Australian Consumer Law and Fair Trading Regulations 2022 (Vic)

Version No. 001

Australian Consumer Law and Fair Trading Regulations 2022

S.R. No. 42/2022

Version as at

27 June 2022

TABLE OF PROVISIONS

Regulation  Page

1Objectives

2Authorising provision

3Commencement

4Revocations

5Definitions

6Limitation of liability in relation to supply of recreational services

7Conciliation and mediation

8Interstate Acts

9Embargo notice

Schedule 1—Warning and note on sign or notice

Schedule 2—Form of warning and note

Schedule 3—Embargo notice

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 001

Australian Consumer Law and Fair Trading Regulations 2022

S.R. No. 42/2022

Version as at

27 June 2022

1Objectives

The objectives of these Regulations are—

(a)to prescribe particulars for the purposes of section 22(2)(c) of the Australian Consumer Law and Fair Trading Act 2012; and

(b)to prescribe persons and bodies to whom the Director must refer certain disputes for the purposes of that Act; and

(c)to prescribe Acts of other States and Territories for the purposes of the appointment of inspectors under that Act; and

(d)to prescribe the form of an embargo notice for the purposes of that Act; and

(e)to provide for any other matters authorised to be prescribed under that Act.

2Authorising provision

These Regulations are made under section 232 of the Australian Consumer Law and Fair Trading Act 2012.

3Commencement

These Regulations come into operation on 27 June 2022.

4Revocations

The following Regulations are revoked—

(a)the Australian Consumer Law and Fair Trading Regulations 2012[1];

(b)the Australian Consumer Law and Fair Trading Amendment Regulations 2012[2];

(c)the Australian Consumer Law and Fair Trading Amendment Regulations 2013[3].

5Definitions

In these Regulations—

gross negligence, in relation to an act or omission, means doing the act or omitting to do an act in a manner to which section 22(3)(b) of the Act applies;

the Act means the Australian Consumer Law and Fair Trading Act 2012.

6Limitation of liability in relation to supply of recreational services

(1)For the purposes of section 22(2)(c)(i) of the Act, the prescribed particulars are the inclusion of—

(a)if the term is contained in or on a sign displayed at the place at which the recreational services are being supplied, the warning and note set out in Schedule 1 in a form that complies with subregulation (2); and

(b)if the term is contained in or on a notice given to the purchaser, the warning and note set out in Schedule 1; and

(c)if the term is contained in a form to be signed by the purchaser, the warning and note set out in Schedule 2.

(2)For the purposes of subregulation (1)(a), the warning and note must be in a font size at least equal to the largest font size used elsewhere in the sign, excluding the name or logo of the supplier.

7Conciliation and mediation

The following persons and bodies are prescribed for the purposes of section 114(3) of the Act—

(a)the Ombudsman appointed under section 3 of the Ombudsman Act 1973;

(b)the Independent Broad-based Anti‑corruption Commission established under section 12 of the Independent Broad‑based Anti-corruption Commission Act 2011;

(c)the Health Complaints Commissioner appointed under section 111 of the Health Complaints Act 2016;

(d)the Victorian Legal Services Commissioner appointed under section 51 of the Legal Profession Uniform Law Application Act 2014;

(e)the person who holds the office of Private Health Insurance Ombudsman under section 20C of the Ombudsman Act 1976 of the Commonwealth.

8Interstate Acts

The following Acts are prescribed for the purposes of section 142(1)(c) and (4) of the Act—

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

(b)the Fair Trading Act 1989 of Queensland;

(c)the Fair Trading Inspectors Act 2014 of Queensland;

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

(e)the Fair Trading (Australian Consumer Law) Act 1992 of the Australian Capital Territory;

(f)the Consumer Affairs and Fair Trading Act 1990 of the Northern Territory;

(g)the Fair Trading Act 2010 of Western Australia;

(h)the Consumer Affairs Act 1988 of Tasmania;

(i)the Australian Consumer Law (Tasmania) Act 2010 of Tasmania.

9Embargo notice

For the purposes of section 162(3) of the Act, the prescribed form of an embargo notice is the Form in Schedule 3.

Schedule 1—Warning and note on sign or notice

Regulation 6

WARNING: If you participate in these activities your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the activities were not supplied with due care and skill or were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in or on this *sign/*notice.

NOTE: The change to your rights, as set out in or on this *sign/*notice, does not apply if your death or injury is due to gross negligence on the supplier's part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2022 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.

*Delete whichever is not applicable.

Schedule 2—Form of warning and note

Regulation 6

WARNING UNDER THE AUSTRALIAN CONSUMER LAW AND FAIR TRADING ACT 2012

If you sign this form, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 are excluded, restricted or modified in the way set out in this form, if you are killed or injured because the services provided were not in accordance with the statutory guarantees outlined below.

Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the supplier named on this form is required to ensure that the recreational services it supplies to you—

·are rendered with due care and skill; and

·are reasonably fit for any purpose which you, either expressly or by implication, make known to the supplier; and

·might reasonably be expected to achieve any result you have made known to the supplier.

In accordance with section 22 of the Australian Consumer Law and Fair Trading Act 2012, the exclusion of these statutory guarantees is brought to your attention by this form.

NOTE: The change to your rights, as set out in this form, does not apply if your death or injury is due to gross negligence on the supplier's part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2022 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.

Schedule 3—Embargo notice

Regulation 9

EMBARGO NOTICE

Australian Consumer Law and Fair Trading Act 2012

Section 162(3)

1.The thing described below has been embargoed under section 162 of the Australian Consumer Law and Fair Trading Act 2012.

2.Section 162(4) provides that a person who knows that an embargo notice relates to a thing and—

(a)sells; or

(b)leases; or

(c)without the written consent of the inspector who issued the embargo notice, moves; or

(d)transfers; or

(e)otherwise deals with—

the thing or any part of the thing commits an offence.

The maximum penalty for the offence is 60 penalty units.

3.Section 162(5) provides that it is a defence to a prosecution for such an offence to prove that the thing or part of the thing was moved for the purpose of protecting and preserving it.

4.Section 162(6) provides that despite anything in any other Act, a sale, lease, transfer or other dealing with a thing in contravention of section 162 is void.

5.Description of embargoed thing—

6.A copy of this notice has been—

o   served on (insert name of occupier)

o   affixed to thing described above.

Signature of inspector:

Name of inspector:

Telephone number:

Date:

Time:

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Endnotes

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

The Australian Consumer Law and Fair Trading Regulations 2022, S.R. No. 42/2022 were made on 15 June 2022 by the Governor in Council under section 232 of the Australian Consumer Law and Fair Trading Act 2012, No. 21/2012 and came into operation on 27 June 2022: regulation 3.

The Australian Consumer Law and Fair Trading Regulations 2022 will sunset 10 years after the day of making on 15 June 2032 (see section 5 of the Subordinate Legislation Act 1994).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•     Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule.  Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms. 
See section 36(1A)(2A)(2B).

•     Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule.  Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule.  See section 36(3A).

•     Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule.  Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

•     Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001.  Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs.  See section 36(3C).

•     Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•     Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule.  See section 36(3)(3D)(3E).

2   Table of Amendments

There are no amendments made to the Australian Consumer Law and Fair Trading Regulations 2022 by statutory rules, subordinate instruments and Acts.

3   Explanatory details

[1] Reg. 4(a): S.R. No. 62/2012 as amended by S.R. Nos 89/2012 and 14/2013.

[2] Reg. 4(b): S.R. No. 89/2012.

[3] Reg. 4(c): S.R. No. 14/2013.

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Penalty Units

These Regulations provide for penalties by reference to penalty units within the meaning of section 110 of the Sentencing Act 1991. The amount of the penalty is to be calculated, in accordance with section 7 of the Monetary Units Act 2004, by multiplying the number of penalty units applicable by the value of a penalty unit.

The value of a penalty unit for the financial year commencing 1 July 2021 is $181.74 and for the financial year commencing 1 July 2022 is $184.92. The amount of the calculated penalty may be rounded to the nearest dollar.

The value of a penalty unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a penalty unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year.