The Veterans Act 2005 gives the Director of Consumer Affairs Victoria a range of tools to deal with breaches of the law, depending on the merits and circumstances of each case.
The director will take into account redress for affected consumers, and the need for regular and visible enforcement action. It may be appropriate to pursue more than one enforcement option.
Enforcement options include:
Investigation/inspection powers
The director can monitor patriotic funds to ensure proper management. Inspectors can, in specific circumstances, enter and search premises and seize any thing or documents.
Power to require information
The director can require:
- a trustee to submit audited accounts as at a specified date
- an authorised deposit-taking institution (for example, a bank) to provide details about any accounts held in relation to a patriotic fund
- any person to provide information or documents to enable them to determine whether there has been a breach of the law. The Minister for Consumer Affairs also has this power.
Power to deal with funds that are not functioning properly
When a patriotic fund is not functioning properly or where there has been misuse of a fund, the director's powers include:
Court orders
The director may apply to the Magistrates' Court for a range of orders to deal with a patriotic fund in circumstances where the fund is not functioning properly. For instance, where the director considers:
- there have been instances of misuse or incompetence
- trustees have failed to comply with the law
- it is not clear who the trustees are or they cannot be found.
The director may apply for orders, for example, that:
- prohibit dealings with assets of the patriotic fund
- authorise a person to act as trustee (including the Victorian Veterans Council)
- appoint an administrator of the patriotic fund.
Appointment of an administrator
The director may appoint an administrator to wind up a patriotic fund, without applying for a court order, if at least 60 per cent of the trustees have agreed in writing to wind up the fund.
The Governor in Council (the Governor of Victoria exercising decision-making power with advice from the Victorian Executive Council - at least two and normally four ministers representing the Victorian Government) may also order that:
- a patriotic fund be wound up
- any remaining assets be distributed in accordance with the patriotic fund's trust deed. This may happen if, for example, there has been misuse of the fund, the trustees have failed to comply with the law or the trustees cannot be found or identified.
Powers to enforce compliance with the Act
The Veterans Act 2005 has enforcement powers similar to those in the Australian Consumer Law and Fair Trading Act 2012, to help address non-compliance. These include:
Prosecution
Prosecution means to institute legal proceedings against a person in the criminal jurisdiction of the Magistrates' Court for an offence.
The burden of proof in a prosecution means that the prosecution must prove 'beyond a reasonable doubt' that the person has committed an offence.
We will prosecute when the alleged conduct is of a serious nature, or where other remedies have been ineffective.
Injunctions
The Director of Consumer Affairs Victoria can apply in the civil jurisdiction of the Magistrates' Court for an injunction to restrain a person or organisation from engaging in conduct that constitutes a contravention of the Act.
The burden of proof in a civil action is lower than for a prosecution. The director must show that 'on the balance of probabilities' the application should be granted.
The director can also apply for an injunction requiring a person to do any act or thing. For example, to require trustees to:
- lodge the annual statement as required by the Act
- apply for approval to continue the administration of a patriotic fund (where approval for the establishment of the fund was not sought in the first place).
Enforceable undertaking
A formal agreement between the trustees and the director, that the trustees will change practices, undertake training programs or take other action by a certain date. If trustees do not comply with the terms of an undertaking to the director, we can obtain a court order to enforce the undertaking.