VersionNo. 056
Fair Trading Act 1999
No. 16 of 1999
Versionincorporating amendments as at
28 May 2012
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
4Repealed
5Crown bound
6Extra-territorial application of this Act
Part 2—The Australian Consumer Law
Division 1—Definitions
7Definitions
Division 2—Application of Australian Consumer Law
8The Australian Consumer Law text
8A, 8BRepealed
9Application of Australian Consumer Law
10Future modifications of Australian Consumer Law text
11Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction
12Interpretation of Australian Consumer Law
13Application of Australian Consumer Law
Division 3—References to Australian Consumer Law
14References to Australian Consumer Law
15References to Australian Consumer Law of other jurisdictions
Division 4—Application of Australian Consumer Law to Crown
16Division does not apply to Commonwealth
17Application law of this jurisdiction
18Application law of other jurisdictions
19Activities that are not business
20Crown not liable to pecuniary penalty or prosecution
Division 5—Miscellaneous
21Conferral of functions and powers on certain bodies
22No doubling-up of liabilities
23–32Repealed
Part 2A—Implied Conditions and Warranties in Certain Contracts of Supply
Division 1—Interpretation
32ADefinitions
32B–32C Repealed
Division 2—Application of Part
32CA–32F Repealed
32FAApplication of Goods Act 1958 to contracts of supply
Division 3—Supply of goods or services
32G–32MA Repealed
32NLimitation of liability in relation to supply of recreational services
32NAExemption from waiver form requirement
32NB, 32O Repealed
32OARescission for innocent misrepresentation
32PDischarge or rescission of contract of supply of goods
32PAWhen does a discharge or rescission have effect?
32QLiability of supplier and person conducting antecedent negotiations
32QAIndemnity for supplier or dealer
32RCertain contracts or provisions void
32RAPenalty for including void provision relating to antecedent negotiations
Division 4—General
32SRepealed
32SALimit of liability of guarantors
32TLimit of liability under security
32TAContract of supply not illegal etc.
Part 2B—Repealed40
32U–32ZDA Repealed40
Part 2C—Frustrated Contracts
Division 1—Introductory
32ZEDefinitions
32ZFContracts to which this Part applies
Division 2—Consequences of frustration of contract
32ZGAdjustment of amounts paid or payable to parties to discharged contracts
32ZHCourt may allow amounts paid or payable to be recovered orpaid
32ZIParties to pay an amount for valuable benefits obtained
32ZJCalculation of expenses incurred
32ZKCircumstances in which amounts payable under contract ofinsurance excluded
Division 3—General
32ZLCircumstances in which contract provisions continue to have effect despite frustration
32ZMPerformed part of contract not frustrated
32ZNNature of action
32ZOLimitation period
PartS 3–5—Repealed
33–93Repealed
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 introductionagents
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 withoutpenalty
Part 5A—Fair Reporting
93ADefinitions
93BCorrection of errors
93CConsumer may apply to court where agent fails to correct informationetc.
93DPowers of Court on application
Part 5B—Debt Collection
Division 1—Preliminary
93EDefinitions
Division 2—Offences
93FCertain persons prohibited from engaging in debt collection
93GApplications by prohibited persons for permission to engage indebt collection
93HPermission from the Authority
93IAuthority may impose conditions
93JApplication for review
93KOffence to charge debtor for cost of debt collection
93LOffence to purchase debt for the purpose of collection
93MProhibited debt collection practices
93NAdditional remedy for contraventions of section93M
Part 6—Codes of Practice
94Preparation of draft code of practice by the Director
95Consideration of draft code of practice prepared by other
persons
96Prescribing codes of practice
97Offence to breach code of practice
Part 7—Administration
Division 1—General
98Director of Consumer Affairs Victoria
99Staff
100Functions and powers of the Director
101Powers of delegation
102Director's report
Division 2—Victorian Consumer Law Fund
102ADefinition
102BVictorian Consumer Law Fund
102COrder for payment to non-party consumers
102DSpecial purpose grants
102EAdministration expenses
Part 8—Powers of Director
Division 1—Disputes
103Making a complaint
104Conciliation and mediation
105Powers of the Director in relation to proceedings on behalf ofconsumers
106Proceedings and costs
106AAGrants of legal assistance
106ABCosts and expenses relating to proceedings to which assistedperson is a party
Division 2—Suppliers
106ARepealed
106BShow cause notice
Division 3—Licence suspension
106CDefinitions
106DDirector may suspend licence
106EEffect of suspension
106FLapsing or continuation of suspension
106GExtension of period
106HRight of review
Division 4—Obtaining information, documents and evidence
106HAPower to obtain information and documents to monitor compliance
106IPower to obtain information, documents and evidence
106JPowers in relation to documents
106KCopies of seized documents
106LRetention and return of seized documents
106MMagistrates' Court may extend 3 month period
106NComplaints
106OService of documents
106PInformation sharing
Part 9—Functions of Tribunal
107What is a consumer and trader dispute?
107AWhat is a small claim?
108Settlement of consumer and trader disputes or small claims
109Additional powers of Tribunal
110Who can ask the Tribunal to resolve a consumer and trader dispute?
111Exclusion of other jurisdiction
112More appropriate forum
112ASmall claim commenced in a court
112BSmall Claims Suspense Account
113Tribunal may hear dispute regardless of related criminal proceedings
113ATribunal may order the provision of information
Part 10—Inspection Powers
114Appointment of inspectors
115Inspector's identity card
116Production of identity card
117Inspector may seek Court order
118Requirement to produce information
119Entry or search with consent
120Entry of premises open to the public
121Emergency entry
121AEntry without consent or warrant
122Search warrants
123Announcement before entry
124Details of warrant to be given to occupier
125Seizure of things not mentioned in the warrant
126Embargo notice
126AUse or seizure of electronic equipment at premises
126BMonitoring compliance with embargo notices
127Copies of seized documents
128Retention and return of seized documents or things
129Magistrates' Court may extend 3 month period
129ACourt may order destruction of dangerous goods
130Taking samples
131Requirement to assist inspector during entry
132Refusal or failure to comply with requirement
133Protection against self-incrimination
134Offence to give false or misleading information
135Offence to hinder or obstruct inspector
136Offence to impersonate inspector
137Entry to be reported to the Director
138Register of exercise of powers of entry
139Complaints
140Service of documents
141Confidentiality
Part 11—Enforcement and Remedies
Division 1—General enforcement provisions
142Prosecutions of offences
142AWho can bring proceedings for offences?
143Contraventions by bodies corporate
144Conduct by officers, employees or agents
Division 2—Remedies and legal proceedings
145Interpretation
146Undertakings
147Copy of undertaking
148Register of undertakings
149Injunctions to restrain conduct
149AInjunctions to do an act or thing
150Interim injunctions
151Power to rescind or vary injunctions
151ACease trading injunctions
151BInterim cease trading injunctions
151CPower to rescind or vary cease trading injunctions
152Undertakings as to damages and costs
152APowers of court if requirement of Director or inspector notcomplied with
153Non-punitive orders—Corrective advertising orders
153APunitive orders—Adverse publicity orders
154Orders to prohibit payment of money or transfer of other
property
155Defences
156Evidence
157Findings in proceedings to be evidence
158Orders against persons found to have contravened this Act
159Actions for damages
160Awards of compensation
Division 3—Infringement notices
160APower to serve a notice
Division 4—Safety and information requirements
160BInterim bans, recall notices and safety warning notices
160CNotice of ban or notice
160DReview of ban order or compulsory recall notice
Division 5—Enforcement of Australian Consumer Law (Victoria)
160EReferences to courts and the Tribunal
160FJurisdiction of courts and the Tribunal
160GJurisdictional limit of Magistrates' Court not to apply to pecuniary penalties under Australian Consumer Law (Victoria)
160HOrders against persons found to have contravened AustralianConsumer Law (Victoria)
Part 12—Miscellaneous
161Repealed
161AApplication of Australian Consumer Law (Victoria) in respectof bills and receipts under Legal Profession
Act2004
162AA–162 Repealed
162APublic warning statements
163Repealed
163AComplaints etc. are privileged
163BDisapplication of certain provisions to Australian ConsumerLaw (Victoria)
164Supreme Court—limitation of jurisdiction
165Regulations
Part 13—Savings and Transitional
166–169Repealed
170Savings and transitional provisions
______
SCHEDULES
SCHEDULE 1—Consumer Acts
SCHEDULE 1A—You have a Right to withdraw from this Agreement within 3Days
SCHEDULE 2—Repealed
SCHEDULE 3—Savings and Transitional
1Superseded references
2Actions commenced by Director or Secretary
3Inspectors
4Regulations
5Orders
6Superseded references to Director of Fair Trading and Office ofFair Trading and Business Affairs
7Actions commenced by Director
8Superseded references
9Actions commenced by Director
10Validation of ban orders
11Continuation of existing small claims
12Continuation of existing hire-purchase agreements
13Transitional—references to the Frustrated Contracts
Act1959
14Transitional provisions—Fair Trading and Other Acts Amendment Act2009
15Transitional—Statute Law Amendment (Charter of HumanRights and Responsibilities) Act 2009
16Transitional—Consumer Affairs Legislation Amendment Act2010
17Transitional—Repeal of Trade Measurement Act1995
18Transitional—Repeal of Trade Measurement
(Administration) Act1995
19Transitional—Transfer of information for the purpose of the National Measurement Act 1960 of the Commonwealth
19ATransitional provision—repeal of Part 2B
19BTransitional—jurisdiction of the Tribunal
19CSavings—Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009
19DRepealed
20Transitional provision—Fair Trading Amendment (Unfair Contract Terms) Act2010
═══════════════
ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
VersionNo. 056
Fair Trading Act 1999
No. 16 of 1999
Versionincorporating amendments as at
28 May 2012
1
Fair Trading Act 1999
No. 16 of 1999
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to promote and encourage fair trading practices and a competitive and fair market;
S. 1(aa) insertedby No.30/2003 s.3(1).
(aa)to protect consumers;
(b)to regulate trade practices;
S. 1(ba) insertedby No.30/2003 s.3(2), repealed by No. 72/2010 s.4.
*****
S. 1(bb) insertedby No.30/2003 s.3(2), substitutedby No.21/2010 s.4, repealedby No. 72/2010 s.4.
*****
S. 1(c)(d) repealedby No. 72/2010 s.4.
*****
(e)to provide for codes of practice;
S. 1(f) amended by Nos 35/2000 s.40(1), 30/2003 s.3(3).
(f)to provide for the powers and functions of the Director of Consumer Affairs Victoria including powers to conciliate disputes under this Act and powers to carry out investigations into alleged breaches of this Act;
(g)to repeal the Consumer Affairs Act 1972, the Ministry of Consumer Affairs Act 1973, the Fair Trading Act 1985 and the Market Court Act 1978.
2Commencement
s. 2
(1)This Part comes into operation on the day on which this Act receives the Royal Assent.
(2)The remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 1 February 2000, it comes into operation on that day.
S.3 amendedby No.72/2010 s.5(2) (ILA s.39B(1)).
3Definitions
(1)In this Act—
S.3 def. of auction repealed by No.72/2010 s.5(1).
*****
S.3(1) def.of Authority insertedby No.1/2010 s.17.
Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;
S. 3 def. of business day amendedby No.30/2003 s.4(2), repealed by No.72/2010 s.5(1).
*****
S. 3 def. of business licensing Act insertedby No.30/2003 s.4(1).
business licensing Act has the same meaning as in the Business Licensing Authority Act 1998;
S.3 def. of cancellation charge repealed by No.72/2010 s.5(1).
*****
S.3 def. of compulsory recall notice repealed by No.72/2010 s.5(1).
*****
S. 3 def. of Consumer Act insertedby No. 35/2000 s.40(2)(b), substituted by No.103/2004 s.3(1), amended by Nos 98/2005 s.88, 69/2006 s.224(Sch. 3 item 6.1).
Consumer Act means—
(a)an Act listed in Schedule 1; or
*****
s. 3
(c)Part 4 of the Veterans Act 2005;
S. 3 def. of consumer contract insertedby No.30/2003 s.4(1), repealedby No.72/2010 s.5(1).
*****
S.3 def. of contact sales agreement repealed by No.72/2010 s.5(1).
*****
S. 3 def. of cooling-off period amended by No. 106/2003 s.3(2)(a), repealed by No.72/2010 s.5(1).
*****
S.3 def. of dangerous repealed by No.72/2010 s.5(1).
*****
s. 3
S. 3 def. of Director amended by Nos 35/2000 s.40(2)(a), 30/2003 s.4(3), 108/2004 s.117(1) (Sch.3 item74.1).
Director means the person who, for the time being, is employed as Director of Consumer Affairs Victoria under thePublic Administration Act 2004;
S.3 def. of engaging in conduct repealed by No.72/2010 s.5(1).
*****
S. 3 def. of fixed term
ban order insertedby No.30/2003 s.4(1), repealed by No.72/2010 s.5(1).
*****
S. 3 def. of goods substituted by No. 2/2009 s.26, repealedby No.72/2010 s.5(1).
*****
s. 3
S. 3 def. of hire-purchase agreement substitutedby No.2/2008 s.3, amendedby No.11/2010 s.43(b).
hire-purchase agreement includes a letting of goods with an option to purchase and an agreement for the purchase of goods by instalments (whether that agreement describes the instalments as rent or hire or otherwise) but does not include any agreement—
(a)by which the property in the goods in the agreement passes at the time of the agreement or on or at any time before delivery of the goods; or
s. 3
(b)under which the person by whom the goods are being hired or purchased is a person who is engaged in the trade or business of selling goods of the same nature or description as the goods comprised in the agreement; or
(c)that is a regulated contract within the meaning of the Credit Act 1984; or
(d)that is a credit contract within the meaning of theNational Credit Code;
S.3 def. of interim ban order repealed by No.72/2010 s.5(1).
*****
inspectormeans a person appointed to be an inspector under section 114;
S.3 def. of layby repealedby No.72/2010 s.5(1).
*****
S.3 def. of layby statement repealedby No.72/2010 s.5(1).
*****
member of the police force has the same meaning as member of the force in the Police Regulation Act 1958;
S.3 def.of National Credit Code insertedby No.11/2010 s.43(a).
National Credit Code has the same meaning as in the National Consumer Credit Protection Act 2009 of the Commonwealth;
S.3 def. of non-contact sales agreement repealedby No.72/2010 s.5(1).
*****
s. 3
occupier in relation to a premises, means a person who appears to be of or over 16 years of age and who appears to be in control of the premises;
S. 3 def. of officer amended by Nos 44/2001 s.3(Sch. item42.1), 103/2004 s.3(2), 19/2009 s.3(1).
officer—
(a)in relation to a body corporate which is a corporation within the meaning of the Corporations Act, has the same meaning as officer of a corporation has in section 9 of that Act; and
(b)in relation to a body corporate which is not a corporation within the meaning of that Act, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate or an employee of the body corporate;
S. 3 def. of OFTBA Act repealed by No. 35/2000 s.40(2)(c).
*****
s. 3
S.3 def. of permanent ban order repealedby No.72/2010 s.5(1).
*****
S. 3 def. of post box insertedby No.30/2003 s.4(1).
post box means post office box, document exchange, mail collection agency or mail forwarding agency;
S.3 def. of prescribed information standard repealedby No.72/2010 s.5(1).
*****
S.3 def. of prescribed safety standard repealedby No.72/2010 s.5(1).
*****
S.3 def. of price repealedby No.72/2010 s.5(1).
*****
private residence includes any part of the allotment on which the private residence is situated;
S. 3 def. of public holiday insertedby No.30/2003 s.4(1).
public holiday has the same meaning as in the Public Holidays Act 1993;
S. 3 def. of publisher insertedby No.30/2003 s.4(1), repealedby No.72/2010 s.5(1).
*****
s. 3
S.3 def. of purchaser repealedby No.72/2010 s.5(1).
*****
S. 3 def. of related body corporate substituted by No. 44/2001 s.3(Sch. item42.2).
related body corporate has the same meaning as in the Corporations Act;
s. 3
S. 3 def of related contract or instrument amended by No. 106/2003 s.3(2)(b), repealedby No.72/2010 s.5(1).
*****
S. 3 def. of Secretary insertedby No.30/2003 s.4(1).
Secretary means the Secretary to the Department of Justice;
S.3 def. of services repealedby No.72/2010 s.5(1).
*****
S.3 def. of supplierrepealedby No.72/2010 s.5(1).
*****
S.3 def. of supply repealedby No.72/2010 s.5(1).
*****
S. 3 def. of telephone marketing agreement insertedby No. 106/2003 s.3(1), repealedby No.72/2010 s.5(1).
*****
S.3 def. of trade-in repealedby No.72/2010 s.5(1).
*****
S. 3 def. of trade or commerce amended by No. 19/2009 s.3(2), repealedby No.72/2010 s.5(1).
s. 3
*****
Tribunal means the Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;
S. 3 def. of unsolicited goods substitutedby No.30/2003 s.4(4), repealedby No.72/2010 s.5(1).
*****
S.3 def. of unsolicited services repealedby No.72/2010 s.5(1).
*****
workplace includes any land used in conjunction with a workplace for the purposes of the workplace.
S.3(2) inserted by No.72/2010 s.5(2).
(2)Without limiting subsection (1), unless the contrary intention appears the words and expressions used in this Act have the same meanings as they have in the Australian Consumer Law (Victoria).
S.4 amendedby No.45/2009 s.7, repealedby No.72/2010 s.6.
*****
S.5 amendedby No.72/2010 s.7.
5Crown bound
Subject to section 20, this Act binds the Crown not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
S. 6 substitutedby No.30/2003 s.5.
6Extra-territorial application of this Act
s. 5
(1)This Act applies within and outside Victoria.
(2)This Act applies outside Victoria to the full extent of the extra-territorial legislative power of the Parliament.
S.6(3) insertedby No.72/2010 s.8.
(3)Without limiting subsection (1) or (2), this Act applies to—
(a)the engaging in conduct in Victoria by persons outside Victoria;
(b)the engaging in conduct outside Victoria by persons in Victoria;
(c)a supply of goods or services in Victoria where the contract for the supply of goods or services is made in Victoria;
(d)in a case where a contract for the supply of goods or services is made outside Victoria, to the supply of those goods or services to—
(i)a person normally resident in Victoria; or
s. 6
(ii)a body corporate whose principal place of business is in Victoria.
______
Pt 2 (Heading and ss 7–32) amendedby Nos 44/2001 s.3(Sch. item42.3), 86/2001 s.3, 4, 30/2003 ss6–10, 106/2003 s.4, 103/2004 ss4, 5, 17/2007 s.3, 45/2009 s.8, 68/2009 s.97(Sch. items56.1–56.3), 63/2010 s.81(Sch. item6.1), substituted as Pt 2 (Heading and ss 7–22) by No.72/2010 s.9.
Part 2—The Australian Consumer Law
Division 1—Definitions
S.7 substitutedby No.72/2010 s.9.
7Definitions
s. 7
(1)In this Part, unless the contrary intention appears—
application law means—
(a)a law of a participating jurisdiction that applies the Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or
(b)any regulations or other legislative instrument made under a law described in paragraph (a); or
(c)the Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications;
Australian Consumer Law means (according to the context)—
(a)the Australian Consumer law text; or
(b)the Australian Consumer Law text, applying as a law of a participating jurisdiction, either with or without modifications;
Australian Consumer Law text means the text described in section 8;
instrument means any document whatever, including the following—
(a)an Act or an instrument made under an Act;
(b)a law of this jurisdiction or an instrument made under such a law;
s. 7
(c)an award or other industrial determination or order, or an industrial agreement;
(d)any other order (whether executive, judicial or otherwise);
(e)a notice, certificate or licence;
(f)an agreement;
(g)an application made, information or complaint laid, affidavit sworn, or warrant issued, for any purpose;
(h)an indictment, presentment, summons or writ;
(i)any other pleading in, or process issued in connection with, a legal or other proceeding;
Intergovernmental Agreement means the Intergovernmental Agreement for the Australian Consumer Law made on 2July 2009 between the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being;
jurisdiction means a State or the Commonwealth;
law, in relation to a Territory, means a law of, or in force in, that Territory;
s. 7
modifications includes additions, omissions and substitutions;
month means a period commencing at the beginning of a day of one of the 12months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month;
participating jurisdiction means a jurisdiction that is a party to the Intergovernmental Agreement and applies the Australian Consumer Law as a law of the jurisdiction, either with or without modifications;
State includes a Territory;
Territory means the Australian Capital Territory or the Northern Territory of Australia;
this jurisdiction means Victoria.
(2)Terms used in this Part and also in the Australian Consumer Law (Victoria)have the same meanings in this Part as they have in that Law.
(3)For the purposes of this Part—
(a)a jurisdiction is taken to have applied the Australian Consumer Law as a law of the jurisdiction if a law of the jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text, as in force from time to time; and
(b)that corresponding law is taken to be the Australian Consumer Law, or the Australian Consumer Law text, applying as a law of that jurisdiction.
Division 2—Application of Australian Consumer Law
S.8 substitutedby No.72/2010 s.9.
8The Australian Consumer Law text
s. 8
The Australian Consumer Law text consists of—
(a)Schedule 2 to the Competition and Consumer Act 2010of the Commonwealth; and
(b)the regulations under section 139G of that Act.
S.9 substitutedby No.72/2010 s.9.
9Application of Australian Consumer Law
(1)The Australian Consumer Law text, as in force from time to time—
(a)applies as a law of this jurisdiction; and
(b)as so applying may be referred to as the Australian Consumer Law (Victoria); and
(c)as so applying is a part of this Act.
(2)This section has effect subject to sections 10, 11 and 12.
S.10 substitutedby No.72/2010 s.9.
10Future modifications of Australian Consumer Law text
s. 10
(1)A modification made by a Commonwealth law to the Australian Consumer Law text after the commencement of this section does not apply under section 9, if the modification is declared by Order of the Governor in Council published in the Government Gazette to be excluded from the operation of that section.