Version No. 020

Fair Trading Act 1999

Act No. 16/1999

Version incorporating amendments as at 30 August 2004

table of provisions

Section Page

ix

Section Page

Part 1—Preliminary 1

1. Purposes 1

2. Commencement 2

3. Definitions 2

4. Representations as to future matters 10

5. Crown bound 11

6. Extra-territorial application of this Act 11

Part 2—Unfair Practices 12

7. Unconscionable conduct within the meaning of the unwritten law 12

8. Unconscionable conduct 12

8A. Unconscionable conduct in business transactions 14

8B. The price for a supply or acquisition, or possible supply or acquisition 19

9. Misleading or deceptive conduct 21

10. Misleading conduct in relation to goods 21

11. Misleading conduct in relation to services 22

12. False representations in relation to goods and services 22

13. False representations in relation to employment 24

14. False testimonials 24

15. Cash price to be stated in certain circumstances 25

16. Offering gifts and prizes 25

17. Bait advertising 26

18. Referral selling 27

19. Accepting payment without being able to supply as ordered 28

20. Misleading representations about certain business activities 29

21. Harassment and coercion 30

22. Pyramid selling 31

23. Unsolicited prescribed cards 33

24. Right to payment for unsolicited goods or services 35

25. Liability of recipient of unsolicited goods 36

26. Liability of recipient of unsolicited services 38

27. Right to payment for unauthorised entries or advertisements 38

28. When right to payment deemed to be asserted 41

29. Address to be included in documents 42

30. Mock auctions 44

31. Simplification of proof 45

32. Publications which are not prohibited 46

Part 2A—Implied Conditions and Warranties in Certain Contracts of Supply 47

Division 1—Interpretation 47

32A. Definitions 47

32B. What are conditions and warranties? 48

32BA. What are antecedent negotiations? 48

32C. When is a person "aware" of a fact, matter or circumstance? 48

Division 2—Application of Part 49

32CA. Application of Part 49

32D. This Part applies to certain kinds of contracts 49

32DA. This Part does not apply to certain kinds of contracts 50

32E. How is "cash price" determined for contracts generally? 51

32EA. How is "cash price" determined for leases of goods? 52

32EB. Presumption that this Part applies to supply 53

32F. Application of Part to mixed contracts 53

32FA. Application of Goods Act 1958 to contracts of supply 53

Division 3—Supply of Goods or Services 54

32G. Terms implied in contracts as to right to supply 54

32GA. Transfer of limited interest in goods 55

32GB. Terms implied in leases as to right to hire 56

32H. Supply of goods by description 56

32HA. Supply of goods by sample 57

32I. Merchantable quality of goods supplied 58

32IA. Fitness of goods for purpose 58

32J. Implied conditions in supply of services 59

32JA. Fitness of services for purpose 59

32K. Supply of services by demonstration 60

32KA. Terms implied in contracts of supply of both services and goods 61

32KAB. Certain agreements excluded 62

32L. Contract cannot exclude this Part 62

32LA. Contract cannot exclude liability for damages 63

32M. Penalties for including void provisions 64

32MA. Limitation of liability generally 64

32N. Limitation of liability in relation to supply of recreational services 66

32NA. Exemption from waiver form requirement 69

32NB. Supplier to have reasonable opportunity to make good title 70

32O. Acceptance of goods 71

32OA. Rescission for innocent misrepresentation 73

32P. Discharge or rescission of contract of supply of goods 73

32PA. When does a discharge or rescission have effect? 74

32Q. Liability of supplier and person conducting antecedent negotiations 75

32QA. Indemnity for supplier or dealer 77

32R. Certain contracts or provisions void 77

32RA. Penalty for including void provision relating to antecedent negotiations 78

Division 4—General 78

32S. Implied terms do not negative express terms unless inconsistent 78

32SA. Limit of liability of guarantors 78

32T. Limit of liability under security 81

32TA. Contract of supply not illegal etc. 81

Part 2B—Unfair Terms in Consumer Contracts 82

32U. Definitions 82

32V. Application of Part 83

32W. What is an unfair term? 83

32X. Assessment of unfair terms 83

32Y. Effect of unfair term 84

32Z. Offences relating to prescribed unfair terms 85

32ZA. Injunctions to prevent continued use of unfair terms 85

32ZB. Director may require the supply of information 86

32ZC. Declaration by the Tribunal 87

32ZD. Advisory opinion by the Tribunal 88

Part 3—Safety and Information Requirements 89

Division 1—Safety standards 89

33. Offence to supply goods or services which do not comply with safety standards 89

34. Prescribed safety standards 90

35. Interim ban order 90

36. Operation of interim ban order 91

37. Notice of order 92

38. Offence to contravene interim ban order 92

39. Permanent ban order or fixed term ban order made after interim ban order 92

40. General power to make permanent ban order or fixed term ban order 93

41. When does a permanent ban order or a fixed term ban order take effect? 94

42. Notice of order 95

43. Revocation or amendment of permanent ban order or fixed term ban order 95

44. Offence to contravene permanent ban order or fixed term ban order 95

45. Loss, injury or damage arising from a contravention of this Division 96

Division 2—Information standards 97

46. Offence to supply goods or services which do not comply with information standards 97

47. Prescribed information standards 97

48. Loss, injury or damage arising from a contravention of this Division 98

Division 3—Recall of goods 99

49. Notification of voluntary recall 99

50. Compulsory recall 100

51. Repair and replacement of goods 102

52. Circumstances in which a refund may be reduced 102

53. Compliance with compulsory recall notice 103

54. Loss, injury or damage arising from contravention of this Division 103

55. Requirement to notify persons outside Victoria 104

56. Certain actions not to affect insurance contracts 105

Division 4—Applications for review 105

57. Review of ban order or compulsory recall notice 105

Division 5—Warning notices 106

58. Warning notice to public 106

Part 4—Off-Business-Premises Sales and Other Sales 108

Division 1—Introductory 108

59. Application 108

Division 2—Contact Sales Agreements 109

60. What is a contact sales agreement? 109

61. Requirements for contact sales agreements 111

62. Supplier must comply with requirements 112

62A. Duty to obtain prior consent to visit 113

62B. Duty not to remain on premises for long periods 115

62C. Duty to leave premises 116

62D. Duty to produce identification 116

62E. Duty to inform 117

63. When can the purchaser cancel the agreement? 117

64. What is the effect of cancellation? 119

65. What must the supplier do on cancellation? 119

66. What can the supplier charge on cancellation? 120

67. What must the purchaser do on cancellation? 121

Division 2A—Telephone Marketing Agreements 121

67A. What is a telephone marketing agreement? 121

67B. Duty to cease telephone marketing 124

67C. Permitted hours for telephone marketing 124

67D. Purchaser must give explicit informed consent 125

67E. Requirements for a telephone marketing agreement 127

67F. Supplier must comply with requirements 129

67G. When does a telephone marketing agreement commence? 129

67H. When and how can the purchaser cancel the agreement? 130

67I. What is the effect of cancellation? 131

67J. What must the supplier do on cancellation? 132

67K. What can the supplier charge on cancellation? 132

67L. What must the purchaser do on cancellation? 133

67M. What if the telephone marketing agreement is void for lack of explicit informed consent? 134

Division 3—Non-Contact Sales Agreements 135

68. What is a non-contact sales agreement? 135

68A. Duty to cease telephone marketing for non-contact sales agreement 136

69. Requirements for non-contact sales agreements 136

70. Supplier must comply with requirements 137

71. When can the purchaser cancel the agreement? 138

72. What is the effect of cancellation? 138

73. What must the supplier do on cancellation? 139

74. What can the supplier charge on cancellation? 139

75. What must the purchaser do on cancellation? 140

Division 4—General 140

76–78. Repealed 140

79. Trade-in not to be sold during cooling-off period 141

80. Prohibition on payment for services during cooling-off period 141

81. Certain provisions in agreements void 141

82. Recovery of money 142

Part 5—Lay-By Sales 144

83. Statement of lay-by terms 144

84. Change of lay-by terms 145

84A. Lay-by goods must be available 146

85. Cancellation of lay-by by purchaser 146

86. Cancellation of lay-by by supplier 147

87. Cancellation on breach by purchaser 148

88. Cancellation where business closes 149

89. Effect of cancellation of lay-by 149

90. Cancellation charge must not exceed a reasonable amount 151

91. Limits on supplier's remedies 152

92. Demands for early payment 152

93. Effect of contracting out 152

Part 6—Codes of Practice 153

94. Preparation of draft code of practice by the Director 153

95. Consideration of draft code of practice prepared by other
persons 153

96. Prescribing codes of practice 153

97. Offence to breach code of practice 154

Part 7—Administration 155

98. Director of Consumer Affairs Victoria 155

99. Staff 155

100. Functions and powers of the Director 155

101. Powers of delegation 156

102. Director's report 157

Part 8—Powers of Director 158

Division 1—Disputes 158

103. Making a complaint 158

104. Conciliation 158

105. Powers of the Director to institute and defend proceedings 159

106. Proceedings and costs 160

Division 2—Suppliers 162

106A. Substantiation of claims 162

106B. "Show cause" notice 163

Division 3—Licence Suspension 165

106C. Definitions 165

106D. Director may suspend licence 166

106E. Effect of suspension 168

106F. Lapsing or continuation of suspension 170

106G. Extension of period 171

106H. Right of review 172

Division 4—Obtaining Information, Documents and Evidence 172

106I. Power to obtain information, documents and evidence 172

106J. Powers in relation to documents 173

106K. Copies of seized documents 174

106L. Retention and return of seized documents 175

106M. Magistrates' Court may extend 3 month period 175

106N. Complaints 176

106O. Service of documents 176

106P. Confidentiality 177

Part 9—Functions of Tribunal 178

107. What is a consumer and trader dispute? 178

107A. What is a small claim? 178

108. Settlement of consumer and trader disputes or small claims 179

109. Additional powers of Tribunal 180

110. Who can ask the Tribunal to resolve a consumer and trader dispute? 183

111. Exclusion of other jurisdiction 183

112. More appropriate forum 184

112A. Small claim commenced in a court 185

112B. Small Claims Suspense Account 186

113. Tribunal may hear dispute regardless of related criminal proceedings 186

113A. Tribunal may order the provision of information 187

Part 10—Inspection Powers 188

114. Appointment of inspectors 188

115. Inspector's identity card 188

116. Production of identity card 188

117. Inspector may seek Court order 188

118. Requirement to produce information 190

119. Entry or search with consent 191

120. Entry of premises open to the public 193

121. Emergency entry 194

122. Search warrants 195

123. Announcement before entry 197

124. Details of warrant to be given to occupier 197

125. Seizure of things not mentioned in the warrant 198

126. Embargo notice 198

127. Copies of seized documents 199

128. Retention and return of seized documents or things 199

129. Magistrates' Court may extend 3 month period 200

130. Taking samples 201

131. Requirement to assist inspector during entry 202

132. Refusal or failure to comply with requirement 202

133. Protection against self-incrimination 202

134. Offence to give false or misleading information 203

135. Offence to hinder or obstruct inspector 203

136. Offence to impersonate inspector 203

137. Entry to be reported to the Director 203

138. Register of exercise of powers of entry 204

139. Complaints 204

140. Service of documents 204

141. Confidentiality 205

Part 11—Enforcement and Remedies 206

Division 1—General enforcement provisions 206

142. Prosecutions of offences 206

143. Offences by bodies corporate 206

144. Conduct by officers, employees or agents 206

Division 2—Remedies and legal proceedings 209

145. Interpretation 209

146. Undertakings 209

147. Copy of undertaking 210

148. Register of undertakings 210

149. Injunctions 211

150. Interim injunctions 212

151. Power to rescind or vary injunctions 213

151A. Cease trading injunctions 213

151B. Interim cease trading injunctions 214

151C. Power to rescind or vary cease trading injunctions 214

152. Undertakings as to damages and costs 215

153. Power of the courts to require corrective advertising 215

154. Orders to prohibit payment of money or transfer of other
property 216

155. Defences 218

156. Evidence 220

157. Findings in proceedings to be evidence 220

158. Orders against persons found to have contravened this Act 221

159. Actions for damages 222

160. Awards of compensation 223

Division 3—Infringement Notices 224

160A. Power to serve a notice 224

160B. Form of notice 224

160C. Late payment of penalty 225

160D. Withdrawal of notice 226

160E. Payment expiates offence 226

160F. Application of penalty 227

160G. Prosecution after service of infringement notice 227

160H. Enforcement of infringement penalty 227

Part 12—Miscellaneous 229

161. Supplier to give documents 229

161A. Bills and receipts 229

162. Return of replaced parts to purchaser 231

162A. Public warning statements 232

163. Consumer documents to be clear 232

164. Supreme Court—limitation of jurisdiction 233

165. Regulations 234

Part 13—Repeals, Savings and Transitional 236

166. Repeal of Fair Trading Act 1985 236

167. Repeal of Consumer Affairs Act 1972 236

168. Repeal of Ministry of Consumer Affairs Act 1973 236

169. Repeal of Market Court Act 1978 236

170. Savings and transitional provisions 236

______

SCHEDULES 237

SCHEDULE 1—Consumer Acts 237

SCHEDULE 2—Contact Sales Agreements/Telephone Marketing Agreements 238

SCHEDULE 3—Savings and Transitional 242

═══════════════