Consumer Affairs Legislation Amendment (Reform) Act 2010 (Vic)
Consumer Affairs Legislation Amendment (Reform) Act 2010
No. 63 of 2010
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers
Division 1—Disposal of uncollected goods
3New Part 2D inserted into Fair Trading Act 1999
Part 2D—Disposal of Uncollected Goods
Division 1—Preliminary
32ZPDefinitions
32ZQUncollected goods
32ZRRelevant charge
32ZSApplication
32ZTCommon law
Division 2—Disposal of uncollected goods
32ZUReceiver may dispose of uncollected goods
32ZVPayment of relevant charge
32ZWLow value uncollected goods
32ZXMedium value uncollected goods
32ZYHigh value uncollected goods
32ZZAdditional requirement for disposal of motor vehicles
32ZZADetails of registered operator
32ZZBPerishable goods
32ZZCForm of notices under this Division
32ZZDGiving notice
Division 3—Applications to court, court order and related provisions
32ZZEApplication to court for disposal order
32ZZFOther applications to court
32ZZGCourt orders
32ZZHPayment of relevant charge
32ZZIEffect of other proceeding
Division 4—Miscellaneous
32ZZJProceeds of sale
32ZZKRecords held by receiver
32ZZLGood title
32ZZMReceiver to provide purchaser of motor vehicle with receipt
32ZZNApplication of other provisions
4New clause 21 inserted into Schedule 3 to the Fair Trading
Act 199921Transitional provisions for repeal of Disposal of Uncollected Goods Act 1961
5Disposal of Uncollected Goods Act 1961 repealed
6Consequential amendment to Road Safety Act 1986
Division 2—Introduction agents
7New Part 5AA inserted into Fair Trading Act 1999
Part 5AA—Introduction Agents
Division 1—Interpretation
93AADefinitions
93ABMeaning of introduction agent
93ACMeaning of introduction service
93ADWho carries on a business?
93AEIntroduction agency not to use sex work service
premises
Division 2—Persons who are not introduction agents
93AFEffect of this Division
93AGExemption for activities with a community purpose
93AHExemption for non-profit activities
93AIExemption for publishers of advertisements etc.
93AJExemption for information service providers
93AKExemption for organisers of dances etc.
93ALOther exemptions
Division 3—Persons who must not act as introduction
agents93AMCertain persons not to act as introduction agents
Division 4—Permission for disqualified persons to act as introduction agents
93ANDisqualified person may apply for permission to act
as an introduction agent93AOPermission to act as an introduction agent
93APAuthority may impose conditions on permission
93AQApplication for review
Division 5—Introduction agreements
93ARWhat must an introduction agreement contain?
93ASRestriction on prepayments
93ATPerson may withdraw from agreement within 3 days without penalty
8Schedule 1A inserted into Fair Trading Act 1999
SCHEDULE 1A—You have a Right to withdraw from this Agreement within 3 Days
9Consequential amendments
10Repeal of Introduction Agents Act 1997
11Consequential Amendments to Business Licensing Authority Act 1998
Division 3—Accommodation providers
12New Part 5C inserted into Fair Trading Act 1999
Part 5C—Liability of Accommodation Providers
93ODefinitions
93PApplication of common law
93QLiability of accommodation providers under this Part
93RLimitation on accommodation providers' liability for property of guest
93SAccommodation provider to provide safekeeping
service93TNotice about this Part
93UInnkeeper's lien
93VPart 11 not to apply
13New Schedule 2A inserted into Fair Trading Act 1999
SCHEDULE 2A—Notice
14Carriers and Innkeepers Act 1958
Part 3—Amendments to Goods Act 1958 and Consequential Repeals
15Repeals and savings
16Provisions relating to bills of lading repealed
Part II—Consignees, Mercantile Agents, Documents of Title to Goods".
17New Parts IV and IVA inserted into Goods Act 1958
Part IV—Vienna Convention
84Part binds the Crown
85Convention
86Convention to have the force of law
87Convention to prevail in event of inconsistency
88Evidence of certain matters
Part IVA—Sea-Carriage Documents
Division 1—Preliminary
89Definitions
90Electronic and computerised sea-carriage documents
91Application where goods have ceased to exist, or
cannot be identified
Division 2—Rights under contracts of carriage
92Transfer of rights
93Extinguishment of previous rights
Division 3—Liabilities under contracts of carriage
94Transfer of liabilities
95Liability of original parties
Division 4—Evidence
96Shipment under bills of lading
18New sections 124 and 125 inserted into Part VI
124Saving provision for repeal of Sale of Goods (Vienna Convention) Act 1987
125Saving provision for repeal of Sea‑Carriage
Documents Act 1998
19New Schedule substituted
SCHEDULE—United Nations Convention on Contracts for
the International Sale of Goods
20Sale of Goods (Vienna Convention) Act 1987
21Sea-Carriage Documents Act 1998
Part 4—Amendments to Consumer Affairs Legislation Amendment Act 2010
22Commencement of Consumer Affairs Legislation
Amendment Act 201023New Part 5B inserted into Fair Trading Act 1999
93LOffence to purchase debt for the purpose of
collection93MProhibited debt collection practices
93NAdditional remedy for contraventions of section 93M
24New section 18A inserted
18AProvisions relating to enforcement and remedies amended
25Power to delegate—Owners Corporations Act 2006
26Notice of meetings—Owners Corporations Act 2006
27Updated reference to prostitute and prostitution in
Prostitution Control Act 199428New section 3B inserted into Prostitution Control Act 1994
29New section 18A inserted into Prostitution Control Act 1994
30Amendment of licence—Prostitution Control Act 1994
31New section 52AAA inserted into Prostitution Control
Act 199432Entry to licensed premises by police—Prostitution Control
Act 199433Power to serve an infringement notice under Prostitution Control Act 1994
34Amendments to Prostitution Control Act 1994
Part 5—Estate Agents Act 1980
35Definitions
36Director may approve registered education and training organisations
37Auctioneers of real estate
38Application for estate agent's licence
39The Register
40Section 35 amended
41Name of the estate agency business
42New section 38 substituted
38Offence to pretend to be a licensed estate agent
43Sections 39 and 40 repealed
44Advertising
45Sections relating to continuing professional development and employees statements repealed
46Restriction on agent purchasing property
47Annual audit of trust accounts
48Regulations
49Heading to Part IX amended
50New section 102 inserted at end of Part IX
102Authorised financial institutions
Part 6—Amendments to Conveyancers Act 2006
51Name of conveyancing business
52Displaying information and licence at places of business
53Letterhead
54Annual audit of trust records
55Annual record of trust records audit or statutory declaration
56Application of Fair Trading Act 1999
Part 7—Amendments to Sale of Land Act 1962
57Sale of land prior to approval of plan
58Purchaser may call for a transfer on giving a mortgage back
59Power of purchaser to terminate a contract for sale of land
60Savings provision inserted into Part 3
51Amendment to section 9AA—Consumer Affairs Legislation Amendment (Reform) Act 2010
Part 8—Standardisation of Infringements
Powers in Consumer Acts
61Funerals Act 2006
81AInfringement notices
62Owners Corporations Act 2006
203AInfringement notices
63Travel Agents Act 1986
64Residential Tenancies Act 1997
65Retirement Villages Act 1986
42BInfringement notices
66Sale of Land Act 1962
48BInfringement notices
Part 9—Amendments to Fair Trading Act 1999
67Small claim commenced in a court
68Section 143 amended
69Defences
70New sections 162AA and 162AB inserted
162AAProhibited debt collection practices
162ABAdditional remedy for contraventions of
section 162AA
71Sections 162AA and 162AB repealed
72Savings and transitional
22Transitional provision for repeal of Carriers and Innkeepers Act 1958
23Transitional provision for repeal of Part IVA of
Landlord and Tenant Act 1958
Part 10—Amendment to the Business Licensing Authority Act 1998 134
73Constitution of Authority 134
Part 11—Amendments to Prostitution Control
Act 1994
74Persons to answer questions in relation to suspected
non-licensed sex work service providing business
Part 12—Miscellaneous Amendments and Repeals
Division 1—Repeal
75Landlord and Tenant Act 1958
Division 2—Consequential and other amendments
76Motor Car Traders Act 1986
77Owners Corporations Act 2006
78Residential Tenancies Act 1997
Division 4—Consumer Affairs Legislation Amendment (Reform) Act 2010
12Commencement day
13Saving for protected tenants
14Part V leases of prescribed premises to be transitioned
to Residential Tenancies Act 1997 except in certain circumstances
79Travel Agents Act 1986
33Licensee must supervise conduct of business
80Victorian Civil and Administrative Tribunal Act 1998
51ADATribunal may make orders for costs incurred by
owners corporations
81Consequential amendments for change of short title of Prostitution Control Act 1994
Division 3—Repeal of amending Act
82Repeal of amending Act
__________________
SCHEDULE—Consequential amendments for change of short
title of Prostitution Control Act 19941Business Licensing Authority Act 1998
2Confiscation Act 1997
3Consumer Affairs Legislation Amendment (Reform)
Act 20104Crimes Act 1958
5Criminal Procedure Act 2009
6Fair Trading Act 1999
7Introduction Agents Act 1997
8Police Regulation Act 1958
9Public Health and Wellbeing Act 2008
10Sentencing Act 1991
11Serious Sex Offenders (Detention and Supervision)
Act 200912Sex Offenders Registration Act 2004
13Summary Offences Act 1966
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Endnotes
Consumer Affairs Legislation Amendment (Reform) Act 2010
No. 63 of 2010
[Assented to 28 September 2010]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The main purposes of this Act are—
(a)to repeal the Disposal of Uncollected Goods Act 1961 and insert a new framework for dealing with the disposal of uncollected goods into the Fair Trading Act 1999;
(b)to repeal the Introduction Agents Act 1997 and insert a compliance framework for introduction agents into the Fair Trading Act 1999;
(c)to repeal the Carriers and Innkeepers Act 1958 and insert provisions relating to the liability of accommodation providers into the Fair Trading Act 1999;
(d)to re-enact the Sale of Goods (Vienna Convention) Act 1987 and the Sea-Carriage Documents Act 1998 in the Goods Act 1958;
(e)to amend the Consumer Affairs Legislation Amendment Act 2010 to clarify certain provisions;
(f)to make further miscellaneous amendments to the Estate Agents Act 1980, the Conveyancers Act 2006, the Fair Trading Act 1999, the Motor Car Traders Act 1986, the Owners Corporations Act 2006, the Sale of Land Act 1962 and the Travel Agents Act 1986 to modernise certain provisions and generally improve the operation of those Acts;
(g)to amend the Funerals Act 2006, the Owners Corporations Act 2006, the Residential Tenancies Act 1997, the Retirement Villages Act 1986, the Sale of Land Act 1962 and the Travel Agents Act 1986 in relation to the powers for issuing infringement notices under those Acts;
(h)to repeal the Landlord and Tenant Act 1958 and insert transitional and savings provisions into other Acts.
2Commencement
(1)This Part and Part 4 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Section 81 and the Schedule come into operation on the day on which section 42 of the Consumer Affairs Legislation Amendment Act 2010 comes into operation.
(3)Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(4)If a provision referred to in subsection (3) does not come into operation before 1 September 2011, it comes into operation on that day.
__________________
Part 2—Amendments and Repeals Related to Uncollected Goods, Introduction Agents and Accommodation Providers
Division 1—Disposal of uncollected goods
3New Part 2D inserted into Fair Trading Act 1999
After Part 2C of the Fair Trading Act 1999 insert—
"Part 2D—Disposal of Uncollected Goods
Division 1—Preliminary
32ZPDefinitions
In this Part—
bailment includes bailment for reward, bailment in the course of business, gratuitous bailment, involuntary bailment and any sub-bailment;
court means any court of competent jurisdiction and includes the Tribunal;
disposal costs means the costs incurred by the receiver for the disposal of goods under Division 2;
high value, for goods, means the goods are of a value more than or equal to—
(a)in the case of a motor vehicle, $200 or, if another value is prescribed by the regulations, that other value; or
(b)in any other case, $5000 or, if another value is prescribed by the regulations, that other value;
low value, for goods, means the goods are of a value less than $200 or, if another value is prescribed by the regulations, that other value;
medium value, for goods other than motor vehicles, means the goods are—
(a)of a value equal to or more than $200 or, if another value is prescribed by the regulations, that other value; and
(b)less than $5000 or, if another value is prescribed by the regulations, that other value;
motor vehicle has the same meaning as it has in the Road Safety Act 1986;
owner, in relation to a motor vehicle, means the registered operator within the meaning of the Road Safety Act 1986;
provider means the person who gives possession of goods under a bailment (whether or not the person is the owner of the goods);
public auction includes an auction conducted on the Internet;
publicly registered interest means an interest in goods that is recorded—
(a)in the register within the meaning of the Personal Property Securities Act 2009 of the Commonwealth if the goods are described by serial number in that register; or
(b)in any register prescribed by the regulations;
receiver means the person who takes possession of goods under a bailment;
Registrar means the Registrar appointed under section 4 of the Unclaimed Money Act 2008;
relevant charge has the meaning given by section 32ZR;
uncollected goods has the meaning given by section 32ZQ.
32ZQUncollected goods
(1)Goods under bailment are uncollected goods if—
(a)the goods are ready for delivery to the provider in accordance with the terms of the bailment, but the provider has not taken delivery of the goods and has not given directions as to their delivery; or
(b)the receiver is required to give notice to the provider when the goods are ready for delivery but cannot locate or communicate with the provider; or
(c)the receiver can reasonably expect to be relieved of any duty to safeguard the goods on giving notice to the provider but cannot locate or communicate with the provider; or
(d)the provider has not paid the relevant charge payable to the receiver in relation to the goods within a reasonable time after being informed by the receiver that the goods are ready for delivery.
(2)Goods are not uncollected goods for the purposes of subsection (1)(a) if the provider's failure to take delivery arises from—
(a)the receiver refusing to make delivery; or
(b)the receiver preventing the provider from taking delivery.
32ZRRelevant charge
(1)The relevant charge is the amount payable by the provider to the receiver for goods under bailment and payment of which entitles the provider to take delivery of the goods.
(2)Unless determined otherwise by a court order, the amount payable to the receiver is the sum of the following—
(a)for any carriage or storage of the goods or for any repairs, cleaning, treatment or other work done in connection with the goods—
(i)the amount agreed to by the provider and receiver as the charge payable to the receiver; or
(ii)in the absence of an agreement, an amount that is reasonable;
(b)the amount of costs for any storage, maintenance or insurance of the goods incurred by the receiver from—
(i)the giving of a notice under Division 2 of the receiver's intention to dispose of the goods until the disposal of the goods; or
(ii)the making of an application for a court order under Division 3 until the disposal of the goods.
32ZSApplication
(1)This Part applies to the possession of goods under a bailment regardless of whether possession was taken before or after the commencement of this Part.
(2)This Part does not apply to—
(a)goods left behind at the end of a tenancy to which the Residential Tenancies Act 1997 applies;
(b)unsolicited goods;
(c)second-hand goods received in pawn under the Second-Hand Dealers and Pawnbrokers Act 1989;
(d)any unclaimed goods to which section 122 of the Police Regulation Act 1958 applies;
(e)any unclaimed non-monetary prize to which section 7.4.12 of the Gambling Regulation Act 2003 applies;
(f)any goods or lost property within the meaning of section 251A of the Transport (Compliance and Miscellaneous) Act 1983;
(g)any vehicle that is able to be moved or impounded under clause 4 of Schedule 4 to the Road Management Act 2004;
(h)any goods that are the subject of an order for forfeiture to which section 134 of the Petroleum (Submerged Lands) Act 1982 applies;
(i)any goods seized to which section 171 of the Gene Technology Act 2001 applies;
(j)any motor vehicle not collected or released to which section 84Z of the Road Safety Act 1986 applies;
(k)any unclaimed property to which section 16 of the National Gallery of Victoria Act 1966 applies;
(l)any unclaimed property to which section 51 of the Libraries Act 1988 applies;
(m)any unclaimed property to which section 25 of the Museums Act 1983 applies;
(n)any goods forfeited or recovered by the Magistrates' Court of Victoria to which section 137 of the Magistrates' Court Act 1989 applies;
(o)uncollected goods under any other Act that is prescribed for the purposes of this paragraph.
(3)Subject to the exclusions in subsection (2), this Part applies in addition to any other remedy or right that may be available to dispose of uncollected goods under any other Act.
(4)This Part applies to the disposal of uncollected goods—
(a)if there is no agreement between the provider and the receiver about their disposal; or
(b)if there is an agreement about their disposal, only in respect of matters not dealt with by the agreement.
(5)This Part does not apply to a lease or other agreement to which Part IVA of the Landlord and Tenant Act 1958 applied immediately before the commencement of section 75 of the Consumer Affairs Legislation Amendment (Reform) Act 2010.
(6)For the avoidance of doubt, this Part does not affect the right of a provider and receiver to make an agreement about the disposal of uncollected goods.
32ZTCommon law
The common law relating to the bailment of goods remains in force to the extent to which it is not affected by this Part and a person is entitled to exercise any rights that the person may have at common law in relation to the recovery of goods or compensation for the loss of or damage to goods except to the extent to which this Part otherwise provides.
Division 2—Disposal of uncollected goods
32ZUReceiver may dispose of uncollected goods
(1)Subject to subsection (2), a receiver may dispose of uncollected goods under this Division.
(2)A receiver must not dispose of uncollected goods if—
(a)a dispute exists between the provider and receiver regarding the relevant charge, including such a dispute about the condition of the goods or the nature or quality of any repairs or other work done in connection with the goods; and
(b)an application has been made to the court under section 32ZZF.
(3)Subsection (2) does not prevent the receiver from giving notice under this Division of the receiver's intention to dispose of the uncollected goods.
(4)A receiver who disposes of uncollected goods in accordance with this Division is not liable in relation to the goods by reason of the disposal.
32ZVPayment of relevant charge
The provider, the owner of the uncollected goods or any other person with an interest in the goods is entitled, on payment of the relevant charge, to delivery of the goods at any time before their disposal.
32ZWLow value uncollected goods
(1)A receiver may dispose of low value uncollected goods if—
(a)the receiver has given the provider written notice of the receiver's intention to dispose of the goods; and
(b)28 days have elapsed since the giving of the notice and the provider has not taken delivery of the goods or given directions as to their delivery.
(2)A receiver may dispose of low value uncollected goods if—
(a)the receiver cannot locate or communicate with the provider in order to provide written notice under subsection (1) after making reasonable attempts to do so; and
(b)60 days have elapsed since the goods became uncollected goods.
(3)Goods may be disposed of under this section by sale, destruction, appropriation or any other means.
32ZXMedium value uncollected goods
(1)A receiver may dispose of medium value uncollected goods if—
(a)the receiver has given written notice of the receiver's intention to dispose of the goods to the following—
(i)the provider; and
(ii)in a case where the provider and the owner are different people and the receiver is aware of that fact, the owner of the goods; and
(b)28 days have elapsed since the giving of the notice and the provider has not taken delivery of the goods or given directions as to their delivery.
(2)A receiver may dispose of medium value uncollected goods if—
(a)the receiver cannot locate or communicate with the provider or the owner of the goods in order to provide written notice under subsection (1) after making reasonable attempts to do so; and
(b)90 days have elapsed since the goods became uncollected goods.
(3)Goods must be disposed of under this section by public auction or by private sale and with reasonable care to ensure that the goods are sold for the best price that can be reasonably obtained, having regard to the circumstances existing when the goods are sold.
32ZYHigh value uncollected goods
(1)A receiver may dispose of high value uncollected goods if—
(a)the receiver has given written notice of the receiver's intention to dispose of the goods to the following—
(i)the provider; and
(ii)in a case where the provider and the owner are different people and the receiver is aware of that fact, the owner of the goods; and
(iii)any person who has a publicly registered interest in the goods; and
(iv)any other person having or claiming an interest in the goods of which the receiver is aware; and
(b)28 days have elapsed since giving the notice and neither of the following persons have taken delivery of the goods or given directions as to their delivery—
(i)the provider; or
(ii)the owner of the goods.
(2)A receiver may dispose of high value uncollected goods if—
(a)the receiver cannot locate or communicate with the provider or the owner of the goods in order to provide written notice under subsection (1) after making reasonable attempts to do so; and
(b)180 days have elapsed since the goods became uncollected goods.
(3)Goods must not be disposed of under this section otherwise than by way of public auction that is either—
(a)advertised at least 7 days in advance; or
(b)held over a period of at least 7 days.
32ZZAdditional requirement for disposal of motor vehicles
A receiver must not dispose of a motor vehicle that is of a high value unless the receiver has obtained in relation to that motor vehicle a written search result under section 170(2)(b) of the Personal Property Securities Act 2009 of the Commonwealth.
Penalty:60 penalty units for a natural person;
120 penalty units for a body corporate.
32ZZADetails of registered operator
(1)A receiver of a motor vehicle may apply to the Roads Corporation in accordance with subsection (2) for a certificate setting out the details of the registered operator of a motor vehicle.
(2)The application must—
(a)be accompanied by the fee prescribed (if any) under the Road Safety Act 1986 for an extract from the register within the meaning of that Act; and
(b)be in the form of a statutory declaration; and
(c)include the following particulars—
(i)if the receiver is a natural person, the receiver's full name, address and date of birth;
(ii)if the receiver is a body corporate, the receiver's business name and address and ABN;
(iii)the vehicle's last registration number (if available) and vehicle identification number;
(iv)if the receiver intends to dispose of the vehicle under section 32ZY, a copy of any notice given under that section;
(v)if the receiver has applied under section 32ZZE for an order to dispose of the vehicle, a copy of the application;
(vi)a copy of any written search result obtained under section 32ZZ;
(vii)any other information prescribed by the regulations.
(3)On receipt of an application under subsection (1), the Roads Corporation, if it is satisfied that the application is being made for the purposes of this Part, must give to the receiver a certificate setting out the details of the registered operator of the motor vehicle.
(4)In this section—
registered operator has the same meaning as it has in the Road Safety Act 1986;
Roads Corporation has the same meaning as it has in the Transport Integration Act 2010;
vehicle identification number has the same meaning as it has in the Road Safety Act 1986.
32ZZBPerishable goods
(1)A receiver may dispose of perishable uncollected goods by sale, appropriation or destruction if—
(a)the receiver has given the provider oral or written notice of the receiver's intention to dispose of the goods; and
(b)having regard to the nature and condition of the goods, a reasonable time in which to collect the goods has elapsed since the giving of the notice.
Note
Perishable goods need not have perished to be disposed of under this subsection.
(2)A receiver may dispose of uncollected goods by any means if the goods have perished but must make reasonable attempts to give the provider oral or written notice of the disposal of the goods within a reasonable time after the disposal.
32ZZCForm of notices under this Division
A notice of the receiver's intention to dispose of uncollected goods under this Division must specify—
(a)the receiver's name;
(b)a description of the goods;
(c)an address at which the goods may be collected;
(d)a statement of the relevant charge payable to the receiver for the goods and, if the relevant charge is likely to increase, a statement of the current relevant charge and an estimate of further charges that will accrue;
(e)a statement to the effect that on or after a specified date the goods will be disposed of unless they are collected and the relevant charge paid;
(f)if applicable, a statement to the effect that the receiver will retain from the proceeds of sale of the goods an amount not exceeding the sum of the relevant charge and the disposal costs.
32ZZDGiving notice
(1)A notice under this Division may be given to the person personally or left at, or sent by post to, the person's last known address.
(2)A notice to a person with a publicly registered interest in uncollected goods is taken to have been given if it has been sent by post to the person's address in the register in which the interest is recorded.
Division 3—Applications to court, court order and related provisions
32ZZEApplication to court for disposal order
(1)A receiver may apply to a court for an order to dispose of uncollected goods.
(2)The application must—
(a)state fully the grounds on which it is made;
(b)include the information in section 32ZZC(a) to (d);
(c)in the case of the disposal of a motor vehicle, include the written search result required under section 32ZZ and any certificate obtained under section 32ZZA.
(3)The receiver must give a copy of the application to—
(a)the provider, if the provider can be located after reasonable enquiries have been made;
(b)the owner of the goods, if the owner can be located after reasonable enquiries have been made;
(c)any person with a publicly registered interest in the goods;
(d)any other person known by the receiver to have or to be claiming an interest in the goods.
32ZZFOther applications to court
If a dispute exists between the provider and the receiver regarding the relevant charge for uncollected goods, either party may apply to a court for an order determining the amount of the relevant charge payable to the receiver.
32ZZGCourt orders
(1)On an application under section 32ZZE or 32ZZF, the court may make any of the following orders—
(a)an order authorising the disposal of specified goods under bailment;
(b)an order determining the relevant charge payable to the receiver;
(c)any other orders that it considers necessary to give effect to an order made under paragraph (a) or (b).
(2)An order under subsection (1)(a) must specify the following—
(a)the authorised means of disposal of the goods;
(b)the date by which the goods may be disposed of;
(c)the amount of the relevant charge payable to the receiver for the goods.
32ZZHPayment of relevant charge
If a court order has been made for the disposal of uncollected goods, the provider, the owner of the uncollected goods or any other person with an interest in the goods is entitled, on payment to the receiver of the relevant charge, to delivery of the goods at any time before their disposal.
32ZZIEffect of other proceeding
(1)If, at any time before the disposal of uncollected goods under Division 2, a person (other than the provider) starts a proceeding for the recovery of the goods, an order made under section 32ZZG is suspended until the proceeding is decided.
(2)If an order is made for the recovery of the goods, the order made under section 32ZZG ceases to have effect.
Division 4—Miscellaneous
32ZZJProceeds of sale
(1)If uncollected goods are sold under Division 2, the receiver is entitled to retain the relevant charge payable to the receiver for the goods and the disposal costs.
(2)The balance (if any) of the proceeds of sale are to be dealt with as if the receiver were a business and the money were unclaimed money for the purposes of the Unclaimed Money Act 2008.
(3)If the proceeds of the sale are insufficient to pay the relevant charge and disposal costs, the receiver may recover the deficiency from the provider as a debt in court.
32ZZKRecords held by receiver
(1)Within 7 days after disposing of uncollected goods under Division 2, the receiver must prepare a record of the following particulars—
(a)a description of the goods;
(b)if the goods were disposed of under section 32ZW, 32ZX, 32ZY or 32ZZB—
(i)the date and means of giving notice of intention to dispose of the goods; and
(ii)the name and address of any person to whom the notice was given;
(c)the date of disposal;
(d)the manner of disposal;
(e)if the goods were sold—
(i)the name and address of the purchaser;
(ii)the sale price;
(iii)the amount retained by the receiver to cover the relevant charge payable to the receiver for the goods;
(iv)the amount retained by the receiver to cover the disposal costs;
(f)if the goods were sold by public auction, the name and address of the principal place of business of the auctioneer who sold the goods;
(g)if applicable, the amount of the balance of the proceeds of sale paid to the Registrar and the date of payment.
Penalty:10 penalty units for a natural person;
50 penalty units for a body corporate.
(2)The receiver must—
(a)retain the record for 6 years from the date of disposal; and
(b)make the record available on request by any of the following—
(i)the provider;
(ii)the owner;
(iii)any other person claiming to have an interest in the goods.
32ZZLGood title
(1)The purchaser of goods sold under Division 2 acquires good title to the goods, free from any interest that existed in the goods in favour of another person before the goods were sold, if the purchaser buys the goods—
(a)without notice of any failure of the receiver to comply with this Part; and
(b)without notice of any defect or want of title of the provider.
(2)A receiver who disposes of goods by appropriation in accordance with Division 2 acquires good title to the goods.
32ZZMReceiver to provide purchaser of motor vehicle with receipt
(1)If a receiver sells a motor vehicle under Division 2, the receiver must provide the purchaser with a receipt that complies with this section.
Penalty:10 penalty units for a natural person;
50 penalty units for a body corporate.
(2)The receipt must contain the following—
(a)if the receiver is a natural person, the receiver's full name, address and date of birth;
(b)if the receiver is a body corporate, the receiver's business name and address and ABN;
(c)the vehicle's last registration number (if available) and vehicle identification number;
(d)the purchaser's full name, address and date of birth;
(e)the date of sale;
(f)the sale price;
(g)the name of the owner of the vehicle;
(h)any other prescribed information.
(3)The receipt must state that the vehicle has been disposed of under this Part and must be signed by both the purchaser and the receiver.
32ZZNApplication of other provisions
(1)For the purposes of Part 9—
(a)a provider is taken to be a consumer; and
(b)a receiver is taken to be a trader; and
(c)any dispute under this Part between a provider and a receiver is taken to be a consumer and trader dispute.
(2)Section 121 does not apply to this Part.
(3)Division 2 of Part 11 does not apply to this Part.
__________________".
4New clause 21 inserted into Schedule 3 to the Fair Trading Act 1999
After clause 20 of Schedule 3 to the Fair Trading Act 1999 insert—
"21 Transitional provisions for repeal of Disposal of Uncollected Goods Act 1961
(1)In this clause—
commencement date means the date on which section 5 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 comes into operation;
former Act means the Disposal of Uncollected Goods Act 1961 as in force immediately before the commencement date.
(2)This clause applies despite section 32ZS(1) and the repeal of the former Act.
(3)If, under section 3 of the former Act, a person has given notice of an intention to sell goods, the former Act continues to apply to those goods.
(4)If section 3A or 3B of the former Act applies to uncollected goods, the receiver may elect to dispose of those goods in accordance with Part 2D of this Act.
(5)Despite the repeal of the former Act, a person who has disposed of uncollected goods under that Act is still required to keep the records required by section 5 of that Act until the expiry of the period specified in that section in relation to those goods.
(6)Despite the repeal of the former Act, if an action to reopen a transaction under section 13 of that Act began before the commencement date that section will continue to apply to that action.".
5Disposal of Uncollected Goods Act 1961 repealed
The Disposal of Uncollected Goods Act 1961 is repealed.
6Consequential amendment to Road Safety Act 1986
After section 92(3)(ga) of the Road Safety Act 1986 insert—
"(gb)for the purposes of Part 2D of the Fair Trading Act 1999;".
Division 2—Introduction agents
7New Part 5AA inserted into Fair Trading Act 1999
Before Part 5A of the Fair Trading Act 1999 insert—
'Part 5AA—Introduction Agents
Division 1—Interpretation
93AADefinitions
In this Part—
business day, in relation to an introduction agent, means a day on which the introduction agent is open for business;
introduction agent has the meaning given by section 93AB;
introduction agreement means an agreement to provide an introduction service;
introduction service has the meaning given by section 93AC.
93ABMeaning of introduction agent
An introduction agent is a person who carries on a business of providing, or offering to provide, an introduction service.
93ACMeaning of introduction service
(1)An introduction service is any one or more of the following—
(a)giving a name (or other identifying details) to a person; or
(b)giving a document containing names (or other identifying details) to a person; or
Note
Document is defined in section 38 of the Interpretation of Legislation Act 1984.
(c)arranging for a person to attend a meeting; or
(d)doing anything else specified by the regulations for the purposes of this subsection in relation to a person—
for the purpose of introducing the person to one or more other persons who might be interested in having a personal relationship with the person, or in attending a social outing with the person.
(2)For the purposes of subsection (1), it is irrelevant—
(a)whether the intended introduction is direct or indirect; or
(b)whether the personal relationship is intended to be for a long or short time.
93ADWho carries on a business?
(1)For the purposes of this Part, a person carries on a business if the person—
(a)owns, or partly owns, the business; or
(b)is entitled to share in the proceeds of the business; or
(c)is in effective control of the business.
(2)A person is in effective control of a business if he or she—
(a)is regularly or usually in charge of the business; or
(b)regularly directs the staff of the business in their duties; or
(c)establishes and oversees the office procedures of the business; or
(d)employs or directs any person who does anything referred to in paragraph (a), (b) or (c).
93AEIntroduction agency not to use sex work service premises
(1)A person must not act as an introduction agent on any premises that are occupied by a sex work service provider and on or from which the sex work service provider is operating a brothel or escort agency.
Penalty:240 penalty units.
(2)In this section, brothel, escort agency and sex work service provider have the same meanings as they have in the Sex Work Act 1994.
Division 2—Persons who are not introduction agents
93AFEffect of this Division
If this Division states that a person does not act as an introduction agent in carrying out an activity, nothing in this Part applies to that person in carrying out that activity.
93AGExemption for activities with a community purpose
(1)A person does not act as an introduction agent by carrying out an activity if—
(a)the activity is carried out for a community purpose; and
(b)the net proceeds from the activity are solely applied (or to be applied) to furthering that purpose.
(2)In this section, community purpose means—
(a)a philanthropic or benevolent purpose (including the promotion of art, culture, science, religion, education, medicine or charity); or
(b)a sporting or recreational purpose (including the benefiting of any sporting or recreational club or association).
93AHExemption for non-profit activities
A person does not act as an introduction agent by carrying out an activity—
(a)that does not have a significant commercial purpose or character; and
(b)that does not primarily seek to make a profit for the person or any other person.
93AIExemption for publishers of advertisements etc.
(1)A person does not act as an introduction agent by—
(a)publishing or making available, details of persons who are seeking a personal or social relationship with one or more other persons—
(i)in a newspaper, magazine or similar document that is readily available to members of the public; or
(ii)in a television, radio or similar broadcast that is readily accessible to members of the public who possess the necessary equipment; and
(b)providing a means of enabling persons seeing or hearing the details to make contact with the persons supplying the details.
(2)Subsection (1) applies even if—
(a)it is necessary for members of the public to pay to obtain the newspaper, magazine, document or broadcast; and
(b)a charge is imposed on persons making use of the means referred to in subsection (1)(b).
93AJExemption for information service providers
(1)In this section—
information provider means a person who operates an information service;
information service means the provision of details of persons seeking a personal or social relationship with one or more other persons.
(2)An information provider does not act as an introduction agent in operating an information service if—
(a)a person can obtain details of persons seeking a personal or social relationship with one or more other persons from the information service without the need to speak to, or to otherwise communicate with, the information provider (or any person employed by the information provider); and
(b)a person who provides information to the information provider (or any person employed by the information provider) for the purpose of having that information provided to other persons is not, by providing that information, placed under any obligation—
(i)to use the service again; or
(ii)to pay a fee of more than $250 (or any other amount fixed by the regulations for the purposes of this paragraph); and
(c)a person to whom the information is provided is not, by using the information service, placed under any obligation—
(i)to use the service again; or
(ii)to pay a fee of more than $250 (or any other amount fixed by the regulations for the purposes of this paragraph).
(3)If the fees for providing information to, or obtaining information from, an information service are based on the length of time a person has electronic or mechanical access to the information service and the length of that time is automatically recorded by electronic or mechanical means, subsections (2)(b)(ii) and (2)(c)(ii) do not apply in determining whether an information provider falls within the exemption provided by subsection (2).
93AKExemption for organisers of dances etc.
(1)A person does not act as an introduction agent merely by organising a social activity with the intention of enabling persons to meet if—
(a)the activity is publicly advertised and is open to any member of the public who is willing to pay the admission cost set for the activity; and
(b)the admission cost is the only cost a person attending the activity is liable to pay the organiser of the activity; and
(c)no person attending the activity is placed under any obligation to the organiser of the activity by reason of being allowed to attend the activity, other than an obligation concerning the person's conduct at the activity itself.
(2)The condition specified by subsection (1)(a) is met even if a member of the public is refused admission to the activity, if the refusal is based on a failure by that person to obtain admission to the activity before a limit on the number of persons who could attend the activity was reached.
(3)The condition specified by subsection (1)(b) is met even if food or drink is sold by the organiser in relation to the activity.
(4)A reference in this section to the organiser of an activity includes a reference to any agent or person associated with the organiser.
93ALOther exemptions
(1)A person who is a licensee or an approved manager under the Sex Work Act 1994 does not act as an introduction agent merely by providing a sex work service or by doing anything incidental to the provision of a sex work service.
(2)A person does not act as an introduction agent merely by providing a means that enables another person to offer to provide an introduction service.
Division 3—Persons who must not act as introduction agents
93AMCertain persons not to act as introduction agents
(1)Subject to section 93AO, a natural person must not act as an introduction agent if he or she—
(a)is under 18 years of age; or
(b)is an insolvent under administration; or
(c)has been found guilty of a serious offence within the last 5 years; or
(d)has been found guilty of an offence under the Introduction Agents Act 1997 or an equivalent offence in another jurisdiction within the last 5 years; or
(e)in offering to provide, or in the provision of, an introduction service, has been found guilty of an offence under this Part or an equivalent offence in another jurisdiction within the last 5 years; or
(f)in offering to provide, or in the provision of, an introduction service, has been found guilty of an offence under Part 2 of this Act or an equivalent offence in another jurisdiction within the last 5 years; or
(g)is a represented person within the meaning of the Guardianship and Administration Act 1986; or
(h)is a licensee or an approved manager under the Sex Work Act 1994.
Penalty:120 penalty units or imprisonment for 12 months.
(2)A body corporate must not act as an introduction agent if—
(a)one or more of its directors is disqualified from acting as an introduction agent by subsection (1); or
(b)it has been found guilty of a serious offence within the last 5 years; or
(c)has been found guilty of an offence under the Introduction Agents Act 1997 or an equivalent offence in another jurisdiction within the last 5 years; or
(d)in offering to provide, or in the provision of, an introduction service, it has been found guilty of an offence under this Part or an equivalent offence in another jurisdiction within the last 5 years; or
(e)in offering to provide, or in the provision of, an introduction service, it has been found guilty of an offence under Part 2 of this Act or an equivalent offence in another jurisdiction within the last 5 years; or
(f)it is an externally-administered body corporate.
Penalty:600 penalty units.
(3)In this section—
externally-administered body corporate has the same meaning as in the Corporations Act;
serious offence means an offence involving—
(a)fraud; or
(b)dishonesty; or
(c)drug trafficking; or
(d)violence—
punishable by imprisonment for 3 months or more regardless of whether the offence occurred in Australia or elsewhere.
Division 4—Permission for disqualified persons to act as introduction agents
93ANDisqualified person may apply for permission to act as an introduction agent
(1)A person who is disqualified from acting as an introduction agent by section 93AM (other than a person referred to in section 93AM(1)(a), (g) or (h)) may apply to the Authority at any time for permission to act as an introduction agent.
(2)An application must—
(a)be in a form approved by the Authority; and
(b)contain the information required by the Authority; and
(c)be accompanied by any documents required by the Authority; and
(d)be accompanied by the prescribed fee (if any).
(3)An application may be withdrawn at any time before the Authority determines it.
93AOPermission to act as an introduction agent
(1)The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.
(2)Without limiting its discretion to do so, the Authority may refuse to give its permission if the applicant—
(a)refuses to provide any further information required by the Authority under subsection (3)(b); or
(b)fails to provide any further information required by the Authority under subsection (3)(b) within a reasonable time after the requirement is made.
(3)In determining whether to give its permission, the Authority—
(a)is not required to conduct a hearing; and
(b)may require the applicant to provide such further information as the Authority considers necessary in the manner required by the Authority; and
(c)may seek advice and information on the application from any other person or body as the Authority thinks fit.
(4)The Authority may revoke a permission granted under this section by notice in writing issued to the person in respect of whom the permission was granted if the Authority is satisfied that it is in the public interest for it to do so.
(5)The Authority must not revoke a permission without giving the person an opportunity to be heard.
93APAuthority may impose conditions on permission
(1)In giving its permission under section 93AO(1), the Authority may impose any conditions it considers appropriate to ensure the ongoing protection of the public interest.
(2)The person given the permission, or the Director, may apply to the Authority for a variation or revocation of any conditions the Authority has imposed in respect of the permission.
(3)A person given permission under section 93AO(1) must comply with any conditions imposed in respect of that permission.
Penalty:120 penalty units or 12 months imprisonment, in the case of a natural person;
600 penalty units, in the case of a body corporate.
(4)If the Authority is satisfied that any condition imposed in respect of a permission has been contravened or not complied with, it may revoke the permission by notice in writing issued to the person in respect of whom the permission was granted.
(5)Before taking any action under this section, the Authority may seek and use information and advice from any person or body or other source as it thinks fit.
93AQApplication for review
(1)A person whose interests are affected by a decision of the Authority under section 93AO or 93AP may apply to the Tribunal for review of the decision.
(2)An application for review must be made within 28 days after the later of—
(a)the day on which the decision is made; or
(b)if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
Division 5—Introduction agreements
93ARWhat must an introduction agreement contain?
An introduction agent must not enter into an agreement to provide a person with an introduction service unless the agreement—
(a)is in writing and is readily legible; and
(b)starts with the words "Important Notice" printed in at least 14 point bold type followed by the statement set out in Schedule 1A which (apart from any insertions made by hand) must be printed in at least 12 point type; and
(c)states the names, addresses and telephone numbers of the parties to the agreement; and
(d)sets out a full description of the service to be provided by the agent under the agreement and the terms on which the service is offered; and
(e)states the price of the service and the method of payment; and
(f)contains a statement in bold type that is in at least 12 point type that this Act forbids the payment of more than 30% of the price of the service before any part of the service is provided; and
(g)sets out the period of the agreement; and
(h)states the conditions under which refunds will be made; and
(i)is in English and is expressed clearly; and
(j)sets out in full all other terms of the agreement; and
(k)is signed by the introduction agent (or the introduction agent's authorised agent) and the person who is to be provided with the introduction service under the agreement; and
(l)complies with any other requirements set out in the regulations.
Penalty:240 penalty units.
93ASRestriction on prepayments
(1)An introduction agent must not demand or receive, before any part of an introduction service is provided, an amount that is more than 30% of the price at which the agent agrees to provide the service.
Penalty:240 penalty units.
(2)This section does not apply to an introduction agreement if—
(a)the amount that is to be paid under the agreement is $1000 (or any other amount fixed by the regulations) or less; and
(b)the total of that amount and all amounts that the person entering into the agreement with the introduction agent paid, or became liable to pay, the agent in respect of any other introduction agreements—
(i)in the 30 days immediately before the date the agreement was signed is $1000 (or any other amount fixed by the regulations) or less; and
(ii)in the 12 months immediately before the date of the agreement was signed is $5000 (or any other amount fixed by the regulations) or less.
93ATPerson may withdraw from agreement within 3 days without penalty
(1)A person who has entered into an introduction agreement may withdraw from the agreement at any time before the expiration of 3 clear business days after he or she receives a copy of the signed agreement.
(2)To do this, the person must within that time—
(a)give, or cause to be delivered to, the introduction agent; or
(b)leave at the address shown as the agent's address in the agreement; or
(c)send by facsimile or by other electronic means to the agent—
a written notice signed by the person that states that he or she withdraws from the agreement.
(3)If a person withdraws from an agreement under this section—
(a)the introduction agent is entitled to $250 (or any other amount fixed by the regulations) or 10% of the total amount that is to be paid to the agent under the agreement (whichever is the lower amount); and
(b)the agent must refund all money paid to the agent under the agreement by (or on behalf of) the person (other than any amount the agent is entitled to under paragraph (a)); and
(c)the person is not liable to the agent in any way for withdrawing from the agreement (regardless of anything to the contrary in the agreement).
(4)An introduction agent who must refund money to a person under subsection (3)(b) must do so within 7 days after receiving the notice of withdrawal.
Penalty:240 penalty units.
__________________".
8Schedule 1A inserted into Fair Trading Act 1999
After Schedule 1 to the Fair Trading Act 1999 insert—
"SCHEDULE 1A
Section 93AR
You have a Right to withdraw from this Agreement within 3 Days
You may withdraw from this agreement at any time within 3 business days of signing it.
To withdraw from this agreement you must write a letter to the introduction agent, sign it and either—
·give it to the agent personally or leave it at [insert address]; or
·have it delivered to [insert address or a postal address]; or
·fax it to [insert fax number]; or
·send it to [insert email or Internet or similar address].
Your letter must reach the agent before a.m./p.m. on [date].
If you withdraw from this agreement the agent is entitled to [$250 or whatever other amount is fixed by the regulations] or 10% of the total amount that was payable under this agreement (whichever is the smaller amount).
If the agent holds more of your money than this amount, then the agent must refund the rest of your money within 7 days of receiving your letter.
__________________".
9Consequential amendments
(1)In section 106C of the Fair Trading Act 1999, paragraph (g) of the definition of licence is repealed.
(2)Section 106E(8) of the Fair Trading Act 1999 is repealed.
(3)In Schedule 1 to the Fair Trading Act 1999, omit "Introduction Agents Act 1997".
10Repeal of Introduction Agents Act 1997
The Introduction Agents Act 1997 is repealed.
11Consequential Amendments to Business Licensing Authority Act 1998
(1)In section 3 of the Business Licensing Authority Act 1998, paragraph (c) of the definition of business licensing Act is repealed.
(2)Section 6(a)(iii) of the Business Licensing Authority Act 1998 is repealed.
(3)In section 20 of the Business Licensing Authority Act 1998, paragraph (g) of the definition of licence is repealed.
(4)Section 22(8) of the Business Licensing Authority Act 1998 is repealed.
Division 3—Accommodation providers
12New Part 5C inserted into Fair Trading Act 1999
Before Part 6 of the Fair Trading Act 1999 insert—
"Part 5C—Liability of Accommodation Providers
93ODefinitions
In this Part—
accommodation means a room or other area at an accommodation place that contains sleeping facilities;
accommodation place means any place that provides accommodation for use by members of the travelling public as part of a commercial transaction, but does not include accommodation in or on something that is being used, or is ordinarily used, as means of transportation;
Examples
Accommodation places include backpacker hostels, bed and breakfast providers, hotels, motels, resorts, serviced apartments and similar facilities.
accommodation provider means a person who operates a business that includes providing accommodation;
commercial transaction includes an arrangement under which accommodation is provided without charge if the arrangement is commercial in nature;
fault means negligence or another act or omission giving rise to a liability;
guest means a person to whom, or for whom, accommodation is provided by an accommodation provider during a period of accommodation, but does not include—
(a)a person who is at the accommodation place merely to obtain beverages or food or to visit someone else; or
(b)a person who usually lives at the accommodation place;
innkeeper's liability means innkeeper's liability under the common law but only in relation to the strict liability imposed on an innkeeper for failing to safeguard the property of the innkeeper's guests that is brought to the innkeeper's inn;
innkeeper's lien means the common law right allowing an innkeeper—
(a)to take possession of the property of the innkeeper's guests that is brought to the innkeeper's inn; and
(b)to keep the property until the innkeeper receives payment for accommodation, beverages, food and other services provided to the guest;
loss includes damage or destruction;
period of accommodation means the period of time during which a guest is entitled to use accommodation in an accommodation place;
property of a guest means the property brought to the accommodation place or its precincts by or for the guest, but does not include—
(a)a motor vehicle brought to the accommodation or its precincts by or for the guest, or other things owned by the guest left in or on the motor vehicle; or
(b)property taken from the accommodation or its precincts by or for the guest;
provide includes offering to provide;
safekeeping service means a service provided at an accommodation place where property of guests is deposited with the accommodation provider for safekeeping, but does not include a safe facility located in a unit of accommodation.
93PApplication of common law
For innkeeper's lien and innkeeper's liability—
(a)an accommodation provider, and only an accommodation provider, is an innkeeper;
(b)an accommodation place, and only an accommodation place, is an inn.
93QLiability of accommodation providers under this Part
(1)Subject to subsection (2) and section 93R, an accommodation provider is liable to make good the loss of any property of a guest if the property is lost—
(a)in the accommodation place during the period of accommodation; or
(b)while the property is deposited for safekeeping with the accommodation provider.
(2)This liability of an accommodation provider under this Part does not include liability for the loss of any property of a guest if the loss was due to an intentional or negligent act or omission of the guest.
93RLimitation on accommodation providers' liability for property of guest
(1)Subject to subsection (2), the liability of an accommodation provider to make good the loss of, or damage to, any property of a guest under section 93Q is limited to $300 per unit of accommodation or any higher prescribed amount if the notice set out in Schedule 2A was displayed in accordance with section 93T—
(a)at all times during the accommodation period; and
(b)at the time of the arrival of the guest at the accommodation place.
(2)Subsection (1) does not apply if—
(a)the property of the guest had been deposited by or on behalf of the guest for safekeeping with the accommodation provider in accordance with section 93S; or
(b)the accommodation provider had represented that a safekeeping service was available at the accommodation place before the guest agreed to purchase the accommodation and the accommodation provider—
(i)had unreasonably refused to accept the property for safekeeping; or
(ii)was unable to accept the property for safekeeping due to the default of the accommodation provider; or
(c)the loss or damage was caused by the intentional or negligent act or omission of the accommodation provider or its employees or agents.
93SAccommodation provider to provide safekeeping service
(1)An accommodation provider must accept the property of a guest for deposit in a safekeeping service unless the accommodation provider has a reasonable excuse for not doing so.
(2)If a guest asks to use an accommodation provider's safekeeping service, the accommodation provider—
(a)may inspect the property to be deposited by the guest;
(b)may ask the guest to describe the nature of the property and the approximate value of the property;
(c)must provide the guest with a receipt for the property, which contains the information given under paragraph (b);
(d)may require the guest to place the property in a container and fasten or seal the container.
(3)An accommodation provider is liable for the loss of a guest's property if it happens after the accommodation provider accepts the property for depositing in the safekeeping service.
(4)Subject to subsection (5), the liability of an accommodation provider under subsection (3) is limited to $3000 (or another prescribed amount) for each unit of accommodation provided for the use of the guest on the day of the loss, irrespective of—
(a)the number of guests who are provided with the use of that unit of accommodation on the day; and
(b)the value of the loss on the day.
(5)The limitation on liability under subsection (4) does not apply if, before or at the time the accommodation provider accepts the property for depositing in the safekeeping service—
(a)the guest, in writing given to the accommodation provider, declares the value of the property is more than $3000 (or the amount prescribed under subsection (4)); and
(b)the accommodation provider agrees, in writing given to the guest, to accept liability for the value of the property stated under paragraph (a); and
(c)the guest agrees to pay a fee for the accommodation provider accepting the property for depositing in the safekeeping service, if asked to do so by the accommodation provider.
(6)For the purposes of subsection (1), a reasonable excuse includes—
(a)that the guest does not place the property in a container and fasten or seal it, in response to a requirement under subsection (2)(d);
(b)in a case where subsection (5) applies, that the guest does not agree to pay any fee requested under subsection (5)(b);
(c)that the accommodation provider reasonably considers that depositing the property in the safekeeping service would be unreasonable having regard to the property's nature, size or value and the type of accommodation and tariff charged for the accommodation.
93TNotice about this Part
(1)An accommodation provider must cause the notice set out in Schedule 2A to be conspicuously displayed so it may easily be read by a person when the person is in the reception area of, or the main entrance to, the accommodation place.
(2)An accommodation provider must cause the notice set out in Schedule 2A—
(a)to be conspicuously displayed in each unit of accommodation that is provided to guests so it may easily be read by a guest who has use of that unit of accommodation; or
(b)to be given to the guest in respect of each unit of accommodation, provided that the notice is specifically identified and mentioned to the guest.
93UInnkeeper's lien
If a person is a guest of an accommodation provider and the guest's actions would, if the accommodation provider were an innkeeper at common law, give rise to an innkeeper's lien for the guest's property, the accommodation provider may exercise an innkeeper's lien for the guest's property.
93VPart 11 not to apply
Part 11 does not apply to this Part.
__________________".
13New Schedule 2A inserted into Fair Trading Act 1999
After Schedule 2 to the Fair Trading Act 1999 insert—
"SCHEDULE 2A
Section 93T
Notice
LOSS OF OR DAMAGE TO GUESTS' PROPERTY
Part 5C of the Fair Trading Act 1999 may make an accommodation provider liable to make good the loss of a guest's property in certain circumstances even though the loss is not caused by the fault of the accommodation provider, or the provider's agent.
The liability of the accommodation provider under the Act—
·applies only to a guest of the accommodation provider;
·applies only for the period for which the guest is provided accommodation;
·is limited to $300 for each room provided for the use of the guest on the day, unless the guest's property was placed in a safekeeping service;
·is limited to $3000 for each room in respect of a guest's property that was placed in a safekeeping service (excluding a safe in a room);
·does not cover motor vehicles and property owned by the guest left in or on a motor vehicle.
Part 5C does not limit any other right or remedy available under the Fair Trading Act 1999.
__________________".
14Carriers and Innkeepers Act 1958
The Carriers and Innkeepers Act 1958 is repealed.
__________________
Part 3—Amendments to Goods Act 1958 and Consequential Repeals
15Repeals and savings
Section 2(1) of the Goods Act 1958 is repealed.
16Provisions relating to bills of lading repealed
(1)Insert the following heading to Part II of the Goods Act 1958—
"Part II—Consignees, Mercantile Agents, Documents of Title to Goods".
(2)Sections 75 to 80 of the Goods Act 1958 are repealed.
17New Parts IV and IVA inserted into Goods Act 1958
After Part III of the Goods Act 1958 insert—
"Part IV—Vienna Convention
84Part binds the Crown
This Part binds the Crown in right of Victoria and, in so far as the legislative power of the Parliament of Victoria permits, the Crown in all its other capacities.
85Convention
In this Part, Convention means the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria, on 10 April 1980 and opened for signature and also for accession on 11 April 1980, a copy of which is set out in the Schedule.
86Convention to have the force of law
The provisions of the Convention have the force of law in Victoria.
87Convention to prevail in event of inconsistency
The provisions of the Convention prevail over any other law in force in Victoria to the extent of any inconsistency.
88Evidence of certain matters
A document purporting to be a notice issued by the Minister and published in the Government Gazette, or a document purporting to be a notice issued by a Minister of State for the Commonwealth and published in the Commonwealth of Australia Gazette, or a document certified by an Australian lawyer (within the meaning of the Legal Profession Act 2004) to be a true copy of such a notice—
(a)declaring that the Convention has entered or will enter into force, with effect from a specified date, in respect of a specified country; or
(b)declaring that a specified country has made a declaration under Part IV of the Convention and specifying details of that declaration, including the date the declaration took or will take effect; or
(c)declaring that a specified country has denounced the Convention or Part II or III of the Convention and specifying the date the denunciation took or will take effect—
is evidence of the matters contained in the document.
__________________
Part IVA—Sea-Carriage Documents
Division 1—Preliminary
89Definitions
In this Part—
bill of lading means a bill of lading (including a received for shipment bill of lading) that is capable of transfer—
(a)by endorsement; or
(b)as a bearer bill, by delivery without endorsement;
contract of carriage, in relation to a sea-carriage document, means—
(a)in the case of a bill of lading or a sea waybill—the contract of carriage contained in, or evidenced by, the document; or
(b)in the case of a ship's delivery order—the contract of carriage in association with which the order is given;
data message means information generated, stored or communicated by electronic, optical or analogous means, including, but not limited to, electronic data interchange, electronic mail, telegram, telex and telecopy;
goods, in relation to a sea-carriage document, means the goods to which the document relates;
identification, in relation to the identification of a person in a sea-carriage document, includes the identification of the person by a description that allows for the person's identity to be varied, in accordance with the document, after its issue;
lawful holder, of a bill of lading, means a person who—
(a)has come into possession of the bill, in good faith, as the consignee of the goods, by virtue of being identified in the bill; or
(b)has come into possession of the bill, in good faith, as a result of the completion, by delivery of the bill—
(i)of any endorsement of the bill; or
(ii)in the case of a bearer bill, of any other transfer of the bill; or
(c)would be the lawful holder of the bill under paragraph (a) or (b) had not the person come into possession of the bill as the result of a transaction effected at a time when possession of the bill no longer gave a right (as against the carrier) to possession of the goods;
sea waybill means a document other than a bill of lading which—
(a)is issued by the carrier of the goods; and
(b)is a receipt for the goods; and
(c)contains or evidences a contract for the carriage of the goods by sea; and
(d)identifies the person to whom delivery of the goods is to be made by the carrier in accordance with the contract;
sea-carriage document means a bill of lading, a sea waybill or a ship's delivery order;
ship's delivery order means a document other than a bill of lading or sea waybill which—
(a)is given in association with the contract for the carriage of goods by sea including those to which the document relates; and
(b)contains an undertaking by the carrier to deliver the goods to which the document relates to a person identified in the document.
90Electronic and computerised sea-carriage documents
(1)Subject to this section, this Part applies—
(a)in relation to a sea-carriage document in the form of a data message—in the same way as it applies to a written sea-carriage document;
(b)in relation to the communication of a sea-carriage document by means of a data message—in the same way as it applies to the communication of a sea-carriage document by other means.
(2)This Part applies under subsection (1) with necessary changes and in accordance with procedures agreed between the parties to the contract of carriage.
(3)Without limiting the generality of subsection (2), in this Part, in the application of the following terms to a sea-carriage document in the form of a data message, or the communication of a sea-carriage document by means of a data message—
delivery includes any form of communication which constitutes delivery under the terms of the contract of carriage;
endorsement includes any form of authorisation which constitutes endorsement under the terms of the contract of carriage;
possession, in relation to the document, includes being in receipt of the document in any manner which constitutes possession under the terms of the contract of carriage;
signed includes authenticated in any manner which constitutes signing under the terms of the contract of carriage.
91Application where goods have ceased to exist, or cannot be identified
Without prejudice to the operation of section 92(4) or 96, nothing in this Part precludes its operation in relation to a sea-carriage document where the goods—
(a)cease to exist after the issue of the document; or
(b)cannot be identified (whether because they are mixed with other goods, or for any other reason).
Division 2—Rights under contracts of carriage
92Transfer of rights
(1)All rights under the contract of carriage in relation to which a sea-carriage document is given are transferred to—
(a)in the case of a bill of lading—each successive lawful holder of the bill; or
(b)in the case of a sea waybill—the person (not being an original party to the contract) to whom delivery of the goods is to be made by the carrier in accordance with the contract; or
(c)in the case of a ship's delivery order—the person to whom delivery of the goods is to be made in accordance with the order.
(2)Rights in a contract of carriage transferred to a person under subsection (1) vest in that person as if the person had been an original party to the contract.
(3)Rights in a contract of carriage in relation to which a ship's delivery order is given are transferred under subsection (1)—
(a)subject to the terms of the order; and
(b)only in respect of the goods to which the order relates.
(4)If a person becomes the lawful holder of a bill of lading when possession of the bill no longer gives a right (as against the carrier) to possession of the goods, no rights are transferred to that person under subsection (1) unless the person becomes the lawful holder of the bill—
(a)by virtue of a transaction effected under any contractual or other arrangement made before the possession of the bill ceased to give such a right to possession; or
(b)as a result of the re-endorsement of the bill following rejection to that person by another person of goods or documents delivered to the other person under any contractual or other arrangement made before the possession of the bill ceased to give such a right to possession.
(5)If, in relation to a sea-carriage document—
(a)a person with any interest or right in relation to the goods sustains loss or damage in consequence of a breach of the contract of carriage; and
(b)subsection (1) operates to transfer the rights in that contract to another person—
the person to whom the rights in the contract are transferred is entitled to exercise those rights for the benefit of the person who sustained the loss or damage to the same extent that they would be able to be exercised if they were vested in that person.
(6)In this section, a reference to a contract of carriage, in relation to the transfer of rights under the contract, is to be taken to be a reference to the contract as varied by any variation of which the transferee has notice at the time of the transfer.
93Extinguishment of previous rights
(1)If section 92 operates in relation to a bill of lading to transfer rights under the contract of carriage, the transfer extinguishes any entitlement to those rights which derives from—
(a)a person having been an original party to the contract of carriage; or
(b)the previous operation of that section.
(2)If section 92 operates in relation to a sea waybill or ship's delivery order to transfer rights under the relevant contract of carriage—
(a)the transfer extinguishes any entitlement to those rights which derives from the previous operation of that section; and
(b)in the case of a sea waybill—the transfer is without prejudice to any rights which derive from a person having been an original party to the contract; and
(c)in the case of a ship's delivery order—the transfer is without prejudice to any rights under the contract other than rights derived from the previous operation of that section.
(b)so as to make, as respects the cases in relation to which the power is exercised—
(i)the same provision for all cases in relation to which the power is exercised, or different provisions for different cases or classes of case, or different provisions for the same case or class of case for different purposes; or
(ii)any such provision either unconditionally or subject to any specified condition.
(4)Regulations under this Act may be made—
(a)so as to apply at all times or at a specified time; and
(b)so as to require matters affected by the regulations to be—
(i)in accordance with specified standards or specified requirements; or
(ii)approved by or to the satisfaction of specified persons or bodies or specified classes of persons or bodies; or
(iii)as specified in both subparagraphs (i) and (ii); and
(c)so as to apply, adopt or incorporate any matter contained in any document, whether—
(i)wholly or partially or as amended by the regulations; or
(ii)as in force at a particular time or as in force from time to time; and
(d)so as to confer a discretionary authority or impose a duty on specified persons or bodies or specified classes of persons or bodies; and
(e)so as to provide in specified cases or classes of case for the exemption of persons or things or classes of persons or things from any of the provisions of the regulations, whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.".
49Heading to Part IX amended
In the heading to Part IX of the Estate Agents Act 1980, after "TRANSITIONAL" insert "AND SAVINGS".
50New section 102 inserted at end of Part IX
At the end of Part IX of the Estate Agents Act 1980 insert—
"102 Authorised financial institutions
Despite the repeal of section 60(6), a financial institution to which the definition of authorised financial institution in that subsection applied immediately before the commencement of section 14 of the Consumer Affairs Legislation Amendment Act 2010 is taken to be a financial institution with which the Secretary has entered into an arrangement under section 60(1).".
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Part 6—Amendments to Conveyancers Act 2006
51Name of conveyancing business
Section 39 of the Conveyancers Act 2006 is repealed.
52Displaying information and licence at places of business
Section 59(1) and (2) of the Conveyancers Act 2006 are repealed.
53Letterhead
Section 60 of the Conveyancers Act 2006 is repealed.
54Annual audit of trust records
At the foot of section 84(1) of the Conveyancers Act 2006 insert—
"Penalty:120 penalty units".
55Annual record of trust records audit or statutory declaration
(1)In section 85(1) of the Conveyancers Act 2006, for "lodge with the Director a report of each audit of a" substitute "provide a licensee with a report of each audit of the".
(2)In the penalty at the foot of section 85(1) of the Conveyancers Act 2006, for "120" substitute "25".
(3)After section 85(1) of the Conveyancers Act 2006 insert—
"(1A)Within 10 business days after receiving a report under subsection (1), the licensee must lodge a copy of the report with the Director.
Penalty:120 penalty units.".
56Application of Fair Trading Act 1999
In section 183(3)(b) of the Conveyancers Act 2006, for "149A" substitute "149A,".
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Part 7—Amendments to Sale of Land Act 1962
57Sale of land prior to approval of plan
(1)In section 9AA(1) of the Sale of Land Act 1962—
(a)in paragraph (a)—
(i)in subparagraph (i), for "subdivision; or" substitute "subdivision; and";
(ii)subparagraph (ii) is repealed;
(b)at the foot of paragraph (b) insert—
'Note
The expression "does not exceed 10 per cent" means that a deposit may be up to and including 10 per cent.'.
(2)After section 9AA(1) of the Sale of Land Act 1962 insert—
"(1A)A contract for the sale of a lot referred to in subsection (1) must include on the front page of that contract, a notice to the purchaser stating—
(a)that subject to the limit set by subsection (1)(b), the purchaser may negotiate with the vendor about the amount of deposit moneys payable under the contract; and
(b)that a substantial period of time may elapse between the day on which the purchaser signs the contract for sale and the day on which the purchaser becomes the registered proprietor of the lot; and
(c)that the value of the lot may change between the day on which the purchaser signs the contract for sale of that lot and the day on which the purchaser becomes the registered proprietor.".
(3)For section 9AA(2) of the Sale of Land Act 1962 substitute—
"(2)The deposit moneys paid by the purchaser before the registration of the plan under a prescribed contract of sale of a lot must be paid to the legal practitioner, conveyancer or licensed estate agent acting for the vendor.".
(4)Section 9AA(3) and (4) of the Sale of Land Act 1962 are repealed.
(5)For section 9AA(6) of the Sale of Land Act 1962 substitute—
"(6)In this section (except subsection (1)(b)) and section 9AF, deposit moneys in relation to the sale of a lot includes any moneys which are part of the purchase price received by the vendor or on behalf of the vendor before the purchaser becomes entitled to a transfer or conveyance of the lot.".
58Purchaser may call for a transfer on giving a mortgage back
In section 29H(4) of the Sale of Land Act 1962, for "morgages" substitute "mortgages".
59Power of purchaser to terminate a contract for sale of land
In section 31(5) of the Sale of Land Act 1962—
(a)in paragraph (d), for "body; or" substitute "body.";
(b)paragraph (e) is repealed.
60Savings provision inserted into Part 3
(1)In the heading to Part 3 of the Sale of Land Act 1962, before "TRANSITIONAL" insert "SAVINGS AND".
(2)After section 50 of the Sale of Land Act 1962 insert—
"51 Amendment to section 9AA—Consumer Affairs Legislation Amendment (Reform) Act 2010
Despite the commencement of section 65 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, section 9AA of this Act as in force immediately before that commencement continues to apply—
(a)in respect of any deposit moneys paid into a special purpose account established under section 9AA;
(b)for the purposes of the reference to section 9AA in section 9AE(1) in respect of a relevant contract of sale that was signed before that commencement.".
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Part 8—Standardisation of Infringements Powers in Consumer Acts
61Funerals Act 2006
After section 81 of the Funerals Act 2006 insert—
81AInfringement notices"
(1)An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act or the regulations that is prescribed for the purposes of this subsection.
(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.
(3)The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty.
(4)In this section authorised officer means—
(a)an inspector;
(b)a member of the police force;
(c)a person authorised in writing by the Director.".
62Owners Corporations Act 2006
After section 203 of the Owners Corporations Act 2006 insert—
"203A Infringement notices
(1)An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act that is prescribed for the purposes of this subsection.
(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.
(3)The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty.
(4)In this section authorised officer means—
(a)an inspector;
(b)a member of the police force;
(c)a person authorised in writing by the Director.".
63Travel Agents Act 1986
(1)In section 39ZC of the Travel Agents Act 1986, for "specified in the Schedule" substitute "or the regulations that is prescribed for the purposes of this subsection".
(2)Section 39ZD of the Travel Agents Act 1986 is repealed.
(3)The Schedule to the Travel Agents Act 1986 is repealed.
64Residential Tenancies Act 1997
(1)In section 510C of the Residential Tenancies Act 1997, for "specified in Schedule 2" substitute
"or the regulations that is prescribed for the purposes of this subsection".
(2)Section 510D of the Residential Tenancies Act 1997 is repealed.
(3)Schedule 2 to the Residential Tenancies Act 1997 is repealed.
65Retirement Villages Act 1986
After section 42A of the Retirement Villages Act 1986 insert—
"42B Infringement notices
(1)An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act or the regulations that is prescribed for the purposes of this subsection.
(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.
(3)The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty.
(4)In this section authorised officer means—
(a)a person appointed under section 114 of the Fair Trading Act 1999;
(b)a member of the police force;
(c)a person authorised in writing by the Director.".
66Sale of Land Act 1962
After section 48A of the Sale of Land Act 1962 insert—
"48B Infringement notices
(1)An authorised officer may serve an infringement notice on any person who the officer has reason to believe has committed an offence against this Act or the regulations that is prescribed for the purposes of this subsection.
(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.
(3)The infringement penalty for an offence prescribed for the purposes of subsection (1) is the prescribed infringement penalty.
(4)In this section authorised officer means—
(a)a person appointed under section 114 of the Fair Trading Act 1999;
(b)a member of the police force;
(c)a person authorised in writing by the Director of Consumer Affairs Victoria.".
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Part 9—Amendments to Fair Trading Act 1999
67Small claim commenced in a court
After section 112A(2) of the Fair Trading Act 1999 insert—
"(3)If the court dismisses the proceedings under subsection (2), the court must not make an order as to costs in respect of those proceedings.".
68Section 143 amended
(1)Insert the following heading to section 143 of the Fair Trading Act 1999—
"Contraventions by bodies corporate".
(2)In section 143 of the Fair Trading Act 1999—
(a)in subsection (1), after "contravenes" insert "or commits an offence against";
(b)in subsection (2), after "against and" insert ", in the case of an offence,";
(c)in subsection (3), for "an offence committed by the body corporate against this Act" substitute "a contravention of this Act by the body corporate".
69Defences
In section 155(2) of the Fair Trading Act 1999, for "subsection (1)(b)" substitute "subsection (1)(a)".
70New sections 162AA and 162AB inserted
Before section 162A of the Fair Trading Act 1999 insert—
"162AA Prohibited debt collection practices
(1)A person must not in trade or commerce engage in a prohibited debt collection practice while—
(a)collecting or attempting to collect a debt; or
(b)repossessing or attempting to repossess goods.
Penalty:In the case of a body corporate, 1200 penalty units;
In any other case, 240 penalty units.
(2)In subsection (1), prohibited debt collection practice means—
(a)using physical force or undue harassment or coercion;
(b)entering or threatening to enter a private residence without lawful authority;
(c)using any threat, deception or misrepresentation to obtain consent to enter a private residence;
(d)refusing to leave a private residence or workplace when requested to do so;
(e)doing or threatening to do any act that may intimidate a person or a member of that person's family;
Example
Carrying a firearm within the meaning of the Firearms Act 1996 or a dangerous article within the meaning of the Control of Weapons Act 1990.
(f)doing or threatening to do any act that may expose to ridicule a person or a member of that person's family;
Example
Parking a vehicle outside a debtor's private residence that displays information that a person is engaged in debt collection.
(g)using a document that is not an official document but that resembles or purports to be an official document;
Examples
Any document that gives the appearance of having been authorised, issued or approved by a court, government or government agency when it has not been.
Serving a summons that has not been issued.
(h)impersonating an employee or agent of the State, another state, a Territory or the Commonwealth;
(i)attempting to take possession of or threatening to take possession of any property to which the person, or the person's principal, is not entitled to possession;
Example
Making a representation that immediate possession will be taken of a debtor's home or other property when a debt is not secured by that property or the creditor has not obtained judgment for the debt.
(j)disclosing or threatening to disclose debt information, without the consent of the debtor, to any other person who does not have a clear and legitimate interest in the information;
Example
Disclosing debt information when contacting a person who is not the debtor while attempting to locate or identify the debtor.
(k)making a false or misleading representation in connection with—
(i)the nature of a debt; or
(ii)the extent of a debt; or
(iii)the consequences of not paying a debt; or
(iv)the method of recovering a debt;
Examples
Falsely representing that a debt is a fine or other pecuniary penalty, or that a person has committed an offence.
Using a letterhead which is liable to mislead the person to whom the letter is sent as to the identity, status or role of the person who used the letterhead.
Falsely representing to a person who is not a debtor that, in relation to a debt, the person must prove or make a statutory declaration that he or she does not owe the debt.
Threatening to give a credit reporting agency information that could affect a person's creditworthiness that could not be given or that would, if given, be false or misleading.
(l)contacting a person by a method that the person has asked not to be used, unless there is no other method available;
(m)contacting a person about a debt after the person advises in writing that no further communication should be made about that debt, unless the contact is by way of—
(i)an action issued through a court or the Tribunal; or
(ii)the threat of an action that the person to whom the debt is owed is entitled to issue through a court or the Tribunal and which the person intends to take;
(n)communicating with a person under 18 years of age in relation to a debt, if the person is not the debtor;
(o)demanding the payment of a debt from a person without having a belief on reasonable grounds that the person is—
(i)the debtor or the debtor's agent or representative; and
(ii)liable for the debt;
(p)communicating with a person in a manner that is unreasonable in its frequency, nature or content.
(3)In subsection (2), debtor includes a mortgagor or guarantor of a debtor.
(4)For the purposes of subsection (2)(g), official document includes a summons, a court document, a Tribunal document, a notice issued under the Infringements Act 2006 and any other communication that is authorised, issued or approved by a court, the Tribunal, a government or a government agency.
Note
Section 38 of the Interpretation of Legislation Act 1984 defines document.
(5)This section does not apply to any of the following acting in an official capacity—
(a)the sheriff or a sheriff's officer;
(b)a member of the police force;
(c)a bailiff;
(d)any other employee or agent of the State, another state, a Territory or the Commonwealth.
(6)In this section, debt includes an alleged debt.
162ABAdditional remedy for contraventions of section 162AA
(1)A natural person who has experienced humiliation or distress due to a course of conduct of another person in contravention of section 162AA with respect to a consumer debt may apply to a court or the Tribunal for an order that the person engaging in that conduct, or a person involved in that conduct, pay damages of up to $10 000 (or another prescribed amount).
(2)In subsection (1)—
consumer debt means any debt that is incurred by a natural person wholly or predominately in connection with personal, domestic or household purposes;
course of conduct means conduct that occurs on at least two occasions;
person involved has the meaning given by section 145.
(3)Subsection (1)—
(a)applies in addition to any other available remedy;
(b)is not intended to affect any other available remedy.
(4)Clauses 28BB and 28GG of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 do not apply in a proceeding where damages are sought under this section.
(5)Part VBA of the Wrongs Act 1958 does not apply to a claim under this section.".
71Sections 162AA and 162AB repealed
Sections 162AA and 162AB of the Fair Trading Act 1999 are repealed.
72Savings and transitional
(1)In Schedule 3 to the Fair Trading Act 1999, in clause 16(1) and (2), for "1 January 2011" substitute "section 18 of the Consumer Affairs Legislation Amendment Act 2010 comes into operation".
(2)At the end of Schedule 3 to the Fair Trading Act 1999 insert—
22Transitional provision for repeal of Carriers and Innkeepers Act 1958"
(1)A notice in accordance with the Fourth Schedule to the Carriers and Innkeepers Act 1958 as in force immediately before the commencement day, displayed in accordance with Part 5C of this Act, is taken, for a period of one month after the commencement day, to be the notice set out in Schedule 2A to this Act.
(2)In this clause, commencement day means that day on which section 14 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 comes into operation.
23Transitional provision for repeal of Part IVA of Landlord and Tenant Act 1958
(1)Part IVA of the Landlord and Tenant Act 1958 continues to apply at the end or other determination of a lease of premises to which that Part applied immediately before the commencement day.
(2)In this clause, commencement day means that day on which section 75 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 comes into operation.".
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Part 10—Amendment to the Business Licensing Authority Act 1998
73Constitution of Authority
(1)Section 5(1)(b) of the Business Licensing Authority Act 1998 is repealed.
(2)For section 5(5) and (6) of the Business Licensing Authority Act 1998 substitute—
"(5)Despite the alteration made to the constitution of the Authority by section 73 of the Consumer Affairs Legislation Amendment (Reform) Act 2010, the Authority is taken to be the same body after the commencement of that section as it was before that commencement.".
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Part 11—Amendments to Prostitution Control Act 1994
74Persons to answer questions in relation to suspected non-licensed sex work service providing business
In section 61DA(3) of the Prostitution Control Act 1994, for "refuse" substitute ", refuse".
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Part 12—Miscellaneous Amendments and Repeals
Division 1—Repeal
75Landlord and Tenant Act 1958
The Landlord and Tenant Act 1958 is repealed.
Division 2—Consequential and other amendments
76Motor Car Traders Act 1986
(1)In section 3(1) of the Motor Car Traders Act 1986, in the definition of owner, for "bill of sale" (where twice occurring) substitute "goods mortgage".
(2)In section 28(3) of the Motor Car Traders Act 1986—
(a)in paragraph (a)—
(i)before "convicted" insert "or has been";
(ii)before "disqualified" insert "or has been";
(b)in paragraph (b)—
(i)omit "still";
(ii)after "days" insert "or more".
(3)For section 29A(1) of the Motor Car Traders Act 1986 substitute—
"(1)This section applies to a person—
(a)in relation to whom a claim has been admitted against the Fund;
(b)who was a partner or director of, or a person concerned in the management of, a partnership or body corporate that has had a claim admitted against the Fund in relation to an act or omission that occurred at the time the person was a partner or director of, or a person concerned in the management of, the partnership or body corporate.".
77Owners Corporations Act 2006
(1)In section 11 of the Owners Corporations Act 2006 paragraph (a) is repealed.
(2)At the end of section 11 of the Owners Corporations Act 2006 insert—
"(2)An owners corporation may by instrument or resolution delegate any power or function of the owners corporation (other than a power or function that requires a unanimous resolution or a special resolution or this power of delegation) to the committee of the owners corporation.
(3)The instrument of delegation or resolution under subsection (1) or (2) must be made at a general meeting.
(4)A delegation to the committee of the owners corporation under subsection (2) ceases to have effect at the next annual general meeting after the instrument or resolution is made if not sooner revoked.
Note
An owners corporation may, by resolution, ratify any decision made by a committee before section 33 of the Consumer Affairs Legislation Amendment Act 2010 came into operation.".
(3)After section 21(2) of the Owners Corporations Act 2006 insert—
"(2A)Despite subsection (1), the sealing of an owners corporation certificate in accordance with section 151(4)(c) may be witnessed by—
(a)the registered manager; or
(b)the chairperson of the owners corporation elected under section 98.".
78Residential Tenancies Act 1997
(1)After section 14(2) of the Residential Tenancies Act 1997 insert—
"(3)This Act does not apply to premises that were prescribed premises within the meaning of Part V of the Landlord and Tenant Act 1958 immediately before that Act was repealed.".
(2)Section 15(1) of the Residential Tenancies Act 1997 is repealed.
(3)After Division 3 of Schedule 1 to the Residential Tenancies Act 1997 insert—
"Division 4—Consumer Affairs Legislation Amendment (Reform) Act 2010
12Commencement day
In this Division, commencement day means the day on which section 75 of the Consumer Affairs Legislation Amendment (Reform) Act 2010 comes into operation.
13Saving for protected tenants
Part V of the Landlord and Tenant Act 1958 continues to apply to a lease of premises to which that Part applied immediately before the commencement day for so long as those premises remain prescribed premises.
14Part V leases of prescribed premises to be transitioned to Residential Tenancies Act 1997 except in certain circumstances
(1)If a lessee in possession of premises to which Part V of the Landlord and Tenant Act 1958 applies dies on or after the commencement day, only the partner of the lessee who is residing with the lessee at the time of that death may take over the protected tenancy pursuant to section 106 of that Act.
(2)Despite section 14(3) and except in the circumstances described in subclause (1), Part V of the Landlord and Tenant Act 1958 will cease to apply on and from the date of death of a lessee who was in possession of premises under a lease to which that Part applied.".
79Travel Agents Act 1986
(1)In section 3(1) of the Travel Agents Act 1986 insert the following definition—
"manager means a person who is present and in charge of the day-to-day operations of a place of business;".
(2)For section 33 of the Travel Agents Act 1986 substitute—
"33 Licensee must supervise conduct of business
A licensee must ensure that the business conducted at any place from which a licensee carries on business as a travel agent is supervised by a manager (whether or not a licensee) with qualifications approved by the Director.
Penalty:60 penalty units.".
80Victorian Civil and Administrative Tribunal Act 1998
After clause 51AD of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert—
"51ADA Tribunal may make orders for costs incurred by owners corporations
(1)The Tribunal may make an order for costs under section 109 incurred by a lot owner or an owners corporation, either directly or indirectly (including the costs of professional and volunteer managers), in an application to the Tribunal relating to the recovery of fees and charges imposed by an owners corporation under Division 1 of Part 3 of the Owners Corporations Act 2006.
(2)Costs awarded under subclause (1) are not limited to costs incurred by a professional advocate under section 62.".
81Consequential amendments for change of short title of Prostitution Control Act 1994
An Act specified in a heading to an item in the Schedule is amended as set out in that item.
Division 3—Repeal of amending Act
82Repeal of amending Act
This Act is repealed on 1 September 2012.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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SCHEDULE
Section 81
Consequential amendments for change of short title of Prostitution Control Act 1994
1Business Licensing Authority Act 1998
1.1In section 3, in paragraph (e) of the definition of business licensing Act, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
1.2In section 6(a)(v), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
1.3In section 20, in paragraphs (a) and (d) of the definition of licence, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
1.4In section 22(2)(c) and (5), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
2Confiscation Act 1997
2.1In clause 17 of Schedule 1, for "Prostitution Control Act 1994 (prostitution" substitute
"Sex Work Act 1994 (sex work".
2.2In item 2A of Schedule 2—
(a)for "Prostitution Control Act 1994" substitute "Sex Work Act 1994";
(b)in paragraphs (d) and (e), for "prostitution" substitute "sex work".
3Consumer Affairs Legislation Amendment (Reform) Act 2010
3.1In the heading to Part 10, for "PROSTITUTION CONTROL" substitute "SEX WORK".
3.2In sections 73 and 74 for "Prostitution Control" substitute "Sex Work".
4Crimes Act 1958
In section 60B(2)(a)(ia)(A), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
5Criminal Procedure Act 2009
5.1For the heading to item 24 of Schedule 2 substitute—
"Sex Work Act 1994".
5.2In items 24.1 and 24.2 of Schedule 2, for "Prostitution Control Act 1994" substitute
"Sex Work Act 1994".
6Fair Trading Act 1999
6.1In section 29(2), for "prostitution services within the meaning of the Prostitution Control Act 1994" substitute "sex work services within the meaning of the Sex Work Act 1994".
6.2In section 106C, in paragraphs (a)(iii) and (d) of the definition of licence, for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
6.3In section 106E(2)(c) and (5), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
6.4In Schedule 1, omit "Prostitution Control Act 1994".
6.5In Schedule 1, after "Second-Hand Dealers and Pawnbrokers Act 1989" insert "Sex Work Act 1994".
7Introduction Agents Act 1997
7.1In section 13(1), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
7.2In section 14(1)(e), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
7.3For section 20(2) substitute—
"(2)In this section brothel, escort agency and sex work service provider have the same meanings as they have in the Sex Work Act 1994.".
8Police Regulation Act 1958
In item 3.1 of the First Schedule, for "Prostitution Control Act 1994" substitute
"Sex Work Act 1994".
9Public Health and Wellbeing Act 2008
9.1In section 3(1), in the definitions of brothel, escort agency and sexual services for "Prostitution Control Act 1994" substitute
"Sex Work Act 1994".
9.2In section 165(1), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
10Sentencing Act 1991
In clause 1(db) of Schedule 1—
(a)for "Prostitution Control Act 1994" substitute "Sex Work Act 1994";
(b)in subparagraphs (i) and (iv), for "prostitution" substitute "sex work".
11Serious Sex Offenders (Detention and Supervision) Act 2009
11.1In item 29 of Schedule 1—
(a)for "Prostitution Control Act 1994" substitute "Sex Work Act 1994";
(b)for "prostitution" substitute "sex work".
11.2In items 30 and 31 of Schedule 1, for "Prostitution Control Act 1994" substitute
"Sex Work Act 1994".
11.3In item 32 of Schedule 1—
(a)for "Prostitution Control Act 1994" substitute "Sex Work Act 1994";
(b)for "prostitution" substitute "sex work".
12Sex Offenders Registration Act 2004
12.1In item 21 of Schedule 2—
(a)for "Prostitution Control Act 1994" substitute "Sex Work Act 1994";
(b)for "prostitution" substitute "sex work".
12.2In items 22 and 23 of Schedule 2, for "Prostitution Control Act 1994" substitute
"Sex Work Act 1994".
12.3In item 24 of Schedule 2—
(a)for "Prostitution Control Act 1994" substitute "Sex Work Act 1994";
(b)for "prostitution" substitute "sex work".
13Summary Offences Act 1966
In section 18(4), for "Prostitution Control Act 1994" substitute "Sex Work Act 1994".
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Endnotes
Minister's second reading speech—
Legislative Assembly: 28 July 2010
Legislative Council: 12 August 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the Fair Trading Act 1999, the Goods Act 1958 and other Consumer Acts, to repeal the Disposal of Uncollected Goods Act 1961, the Carriers and Innkeepers Act 1958, the Introduction Agents Act 1997, the Sale of Goods (Vienna Convention) Act 1987, the Sea-Carriage Documents Act 1998 and the Landlord and Tenant Act 1958 and for other purposes."
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