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Fair Trading and Consumer Acts
Further Amendment Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill amends the Fair Trading Act 1999 to enhance its operation
generally; repeals the Hire-Purchase Act 1959; repeals the Frustrated
Contracts Act 1959 and re-enacts its provisions in the Fair Trading
Act 1999; amends the Owners Corporations Act 2006 and the Subdivision
Act 1988 consequentially upon the introduction of the regulation of owners
corporations; amends trade measurement legislation to implement changes to
national model legislation; and repeals provisions providing for local
community polls on Sunday trading in the Shop Trading Reform Act 1989.
The Bill also amends the Partnership Act 1958 to recognise, and allow the
registration of, a new form of limited partnership, known as an Early Stage
Venture Capital Limited Partnership.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill. The main purposes of the Bill
are--
· to amend the Fair Trading Act 1999 to expand the
powers of the Director to bring proceedings, to provide
for certain matters to be privileged, to provide a
capacity to seek a court order to enforce certain
requirements of the Director or an inspector, and to
improve generally its operation;
· to amend various Consumer Acts to provide a capacity
to seek a court order to enforce certain requirements of
the Director or an inspector;
561098 1 BILL LA INTRODUCTION 31/10/2007
· to repeal the Frustrated Contracts Act 1959 and to re-
enact its provisions in the Fair Trading Act 1999;
· to repeal the Hire-Purchase Act 1959; to amend the
Owners Corporations Act 2006 and the Subdivision
Act 1988 to improve their operation;
· to amend the Partnership Act 1958 to enable Early
Stage Venture Capital Limited Partnerships to be
registered and recognised in Victoria;
· to amend the Trade Measurement Act 1995 and the
Trade Measurement (Administration) Act 1995 to
reflect changes to national model legislation; and
· to repeal provisions of the Shop Trading Reform
Act 1996 relating to special local shop closing times for
Sunday trading.
Clause 2 provides that the Bill (except sections 3, 4, 10, 11, 53 to 56, 58
and 59 and Parts 7 and 8) comes into operation on the day after
the day on which it receives the Royal Assent.
Parts 7 and 8 come into operation on 1 July 2008 to allow time
for regulations to be made for the purpose of the new provisions.
Sections 3, 4, 10, 11, 53 to 56, 58 and 59 come into operation on
a day or days to be proclaimed or by 1 December 2008 at the
latest. This is to allow time for the changes made by those
sections to be disseminated.
PART 2--FAIR TRADING ACT 1999
Clause 3 amends section 3 of the Fair Trading Act 1999 to substitute a
new definition of hire-purchase agreement. The new definition
re-enacts the definition from the Hire-Purchase Act 1959, which
is being repealed. This definition was previously incorporated by
reference.
Clause 4 inserts new Part 2C into the Fair Trading Act 1999. This Part
re-enacts without changing its legal operation the provisions of
the Frustrated Contracts Act 1959, which is to be repealed
by clause 53. The language of the provisions is updated.
Section 16 of the Interpretation of Legislation Act 1984 applies
to save existing actions under the repealed legislation if it is
re-enacted.
2
Clause 5 amends section 100(1)(e) of the Fair Trading Act 1999 to
substitute the words "to achieve the purposes of this Act or the
purposes of a Consumer Act" for the words "in accordance with
this Act or with a Consumer Act". The current words restrict the
capacity of the Director of Consumer Affairs Victoria to institute
and defend proceedings in the Federal Court of Australia.
The amendment removes an impediment to the Director of
Consumer Affairs Victoria seeking orders under the Trade
Practices Act 1974 (Cth).
Clause 6 inserts new section 152A of the Fair Trading Act 1999.
It provides that the Director of Consumer Affairs Victoria, or an
inspector, can certify to a court a person's failure, without
reasonable excuse, to comply with a requirement under sections
106HA, 106I, 118 or 131, as applicable. A certification cannot
be made where that person has been charged with an offence
against section 106HA, 106I (3) or 132.
The court may then inquire into the case and may order the
person to comply with the requirement within the period it
specifies.
If a proceeding is brought under this section in relation to a
failure to comply with a requirement, the person to whom the
failure relates cannot also be charged with an offence under
section 106HA(2), 106I(3), or 132 as applicable.
Clause 7 amends section 155(5) of the Fair Trading Act 1999 to correct a
cross-reference. Section 155(5) provides for defences under
section 155 to apply to offences under the Fair Trading
Act 1999 other than offences under Part 3, Part 8, Part 10 and
section 97 and 32ZA. However, section 32ZA is not an offence
provision--it enables injunctions to prevent the continued use of
an unfair term. The relevant offence to which the section should
refer is in section 32ZB.
Clause 8 amends section 163(3) of the Fair Trading Act 1999 to provide
that a reference to "10 point font" is a reference to "10 point
Times New Roman font, or a minimum font of an equivalent
size"; and amends section 163(4) to change references to a
consumer contract to a consumer document.
Clause 9 inserts section 163A of the Fair Trading Act 1999. It provides
that a person is not liable for any loss or damage or injury
sustained by any other person solely because the first person, in
good faith--
· makes a complaint to the Director of Consumer Affairs
Victoria under section 103 of that Act; or
3
· produces or gives a document or any information or
evidence to, the--
· Director of Consumer Affairs Victoria; or
· an inspector appointed under the Fair Trading
Act 1999; or
· the Victorian Civil and Administrative
Tribunal--
regarding a matter that is or may be a contravention of
the Fair Trading Act 1999 or another Consumer Act.
Clause 10 inserts clause 12 of Schedule 3 to the Fair Trading Act 1999,
which provides for the continued application of the Hire-
Purchase Act 1959 to hire-purchase agreements entered into and
in operation before 1 April 1998, and that are still in operation on
the date of the repeal of the Hire-Purchase Act 1959.
Clause 11 inserts clause 13 of Schedule 3 to the Fair Trading Act 1999,
which provides that after the repeal and re-enactment of the
Frustrated Contracts Act 1959 as Part 2C, a reference to it in
any instrument or document (other than this Bill) is deemed to be
a reference to Part 2C, insofar as that reference relates to any
period after the repeal and re-enactment, unless the context
requires otherwise.
PART 3--OWNERS CORPORATIONS ACT 2006
Clause 12 amends sections of the Owners Corporations Act 2006 to
provide that particular resolutions do not need to be resolved at a
general meeting, as follows--
· includes a definition of ordinary resolution in section 3;
· omits "general resolution" from section 25(1),
section 43 and section 52(a)(i); and
· substitutes "an owners corporation" for "At a general
meeting, the owners corporation" in section 62.
Clause 13 amends section 35 of the Owners Corporations Act 2006 to
include the National Institute of Accountants as authorised
auditors.
Clause 14 amends section 61(2) of the Owners Corporations Act 2006 to
provide that plans of subdivision registered under the Cluster
Titles Act 1974 or the Strata Titles Act 1967 are also exempt
from certain insurance provisions.
4
Clause 15 amends section 79 of the Owners Corporations Act 2006 to
allow lot owners present at a general meeting to elect one of their
number or the manager of the owners corporation to chair the
meeting.
Clause 16 amends section 87(3) of the Owners Corporations Act 2006 to
correct an incorrect reference.
Clause 17 amends section 107 of the Owners Corporations Act 2006 to
allow committee members to appoint the manager of the owners
corporation as the secretary of the committee.
Clause 18 amends section 151(2) of the Owners Corporations Act 2006 to
allow an owners corporation to determine its owners corporation
certificate fee up to a prescribed maximum.
Clause 19 omits from section 180(2) of the Owners Corporations
Act 2006 the requirement for managers to verify their registration
application by statutory declaration.
Clause 20 amends section 211 of the Owners Corporation Act 2006--
· to amend proposed section 27E(1) of the Subdivision
Act 1988 to provide for owners corporations' rules to be
lodged with the Registrar of Titles in a document
accompanying the plan of subdivision;
· to insert subsections (2)-(5) into proposed section 27H
of the Subdivision Act 1988 to allow an owners
corporation, by special resolution, to apply to the
Registrar of Titles to alter its purposes; or, if there is a
special resolution of the members of both a limited
owners corporation and an unlimited owners
corporation, to allow the owners corporations to apply
to the Registrar of Titles to alter the functions or
obligations of the limited owners corporation that are to
be carried out or complied with by the unlimited owners
corporation; and
· to amend proposed section 32AI(1)(c) of the
Subdivision Act 1988 to provide that it is 10% of the
lots that are the subject of the relevant consolidation,
subdivision or alteration that are referred to, rather than
10% of all of the lots in the registered plan.
Clause 21 amends section 6(a)(iv) of the Business Licensing Act 1998 to
include a reference to the Owners Corporations Act 2006.
5
Clause 22 amends Schedule 3 to the Owners Corporation Act 2006 to--
· amend item 10.2(b) to change all references to "body
corporate" in subsection 98CD(2) of the Transfer of
Land Act 1958 to "owners corporation";
· insert new item 10.3 which inserts proposed section
98CA(2)(ca) into the Transfer of Land Act 1958, to
provide that an application to cancel a plan of building
subdivision is to be accompanied by the relevant owners
corporation documents;
· insert new item 10.4, which in turn inserts proposed
subsection 98CA(3) of the Transfer of Land
Act 1958, which defines owners corporation documents
to mean the documents required under Part 5 of the
Subdivision Act 1988 to accompany a plan of
subdivision;
· insert new item 10.5, which amends proposed
sections 98CB(2) and 98CB(4) of the Transfer of Land
Act 1958 to also refer to owners corporation documents.
PART 4--PARTNERSHIP ACT 1958
Clause 23 inserts a new subparagraph after section 87(2)(a)(ii) of the
Partnership Act 1958 to enable an Early Stage Venture Capital
Limited Partnership ("ESVCLP") to apply for registration as an
incorporated limited partnership in Victoria.
Clause 24 amends section 88(2)(h) of the Partnership Act 1958 to require
an application made by an ESVCLP for registration as an
incorporated limited partnership to be supported with
documentary evidence of its status.
Clause 25 amends section 108(1)(b)(i) of the Partnership Act 1958 to
extend the Director's powers to wind up an incorporated limited
partnership on a certificate to include an ESVCLP.
Clause 26 amends section 120(1) and section 120(3) of the Partnership
Act 1958. The amendment to section 120(1) extends the scope
of the obligation to lodge certain evidentiary documents with the
Director in applications for registration of the partnership to an
ESVCLP. The amendment to section 120(3) requires an ESVCLP
to lodge with the Director a notice of revocation should its
registration of an incorporated limited partnership as an ESVCLP
be revoked.
6
PART 5--SHOP TRADING REFORM ACT 1996
Clause 27 amends section 3 of the Shop Trading Reform Act 1996 to omit
the provisions relating to special local shop closing times and
local laws.
Clause 28 repeals section 6 of the Shop Trading Reform Act 1996 which
provides for a poll to be taken for a proposal for local laws fixing
special local Sunday shop closing times. These provisions are no
longer required.
Clause 29 amends section 9 of the Shop Trading Reform Act 1996 to omit
references to local laws as a consequence of the repeal of
section 6 of that Act.
Clause 30 amends section 11 of the Shop Trading Reform Act 1996 to
remove regulations relating to polls which are no longer required
because of the repeal of section 6 of that Act.
Clause 31 repeals Schedule 2 of the Shop Trading Reform Act 1996 as a
consequence of the repeal of section 6 of that Act.
PART 6--SUBDIVISION ACT 1988
Clause 32 inserts a new section 42A in the Subdivision Act 1988.
Section 42A(1) allows the Registrar to approve forms and
section 42A(2) obliges the Registrar to publish copies of
approved forms on the Internet site for the Office of Titles.
Section 42A(3) prescribes that if the Registrar approves a form
for use under the Subdivision Act 1988, any form in or to the
like effect of that form is satisfactory for the purposes of the Act.
Clause 33 inserts a new section 43(1)(j)(a) in the Subdivision Act 1988 to
enable the Governor in Council to make regulations prescribing
forms for the purposes of the Act.
PART 7--TRADE MEASUREMENT ACT 1995
Clause 34 amends section 3(1) of the Trade Measurement Act 1995 to
provide definitions of--
· firewood--New provisions will determine how
firewood is to be measured when sold by volume.
The definition of physical aspects of firewood will
provide greater certainty on compliance with the
measurement process;
7
· pack--The definition applies in the context of deciding
who has packed a prepacked article. It is designed to
remove any doubt about who is obliged to comply with
the relevant provisions of the Trade Measurement
Act 1995;
· use--The definition will provide greater certainty in
determining the circumstances when a measuring
instrument is being 'used' for trade, and it will remove
any doubt about when associated obligations under the
Trade Measurement Act 1995 apply; and
· weighbridge suitability statement--Under new
provisions of the Trade Measurement Act 1995, the
suitability statement will be integral to a weighbridge
licence. The definition will provide certainty to the
meaning of the term when it is repeated in the various
new provisions;
· amends section 3(2) of the Trade Measurement
Act 1995 to make a minor change to the definition of
class 4 measuring instrument to improve the drafting
style of the provision; and
· amends section 3(2) of the Trade Measurement
Act 1995 to amend the definition of sell to improve the
drafting style and clarify the intended scope of the term.
Clause 35 amends section 7(4) of the Trade Measurement Act 1995 to
provide that where a person is complying with a written notice
regarding a measuring instrument, used in contravention of
requirements, the person may not be prosecuted for an offence
against the section while complying with the notice.
This clarifies the original intent of the provision.
Clause 36 amends section 7A of the Trade Measurement Act 1995 (which
lists the permitted uses of class 4 measuring instruments) to
ensure capture of all freight scales and enable the provisions to
keep pace with changing freight capacities and techniques such
as use of larger containers.
8
Clause 37 amends section 7B of the Trade Measurement Act 1995 (which
requires the use of an approved measuring instrument for pre-
packed articles) by using the term "approved pattern". Section 3
of the Trade Measurement Act 1995 defines this term, which
includes reference to the National Measurement Act 1960 (Cth).
The amendment ensures a consistent approach to drafting and
removes superfluous information.
Clause 38 amends section 8(5) of the Trade Measurement Act 1995 to
provide that where a person is complying with a written notice
regarding a measuring instrument, used in contravention of
requirements, the person may not be prosecuted for an offence
against the section while complying with the notice.
This complements the amendment of section 7(4) by clause 35
and clarifies the original intent of the provision.
Clause 39 amends section 9 of the Trade Measurement Act 1995 (which
holds a supplier of an incorrect measuring instrument guilty of an
offence) by inserting a new section 9(2A) which provides that
(subject to the defence in section 9(3)(b)) it does not matter
whether the person who used the measuring instrument
purchased it or took it on lease, hire or loan for trade.
This clarifies the intent that the supplier is guilty if they knew an
incorrect instrument they have supplied would be used for trade.
This clause makes a technical amendment to remove the third
mention of "trade" in section 9(2) as it is unnecessary.
Clause 40 replaces section 23 of the Trade Measurement Act 1995 to
provide more certainty as to when a person using a measuring
instrument is guilty of an offence for misleading another party
about the measurement and price calculation of an article.
Clause 41 inserts a new section 25A into the Trade Measurement
Act 1995 to address the sale of firewood by volume. Until now,
the provisions have been silent on a method of calculating
the quantity of firewood when sold by volume.
Referencing "stacked" wood rather than "thrown" wood, which is
an unreliable method of measurement, provides for consistently
accurate measurements and a "level playing field" for suppliers.
The new provision does not restrict firewood being sold by mass
or per load.
Clause 42 amends section 44 of the Trade Measurement Act 1995, which
relates to the granting of licences to applicants, in three respects.
In particular, section 44(1)(b) provides that upon application, the
licensing authority may grant a public weighbridge licence.
One amendment restricts this to a licence for a single
weighbridge. In the context of new provisions, which provide for
9
the licence to incorporate the "certificate of suitability", in
future a licence may only include one weighbridge.
Secondly, clause 42 amends section 44 to allow a partnership to
hold a licence. Until now, the licensing provisions have been
silent on this business arrangement. Thirdly, clause 42 amends
section 44(3) to rectify a minor drafting issue.
Clause 43 amends section 45 of the Trade Measurement Act 1995 (which
provides grounds for refusing an application for a licence) to
cover a partnership situation to complement the amendment in
clause 42. This clause also amends section 45 by replacing the
requirement for a "certificate of suitability" as a public
weighbridge with a requirement that a licence must be refused if
the weighbridge is not suitable for use as a public weighbridge.
This will rationalise documentation requirements and
administrative processes.
Clause 44 amends section 50 of the Trade Measurement Act 1995 (which
places conditions on the operation of all public weighbridge
licences) in three ways. Firstly, it amends section (1)(a) to
complement the amendment in clause 43 which requires that
suitability of a weighbridge for use as a public weighbridge is
part of the licence requirement. Secondly, clause 44 inserts new
section 50(1)(ab) to ensure that a weighbridge can be physically
identified for determining suitability and approval for a licence.
Finally, section 50(1)(b), which restricts operation of the
weighbridge to the licensee or an employee, is amended to
provide for physical identification of the weighbridge in question.
Clause 45 inserts new sections 52A and 52B into the Trade Measurement
Act 1995. The new section 52A addresses the continuation of
the suitability statement for a public weighbridge in certain
circumstances. Section 52B states the action, which the
administering authority may take to decide if a public
weighbridge is no longer suitable for use as a public weighbridge.
Clause 46 amends section 54(2) of the Trade Measurement Act 1995
(which provides that a licence is not transferable) to complement
the amendments which allow a partnership to hold a licence.
The amendment limits the prohibition on transferability in this
situation, by reference to the new section 54B inserted by
clause 47 (see below).
10
Clause 47 inserts new sections 54A to 54D into the Trade Measurement
Act 1995 as follows. The new section 54A deals with the effect
of the relocation of a licensed weighbridge. These provisions are
required to take account of the suitability statement being part of
the licence. In particular, relocation of a weighbridge involves
disassembly and re-assembly of the weighing equipment and
structural supports, so a fresh process of assessing the suitability
and accuracy of the weighbridge would be required.
Consequently, the existing licence must be surrendered after
relocation. The new section 54B relates to an application to
change licence holders due to a change of partnership.
These provisions complement the other amendments, which
allow for a partnership to hold a licence. The new section 54C
allows for the continuation of a licence before an application to
change the membership of a partnership holding a weighbridge
licence is decided by the licensing authority. Finally, the new
section 54D allows a licensee under a servicing licence to apply
for an amendment to a condition of the licence which specifies
the class or classes of measuring instruments which may be
certified by the licensee. This corrects a minor drafting issue.
Clause 48 amends section 56 of the Trade Measurement Act 1995 (which
provides grounds for disciplinary action against a licensee) by
inserting a new section 56(2) to allow for disciplinary action to
be taken on the same grounds when a partnership holds a licence.
Clause 49 amends section 59 of the Trade Measurement Act 1995, (which
provides rights of appeal against a decision of the licensing
authority) to provide rights of appeal in relation to (i) an
amendment of a licence as well as the existing right to appeal a
refusal of an application for a licence (through amendment of
section 59(1)(a); and (ii) in relation to a decision to cancel a
licence because the weighbridge is no longer suitable as a public
weighbridge (through the insertion of a new paragraph (ea)).
Clause 50 amends section 80 of the Trade Measurement Act 1995 (which
provides the Governor in Council with a power to make a
regulation about different matters under the Trade
Measurement Act 1995) in particular, by replacing
section 80(2)(n) to reflect the changes described previously to
the manner in which suitability of weighbridges is handled.
Clause 50 also inserts a new section 80(2)(v) to allow regulations
to be made about the approval of forms for use under the Trade
Measurement Act 1995.
11
Clause 51 inserts a new Part 9 into the Trade Measurement Act 1995 to
provide transitional arrangements for introduction of the
amendments, to--
· replace the requirement for a separate "certificate of
suitability" as a public weighbridge with a suitability
statement which becomes part of the licence;
· provide for expiry of the weighbridge suitability
statement for a weighbridge licence to align with expiry
of the former "certificate of suitability" for each
weighbridge; and
· clarify provision for a separate licence (including a
suitability statement) with a separate fee for each
weighbridge location as opposed to one licence
potentially covering a number of weighbridge locations
and separate "certificates of suitability" and certification
fees for each of those locations.
PART 8--TRADE MEASUREMENT (ADMINISTRATION)
ACT 1995
Clause 52 amends section 11 of the Trade Measurement (Administration
Act) 1995 (which provides for prescription of fees and charges),
to allow for the prescription of fees for weighbridge suitability
statements and to amend the section to reflect the new provisions
in the Trade Measurement Act 1995 replacing the requirement
for a separate "certificate of suitability" as a public weighbridge
with a suitability statement that will become part of the licence.
PART 9--AMENDMENT AND REPEALS
Clause 53 repeals the Frustrated Contracts Act 1959.
Clause 54 repeals the Hire-Purchase Act 1959.
Clause 55 substitutes the definitions of hire-purchase agreement, hirer and
owner in the Chattel Securities Act 1987, consequentially upon
the repeal of the Hire-Purchase Act 1959.
Clause 56 substitutes Fair Trading Act 1999 for Hire-Purchase Act 1959
in section 5(1) of the Credit Act 1984, consequentially upon the
repeal of the Hire-Purchase Act 1959.
Clause 57 repeals section 111A of the Local Government Act 1989,
consequentially upon the repeal of the shop trading polls
provisions.
12
Clause 58 substitutes a reference to Fair Trading Act 1999 for the
reference to Hire-Purchase Act 1959 in section 3(1) of the
Public Transport Competition Act 1995, consequentially upon
the repeal of the Hire-Purchase Act 1959.
Clause 59 substitutes the definition of hire-purchase agreement in the
Road Safety Act 1986, consequentially upon the repeal of the
Hire-Purchase Act 1959.
Clause 60 states that the Act specified in the heading of an item in the
Schedule is amended as set out in the relevant item, on the
coming into operation of that item.
Clause 61 provides for the automatic repeal of this amending Act on
1 December 2009. As suggested by the Scrutiny of Acts and
Regulations Committee, all amending Acts now contain an
automatic repeal provision, which will save the time and expense
of having to repeal the amending Acts in statute law revision
Bills. The repeal of this Act does not affect in any way the
operation of the amendments made by this Act (see section 15(1)
of the Interpretation of Legislation Act 1984).
SCHEDULE
Item 1 inserts new section 50C(1AA) into the Associations
Incorporation Act 1981, which provides that a reference in
section 152A of the Fair Trading Act 1999 to any section of
the Fair Trading Act 1999 is taken to be a reference to
section 106HA of that Act, and disapplies section 152A(2) of
that Act.
Section 50C applies section 152A of the Fair Trading Act 1999
as if any reference in it to that Act were a reference to the
Associations Incorporation Act 1981. Section 152A refers to
sections 106HA, 106I, 118 and 131 of the Fair Trading
Act 1999, however, only section 106HA is applied for the
purposes of the Associations Incorporation Act 1981.
Section 152A(2) is unnecessary as it refers to sections 118 and
131 of the Fair Trading Act 1999 which are not applied by
section 50C, and inspectors have no role under section 106HA
which is applied.
Item 2 inserts new section 29(1AA) into the Business Names Act 1962,
which provides that a reference in section 152A of the Fair
Trading Act 1999 to any section of the Fair Trading Act 1999
is taken to be a reference to section 106HA of that Act, and
disapplies section 152A(2) of that Act.
13
Section 29 applies section 152A of the Fair Trading Act 1999 as
if any reference in it to that Act were a reference to the Business
Names Act 1962. Section 152A refers to sections 106HA, 106I,
118 and 131 of the Fair Trading Act 1999: however, only
section 106HA is applied for the purposes of the Business
Names Act 1962. Section 152A(2) is unnecessary as it refers to
sections 118 and 131 of the Fair Trading Act 1999 which are
not applied by section 29, and inspectors have no role under
section 106HA which is applied.
Item 3 inserts new section 124A(2AA) into the Domestic Building
Contracts Act 1995, which provides that a reference in
section 152A of the Fair Trading Act 1999 to any section of the
Fair Trading Act 1999 is taken to be a reference to
section 106HA of that Act, and disapplies section 152A(2) of that
Act.
Section 124A applies section 152A of the Fair Trading
Act 1999 as if any reference in it were a reference to the
Domestic Building Contracts Act 1995. Section 152A refers to
sections 106HA, 106I, 118 and 131 of the Fair Trading
Act 1999, however, only section 106HA is applied for the
purposes of the Domestic Building Contracts Act 1995.
Section 152A(2) is unnecessary as it refers to sections 118 and
131 of the Fair Trading Act 1999 which are not applied by
section 124A, and inspectors have no role under section 106HA
which is applied.
Item 4 amends the Estate Agents Act 1980.
Item 4.1 inserts new section 70WA as follows--
· The Director of Consumer Affairs Victoria, or an
inspector, can certify to a court a person's failure,
without reasonable excuse, to comply with a
requirement under sections 70C, 70D, 70F
or 70S, as applicable. A certification cannot be
made where that person has been charged with
an offence against section 70T.
· The court may then inquire into the case and may
order the person to comply with the requirement
within the period it specifies.
· If proceedings are brought under section 70WA
in respect of a person, the person cannot also be
charged with an offence under section 70T.
14
Item 4.2 amends section 93A(1) to omit from its operation a
section 152A of the Fair Trading Act 1999. It is not
necessary to refer to section 152A as new section
70WA is an equivalent provision.
Item 5 inserts new section 68(1AA) into the Fundraising Appeals
Act 1998, which provides that a reference in section 152A of the
Fair Trading Act 1999 to any section of the Fair Trading
Act 1999 is taken to be a reference to section 106HA of that Act,
and disapplies section 152A(2) of that Act.
Section 68 applies section 152A of the Fair Trading Act 1999 as
if any reference in it to that Act were a reference to the
Fundraising Appeals Act 1998. Section 152A refers to
sections 106HA, 106I, 118 and 131 of the Fair Trading
Act 1999, however, only section 106HA is applied for the
purposes of the Fundraising Appeals Act 1998.
Section 152A(2) is unnecessary as it refers to sections 118 and
131 of the Fair Trading Act 1999 which are not applied by
section 68, and inspectors have no role under section 106HA
which is applied.
Item 6 inserts new section 69(1AA) into the Introduction Agents
Act 1997, which provides that a reference in section 152A of the
Fair Trading Act 1999 to any section of the Fair Trading
Act 1999 is taken to be a reference to section 106HA of that Act,
and disapplies section 152A(2) of that Act.
Section 69 applies section 152A of the Fair Trading Act 1999
as if any reference in it to that Act were a reference to the
Introduction Agents Act 1997. Section 152A refers to
sections 106HA, 106I, 118 and 131 of the Fair Trading
Act 1999, however, only section 106HA is applied for the
purposes of the Introduction Agents Act 1997.
Section 152A(2) is unnecessary as it refers to sections 118 and
131 of the Fair Trading Act 1999 which are not applied by
section 69, and inspectors have no role under section 106HA
which is applied.
Item 7 amends the Motor Car Traders Act 1980.
Item 7.1 inserts new section 82ATA as follows--
· The Director of Consumer Affairs Victoria, or an
inspector, can certify to a court a person's failure,
without reasonable excuse, to comply with a
requirement under sections 82AA, 82AB, 82AD
or 82AQ, as applicable. A certification cannot
15
be made where that person has been charged
with an offence against section 82AR.
· The court may then inquire into the case and may
order the person to comply with the requirement
within the period it specifies.
· If proceedings are brought under this section in
respect of a person, the person cannot also be
charged with an offence under section 82AR.
Item 7.2 amends section 82I(1) to omit from its operation a
section 152A of the Fair Trading Act 1999. It is not
necessary to refer to section 152A as new section
82ATA is an equivalent provision.
Item 8 inserts new section 11(2AA) into the Petroleum Products
(Terminal Gate Pricing) Act 2000, which provides that a
reference in section 152A of the Fair Trading Act 1999 to any
section of the Fair Trading Act 1999 is taken to be a reference
to that section as applied by subsection (1) or (2) of section 11.
Item 9 Amends the Prostitution Control Act 1995.
Item 9.1 inserts new section 61WA as follows--
· It provides that the Director of Consumer Affairs
Victoria, or an inspector, can certify to a court a
person's failure, without reasonable excuse, to
comply with a requirement under sections 61D,
61E, 61G or 61T, as applicable. A certification
cannot be made where that person has been
charged with an offence against section 61U.
· The court may then inquire into the case and may
order the person to comply with the requirement
within the period it specifies.
· If proceedings are brought under this section in
respect of a person, the person cannot also be
charged with an offence under section 61U.
Item 9.2 amends section 86A(1) to omit from its operation
section 152A of the Fair Trading Act 1999. It is not
necessary to refer to section 152A as new section
61WA is an equivalent provision.
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Item 10 inserts new section 507A(2AA) into the Residential Tenancies
Act 1997, which provides that a reference in section 152A of the
Fair Trading Act 1999 to any section of the Fair Trading
Act 1999 is taken to be a reference to that section as applied by
subsections (1) and (2) of section 507A.
Item 11 inserts new section 40(2A) into the Retirement Villages
Act 1986, which provides that a reference in section 152A of the
Fair Trading Act 1999 to any section of the Fair Trading
Act 1999 is taken to be a reference to that section as applied by
subsections (1) and (2) of section 40.
Item 12 inserts new section 48A(1AA) into the Sale of Land Act 1962,
which provides that a reference in section 152A of the Fair
Trading Act 1999 to any section of the Fair Trading Act 1999
is taken to be a reference to section 106HA of that Act, and
disapplies subsection 152A(2) of that Act.
Section 48A applies section 152A of the Fair Trading Act 1999
as if any reference in it to that Act were a reference to the Sale of
Land Act 1962. Section 152A refers to sections 106HA, 106I,
118 and 131 of the Fair Trading Act 1999, however, only
section 106HA is applied for the purposes of the Sale of Land
Act 1962. Section 152A(2) is unnecessary as it refers to sections
118 and 131 of the Fair Trading Act 1999 which are not applied
by section 48A, and inspectors have no role under section 106HA
which is applied.
Item 13 amends the Second-Hand Dealers and Pawnbrokers Act 1989.
Item 13.1 inserts new section 26WA as follows--
· It provides that the Director of Consumer Affairs
Victoria, or an inspector, can certify to a court a
person's failure, without reasonable excuse, to
comply with a requirement under sections 26D,
26E, 26G or 26T, as applicable. A certification
cannot be made where that person has been
charged with an offence against section 26U.
· The court may then inquire into the case and may
order the person to comply with the requirement
within the period it specifies.
· If proceedings are brought under this section in
respect of a person, the person cannot also be
charged with an offence under section 26U.
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Item 13.2 amends section 30(1) to omit from its operation
section 152A of the Fair Trading Act 1999. It is not
necessary to refer to section 152A as new section
26WA is an equivalent provision.
Item 14 amends the Travel Agents Act 1986.
Item 14.1 inserts new section 39VA as follows--
· It provides that the Director of Consumer Affairs
Victoria, or an inspector, can certify to a court a
person's failure, without reasonable excuse, to
comply with a requirement under sections 39C,
39D, 39F or 39S, as applicable. A certification
cannot be made where that person has been
charged with an offence against section 39T.
· The court may then inquire into the case and may
order the person to comply with the requirement
within the period it specifies.
· If proceedings are brought under this section in
respect of a person, the person cannot also be
charged with an offence under section 39T.
Item 14.2 amends section 44A(1) to omit from its operation
section 152A of the Fair Trading Act 1999. It is not
necessary to refer to section 152A as new section
39VA is an equivalent provision.
Item 15 inserts new section 63(1AA) into the Utility Meters
(Metrological Controls) Act 2002, which provides that a
reference in section 152A of the Fair Trading Act 1999 to any
section of the Fair Trading Act 1999 is taken to be a reference
to section 106HA of that Act, and disapplies section 152A(2) of
that Act.
Section 63 applies section 152A of the Fair Trading Act 1999 as
if any reference in it to that Act were a reference to the Utility
Meters (Metrological Controls) Act 2002. Section 152A refers
to sections 106HA, 106I, 118 and 131 of the Fair Trading Act
1999, however, only section 106HA is applied for the purposes
of the Utility Meters (Metrological Controls) Act 2002.
Section 152A(2) is unnecessary as it refers to sections 118
and 131 of the Fair Trading Act 1999 which are not applied
by section 63, and inspectors have no role under section 106HA
which is applied.
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