Fair Trading (Enhanced Compliance) Act 2004

Fair Trading (Enhanced Compliance) Act 2004

Act No. 103/2004

table of provisions

SectionPage

Part 1—Preliminary

1.Purposes

2.Commencement

Part 2—Amendments to Fair Trading Act 1999

3.Definitions

4.New section 24A inserted

24A.Right to payment for goods or services not supplied

5.When right to payment deemed to be asserted

6.When can the purchaser cancel the agreement?

7.What is a telephone marketing agreement?

8.Functions and powers of the Director

9.Conciliation and mediation

10.New section 105 substituted

105.Powers of the Director in relation to proceedings on behalf of consumers

11.Proceedings and costs

12.New section 106HA inserted

106HA.Power to obtain information and documents to monitor compliance

13.New section 114 substituted

114.Appointment of inspectors

14.Retention of seized banned goods

15.New section 129A inserted

129A.Court may order destruction of dangerous goods

16.New section 142A inserted

142A.Who can bring proceedings for offences?

17.Undertakings

18.Injunctions

19.New section 149A inserted

149A.Injunctions to do an act or thing

20.Interim injunctions

21.Power to rescind or vary injunctions

22.Undertakings as to damages and costs

23.New section 153 substituted

153.Adverse publicity orders

24.Orders to prohibit payment of money or transfer of other
property

25.Defences

26.Actions for damages

27.New Schedule 1 substituted

SCHEDULE 1—Consumer Acts

28.Amendment to Schedule 2

Part 3—Amendments to Co-operatives Act 1996

29.New heading in Part 17

30.New Division 2 inserted in Part 17

Division 2—Infringement Notices

456A.Definition

456B.Power to serve a notice

456C.Form of notice

456D.Late payment of penalty

456E.Withdrawal of notice

456F.Payment expiates offence

456G.Application of penalty

456H.Prosecution after service of infringement notice

456I.Enforcement of infringement penalty

31.Repeal of section 467

32.New Schedule 6 substituted

SCHEDULE 6—Infringement Offences

Part 4—Amendments to Credit (Administration) Act 1984

33.Embargo provision

34.Advisory Committee

Part 5—Amendments to Estate Agents Act 1980

35.Definition

36.Repeal of sections 12A, 12B and 12C

37.Licensing of corporations

38.Headings in Part VI

39.Account deficiencies

40.New Division 2 inserted in Part VI

Division 2—Monitoring of Estate Agency Business

70.Definitions

70A.Production of identity card

70B.Accounts and other documents available for inspection and audit

70C.Estate agent to produce documents and answer
questions

70D.Third parties to produce documents and answer questions relating to estate agent's business

70E.Ministers, police and public authorities to produce information to inspectors

70F.Certain other specified persons or bodies to produce information

70G.Powers on production of documents

70H.Order requiring supply of information and answers to questions

70I.Entry or search with consent

70J.Entry without consent or warrant

70K.Search warrants

70L.Announcement before entry

70M.Details of warrant to be given to occupier

70N.Seizure of things not mentioned in the warrant

70O.Embargo notice

70P.Copies of seized documents

70Q.Retention and return of seized documents or things

70R.Magistrates' Court may extend 3 month period

70S.Requirement to assist inspector during entry

70T.Refusal or failure to comply with requirement

70U.Rule against self-incrimination does not apply

70V.Offence to give false or misleading information

70W.Application of provisions relating to inspections

70X.Service of documents

70Y.Confidentiality

41.New section 93A inserted

93A.Application of Fair Trading Act 1999

42.Offences

43.Prosecutions

44.Corporations

Part 6—Amendments to Fundraising Appeals Act1998

45.New heading in Part 5

46.New Division 2 inserted in Part 5

Division 2—Infringement Notices

61C.Definition

61D.Power to serve a notice

61E.Form of notice

61F.Late payment of penalty

61G.Withdrawal of notice

61H.Payment expiates offence

61I.Application of penalty

61J.Prosecution after service of infringement notice

61K.Enforcement of infringement penalty

47.New section 68 substituted

68.Application of Fair Trading Act 1999

48.New Schedule inserted

SCHEDULE—Infringement Offences

Part 7—Amendments to Funerals (Pre-Paid Money) Act 1993

49.Repeal of section 16

50.Application of provisions of Fair Trading Act 1999

51.New section 18 substituted

18.Who may bring proceedings for an offence?

Part 8—Amendments to Introduction Agents
Act 1997

52.Repeal of section 64

53.New section 69 substituted

69.Application of Fair Trading Act 1999

54.Repeal of section 71

Part 9—Amendments to Motor Car Traders Act1986

55.Repeal of section 33A

56.Embargo notice

57.New section 82CA inserted

82CA.Who may bring proceedings for offences?

58.New Division 3 inserted in Part 5A

Division 3—Application of Fair Trading Act 1999

82I.Application of Fair Trading Act 1999

59.Corporations

Part 10—Amendments to Prostitution Control Act1994

60.Embargo notice

61.New sections 86 and 86A inserted

86.Who may bring proceedings for offences?

86A.Application of Fair Trading Act 1986

Part 11—Amendments to Residential Tenancies Act1997

62.Repeal of section 500

63.Application of Fair Trading Act 1999

64.Proceedings for offences

65.New Division 2A inserted in Part 13

Division 2A—Infringement Notices

510B.Definitions

510C.Power to serve a notice

510D.Form of notice

510E.Late payment of penalty

510F.Withdrawal of notice

510G.Payment expiates offence

510H.Application of penalty

510I.Prosecution after service of infringement notice

510J.Enforcement of infringement penalty

66.Repeal of section 533

67.New Schedule 2 substituted

SCHEDULE 2—Infringement Offences

Part 12—Amendments to Sale of Land Act 1962

68.Offences

69.Statement

70.Vendor bids

71.New Part IIA inserted

Part IIA—Enforcement

48A.Application of Fair Trading Act 1999

PArt 13—Amendments to Second-Hand Dealers
and Pawnbrokers Act 1989

72.New section 28E inserted

28E.Who may bring proceedings for offences?

73.New section 30 substituted

30.Application of Fair Trading Act 1999

Part 14—Amendments to Travel Agents Act 1986

74.Exemptions

75.Embargo notice

76.New Part 3B inserted

Part 3B—Infringement NOTICES

39ZB.Definition

39ZC.Power to serve a notice

39ZD.Form of notice

39ZE.Late payment of penalty

39ZF.Withdrawal of notice

39ZG.Payment expiates offence

39ZH.Application of penalty

39ZI.Prosecution after service of infringement notice

39ZJ.Enforcement of infringement penalty

77.New sections 44 and 45 substituted

44.Application of Fair Trading Act 1999

45.Who may bring proceedings for offences?

78.New Schedule inserted

SCHEDULE—Infringement Offences

Part 15—Amendments to Other Acts

79.Amendment to Associations Incorporation Act 1981—New section 50C inserted

50C.Application of Fair Trading Act 1999

80.Amendment to Business Names Act 1962—New section 29 substituted

29.Application of Fair Trading Act 1999

81.Amendments to Domestic Building Contracts Act 1995

82.Amendment to Petroleum Products (Terminal Gate Pricing) Act 2000

83.Amendment to Trustee Companies Act 1984

84.Amendment to Utility Meters (Metrological Controls) Act 2002

63.Application of Fair Trading Act 1999

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Endnotes

SectionPage

Victoria

No. 103 of 2004

SectionPage

Fair Trading (Enhanced Compliance) Act 2004[†]

[Assented to 21 December 2004]

Act No. 103/2004

Fair Trading (Enhanced Compliance) Act 2004

Act No. 103/2004

Fair Trading (Enhanced Compliance) Act 2004

The Parliament of Victoriaenacts as follows:

Part 15—Amendments to Other Acts

Fair Trading (Enhanced Compliance) Act 2004

Act No. 103/2004

Part 1—Preliminary

1.Purposes

The main purposes of this Act are—

(a)to amend the Fair Trading Act 1999 to enhance compliance with that Act and other Consumer Acts; and

(b)to amend the Co-operatives Act 1996, the Credit (Administration) Act 1984, the Estate Agents Act 1980, the Fundraising Appeals Act 1998, the Funerals (Pre-Paid Money) Act 1993, the Introduction Agents Act 1997, the Motor Car Traders Act 1986, the Prostitution Control Act 1994, the Residential Tenancies Act 1997, the Sale of Land Act 1962, the Second-Hand Dealers and Pawnbrokers Act 1989, the Travel Agents Act 1986 and other Consumer Acts to improve the operation of, and enhance compliance with, those Acts; and

(c)to amend the Trustee Companies Act 1984 to correct the names of trustee companies.

2.Commencement

s. 2

(1)This Act (except section 37) comes into operation on the day after the day on which it receives the Royal Assent.

(2)Section 37 comes into operation on 1 July 2005.

______

See:
Act No.
16/1999.
Reprint No. 2
as at
30 August 2004.
LawToday:

dpc.vic.
gov.au

Part 2—Amendments to Fair Trading Act 1999

3.Definitions

s. 3

(1)In section 3 of the Fair Trading Act 1999 for the definition of "Consumer Act" substitute—

' "Consumer Act" means—

(a)an Act listed in Schedule 1; or

(b)Part 5 of the Subdivision Act 1988;'.

(2)In section 3 of the Fair Trading Act 1999 in paragraph (b) of the definition of "officer" for "and an employee" substitute "or an employee".

4.New section 24A inserted

After section 24 of the Fair Trading Act 1999 insert—

"24A.Right to payment for goods or services not supplied

A person must not, in trade or commerce, assert a right to payment from another person for the supply of goods or services if, at the time of the assertion of the right to payment—

(a)no request for the goods or services had been made by or on behalf of the other person; and

(b)the goods or services were not supplied.

Penalty:240penalty units, in the case of a natural person.

600penalty units, in the case of a body corporate.

Example

This offence would apply to the sending of false invoices, that is invoices for goods or services that have not been supplied.".

5.When right to payment deemed to be asserted

s. 5

In section 28 of the Fair Trading Act 1999, for "sections 24 and 27" substitute "sections 24, 24A and 27".

6.When can the purchaser cancel the agreement?

In section 63(2) of the Fair Trading Act 1999, for "sections 61(1)(b), 61(1)(c) and 61(1)(i)" substitute "section 61(1)(b), 61(1)(c) or 61(1)(i)".

7.What is a telephone marketing agreement?

In section 67A(3)(d) of the Fair Trading Act 1999omit "for the purpose of ascertaining the cooling-off period in relation to each of the agreements,".

8.Functions and powers of the Director

(1) After section 100(1)(b) of the Fair Trading Act 1999insert—

"(ba)to monitor compliance with this Act and the regulations and the Consumer Acts and the regulations under the Consumer Acts;

(bb)to prepare and publish guidelines in relation to the operation and enforcement of this Act or the regulations or a Consumer Act or the regulations under a Consumer Act;".

(2)For section 100(1)(f) of the Fair Trading Act 1999substitute—

"(f)to encourage the preparation and use of codes of practice for guidance in safeguarding and promoting the interests of purchasers of goods and services;

(fa)to prepare codes of practice safeguarding and promoting the interests of purchasers of goods and services and submit those codes of practice to the Minister for inclusion in the regulations under this Act;".

9.Conciliation and mediation

s. 9

(1)Insert the following heading to section 104 of the Fair Trading Act 1999—

"Conciliation and mediation".

(2)In section 104(1) of the Fair Trading Act 1999, after "conciliation" insert "or mediation".

10.New section 105 substituted

For section 105 of the Fair Trading Act 1999substitute—

'105.Powers of the Director in relation to proceedings on behalf of consumers

(1)The Director may, subject to this section, institute or continue proceedings on behalf of, or defend proceedings brought against, a person or persons in respect of a consumer dispute.

(2)The Director must not, under sub-section (1), institute or continue or defend proceedings unless the Director is satisfied—

(a)that the person or persons have a good cause of action or a good defence to an action relating to the consumer dispute; and

(b)that the person or persons are not bringing proceedings against a natural person who is acquiring goods or services of a kind ordinarily used for personal, household or domestic purposes; and

(c)that it is in the public interest to institute, continue or defend proceedings on behalf of the person or persons.

(3)The Director must not, under sub-section (1), institute, continue or defend proceedings on behalf of a person or persons unless—

(a)the person has or the persons have given consent in writing; or

(b)in the case of group proceedings or representative proceedings, the representative party has given consent.

s. 10

(4)After consent has been given under sub-section (3), the Director may institute or continue a proceeding or defence on behalf of a person or persons even if the person or any of the persons revokes the consent.

(5)In this section—

"consumer dispute" means a dispute between a purchaser or purchasers or a possible purchaser or purchasers and a supplier about a supply or supplies or possible supply or supplies of goods or services in trade or commerce;

"proceeding" includes group proceeding and representative proceeding.'.

11.Proceedings and costs

s. 11

(1)In section 106(1) of the Fair Trading Act 1999—

(a)after "institutes" insert ", continues";

(b)in paragraph (c) after "recovered" insert "by the Director in respect of the person".

(2)In section 106(1A) of the Fair Trading Act 1999for "proceedings or defence" substitute "institution, defence or continuation of the proceedings".

(3)In section 106(1B) of the Fair Trading Act 1999—

(a)for "proceedings or defence" substitute "institution, defence or continuation of the proceedings";

(b)after "recovered" insert "by the Director in respect of the person".

(4)In section 106(2) of the Fair Trading Act 1999 after "instituted" insert ", continued".

12.New section 106HA inserted

In Division 4 of Part 8 of the Fair Trading Act 1999, before section 106I insert—

"106HA.Power to obtain information and documents to monitor compliance

(1)The Director may, by notice in writing, require a person who the Director believes is capable of providing information or producing documents that may assist the Director in monitoring compliance with this Act or the regulations—

(a)to provide to the Director, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, that information; or

(b)to produce to the Director, or to a person specified in the notice acting on the Director's behalf, in accordance with the notice, those documents; or

(c)to appear before the Director at a time and place specified in the notice to give that information, either orally or in writing, and produce those documents.

(2)A person must not—

(a)refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or

s. 12

(b)in purported compliance with a notice under this section, knowingly provide information or give evidence that is false or misleading; or

(c)obstruct or hinder the Director in exercising a power under this section.

Penalty:20 penalty units.

(3)Subject to sub-section (4), a person is not excused from answering a question, providing information or producing or permitting the inspection of a document on the ground that the answer, information or document may tend to incriminate the person.

(4)Despite sub-section (3), the answer by a person to any question asked in a notice under this section or the provision by a person of any information or the production by any person of a document in compliance with a notice under this section, is not admissible in evidence against the person in any proceedings other than proceedings under this section.

(5)If any documents are produced to the Director under this section, the Director may make copies of or take extracts from the documents and retain possession of those copies and extracts.

(6)Section 106J does not apply to documents produced under this section.".

13.New section 114 substituted

s. 13

For section 114 of the Fair Trading Act 1999substitute—

'114.Appointment of inspectors

(1)The Director may, by instrument, appoint as an inspector—

(a)any employee under Part 3 of the Public Sector Management and Employment Act 1998;

(b)any person who is appointed as an inspector, enforcement officer or authorised officer by or under any other Act;

(c)any person who is appointed or authorised as an inspector, investigator, authorised officer or authorised person under an interstate Act.

(2)An inspector appointed under sub-section (1)(a) or (1)(b) may also be appointed or authorised under an interstate Act as an inspector, investigator, authorised officer or authorised person under that Act.

(3)The Director must not appoint a person as an inspector under this section unless the Director is satisfied that the person is appropriately qualified or has successfully completed appropriate training.

(4)In this section "interstate Act" means—

(a)Fair Trading (Consumer Affairs) Act 1973 of the Australian Capital Territory;

(b)the Fair Trading Act 1987 of New South Wales;

(c)the Consumer Affairs and Fair Trading Act of the Northern Territory;

(d)the Fair Trading Act 1989 of Queensland;

(e) the Fair Trading Act 1987 of South Australia;

(f)the Consumer Affairs Act 1988 of Tasmania;

(g)the Fair Trading Act 1987 of Western Australia;

(h)a prescribed Act of a State (other than Victoria) or Territory.'.

14.Retention of seized banned goods

s. 14

After section 128(2)(b) of the Fair Trading Act 1999 insert—

"; or

(c)a court makes an order under section 129A permitting the destruction of the thing.".

15.New section 129A inserted

s. 15

After section 129 of the Fair Trading Act 1999insert—

"129A.Court may order destruction of dangerous goods

(1)If an inspector seizes goods under this Part that are of a kind in relation to which there is in force an interim ban order, a fixed term ban order or a permanent ban order, the Director may apply to a court for an order permitting destruction of the goods.

(2)On an application under sub-section (1), the court may make an order permitting the destruction of the goods, if it is satisfied that it is appropriate to do so.

(3)At least 7 days prior to the hearing of an application under this section, notice of the application must be sent to the owner of the goods described in the application.".

16.New section 142A inserted

After section 142 of the Fair Trading Act 1999 insert—

"142A.Who can bring proceedings for offences?

(1)Proceedings for an offence against this Act or the regulations under this Act or a Consumer Act or the regulations under that Act may only be brought by—

(a)the Director; or

(b)a person authorised by the Director for the purposes of this section.

(2)In proceedings for an offence against this Act or the regulations under this Act or a Consumer Act or the regulations under that Act it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings.

(3)This section does not apply to proceedings for an indictable offence.

(4)Sub-section (1) does not apply to a Consumer Act or the regulations under a Consumer Act if express provision is made in that Act specifying who may bring proceedings for offences against that Act or the regulations under that Act.".

17.Undertakings

s. 17

After section 146(2) of the Fair Trading Act 1999insert—

"(2A)The Director, with the consent of the person who gave an undertaking, may apply, at any time, to the Magistrates' Court for an order directing the person to comply with the undertaking.

(2B)On an application under sub-section (2A), the Magistrates' Court may by order direct the person who gave the undertaking to comply with the undertaking.".

18.Injunctions

(1)Insert the following heading to section 149 of the Fair Trading Act 1999—

"Injunctions to restrain conduct".

(2)In section 149(1) of the Fair Trading Act 1999, after "apply to the" insert "Supreme Court, County Court or".

(3)In section 149(2) of the Fair Trading Act 1999, for "Magistrates' Court" substitute "Court".

19.New section 149A inserted

s. 19

After section 149 of the Fair Trading Act 1999insert—

"149A.Injunctions to do an act or thing

(1)The Supreme Court or the County Court, on the application of the Minister, the Director or any other person, may grant an injunction requiring a person to do any act or thing if the Court is satisfied that the person is engaging in or has been engaging in conduct that constitutes—