Fire Services Levy Monitor Act 2012

Fire Services Levy Monitor Act 2012

No. 81 of 2012

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

Part 2—The Fire Services Levy Monitor

4Establishment of office of the Fire Services Levy Monitor

5Independence of the Monitor

6Functions of the Monitor

7Powers of the Monitor

8Appointment of Fire Services Levy Monitor

9Appointment of Deputy Fire Services Monitor

10Cessation of office

11Removal from office

12Effect of vacancy in office of the Monitor

13Power of delegation

14Staff

15Consultants

16Immunity

17Secrecy

Part 3—Monitoring Powers

18Power to obtain information and documents to monitor compliance

19Power to obtain information, documents and evidence

20Powers in relation to documents

21Copies of seized documents

22Retention and return of seized documents

23Magistrates' Court may extend 3 month period

24Service of documents

25Information sharing

Part 4—Price Exploitation and False, Misleadingand Deceptive Practices

Division 1—Price exploitation

26Price exploitation in relation to the fire services levy reform

27Price exploitation guidelines

28Monitor may issue notice to insurance company for a contravention of section 26

29Monitor may give notice to aid prevention of price
exploitation

30Monitor may monitor prices

Division 2—Prohibited conduct

31Prohibition on conduct falsely representing or misleading or deceiving

Division 3—Pecuniary penalties

32Pecuniary penalty for contravention of penalty provision

33Defence to proceedings under section 32 relating to a contravention of section 31

34What happens if substantially the same conduct is a contravention of section 31 and is an offence?

35Conduct contravening more than one pecuniary penalty
provision

36Civil evidence and procedure rules for pecuniary penalty
order

37Evidence given in civil proceedings not admissible in criminalproceedings

38State of mind

39Pecuniary penalty to be paid into Consolidated Fund

Part 5—Codes of Practice

40Preparation of draft code of practice by the Monitor

41Consideration of draft code of practice

42Prescribing codes of practice

43Offence to breach code of practice

Part 6—Fire Service Levy Disputes

44Making a fire services levy dispute complaint

45Conciliation and mediation

46Powers of the Director in relation to certain proceedings

47Proceedings and costs

Part 7—Inspection Powers

Division 1—Inspectors

48Appointment of inspectors

49Inspector's identification

50Production of identification

Division 2—Requirements to produce information

51Inspector may seek court order

52Inspection of documents under court order

53Notification of execution of court order

Division 3—Entry and search of premises with consent

54Entry and search with consent

55Notice before entry and search

56Acknowledgement of consent to entry and search

Division 4—Entry and search of premises with warrant

57Search warrants

58Form and content of search warrants

59Announcement before entry

60Details of warrant to be given to occupier

61Seizure of things not mentioned in the warrant

Division 5—Documents

62Copies of seized documents

63Retention and return of seized documents or things

64Magistrates' Court may extend 3 month period

Division 6—Offences

65Refusal or failure to comply with requirement

66Protection against self-incrimination

67Offence to give false or misleading information

68Offence to hinder or obstruct inspector

69Offence to impersonate inspector

Division 7—Miscellaneous

70Entry to be reported to the Monitor

71Requirement to assist inspector during entry

72Register of exercise of powers of entry

73Complaints

74Service of documents

75Confidentiality

Part 8—Remedies and Legal Proceedings

Division 1—Substantiation notices

76Monitor may require claim to be substantiated

77Extending period for complying with substantiation notice

78Compliance with a substantiation notice

79False or misleading information

Division 2—Compensation orders

80Compensation order on application of injured person or the Monitor

81Order to redress loss or damage suffered by non-party
consumers

82Determining whether to make an order under section 81(1)

83When is a non-party consumer bound by an order under section81

84What kinds of orders can be made?

85Power of court to make orders

86Interaction with Divisions 1 and 3

Division 3—General

87Prosecutions of offences

88Who can bring proceedings for offences?

89Contraventions by bodies corporate

90Conduct by officers, employees or agents

91Interpretation

92Undertakings

93Copy of undertaking

94Register of undertakings

95Injunctions to restrain conduct

96Injunctions to do an act or thing

97Interim injunctions

98Power to rescind or vary injunctions

99Undertakings as to costs

100Powers of court if requirement of Monitor or inspector not complied with

101Non-punitive orders—Corrective advertising orders

102Punitive orders—Adverse publicity orders

103Defences

104Findings in proceedings to be evidence

105Orders against persons found to have contravened this Act

106Public warning statements

107Complaints and evidence are privileged

Part 9—General

108When is a person not liable?

109Power to make request to the Essential Services Commission

110Report

111Regulations

112Amendment of the Australian Consumer Law and Fair Trading Act 2012

113Amendment of the Essential Services Commission Act 2001

114Amendment of the Fire Services Property Levy Act 2012

115Amendment of Public Administration Act 2004

116Transitional provisions

Division 6—Fire Services Levy Monitor Act 2012

137ADirector to succeed Fire Services Levy Monitor

117Sunset

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Endnotes

SectionPage

Victoria

SectionPage

Fire Services Levy Monitor Act 2012[†]

No. 81 of 2012

[Assented to 18 December 2012]

Fire Services Levy Monitor Act 2012
No. 81 of 2012

The Parliament of Victoriaenacts:

Part 9—General

Fire Services Levy Monitor Act 2012
No. 81 of 2012

Part 1—Preliminary

1Purpose

The purpose of this Act is to provide for the establishment, functions and powers of the Fire Services Levy Monitor.

2Commencement

(1)This Act, other than sections 113(2) and 115(2),comes into operation on the day after the day on which this Act receives the Royal Assent.

(2)Sections 113(2) and 115(2) come into operation on 30December 2014.

3Definitions

s. 3

In this Act—

Director has the same meaning as it has in section3(1) of the Australian Consumer Law and Fair Trading Act 2012;

Essential Services Commission means the Essential Services Commission established under the Essential Services Commission Act 2001;

fire services levy means an amount included in the premium payable for a policy of insurance against fire for the purpose of recouping contributions required to be paid by an insurance company under section 37(1)(c) of the Metropolitan Fire Brigades Act 1958 or section 76(1)(b) of the Country Fire Authority Act 1958, whether or not the amount is disclosed as a separate item;

fire services levy dispute means any dispute between an insurance company and the holder of a policy for insurance against fire involving a claim that the insurance company has engaged in—

(a)price exploitation as a result of the abolition of the fire services levy; or

(b)prohibited conduct in relation to the effect of the abolition of the fire services levy;

fire services levy reform means the abolition of the fire services levy by the Fire Services Property Levy Act 2012;

fire services property levy means the levy amount calculated in accordance with Part 2 of the Fire Services Property Levy Act 2012;

insurance against fire means insurance against the risk of fire or the risk of loss of profits consequent on fire whether the insurance is associated with insurance against any other risk or not;

insurance company means—

(a)a person (including a body corporate or unincorporate, a partnership or an underwriter) who, in Victoria, issues, or undertakes liability under, policies of insurance against fire in respect of property in Victoria; or

s. 3

(b)a Lloyd's underwriter who—

(i) issues, or undertakes liability under, policies of insurance against fire in respect of property in Victoria; and

(ii)is a member of the Australian Fire Brigades Charges Scheme and makes payments to the Fund established under that Scheme;

insurance premium means any premium received by or due to an insurance company for insurance against fire including any base premium, fire services levy, GST or stamp duty;

Lloyd's means the society of that name incorporated by the Act of the United Kingdom known as Lloyd's Act 1871;

Lloyd's underwriter means an underwriter member of Lloyd's;

Monitor means the Fire Services Levy Monitor appointed under section 8 and includes the Deputy Fire Services Levy Monitor while acting as the Fire Services Levy Monitor;

non-party consumermeans a person who is not, or has not been, a party to a proceeding—

(a)in relation to a contravention of a penalty provision; or

(b)instituted under Part 8, other than section 80 or 81;

pecuniary penalty order means an order under section 32 for the payment of a pecuniary penalty;

penalty provision means section 26 or 31;

prescribed means prescribed by regulations made under this Act;

pricein relation to the supply of a regulated contract of insurance includes—

(a)a charge of any description for the supply; and

(b)any pecuniary or other benefit, whether direct or indirect, received or to be received by a person for or in connection with the supply;

s. 3

price exploitation has the meaning given by section 26;

prohibited conduct means the conduct prohibited by section 31;

regulated contract of insurance means—

(a)a policy of insurance against fire; or

(b)a combined or comprehensive policy of insurance which includes insurance against fire—

issued by an insurance company whether before, on or after the commencement of this Act;

substantiation notice means a notice given under section 76;

trade or commerce has the same meaning as it has in the Australian Consumer Law (Victoria);

Victorian Consumer Law Fund means the trustaccount required to be kept under section 134(1) of the Australian Consumer Law and Fair Trading Act 2012.

s. 3

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Part 2—The Fire Services Levy Monitor

4Establishment of office of the Fire Services Levy Monitor

s. 4

(1)There is to be an office of the Fire Services Levy Monitor.

(2)The Monitor is the public service body Head of the office of the Fire Services Levy Monitor for the purposes of section 16 of the Public Administration Act 2004.

5Independence of the Monitor

(1)Subject to this Act and other laws of the State, the Monitor has complete discretion in the performance or exercise of his or her functions and powers.

(2)In particular, and without limiting subsection (1), but subject to subsection (3), the Monitor is not subject to the direction or control of the Minister in respect of the performance or exercise by the Monitor of his or her functions and powers in respect of a specific matter or complaint.

(3)The Minister may issue a general direction in writing to the Monitor in respect of the performance by the Monitor of his or her functions under this Act.

(4)A general direction issued under subsection (3) must as soon as practicable after it is given to the Monitor be published in the Government Gazette.

(5)The Monitor must comply with a general direction given under subsection (3).

6Functions of the Monitor

s. 6

(1)The functions of the Monitor are to—

(a)provide information, advice and guidance in relation to fire services levy reform;

(b)monitor insurance premiums for insurance against fire received by, or owing to, an insurance company, including any base premium, fire services levy, GST or stamp duty;

(c)monitor the compliance of the insurance industry with the prohibition on price exploitation, and investigate and take enforcement action;

(d)monitor compliance with the prohibition on false, misleading or deceptive conduct in respect of the effect or likely effect of fire services levy reform;

(e)refer complaints to the—

(i) Australian Securities and Investments Commission;

(ii)Australian Prudential Regulatory Authority;

(iii)Financial Ombudsman Service;

(f)promote effective dispute resolution mechanisms in relation to disputes arising out of fire services levy reform;

(g)be responsible for the administration of this Act;

(h)perform any other functions conferred on the Monitor by or under this Act or any other Act.

(2)Without limiting the generality of subsection (1), the Monitor has the following functions—

(a)to advise persons of their rights and obligations under this Act and the Fire Services Property Levy Act 2012;

(b)to receive complaints from persons and to deal with them in accordance with this Act, including referring any complaint to any other appropriate person;

(d) to prepare and publish guidelines in relation to the operation and enforcement of this Act;

(e) to investigate breaches of this Act;

s. 6

(f) to prosecute breaches of this Act;

(g) to institute and defend proceedings and take any other action that may be necessary to achieve compliance with the requirements of this Act;

(h)to encourage the preparation and use of codes of practice for guidance in safeguarding and promoting the interests of purchasers of regulated contracts of insurance;

(i) to endorse a code of practice prepared by an insurance company or a class of insurance companies in respect of the supply of regulated contracts of insurance to purchasers of insurance or a class of purchasers of insurance;

(j)to prepare codes of practice safeguarding and promoting the interests of purchasers of regulated contracts of insurance and submit those codes of practice to the Minister for inclusion in regulations made under this Act;

(k) in respect of matters arising out of the administration of this Act or the Fire Services Property Levy Act 2012—

(i) to investigate those matters; and

(ii)to conduct research; and

(iii)to collect and collate information;

(l) to report to the Minister on any matter in relation to the administration of this Act or the Fire Services Property Levy Act 2012which the Monitor has investigated, either on his or her own motion or at the request of the Minister.

7Powers of the Monitor

s. 7

(1)The Monitor has all the powers necessary to perform his or her functions.

(2)Without limiting subsection (1), the Monitor may seek advice and information on any matter from any person or body or source in performing the functions of the Monitor.

8Appointment of Fire Services Levy Monitor

(1)The Minister may appoint a person as the Fire Services Levy Monitor.

(2)The Monitor is entitled to be paid the remuneration and allowances that are determined by the Minister.

(3)The Monitor holds office—

(a)for a period specified in his or her instrument of appointment that ends on 31 December 2014;

(b)on the terms and conditions determined by the Minister.

(4)The Fire Services Levy Monitor is, in respect of that office, not subject to the Public Administration Act 2004.

9Appointment of Deputy Fire Services Monitor

s. 9

(1)The Minister may appoint a person as the Deputy Fire Services Levy Monitor.

(2)The Deputy Fire Services Levy Monitor is entitled to be paid the remuneration and allowances that are determined by the Minister.

(3)The Deputy Fire Services Levy Monitor holds office—

(a)for a period specified in his or her instrument of appointment that ends on 31 December 2014;

(b)on the terms and conditions determined by the Minister.

(4)The Deputy Fire Services Levy Monitor is, in respect of that office, not subject to the Public Administration Act 2004.

(5)The Deputy Fire Services Levy Monitor has the functions and powers which are delegated to him or her under section 13 by the Fire Services Levy Monitor.

(6)The Deputy Fire Services Levy Monitor is to act as the Fire Services Levy Monitor if—

(a)the office of the Fire Services Levy Monitor is vacant; or

(b)the Fire Services Levy Monitor is absent; or

(c)the Fire Services Levy Monitor is for any other reason unable to perform the duties of the office.

(7)While acting as the Fire Services Levy Monitor, the Deputy Fire Services Levy Monitor has, and may exercise all the powers, and must perform all the functions of the Fire Services Levy Monitor.

10Cessation of office

s. 10

The Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor ceases to hold office if he or she—

(a)resigns by notice in writing given to the Minister; or

(b)becomes an insolvent under administration; or

(c)becomes a represented person within the meaning of the Guardianship and Administration Act 1986; or

(d)is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or

(e)nominates for election for the Parliament of Victoria or of the Commonwealth or of another State or a Territory of the Commonwealth; or

(f)is removed from office under section 11.

11Removal from office

(1)The Minister may remove the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor from office on any of the following grounds—

(a)misconduct;

(b)neglect of duty;

(c)inability to perform the duties of the office;

(d)any other ground on which the Minister is satisfied that the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor is unfit to hold office.

(2)The Minister must cause to be laid before each House of Parliament a full statement of the grounds of removal of the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor within 7 sitting days of that House after the removal.

12Effect of vacancy in office of the Monitor

s. 12

A vacancy in the office of the Monitor does not affect the validity or continuity of any act, decision or proceeding made or commenced by the Monitor.

13Power of delegation

(1)The Monitor by instrument may delegate any function or power of the Monitor under this Act other than this power of delegation to—

(a)the Deputy Fire Services Levy Monitor;

(b)any person employed under Part 3 of the Public Administration Act 2004.

(2)The Monitor by instrument may delegate to the Director any function or power of the Monitor under this Act including, subject to subsection (3), this power of delegation.

(3)The Director may, subject to and in accordance with the instrument of delegation under subsection (2), by instrument delegate to any person employed under Part 3 of the Public Administration Act 2004 any function or power delegated to the Director, other than this power of delegation.

(4)Sections 42 and 42A of the Interpretation of Legislation Act 1984 apply to a sub-delegation under subsection (3) as if it were a delegation.

14Staff

s. 14

(1)Any employees that are necessary for the purposes of this Act may be employed under Part 3 of the Public Administration Act 2004.

(2)The Monitor may enter into agreements or arrangements for the use of the services of any staff of a Department, statutory authority or other public body.

15Consultants

(1)The Monitor may engage persons with suitable qualifications and experience as consultants.

(2)Without limiting the generality of subsection (1), the Monitor may appoint an Australian legal practitioner to assist the Monitor as counsel, either generally or in reference to a particular matter.

(3)An engagement under this section may be on any terms and conditions the Monitor considers appropriate.

16Immunity

(1)A person who is the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor is not personally liable for anything done or omitted to be done in good faith—

(a)in the performance of a function or the exercise of a power under this Act; or

(b)in the reasonable belief that the act or omission was in the performance of a function or the exercise of a power under this Act.

(2)Any liability resulting from an act or omission that would but for subsection (1) attach to a person who is the Fire Services Levy Monitor or the Deputy Fire Services Levy Monitor attaches instead to the Crown.

17Secrecy

s. 17

(1)This section applies to every person who is or has been—

(a)the Fire Services Levy Monitor; or

(b)the Deputy Fire Services Levy Monitor; or

(c)the Director; or

(d)a person employed under section 14; or

(e)a person engaged under section 15; or

(f)any other person to whom a function or power has been delegated under section 13.