—Interference with odometers prohibited (1) A person must not interfere with the odometer on a second-hand vehicle. (a) for a first or second offence—$150 000; (b) for a third or subsequent offence—$150 000 or 2 years imprisonment or both. (2) For the purposes of subsection (1), a person interferes with an odometer if he or she— (a) alters the reading on the odometer; or (b) removes or replaces the odometer; or (c) renders the odometer inoperative or inaccurate. (3) A person may, with the written approval of the Commissioner, alter the reading on an odometer, or replace an odometer, under the terms of that approval. (4) If in proceedings for an offence against subsection (1) it is proved that the defendant had possession of the vehicle and that, while it was in the defendant's possession, or shortly after it ceased to be in the defendant's possession, the odometer reading was less than the odometer reading at the time the defendant acquired possession of the vehicle, it will be presumed, in the absence of proof to the contrary, that the defendant interfered with the odometer of the vehicle. (5) In any proceedings for an offence against subsection (1) it is a defence for the defendant to prove— (a) that the action was not taken with the intent of enhancing the apparent value of the vehicle for the purpose of sale; and (b) that the action was not taken for any other fraudulent purpose. (6) If a person is convicted of an offence of interfering with an odometer on a second-hand vehicle that the person has sold to a purchaser, the court may (in addition to imposing a penalty) order that the person compensate the purchaser for any disadvantage suffered by the purchaser as a result of the purchase of the vehicle (including, to avoid doubt, any costs reasonably incurred, or likely to be incurred, in rectifying the odometer). (7) Rules of Court may be made under the Magistrates Court Act 1991 regulating procedures with respect to applications for compensation under subsection (6). 34A—False or misleading statements in relation to odometers A person must not knowingly make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided to a purchaser or prospective purchaser of a second‑hand vehicle, or to a dealer to whom a second‑hand vehicle has been or is to be sold, relating to the accuracy of the odometer reading of the second‑hand vehicle. Maximum penalty: $30 000 or imprisonment for 2 years. 34B—Commissioner may direct owner of second‑hand vehicle to correct odometer and refrain from selling vehicle etc (1) If the Commissioner believes on reasonable grounds that the odometer of a second‑hand vehicle has been interfered with, or is otherwise substantially inaccurate, the Commissioner may, by notice in writing, do 1 or both of the following: (a) direct the owner of the second‑hand vehicle to take such action as may be specified in the notice to rectify the odometer (including, to avoid doubt, by directing that the odometer reading be altered to reflect the estimated true reading for the second‑hand vehicle, or altered so that the odometer reads a specified amount); (b) direct the owner of the second‑hand vehicle not to sell or otherwise dispose of the second‑hand vehicle— (i) until the specified action under paragraph (a) has been taken; or (ii) if the specified action has not been taken—except in accordance with the written approval of the Commissioner (which may be conditional or unconditional). (2) Without limiting subsection (1), a direction under that subsection may require that the specified action be undertaken by, or at the expense of, the Commissioner. (3) The Commissioner may, by notice in writing, vary or revoke a direction made under subsection (1). (4) A person to whom a direction is given under subsection (1) may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for a review of the decision of the Commissioner to give the direction (and, in the case of a direction referred to in subsection (1)(a), the direction is, by force of this subsection, stayed pending the determination of the application). (5) Subject to subsection (7), an application for review must be made within 1 month after the person is notified of the direction under subsection (1). (6) The Commissioner must, if so required by the person to whom a direction is given under subsection (1), state in writing the reasons for the Commissioner's decision. (7) If the reasons of the Commissioner are not given in writing at the time of giving the direction under subsection (1) and the person (within 1 month of the direction being given) requires the Commissioner to state the reasons in writing, the time for making an application for review runs from the time at which the person receives the written statement of those reasons. (8) A person must comply with a direction referred to in subsection (1)(a)— (a) if the person has applied to the Tribunal under subsection (4) for a review of the decision to give the direction—on or before the day determined by the Tribunal; or (b) if the person has not applied to the Tribunal for a review of the decision to give the direction—on or before the day specified in the notice under subsection (1) (being a day not less than 3 months after the direction is given). (9) A person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection (1). Maximum penalty: $20 000. (10) In the case where a person is found guilty of an offence under section 34(1) relating to interference with the odometer to which a direction under subsection (1) relates, the reasonable costs of action undertaken by, or at the expense of, the Commissioner in accordance with the direction may be recovered by the Commissioner as a debt from the person. (11) To avoid doubt, nothing in subsection (10) limits section 34(6). (12) This section applies whether the interference with the odometer occurred, or the odometer became inaccurate, before or after the commencement of this section. (13) A person may be charged with an offence against this section whether or not the person, or any other person, has been found guilty of, or charged with, an offence of interfering with the odometer under section 34. (14) Section 34 does not apply in relation to the rectification of an odometer pursuant to a direction under subsection (1). (15) Nothing in this section limits the Australian Consumer Law, the Fair Trading Act 1987 or any other Act or law. 35—Certain agreements to indemnify dealer void An agreement between a dealer and a person (other than a dealer) from whom the dealer purchases a second-hand vehicle that indemnifies the dealer in respect of any costs arising under this Act in relation to that vehicle is void. 36—Delegations (1) The Commissioner may delegate any of the Commissioner's functions or powers under this Act— (a) to a person employed in the Public Service; or (b) to the person for the time being holding a specified position in the Public Service; or (c) to any other person under an agreement under this Act between the Commissioner and an organisation representing the interests of persons affected by this Act. (2) The Minister may delegate any of the Minister's functions or powers under this Act (except the power to direct the Commissioner). (3) A delegation under this section— (a) must be in writing; and (b) may be conditional or unconditional; and (c) is revocable at will; and (d) does not prevent the delegator from acting in any matter. 37—Agreement with professional organisation (1) The Commissioner may, with the approval of the Minister, make an agreement with an organisation representing the interests of persons affected by this Act under which the organisation undertakes a specified role in the administration or enforcement of this Act. (2) The agreement— (a) must be in writing and executed by the Commissioner and the organisation; and (b) may contain delegations by the Commissioner of functions or powers under this Act or the Fair Trading Act 1987; and (c) must set out any conditions governing the performance or exercise of functions or powers conferred on the organisation; and (d) must make provision for the variation and termination of the agreement by the Commissioner with the approval of the Minister or the organisation. (3) The Commissioner may not delegate any of the following for the purposes of the agreement: (a) functions or powers under Part 2; (b) power to request the Commissioner of Police to investigate and report on matters under this Part; (c) power to commence a prosecution for an offence against this Act. (4) A delegation by the Commissioner for the purposes of the agreement— (a) has effect subject to the conditions specified in the agreement; and (b) may be varied or revoked by the Commissioner in accordance with the terms of the agreement; and (c) does not prevent the Commissioner from acting in any matter. (5) The Minister must, within six sitting days after the making of an agreement, cause a copy of the agreement to be laid before both Houses of Parliament. 38—Exemptions (1) The Minister may, on application by a person, exempt the person from compliance with a specified provision of this Act. (2) An exemption is subject to the conditions (if any) imposed by the Minister. (3) The Minister may, at his or her discretion, vary or revoke an exemption. (4) The grant or a variation or revocation of an exemption must be notified in the Gazette. 39—Register of dealers (1) The Commissioner must keep a register of persons licensed as dealers under this Act. (2) The Commissioner must record on the register— (a) disciplinary action taken against a person under this Act; and (b) a note of an assurance accepted by the Commissioner under the Fair Trading Act 1987 in relation to a licensed dealer; and (c) details of premises in relation to which licensed dealers have given notice as required by section 14. (2a) If any of the following events occur in relation to a person who is licensed as a dealer, or is a director of a body corporate that is licensed as a dealer, the Commissioner may record a note of the event on the register: (a) the person is convicted of an offence of dishonesty; (b) the person is suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; (c) the person becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; (d) a body corporate is wound up for the benefit of creditors and the person was a director of the body corporate— (i) when the body corporate was being so wound up; or (ii) within the period of 6 months preceding the commencement of the winding up; (e) the person, being a body corporate, is being wound up or is under official management or in receivership. (3) A person may inspect the register on payment of the fee fixed by regulation. 40—Commissioner and proceedings before Tribunal (1) The Commissioner is entitled to be joined as a party to any proceedings of the Tribunal under this Act. (2) The Commissioner may appear personally in any such proceedings or may be represented at the proceedings by counsel or a person employed in the Public Service. (3) Subsection (1) applies in addition to section 53 of the South Australian Civil and Administrative Tribunal Act 2013. 41—False or misleading information A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided, or record kept, under this Act. (a) if the person made the statement knowing that it was false or misleading—$25 000; (b) in any other case—$5 000. 42—Name in which dealer may carry on business A licensed dealer must not carry on business as a dealer except in the name in which the dealer is licensed. 43—Statutory declaration If a person is required to provide information to the Commissioner, the Commissioner may require the information to be verified by statutory declaration and, in that event, the person will not be taken to have provided the information as required unless it has been verified in accordance with the requirements of the Commissioner. 44—Investigations The Commissioner of Police must, at the request of the Commissioner, investigate and report on any matter relevant to— (a) the determination of an application under this Act; or (b) a matter that might constitute proper cause for disciplinary action under this Act. 45—General defence (1) It is a defence to a charge of an offence against this Act if the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. (2) This section does not apply in relation to a person who is charged with an offence under section 47. 46—Liability for act or default of officer, employee or agent For the purposes of this Act, an act or default of an officer, employee or agent of a person carrying on a business will be taken to be an act or default of that person unless it is proved that the officer, employee or agent acted outside the scope of his or her actual, usual and ostensible authority. 47—Offences by bodies corporate (1) If a body corporate is guilty of a prescribed offence, each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence unless the director proves that he or she could not by the exercise of due diligence have prevented the commission of the offence. (2) If a body corporate is guilty of any other offence against this Act (other than an offence against the regulations), each director of the body corporate is guilty of an offence and liable to the same penalty as is prescribed for the principal offence if the prosecution proves that— (a) the director knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and (b) the director was in a position to influence the conduct of the body corporate in relation to the commission of such an offence; and (c) the director failed to exercise due diligence to prevent the commission of the offence. (3) Subsection (2) does not apply if the principal offence is an offence against section 14, 16, 17, 18, 20, 21, 22, 25A or 42. (3a) The regulations may make provision in relation to the criminal liability of a director of a body corporate that is guilty of an offence against the regulations. (4) In this section— prescribed offence means an offence against section 7, 13, 13A or 32. 48—Continuing offence (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued of not more than one-tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one-tenth of the maximum penalty prescribed for the offence. (2) If an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 49—Prosecutions (1) Proceedings for an offence against this Act must be commenced— (a) in the case of an expiable offence—within the time limits prescribed for expiable offences by the Summary Procedure Act 1921; (b) in any other case—within 2 years of the date on which the offence is alleged to have been committed or, with the authorisation of the Minister, at a later time within 5 years of that date. (2) A prosecution for an offence against this Act cannot be commenced except by— (a) the Commissioner; or (b) an authorised officer; or (c) a person who has the consent of the Minister to commence the prosecution. (3) In any proceedings, an apparently genuine document purporting to be a certificate of the Minister certifying authorisation of, or consent to, a prosecution for an offence against this Act will be accepted, in the absence of proof to the contrary, as proof of the authorisation or consent. 50—Evidence (1) For the purposes of this Act— (a) if a person buys or offers to buy, or sells or offers for sale, at least 4 second‑hand vehicles during a period of 12 months, the person will, in the absence of proof to the contrary, be presumed to have been a dealer during that period; and (b) if a person and 1 other person who is a close associate of the person buy or offer to buy, or sell or offer for sale, an aggregate of at least 6 second‑hand vehicles during a period of 12 months, the person and that close associate will, in the absence of proof to the contrary, both be presumed to have been dealers during that period; and (c) if the registration of a second‑hand vehicle is transferred from 1 person to another— (i) the transferor will be presumed, in the absence of proof to the contrary, to have sold the vehicle to the transferee; and (ii) the transferee will be presumed, in the absence of proof to the contrary, to have bought the vehicle from the transferor. (2) In any proceedings, an apparently genuine document purporting to be a certificate of the Commissioner certifying— (a) that a person was or was not licensed as a dealer on a specified date; or (b) that premises were or were not notified premises on a specified date, constitutes proof of the matters so certified in the absence of proof to the contrary. 51—Service of documents (1) Subject to this Act, a notice or document required or authorised by this Act to be given to or served on a person may— (a) be served on the person personally; or (b) be posted in an envelope addressed to the person— (i) at the person's last known address; or (ii) if the person is a licensed dealer—at the dealer's address for service; or (c) if the person is a licensed dealer—be left for the person at the dealer's address for service with someone apparently over the age of 16 years; or (d) be transmitted by email to an email address provided by the person (in which case the notice or document will be taken to have been given or served at the time of transmission). (2) The address for service of a licensed dealer is the address of which the Commissioner has been last notified in writing by the dealer as the dealer's address for service. 52—Annual report (1) The Commissioner must, on or before 31 October in each year, submit to the Minister a report on the administration of this Act during the period of 12 months ending on the preceding 30 June. (2) The Minister must, within six sitting days after receipt of the report, cause a copy of the report to be laid before each House of Parliament. 53—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may— (a) require licensed dealers or salespersons to comply with a code of conduct; (b) require dealers to lodge with the Commissioner certificates evidencing the dealers' insurance coverage as required under Part 2; (c) fix fees to be paid in respect of any matter under this Act and regulate the recovery, refund, waiver or reduction of such fees; (d) provide for the exclusion, limitation, modification or waiver of rights conferred by this Act; (e) exempt (conditionally or unconditionally) classes of persons or activities from the application of this Act or specified provisions of this Act; (f) impose a penalty (not exceeding $5 000) for contravention of, or non-compliance with, a regulation; (g) fix expiation fees, not exceeding $315, for alleged offences against the regulations. (3) Regulations under this Act— (a) may be of general application or limited application; (b) may make different provision according to the matters or circumstances to which they are expressed to apply; (c) may provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Commissioner or the Minister. (4) The regulations may operate by reference to a specified code as in force at a specified time or as in force from time to time. (5) If a code is referred to in the regulations— (a) a copy of the code must be kept available for inspection by members of the public, without charge and during normal office hours, at an office determined by the Minister; and (b) evidence of the contents of the code may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code.