Fair Trading (Enhanced Compliance) Bill
Circulation Print
EXPLANATORY MEMORANDUM
551239
BILL LA CIRCULATION 12/11/2004
General
This Bill amends the Fair Trading Act 1999 and other of the Consumer Actslisted in Schedule 1 to that Act to enhance compliance with those Acts. It also makes a minor amendment to the Trustee Companies Act 1984.
Clause Notes
PART 1—PRELIMINARY
Clause 1sets out the purposes of the Bill.
Clause 2sets out that the Bill comes into operation on the day after it receives the Royal Assent except for clause 37, which comes into operation on 1 July 2005.
PART 2—AMENDMENTS TO FAIR TRADING ACT 1999
Clause 3amends the definition of "Consumer Act" to include Part 5 of the Subdivision Act 1988, and the definition of "officer" to clarify that in relation to a body corporate that is not a corporation, it means a person who is concerned in or takes part in the management of the body corporate or an employee.
Clause 4inserts a new section 24A to create a specific offence for the sending of false invoices and other false claims for payment where no goods or service have been provided.
Clause 5amends section 28 to refer to new section 24A.
Clause 6amends section 63(2) to clarify that a breach of sections 61(1)(b), 61(1)(c) or 61(1)(i) will attract the penalty cooling-off period.
Clause 7amends section 67A(3)(d) to delete an unnecessary reference.
Clause 8Amends section 100 to insert two new functions of the Director of Consumer Affairs Victoria, namely to monitor compliance with the legislation administered by Consumer Affairs Victoria and to prepare and publish guidelines on the operation and enforcement of that legislation, and to clarify that the functions in relation to codes of practice have the purpose of protecting consumers.
Clause 9amends section 104 to clarify that the Director of Consumer Affairs Victoria can mediate as well as conciliate disputes.
Clause 10substitutes a revised section 105 to clarify that the Director of Consumer Affairs Victoria can institute or continue proceedings on behalf of, or defend proceedings brought against one or several consumers, including group or representative proceedings.
Clause 11amends section 106 to clarify that it relates to the institution and continuance of proceedings and that amounts payable to a person are only those recovered in respect of that person.
Clause 12inserts a new section 106HA to enable the Director of Consumer Affairs Victoria to gather information to assist in monitoring compliance with the Act and regulations. The information is not admissible in any proceedings except those for refusing to comply with a notice under the section.
Clause 13substitutes a revised section 114 to broaden the classes of people from whom inspectors can be appointed to include inspectors who are appointed under other Acts but who are not employees under Part 3 of the Public Sector Management and Employment Act 1998, and inspectors appointed under interstate consumer-protection legislation.
Clause 14amends section 128 to refer to new section 129A.
Clause 15insets a new section 129A to enable the court to permit Consumer Affairs Victoria to destroy goods it has seized that are subject to a ban order.
Clause 16inserts a new section 142A to clarify that only the Director of Consumer Affairs Victoria or a person authorised by the Director can bring summary proceedings under the Act or a Consumer Act, unless a Consumer Act makes express provision for this matter.
Clause 17amends section 146 to enable the Director of Consumer Affairs Victoria to apply to the Magistrates' Court, with the consent of the person giving an undertaking, for an order requiring that person to comply with the undertaking.
Clause 18amends section 149 to enable the County Court and the Supreme Court to grant injunctions under this section.
Clause 19inserts a new section 149A to enable the County Court and the Supreme Court to grant injunctions requiring person who has breached, or been involved in a breach of the Act, to do an act or thing, for example, and without limiting the generality of the orders that can be made, the orders listed in section 149A(3).
Clause 20amends section 150 to enable the County Court or the Supreme Court to grant interim section 149A injunctions.
Clause 21amends section 151 to enable the County Court and the Supreme Court to rescind or vary injunctions granted under new section149A.
Clause 22amends section 152 to refer to injunctions made under new section 149A.
Clause 23substitutes a revised section 153 to replicate the intent of sections86C and 86D of the Trade Practices Act 1974 (Cth).
Clause 24amends section 154 to update it to refer to Parts 2A and 2B, sections 151A and 151B and new section 149A.
Clause 25amends section 155 to extend its application to any provision of the Act except section 32ZA, Part 3, section 97, Part 8 or Part 10.
Clause 26amends section 159 to clarify that it applies to primary as well as ancillary offenders.
Clause 27amends Schedule 1 to update the list of Consumer Acts to include the Consumer Credit (Victoria) Act 1995, Credit Act 1984, Credit (Administration) Act 1984, Petroleum Products (Terminal Gate Pricing) Act 2000, Trade Measurement Act 1995, Trade Measurement (Administration) Act 1995, Utility Meters (Metrological Controls) Act 2002and Partnership Act 1958and to delete the Patriotic Funds Act 1958.
Clause 28amend the Cancellation Notice in Schedule 2 to take account of the exemption for telephone marketing agreements for the supply of services on a continuing basis.
PART 3—AMENDMENTS TO CO-OPERATIVES ACT 1996
Clause 29amends the heading to Division 1 of Part 17.
Clause 30inserts a new Division 2 of Part 17 to enable certain offences to be enforced by infringement notice.
Clause 31repeals section 467 as being redundant.
Clause 32substitutes a new Schedule 6 listing the offences to which the new infringement-notice provisions apply.
PART 4—AMENDMENTS TO CREDIT (ADMINISTRATION) ACT 1984
Clause 33amends section 32 to delete an unnecessary reference.
Clause 34amends section 86AA(3) to enable the Consumer Credit Fund to be used to remunerate members of the Consumer Credit Advisory Committee; amends section 86AB(b) to enable the Consumer Credit Fund to be used to fund legal proceedings, such as test cases involving credit issues and consumers; and amends section86AC to allow members of the Consumer Credit Advisory Committee to be remunerated as determined by the Minister for Consumer Affairs.
PART 5—AMENDMENTS TO ESTATE AGENTS ACT 1980
Clause 35amends section 4(1) to insert a definition of "inspector" for the purposes of new Division 1 of Part VI.
Clause 36repeals sections 12A, 12B and 12C consequent upon the insertion of new section 93A.
Clause 37repeals section 15(2), 15(2A), 15(5) and 15(6) to remove an anomaly in the eligibility requirements which apply to corporations seeking to be granted an estate agent's licence.
Clause 38inserts new headings in Part VI.
Clause 39amends section 64 to remove the obligation on auditors to report deficiencies in an estate agent's trust account caused solely by bank error or inadvertence, provided that such deficiency is rectified within 2 business days of being discovered, and amends section 90 to remove the offence of not reporting a deficiency in these circumstances.
Clause 40inserts a new Division 2 of Part VI to replace sections 70, 70A, 70B, 70C, 70D and 70E and align the inspection powers under the Act with those in other business-licensing legislation, particularly to allow inspection for the purpose of monitoring compliance with the Act.
Clause 41inserts a new section 93A to apply, with necessary modifications, provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
Clause 42amends section 94(2) to remove the default imprisonment penalty and thereby allow relevant offences under the Act to be enforced by infringement notice.
Clause 43substitutes a revised section 95(1) to align the provisions dealing with who may bring summary prosecutions with those in the Fair Trading Act 1999.
Clause 44repeals section 96(2) as being redundant after the application of the relevant provisions of the Fair Trading Act 1999 under clause 41.
PART 6—AMENDMENTS TO FUNDRAISING APPEALS ACT 1998
Clause 45inserts a new heading to Division 1 of Part 5.
Clause 46inserts a new Division 2 of Part 5 to enable certain offences to be enforced by infringement notice.
Clause 47substitutes a new section 68 to apply, with necessary modifications, section 106HA and provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
Clause 48inserts a Schedule of offences enforceable under the new infringement notice provisions.
PART 7—AMENDMENTS TO FUNERALS (PRE-PAID MONEY) ACT 1993
Clause 49repeals section 16 as being redundant after the application of therelevant provisions of the Fair Trading Act 1999 under clause 50.
Clause 50amends section 17A to apply, with necessary modifications, section 106HA and provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
Clause 51substitutes a revised section 18 to align the provisions dealing with who may bring summary prosecutions with those in the Fair Trading Act 1999.
PART 8—AMENDMENTS TO INTRODUCTION AGENTS ACT 1997
Clause 52repeals section 64 as being redundant after the application of the relevant provisions of the Fair Trading Act 1999 under clause53.
Clause 53substitutes a new section 69 to apply, with necessary modifications, section 106HA and provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
Clause 54repeals section 71 as being redundant after the application of the relevant provisions of the Fair Trading Act 1999 under clause53.
PART 9—AMENDMENTS TO MOTOR CAR TRADERS ACT1986
Clause 55repeals section 33A as being redundant after the application of the relevant provisions of the Fair Trading Act 1999 under clause 58.
Clause 56amends section 82AM(1) to delete an unnecessary reference.
Clause 57inserts a new section 82CA to align the provisions dealing with who may bring summary prosecutions with those in the Fair Trading Act 1999 and to include a member of the police force as such a person.
Clause 58inserts a new Division 3 of Part 5A to apply, with necessary modifications, provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
Clause 59repeals sections 85(2) and 85(3) as being redundant after the application of the relevant provisions of the Fair Trading Act 1999 under clause 58.
PART 10—AMENDMENTS TO PROSTITUTION CONTROL ACT 1994
Clause 60amends section 61P(1) to delete an unnecessary reference.
Clause 61substitutes a new section 86 to align the provisions dealing with who may bring summary prosecutions with those in the Fair Trading Act 1999 and to include a member of the police force as such a person; and inserts a new section 86A to apply, with necessary modifications, provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
PART 11—AMENDMENTS TO RESIDENTIAL TENANCIES ACT 1997
Clause 62repeals section 500 as being redundant after the application of therelevant provisions of the Fair Trading Act 1999 under clause 63.
Clause 63inserts new sections 507A(2) and 507A(3) to apply, with necessary modifications, provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
Clause 64substitutes a revised section 508(1) to align the provisions dealing with who may bring summary prosecutions with those in the Fair Trading Act 1999 and to include a member of the police force as such a person.
Clause 65inserts a new Division 2A of Part 13 to enable certain offences to be enforced by infringement notice.
Clause 66repeals section 533 as being redundant.
Clause 67substitutes a new Schedule 2 of offences enforceable under the new infringement notice provisions.
PART 12—AMENDMENTS TO SALE OF LAND ACT 1962
Clause 68repeals sections 16(2) and (3) as being redundant after the application of the relevant provisions of the Fair Trading Act 1999 under clause 71.
Clause 69amends section 32(2)(e) to insert a missing comma.
Clause 70inserts new sections 38(6) and (7) to enable genuine bids by a coowner of land under public auction as exceptions to the prohibition on undisclosed vendor bids, providing that the auction conditions allow for such bids and the auctioneer declares that such bids may be made; inserts a new section 39(3) to exclude such bids from the offence provisions; and inserts a new section 41(1)(d) to clarify that the auctioneer cannot make a bid on behalf of a co-owner seeking to purchase the interest of another co owner.
Clause 71inserts a new Part 11A to apply, with necessary modifications, section 106HA and provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
PART 13—AMENDMENTS TO SECOND-HAND DEALERS AND PAWNBROKERS ACT 1989
Clause 72inserts a new section 28E to align the provisions dealing with who may bring summary prosecutions with those in the Fair Trading Act 1999 and to include a member of the police force as such a person.
Clause 73substitutes a new section 30 to apply, with necessary modifications, provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
PART 14—AMENDMENTS TO TRAVEL AGENTS ACT 1986
Clause 74amends section 5(1) to enable the Governor in Council to grant exemptions from some, rather than all provisions of the Act.
Clause 75amends section 39O(1) to delete an unnecessary reference.
Clause 76inserts a new Part 3B to enable certain offences to be enforced by infringement notice.
Clause 77substitutes a new section 44 to apply, with necessary modifications, provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings; and substitutes a revised section 45 to align the provisions dealing with who may bring summary prosecutions with those in the Fair Trading Act 1999 and to include a member of the police force as such a person.
Clause 78inserts a Schedule of offences enforceable under the new infringement notice provisions.
PART 15—AMENDMENTS TO OTHER ACTS
Clause 79inserts a new section 50C in the Associations Incorporation Act 1981 to apply, with necessary modifications, section 106HA and provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
Clause 80substitutes a new section 29 in the Business Names Act 1962 to apply, with necessary modifications, section 106HA and provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
Clause 81inserts new sections 124A(2) and 124A(3) in the Domestic Building Contracts Act 1995 to apply, with necessary modifications, section 106HA and provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings; and repeals section129 as being redundant after the application of these provisions of the Fair Trading Act 1999.
Clause 82inserts new sections 11(2) and (3) to apply, with necessary modifications, section 106HA and in the Petroleum Products (Terminal Gate Pricing) Act 2000 provisions of Part 11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings; and repeals section12 as being redundant after the application of these provisions of the Fair Trading Act 1999.
Clause 83amends Schedule 2 to the Trustee Companies Act 1984 to update the names of authorised trustees.
Clause 84substitutes a new section 63 for sections 63 and 64 of the Utility Meters (Metrological Controls) Act 2002 to apply, with necessary modifications, section 106HA and provisions of Part11 of the Fair Trading Act 1999 relating to general enforcement provisions, remedies and legal proceedings.
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