Fair Trading and Consumer Acts Amendment Act 2007

Fair Trading and Consumer Acts Amendment Act 2007

No. 17 of 2007

table of provisions

Section Page

Part 1—Preliminary 1

1 Purpose 1

2 Commencement 2

Part 2—Fair Trading Act 1999 3

3 Address to be included in documents 3

4 Requirements for non-contact sales agreements 3

5 Power to obtain information, documents and evidence 3

6 Emergency entry 3

7 Embargo notice 4

8 New section 126B inserted 4

126B Monitoring compliance with embargo notices 4

9 Court may order destruction of dangerous goods 6

10 Orders to prohibit payment of money or transfer of other
property 7

11 Findings in proceedings to be evidence 7

12 Orders against persons found to have contravened this Act 8

13 Consumer documents to be clear 8

Part 3—Conveyancers Act 2006 9

14 Definitions 9

15 Eligibility for licence 9

16 Section 12 substituted 10

12 Competency qualifications and work experience 10

17 Failure to comply with section 35 11

18 Section 38 substituted 11

38 Change in details of licence or annual statement 11

19 New section 40A inserted 12

40A Surrender of licence 12

20 Exemption from requirement to appoint manager 12

21 Employment of disqualified persons 12

22 Trust money and trust accounts 13

23 New section 73A inserted 14

73A Trust money subject to specific powers 14

24 Trust money received in the form of cash 14

25 Intermixing money 15

26 Disclosure of information generally 16

27 Register of Licensed Conveyancers 17

28 New section 182A inserted 18

182A Registrar may waive fees 18

29 Application of Fair Trading Act 1999 18

30 Existing conveyancer may apply to Authority for provisional licence 19

31 New clause 11A inserted in Schedule 1 19

11A Restrictions on company licence 19

32 Consequential amendments 20

33 New item 6 inserted in Schedule 2 20

6 Transfer of Land Act 1958 20

Part 4—Other Consumer Acts 22

34 Consumer Credit (Victoria) Act 1995 22

40A Incorporation of provisions of Fair Trading Act 1999 22

35 Motor Car Traders Act 1986 22

36 Schedule 23

Part 5—Repeal 24

37 Repeal of Act 24

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SCHEDULE—Amendments to Consumer Acts 25

1 Associations Incorporation Act 1981 25

2 Business Names Act 1962 25

3 Domestic Building Contracts Act 1995 26

4 Estate Agents Act 1980 26

5 Fundraising Appeals Act 1998 26

6 Funerals Act 2006 27

7 Funerals (Pre-Paid Money) Act 1993 27

8 Introduction Agents Act 1997 27

9 Motor Car Traders Act 1986 28

10 Petroleum Products (Terminal Gate Pricing) Act2000 28

11 Prostitution Control Act 1994 29

12 Residential Tenancies Act 1997 29

13 Sale of Land Act 1962 29

14 Second-Hand Dealers and Pawnbrokers Act 1989 30

15 Travel Agents Act 1986 30

16 Utility Meters (Metrological Controls) Act 2002 31

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Endnotes 32

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Section Page

Victoria

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Section Page

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Section Page

Fair Trading and Consumer Acts Amendment Act 2007[(]

No. 17 of 2007

[Assented to 29 May 2007]

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Fair Trading and Consumer Acts Amendment Act 2007
No. 17 of 2007

The Parliament of Victoria enacts:

Fair Trading and Consumer Acts Amendment Act 2007
No. 17 of 2007

Part 1—Preliminary

1 Purpose

The main purpose of this Act is to amend the Fair Trading Act 1999, the Conveyancers Act 2006, the Motor Car Traders Act 1986, the Consumer Credit (Victoria) Act 1995 and several other Consumer Acts to improve the operation of those Acts.

2 Commencement

s. 2

(1) This Act (except Part 3) comes into operation on the day after the day on which it receives the Royal Assent.

(2) Subject to subsection (3), Part 3 comes into operation on a day or days to be proclaimed.

(3) If a provision of Part 3 does not come into operation before 1July 2008, it comes into operation on that day.

______

Part 2—Fair Trading Act 1999

3 Address to be included in documents

s. 3

See:
Act No.
16/1999.
Reprint No. 3
as at
23 February 2007.

In section 29(3) of the Fair Trading Act 1999, after "other than" insert "a person who publishes a document, statement or advertisement on the person's own behalf or".

4 Requirements for non-contact sales agreements

After section 69(1) of the Fair Trading Act 1999 insert—

"(1A) Subsection(1)(d) does not limit the operation of section29.".

5 Power to obtain information, documents and evidence

(1) In section 106I(1)(c) of the Fair Trading Act 1999, after "Director" insert ", or a person specified in the notice acting on the Director's behalf,".

(2) In section 106I(2) of the Fair Trading Act 1999, after "Director" insert "or the person specified in the notice acting on the Director's behalf".

6 Emergency entry

After section 121(3) of the Fair Trading Act 1999 insert—

"(3A) Section 126B extends and applies to a notice given under subsection (3) (with any necessary modifications) as if—

(a) a reference to an embargo notice were a reference to a notice under subsection (3); and

(b) a reference to section 126(2) were a reference to subsection (6).".

7 Embargo notice

In section 126(2) of the Fair Trading Act 1999, for "penalty of" substitute "penalty not exceeding".

8 New section 126B inserted

s. 7

After section 126A of the Fair Trading Act 1999 insert—

"126B Monitoring compliance with embargo notices

(1) For the purpose of monitoring compliance with section 126(2), an inspector, with the written approval of the Director, may apply to the Magistrates' Court for—

(a) an order requiring the owner of the thing to which an embargo notice under section 126 relates, or the occupier of the premises where the thing is kept or required under the notice to be kept, to answer questions or produce documents at a time and place specified by the inspector; and

(b) any other order incidental to or necessary for monitoring compliance with section126(2).

(2) The Magistrates' Court may make the order sought under subsection(1).

(3) If a thing is subject to an embargo notice under section 126, for the purpose of monitoring compliance with any one or more of the following—

(a) section 126(2);

(b) a prescribed safety standard;

(d) a permanent ban order;

(e) a fixed term ban order—

in relation to the thing, an inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant permitting entry to the premises where the thing is kept or required to be kept.

(4) If the magistrate is satisfied by evidence, on oath or by affidavit, of the inspector that it is necessary to do so for the effective monitoring of compliance with any one or more of the following—

(a) section 126(2);

(b) a prescribed safety standard;

(d) a permanent ban order;

s. 8

(e) a fixed term ban order—

the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989.

(5) The warrant may authorise the inspector, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment, to enter the premises specified in the warrant, if necessary by force, and—

(a) to search for, seize and secure against interference the thing named in the warrant; or

(b) to test the thing named in the warrant to determine whether it complies with a prescribed safety standard; or

(i) an interim ban order;

(ii) a permanent ban order;

(iii) a fixed term ban order; or

(d) to do any combination of the activities referred to in paragraphs (a), (b) and(c).

(6) Sections 123 and 124 extend and apply to a search warrant issued under subsection (4).".

9 Court may order destruction of dangerous goods

s. 9

(1) In section 129A(1) of the Fair Trading Act 1999, after "kind" insert "to which a prescribed safety standard applies or".

(2) For section 129A(2) of the Fair Trading Act 1999 substitute—

"(2) On an application under subsection(1), the court may—

(a) make an order permitting the destruction of the goods, if it is satisfied that it is appropriate to do so; and

(b) make any other order that it considers to be appropriate, including—

(i) an order relating to the payment by the owner of the goods of the costs of, and any costs incidental to, the destruction of the goods; or

(ii) an order under subsection (2A).

(2A) If the court is satisfied that the owner of the goods cannot be found after all reasonable attempts have been made, it may make an order relating to the payment by the supplier of the goods of the costs of, and any costs incidental to, the destruction of the goods.".

(3) In section 129A(3) of the Fair Trading Act 1999, after "in the application" insert "or to the person from whom the goods described in the application were seized".

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

s. 10

After section 154(1)(b) of the Fair Trading Act 1999 insert—

"(ba) an order prohibiting, either absolutely or subject to conditions, an ADI at which the relevant person holds an account from transferring, or allowing any person to withdraw, money standing to the credit of the account;".

11 Findings in proceedings to be evidence

In section 157 of the Fair Trading Act 1999—

(a) after "proceeding" insert "against a person";

(b) for "149, 150" substitute "149, 149A, 150, 151A, 151B, 151C";

12 Orders against persons found to have contravened this Act

In section 158(2) of the Fair Trading Act 1999—

(a) in paragraph (g), for "person." substitute "person; or";

(b) after paragraph (g) insert—

"(h) an order declaring that the defendant has contravened a provision of this Act or the regulations.".

13 Consumer documents to be clear

s. 12

In section 163 of the Fair Trading Act 1999—

(a) in subsection (2), for "applies;" substitute "applies.";

(b) in subsection (4)—

(i) for "If the Tribunal" substitute "If a court or the Tribunal"; and

(ii) for "section, the Tribunal" substitute "section, the court or the Tribunal".

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Part 3—Conveyancers Act 2006

14 Definitions

s. 14

See:
Act No.
75/2006.
Statute Book:
www.
legislation.
vic.gov.au

In section 3 of the Conveyancers Act 2006—

(a) insert the following definition—

"affairs of a licensee include the following—

(a) all accounts and records required under this Act or the regulations to be maintained by the licensee or an associate or former associate of the licensee;

(b) other records of the licensee or an associate or former associate of the licensee;

(i) to which the licensee or an associate or former associate of the licensee was or is a party;

(ii) in which the licensee or an associate or former associate of the licensee has acted for a party;"

(b) the definition of registered education and training organisation is repealed.

15 Eligibility for licence

For section 11(1)(d) of the Conveyancers Act 2006 substitute—

"(d) either—

(i) is covered by the professional indemnity insurance required under section 41; or

(ii) if the person is, or is to be, employed by a licensee, holds evidence of employment with, or an offer of employment from, the licensee and evidence that the person will be covered by the professional indemnity insurance required of the licensee under section41; and".

16 Section 12 substituted

s. 16

For section 12 of the Conveyancers Act 2006 substitute—

"12 Competency qualifications and work experience

(1) An applicant for a licence has the competency qualifications and work experience required of a licensee under section 11(1)(b) if the applicant has the qualifications and experience prescribed by the regulations.

(2) Without limiting the power to prescribe qualifications and experience, regulations under subsection (1) may—

(a) require the completion of a course of study;

(b) require the completion of a period of training;

(d) require satisfaction of professional development requirements;

(e) prescribe qualifications for specified competencies, so as to enable a person who has those qualifications to be granted a licence subject to conditions that limit the person to exercising the functions of a licensee in relation to those specified competencies only;

(f) prescribe qualifications by reference to qualifications obtained before a specific day or during a specified period.".

17 Failure to comply with section 35

s. 17

(1) In section 37(3) of the Conveyancers Act 2006 for "licensee's licence is suspended" substitute "Authority must suspend the licensee's licence".

(2) After section 37(3) of the Conveyancers Act 2006 insert—

"(4) A licensee's licence is cancelled on the next anniversary of the day on which the licence was granted if—

(a) the licence has been suspended under subsection (3); and

(b) section 35 has not been complied with and the late payment or lodgement fee has not been paid.".

18 Section 38 substituted

For section 38 of the Conveyancers Act 2006 substitute—

"38 Change in details of licence or annual statement

If, while a licence is in force, a material change occurs in any of the details provided in the application for the licence or an annual statement, the licensee must give the Authority written notice of the change within 14days after the licensee becomes aware of the change.

Penalty: 60 penalty units.".

19 New section 40A inserted

s. 19

After section 40 of the Conveyancers Act 2006 insert—

"40A Surrender of licence

(1) Subject to subsection (2), a licensee may at any time by notice in writing to the Authority surrender the licence.

(2) If an application has been made to VCAT to conduct an inquiry under section 33 in relation to a licensee, the licensee may not, without leave of VCAT, surrender the licence unless VCAT has determined to take action under section 34 or has determined not to take any action.

(3) The person who held a licence that has been surrendered must return the licence to the Authority within 14 days of surrendering it.