Fair Trading Amendment (Australian Consumer Law) Act 2010

Fair Trading Amendment (Australian Consumer Law) Act 2010

No. 72 of 2010

table of provisions

SectionPage

1Purpose

2Commencement

3Principal Act

4Purposes of Principal Act

5Definitions

6Representations as to future matters

7Crown bound

8Extra-territorial application of this Act

9New Part 2 substituted

Part 2—The Australian Consumer Law

Division 1—Definitions

7Definitions

Division 2—Application of Australian Consumer Law

8The Australian Consumer Law text

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

10Sections 32B to 32F repealed

11Section 32FA substituted

32FAApplication of Goods Act 1958 to contracts of supply

12Sections 32G to 32MA repealed

13Limitation of liability in relation to supply of recreational services

14Sections 32NB and 32O repealed

15When does a discharge or rescission have effect?

16Section 32S repealed

17Part 2B repealed

18Parts 3, 4 and 5 repealed

19New Division heading inserted in Part 7

20New Division 2 inserted into Part 7

Division 2—Victorian Consumer Law Fund

102ADefinition

102BVictorian Consumer Law Fund

102COrder for payment to non-party consumers

102DSpecial purpose grants

102EAdministration expenses

21Powers of the Director in relation to proceedings on behalf of consumers

22New sections 106AA and 106AB inserted

106AAGrants of legal assistance

106ABCosts and expenses relating to proceedings to which assisted person is a party

23Section 106A repealed

24New section 106P substituted

106PInformation sharing

25Appointment of inspectors

26Requirement to produce information

27Emergency entry

28Monitoring compliance with embargo notices

29Court may order destruction of dangerous goods

30Copy of undertaking

31Register of undertakings

32Undertakings as to damages and costs

33Non-punitive orders—Corrective advertising orders

34Orders to prohibit payment of money or transfer of other
property

35Defences

36Section 157 substituted

157Findings in proceedings to be evidence

37Orders against persons found to have contravened this Act

38Power to serve a notice

39Section 160B repealed

40New Divisions 4 and 5 inserted into Part 11

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

160FActions for damages under Australian Consumer Law (Victoria)

160GJurisdictional limit of Magistrates Court not to apply
to pecuniary penalties under Australian Consumer
Law (Victoria)

160HOrders against persons found to have contravened Australian Consumer Law (Victoria)

41Section 161 repealed

42Section 161A substituted

161AApplication of Australian Consumer Law (Victoria) in respect of bills and receipts under Legal Profession Act2004

43Sections 162 and 163 repealed

44New section 163B inserted

163BDisapplication of certain provisions to Australian Consumer Law (Victoria)

45Regulations under Principal Act

46Schedule 2 repealed

47Savings and transitional

19ATransitional provision—repeal of Part 2B

19BTransitional—jurisdiction of the Tribunal

19CSavings—Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009

19DRegulations dealing with transitional matters

48Consequential amendments

49Repeal of amending Act

______

SCHEDULE—Consequential Amendments

1Associations Incorporation Act 1981

2Building Act 1993

3Business Names Act 1962

4Child Employment Act 2003

5Consumer Affairs Legislation Amendment (Reform) Act2010

6Conveyancers Act 2006

7Domestic Building Contracts Act 1995

8Electricity Industry Act 2000

9Estate Agents Act 1980

10Fundraising Act 1998

11Funerals Act 2006

12Gas Industry Act 2001

13Interpretation of Legislation Act 1984

38FReferences to Australian Consumer Law

14Introduction Agents Act 1997

15Limitation of Actions Act 1958

16Motor Car Traders Act 1986

17Owners Corporations Act 2006

18Prostitution Control Act 1994

19Residential Tenancies Act 1997

20Retirement Villages Act 1986

21Sale of Land Act 1962

22Second-Hand Dealers and Pawnbrokers Act 1989

23Travel Agents Act 1986

24Victorian Civil and Administrative Tribunal Act1998

25Wrongs Act 1958

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Endnotes

SectionPage

Victoria

SectionPage

Fair Trading Amendment (Australian Consumer Law) Act 2010[†]

No. 72 of 2010

[Assented to 19 October 2010]

Fair Trading Amendment (Australian Consumer Law) Act 2010
No. 72 of 2010

The Parliament of Victoriaenacts:

Fair Trading Amendment (Australian Consumer Law) Act 2010
No. 72 of 2010

1Purpose

The purpose of this Act is to apply the Australian Consumer Law as a law of Victoria by—

(a)inserting the relevant application provisions into the Fair Trading Act 1999;

(b)repealing provisions of the Fair Trading Act 1999 that are superseded by that Law;

(c)making consequential and other amendments to the Fair Trading Act 1999 and other Acts.

2Commencement

s. 2

This Act comes into operation on a day or days to be proclaimed.

3Principal Act

See:
Act No.
16/1999.
Reprint No. 4
as at
11 June 2009
and amending
Act Nos
45/2009, 68/2009, 1/2010, 11/2010 and 21/2010.
LawToday:
www.
legislation.
vic.gov.au

In this Act, the Fair Trading Act 1999 is called the Principal Act.

4Purposes of Principal Act

Section 1(ba), (bb), (c) and (d) of the Principal Act are repealed.

5Definitions

(1)In section 3 of the Principal Act the definitions ofauction, business day, cancellation charge, compulsory recall notice, consumer contract, contact sales agreement, cooling-off period, dangerous, engaging in conduct, fixed term ban order, goods, interim ban order, lay-by, lay-by statement, non-contact sales agreement, permanent ban order, prescribed information standard, prescribed safety standard, price, publisher, purchaser, related contract or instrument, services, supplier, supply, telephone marketing agreement, trade-in, trade or commerce, unsolicited goodsand unsolicited servicesare repealed.

(2) At the end of section 3 of the Principal Act insert—

"(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 theAustralian Consumer Law (Victoria).".

6Representations as to future matters

s. 6

Section 4 of the Principal Act is repealed.

7Crown bound

In section 5 of the Principal Act, for "This Act" substitute "Subject to section 20, this Act".

8Extra-territorial application of this Act

After section 6(2) of the Principal Act insert—

"(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

(ii)a body corporate whose principal place of business is in Victoria.".

9New Part 2 substituted

s. 9

For Part 2 of the Principal Act substitute—

"Part 2—The Australian Consumer Law

Division 1—Definitions

7Definitions

(1)In this Part, unless the contrary intention appears—

application lawmeans—

(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 aparticipating 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;

(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;

s. 9

(f)an agreement;

(g)an application made, information or complaint laid, affidavitsworn, 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 IntergovernmentalAgreement for the Australian Consumer Law made on 2July 2009between the Commonwealth, the State of New South Wales, the Stateof Victoria, the State of Queensland, the State of Western Australia, theState of South Australia, the State of Tasmania, the Australian CapitalTerritory and the Northern Territory of Australia, as in force for the time being;

jurisdiction means a State or the Commonwealth;

s. 9

law, in relation to a Territory, means a law of, or in force in, that Territory;

modifications includes additions, omissions and substitutions;

month means a period commencing at the beginning of a day of one ofthe 12months of the year and ending immediately before the beginningof the corresponding day of the next month or, if there is no suchcorresponding day, ending at the expiration of the next month;

participating jurisdiction means a jurisdiction that is a party to theIntergovernmental Agreement and applies the Australian ConsumerLaw 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

8The Australian Consumer Law text

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.

9Application of Australian Consumer Law

s. 9

(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.

10Future modifications of Australian Consumer Law text

(1)A modification made by a Commonwealth law to the AustralianConsumer Law text after the commencement of this sectiondoes not apply under section 9, if the modification isdeclared by Order of the Governor in Council published in the Government Gazette to be excluded from the operation ofthat section.

s. 9

(2) An Order under subsection (1) has effect only if published before the end of 2 months after the date of the modification.

(3) Subsection (1) ceases to apply to the modification if a furtherOrder so provides.

(4) For the purposes of this section, the date of the modification is the dateon which the Commonwealth Act effecting the modification receivesthe Royal Assent or the regulation effecting the modification isregistered under the Legislative Instruments Act 2003of theCommonwealth.

11Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction

(1)In the Australian Consumer Law (Victoria), regulator means the Director.

(2)For the purposes of the application of the Australian Consumer Law (Victoria), court has the meaning given in section 160E of this Act.

12Interpretation of Australian Consumer Law

(1)The Acts Interpretation Act 1901of the Commonwealth applies as a lawof this jurisdiction to the Australian Consumer Law (Victoria).

(2)For the purposes of subsection (1), the Commonwealth Act mentionedin that subsection applies as if—

(a)the statutory provisions in the Australian Consumer Law (Victoria)were a Commonwealth Act; and

(b)the regulations in the Australian Consumer Law (Victoria)orinstruments under that Law were regulations or instrumentsunder a Commonwealth Act.

s. 9

(3)The Interpretation of Legislation Act 1984does not apply to—

(a)the Australian Consumer Law (Victoria); or

(b)any instrument under that Law.

13Application of Australian Consumer Law

(1)The Australian Consumer Law (Victoria)applies to and in relation to—

(a)persons carrying on business within this jurisdiction; or

(b)bodies corporate incorporated or registered under the law of thisjurisdiction; or

(c)persons ordinarily resident in this jurisdiction; or

(d)persons otherwise connected with this jurisdiction.

(2)Subject to subsection (1), the Australian Consumer Law (Victoria)extendsto conduct, and other acts, matters and things, occurring or existingoutside or partly outside this jurisdiction (whether within or outsideAustralia).

Division 3—References to Australian Consumer Law

s. 9

14References to Australian Consumer Law

(1)A reference in any instrument to the Australian Consumer Law is areference to the Australian Consumer Law of any or all of theparticipating jurisdictions.

(2)Subsection (1) has effect except so far as the contrary intention appearsin the instrument or the context of the reference otherwise requires.

15References to Australian Consumer Law of other jurisdictions

(1)This section has effect for the purposes of an Act, a law of thisjurisdiction or an instrument under an Act or such a law.

(2)If a law of a participating jurisdiction other than this jurisdictionprovides that the Australian Consumer Law text as in force for the timebeing applies as a law of that jurisdiction, the Australian Consumer Lawof that jurisdiction is the Australian Consumer Law text, applying as alaw of that jurisdiction.

Division 4—Application of Australian Consumer Law to Crown

16Division does not apply to Commonwealth

In this Division, participating jurisdictionor other jurisdictiondoes not include theCommonwealth.

17Application law of this jurisdiction

s. 9

The application law of this jurisdiction binds (so far as the legislativepower of Parliament permits) the Crown in right of this jurisdiction andof each other jurisdiction, so far as the Crown carries on a business,either directly or by an authority of the jurisdiction concerned.

18Application law of other jurisdictions

(1)The application law of each participating jurisdiction other than thisjurisdiction binds the Crown in right of this jurisdiction, so far as theCrown carries on a business, either directly or by an authority of thisjurisdiction.

(2)If, because of this Part, a provision of the law of another participatingjurisdiction binds the Crown in right of this jurisdiction, the Crown inthat right is subject to that provision despite any prerogative right orprivilege.

19Activities that are not business

(1)For the purposes of sections 17 and 18, the following do not amount tocarrying on a business—

(a)imposing or collecting—

(i)taxes; or

(ii)levies; or

(iii)fees for authorisations;

(b)granting, refusing to grant, revoking, suspending or varyingauthorisations (whether or not they are subject to conditions);

(c)a transaction involving—

s. 9

(i)only persons who are all acting for the Crown in the sameright (and none of whom is an authority of a State); or

(ii)only persons who are all acting for the same authority of aState; or

(iii)only the Crown in right of a State and one or morenon-commercial authorities of that State; or

(iv)only non-commercial authorities of the same State;

(d)the acquisition of primary products by a government body underlegislation, unless the acquisition occurs because—

(i)the body chooses to acquire the products; or

(ii)the body has not exercised a discretion that it has under thelegislation that would allow it not to acquire the products.

(2)Subsection (1) does not limit the things that do not amount to carryingon a business for the purposes of sections 17 and 18.

(3)In this section—

acquisition of primary products by a government body underlegislation includes vesting of ownership of primary products in agovernment body by legislation;

authorisation means a licence, permit, certificate or other authorisationthat allows the holder of the authorisation to supply goods or services;

government body means a State or an authority of a State;

s. 9

primary productsmeans—

(a)agricultural or horticultural produce; or

(b)crops, whether on or attached to the land or not; or

(c)animals (whether dead or alive); or

(d)the bodily produce (including natural increase) of animals.

(4)For the purposes of this section, an authority of a State isnon-commercial if—

(a)it is constituted by only one person; and

(b)it is neither a trading corporation nor a financial corporation.

20Crown not liable to pecuniary penalty or prosecution

(1)Nothing in the application law of this jurisdiction makes the Crown inany capacity liable to a pecuniary penalty or to be prosecuted for anoffence.

(2)Without limiting subsection (1), nothing in the application law of aparticipating jurisdiction makes the Crown in right of this jurisdictionliable to a pecuniary penalty or to be prosecuted for an offence.

(3)The protection in subsection (1) or (2) does not apply to an authority ofany jurisdiction.

Division 5—Miscellaneous

s. 9

21Conferral of functions and powers on certain bodies

(1)The authorities and officers of the Commonwealth referred to in theAustralian Consumer Law (Victoria)have the functions and powersconferred or expressed to be conferred on them under the AustralianConsumer Law (Victoria).

(2)In addition to the powers mentioned in subsection (1), the authoritiesand officers referred to in that subsection have power to do all thingsnecessary or convenient to be done in connection with the performanceof the functions and exercise of the powers referred to in thatsubsection.

22No doubling-up of liabilities

(1)If—

(a)an act or omission is an offence against the Australian Consumer Law (Victoria)and is also an offence against an application law ofanother participating jurisdiction; and

(b)the offender has been punished for the offence under theapplication law of the other jurisdiction—

the offender is not liable to be punished for the offence against theAustralian Consumer Law (Victoria).

(2)If a person has been ordered to pay a pecuniary penalty under theapplication law of another participating jurisdiction, the person is notliable to a pecuniary penalty under the Australian Consumer Law (Victoria)in respect of the same conduct.

______".

10Sections 32B to 32F repealed

s. 10

Sections 32B to 32F of the Principal Act are repealed.

11Section 32FA substituted

For section 32FA of the Principal Act substitute—

"32FA Application of Goods Act 1958 to contracts of supply

(1)Sections 17, 18, 19(a) and (b) and 20 of the Goods Act 1958 do not apply to contracts of supply to which Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) applies.

(2)Section 4(2) of the Goods Act 1958 is taken toapply in relation to this Part and Division1 of Part 3-2 of the Australian Consumer Law (Victoria)as if—

(a)the reference to Part were a reference to Part 3-2 of the Australian Consumer Law (Victoria); and

(b)the reference to contracts for the sale ofgoods included a reference to contracts ofsupply of goods.

(3)A reference in Part I of the Goods Act 1958 to acondition includes a reference to a guarantee within the meaning of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria).

(4)Except as otherwise expressly provided by Division 1 of Part 3-2 of the Australian Consumer Law (Victoria), nothing in that Division affects the application toa contract of supply of goods or services of theGoods Act 1958 or any other Act or law.".

12Sections 32G to 32MA repealed

s. 12

Sections 32G to 32MA of the Principal Act are repealed.

13Limitation of liability in relation to supply of recreational services

(1)For section 32N(1) of the Principal Act substitute—