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Fair Trading Amendment (Australian
Consumer Law) Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
General
The object of this Bill is to apply, as a law of Victoria, the Australian
Consumer Law comprising of Schedule 2 to the Competition and
Consumer Act 2010 of the Commonwealth as in force from time to time
("the Australian Consumer Law") and regulations made under section 139G
of that Act. The Bill also repeals or amends certain provisions of the Fair
Trading Act 1999 and makes consequential amendments to other Acts.
The Australian Consumer Law, upon its commencement, will comprise of
uniform national consumer protection laws, based on existing provisions in
the Trade Practices Act 1974 of the Commonwealth and also including
provisions based on best practice provisions from existing State and Territory
consumer protection laws, including the Victorian Fair Trading Act 1999.
The Australian Consumer Law includes provisions regulating misleading and
deceptive conduct, unconscionable conduct, unfair contract terms, unfair
practices, consumer guarantees and unsolicited consumer agreements. It sets
out new enforcement and redress powers and establishes a new national
product safety regime.
The Commonwealth Parliament has passed two Acts that establish the new
Australian Consumer Law--
· the Trade Practices Amendment (Australian Consumer Law)
Act (No. 1) 2010 of the Commonwealth, which received the
Royal Assent on 14 April 2010; and
· the Trade Practices Amendment (Australian Consumer Law)
Act (No. 2) 2010 of the Commonwealth, which received the
Royal Assent on 13 July 2010.
561487 1 BILL LA INTRODUCTION 11/8/2010
Schedule 1 to the Trade Practices Amendment (Australian Consumer Law)
Act (No. 2) 2010 inserts a new Schedule 2 to the Trade Practices Act 1974
of the Commonwealth. That Schedule comprises of the Australian
Consumer Law. Item 2 of Schedule 5 to the Trade Practices Amendment
(Australian Consumer Law) Act (No. 2) 2010 of the Commonwealth renames
the Trade Practices Act 1974 the Competition and Consumer Act 2010.
Copies of the Trade Practices Amendment (Australian Consumer Law) Act
(No. 1) 2010 and the Trade Practices Amendment (Australian Consumer
Law) Act (No. 2) 2010 of the Commonwealth and the related Explanatory
Memoranda are publicly available at www.comlaw.gov.au.
The Bill repeals certain provisions and Parts of the Fair Trading Act 1999 to
make way for the commencement of similar provisions under the Australian
Consumer Law.
The Bill amends the Fair Trading Act 1999--
· to ensure that certain provisions relating to the enforcement
and administration of the Fair Trading Act 1999, apply for the
purposes of the Australian Consumer Law;
· to specify that certain provisions relating to the enforcement
and administration of the Fair Trading Act 1999, do not apply
for the purposes of the Australian Consumer Law; and
· to improve some remaining provisions to reflect best practice
and to attempt to harmonise Fair Trading Act 1999 provisions
with similar provisions in other State or Territory consumer
protection legislation.
The Bill includes transitional provisions and makes necessary consequential
amendments to other Victorian legislation.
Clause Notes
Clause 1 describes the purpose of the proposed Act.
Clause 2 provides that the Bill comes into operation on 1 January 2011.
The commencement of this Bill on 1 January 2011 coincides
with the commencement of the Australian Consumer Law.
Under section 2 of the Trade Practices Amendment
(Australian Consumer Law) Act (No. 2) 2010 of the
Commonwealth, the Australian Consumer Law (being
Schedule 2 to the Competition and Consumer Act 2010 of the
Commonwealth) will commence on 1 January 2011.
Clause 3 provides that, in the proposed Act, the Fair Trading Act 1999 is
called the Principal Act.
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Clause 4 amends section 1 of the Fair Trading Act 1999, which describes
the purpose of that Act.
Clause 4(a) repeals paragraphs (ba), (bb), (c) and (d) of section 1
of the Fair Trading Act 1999. The repealed paragraphs relate to
matters that will no longer be directly regulated by provisions of
the Fair Trading Act 1999, but will instead be dealt with by
provisions of the Australian Consumer Law as it applies as a law
of Victoria. The repeals reflect that the Fair Trading Act 1999
will no longer directly provide for statutory conditions and
warranties in consumer contracts, the regulation of unfair terms
in consumer contracts, the safety of goods or services and related
information standards, the regulation of off-business premises
sales and lay-by sales. As a consequence of the Bill, these
matters will instead be regulated directly by the Australian
Consumer Law, which will be applied as a law of Victoria under
the Fair Trading Act 1999.
Clause 5 repeals certain definitions from section 3 of the Fair Trading
Act 1999. The repealed definitions are either redundant as a
result of the Australian Consumer Law, or are defined within the
Australian Consumer Law.
Clause 5 inserts a proposed section 3(2) in the Fair Trading
Act 1999, confirming that unless the contrary intention appears,
expressions used in the Fair Trading Act 1999 have the same
meaning as they have in the Australian Consumer Law.
Section 2 of the Australian Consumer Law defines a number of
those expressions which will no longer be defined in section 3 of
the Fair Trading Act 1999 as a result of clause 5(1) of the Bill.
Clause 6 repeals section 4 of the Fair Trading Act 1999, dealing with
representations as to future matters. This section is being
repealed as it will be superseded by section 4 of the Australian
Consumer Law, which deals with the same topic.
Clause 7 amends section 5 of the Fair Trading Act 1999 dealing with the
application of the Act to the Crown. The amendment provides
that section 5 is subject to proposed section 20 of the Act, which
provides specifically for the application of the Australian
Consumer Law to the Crown.
Clause 8 inserts a new section 6(3) into the Fair Trading Act 1999
clarifying the extraterritorial application of the Fair Trading
Act 1999. The proposed provision ensures that investigative,
compliance and enforcement activities under the Australian
Consumer Law and the Fair Trading Act 1999 can be pursued
in Victoria when there is an appropriate connection with Victoria.
It provides that the Fair Trading Act 1999 applies to the
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engaging in conduct in Victoria by persons outside of Victoria,
the engaging in conduct outside of Victoria by persons in
Victoria, a supply of goods or services where the contract is
made in Victoria, and to a supply of goods or services to a person
normally resident in Victoria or a body corporate whose principal
place of business is in Victoria where the contract is made
outside Victoria.
Clause 9 substitutes Part 2 of the Fair Trading Act 1999, dealing with
unfair practices, with a new Part 2 that provides for the
application of the Australian Consumer Law in Victoria.
Unfair practice provisions from the Fair Trading Act 1999 are
superseded by the provisions of the Australian Consumer Law.
Chapter 2 of the Australian Consumer Law contains provisions
relating to misleading or deceptive conduct and unconscionable
conduct, and Part 3-1 of Chapter 3 regulates unfair practices.
Chapter 3, 4 and 5 of the Explanatory Memorandum for the
Trade Practices Amendment (Australian Consumer Law) Act
(No. 2) 2010 of the Commonwealth further describes the
intention of the general protections contained in Chapter 2 of the
Australian Consumer Law. Chapter 6 of that Explanatory
Memorandum further describes the intention of Part 3-1 of
Chapter 3, dealing with specific protections and unfair practices.
The substituted Part 2 provides for the application of the
Australian Consumer Law as a law of Victoria and related
matters.
Proposed Division 1 of Part 2 contains definitions for the
purposes of the new Part 2.
Proposed Division 2 of Part 2 applies the Australian Consumer
Law as a law of Victoria. Proposed section 8 provides that the
Australian Consumer Law comprises of Schedule 2 to the
Competition and Consumer Act 2010 of the Commonwealth
and regulations made under section 139G of that Act.
Proposed section 9 provides that the Australian Consumer Law,
as in force from time to time applies as a law of Victoria and may
be referred to as the Australian Consumer Law (Victoria).
Proposed section 9(3) provides that the Australian Consumer
Law, as applying in Victoria, is a part of the Fair Trading Act
1999. This provision ensures that administration and
enforcement powers in the Fair Trading Act 1999 which are
expressed to apply in relation to "this Act" or contraventions of
"this Act" apply and may be utilised for the purposes of the
Australian Consumer Law unless otherwise provided.
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The Australian Consumer Law, like the Fair Trading Act 1999,
includes offence provisions. The Australian Consumer Law
offence provisions are contained in Chapter 4 of the Australian
Consumer Law. The maximum penalty levels under the
Australian Consumer Law are higher than those for similar
offences under the Fair Trading Act 1999. The new maximum
penalty levels generally reflect the higher penalty levels that have
been available under the Trade Practices Act 1974 of the
Commonwealth for serious breaches.
Chapters 13, 14 and 15 of the Explanatory Memorandum for the
Trade Practices Amendment (Australian Consumer Law) Act
(No. 2) 2010 of the Commonwealth further describe the intended
operation of the Australian Consumer Law offence provisions.
Chapter 14 describes the relationship between the proposed
uniform national offence provisions of the Australian Consumer
Law and recommendations contained in the Productivity
Commission's 2008 Review of Australia's Consumer Policy
Framework. The Explanatory Memorandum to the Trade
Practices Amendment (Australian Consumer Law) Act (No. 2)
2010 of the Commonwealth noted the Productivity Commission's
observation that some enforcement tools have not been available
to all regulators and that this can restrict their ability to adopt
regulatory responses that are tailored to the severity of breaches
of the relevant laws.
The Australian Consumer Law offence provisions generally fall
into five categories--
· offences with a maximum pecuniary penalty of up to
$1000 (natural persons) or $5000 (bodies corporate).
This category applies to multiple pricing (sections 44(2)
and 165(1) of the Australian Consumer Law);
· offences with a maximum pecuniary penalty of up to
$3000 (natural persons) or $15 000 (bodies corporate).
This category applies to conduct including a failure to
give an itemised bill on request (section 101(3) of the
Australian Consumer Law);
· offences with a maximum pecuniary penalty of up to
$6000 (natural persons) or $30 000 (bodies corporate).
This category applies to conduct including that relating
to lay-by agreements (for example, an agreement that
requires a termination charge for the lay-by agreement,
section 97(2) and 189(1) of the Australian Consumer
Law);
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· offences with a maximum pecuniary penalty of up to
$10 000 (natural persons) or $50 000 (bodies corporate).
This category includes calling on a person in relation to
an unsolicited consumer agreement outside of permitted
hours (section 73(1) and 170(1) of the Australian
Consumer Law), failing to leave on request when
making an unsolicited call (sections 75(1) and 172(1) of
the Australian Consumer Law) and failing to advise a
consumer of the cooling off period (sections 76 and
173(1) of the Australian Consumer Law); and
· offences with a maximum pecuniary penalty of up to
$220 000 (natural persons) or $1 100 000 (bodies
corporate). This category is reserved for serious
offences related to supplying goods that are non-
compliant with a safety standard (sections 106(1) and
194(1) of the Australian Consumer Law), supplying
goods subject to an interim or permanent ban (sections
118(1) and 197(1) of the Australian Consumer Law),
bait advertising (sections 35(2) and 157(2) of the
Australian Consumer Law), unconscionable conduct
within the meaning of the unwritten law (section 20(1)
of the Australian Consumer Law), false or misleading
representations about goods or services (sections 29(1)
and 151(1) of the Australian Consumer Law) and
misleading conduct as to the nature of goods (sections
33(1) and 155(1) of the Australian Consumer Law).
Proposed section 10 allows the Governor in Council to declare
by Order that any future modification to the Australian
Consumer Law made by a Commonwealth law does not apply.
The declaration has effect only if published within 2 months of
the date of the modification. A subsequent Order may provide
that the declaration ceases to apply to the modification.
Proposed section 11(1) defines the term regulator for the
purposes of the Australian Consumer Law of Victoria to mean
the Director of Consumer Affairs Victoria. Proposed section
11(2) provides that, for the purposes of the application of
Australian Consumer Law of Victoria, the expression court has
the meaning given by proposed section 160E of the Fair
Trading Act 1999.
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To ensure consistent interpretation of the Australian Consumer
Law in each jurisdiction across Australia, proposed section 12
applies the Acts Interpretation Act 1901 of the Commonwealth as
a law of Victoria for the purposes of interpreting the Australian
Consumer Law in Victoria and disapplies the Interpretation of
Legislation Act 1984 for the purposes of the Australian
Consumer Law of Victoria and instruments made under that law.
Proposed section 13 confirms the extra-territorial application of
the Australian Consumer Law of Victoria. This section operates
concurrently with section 6 of the Fair Trading Act 1999, which
deals more specifically with the question of the extra-territorial
application of the Fair Trading Act 1999 and the Australian
Consumer Law of Victoria.
Proposed Division 3 of Part 2 deals with references to the
Australian Consumer Law. Proposed section 14 provides that
unless the contrary intention appears or the context otherwise
requires, a reference in any instrument to the Australian
Consumer Law is a reference to the Australian Consumer Law of
any participating jurisdiction. The expressions instrument and
participating jurisdiction are defined in proposed section 7.
Proposed section 15 provides for references to the Australian
Consumer Law of another jurisdiction.
Proposed Division 4 of Part 2 deals with the application of the
Australian Consumer Law to the Crown. Proposed section 16
confirms that Division 4 of Part 2 does not apply to the
Commonwealth.
Proposed section 17 provides that the application law of Victoria
(defined in proposed section 7) binds the Crown in right of
Victoria and of each other jurisdiction in so far as the Crown
carries on business either directly or by the authority of the
relevant jurisdiction.
Proposed section 18 provides that the application law of another
jurisdiction binds the Crown in right of Victoria in so far as the
Crown carries on business either directly or by the authority of
the Crown in the right of Victoria. Proposed section 18(2)
provides that if, because of Part 2, a provision of the law of
another jurisdiction binds the Crown in the right of Victoria, the
Crown in that right is subject to the law despite any prerogative
right or privilege.
Proposed section 19 provides that certain activities carried on by
the Crown are not to be regarded as carrying on a business for the
purposes of proposed sections 17 and 18.
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Proposed section 20(1) provides that nothing in the application
law of Victoria makes the Crown, in any capacity, liable to
a pecuniary penalty or to be prosecuted for an offence.
Proposed section 20(2) provides that nothing in the application
law of any participating jurisdiction makes the Crown in right
of Victoria liable to a pecuniary penalty or to be prosecuted for
an offence.
Proposed section 21 provides that authorities and officers of the
Commonwealth, who have certain powers under the Australian
Consumer Law, have those functions and powers with respect
to the Australian Consumer Law as it applies in Victoria.
It provides that those authorities and officers also have the power
to do all things necessary and convenient to be done in
connection with the performance of those functions and exercise
of those powers.
Proposed section 22 provides that where an act or omission is an
offence against the Australian Consumer Law as it applies in
Victoria, and is also an offence against the Australian Consumer
Law of another participating jurisdiction, an offender is not liable
to be punished for the offence under the Australian Consumer
Law of Victoria if the offender has been punished under the
Australian Consumer Law of another participating jurisdiction.
Similarly, if a person has been ordered to pay a pecuniary penalty
under the Australian Consumer Law of another participating
jurisdiction, the person is not liable to a pecuniary penalty under
the Australian Consumer Law of Victoria with respect to that
same conduct.
Clause 10 repeals sections 32B to 32F of the Fair Trading Act 1999.
Part 3-2 of the Australian Consumer Law includes a uniform
national law governing consumer guarantees which will
supersede these provisions of the Fair Trading Act 1999 and
other provisions of Part 2A of the Fair Trading Act 1999
identified below. Part 2A of the Fair Trading Act 1999 deals
with implied conditions and warranties in certain contracts of
supply. Part 3-2 of the Australian Consumer Law replaces
current provisions that imply conditions and warranties into
consumer contracts in Part V, Division 2 of the Trade Practices
Act 1974, as well as equivalent State and Territory laws,
including some provisions of Part 2A of the Fair Trading Act
1999 described here and below.
Chapter 7 of the Explanatory Memorandum for the Trade
Practices Amendment (Australian Consumer Law) Act (No. 2)
2010 of the Commonwealth further describes the intended
operation of Part 3-2 of the Australian Consumer Law.
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Clause 11 inserts a new section 32FA of the Fair Trading Act 1999 by
substituting a provision which makes the interaction with the
Goods Act 1958 and the interaction with the Australian
Consumer Law clear.
This clause provides that sections 17, 18, 19(a) and (b) 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.
The clause also provides that section 4(2) of the Goods Act 1958
is taken to apply in relation to this Part of the Fair Trading Act
1999 and Division 1 of Part 3-2 of the Australian Consumer Law
(Victoria) as if--
· the reference to Part were a reference to Part 3-2 of the
Australian Consumer Law (Victoria); and
· the reference to contracts for the sale of goods included
a reference to contracts of supply of goods.
This clause also provides that a reference in Part I of the Goods
Act 1958 to a condition includes a reference to a guarantee
within the meaning of Division 1 of Part 3-2 of the Australian
Consumer Law (Victoria).
The clause provides that, 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 to a
contract of supply of goods or services of the Goods Act 1958 or
any other Act or law.
Clause 12 repeals sections 32G to 32MA of the Fair Trading Act 1999, for
the reasons identified at clause 10.
Clause 13 amends section 32N of the Fair Trading Act 1999 to provide
that a term of a contract which operates to limit liability in
relation to the supply of recreational services in the ways
described is not void by virtue of the commencement of the
Australian Consumer Law.
This clause substitutes a new section 32N(1) of the Fair Trading
Act 1999, providing that, subject to section 32N(2), a term of a
contract of supply of recreational services is not void under
section 64 of the Australian Consumer Law (Victoria) by reason
only that the term excludes, restricts or modifies, or has the effect
of excluding, restricting or modifying--
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· the application of any or all of the provisions of
Subdivision B of Division 1 of 1 of Part 3-2 of the
Australian Consumer Law (Victoria) to the supply of
the recreational services under the contract; or
· the exercise of a right conferred by such a provision in
relation to the supply of the recreational services under
the contract; or
· any liability of the supplier for a failure to comply with
a guarantee under the Subdivision in relation to the
supply of the recreational services under the contract.
This clause also amends sections 32N(3)(a) of the Fair Trading
Act 1999 in the following ways, to update the operation of the
provisions in light of amendments to Part 2A of the Fair
Trading Act 1999--
· in sections 32N(3)(a)((ii) and (ii), replacing the words
"section 32J or 32JA" with "all or any of the provisions
in Subdivision B or Division 1 of Part 3-2 of the
Australian Consumer Law (Victoria)"; and
· in section 32N(3)(a)(iii), removing the reference to
section 32J or 32JA and substituting "constitute a failure
to comply with a guarantee that applies under
Subdivision B of Division 1 of Part 3-2 of the
Australian Consumer Law (Victoria), and".
Clause 14 repeals sections 32NB and 32O of the Fair Trading Act 1999.
Part 3-2 of the Australian Consumer Law includes a uniform
national law governing consumer guarantees which will replace
these provisions of the Fair Trading Act 1999 and similar
provisions in other Commonwealth, State and Territory laws, as
explained above at clause 10.
Clause 15 amends section 32PA of the Fair Trading Act 1999 to make it
clear that section 32PA does not apply to a rejection (discharge or
rescission) of a contract of supply of goods under the provisions
of the Australian Consumer Law (Victoria).
Clause 16 repeals section 32S of the Fair Trading Act 1999 as for the
same reasons set out at clause 10.
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Clause 17 repeals Part 2B of the Fair Trading Act 1999. Part 2B governs
unfair terms in consumer contracts. Taking up the
recommendations made by the Productivity Commission in its
2008 Review of Australia's Consumer Policy Framework,
Part 2-3 of the Australian Consumer Law includes laws
governing unfair contract terms. These laws replace Part 2B of
the Fair Trading Act 1999. Chapter 5 of the Explanatory
Memorandum for the Trade Practices Amendment (Australian
Consumer Law) Act (No. 2) 2010 of the Commonwealth further
describes the intended operation of the uniform unfair contract
terms provisions contained in Part 2-3 of the Australian
Consumer Law.
A Bill to amend the Fair Trading Act 1999, making Part 2B not
inconsistent with the Australian Consumer Law's unfair contact
terms provisions which commenced on 1 July 2010, received
Royal Assent on 1 June 2010. Clause 12 of this Bill completes
the transition to the Australian Consumer Law unfair contract
terms regime. This Bill provides transitional provisions in
relation to Part 2B of the Fair Trading Act 1999.
Clause 18 repeals Parts 3, 4 and 5 of the Fair Trading Act 1999.
Part 3 of the Fair Trading Act 1999 deals with safety and
information requirements in relation to goods and services,
including provisions about safety standards, information
standards, recall of goods, application for review and warning
notices. Part 3 is being replaced by Part 3-3 and 3-4 of the
Australian Consumer Law, which govern safety of consumer
goods and product related services, and information standards
respectively. These provisions interact with relevant offence
provisions in Chapter 4 of the Australian Consumer Law, and
enforcement and remedies provisions in Chapter 5 of the
Australian Consumer Law. This Bill preserves the administrative
procedure governing application for review of a ban order or
compulsory recall notice in section 57 of the Fair Trading Act
1999. The relevant provision is found in clause 40 of this Bill.
Chapters 10, 11, 12 and 19 of the Explanatory Memorandum for
the Trade Practices Amendment (Australian Consumer Law) Act
(No. 2) 2010 further describe the intended operation of the
national product safety laws contained in Part 3-3 and 3-4 of the
Australian Consumer Law.
Part 4 of the Fair Trading Act 1999 deals with off-business-
premises sales and other sales (including contact sales
agreements, telephone marketing agreements and non-contact
sales agreements). Part 4 is being replaced by the specific
protections contained in Division 2 of Part 3-2 of the Australian
Consumer Law which deals with unsolicited consumer
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agreements. Chapter 8 of the Explanatory Memorandum for the
Trade Practices Amendment (Australian Consumer Law) Act
(No. 2) 2010 of the Commonwealth further describes the
intended operation of the uniform laws governing unsolicited
selling contained in Part 3-2 of the Australian Consumer Law.
Part 5 of the Fair Trading Act 1999 deals with lay-by sales, and
is being replaced by the provisions contained in Division 3 of
Part 3-2 of the Australian Consumer Law which deals with
lay-by agreements. Chapter 9 of the Explanatory Memorandum
for the Trade Practices Amendment (Australian Consumer Law)
Act (No. 2) 2010 of the Commonwealth further describes the
intended operation of the uniform lay-by sales laws contained in
Division 3 of Part 3-2 of the Australian Consumer Law.
Clause 19 inserts a new Division heading into Part 7 of the Fair Trading
Act 1999, to distinguish the general provisions currently
contained in Part 7 of the Fair Trading Act 1999 from the
provisions in a new Division 2 of Part 7.
Clause 20 inserts a new Division 2 into Part 7 of the Fair Trading Act 1999.
The proposed Division 2 deals with the Victorian Consumer Law
Fund. The Fund is a trust fund into which amounts of pecuniary
penalties payable pursuant to an order made by a court may be
paid, in certain circumstances. Monies may be drawn from the
Fund in certain circumstances, including for the purpose of
making of grants to non-profit organisations or to the Director for
the purposes of improving consumer well-being and for other
purposes.
The new Division 2 comprises of the following new sections:
section 102A (Definition), section 102B (Victorian Consumer
Law Fund), section 102C (Orders for payment to non-party
consumers), section 102D (Special purpose grants) and
section 102E (Administration expenses). These provisions
interact with sections 224 and 239(1) of the Australian Consumer
Law (Victoria), which respectively provide for the ordering of
pecuniary penalties and orders to redress loss or damage suffered
by non-party consumers.
The proposed section 102A deals with the definitions relevant to
the new Division 2, and defines the expression the Fund as
meaning the Victorian Consumer Law Fund referred to in
section 102B(1), and the expression non-party order as meaning
an order referred to in section 102C(1).
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The proposed section 102B(1) provides that the Trust Fund is
established under the Financial Management Act 1994, and that
in the Trust Fund there must be kept a trust account to be known
as the Victorian Consumer Law Fund. Section 102B(2) provides
that certain amounts and monies must be paid into the Fund.
These include--
· any pecuniary penalty ordered by a court under
section 224 of the Australian Consumer Law to be
paid to the State;
· any amount ordered by a court under section 239(1) of
the Australian Consumer Law to be paid into the Fund;
· money appropriated by the Parliament for the purposes
of the Fund;
· interest received on money invested in the Fund.
The proposed section 102B(3) provides that money must not be
paid out of the Fund except in accordance with Part 7 of the Fair
Trading Act 1999.
The proposed section 102B(4) provides that the Treasurer may
invest money in the Fund in such matters as the Treasurer
determines.
The proposed section 102C deals with orders for payment to non-
party consumers. Section 102C(1) provides that section 102C
applies if, on the application of the Director of Consumer Affairs,
a court makes an order (a non-party order) under section 239(1)
of the Australian Consumer Law for an amount or amounts to be
paid into the Fund to provide for the payment of money to non-
party consumers. Section 102C only applies to payments to non-
party consumers where the related application has been made by
the Regulator (the Director of Consumer Affairs Victoria).
In relation to applications made by a party other than the
Director, it is intended that the relevant defendant would
generally be responsible for making payments to non-party
consumers who have been identified or are easily identifiable.
The proposed section 102C(2) provides that orders for payment
to non-party consumers must--
· require a notice to be given to non-party consumers to
the extent that is practicable and in the manner specified
in the order;
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· specify the manner in which a non-party consumer may
make a claim for payment from the Fund;
· specify the criteria that must be satisfied before a
payment is made from the Fund to a non-party
consumer;
· specify the day by which a non-party consumer may
make a claim for payment from the Fund;
· specify the final day (being a day not more than 3 years
from the day money is paid into the Fund under the
order) on which a payment from the Fund may be made
to a non-party consumer;
· specify the treatment of any monies remaining on the
final payment day from amount paid into the Fund
pursuant to the order, and the interest earned on those
amounts. This may include the return of some or all of
the remaining monies to the defendant; making some or
all of the remaining monies available for the purposes of
sections 102D and 102E of the Fair Trading Act 1999;
or any other treatment that the court considers
appropriate.
The proposed section 102C(3) provides that the court may
specify that any amount paid into the Fund pursuant to the order
may be applied to the costs of disbursing payments to non-party
consumers made pursuant to the order.
The proposed section 102C(4) provides that the Director of
Consumer Affairs is responsible for the distribution of money
from the Fund to non-party consumers pursuant to a non-party
order.
The proposed section 102C(5) provides that the distribution of
money from the Fund to non-party consumers must be made in
accordance with the non-party order and may only be made from
the amount or amounts paid into the Fund pursuant to the order.
The proposed section 102D deals with special purpose grants and
provides that the Minister may, on the recommendation of the
Director of Consumer Affairs, make payment out of the Fund for
specified purposes. The proposed section 102D(1) provides that
the Minister may, on the recommendation of the Director of
Consumer Affairs, make payments out of the Fund for the
purposes of--
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· improving consumer well-being, consumer protection or
fair trading; or
· any other purpose consistent with the objects of the
Australian Consumer Law (Victoria).
The proposed section 102D(2) provides that a payment under
subsection (1) may be made to the Director or to a non-profit
organisation.
The proposed section 102D(3) provides that a payment under
subsection (1) may only be made from money paid into the Fund
in the following circumstances--
· civil penalties paid into the Fund under the Australian
Consumer Law, and the interest earned on those
payments;
· money appropriated by the Parliament for the for the
fund and the interest earned on that money;
· any money paid into the Fund pursuant to a non-party
order remaining on the final payment day that the order
has specified may be applied for the purposes of this
section.
Finally, the proposed section 102E deals with the
administration expenses of the Victorian Consumer Law Fund.
Proposed section 102E(1) provides that the Director of Consumer
Affairs may approve payment from the Fund for any reasonable
expenses incurred in administering the Fund. The proposed
section 102E(2) provides that a payment under subsection (1)
may only be made from the following money--
· pecuniary penalties paid into the Fund under the
Australian Consumer Law, and the interest earned on
those payments;
· money appropriated by the Parliament for the Fund and
the interest earned on that money;
· any money paid into the Fund pursuant to a non-party
order that the order specifies may be applied to the cost
of disbursing payments to non-party consumers, or any
money paid into the Fund pursuant to a non-party order
remaining on the final payment day and that the order
has specified may be applied for the purposes of this
section.
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Interaction with the Australian Consumer Law
The proposed Division 2 of Part 7 of the Fair Trading Act 1999
interacts with a number of provisions of the Australian Consumer
Law. The relevant Australian Consumer Law provisions
establish mechanisms for non-party consumer remedies.
Section 2 of the Australian Consumer Law defines the
expression non-party consumers as meaning--
· in relation to conduct referred to in section 239(1)(a)(i)
of the Australian Consumer Law--a person who is not,
or has not been, a party to an enforcement proceeding in
relation to the conduct; and
· in relation to a term of a consumer contract referred to
in section 239(1)(a)(ii) of the Australian Consumer
Law--a person who is not, or has not been, a party to an
enforcement proceeding in relation to the term.
The proposed Division 2 of Part 7 of the Fair Trading Act 1999
also interacts with section 224 of the Australian Consumer Law,
which relevantly deals with the circumstances in which a court
may order a person to pay a pecuniary penalty to the State of
Victoria. There is also an interaction with section 239(1) of the
Australian Consumer Law which deals with the circumstances in
which orders to redress loss or damage suffered by non-party
consumers may be made. Section 239(3) of the Australian
Consumer Law provides that the order must be an order that the
court considers will redress, prevent or reduce loss or damage in
described ways.
Clause 21 inserts a note at the foot of section 105 of the Fair Trading Act
1999, making it clear that section 105 of the Fair Trading Act
1999, which deals with the powers of the Director in relation to
proceedings on behalf of consumers, is not intended to displace
or limit the procedures for applications under section 149 or 277
of the Australian Consumer Law (Victoria).
Clause 22 inserts new sections 106AA and 106AB into the Fair Trading
Act 1999. These provisions deal with grants of legal assistance
in relation to consumer disputes, which are not currently
provided for in the Fair Trading Act 1999. The proposed section
106AA and 106AB are intended to achieve greater alignment
with similar schemes operating in other Australian jurisdictions,
including the provisions of Fair Trading Act 1987 of New South
Wales, which deal with grants of legal assistance.
16
The proposed section 106AA provides that the Director of
Consumer Affairs may grant legal assistance for a person who
claims to be involved in a consumer dispute, in certain
circumstances. This provision interacts with section 105 of the
Fair Trading Act 1999, but is distinct from section 105 in that it
deals with grants of legal assistance, rather than powers of the
Director of Consumer Affairs to institute or continue proceedings
on behalf of, or defend proceedings brought against, a person or
persons in respect of a consumer dispute.
Proposed section 106AA(1) provides that the Director of
Consumer Affairs may grant legal assistance to a person who
claims to be involved in a consumer dispute if--
· the person wishes to bring legal proceedings (other than
criminal proceedings) arising out of the supply to the
person of goods or services or the disposal to the person
of an interest in land; or
· wishes to make an appeal or seek judicial review in
relation to legal proceedings of a kind referred to in
subsection (a); or
· is a party to legal proceedings or proceedings relating to
an appeal or review referred to in subsection (a) or (b).
Proposed section 106AA(2) provides that, for the purposes of
granting legal assistance to a person who claims to be involved in
a consumer dispute pursuant to subsection (1), the Director--
· pursuant to section 106AA(2)(a), must be satisfied that
the person has reasonable grounds for bringing, or being
a party to, the proceedings; and
· pursuant to section 106AA(2)(b), must be of the opinion
that it is desirable, in the general interests of consumers
or of any class of consumers, that assistance should be
granted; and
· pursuant to section 106A(2)(c), must obtain the written
approval of the Minister to grant the assistance.
Proposed section 106AA(3) provides that, despite subsections (1)
and (2), the Director of Consumer Affairs may decide not to
grant assistance if the Director is of the opinion that it should not
be granted because of the person's financial position.
17
Proposed section 106AA(4) provides that, if the Director decides
to grant legal assistance under subsection (1)--
· pursuant to section 106AA(4)(a), the Director must
notify the person to whom the assistance is bring
granted; and
· pursuant to section 106AA(4)(b), the person must not,
without the consent of the Director, withdraw from the
proceedings or discharge any Australian legal
practitioner acting in the proceedings.
Proposed section 106AA(5) provides that legal assistance granted
under section 106A does not extend to expenses other than the
costs of legal representation; and prescribed expenses.
Section 106AA(6) provides that expenses incurred in the
provision of assistance under section 106A and court fees must
be met out of money from the Consolidated Fund, which is, to
the necessary extent, appropriated accordingly.
Section 106AA(7) defines the expression consumer dispute as
having the same meaning as it has in section 105 of the Fair
Trading Act 1999.
Proposed section 106AB deals with costs and expenses relating
to proceedings to which an assisted person is a party.
Section 106AB(1) provides that, if a person is granted assistance
under section 106AA, the court must, in making an order for
costs--
· when the order for costs is made in favour of the
assisted person--make the same order (except against
another assisted person) as the court would have made
in favour of the assisted person if the person had not
been an assisted; or
· when the order for costs is made against the assisted
person--make the same order (except in favour of
another assisted person) as the court would have made
against the assisted person if the person had not been an
assisted person.
Section 106AB(2) sets out the process for dealing with costs
ordered by the court, and provides that, if an order for costs is
made under section 106AB(1)(a)--
18
· the costs are payable to the Director of Consumer
Affairs instead of the person in whose favour the order
is made;
· the costs may be recovered by the Director as a debt due
to the Crown;
· the costs, upon being paid to or recovered by the
Director, must be paid into the Consolidated Fund.
Section 106AB(3) provides that, if an order for costs is made
under section 106AB(1)(b), the costs must be paid by the
Director; and section 106AB(4) provides that, except in the case
of costs payable to the Director, money awarded by a court in
favour of an assisted person is payable to the person without
deduction.
Clause 23 repeals section 106A of the Fair Trading Act 1999, which deals
with substantiation of claims. The power to require a person who
publishes certain statements or notices in certain circumstances to
produce proof of the claim or representation made in the
statement is being replaced by Division 2 of Part 5-1 of the
Australian Consumer Law, which gives the regulator the power
to require that claims be substantiated in described
circumstances. Chapter 14 of the Explanatory Memorandum for
the Trade Practices Amendment (Australian Consumer Law) Act
(No. 2) 2010 of the Commonwealth further describes the
intended operation of the uniform substantiation notices laws
contained in Division 2 of Part 5-1 of the Australian Consumer
Law.
Clause 24 inserts a new section 106P of the Fair Trading Act 1999 to
support the administration of national consumer laws, and deals
with the circumstances in which information may be shared in
described circumstances.
Proposed section 106P(1) provides that the Director may enter
into, or approve of, an arrangement (an information sharing
arrangement) with a relevant agency for the purposes of sharing
or exchanging information held by the Director and the relevant
agency.
Proposed section 106P(2) provides that information to which an
information sharing arrangement may relate is limited to the
following--
· information concerning investigations, law enforcement,
assessment of complaints, licensing or disciplinary
matters;
19
· probity assessments and reference checks concerning
persons who provide, or propose to provide, goods or
services to consumers;
· any other information affecting the interests of
consumers;
· any other information of a prescribed kind.
Proposed section 106P(3) provides that, under an information
sharing arrangement, the Director and the relevant agency are
authorised--
· to request and receive information held by the other
party to the arrangement; and
· to disclose information to the other party--
but only to the extent that the information is reasonably necessary
to assist in the exercise of functions under this Act or a Consumer
Act or the functions of the relevant agency concerned.
Proposed section 106P(4) provides that, without limiting section
106P(3), the Director may also (whether as part of an information
sharing arrangement or otherwise)--
· refer any matter (including any complaint) with respect
to fair trading, or that affects the interests of consumers,
to a fair trading agency or law enforcement agency;
· receive any matter of a type described in
section 106P(4)(a) from a fair trading agency or law
enforcement agency;
· conduct a joint investigation into any such matter with a
fair trading agency or law enforcement agency.
Proposed section 106P(5) provides that any fair trading agency or
law enforcement agency referred to in subsection (4) is, despite
any other Act or law of the State, authorised to refer a matter
referred to in section 106P(4) to the Director or to conduct an
investigation into the matter jointly with the Director.
Proposed section 106P(6) provides that section 106P does not
limit the following--
· the powers of the Director under this Part; or
· the operation of any other Act under which a relevant
agency is authorised or required to disclose information
to another person or body; or
20
· to the extent reasonably required to enable the
investigation or the enforcement of a law of this State or
of any other State or Territory or of the Commonwealth;
or
· to the Business Licensing Authority established under
the Business Licensing Authority Act 1998; or
· with the written authority of the Secretary; or
· with the written authority of the person to whom the
information relates.
Section 106P(7) defines the expressions fair trading agency, law
enforcement agency and relevant agency for the purposes of
section 106P.
Clause 25 deals with the appointment of inspectors for the purposes of
carrying out inspection powers under Part 10 of the Fair
Trading Act 1999. This clause amends section 114(4) of the
Fair Trading Act 1999, providing that, in section 144, the
expression interstate Act means an Act of another State or
Territory that is prescribed for the purposes of this subsection.
This provision is necessary to deal with interstate Act name
changes that will occur as a consequence of implementing the
Australian Consumer Law across the jurisdictions.
Clause 26 repeals section 118(1A) of the Fair Trading Act 1999 as a
consequence of repealing Part 4 of the Fair Trading Act 1999.
Clause 27 amends section 121(1) of the Fair Trading Act 1999 which deals
with emergency entry. This clause amends section 121(1) to
update references to product safety orders, reflecting that fixed
term ban orders will not form part of the national product safety
provisions under the Australian Consumer Law.
Clause 28 amends section 126B of the Fair Trading Act 1999 which
deals with monitoring compliance with embargo notices under
section 126 of the Fair Trading Act 1999. Embargo notices do
not form part of the Australian Consumer Law. This clause
interacts with Part 3-3 of the Australian Consumer Law, and
amends section 126B by updating references to reflect the new
product safety provisions of the Australian Consumer Law and
related terminology.
Clause 29 amends section 129A(1) of the Fair Trading Act 1999.
Section 129A(1) deals with the circumstances in which a court
may order the destruction of dangerous goods. The Australian
Consumer Law does not include an equivalent provision.
21
This clause interacts with Part 3-3 of the Australian Consumer
Law, and amends section 129A(1) by updating references to
reflect the new product safety provisions of the Australian
Consumer Law and related terminology.
Clause 30 amends section 147 of the Fair Trading Act 1999, which deals
with the requirement of the Director to give a copy of an
undertaking under section 146 to the person who made the
undertaking. This clause interacts with section 218 of the
Australian Consumer Law, and amends section 147 of the Fair
Trading Act 1999 by making it clear that the requirements in
section 147 also applies to undertakings under section 218 of the
Australian Consumer Law (Victoria).
Clause 31 amends section 148(3) of the Fair Trading Act 1999, which
deals with the register of undertakings that the Director is
required to maintain. This clause interacts with section 218 of
the Australian Consumer Law, and amends section 148(3) to
make it clear that the requirements in section 148(3) of the Fair
Trading Act 1999 also apply to an undertaking made under
section 218 of the Australian Consumer Law (Victoria).
Clause 32 amends section 152(1) and 151(2) of the Fair Trading Act 1999
which deal with the circumstances in which a court must accept
an undertaking by the Minister or the Director and must not
require a further undertaking from any other person. This clause
interacts with section 232 of the Australian Consumer Law.
Clause 32(1) amends section 152(1) of the Fair Trading Act
1999 by providing that section 152(1) also applies to section 232
of the Australian Consumer Law (Victoria).
Clause 32(2) amends section 152(2) of the Fair Trading Act
1999 by providing that section 152(1) also applies to section 232
of the Australian Consumer Law (Victoria).
Clause 33 amends section 153(1) of the Fair Trading Act 1999, which
deals with non-punitive orders--corrective advertising orders.
This clause amends section 153(1) by updating references to the
Parts of the Fair Trading Act 1999 which this Bill proposes to
amend, removing references to Parts 2, 2B, 3, 4 and 5 of the Fair
Trading Act 1999.
Clause 34 amends section 154(8) of the Fair Trading Act 1999.
This clause interacts with the following provisions of the
Australian Consumer Law (Victoria): Chapters 2, 3 and 4, and
sections 232, 236, 237, 238, 239 and 250. The Australian
Consumer Law does not include a directly equivalent provision
to section 154 of the Fair Trading Act 1999. This clause
22
therefore amends section 154(8) of the Fair Trading Act 1999
by defining the expression prescribed proceedings with reference
to updated provisions of the Fair Trading Act 1999, including
provisions of the Australian Consumer Law (Victoria).
Clause 35 amends section 155 of the Fair Trading Act 1999, which deals
with circumstances in which a defence is established in relation
to a prosecution under the Fair Trading Act 1999 in relation to a
contravention of prescribed provisions. Clause 35(a) amends
section 155(4) of the Fair Trading Act 1999 by removing the
reference to section 27 of the Fair Trading Act 1999 which is
to be repealed as a result of this Bill repealing Part 2 of the Fair
Trading Act 1999. Clause 35(b) amends section 155(5) of the
Fair Trading Act 1999 by removing the reference to
section 32ZB(5) which is to be repealed as a result of this Bill
repealing Part 2A of the Fair Trading Act 1999.
Clause 36 amends section 157 of the Fair Trading Act 1999, which deals
with circumstances in which facts and findings in certain
proceedings are evidence of a contravention of certain
proceedings. This clause interacts with the following provisions
of the Australian Consumer Law (Victoria): sections 228, 232,
233, 234, 236, 237, 238, 239, 246, 247 and 248, and provisions
of Chapter 4. This clause substitutes section 157 in order to
provide that an equivalent provision applies to relevant sections
of the Fair Trading Act 1999, including relevant and equivalent
provisions of the Australian Consumer Law (Victoria), by
updating provision references.
Clause 37 amends section 158(1)(a) of the Fair Trading Act 1999, which
deals with orders against persons found to have contravened the
Fair Trading Act 1999. This clause amends section 158(1) of
the Fair Trading Act 1999 by omitting the reference to Part 2 of
the Fair Trading Act 1999, dealing with unfair practices, which
is to be repealed by this Bill.
Clause 38 amends section 160A(1) of the Fair Trading Act 1999,
which deals with the power to serve an infringement notice.
The Australian Consumer Law does not include a provision for
the issue of infringement notices under the Australian Consumer
Law as it applies as a law of Victoria. This clause amends
section 160A(1) of the Fair Trading Act 1999 to provide that
section 106A applies to prescribed offences against the Fair
Trading Act (including a provision of the Australian Consumer
Law (Victoria)) or the regulations. The amendment allows for the
issue of infringement notices for prescribed offences against the
Australian Consumer Law (Victoria).
23
Clause 39 repeals section 160B of the Fair Trading Act 1999 as a matter
of statute law revision. The form of an infringement notice is
prescribed under section 13 of the Infringements Act 2006.
Clause 40 inserts new Divisions 4 and 5 into Part 11 of the Fair Trading
Act 1999.
The proposed Division 4 of Part 11 provides for the issuing of
interim bans, recall notices or safety warning notices under the
Australian Consumer Law in Victoria. Under sections 109, 122
and 129 of the Australian Consumer Law, the Victorian Minister
for Consumer Affairs may issue interim bans, recall notices or
safety warning notices. Proposed Division 4 of Part 11 sets out
the framework for the issuing of those bans or notices in Victoria.
Proposed sections 160B and 160C set out the processes for the
issuing, renewing, amending or revoking such bans or notices,
and sets out the notice requirements. Proposed section 160C
allows applications for the review of those notices to be brought
in the Victorian Civil and Administrative Tribunal (the Tribunal).
Proposed Division 5 of Part 11 deals with the enforcement of the
Australian Consumer Law (Victoria), and the jurisdiction of
courts and the Tribunal to deal with matters arising under the
Australian Consumer Law of Victoria.
Under proposed section 160E(1), a court is defined for the
purposes of the Australian Consumer Law to include the
Supreme Court, County Court, Magistrates' Court or the
Tribunal. Exceptions are--
· Under section 160E(2), the Tribunal is not treated as a
court for the purposes of applications to enforce
undertakings under sections 218, applications for
pecuniary penalties under section 224, applications for
non-punitive orders under section 246 and applications
for adverse publicity orders under section 247 of the
Australian Consumer Law.
· Under proposed section 160E(3)(a), the Tribunal may
not order injunctions under section 232 of the
Australian Consumer Law, except for the purposes of
section 232(3), where the injunction relates to the
conduct of a person applying or relying upon a term of a
consumer contract which has been declared an unfair
term under section 250 of the Australian Consumer
Law. This is consistent with the power of the Tribunal
under section 32ZA of the Fair Trading Act 1999,
which will be repealed.
24
· Under proposed section 160E(3)(b), only the Supreme
Court may make an injunction of the kind described in
section 232(5) of the Australian Consumer Law, being
an injunction restraining a person from carrying on a
business or supplying goods or services for a specified
period or except on specified terms and conditions.
· Under proposed section 160E(4), the Magistrates' Court
is not treated as a court for the purposes of section 250
of the Australian Consumer Law, which allows a court
to declare that a term of a consumer contract is an unfair
term.
Proposed section 160F confirms, for the avoidance of doubt,
that actions for damages under section 236 of the Australian
Consumer Law may be brought in the Tribunal or in any court
of competent jurisdiction.
Proposed section 160G provides that the power of the
Magistrates' Court to order a pecuniary penalty under section 224
of the Australian Consumer Law is not limited by the civil
jurisdiction limits for civil proceedings in the Magistrates' Court.
This ensures that a Magistrate may order pecuniary penalty
amounts of up to the maximum amounts specified in
section 224(3) of the Australian Consumer Law.
Proposed section 160H(1) confirms the powers of the Supreme
Court, County Court and Magistrates' Court to make orders
where it finds that a person has contravened a provision of the
Australian Consumer Law and that another person has
suffered loss or damage as a result of that contravention.
Proposed section 160H(2) provides that a court, including the
Supreme Court, County Court or Magistrates' Court, may make a
declaration that a provision of the Australian Consumer Law has
been breached. Proposed section 160H does not limit the orders
that a Court may make under the Australian Consumer Law.
Clause 41 repeals section 161 of the Fair Trading Act 1999, which
deals with the obligation of a supplier to give a purchaser or
prospective purchaser a document which complies with
section 163 of the Fair Trading Act 1999. Section 100 and 101
of the Australian Consumer Law (Victoria) deal with uniform
laws requiring a supplier to provide proof of transaction and
enabling a consumer to request an itemised bill. Chapter 6 of the
Explanatory Memorandum for the Trade Practices Amendment
(Australian Consumer Law) Act (No. 2) 2010 of the
Commonwealth further describes the intended operation of the
uniform laws dealing with proof of transaction and itemised bills
25
contained in Division 4 of Part 3-2 of the Australian Consumer
Law.
Clause 42 substitutes section 161A of the Fair Trading Act 1999, which
deals with the requirement of a supplier to comply with a request
for an itemised bill. Section 101 of the Australian Consumer
Law (Victoria) deals with requests for itemised bills. This clause
provides that section 101 of the Australian Consumer Law
(Victoria) does not apply to a contract for the provision of legal
services to which the Legal Profession Act 2004 applies, as the
latter Act provides for different time periods for compliance with
a request for an itemised bill. Further detail about the intended
operation of section 101 of the Australian Consumer Law
(Victoria) is provided at clause 41.
Clause 43 repeals sections 162 and 163 of the Fair Trading Act 1999.
Section 162 of the Fair Trading Act 1999 deals with a
requirement to offer to return a removed part to a consumer in
certain circumstances. This clause repeals section 162 as the
provision restates the common law, and was included in the best
practice Australian Consumer Law reforms. Section 163 of the
Fair Trading Act 1999 deals with a requirement to ensure that
consumer documents are clear. This clause repeals section 163
as an equivalent does not form part of the Australian Consumer
Law (Victoria), however aspects have been included in the
Australian Consumer Law (Victoria) at section 2, which defines
the expression "transparent", and section 24, which deals with the
term "transparent" in the context of unfair terms of consumer
contract.
Clause 44 inserts a new section 163B in the Fair Trading Act 1999.
This clause deals with current provisions of the Fair Trading
Act 1999 which are not intended to apply to the administration
or enforcement or other otherwise deal with the Australian
Consumer Law (Victoria). These provisions deal with the
interaction between provisions of the Australian Consumer
Law (Victoria) and the Fair Trading Act 1999. Proposed
section 163B provides that sections 145, 146, 149, 149A, 151A,
153, 153A, 155, 156, 158 and 159 of the Fair Trading Act 1999
will not apply in respect of the Australian Consumer Law
(Victoria). Sections of the Fair Trading Act 1999 not described
in the proposed section 163B will apply for the purposes of
administering and enforcing the Australian Consumer Law
(Victoria) by virtue of proposed section 9(3) of the new Part 2.
26
Clause 45 substitutes section 165(1) of the Fair Trading Act 1999 which
deals with the power to make regulations. This clause interacts
with section 73 of the Australian Consumer Law (Victoria),
which deals with permitted calling hours for negotiating an
unsolicited consumer agreement. Proposed section 165(1)(a)
provides that the Governor in Council make regulations for or
with respect to prescribing calling hours with respect of
unsolicited consumer agreements under section 73 of the
Australian Consumer Law (Victoria). Section 165(1)(a) of the
Fair Trading Act 1999 deals with prescribing safety and
information standards under Part 3. This Bill proposes to repeal
Part 3 of the Fair Trading Act 1999.
Clause 45(1) (b) repeals sections 165(1)(b) and 165(1)(ca) of the
Fair Trading Act 1999, as this Bill proposes to repeal Parts 5
and 4 of the Fair Trading Act 1999 which are currently referred
to in these sections.
Clause 45(2) inserts a new section 165(3) into the Fair Trading
Act 1999, providing that regulations made under proposed
section 165(1)(a) may alter the operation of section 73 of the
Australian Consumer Law (Victoria).
Clause 46 repeals Schedule 2 to the Fair Trading Act 1999, which deals
with contact sales agreements/telephone marketing agreements.
This clause repeals Schedule 2 as this Bill proposes to repeal the
provisions relating to contact sales agreements/telephone
marketing agreements in Part 4 of the Fair Trading Act 1999.
Clause 47 inserts savings and transitional provisions after clause 19 of
Schedule 3 to the Fair Trading Act 1999 to deal with the repeal
of Part 2B, the jurisdiction of the Tribunal and the Fair Trading
(Information Standard) (Australian Builders Plate Standard)
Regulations 2009.
This clause inserts a transitional provision in relation to the
proposed repeal of Part 2B of the Fair Trading Act 1999.
Part 2B deals with unfair terms in consumer contracts.
Proposed clause 19A of Schedule 3 of the Fair Trading Act
1999 provides for the transition to new unfair contract terms laws
under the Australian Consumer Law (Victoria). It provides--
· Part 2-3 of the Australian Consumer Law (Victoria)
applies to any new contract entered into on or after
1 January 2011;
27
· subject to clause 19A(3), Part 2B of the Fair Trading
Act 1999 as in force immediately before its repeal
continues to apply to any contract entered into before
1 January 2011;
· in relation to renewed or varied terms of contracts--
· if a contract entered into before 1 January 2011
is renewed on or after 1 January 2011, Part 2-3
of the Australian Consumer Law (Victoria)
applies to the contract as renewed, on an from
the day (the renewal day) on which the renewal
takes effect, in relation to conduct that occurs on
or after the renewal day; or
· if a contract is entered into before 1 January
2011 and is varied on or after 1 January 2011
(and clause 19A(3)(a) has not already applied in
relation to the contract), Part 2-3 of the
Australian Consumer Law (Victoria) applies to
the term as varied, on and from the day (the
variation day) on which the variation takes
effect, in relation to conduct that occurs on or
after the variation day;
· if proposed clause 19A(3)(b) applies to a term of the
contract, sections 23(2) and 27(1) of the Australian
Consumer Law (Victoria) apply to the contract.
Section 23(2) of the Australian Consumer Law
(Victoria) provides that a contract continues to bind the
parties if it is capable of operating without the unfair
term. Section 27(1) of the Australian Consumer Law
(Victoria) provides that if a party to a proceeding
alleges that a contract is a standard form contract, it is
presumed to be a standard form contract unless another
party to the proceeding proves otherwise.
This clause also inserts clause 19B into Schedule 3 to the Fair
Trading Act 1999. Proposed clause 19B deals with transitional
arrangements for the jurisdiction of the Victorian Civil and
Administrative Tribunal. Proposed clause 19B provides, despite
the amendments to the Fair Trading Act 1999 by the Bill, the
Tribunal continues to have jurisdiction on and from 1 January
2011 in relation to any matter or conduct that took place before
that date under the Principal Act as in force at the time the matter
28
or conduct occurred. The intention is to provide for a smooth
transition to the Australian Consumer Law (Victoria).
Clause 47 inserts proposed clause 19C into Schedule 3 of the
Fair Trading Act 1999. Proposed clause 19C provides that the
Fair Trading (Information Standard) (Australian Builders Plate
Standard) Regulations 2009 are saved, despite the repeal of the
regulation-making provisions at sections 47 and 165(1)(a) of the
Fair Trading Act 1999 by this Bill. Proposed clause 19C
interacts with proposed section 102 of the proposed Marine
Safety Act 2010, and provides that the Fair Trading (Information
Standard) (Australian Builders Plate Standard) Regulations 2009
continue in operation and may be amended or revoked as if the
empowering sections of the Fair Trading Act 1999 remained in
force. Subject proposed clause 19C(a), the are revoked on the
coming into force of section 102 of the Marine Safety Act 2010.
Clause 47 also inserts proposed clause 19D into Schedule 3 to the
Fair Trading Act 1999 to provide a power to make regulations
containing provisions of a transitional nature, including matters
of an application or savings nature, arising for the enactment of
the Bill. The purpose of this provision is to allow any unforeseen
transitional matters to be dealt with by way of regulation, in
order to ensure a smooth transition to the new legislation.
Under subclause (4), clause 19D would be repealed on 1 January
2012, providing a one year period for any such regulations to
have effect after the proposed commencement of the Bill.
Clause 48 gives effect to the amendments set out in the Schedule.
Clause 49 provides that the proposed Fair Trading Amendment
(Australian Consumer Law) Act 2010 is repealed on 1 January
2012. The repeal of this Act does not affect the continued
operation of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
SCHEDULE
CONSEQUENTIAL AMENDMENTS
Item 1 amends section 50C(1A) of the Associations Incorporation
Act 1981 to remove redundant references to the former Parts 2,
2B, 3, 4 and 5 of the Fair Trading Act 1999. The amendment
is consequential and does not affect the operation of
section 50C(1A).
29
Item 2 amends sections 137A(1)(d), 137A(4), 221ZT(1)(c) and
221ZT(2) of the Building Act 1993 to replace redundant
references to sections of the Trade Practices Act 1974 of the
Commonwealth and the Fair Trading Act 1999 with references
to the provisions of the Australian Consumer Law which
supersede the redundant references.
Sections 221S(1)(e) and 221ZD(2)(e) refer to offences which
have occurred against sections of the Trade Practices Act 1974
of the Commonwealth and Fair Trading Act 1999 in the past.
These sections are amended by clauses (3) and (4) of Item 2 so
that they will also refer to offences occurring against the new
provisions of the Australian Consumer Law. The references to
sections of the Trade Practices Act 1974 of the Commonwealth
and the Fair Trading Act 1999 are not repealed, as they remain
relevant to offences occurring against those provisions before
they are repealed.
Item 3 amends section 29(1A) of the Business Names Act 1962 to
remove redundant references to the former Parts 2, 2B, 3, 4 and 5
of the Fair Trading Act 1999. The amendment is consequential
and does not affect the operation of section 29(1A).
Item 4 amends the definition of door to door selling in section 3 of the
Child Employment Act 2003 to replace a redundant reference to
"a contact sales agreement" under the Fair Trading Act 1999
with a reference to "an unsolicited consumer agreement" under
the Australian Consumer Law. The terminology of "contact sales
agreement" does not appear in the Australian Consumer Law, and
is replaced by the concept of unsolicited consumer agreements
under Division 2 of Part 3-2 of the Australian Consumer Law.
Item 5 amends the Consumer Affairs Legislation Amendment
(Reform) Act 2010 reflecting the repeal of certain provisions in
the Fair Trading Act 1999 and referring to provisions of the
Australian Consumer Law. This item also makes a statute law
revision amendment.
Item 6 amends section 183(2A) of the Conveyancers Act 2006 to
remove redundant references to the former Parts 2, 2B, 3, 4 and 5
of the Fair Trading Act 1999. The amendment is consequential
and does not affect the operation of section 183(2A).
Item 7 amends section 124(2A) of the Domestic Building Contracts
Act 1995 to remove redundant references to the former Parts 2,
2B, 3, 4 and 5 of the Fair Trading Act 1999. The amendment
is consequential and does not affect the operation of
section 124(2A).
30
Item 8 amends the Electricity Industry Act 2000 to replace superseded
references from the Fair Trading Act 1999 with new references
to the relevant provisions of the Australian Consumer Law.
Item 9 amends section 93A(1A) of the Estate Agents Act 1980 to
remove redundant references to the former Parts 2, 2B, 3, 4 and 5
of the Fair Trading Act 1999. The amendment is consequential
and does not affect the operation of section 93A(1A).
Item 10 amends section 68(1A) of the Fundraising Act 1998 to remove
redundant references to the former Parts 2, 2B, 3, 4 and 5 of the
Fair Trading Act 1999. The amendment is consequential and
does not affect the operation of section 68(1A).
Item 11 amends the Funerals Act 2006.
Clause (1) of Item 11 substitutes the note at the foot of section 22
of the Funerals Act 2006 to replace redundant references to the
Fair Trading Act 1999 with references to equivalent provisions
in the Australian Consumer Law.
Clause (2) of Item 11 amends section 54(1A) of the Funerals
Act 2006 to remove redundant references to the former Parts 2,
2B, 3, 4 and 5 of the Fair Trading Act 1999. The amendment
is consequential and does not affect the operation of
section 54(1A).
Item 12 amends the Gas Industry Act 2001 to replace superseded
references from the Fair Trading Act 1999 with new references
to the relevant provisions of the Australian Consumer Law.
Item 13 inserts a new section 38E in the Interpretation of Legislation
Act 1984 to confirm that references to the Australian Consumer
Law (Victoria) in an Act or subordinate legislation in Victoria
are references to the Australian Consumer Law applying as a
law of Victoria because of the new Part 2 of the Fair Trading
Act 1999.
Item 14 amends section 69(1A) of the Introduction Agents Act 1997 to
remove redundant references to the former Parts 2, 2B, 3, 4 and 5
of the Fair Trading Act 1999. The amendment is consequential
and does not affect the operation of section 69(1A).
Item 15 amends sections 27A(2) and 27B(4) of the Limitation of Actions
Act 1958. The amendment inserts, in addition to the existing
reference to actions for damages under section 159 of the Fair
Trading Act 1999, a reference to actions for damages under
section 236 of the Australian Consumer Law.
31
Item 16 amends the Motor Car Traders Act 1986.
Clause (1) of Item 16 inserts a new section 43(6A) confirming
that Division 1 of Part 5-5 of the Australian Consumer Law does
not apply to the termination of an agreement under section 43 of
the Motor Car Traders Act 1986. Section 43 deals specifically
with the cooling off period where a person purchases a motor
vehicle from a motor car trader in Victoria, and allows for the
termination of an agreement in accordance with that section.
Proposed section 43(6A) provides that the provisions of
Division 1 of Part 5-5 of the Australian Consumer Law, which
also deal with the termination of agreements, do not apply to
agreements covered by section 43 of the Motor Car Traders
Act 1986.
Clause (2) of Item 16 amends section 82I(1A) of the Motor
Car Traders Act 1986 to remove redundant references to the
former Parts 2, 2B, 3, 4 and 5 of the Fair Trading Act 1999.
The amendment is consequential and does not affect the
operation of section 82I(1A).
Item 17 amends section 199(3) of the Owners Corporation Act 2006 to
remove redundant references to the former Parts 2, 2B, 3, 4 and 5
of the Fair Trading Act 1999. The amendment is consequential
and does not affect the operation of section 199(3).
Item 18 amends section 86A(1A) of the Prostitution Control Act
1994 to remove redundant references to the former Parts 2, 2B,
3, 4 and 5 of the Fair Trading Act 1999. The amendment
is consequential and does not affect the operation of
section 86A(1A).
Item 19 amends section 507A(2A) of the Residential Tenancies Act
1997 to remove redundant references to the former Parts 2, 2B,
3, 4 and 5 of the Fair Trading Act 1999. The amendment is
consequential and does not affect the operation of
section 507A(2A).
Item 20 amends section 18 of the Retirement Villages Act 1986 to
include references to the Australian Consumer Law.
Item 21 amends section 48A(1A) of the Sale of Land Act 1962 to
remove redundant references to the former Parts 2, 2B, 3, 4 and 5
of the Fair Trading Act 1999. The amendment is consequential
and does not affect the operation of section 48A(1A).
32
Item 22 amends section 30(1A) of the Second-Hand Dealers and
Pawnbrokers Act 1989 to remove redundant references to the
former Parts 2, 2B, 3, 4 and 5 of the Fair Trading Act 1999.
The amendment is consequential and does not affect the
operation of section 30(1A).
Item 23 amends section 44(1A) of the Travel Agents Act 1986 to
remove redundant references to the former Parts 2, 2B, 3, 4 and 5
of the Fair Trading Act 1999. The amendment is consequential
and does not affect the operation of section 44(1A).
Item 24 amends section 73(2A)(b) of the Victorian Civil and
Administrative Tribunal Act 1988 to replace a reference to
section 8A of the Fair Trading Act 1999 which is to be
repealed, with a reference to section 22 of the Australian
Consumer Law, which deals with unconscionable conduct in
business transactions.
Item 25 amends the Wrongs Act 1958 to replace a reference to section 9
of the Fair Trading Act 1999 which is to be repealed, with a
reference to section 18 of the Australian Consumer Law, which
deals with misleading or deceptive conduct.
33