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
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SCHEDULES 237
SCHEDULE 1—Consumer Acts 237
SCHEDULE 2—Contact Sales Agreements/Telephone Marketing Agreements 238
SCHEDULE 3—Savings and Transitional 242
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