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Fair Trading (Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
The purposes of the Bill are to amend the Fair Trading Act 1999 ("the Act")
to strengthen its consumer protection measures by giving additional powers
of enforcement to the Director of Consumer Affairs Victoria, by providing
for unfair terms in consumer contracts to be void, by further regulating
door-to-door selling, by increasing the maximum penalties for certain
offences under the Act, and by other measures; to further rationalise
consumer protection legislation in Victoria by relocating the statutory
conditions and warranties applying to consumer contracts from the Goods
Act 1958 to the Act (thereby allowing for the repeal of Part IV of that Act)
and by relocating the special procedures for small claims from the Small
Claims Act 1973 to the Act (thereby allowing for the repeal of that Act); and
to improve the general operation of the Act.
Clause Notes
Clause 1 sets out the main purposes of the Bill.
Clause 2 provides for the commencement of the Bill.
Clause 3 amends section 1 of the Act to insert three further purposes of the
Act, namely to protect consumers and to provide for statutory
conditions and warranties in consumer contracts and to provide
for unfair terms in consumer contracts to be void, and to
substitute the new name of the Director of Consumer Affairs
Victoria.
Clause 4 amends section 3 of the Act to insert new definitions and amends
existing definitions. The amendments include substituting the
new name of the Director of Consumer Affairs Victoria, and
amending the definition of "unsolicited goods" to close a
loophole in the previous definition that allowed some suppliers to
assert that consumers who had agreed to take goods "on
approval" had requested the goods for the purposes of section 24
of the Act.
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Clause 5 substitutes a new section 6 of the Act to ensure that the Act has
the maximum extra-territorial reach that the law allows at any
time.
Clause 6 amends sections 10, 11, 12, 13, 19(1), 20(1), 20(2), 21(1) and
23(3) of the Act to increase the maximum penalties from
240 penalty units for a natural person and 600 penalty units for a
body corporate to 600 penalty units and 1200 penalty units
respectively; amends sections 16, 17(1), 17(2), 18(1) and 30(1) of
the Act to increase the maximum penalties from 120 penalty
units for a natural person and 240 penalty units for a body
corporate to 600 penalty units and 1200 penalty units
respectively; and amends sections 14(1), 15, 22(1), 22(2), 23(1),
24(1) and 27(1) of the Act to increase the maximum penalties
from 120 penalty units for a natural person and 240 penalty units
for a body corporate to 240 penalty units and 600 penalty units
respectively.
Clause 7 amends section 18 of the Act to ensure that it covers all persons
involved in promoting a referral selling scheme, not just the
supplier.
Clause 8 amends section 22 of the Act to provide for a sharing of the
evidential burden in prosecutions against operators of pyramid
selling schemes by requiring the prosecution to prove the
pyramid nature of the scheme and by providing an exception if
evidence is provided by the defendant that the pyramid selling
scheme was a legitimate multi-level marketing scheme by
showing that there was a reasonable relationship between the
price of goods or services involved in the scheme and their real
value.
Clause 9 amends section 27 of the Act to tighten the exemptions from its
requirements by no longer allowing publishers that are public
companies to be exempted but allowing publishers that are large
proprietary companies or listed corporations to be exempted.
Clause 10 amends section 29 of the Act to clarify that its requirements
apply only to advertisers acting in trade or commerce; to prevent
advertisers required to comply with section 29 specifying private
mail boxes, mail collection agencies or mail forwarding agencies
as their address; to give options to advertisers to include a
business name number or occupational licence number in the
advertisement, or to provide their address to the publisher (who
must retain the records for 12 months), instead of including their
address in the advertisement, and to allow for advertising
requirements for prostitution service providers to be regulated
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only by the Prostitution Control Act 1994 and the regulations
made under that Act.
Clause 11 inserts a new Part 2A into the Act which sets out the statutory
conditions and warranties implied into contracts for the supply of
consumer goods and services. This Part is modelled on Part IV
of the Goods Act 1958 as those provisions were amended by the
Wrongs and Other Acts (Public Liability Insurance Reform)
Act 2002 to provide for waivers permitting self-assumption of
risk by people participating in inherently risky activities.
Section 32A sets out the definitions for the new Part. A number
of definitions from section 84 of the Goods Act 1958 (including
"goods", "services", "lease" and "sell") have not been replicated
as the definitions in section 3 of the Act apply to this Part.
The terms "lease", "sell" and "seller" as used in the Goods Act
1958 are now covered by the definition of "supply" in section 3
of the Act. As the definition of "supply" in section 3 of the Act
in relation to goods includes sell, lease and hire, the conditions
and warranties implied into contracts of supply of goods also
apply to leases of goods.
Sections 32B, 32BA and 32C are interpretation provisions and
set out what are conditions and warranties, what are antecedent
negotiations and when a person is "aware" for the purposes of
this Part.
Section 32CA provides that this Part applies to contracts of
supply of goods or services entered into after the commencement
of this clause 12 of the Bill.
Section 32D provides that this Part applies to contracts of supply
of goods or services where the cash price of the goods or services
is not more than $40 000 or is more than $40 000 and the goods
or services are of a kind ordinarily acquired for personal,
domestic or household use or consumption. The monetary
amount may be increased by regulations.
Section 32DA sets out which kinds of contracts are not covered
by this Part.
Sections 32E and 32EA set out how "cash price" is determined
for the purposes of section 32D.
Section 32EB provides that in any proceeding under this Part, if
it is alleged that this Part applies to a contract of supply, it is to
be presumed that the Part applies to the contract unless it is
established to the contrary.
Section 32F provides that this Part applies to mixed contracts for
the supply of goods and services.
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Section 32FA modifies the operation of the Goods Act 1958 in
relation to contracts to which this Part applies.
Section 32G implies conditions as to title, freedom from
encumbrances and quiet enjoyment into contracts for the supply
of goods other than by way of lease.
Section 32GA implies conditions as to title, freedom from
encumbrances and quiet enjoyment into contracts for the supply
of goods, other than by way of lease, where the supplier intends
to transfer a limited interest in the goods.
Section 32GB implies a condition as to right to lease into
contracts for the supply of goods by way of lease.
Section 32H requires goods supplied by description to
correspond with the description and, if supplied by way of
sample and description, to correspond with the sample and the
description.
Section 32HA implies in contracts of supply of goods by sample,
conditions as to correspondence with the sample, the opportunity
of comparing goods with the sample, and freedom from apparent
defects.
Section 32I implies in contracts of supply of goods a condition of
merchantable quality.
Section 32IA implies in contracts of supply of goods a condition
of fitness for purpose where the skill and judgment of the
supplier or dealer have been relied upon.
Section 32J implies in contracts of supply of services a condition
that the services will be rendered with due care and skill and a
condition that the services are as fit for the purposes for which
services of that kind are commonly purchased.
Section 32JA implies in contracts of supply of services a
condition of fitness for any particular disclosed purpose where
the skill and judgment of the supplier or dealer have been relied
upon.
Section 32K implies in contracts of supply of services by
demonstration conditions as to correspondence with the nature
and quality of the services shown in the demonstration and
freedom from apparent defects.
Section 32KA makes provision for the application of the implied
terms where the contract of supply is a supply of both goods and
services.
Section 32L provides that a term of the contract of supply cannot
exclude, restrict or modify the application of this Part.
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Section 32LA provides that a contract of supply cannot exclude,
restrict or modify liability for damages or the amount of damages
that can be recovered by a purchaser for a breach by a supplier of
a condition or warranty implied by this Part.
Section 32M sets out the penalties for including a void provision
in a contract of supply.
Section 32MA provides that a term of a contract of supply will
not be void where the term only limits liability of the supplier for
breach of a condition or warranty within certain specified limits.
These limits will not apply where the purchaser establishes that it
is unconscionable for the supplier to rely upon the term.
Section 32N permits a supplier of "recreational services" (as
defined in subsection (3)) to limit their liability in certain
circumstances under sections 32J or 32JA for death or personal
injury arising from the supply of those services. The term that
limits liability must be limited to liability for death or personal
injury; must be in the prescribed form (if any) and contain the
prescribed particulars (if any) unless exempted by Order under
section 32NA and must be signed by the purchaser prior to the
supply of the recreational services unless so exempted.
In addition the supplier cannot rely upon a term limiting liability
where the supplier has made a false or misleading statement as to
a material particular in or in relation to the term or where the
supplier has done an act or omitted to do something and that act
or omission was done with reckless disregard, with or without
consciousness, for the consequences of the act or omission.
Section 32NA provides for the making of the exemption order for
the purpose of section 32N.
Section 32NB provides that a supplier is to have a reasonable
opportunity to make good title or to remove a charge or
encumbrance where he or she is in breach of the implied
condition as to title or freedom from encumbrances.
Section 32O provides that if a contract of supply of goods is not
severable and the purchaser has accepted the goods, a breach of
condition by the supplier may only be treated as a breach of
warranty and not as a ground for rejecting the goods.
Section 32OA gives the purchaser a right to rescind a contract of
supply of goods for innocent misrepresentation.
Section 32P provides for the consequence of a discharge or
rescission of a contract of supply of goods and the adjustment of
the rights of the parties.
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Section 32PA sets out the circumstances when a discharge or
rescission has effect.
Section 32Q provides that where a representation is made to a
purchaser in the course of antecedent negotiations by a dealer or
person acting on behalf of the supplier, the purchaser shall have
the same rights to rescind the contract and obtain damages as
they would have under sections 32OA and 32P.
Section 32QA provides for the supplier's right to be indemnified
against any damage suffered by the supplier by reason of
section 32Q arising from any representation or warranty made by
a dealer or a person conducting antecedent negotiations.
Section 32R provides that a contract of supply or a term in that
contract that purports to exclude, restrict or modify the operation
of sections 32Q or 32QA is void.
Section 32RA sets out the penalty for including a provision in a
contract that is void under section 32R.
Section 32S provides that the express terms of a contract of
supply are affected by the implied terms only to the extent of
inconsistency.
Section 32SA limits the liability of guarantors in respect of the
purchaser's obligations under a contract of supply.
Section 32T limits the liability of a person who provides a
mortgage, charge, pledge or other security to secure the
purchaser's obligations.
Section 32TA provides that a contract of supply is not illegal,
void or unenforceable by reason only of an offence under the
Part.
Clause 12 inserts a new Part 2B into the Act making void terms in
consumer contracts that are found to be unfair, making void
terms in standard form consumer contracts that are prescribed as
unfair, and providing for offences in relation to the use of
prescribed unfair terms and empowering the Director of
Consumer Affairs Victoria to apply for injunctions to prevent the
continued use of unfair terms.
Section 32U contains the defined terms used in Part 2B.
Section 32V excepts from the application of Part 2B contracts
covered by the Consumer Credit (Victoria) Act 1995 and terms
of consumer contracts that are required by law.
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Section 32W defines an unfair term as a term that, contrary to the
requirements of good faith and in all the circumstances, causes a
significant imbalance in the parties' rights and obligations arising
under that contract to the detriment of the consumer.
Section 32X provides a list of matters that a court or the Tribunal
can take into account in assessing whether a term is unfair.
Section 32Y provides that an unfair term in a consumer contract
entered into after the commencement of the section is void, that a
prescribed unfair term in a standard form contract is void
(whenever the standard form contract was entered into), and that
the relevant contract continues to bind the parties to the extent it
is capable of without the unfair term.
Section 32Z provides for offences for a supplier that uses a
standard form contract containing a prescribed unfair term or
attempts to enforce a prescribed unfair term in a standard form
contract.
Section 32ZA allows the Director of Consumer Affairs Victoria
to apply to the Tribunal for an injunction against a person using
or recommending the use of an unfair term in a consumer
contract or a prescribed unfair term in a standard form contract.
Section 32ZB allows the Director of Consumer Affairs Victoria
to require the production of documents to facilitate the
consideration of the questions whether a term of a standard form
contract should be prescribed as unfair and whether injunctive
(including contempt), declaratory or advisory opinion
proceedings should be taken in relation to an unfair term; and
provides for an offence for a person who refuses or fails to
comply with a requirement of the Director without reasonable
excuse, which includes if the giving of information would tend to
incriminate the person.
Section 32ZC allows the Director to apply to the Tribunal for a
declaration that a contract is a consumer contract or standard
form contract, and for a declaration that a term in a standard form
contract has been prescribed as unfair or that a term in a
consumer contract is unfair.
Section 32ZD allows the Director to seek an advisory opinion
from the Tribunal on matters concerning unfair terms.
Clause 13 amends section 35 of the Act to provide that an interim ban order
can apply, adopt or incorporate material from other documents.
Clause 14 amends section 39 of the Act to provide that a fixed term ban
order can be made after an interim ban order expires.
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Clause 15 amends section 40 of the Act to provide that the Minister may
make fixed term ban orders.
Clause 16 substitutes section 41 of the Act to provide that fixed term ban
orders and permanent ban orders must be published in the
Government Gazette, that the Minister determines the period in
which a fixed term ban order can operate, and provides for the
remaking of a fixed term ban order or the making of a permanent
ban order on the expiry of the fixed term ban order.
Clause 17 amends section 42 of the Act to provide that fixed term ban
orders must be given to suppliers or published in a newspaper
circulating generally throughout the State in the same way that
permanent ban orders must be.
Clause 18 substitutes section 43 of the Act to provide for the amendment or
revocation of fixed term ban orders and permanent ban orders.
Clause 19 amends section 44 of the Act to make it an offence for a person
to supply goods or services in contravention of a fixed term ban
order. The penalty is a maximum fine of 240 penalty units for a
natural person, or 600 penalty units for a body corporate.
Clause 20 amends section 45 of the Act to provide that if goods or services
are supplied in contravention of a fixed term ban order, and a
person suffers loss, injury or damage by reason of a defect or
dangerous characteristic of the goods or services, or because of
not having particular information as to a characteristic of the
goods or services, the person is deemed to have suffered the loss,
injury or damage as a result of the supplying of the goods or
services.
Clause 21 amends section 50 of the Act to provide that a compulsory recall
notice can apply, adopt or incorporate material from other
documents and allows the recall of goods to which a fixed term
ban order applies.
Clause 22 amends section 57 of the Act to provide for the review of a fixed
term ban order, in the same way that there can be a review of an
interim ban order or a permanent ban order.
Clause 23 amends the heading to Part 4 of the Act to refer to other sales
now regulated by Part 4.
Clause 24 amends section 59(c) and (d) of the Act to change references to
"sale" to "supply", for consistency of language.
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Clause 25 amends section 60 of the Act to include, as a "contact sales
agreement", an agreement made at a supplier's premises where
the purchaser relies on the supplier for transport back to the
consumer's residence.
Clause 26 amends section 61 of the Act to require contact sales agreements
to be in plain English and to have certain terms of the agreement
and the cooling-off notice conspicuously displayed.
Clause 27 inserts new sections 62A, 62B, 62C, 62D and 62E into the Act
Section 62A limits the hours during which suppliers can
approach consumers to effect a contact sales agreement and
provides for an offence for a supplier who approaches a
consumer outside those hours unless having obtained the prior
consent of the consumer, which must not be obtained by a
"contact" visit, or unless the visit is for a "party plan".
Section 62B limits the duration of a "contact" visit to one hour
and provides for an offence for a supplier who stays longer unless
the prior consent of the consumer is obtained for a "party plan"
visit, or the consumer's consent in writing is obtained to half hour
extensions.
Section 62C requires a supplier or supplier's agent attempting to
effect a contact sales agreement to leave when required and
provides for an offence to fail or refuse to do so.
Section 62D requires a supplier or supplier's agent attempting to
effect a contact sales agreement to produce identification and
provides for an offence to fail or refuse to do so.
Section 62E requires a supplier attempting to effect a contact
sales agreement to inform the consumer at the outset of the
maximum visit duration and the consumer's right to ask the
supplier to leave and provides for an offence to fail or refuse to
do so.
Clause 28 amends section 63 of the Act to expand the cooling-off right for
"contact sales agreements" to 10 days where the prescribed
cooling-off notice is given to the purchaser (or any longer period
provided for in the agreement) and to 6 months where it is not
given; to provide for sending the cancellation notice to the
supplier or the supplier's agent; and to provide for a 3 month right
to cancel the agreement where the supplier has contravened any
of sections 62A to 62E.
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Clause 29 amends section 66 of the Act to prohibit suppliers charging
purchasers for services provided under a cancelled contact sales
agreement but to allow them to apply to the Tribunal to charge a
reasonable amount unless they contravened the Act in relation to
the agreement.
Clause 30 amends section 69 of the Act to require written non-contact sales
agreements to be in plain English, and the required information to
be conspicuous and prominent.
Clause 31 amends section 71 of the Act to provide for a minimum 10 day
cooling-off period where a cooling-off period is provided for in
the non-contact sales agreement.
Clause 32 repeals sections 76 and 77 of the Act consequent on the
relocation of their provisions to Division 2 with the other contact
sales agreement provisions.
Clause 33 substitutes a new section 80 of the Act making it an offence for a
supplier under a contact sales agreement or a non-contact sales
agreement to require or accept, during the cooling-off period,
payment for services provided during that period.
Clause 34 amends section 83 of the Act to substitute "lay by" for
"agreement" to make the terms used in the Act consistent, and to
require suppliers to inform lay by purchasers of their right to
cancel the lay by and of the procedure for cancellation, and to
provide their name and address.
Clause 35 inserts new section 84A into the Act providing for an offence for
suppliers to lay by goods that they know, or should know, will be
unavailable.
Clause 36 inserts a new section 85(1A) into the Act providing for an
offence for a supplier who refuses to accept a purchaser's oral
cancellation of a lay by and does not provide the purchaser with a
prescribed cancellation form; and to substitute "lay by" for the
term "agreement".
Clause 37 amends section 88 of the Act to substitute "lay by" for the term,
"agreement" for consistency with the Part.
Clause 38 amends section 90 of the Act to substitute "lay by" for the term,
"agreement".
Clause 39 amends section 98 of the Act to substitute the new name of the
Director of Consumer Affairs Victoria.
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Clause 40 amends section 100 of the Act to extend the functions of the
Director of Consumer Affairs Victoria to legislation, other than
the Act, administered by Consumer Affairs Victoria; and amends
the Director's power of delegation under section 101 of the Act
to exclude delegation of the Director's new power under
section 106I.
Clause 41 amends the heading of Part 8 of the Act to take account of the
new powers given to the Director of Consumer Affairs Victoria
and provides for a Division 1 of Part 8.
Clause 42 amends section 104 of the Act to substitute references to the new
names of "consumer affairs employees".
Clause 43 amends section 105 of the Act to clarify that the Director of
Consumer Affairs Victoria cannot undertake or defend
proceedings on behalf of a person without the person's written
consent, but that the Director can continue the proceedings even
if the person withdraws consent.
Clause 44 amends section 106 of the Act, including by inserting new
sections 106(1A) and 106(1B), to clarify that if the Director of
Consumer Affairs Victoria continues proceedings after the person
has withdrawn consent, the person must be compensated for any
loss arising from the loss of the opportunity to settle the
proceedings and for expenses incurred by the person, the Director
is liable for any amount awarded against the person, and that any
amount awarded to the person in excess of the person's losses
may be applied to defray the Director's costs.
Clause 45 inserts new Divisions 2, 3 and 4 into Part 8 of the Act to provide
additional enforcement powers to the Director of Consumer
Affairs Victoria.
Section 106A provides for the Director to require a supplier to
provide proof of a product claim within the time set out in a
notice, with an offence for a supplier who fails to provide
sufficient substantiation or, without reasonable cause, to provide
any substantiation within the time specified or who provides false
or misleading information.
Section 106B provides for the Director to serve a notice on a
supplier reasonably believed to have contravened the Act or the
regulations requiring the supplier to show cause why it should be
allowed to continue trading; for an offence for a supplier who
fails to respond to the notice within the time allowed and who
continues trading at the expiry of the notice; for the right of the
supplier to seek a review of the decision to issue the notice; and
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for an offence for a supplier to provide false or misleading
information in response to the notice.
Sections 106C and 106D provide for the Director to suspend a
business licence and other trading and employment rights under
the business licensing Acts administered by Consumer Affairs
Victoria, where there are reasonable grounds to believe that the
relevant person has engaged in conduct that would constitute
grounds for the initiation of disciplinary proceedings or the
bringing of proceedings under the relevant Act and that there is a
danger of substantial harm unless urgent action is taken.
Section 106E sets out the specific effect of a suspension notice
under section 106D on the relevant provisions of the relevant
Act.
Section 106F provides that the suspension notice under
section 106D lapses if the relevant disciplinary proceedings have
not been instituted within 14 days after service of the notice or
any extension allowed by the Tribunal or the court under
section 106G.
Section 106G allows the Director, within 14 days after service of
the notice, to make an application to the Tribunal or court for a
14 day extension of the notice.
Section 106H allows the person on whom the notice was served
to apply to the Tribunal for a review of the decision to issue
notice.
Section 106I gives to the Director a power to require, by notice,
information to be provided, documents to be produced and
evidence to be given where there has been or may have been a
contravention of the Act, along the lines of the power given to the
Australian Competition and Consumer Commission under
section 155 of the Trade Practices Act 1974 (Cth), and provides
for an offence for a person to refuse to comply with a notice, to
give false or misleading information or evidence or to obstruct or
hinder the Director, with no right to rely on the privilege against
self-incrimination, but with any answer or information given
being inadmissible against an individual in any criminal
proceedings except under section 106I, and being inadmissible
against a corporation in any criminal proceedings except under
the Act.
Section 106J provides that the Director may inspect and copy
documents produced under a section 106I notice, seize them if
necessary for proceedings against a person or to prevent their
concealment, loss or destruction, secure seized documents against
interference and to retain possession of seized documents.
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Section 106K requires the Director to give certified copies of
seized documents to the owner, which must be received in
evidence as if they were the originals.
Section 106L requires the Director to return seized documents no
longer required and to return them in any case after 3 months
unless proceedings have been commenced or the court has
extended the period for retention under section 106M.
Section 106M allows the Director to apply to the Magistrates
Court for 3 month extensions of the retention period, with a
maximum retention period of 12 months.
Section 106N allows a person to complain to the Secretary to the
Department of Justice about the Director's exercise of a power
under new Division 4.
Section 106O provides for the mode of service of documents
under new Division 4.
Section 106P imposes a confidentiality requirement on the
Director in relation to information acquired by the Director in
exercising functions under the Act except where the Director is
providing information to a court or tribunal, pursuant to a court
or tribunal order, to law enforcement agencies, to the Business
Licensing Authority, or with the authority of the Secretary or the
person concerned.
Clause 46 amends sections 107, 108, 110, 111, 112 and 113 of the Act to
substitute "consumer and trader dispute" as the new name for
"fair trading dispute".
Clause 47 amends section 107 of the Act to allow the Tribunal to resolve
personal injury claims under $10 000 that are attendant on a
consumer and trader dispute.
Clause 48 inserts new section 107A into the Act to define consumer and
trader disputes that are "small claims". The definition is similar
to the definition of a "small claim" under the Small Claims Act
1973 which is to be repealed by the Bill.
Clause 49 amends section 108 of the Act to insert additional powers of the
Tribunal to resolve consumer and trader disputes, namely to
declare that a debt is not owing and to order a party to do or
refrain from doing a thing.
Clause 50 amends section 111 of the Act to enable a court to determine a
consumer and trader dispute referred to it by the Tribunal.
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Clause 51 inserts new sections 112A and 112B into the Act to require a
court to dismiss a small claim if the purchaser has made an
application to the Tribunal and has lodged the amount in dispute
with the Tribunal (section 112A); and to require the Tribunal to
set up an account to receive money so lodged (section 112B).
Clause 52 inserts new section 113A into the Act to enable a consumer
wishing to sue a supplier who has not registered its business
name to obtain the supplier's name and address from Consumer
Affairs Victoria, if it has the information.
Clause 53 amends section 118 of the Act to enable Consumer Affairs
inspectors to inspect the information publishers are required to
retain under the Act.
Clause 54 amends section 121 of the Act to include a reference to fixed
term ban orders.
Clause 55 substitutes a new section 129 of the Act to enable Consumer
Affairs inspectors to make multiple applications to the
Magistrates Court to retain seized documents but with a
maximum retention period of 12 months.
Clause 56 substitutes a new section 144 of the Act to ensure that the matters
going to establish the state of mind of a body corporate or other
principal, and to the deeming of conduct engaged in by certain
persons on behalf of a body corporate or other principal to be
conduct engaged in by the body corporate or other principal,
apply to civil actions as well as to criminal prosecutions under
the Act; to provide for the matters going to establish the state of
mind of a person other than a body corporate; and to clarify the
situations where the state of mind of a person other than an
employee can be imputed to a body corporate or other principal.
Clause 57 repeals section 145 of the Act as it is no longer required because
of the new section 144.
Clause 58 inserts a new section 145 into Division 2 of Part 11 of the Act to
provide a definition of "a person involved in a contravention of
the Act".
Clause 59 inserts new sections 151A, 151B and 151C into the Act to
provide for cease trading injunctions.
Section 151A allows the Minister or the Director to apply to the
Supreme Court for a cease trading injunction in relation to a
supplier who has contravened, attempted to contravene,
conspired to contravene, aided, abetted, counselled or procured a
person to contravene, or induced or attempted to induce a person
14
to contravene the Act, or who was knowingly concerned in a
contravention of the Act; and empowers the Supreme Court to
grant the injunction against a person engaging in that conduct
where, unless it does so, there is imminent danger of substantial
damage to consumers.
Section 151B enables the court to grant an interim cease trading
injunction.
Section 151C enables the court to vary or rescind a cease trading
injunction.
Clause 60 amends section 155 of the Act to prevent a person from relying
on a defence of a mistake of law and to confine defences to
reasonable mistakes of fact.
Clause 61 amends section 158 of the Act to expand the granting of the
ancillary remedies under section 158 beyond the cases where
damages or an injunction for a contravention of the Act are
sought or where the contravention also constitutes an offence
under the Act; and to clarify that an order under section 158 can
be made against a person involved in the contravention of the
Act, not just against a party to the proceedings.
Clause 62 amends section 159 of the Act to clarify that the Tribunal's only
personal injuries jurisdiction under the Act is under section 107
of the Act.
Clause 63 inserts new Division 3 into Part 11 of the Act to allow for the
issuing of infringement notices for appropriate offences under the
Act.
Section 160A authorises a Consumer Affairs inspector, a police
officer or person authorised by the Director to issue an
infringement notice for prescribed offences.
Section 160B provides for the form of infringement notices to be
approved by the Director of Consumer Affairs Victoria, but
including the matters set out in section 160B.
Section 160C empowers authorised officers to accept late
payments of infringement notices.
Section 160D provides for the withdrawal of an infringement
notice.
Section 160E provides that payment of the infringement notice
expiates the offence.
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Section 160F provides that an infringement penalty must be
applied in the same way as a court-imposed fine, that payment of
an infringement notice is not an admission of guilt or liability,
and that the payment of an infringement notice must not be
referred to in any sentencing matter.
Section 160G allows a prosecution for the relevant offence if the
infringement notice is not paid within the required time or is
withdrawn.
Section 160H provides for enforcement of an infringement notice
in accordance with Part 2 of Schedule 7 of the Magistrates'
Court Act 1989 if the penalty has not been paid within the
required time, the notice has not been withdrawn, and a charge
has not been filed under section 160G.
Clause 64 inserts new section 161A into the Act to provide for purchasers
of services (other than legal services to which Part 4 of the Legal
Practice Act 1996 applies) to request itemised bills or receipts
within 30 days of receipt of a bill or account for services
supplied; for an offence for a supplier who fails or refuses to
supply an itemised receipt or bill within 7 days of the request; for
an offence for a supplier who charges for the provision of an
itemised bill or receipt; for an offence for suppliers to fail or
refuse to prove a receipt for purchases over $50; and for an
offence for suppliers to fail or refuse to provide, within 7 days of
a request, a receipt for purchases under $50.
Clause 65 inserts new section 162A into the Act allowing the Minister or
Director of Consumer Affairs Victoria to issue public warning
statements about unsatisfactory goods and services, unfair
business practices, and unsatisfactory or unfair suppliers.
Clause 66 substitutes a new section 163 of the Act to require consumer
documents to be easily legible, in a minimum 10 point font, and
clearly expressed; to allow the Director of Consumer Affairs
Victoria to apply to the Tribunal for an order prohibiting the use
of a consumer document that does not comply with those
requirements; and for an offence for a supplier to fail or refuse to
comply with such an order.
Clause 67 amends section 164 of the Act to express the intention of new
section 112A to vary section 85 of the Constitution Act 1975.
Clause 68 amends section 165 of the Act to enable regulations to be made
under new section 32N(2)(c) prescribing the content of a waiver
form, and under new Part 2B prescribing unfair terms in standard
form contracts.
16
Clause 69 inserts a new Schedule 2 to the Act amending the Notice to
Purchaser and the Cancellation Notice to conform to the amended
provisions governing cooling-off rights under contact sales
agreements.
Clause 70 inserts new clauses 8, 9 and 10 into Schedule 3 to the Act
providing for savings and transitional provisions for superseded
references to the Director of Fair Trading or to the Director of
Consumer and Business Affairs (clause 8) and for actions
involving the Director of Fair Trading or the Director of
Consumer and Business Affairs (clause 9), and for the validation
of ban orders that did not comply with certain statutory
requirements (clause 10).
Clause 71 inserts new clause 11 into Schedule 3 to the Act providing for
savings and transitional provisions for small claims on foot when
the Small Claims Act 1973 is repealed and for the use of
existing forms.
Clause 72 repeals the Small Claims Act 1973.
Clause 73 amends section 97A of the Goods Act 1958 to allow for an
exemption from the requirement that a term be in the prescribed
form or contain the prescribed particulars.
Clause 74 inserts new section 97B into the Goods Act 1958 to provide for
the making of the exemption order for the purpose of section 97A
and to permit an exemption from the requirement that the term be
signed.
Clause 75 repeals Part IV of the Goods Act 1958.
Clause 76 inserts Part VI of the Goods Act 1958 to provide for transitional
provisions for sales and leases entered into before the repeal of
Part IV of that Act.
Clause 77 inserts a new Part 3 into the Business Licensing Authority Act
1998 giving the Business Licensing Authority similar powers to
suspend business licences to those that are given to the Director
of Consumer Affairs Victoria under new Division 3 of Part 8 of
the Act.
Clause 78 amends section 32 of the Interpretation of Legislation Act 1984
to clarify that where materials are applied, adopted or
incorporated by a subordinate instrument, and those materials
have been amended since their date of application, adoption or
incorporation, the amended materials must be tabled in
Parliament only if the subordinate instrument itself had to be
tabled. This aligns sections 32(3) and 32(4) in this respect.
17
Clause 79 inserts a new Part 7AA in Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998 replicating, for small claims
under Part 9 of the Fair Trading Act 1999, the special
provisions and procedures that applied to small claims under the
Small Claims Act 1973 in Part 18 of that Schedule.
Clause 80 repeals Part 18 of Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998.
Clause 81 amends section 4 of the Administrative Law Act 1978 to
substitute a reference to small claims under Part 9 of the Fair
Trading Act 1999 for small claims under the Small Claims Act
1973, requiring the Supreme Court to refuse an application for
review unless it is satisfied that the applicant has made out a
prima facie case for relief on the ground that the Tribunal had no
jurisdiction in relation to the matter, or there had been a denial of
natural justice to a party in the proceeding before the Tribunal;
and section 15 to express the intention of section 4(3), as
amended by the Bill, to vary section 85 of the Constitution Act
1975.
Clause 82 amends sections 137B and 196A of the Building Act 1993 to
substitute the new name of Consumer Affairs Victoria.
Clause 83 amends section 72B of the Co-operative Housing Societies Act
1958 to substitute the new name of Consumer Affairs Victoria.
Clause 84 amends sections 43D and 43E of the Domestic Building
Contracts Act 1995 to make the same amendments to the
cognate provisions regulating the power of the Director of
Consumer Affairs Victoria to undertake proceedings on behalf of
a consumer as are made to sections 105 and 106 of the Act by
clauses 43 and 44.
Clause 85 amends the Electricity Industry Act 2000 to exempt a variation
of a contact sales agreement under that Act from compliance with
section 61(1)(g) of the Fair Trading Act 1999.
Clause 86 amends section 3 of the Fundraising Appeals Act 1998 to
substitute the new name of the Director of Consumer Affairs
Victoria.
Clause 87 amends the Gas Industry Act 2001 to exempt a variation of a
contact sales agreement under that Act from compliance with
section 61(1)(g) of the Fair Trading Act 1999.
Clause 88 amends various provisions of the Partnership Act 1958 to
substitute the Director of Consumer Affairs Victoria for
Commissioner for Corporate Affairs.
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Clause 89 amends the Partnership Act 1958 to insert a new section 79G to
provide for transitional provisions for matters done in the name
of the Commissioner for Corporate Affairs.
Clause 90 amends section 4 of the Petroleum Retail Selling Sites Act 1981
to substitute the new name of Consumer Affairs Victoria.
Clause 91 amends Part 12 of the Residential Tenancies Act 1997 to
substitute the new name of Consumer Affairs Victoria.
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