Consumer Affairs Legislation Amendment (Reform) Act 2010

Consumer Affairs Legislation Amendment (Reform) Act 2010

No. 63 of 2010

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers

Division 1—Disposal of uncollected goods

3New Part 2D inserted into Fair Trading Act 1999

Part 2D—Disposal of Uncollected Goods

Division 1—Preliminary

32ZPDefinitions

32ZQUncollected goods

32ZRRelevant charge

32ZSApplication

32ZTCommon law

Division 2—Disposal of uncollected goods

32ZUReceiver may dispose of uncollected goods

32ZVPayment of relevant charge

32ZWLow value uncollected goods

32ZXMedium value uncollected goods

32ZYHigh value uncollected goods

32ZZAdditional requirement for disposal of motor vehicles

32ZZADetails of registered operator

32ZZBPerishable goods

32ZZCForm of notices under this Division

32ZZDGiving notice

Division 3—Applications to court, court order and related provisions

32ZZEApplication to court for disposal order

32ZZFOther applications to court

32ZZGCourt orders

32ZZHPayment of relevant charge

32ZZIEffect of other proceeding

Division 4—Miscellaneous

32ZZJProceeds of sale

32ZZKRecords held by receiver

32ZZLGood title

32ZZMReceiver to provide purchaser of motor vehicle with receipt

32ZZNApplication of other provisions

4New clause 21 inserted into Schedule 3 to the Fair Trading
Act 1999

21Transitional provisions for repeal of Disposal of Uncollected Goods Act 1961

5Disposal of Uncollected Goods Act 1961 repealed

6Consequential amendment to Road Safety Act 1986

Division 2—Introduction agents

7New Part 5AA inserted into Fair Trading Act 1999

Part 5AA—Introduction Agents

Division 1—Interpretation

93AADefinitions

93ABMeaning of introduction agent

93ACMeaning of introduction service

93ADWho carries on a business?

93AEIntroduction agency not to use sex work service
premises

Division 2—Persons who are not introduction agents

93AFEffect of this Division

93AGExemption for activities with a community purpose

93AHExemption for non-profit activities

93AIExemption for publishers of advertisements etc.

93AJExemption for information service providers

93AKExemption for organisers of dances etc.

93ALOther exemptions

Division 3—Persons who must not act as introduction
agents

93AMCertain persons not to act as introduction agents

Division 4—Permission for disqualified persons to act as introduction agents

93ANDisqualified person may apply for permission to act
as an introduction agent

93AOPermission to act as an introduction agent

93APAuthority may impose conditions on permission

93AQApplication for review

Division 5—Introduction agreements

93ARWhat must an introduction agreement contain?

93ASRestriction on prepayments

93ATPerson may withdraw from agreement within 3days without penalty

8Schedule 1A inserted into Fair Trading Act 1999

SCHEDULE 1A—You have a Right to withdraw from this Agreement within 3Days

9Consequential amendments

10Repeal of Introduction Agents Act 1997

11Consequential Amendments to Business Licensing Authority Act 1998

Division 3—Accommodation providers

12New Part 5C inserted into Fair Trading Act 1999

Part 5C—Liability of Accommodation Providers

93ODefinitions

93PApplication of common law

93QLiability of accommodation providers under this Part

93RLimitation on accommodation providers' liability for property of guest

93SAccommodation provider to provide safekeeping
service

93TNotice about this Part

93UInnkeeper's lien

93VPart 11 not to apply

13New Schedule 2A inserted into Fair Trading Act1999

SCHEDULE 2A—Notice

14Carriers and Innkeepers Act 1958

Part 3—Amendments to Goods Act 1958 and Consequential Repeals

15Repeals and savings

16Provisions relating to bills of lading repealed

Part II—Consignees, Mercantile Agents, Documents of Title to Goods".

17New Parts IV and IVA inserted into Goods Act 1958

Part IV—Vienna Convention

84Part binds the Crown

85Convention

86Convention to have the force of law

87Convention to prevail in event of inconsistency

88Evidence of certain matters

Part IVA—Sea-Carriage Documents

Division 1—Preliminary

89Definitions

90Electronic and computerised sea-carriage documents

91Application where goods have ceased to exist, or
cannot be identified

Division 2—Rights under contracts of carriage

92Transfer of rights

93Extinguishment of previous rights

Division 3—Liabilities under contracts of carriage

94Transfer of liabilities

95Liability of original parties

Division 4—Evidence

96Shipment under bills of lading

18New sections 124 and 125 inserted into Part VI

124Saving provision for repeal of Sale of Goods (Vienna Convention) Act1987

125Saving provision for repeal of SeaCarriage
Documents Act1998

19New Schedule substituted

SCHEDULE—United Nations Convention on Contracts for
the International Sale of Goods

20Sale of Goods (Vienna Convention) Act 1987

21Sea-Carriage Documents Act 1998

Part 4—Amendments to Consumer Affairs Legislation Amendment Act2010

22Commencement of Consumer Affairs Legislation
Amendment Act2010

23New Part 5B inserted into Fair Trading Act 1999

93LOffence to purchase debt for the purpose of
collection

93MProhibited debt collection practices

93NAdditional remedy for contraventions of section 93M

24New section 18A inserted

18AProvisions relating to enforcement and remedies amended

25Power to delegate—Owners Corporations Act 2006

26Notice of meetings—Owners Corporations Act 2006

27Updated reference to prostitute and prostitution in
Prostitution Control Act 1994

28New section 3B inserted into Prostitution Control Act 1994

29New section 18A inserted into Prostitution Control Act 1994

30Amendment of licence—Prostitution Control Act1994

31New section 52AAA inserted into Prostitution Control
Act 1994

32Entry to licensed premises by police—Prostitution Control
Act 1994

33Power to serve an infringement notice under Prostitution Control Act 1994

34Amendments to Prostitution Control Act 1994

Part 5—Estate Agents Act 1980

35Definitions

36Director may approve registered education and training organisations

37Auctioneers of real estate

38Application for estate agent's licence

39The Register

40Section 35 amended

41Name of the estate agency business

42New section 38 substituted

38Offence to pretend to be a licensed estate agent

43Sections 39 and 40 repealed

44Advertising

45Sections relating to continuing professional development and employees statements repealed

46Restriction on agent purchasing property

47Annual audit of trust accounts

48Regulations

49Heading to Part IX amended

50New section 102 inserted at end of Part IX

102Authorised financial institutions

Part 6—Amendments to Conveyancers Act 2006

51Name of conveyancing business

52Displaying information and licence at places of business

53Letterhead

54Annual audit of trust records

55Annual record of trust records audit or statutory declaration

56Application of Fair Trading Act 1999

Part 7—Amendments to Sale of Land Act 1962

57Sale of land prior to approval of plan

58Purchaser may call for a transfer on giving a mortgage back

59Power of purchaser to terminate a contract for sale of land

60Savings provision inserted into Part 3

51Amendment to section 9AA—Consumer Affairs Legislation Amendment (Reform) Act 2010

Part 8—Standardisation of Infringements
Powers in Consumer Acts

61Funerals Act 2006

81AInfringement notices

62Owners Corporations Act 2006

203AInfringement notices

63Travel Agents Act 1986

64Residential Tenancies Act 1997

65Retirement Villages Act 1986

42BInfringement notices

66Sale of Land Act 1962

48BInfringement notices

Part 9—Amendments to Fair Trading Act 1999

67Small claim commenced in a court

68Section 143 amended

69Defences

70New sections 162AA and 162AB inserted

162AAProhibited debt collection practices

162ABAdditional remedy for contraventions of
section 162AA

71Sections 162AA and 162AB repealed

72Savings and transitional

22Transitional provision for repeal of Carriers and Innkeepers Act 1958

23Transitional provision for repeal of PartIVA of
Landlord and Tenant Act1958

Part 10—Amendment to the Business Licensing Authority Act 1998134

73Constitution of Authority134

Part 11—Amendments to Prostitution Control
Act 1994

74Persons to answer questions in relation to suspected
non-licensed sex work service providing business

Part 12—Miscellaneous Amendments and Repeals

Division 1—Repeal

75Landlord and Tenant Act 1958

Division 2—Consequential and other amendments

76Motor Car Traders Act 1986

77Owners Corporations Act 2006

78Residential Tenancies Act 1997

Division 4—Consumer Affairs Legislation Amendment (Reform) Act 2010

12Commencement day

13Saving for protected tenants

14Part V leases of prescribed premises to be transitioned
to Residential Tenancies Act 1997 except in certain circumstances

79Travel Agents Act 1986

33Licensee must supervise conduct of business

80Victorian Civil and Administrative Tribunal Act1998

51ADATribunal may make orders for costs incurred by
owners corporations

81Consequential amendments for change of short title of Prostitution Control Act 1994

Division 3—Repeal of amending Act

82Repeal of amending Act

______

SCHEDULE—Consequential amendments for change of short
title of Prostitution Control Act 1994

1Business Licensing Authority Act 1998

2Confiscation Act 1997

3Consumer Affairs Legislation Amendment (Reform)
Act 2010

4Crimes Act 1958

5Criminal Procedure Act 2009

6Fair Trading Act 1999

7Introduction Agents Act 1997

8Police Regulation Act 1958

9Public Health and Wellbeing Act 2008

10Sentencing Act 1991

11Serious Sex Offenders (Detention and Supervision)
Act 2009

12Sex Offenders Registration Act 2004

13Summary Offences Act 1966

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Endnotes

SectionPage

Victoria

SectionPage

Consumer Affairs Legislation Amendment (Reform) Act 2010[†]

No. 63 of 2010

[Assented to 28 September 2010]

Consumer Affairs Legislation Amendment (Reform) Act 2010
No. 63 of 2010

The Parliament of Victoriaenacts:

Consumer Affairs Legislation Amendment (Reform) Act 2010
No. 63 of 2010

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to repeal the Disposal of Uncollected Goods Act 1961 and insert a new framework for dealing with the disposal of uncollected goods into the Fair Trading Act 1999;

(b)to repeal the Introduction Agents Act 1997 and insert a compliance framework for introduction agents into the Fair Trading Act 1999;

(c)to repeal the Carriers and Innkeepers Act 1958 and insert provisions relating to the liability of accommodation providers into the Fair Trading Act 1999;

(d)to re-enact the Sale of Goods (Vienna Convention) Act 1987 and the Sea-Carriage Documents Act 1998 in the Goods Act 1958;

s. 1

(e)to amend the Consumer Affairs Legislation Amendment Act 2010 to clarify certain provisions;

(f)to make further miscellaneous amendments to the Estate Agents Act 1980, the Conveyancers Act 2006, the Fair Trading Act 1999, the Motor Car Traders Act 1986, the Owners Corporations Act 2006, the Sale of Land Act 1962 and the Travel Agents Act 1986 to modernise certain provisions and generally improve the operation of those Acts;

(g)to amend the Funerals Act 2006, the Owners Corporations Act 2006, the Residential Tenancies Act 1997, the Retirement Villages Act 1986, the Sale of Land Act 1962 and the Travel Agents Act 1986in relation to the powers for issuing infringement notices under those Acts;

(h)to repeal the Landlord and Tenant Act 1958 and insert transitional and savings provisions into other Acts.

2Commencement

s. 2

(1)This Part and Part 4 come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Section 81 and the Schedulecome into operation on the day on which section 42 of the Consumer Affairs Legislation Amendment Act 2010 comes into operation.

(3)Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4)If a provision referred to in subsection (3) does not come into operation before 1 September 2011, it comes into operation on that day.

______

Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents andAccommodation Providers

Division 1—Disposal of uncollected goods

See:
Act No.
16/1999.
Reprint No. 4
as at
11 June 2009
and amending
Act Nos
45/2009, 68/2009, 1/2010 and 11/2010.
LawToday:
www.
legislation.
vic.gov.au

3New Part 2D inserted into Fair Trading Act 1999

s. 3

After Part 2C of the Fair Trading Act 1999 insert—

"Part 2D—Disposal of Uncollected Goods

Division 1—Preliminary

32ZPDefinitions

In this Part—

bailment includes bailment for reward, bailment in the course of business, gratuitous bailment, involuntary bailment and any sub-bailment;

court means any court of competent jurisdiction and includes the Tribunal;

disposal costs means the costs incurred by the receiver for the disposal of goods under Division 2;

high value, for goods, means the goods are of a value more than or equal to—

(a)in the case of a motor vehicle, $200 or, if another value is prescribed by the regulations, that other value; or

(b)in any other case, $5000 or, if another value is prescribed by the regulations, that other value;

low value, for goods, means the goods are of a value less than $200 or, if another value is prescribed by the regulations, that other value;

medium value, for goods other than motor vehicles, means the goodsare—

(a)of a value equal to or more than $200 or, if another value is prescribed by the regulations, that other value; and

(b)less than $5000 or, if another value is prescribed by the regulations, that other value;

motor vehicle has the same meaning as it has in the Road Safety Act 1986;

s. 3

owner, in relation to a motor vehicle, means the registered operator within the meaning of the Road Safety Act 1986;

provider means the person who gives possession of goods under a bailment (whether or not the person is the owner of the goods);

public auction includes an auction conducted on the Internet;

publicly registered interest means an interest in goods that is recorded—

(a)in the register within the meaning of the Personal Property Securities Act 2009 of the Commonwealth if the goods are described by serial number in that register; or

(b)in any register prescribed by the regulations;

receiver means the person who takes possession of goods under a bailment;

Registrar means the Registrar appointed under section 4 of the Unclaimed Money Act 2008;

relevant charge has the meaning given by section 32ZR;

uncollected goods has the meaning given by section 32ZQ.

32ZQUncollected goods

s. 3

(1)Goods under bailment are uncollected goods if—

(a)the goods are ready for delivery to the provider in accordance with the terms of the bailment, but the provider has not taken delivery of the goods and has not given directions as to their delivery; or

(b)the receiver is required to give notice to the provider when the goods are ready for delivery but cannot locate or communicate with the provider; or

(c)the receiver can reasonably expect to be relieved of any duty to safeguard the goods on giving notice to the provider but cannot locate or communicate with the provider; or

(d)the provider has not paid the relevant charge payable to the receiver in relation to the goods within a reasonable time after being informed by the receiver that the goods are ready for delivery.

(2)Goods are not uncollected goods for the purposes of subsection (1)(a) if the provider's failure to take delivery arises from—

(a)the receiver refusing to make delivery; or

(b)the receiver preventing the provider from taking delivery.

32ZRRelevant charge

s. 3

(1)The relevant charge is the amount payable by the provider to the receiver for goods under bailment and payment of which entitles the provider to take delivery of the goods.

(2)Unless determined otherwise by a court order, the amount payable to the receiver is the sum of the following—

(a)for any carriage or storage of the goods or for any repairs, cleaning, treatment or other work done in connection with the goods—

(i)the amount agreed to by the provider and receiver as the charge payable to the receiver; or

(ii)in the absence of an agreement, an amount that is reasonable;

(b)the amount of costs for any storage, maintenance or insurance of the goods incurred by the receiver from—

(i)the giving of a notice under Division 2 of the receiver's intention to dispose of the goods until the disposal of the goods; or

(ii)the making of an application for a court order under Division 3 until the disposal of the goods.

32ZSApplication

s. 3

(1)This Part applies to the possession of goods under a bailment regardless of whether possession was taken before or after the commencement of this Part.

(2)This Part does not apply to—

(a)goods left behind at the end of a tenancy to which the Residential Tenancies Act 1997 applies;

(b)unsolicited goods;

(c)second-hand goods received in pawn under the Second-Hand Dealers and Pawnbrokers Act 1989;

(d)any unclaimed goods to which section122 of the Police Regulation Act 1958 applies;

(e)any unclaimed non-monetary prize to which section 7.4.12 of the Gambling Regulation Act 2003 applies;

(f)any goods or lost property within the meaning of section 251A of the Transport (Compliance and Miscellaneous) Act 1983;

(g)any vehicle that is able to be moved or impounded under clause 4 of Schedule4 to the Road Management Act 2004;

(h)any goods that are the subject of an order for forfeiture to which section134 of the Petroleum (Submerged Lands) Act 1982applies;

(i)any goods seized to which section 171 of the Gene Technology Act 2001 applies;

(j)any motor vehicle not collected or released to which section 84Z of the Road Safety Act 1986 applies;

(k)any unclaimed property to which section 16 of the National Gallery of Victoria Act 1966 applies;

s. 3

(l)any unclaimed property to which section 51 of the Libraries Act 1988 applies;

(m)any unclaimed property to which section 25 of the Museums Act 1983 applies;

(n)any goods forfeited or recovered by the Magistrates' Court of Victoria to which section 137 of the Magistrates' Court Act 1989 applies;

(o)uncollected goods under any other Act that is prescribed for the purposes of this paragraph.

(3)Subject to the exclusions in subsection (2), this Part applies in addition to any other remedy or right that may be available to dispose of uncollected goods under any other Act.

(4)This Part applies to the disposal of uncollected goods—

(a)if there is no agreement between the provider and the receiver about their disposal; or

(b)if there is an agreement about their disposal, only in respect of matters not dealt with by the agreement.

(5)This Part does not apply to a lease or other agreement to which Part IVA of the Landlord and Tenant Act 1958 applied immediately before the commencement of section 75 of the Consumer Affairs Legislation Amendment (Reform) Act 2010.

s. 3

(6)For the avoidance of doubt, this Part does not affect the right of a provider and receiver to make an agreement about the disposal of uncollected goods.

32ZTCommon law

The common law relating to the bailment of goods remains in force to the extent to which it is not affected by this Part and a person is entitled to exercise any rights that the person may have at common law in relation to the recovery of goods or compensation for the loss of or damage to goods except to the extent to which this Part otherwise provides.

Division 2—Disposal of uncollected goods

32ZUReceiver may dispose of uncollected goods

(1)Subject to subsection (2), a receiver may dispose of uncollected goods under this Division.

(2)A receiver must not dispose of uncollected goods if—

(a)a dispute exists between the provider and receiver regarding the relevant charge, including such a dispute about the condition of the goods or the nature or quality of any repairs or other work done in connection with the goods; and

(b)an application has been made to the court under section 32ZZF.

(3)Subsection (2) does not prevent the receiver from giving notice under this Division of the receiver's intention to dispose of the uncollected goods.

s. 3

(4)A receiver who disposes of uncollected goods in accordance with this Division is not liable in relation to the goods by reason of the disposal.

32ZVPayment of relevant charge

The provider, the owner of the uncollected goods or any other person with an interest in the goods is entitled, on payment of the relevant charge, to delivery of the goods at any time before their disposal.

32ZWLow value uncollected goods

(1)A receiver may dispose of low value uncollected goods if—

(a)the receiver has given the provider written notice of the receiver's intention to dispose of the goods; and

(b)28 days have elapsed since the giving of the notice and the provider has not taken delivery of the goods or given directions as to their delivery.

(2)A receiver may dispose of low value uncollected goods if—

(a)the receiver cannot locate or communicate with the provider in order to provide written notice under subsection (1) after making reasonable attempts to do so; and

(b)60 days have elapsed since the goods became uncollected goods.

(3)Goods may be disposed of under this section by sale, destruction, appropriation or any other means.