Fair Trading Act 1999 (Vic)

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Version No. 056

Fair Trading Act 1999

No. 16 of 1999

Version

incorporating amendments as at


28 May 2012

TABLE OF PROVISIONS

Section  Page

PART 1—PRELIMINARY

1Purposes

2Commencement

3Definitions

4Repealed

5Crown bound

6Extra-territorial application of this Act

PART 2—THE AUSTRALIAN CONSUMER LAW

Division 1—Definitions

7Definitions

Division 2—Application of Australian Consumer Law

8The Australian Consumer Law text

8A, 8BRepealed

9Application of Australian Consumer Law

10Future modifications of Australian Consumer Law text

11Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction

12Interpretation of Australian Consumer Law

13Application of Australian Consumer Law

Division 3—References to Australian Consumer Law

14References to Australian Consumer Law

15References to Australian Consumer Law of other jurisdictions

Division 4—Application of Australian Consumer Law to Crown

16Division does not apply to Commonwealth

17Application law of this jurisdiction

18Application law of other jurisdictions

19Activities that are not business

20Crown not liable to pecuniary penalty or prosecution

Division 5—Miscellaneous

21Conferral of functions and powers on certain bodies

22No doubling-up of liabilities

23–32Repealed

PART 2A—IMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY

Division 1—Interpretation

32ADefinitions

32B–32CRepealed

Division 2—Application of Part

32CA–32FRepealed

32FAApplication of Goods Act 1958 to contracts of supply

Division 3—Supply of goods or services

32G–32MARepealed

32NLimitation of liability in relation to supply of recreational services

32NAExemption from waiver form requirement

32NB, 32ORepealed

32OARescission for innocent misrepresentation

32PDischarge or rescission of contract of supply of goods

32PAWhen does a discharge or rescission have effect?

32QLiability of supplier and person conducting antecedent negotiations

32QAIndemnity for supplier or dealer

32RCertain contracts or provisions void

32RAPenalty for including void provision relating to antecedent negotiations

Division 4—General

32SRepealed

32SALimit of liability of guarantors

32TLimit of liability under security

32TAContract of supply not illegal etc.

PART 2B—Repealed

32U–32ZDA   Repealed

PART 2C—FRUSTRATED CONTRACTS

Division 1—Introductory

32ZEDefinitions

32ZFContracts to which this Part applies

Division 2—Consequences of frustration of contract

32ZGAdjustment of amounts paid or payable to parties to discharged contracts

32ZHCourt may allow amounts paid or payable to be recovered or paid

32ZIParties to pay an amount for valuable benefits obtained

32ZJCalculation of expenses incurred

32ZKCircumstances in which amounts payable under contract of insurance excluded

Division 3—General

32ZLCircumstances in which contract provisions continue to have effect despite frustration

32ZMPerformed part of contract not frustrated

32ZNNature of action

32ZOLimitation period

PARTS 3–5—Repealed

33–93Repealed

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 agents

93AMCertain 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 agent

93AOPermission 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

PART 5A—FAIR REPORTING

93ADefinitions

93BCorrection of errors

93CConsumer may apply to court where agent fails to correct information etc.

93DPowers of Court on application

PART 5B—DEBT COLLECTION

Division 1—Preliminary

93EDefinitions

Division 2—Offences

93FCertain persons prohibited from engaging in debt collection

93GApplications by prohibited persons for permission to engage in debt collection

93HPermission from the Authority

93IAuthority may impose conditions

93JApplication for review

93KOffence to charge debtor for cost of debt collection

93LOffence to purchase debt for the purpose of collection

93MProhibited debt collection practices

93NAdditional remedy for contraventions of section 93M

PART 6—CODES OF PRACTICE

94Preparation of draft code of practice by the Director

95Consideration of draft code of practice prepared by other
persons

96Prescribing codes of practice

97Offence to breach code of practice

PART 7—ADMINISTRATION

Division 1—General

98Director of Consumer Affairs Victoria

99Staff

100Functions and powers of the Director

101Powers of delegation

102Director's report

Division 2—Victorian Consumer Law Fund

102ADefinition

102BVictorian Consumer Law Fund

102COrder for payment to non-party consumers

102DSpecial purpose grants

102EAdministration expenses

PART 8—POWERS OF DIRECTOR

Division 1—Disputes

103Making a complaint

104Conciliation and mediation

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

106Proceedings and costs

106AAGrants of legal assistance

106ABCosts and expenses relating to proceedings to which assisted person is a party

Division 2—Suppliers

106ARepealed

106BShow cause notice

Division 3—Licence suspension

106CDefinitions

106DDirector may suspend licence

106EEffect of suspension

106FLapsing or continuation of suspension

106GExtension of period

106HRight of review

Division 4—Obtaining information, documents and evidence

106HAPower to obtain information and documents to monitor compliance

106IPower to obtain information, documents and evidence

106JPowers in relation to documents

106KCopies of seized documents

106LRetention and return of seized documents

106MMagistrates' Court may extend 3 month period

106NComplaints

106OService of documents

106PInformation sharing

PART 9—FUNCTIONS OF TRIBUNAL

107What is a consumer and trader dispute?

107AWhat is a small claim?

108Settlement of consumer and trader disputes or small claims

109Additional powers of Tribunal

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

111Exclusion of other jurisdiction

112More appropriate forum

112ASmall claim commenced in a court

112BSmall Claims Suspense Account

113Tribunal may hear dispute regardless of related criminal proceedings

113ATribunal may order the provision of information

PART 10—INSPECTION POWERS

114Appointment of inspectors

115Inspector's identity card

116Production of identity card

117Inspector may seek Court order

118Requirement to produce information

119Entry or search with consent

120Entry of premises open to the public

121Emergency entry

121AEntry without consent or warrant

122Search warrants

123Announcement before entry

124Details of warrant to be given to occupier

125Seizure of things not mentioned in the warrant

126Embargo notice

126AUse or seizure of electronic equipment at premises

126BMonitoring compliance with embargo notices

127Copies of seized documents

128Retention and return of seized documents or things

129Magistrates' Court may extend 3 month period

129ACourt may order destruction of dangerous goods

130Taking samples

131Requirement to assist inspector during entry

132Refusal or failure to comply with requirement

133Protection against self-incrimination

134Offence to give false or misleading information

135Offence to hinder or obstruct inspector

136Offence to impersonate inspector

137Entry to be reported to the Director

138Register of exercise of powers of entry

139Complaints

140Service of documents

141Confidentiality

PART 11—ENFORCEMENT AND REMEDIES

Division 1—General enforcement provisions

142Prosecutions of offences

142AWho can bring proceedings for offences?

143Contraventions by bodies corporate

144Conduct by officers, employees or agents

Division 2—Remedies and legal proceedings

145Interpretation

146Undertakings

147Copy of undertaking

148Register of undertakings

149Injunctions to restrain conduct

149AInjunctions to do an act or thing

150Interim injunctions

151Power to rescind or vary injunctions

151ACease trading injunctions

151BInterim cease trading injunctions

151CPower to rescind or vary cease trading injunctions

152Undertakings as to damages and costs

152APowers of court if requirement of Director or inspector not complied with

153Non-punitive orders—Corrective advertising orders

153APunitive orders—Adverse publicity orders

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

155Defences

156Evidence

157Findings in proceedings to be evidence

158Orders against persons found to have contravened this Act

159Actions for damages

160Awards of compensation

Division 3—Infringement notices

160APower to serve a notice

Division 4—Safety and information requirements

160BInterim bans, recall notices and safety warning notices

160CNotice of ban or notice

160DReview of ban order or compulsory recall notice

Division 5—Enforcement of Australian Consumer Law (Victoria)

160EReferences to courts and the Tribunal

160FJurisdiction of courts and the Tribunal

160GJurisdictional limit of Magistrates' Court not to apply to pecuniary penalties under Australian Consumer Law (Victoria)

160HOrders against persons found to have contravened Australian Consumer Law (Victoria)

PART 12—MISCELLANEOUS

161Repealed

161AApplication of Australian Consumer Law (Victoria) in respect of bills and receipts under Legal Profession
Act 2004

162AA–162   Repealed

162APublic warning statements

163Repealed

163AComplaints etc. are privileged

163BDisapplication of certain provisions to Australian Consumer Law (Victoria)

164Supreme Court—limitation of jurisdiction

165Regulations

PART 13—SAVINGS AND TRANSITIONAL

166–169Repealed

170Savings and transitional provisions

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SCHEDULES

SCHEDULE 1—Consumer Acts

SCHEDULE 1A—You have a Right to withdraw from this Agreement within 3 Days

SCHEDULE 2—Repealed

SCHEDULE 3—Savings and Transitional

1Superseded references

2Actions commenced by Director or Secretary

3Inspectors

4Regulations

5Orders

6Superseded references to Director of Fair Trading and Office of Fair Trading and Business Affairs

7Actions commenced by Director

8Superseded references

9Actions commenced by Director

10Validation of ban orders

11Continuation of existing small claims

12Continuation of existing hire-purchase agreements

13Transitional—references to the Frustrated Contracts
Act 1959

14Transitional provisions—Fair Trading and Other Acts Amendment Act 2009

15Transitional—Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009

16Transitional—Consumer Affairs Legislation Amendment Act 2010

17Transitional—Repeal of Trade Measurement Act 1995

18Transitional—Repeal of Trade Measurement
(Administration) Act 1995

19Transitional—Transfer of information for the purpose of the National Measurement Act 1960 of the Commonwealth

19ATransitional provision—repeal of Part 2B

19BTransitional—jurisdiction of the Tribunal

19CSavings—Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009

19DRepealed

20Transitional provision—Fair Trading Amendment (Unfair Contract Terms) Act 2010

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ENDNOTES

1.  General Information

2.  Table of Amendments

3.  Explanatory Details

Version No. 056

Fair Trading Act 1999

No. 16 of 1999

Version

incorporating amendments as at


28 May 2012

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1Purposes

The main purposes of this Act are—

(a)to promote and encourage fair trading practices and a competitive and fair market;

(aa)to protect consumers;

(b)to regulate trade practices;

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(e)to provide for codes of practice;

(f)to provide for the powers and functions of the Director of Consumer Affairs Victoria including powers to conciliate disputes under this Act and powers to carry out investigations into alleged breaches of this Act;

(g)to repeal the Consumer Affairs Act 1972, the Ministry of Consumer Affairs Act 1973, the Fair Trading Act 1985 and the Market Court Act 1978.

2Commencement

(1)This Part comes into operation on the day on which this Act receives the Royal Assent.

(2)The remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3)If a provision referred to in subsection (2) does not come into operation before 1 February 2000, it comes into operation on that day.

3Definitions

(1)In this Act—

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Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;

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business licensing Act has the same meaning as in the Business Licensing Authority Act 1998;

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Consumer Act means—

(a)an Act listed in Schedule 1; or

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(c)Part 4 of the Veterans Act 2005;

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Director means the person who, for the time being, is employed as Director of Consumer Affairs Victoria under the Public Administration Act 2004;

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hire-purchase agreement includes a letting of goods with an option to purchase and an agreement for the purchase of goods by instalments (whether that agreement describes the instalments as rent or hire or otherwise) but does not include any agreement—

(a)by which the property in the goods in the agreement passes at the time of the agreement or on or at any time before delivery of the goods; or

(b)under which the person by whom the goods are being hired or purchased is a person who is engaged in the trade or business of selling goods of the same nature or description as the goods comprised in the agreement; or

(c)that is a regulated contract within the meaning of the Credit Act 1984; or

(d)that is a credit contract within the meaning of the National Credit Code;

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inspectormeans a person appointed to be an inspector under section 114;

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member of the police force has the same meaning as member of the force in the Police Regulation Act 1958;

National Credit Code has the same meaning as in the National Consumer Credit Protection Act 2009 of the Commonwealth;

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occupier in relation to a premises, means a person who appears to be of or over 16 years of age and who appears to be in control of the premises;

officer—

(a)in relation to a body corporate which is a corporation within the meaning of the Corporations Act, has the same meaning as officer of a corporation has in section 9 of that Act; and

(b)in relation to a body corporate which is not a corporation within the meaning of that Act, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate or an employee of the body corporate;

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post box means post office box, document exchange, mail collection agency or mail forwarding agency;

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private residence includes any part of the allotment on which the private residence is situated;

public holiday has the same meaning as in the Public Holidays Act 1993;

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related body corporate has the same meaning as in the Corporations Act;

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Secretary means the Secretary to the Department of Justice;

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Tribunal means the Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;

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workplace includes any land used in conjunction with a workplace for the purposes of the workplace.

(2)Without limiting subsection (1), unless the contrary intention appears the words and expressions used in this Act have the same meanings as they have in the Australian Consumer Law (Victoria).

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5Crown bound

Subject to section 20, this Act binds the Crown not only in right of Victoria but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

6Extra-territorial application of this Act

(1)This Act applies within and outside Victoria.

(2)This Act applies outside Victoria to the full extent of the extra-territorial legislative power of the Parliament.

(3)Without limiting subsection (1) or (2), this Act applies to—

(a)the engaging in conduct in Victoria by persons outside Victoria;

(b)the engaging in conduct outside Victoria by persons in Victoria;

(c)a supply of goods or services in Victoria where the contract for the supply of goods or services is made in Victoria;

(d)in a case where a contract for the supply of goods or services is made outside Victoria, to the supply of those goods or services to—

(i)a person normally resident in Victoria; or

(ii)a body corporate whose principal place of business is in Victoria.

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PART 2—THE AUSTRALIAN CONSUMER LAW

Division 1—Definitions

7Definitions

(1)In this Part, unless the contrary intention appears—

application law means—

(a)a law of a participating jurisdiction that applies the Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or

(b)any regulations or other legislative instrument made under a law described in paragraph (a); or

(c)the Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications;

Australian Consumer Law means (according to the context)—

(a)the Australian Consumer law text; or

(b)the Australian Consumer Law text, applying as a law of a participating jurisdiction, either with or without modifications;

Australian Consumer Law text means the text described in section 8;

instrument means any document whatever, including the following—

(a)an Act or an instrument made under an Act;

(b)a law of this jurisdiction or an instrument made under such a law;

(c)an award or other industrial determination or order, or an industrial agreement;

(d)any other order (whether executive, judicial or otherwise);

(e)a notice, certificate or licence;

(f)an agreement;

(g)an application made, information or complaint laid, affidavit sworn, or warrant issued, for any purpose;

(h)an indictment, presentment, summons or writ;

(i)any other pleading in, or process issued in connection with, a legal or other proceeding;

Intergovernmental Agreement means the Intergovernmental Agreement for the Australian Consumer Law made on 2 July 2009 between the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being;

jurisdiction means a State or the Commonwealth;

law, in relation to a Territory, means a law of, or in force in, that Territory;

modifications includes additions, omissions and substitutions;

month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month;

participating jurisdiction means a jurisdiction that is a party to the Intergovernmental Agreement and applies the Australian Consumer Law as a law of the jurisdiction, either with or without modifications;

State includes a Territory;

Territory means the Australian Capital Territory or the Northern Territory of Australia;

this jurisdiction means Victoria.

(2)Terms used in this Part and also in the Australian Consumer Law (Victoria) have the same meanings in this Part as they have in that Law.

(3)For the purposes of this Part—

(a)a jurisdiction is taken to have applied the Australian Consumer Law as a law of the jurisdiction if a law of the jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text, as in force from time to time; and

(b)that corresponding law is taken to be the Australian Consumer Law, or the Australian Consumer Law text, applying as a law of that jurisdiction.

Division 2—Application of Australian Consumer Law

8The Australian Consumer Law text

The Australian Consumer Law text consists of—

(a)Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; and

(b)the regulations under section 139G of that Act.

9Application of Australian Consumer Law

(1)The Australian Consumer Law text, as in force from time to time—

(a)applies as a law of this jurisdiction; and

(b)as so applying may be referred to as the Australian Consumer Law (Victoria); and

(c)as so applying is a part of this Act.

(2)This section has effect subject to sections 10, 11 and 12.

10Future modifications of Australian Consumer Law text

(1)A modification made by a Commonwealth law to the Australian Consumer Law text after the commencement of this section does not apply under section 9, if the modification is declared by Order of the Governor in Council published in the Government Gazette to be excluded from the operation of that section.

(2)An Order under subsection (1) has effect only if published before the end of 2 months after the date of the modification.

(3)Subsection (1) ceases to apply to the modification if a further Order so provides.

(4)For the purposes of this section, the date of the modification is the date on which the Commonwealth Act effecting the modification receives the Royal Assent or the regulation effecting the modification is registered under the Legislative Instruments Act 2003 of the Commonwealth.

11Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction

(1)In the Australian Consumer Law (Victoria), regulator means the Director.

(2)For the purposes of the application of the Australian Consumer Law (Victoria), court has the meaning given in section 160E of this Act.

12Interpretation of Australian Consumer Law

(1)The Acts Interpretation Act 1901 of the Commonwealth applies as a law of this jurisdiction to the Australian Consumer Law (Victoria).

(2)For the purposes of subsection (1), the Commonwealth Act mentioned in that subsection applies as if—

(a)the statutory provisions in the Australian Consumer Law (Victoria) were a Commonwealth Act; and

(b)the regulations in the Australian Consumer Law (Victoria) or instruments under that Law were regulations or instruments under a Commonwealth Act.

(3)The Interpretation of Legislation Act 1984 does not apply to—

(a)the Australian Consumer Law (Victoria); or

(b)any instrument under that Law.

13Application of Australian Consumer Law

(1)The Australian Consumer Law (Victoria) applies to and in relation to—

(a)persons carrying on business within this jurisdiction; or

(b)bodies corporate incorporated or registered under the law of this jurisdiction; or

(c)persons ordinarily resident in this jurisdiction; or

(d)persons otherwise connected with this jurisdiction.

(2)Subject to subsection (1), the Australian Consumer Law (Victoria) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).

Division 3—References to Australian Consumer Law

14References to Australian Consumer Law

(1)A reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions.

(2)Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.

15References to Australian Consumer Law of other jurisdictions

(1)This section has effect for the purposes of an Act, a law of this jurisdiction or an instrument under an Act or such a law.

(2)If a law of a participating jurisdiction other than this jurisdiction provides that the Australian Consumer Law text as in force for the time being applies as a law of that jurisdiction, the Australian Consumer Law of that jurisdiction is the Australian Consumer Law text, applying as a law of that jurisdiction.

Division 4—Application of Australian Consumer Law to Crown

16Division does not apply to Commonwealth

In this Division, participating jurisdiction or other jurisdiction does not include the Commonwealth.

17Application law of this jurisdiction

The application law of this jurisdiction binds (so far as the legislative power of Parliament permits) the Crown in right of this jurisdiction and of each other jurisdiction, so far as the Crown carries on a business, either directly or by an authority of the jurisdiction concerned.

18Application law of other jurisdictions

(1)The application law of each participating jurisdiction other than this jurisdiction binds the Crown in right of this jurisdiction, so far as the Crown carries on a business, either directly or by an authority of this jurisdiction.

(2)If, because of this Part, a provision of the law of another participating jurisdiction binds the Crown in right of this jurisdiction, the Crown in that right is subject to that provision despite any prerogative right or privilege.

19Activities that are not business

(1)For the purposes of sections 17 and 18, the following do not amount to carrying on a business—

(a)imposing or collecting—

(i)taxes; or

(ii)levies; or

(iii)fees for authorisations;

(b)granting, refusing to grant, revoking, suspending or varying authorisations (whether or not they are subject to conditions);

(c)a transaction involving—

(i)only persons who are all acting for the Crown in the same right (and none of whom is an authority of a State); or

(ii)only persons who are all acting for the same authority of a State; or

(iii)only the Crown in right of a State and one or more non-commercial authorities of that State; or

(iv)only non-commercial authorities of the same State;

(d)the acquisition of primary products by a government body under legislation, unless the acquisition occurs because—

(i)the body chooses to acquire the products; or

(ii)the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.

(2)Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 17 and 18.

(3)In this section—

acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation;

authorisation means a licence, permit, certificate or other authorisation that allows the holder of the authorisation to supply goods or services;

government body means a State or an authority of a State;

primary products means—

(a)agricultural or horticultural produce; or

(b)crops, whether on or attached to the land or not; or

(c)animals (whether dead or alive); or

(d)the bodily produce (including natural increase) of animals.

(4)For the purposes of this section, an authority of a State is non-commercial if—

(a)it is constituted by only one person; and

(b)it is neither a trading corporation nor a financial corporation.

20Crown not liable to pecuniary penalty or prosecution

(1)Nothing in the application law of this jurisdiction makes the Crown in any capacity liable to a pecuniary penalty or to be prosecuted for an offence.

(2)Without limiting subsection (1), nothing in the application law of a participating jurisdiction makes the Crown in right of this jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence.

(3)The protection in subsection (1) or (2) does not apply to an authority of any jurisdiction.

Division 5—Miscellaneous

21Conferral of functions and powers on certain bodies

(1)The authorities and officers of the Commonwealth referred to in the Australian Consumer Law (Victoria) have the functions and powers conferred or expressed to be conferred on them under the Australian Consumer Law (Victoria).

(2)In addition to the powers mentioned in subsection (1), the authorities and officers referred to in that subsection have power to do all things necessary or convenient to be done in connection with the performance of the functions and exercise of the powers referred to in that subsection.

22No doubling-up of liabilities

(1)If—

(a)an act or omission is an offence against the Australian Consumer Law (Victoria) and is also an offence against an application law of another participating jurisdiction; and

(b)the offender has been punished for the offence under the application law of the other jurisdiction—

the offender is not liable to be punished for the offence against the Australian Consumer Law (Victoria).

(2)If a person has been ordered to pay a pecuniary penalty under the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (Victoria) in respect of the same conduct.

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PART 2A—IMPLIED CONDITIONS AND WARRANTIES IN CERTAIN CONTRACTS OF SUPPLY

Division 1—Interpretation

32ADefinitions

In this Part—

contract of supply includes an agreement to supply;

court in relation to any legal proceeding, includes the Tribunal and a person acting judicially;

dealermeans a person by whom or on whose behalf any antecedent negotiations are conducted but does not include the supplier or an agent of the supplier acting with the authority of the supplier;

discharge in relation to a contract of supply of goods or services, means discharge of the contract so far as it is executory;

innocent misrepresentation in relation to a contract of supply of goods or services means misrepresentation that is not fraudulent;

lease includes hire;

rescission in relation to a contract of supply of goods or services means avoidance of the contract as from its beginning.

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Division 2—Application of Part

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32FAApplication of Goods Act 1958 to contracts of supply

(1)Sections 17, 18, 19(a) and (b) and 20 of the Goods Act 1958 do not apply to contracts of supply to which Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) applies.

(2)Section 4(2) of the Goods Act 1958 is taken to apply in relation to this Part and Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) as if—

(a)the reference to Part were a reference to Part 3-2 of the Australian Consumer Law (Victoria); and

(b)the reference to contracts for the sale of goods included a reference to contracts of supply of goods.

(3)A reference in Part I of the Goods Act 1958 to a condition includes a reference to a guarantee within the meaning of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria).

(4)Except as otherwise expressly provided by Division 1 of Part 3-2 of the Australian Consumer Law (Victoria), nothing in that Division affects the application to a contract of supply of goods or services of the Goods Act 1958 or any other Act or law.

Division 3—Supply of goods or services

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32NLimitation of liability in relation to supply of recreational services

(1)Subject to subsection (2), a term of a contract of supply of recreational services is not void under section 64 of the Australian Consumer Law (Victoria) by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying—

(a)the application of any or all of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) to the supply of the recreational services under the contract; or

(b)the exercise of a right conferred by such a provision in relation to the supply of the recreational services under the contract; or

(c)any liability of the supplier for a failure to comply with a guarantee under that Subdivision in relation to the supply of the recreational services under the contract.

(2)Subsection (1) only applies if—

(a)the contract of supply of recreational services was entered into on or after the commencement of section 11 of the Fair Trading (Amendment) Act 2003; and

(b)the exclusion, restriction or modification contained in the term is limited to liability for death or personal injury; and

(c)the term—

(i)contains the prescribed particulars (if any) and is in the prescribed form (if any); or

(ii)is specified, or is of a class of term specified, in an Order made under section 32NA; and

(d)if there is a prescribed form for the term, the supplier has not made a false or misleading statement as to a material particular in or in relation to the term; and

(e)the term was brought to the attention of the purchaser prior to the supply of the recreational services.

(3)Despite subsection (1), a person is not entitled to rely on a term of a contract in relation to the supply of recreational services which complies with subsection (2) if—

(a)the person has done or omitted to do something in relation to the supply of those recreational services that but for subsection (1) would—

(i)be an act or omission to which all or any of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) would apply; or

(ii)give rise to the exercise of a right conferred by all or any of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria); or

(iii)constitute a failure to comply with a guarantee that applies under Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria); and

(b)the act or omission was done or omitted to be done with reckless disregard, with or without consciousness, for the consequences of the act or omission.

(4)In this section—

disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin;

injury means any physical or mental injury;

personal injury means—

(a)an injury of a natural person (including the aggravation, acceleration or recurrence of an injury of the individual); or

(b)the contraction, aggravation, acceleration or recurrence of a disease of a natural person; or

(c)the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to a natural person that is or may be harmful or disadvantageous to, or result in harm or disadvantage to—

(i)the person; or

(ii)the community;

recreational services means services that consist of participation in—

(a)a sporting activity or a similar leisure-time pursuit; or

(b)any other activity that—

(i)involves a significant degree of physical exertion or physical risk; and

(ii)is undertaken for the purposes of recreation, enjoyment or leisure.

(5)The definition of injury in subsection (4) does not, by implication, affect the meaning of the expression injury when used in a provision of this Act other than this section.

32NA   Exemption from waiver form requirement

(1)The Governor in Council, on the recommendation of the Minister, may, by order published in the Government Gazette, provide that a specified term of a contract of supply of recreational services, or a class of such term, does not need to comply with the requirements of section 32N(2)(c)(i).

(2)The Governor in Council may make an Order under this section subject to any conditions the Governor in Council thinks fit and specifies in the Order.

(3)An Order under this section has effect according to its terms.

(4)The Governor in Council, on the recommendation of the Minister, may, by Order published in the Government Gazette, vary or revoke an Order made under this section.

(5)An Order made under this section ceases to have effect on—

(a)the expiry of the anniversary of the date the Order was published in the Government Gazette; or

(b)if an earlier expiry date is specified in the Order, that earlier date.

(6)On or before the 6th sitting day after an Order under this section is published in the Government Gazette, the Minister must ensure that a copy of the Order is laid before each House of the Parliament.

(7)A failure to comply with subsection (6) does not affect the operation or effect of the Order but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of Parliament.

(8)An Order may be disallowed in whole or in part by either House of Parliament.

(9)Part 5 of the Subordinate Legislation Act 1994 applies to an Order as if—

(a)a reference in that Part to a "statutory rule" were a reference to the Order; and

(b)a reference in section 23(1)(c) of that Part to "section 15(1)" were a reference to subsection (6) of this section.

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32OARescission for innocent misrepresentation

(1)If a purchaser enters into a contract of supply of goods after an innocent misrepresentation is made to the purchaser and, if the misrepresentation had been fraudulent, the purchaser would have been entitled to rescind the contract by reason of the misrepresentation, the purchaser may rescind the contract by notice given to the supplier before, or within a reasonable period after—

(a)in the case of a contract of supply by way of lease, delivery of the goods; and

(b)in any other case, acceptance of the goods.

(2)Subsection (1) applies whether or not the misrepresentation has become a term of the contract.

32PDischarge or rescission of contract of supply of goods

(1)This section applies if a purchaser—

(a)discharges a contract of supply of goods by reason of repudiation or breach of condition by the supplier; or

(b)in accordance with section 32OA(1) rescinds a contract of supply of goods after an innocent misrepresentation is made.

(2)If the goods have been delivered to the purchaser and have not been returned to the supplier, the purchaser must return the goods to the supplier or permit the supplier to take possession of the goods.

(3)The purchaser is liable to the supplier for loss or damage caused to the goods—

(a)by the purchaser wilfully or by the purchaser's negligence while the goods are in the purchaser's possession during a period of 21 days after discharging or rescinding the contract; and

(b)by the purchaser wilfully while the goods are in the purchaser's possession after the expiration of a period of 21 days after discharging or rescinding the contract.

(4)If the property in the goods passed to the purchaser before the discharge or the rescission, the property re-vests in the supplier.

(5)The supplier is liable to the purchaser for money paid and for the value of any other consideration paid or provided under the contract by the purchaser to the supplier.

(6)If—

(a)the purchaser used the goods before the discharge or rescission; and

(b)the supplier acted honestly and reasonably in supplying the goods—

the court may, if it is satisfied that, in all the circumstances, it is just and convenient to do so, allow the supplier to recover from the purchaser an amount equal to the whole or any part of the fair value to the purchaser of the purchaser's use of the goods.

32PAWhen does a discharge or rescission have effect?

(1)If a purchaser purports to discharge or rescind a contract of supply of goods, the purported discharge or rescission has effect only if—

(a)the supplier is aware that the purchaser treats the contract as at an end, whether by reason of the return of the goods to the supplier or by reason of any other information which comes to the knowledge of the supplier; or

(b)if the purchaser is unable, due to the conduct or omission of the supplier, after taking reasonable steps, to inform the supplier or to cause the supplier to become aware that the purchaser treats the contract as at an end—

(i)the purchaser treats the contract as at an end; and

(ii)by the purchaser's conduct, shows unequivocally that the purchaser treats the contract as at an end.

(2)This section does not apply to a rejection under the Australian Consumer Law (Victoria).

32QLiability of supplier and person conducting antecedent negotiations

(1)In a contract of supply of goods or services, a representation made to the purchaser in the course of any antecedent negotiations by a dealer or by a person acting on behalf of the supplier (otherwise than as an agent of the supplier acting with the authority of the supplier) confers on the purchaser—

(a)as against the supplier, the same right to rescind the contract and the same right of action in damages as the purchaser would have had if the representation had been made by an agent of the supplier acting with the authority of the supplier; and

(b)as against the person by whom the representation was made, the same right of action in damages as the purchaser would have had if the purchaser had purchased the goods or services from that person; and

(c)if the antecedent negotiations were conducted on behalf of another person, as against that other person the same right of action in damages as the purchaser would have had if the purchaser had purchased the goods or services from that other person.

(2)In a contract of supply of goods or services, a warranty given to the purchaser in the course of any antecedent negotiations by a dealer or by a person acting on behalf of the supplier (otherwise than as an agent of the supplier acting with the authority of the supplier) confers on the purchaser—

(a)as against the person by whom the warranty was given, the same right of action in damages as the purchaser would have had if—

(i)the warranty had been given in consideration of the purchaser purchasing the goods or services from that person; and

(ii)the purchaser had purchased the goods or services from that person; and

(b)if the antecedent negotiations were conducted on behalf of a dealer, as against the dealer the same right of action in damages as the purchaser would have had if—

(i)the warranty had been given in consideration of the purchaser purchasing the goods or services from the dealer; and

(ii)the purchaser had purchased the goods or services from the dealer.

(3)For the purposes of subsections (1) and (2) it is immaterial whether or not the goods or services supplied to the purchaser were purchased by the supplier from a dealer by whom or on whose behalf any antecedent negotiations were conducted.

(4)Nothing in this section prevents a statement being both a representation and a warranty.

(5)Nothing in this section confers on a purchaser an entitlement to an amount of damages arising from a representation or a warranty exceeding the amount of the loss suffered by the purchaser.

32QA   Indemnity for supplier or dealer

(1)Without prejudice to any other rights or remedies to which a supplier may be entitled, a supplier is entitled to be indemnified—

(a)by a person by whom any antecedent negotiations were conducted who made a representation or gave a warranty; and

(b)by a dealer on whose behalf any antecedent negotiations were conducted by another person who made a representation or gave a warranty—

against any damage suffered by the supplier by reason of the operation of section 32Q.

(2)Without prejudice to any other rights or remedies to which a dealer may be entitled, a dealer is entitled to be indemnified by a person who conducted any antecedent negotiations on behalf of the dealer and made a representation or gave a warranty against any damage suffered by the dealer by reason of the operation of section 32Q.

32RCertain contracts or provisions void

A contract of supply of goods or services or a provision in or that relates to a contract of supply of goods or services that purports to have the effect of excluding, restricting or modifying the provisions of section 32Q or 32QA or purports to have the effect of precluding a right of action or a defence based on or arising out of a representation or a warranty referred to in section 32Q(1) or (2), is void.

32RA   Penalty for including void provision relating to antecedent negotiations

A supplier or a person by whom or on whose behalf any antecedent negotiations are conducted must not include or permit to be included in a contract of supply of goods or services a provision that by reason of section 32R is void.

Penalty:60 penalty units, in the case of a natural person.

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

Division 4—General

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32SALimit of liability of guarantors

(1)If there is a contract of guarantee in relation to the performance of the obligations of a purchaser under a contract of supply of goods or services, the liability of the guarantor in relation to the performance of those obligations does not include liability in respect of an amount exceeding the sum of—

(a)the amount for which the purchaser is liable by reason of the breach of the contract of supply; and

(b)the reasonable costs of and incidental to enforcing the contract of guarantee.

(2)Subject to subsection (3), a guarantor of the obligations of a purchaser under a contract of supply of goods or services where the purchaser is a minor is liable under the contract of guarantee to the same extent as the guarantor would be liable if the purchaser had not been a minor when the contract of supply was made.

(3)Subsection (2) does not apply with respect to a contract of guarantee unless, when it was made, it included a prominent statement immediately above or below the place where the guarantor signed the contract to the effect that a person who enters into a guarantee in respect of the obligations of a purchaser who is a minor may not have a right to recover from the purchaser amounts that the guarantor is liable to pay under the contract of supply.

(4)In this section—

domestic partner of a person means—

(a)a person who is in a registered relationship with the person; or

(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i)for fee or reward; or

(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

guarantee includes indemnity;

guarantor means a person who enters into a contract of guarantee in respect of the performance of the obligations of a purchaser under a contract of supply of goods or services or of a person who enters into a contract of indemnity in relation to a contract of supply of goods or services but does not include—

(a)a person who is the supplier, or spouse or domestic partner of the supplier of goods or services to which the contract relates; or

(b)if the supplier is a body corporate, a person who is a director or an officer of the body corporate or is a related body corporate within the meaning of the Corporations Act or a director or an officer of a related body corporate or spouse or domestic partner of that director or officer; or

(c)a person who enters into a contract of guarantee or a contract of indemnity in respect of the obligations, under a contract of supply of goods or services, of a person who deals in goods or services of the kind to which the contract of supply relates;

spouse of a person means a person to whom the person is married.

(5)For the purposes of the definition of domestic partner in subsection (4)—

(a)registered relationship has the same meaning as in the Relationships Act 2008; and

(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c)a person is not a domestic partner of another person only because they are co-tenants.

32TLimit of liability under security

If a mortgage, charge, pledge or other security is provided by a person to secure the obligations of a purchaser under a contract of supply of goods or services, the amount secured in respect of the liability of that person in respect of those obligations does not exceed liability in respect of the sum of—

(a)the amount for which the purchaser is liable by reason of the breach of the contract of supply of goods or services; and

(b)the reasonable costs of, and incidental to, enforcing the mortgage, charge, pledge, lien or other security.

32TAContract of supply not illegal etc.

(1)A contract of supply of goods or services is not illegal, void or unenforceable by reason only that the supplier is guilty of an offence under this Part.

(2)If a supplier commits an offence referred to in subsection (1), the purchaser does not, by reason only of having been a party to the contract, aid, abet, counsel or procure the commission of the offence.

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PART 2C—FRUSTRATED CONTRACTS

Division 1—Introductory

32ZEDefinitions

In this Part—

court, in relation to any matter, means the court or arbitrator by or before whom the matter falls to be determined;

discharged contract means a contract to which this Part applies;

time of discharge, in relation to any contract, means the time at which—

(a)performance of the contract becomes impossible; or

(b)the contract is otherwise frustrated; or

(c)the contract is avoided by the operation of section 12 of the Goods Act 1958.

32ZFContracts to which this Part applies

(1)This Part applies to a contract if the parties to the contract are discharged from the further performance of the contract because—

(a)performance of the contract becomes impossible; or

(b)the contract is otherwise frustrated; or

(c)the contract is avoided by the operation of section 12 of the Goods Act 1958.

(2)This Part applies to contracts made before or after the commencement of section 4 of the Fair Trading and Consumer Acts Further Amendment Act 2008 if the time of discharge of the contract is after 29 September 1959.

(3)This Part does not apply to—

(a)any charter-party, except a time charter-party or a charter-party by way of demise; or

(b)any contract (other than a charter-party) for the carriage of goods by sea; or

(c)any contract of insurance except as provided for in section 32ZK.

Division 2—Consequences of frustration of contract

32ZGAdjustment of amounts paid or payable to parties to discharged contracts

(1)All amounts paid to any party under a discharged contract before the time of discharge are recoverable.

(2)All amounts payable to any party under a discharged contract before the time of discharge cease to be payable.

32ZHCourt may allow amounts paid or payable to be recovered or paid

Despite section 32ZG, the court may, if it considers it just to do so having regard to all the circumstances of the case, allow a party to a discharged contract—

(a)to whom amounts were paid or are payable under that contract before the time of discharge; and

(b)who has incurred expenses before the time of discharge in or for the purpose of the performance of that contract—

to retain or recover (as the case may be) the whole or any part of the amounts paid or payable to that party under the contract in an amount not exceeding the expenses incurred.

32ZIParties to pay an amount for valuable benefits obtained

(1)This section applies if a party to a discharged contract obtained a valuable benefit (other than a payment of money to which section 32ZG or 32ZH applies) before the time of discharge because of anything done by another party in or for the purpose of the performance of the contract.

(2)Despite section 32ZG, the benefited party is liable to pay to that other party any amount (not exceeding the value of the benefit obtained) that the court considers just having regard to all the circumstances of the case.

(3)For the purpose of subsection (2), the Court may have regard in particular to—

(a)the amount of any expenses the benefited party incurred before the time of discharge in or for the purpose of the performance of the contract, including any amount paid or payable by the benefited party to any other party under the contract and retained or recoverable by that party under section 32ZG or 32ZH; or

(b)the effect, in relation to the benefit obtained, of the circumstances giving rise to the frustration or avoidance of the contract.

(4)For the purpose of this section, if a party to the contract has assumed obligations under the contract in consideration of the conferral of a benefit by another party to the contract on any other person (whether or not that person is a party to the contract), the court may, if in all the circumstances of the case it considers it just to do so, treat any benefit conferred on that other person as a benefit obtained by the party who has assumed those obligations.

32ZJCalculation of expenses incurred

In estimating, for the purposes of this Division, the amount of any expenses incurred by any party to a discharged contract, the court may include an amount that appears reasonable for—

(a)overhead expenses; and

(b)work or services performed personally by the party.

32ZKCircumstances in which amounts payable under contract of insurance excluded

In considering whether any amount is to be retained or recovered by any party to a discharged contract, the court must not take into account any amounts payable to a party under a contract of insurance because of the circumstances giving rise to the frustration or avoidance of the contract unless an obligation to insure is imposed—

(a)by an express provision in the frustrated or avoided contract; or

(b)by or under any enactment.

Division 3—General

32ZLCircumstances in which contract provisions continue to have effect despite frustration

If any contract to which this Part applies contains a provision that on the true construction of the contract—

(a)is intended to continue to have effect in circumstances that operate or would, but for that provision, operate to frustrate or avoid the contract; or

(b)is intended to have effect whether or not circumstances that operate or would, but for that provision, operate to frustrate or avoid the contract arise—

the court must give effect to that provision and must only give effect to Division 2 to the extent that the court is satisfied that it is consistent with the provision of the contract.

32ZM   Performed part of contract not frustrated

If it appears to the court that part of a contract to which this Part applies—

(a)is wholly performed before the time of discharge; or

(b)is wholly performed before the time of discharge except for payment in respect of that part of the contract of amounts that are or can be ascertained under the contract—

the court must treat that part of the contract as if it were a separate contract that had not been frustrated or avoided and Division 2 will only apply to the remainder of that contract.

32ZNNature of action

All actions and proceedings to recover amounts under this Part are taken to be founded on simple contract.

32ZOLimitation period

Subject to Part II of the Limitation of Actions Act 1958, a cause of action under this Part is taken to have first accrued at the time of discharge.

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PART 5AA—INTRODUCTION AGENTS

Division 1—Interpretation

93AA   Definitions

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.

93AC   Meaning 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.

93AD   Who 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.

93AG   Exemption 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).

93AH   Exemption 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).

93AK   Exemption 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

93AM   Certain 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 (as in force immediately before the commencement of the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under Part 3-2 of the Australian Consumer Law (Victoria) 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 (as in force immediately before the commencement of the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under Part 3-2 of the Australian Consumer Law (Victoria) 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

93AN   Disqualified 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.

93AO   Permission 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.

93AQ   Application 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

93AR   What 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

*                *                *                *                *

SCHEDULE 3

SAVINGS AND TRANSITIONAL

1Superseded references

On the commencement of this clause, in any Act (other than this Act), or in any instrument made under any Act or in any other document of any kind—

(a)a reference to the Fair Trading Act 1985 is deemed to be a reference to this Act;

(b)a reference to the Consumer Affairs Act 1972 is deemed to be a reference to this Act;

(c)a reference to the Director of Consumer Affairs is deemed to be a reference to the Director of Fair Trading;

(d)a reference to the Director appointed under the Ministry of Consumer Affairs Act 1973 is deemed to be a reference to the Director of Fair Trading.

2Actions commenced by Director or Secretary

(1)Any act, matter or thing of a continuing nature commenced under any Act or regulation by or against or in relation to the Director of Consumer Affairs and existing immediately before the commencement of this clause may be continued and completed on and after that commencement by or against or in relation to the Director of Fair Trading.

(2)If, immediately before the commencement of this clause, proceedings to which the Director of Consumer Affairs was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director of Fair Trading is substituted for the Director of Consumer Affairs as a party to the proceedings and has the same rights and obligations in the proceedings as the Director of Consumer Affairs had.

(3)In this clause Director of Consumer Affairs means—

(a)the Director of Consumer Affairs appointed for the purposes of the Ministry of Consumer Affairs Act 1973; or

(b)the Secretary of the Department of Justice exercising the powers of the Director of Consumer Affairs pursuant to an Order made under the Administrative Arrangements Act 1983.

(4)This section does not apply to any act, matter or thing done under the Weights and Measures Act 1958 (as in force immediately before its repeal) or the Liquor Control Act 1987 (as in force immediately before its repeal).

3Inspectors

(1)On and after the commencement of this clause—

(a)each former inspector holding office immediately before that commencement is deemed to be an inspector appointed by the Director under section 114 of this Act; and

(b)a certificate of appointment furnished under section 63 of the Consumer Affairs Act 1972 in respect of the appointment of a former inspector is deemed to be an identity card issued by the Director under section 115 of this Act.

(2)On and after the commencement of this clause, an inspector appointed by the Director under section 114 of this Act may continue and complete any proceedings under any Act or regulation commenced or made by or against or in relation to a former inspector and existing immediately before that commencement.

(3)In this clause former inspector means an inspector appointed or authorised under section 62 of the Consumer Affairs Act 1972.

4Regulations

Despite the repeal of the Consumer Affairs Act 1972 the following regulations continue in operation and may be amended or revoked as if they were made under this Act—

(a)Consumer Affairs (Product Safety) (Airpots) Regulations 1992;

(b)Consumer Affairs (Product Safety) (Spirit Stoves) Regulations 1992;

(c)Consumer Affairs (Product Safety) (Children's Toys) Regulations 1998;

(d)Consumer Affairs (Product Safety) (Lighters) Regulations 1998.

5Orders

On the commencement of this clause all orders made under section 57D of the Consumer Affairs Act 1972 and existing immediately before that commencement are deemed to be permanent ban orders under this Act.

6Superseded references to Director of Fair Trading and Office of Fair Trading and Business Affairs

On the commencement of section 39 of the Business Registration Acts (Amendment) Act 2000, in any Act (other than this Act), or in any instrument made under any Act or in any other document of any kind—

(a)a reference to the Director of Fair Trading is deemed to be a reference to the Director of Consumer and Business Affairs; and

(b)a reference to the Office of Fair Trading or the Office of Fair Trading and Business Affairs is deemed to be a reference to Consumer and Business Affairs Victoria in the Department of Justice.

7Actions commenced by Director

(1)Any act matter or thing of a continuing nature commenced under any Act or regulation by or against or in relation to the Director of Fair Trading and existing immediately before the commencement of section 39 of the Business Registration Acts (Amendment) Act 2000 may be continued and completed on and after that commencement by or against or in relation to the Director of Consumer and Business Affairs.

(2)If, immediately before the commencement of section 39 of the Business Registration Acts (Amendment) Act 2000, proceedings to which the Director of Fair Trading was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director of Consumer and Business Affairs is substituted for the Director of Fair Trading as a party to the proceedings and has the same rights and obligations in the proceedings as the Director of Fair Trading had.

8Superseded references

On the commencement of section 70 of the Fair Trading (Amendment) Act 2003, in any Act (other than this Act), or in any instrument made under any Act or in any other document of any kind—

(a)a reference to the Director of Fair Trading or the Director of Consumer and Business Affairs is deemed to be a reference to the Director of Consumer Affairs Victoria; and

(b)a reference to the Office of Fair Trading, the Office of Fair Trading and Business Affairs or Consumer and Business Affairs Victoria is deemed to be a reference to Consumer Affairs Victoria in the Department of Justice.

9Actions commenced by Director

(1)Any act, matter or thing of a continuing nature commenced under any Act or regulation by or against or in relation to the Director of Consumer and Business Affairs or the Director of Fair Trading and existing immediately before the commencement of section 70 of the Fair Trading (Amendment) Act 2003, may be continued and completed on and after that commencement by or against or in relation to the Director of Consumer Affairs Victoria.

(2)If, immediately before the commencement of section 70 of the Fair Trading (Amendment) Act 2003, proceedings to which the Director of Consumer and Business Affairs was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director of Consumer Affairs Victoria is substituted for the Director of Consumer and Business Affairs as a party to the proceedings and has the same rights and obligations in the proceedings as had the Director of Consumer and Business Affairs.

10Validation of ban orders

(1)An interim ban order or a permanent ban order that was made before the commencement of section 70 of the Fair Trading (Amendment) Act 2003 is valid and effective, and is deemed always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation ofLegislation Act 1984 or section 40(2)(b) of the Fair Trading Act 1999.

(2)An interim order under section 57C of the Consumer Affairs Act 1972 (as in force before its repeal) is deemed to have been and always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation of Legislation Act 1984 or section 57C(1)(b) of the Consumer Affairs Act 1972.

(3)An order under section 57D of the Consumer Affairs Act 1972 (as in force before its repeal) is deemed to have been and always to have been valid and effective, despite any failure to comply with the requirements of section 32 of the Interpretation of Legislation Act 1984 or section 57D(1)(b) of the Consumer Affairs Act 1972.

11Continuation of existing small claims

(1)Despite the repeal of the Small Claims Act 1973 by section 72 of the Fair Trading (Amendment) Act 2003, the Small Claims Act 1973 as in force immediately before its repeal continues to apply to any proceeding under that Act existing immediately before the commencement of that section in respect of a small claim.

(2)Until 31 July 2004, any application made to the Tribunal using an application form that refers to the Small Claims Act 1973 is deemed to be made on an application form that meets the requirements for an application to the Tribunal in respect of a small claim under Part 9 of the Fair Trading Act 1999.

12Continuation of existing hire-purchase agreements

(1)Despite the repeal of the Hire-Purchase Act 1959, that Act continues to apply to any hire-purchase agreement and any agreement made in connection with a hire-purchase agreement entered into and in operation immediately before 1 April 1998 and existing before the commencement day.

(2)Despite the repeal of the Hire-Purchase Act 1959, sections 1(4B), 1(4C) and 1(6) of that Act continue to apply in respect of agreements to which they applied immediately before the commencement day as if that Act had not been repealed.

(3)In this clause commencement day means the date of commencement of section 54 of the Fair Trading and Consumer Acts Further Amendment Act 2008.

13Transitional—references to the Frustrated Contracts Act 1959

On and from the commencement of section 53 of the Fair Trading and Consumer Acts Further Amendment Act 2008, in any Act (other than this Act) or in any instrument made under any Act or in any other document of any kind a reference to the Frustrated Contracts Act 1959 is deemed to be a reference to Part 2C so far as it relates to any period after that commencement, unless the context otherwise requires.

14Transitional provisions—Fair Trading and Other Acts Amendment Act 2009

(1)Despite the amendment of this Act by section 4 of the Fair Trading and Other Acts Amendment Act 2009, Part 2B does not apply to contractual terms contained in a contract to which the Consumer Credit (Victoria) Act 1995 applies (other than a contract in a prescribed class of contract) if the contract was entered into before the commencement of that section 4 unless a term of that contract is varied on or after that commencement, in which case Part 2B applies to that term on and from the time the variation takes effect.

(2)Section 32ZDA applies only to a proceeding that commences on or after the commencement of section 10 of the Fair Trading and Other Acts Amendment Act 2009.

(3)The Act as in force immediately before the commencement of sections 11 and 12 of the Fair Trading and Other Acts Amendment Act 2009 continues to apply to any order made under section 153 before that commencement.

(4)The amendments made to section 154 by section 13 of the Fair Trading and Other Acts Amendment Act 2009 apply only to prescribed proceedings against a person that commence on or after the commencement of that section 13.

(5)The amendment to section 160(1)(a) made by section 15 of the Fair Trading and Other Acts Amendment Act 2009 applies only in relation to an offence committed on or after the commencement of that section 15.

(6)For the purposes of subsection (5), if an offence is alleged to have been committed between 2 dates and section 15 of the Fair Trading and Other Acts Amendment Act 2009 commences on a date between those 2 dates, the offence is taken to have been committed before the commencement of that section.

15Transitional—Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009

(1)Despite the commencement of section 7 of the Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009, section 4(2) as in force immediately before that commencement continues to apply to proceedings for an offence that were commenced under section 4 but not completed before that commencement.

(2)Despite the commencement of section 8 of the Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009, section 14(2) as in force immediately before that commencement continues to apply to proceedings commenced under section 14 but not completed before that commencement.

16Transitional—Consumer Affairs Legislation Amendment Act 2010

(1)As soon as practicable after section 18 of the Consumer Affairs Legislation Amendment Act 2010 comes into operation, the Director must take possession, and have custody, control and use of the register within the meaning of section 7 of the Private Agents Act 1966.

(2)As soon as practicable after section 18 of the Consumer Affairs Legislation Amendment Act 2010 comes into operation, the Director must send a notice to every person who, immediately before that date, held a licence in respect of any category of private agent under the Private Agents Act 1966, requiring that person to give or send their licence to the Director.

(3)A person must within 14 days of receipt of the notice under subsection (2) give or send their licence to the Director.

Penalty:30 penalty units.

17Transitional—Repeal of Trade Measurement Act 1995

(1)On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, the Director may bring proceedings for an offence under the Trade Measurement Act 1995 if the alleged offence was committed before the commencement of that section.

(2)On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, any proceeding commenced by the Director, Trade Measurement Victoria in relation to a contravention of the Trade Measurement Act 1995 before that date, may be continued by the Director of Consumer Affairs Victoria.

(3)Despite section 83 of the Consumer Affairs Legislation Amendment Act 2010, Division 3 of Part 6 of the Trade Measurement Act 1995, as in force immediately before its repeal, continues to apply in relation to any matter for which a notice has been served under section 57 of that Act before 1 July 2010.

(4)Despite section 83 of the Consumer Affairs Legislation Amendment Act 2010, Division 4 of Part 6 of the Trade Measurement Act 1995, as in force immediately before its repeal, continues to apply in relation to any person who is the subject of disciplinary action taken by the licensing authority under section 58 of that Act.

(5)Any reference to the licensing authority in Divisions 3 and 4 of Part 6 of the Trade Measurement Act 1995, as in force immediately before the repeal of that Act and that continues to apply by virtue of this clause, is taken to be a reference to the Director of Consumer Affairs Victoria and any disciplinary action commenced by the Director, Trade Measurement Victoria may be continued by the Director of Consumer Affairs Victoria.

(6)On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, any fees that were due and payable under the Trade Measurement Act 1995 or the regulations on that date, continue to be due and payable and, despite anything to the contrary in that Act or the regulations immediately before its repeal, may be collected by the Director of Consumer Affairs Victoria.

(7)Despite the repeal of the Trade Measurement Act 1995, the powers of an inspector to investigate an offence against that Act under Part 7 of that Act—

(a)continue to apply where the alleged offence occurred before 1 July 2010; and

(b)despite anything to the contrary in that Act as in force immediately before its repeal, may be exercised by an inspector appointed by the Director of Consumer Affairs Victoria for that purpose in accordance with section 114 of this Act.

(8)On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, any item seized by an inspector under section 61 or 62 of the Trade Measurement Act 1995 as in force immediately before its repeal and held by the administering authority under that Act—

(a)must be transferred to the custody of the Director of Consumer Affairs Victoria; and

(b)may be returnable to the person from whom it was seized on application, within the time limits specified in section 64 of that Act, to the Director of Consumer Affairs Victoria.

(9)In this clause, regulations includes regulations made under either the Trade Measurement Act 1995 or the Trade Measurement (Administration) Act 1995, or both.

18Transitional—Repeal of Trade Measurement (Administration) Act 1995

(1)On and from the commencement of section 84 of the Consumer Affairs Legislation Amendment Act 2010, the Director may bring proceedings for an offence under the Trade Measurement (Administration) Act 1995 or the regulations if the alleged offence was committed before the commencement of that section.

(2)On and from the commencement of section 84 of the Consumer Affairs Legislation Amendment Act 2010, any proceeding commenced by the Director in relation to a contravention of the Trade Measurement (Administration) Act 1995 or the regulations before that date, may be continued by the Director.

(3)On and from the commencement of section 84 of the Consumer Affairs Legislation Amendment Act 2010, any fees that were due and payable under the Trade Measurement (Administration) Act 1995 or any regulations made under that Act on that date, continue to be due and payable and, despite anything to the contrary in that Act or the regulations immediately before its repeal, are to be paid to the Director of Consumer Affairs Victoria.

(4)Despite the repeal of the Trade Measurement (Administration) Act 1995, for the purposes of exercising the transitional powers conferred by clause 17 and this clause of this Schedule, the Director of Consumer Affairs Victoria may exercise the power of the Director, Trade Measurement Victoria to appoint a person as an inspector under section 9(1)(a) of that Act.

(5)On and from the commencement of section 84 of the Consumer Affairs Legislation Amendment Act 2010, a certification fee that would be payable on or after 1 July 2010 under section 10 of the Trade Measurement (Administration) Act 1995 or the regulations as in force immediately before its repeal, that relates to a certification carried out before that date—

(a)continues to be due and payable despite the repeal of the Trade Measurement (Administration) Act 1995; and

(b)despite anything to the contrary in that Act, is to be paid to the Director of Consumer Affairs Victoria.

(6)Despite the repeal of the Trade Measurement (Administration) Act 1995, the power of an inspector to apply for a search warrant under section 16 of that Act as in force immediately before its repeal—

(a)continues to apply if the application relates to premises which may contain evidence of an alleged offence that occurred before 1 July 2010; and

(b)despite anything to the contrary in the Trade Measurement (Administration) Act 1995 as in force immediately before its repeal, may be exercised within the time limits specified in section 24 of that Act by an inspector appointed by the Director of Consumer Affairs Victoria for that purpose in accordance with section 114 of this Act.

(7)Despite the repeal of the Trade Measurement (Administration) Act 1995, section 18 of that Act as in force immediately before its repeal—

(a)continues to apply in relation to an offence committed prior to 1 July 2010; and

(b)any reference in that section to an authorised officer is taken to be a reference to a person authorised by the Director of Consumer Affairs Victoria for the purpose of this clause.

(8)In this clause, regulations includes regulations made under either the Trade Measurement Act 1995 or the Trade Measurement (Administration) Act 1995, or both.

19Transitional—Transfer of information for the purpose of the National Measurement Act 1960 of the Commonwealth

(1)On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, the following information must be transferred to the custody of the Director of Consumer Affairs Victoria—

(a)the register of the prescribed particulars relating to licences kept under section 47 of the Trade Measurement Act 1995;

(b)information obtained by the Director, Trade Measurement Victoria as the administering authority or licensing authority.

(2)On and from the commencement of section 83 of the Consumer Affairs Legislation Amendment Act 2010, the Director of Consumer Affairs Victoria may provide any information transferred to it under this clause to the National Measurement Institute for the purpose of the administration and enforcement of the National Measurement Act 1960 of the Commonwealth.

19ATransitional provision—repeal of Part 2B

(1)Part 2-3 of the Australian Consumer Law (Victoria) applies to any new contract entered into on or after the commencement day.

(2)Subject to subclause (3), Part 2B as in force immediately before its repeal continues to apply to any contract entered into before the commencement day.

(3)If a contract entered into before the commencement day—

(a)is renewed on or after that date, Part 2‑3 of the Australian Consumer Law (Victoria) applies to the contract as renewed, on and from the day (the renewal day) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day; or

(b)if a term of the contract is varied on or after the commencement day, and paragraph (a) has not already applied in relation to the contract, Part 2-3 of the Australian Consumer Law (Victoria) applies to the term as varied, on and from the day (the variation day) on which the variation takes effect, in relation to conduct that occurs on or after the variation day.

(4)If subsection (3)(b) applies to a term of the contract, sections 23(2) and 27(1) of the Australian Consumer Law (Victoria) apply to the contract.

(5)In this section, commencement day means the day on which section 17 of the Fair Trading Amendment (Australian Consumer Law) Act 2010 comes into operation.

19BTransitional—jurisdiction of the Tribunal

Despite the amendment of this Act by a provision of the Fair Trading Amendment (Australian Consumer Law) Act 2010, the Tribunal continues to have jurisdiction on and from the date of the commencement of that provision in relation to any matter or conduct that took place before that date under this Act as in force at the time the matter or conduct occurred.

19CSavings—Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009

Despite the repeal of sections 47 and 165(1)(a) by the Fair Trading Amendment (Australian Consumer Law) Act 2010, the Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009—

(a)subject to paragraph (b), continue in operation and may be amended or revoked as if those sections remained in force; and

(b)are revoked on the coming into operation of section 102 of the Marine Safety Act 2010.

*                *                *                *                *

20Transitional provision—Fair Trading Amendment (Unfair Contract Terms) Act 2010

(1)In this section, commencement day means the day on which the Fair Trading Amendment (Unfair Contract Terms) Act 2010 comes into operation.

(2)Part 2B as amended by the Fair Trading Amendment (Unfair Contract Terms) Act 2010 applies to any contract entered into on or after the commencement day.

(3)Subject to subsection (4), Part 2B as in force before the commencement day continues to apply to any contract entered into before the commencement day.

(4)If a contract entered into before the commencement day—

(a)is renewed on or after the commencement day, Part 2B as amended by the Fair Trading Amendment (Unfair Contract Terms) Act 2010 applies to the contract as renewed, on and from the day (the renewal day) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day; or

(b)if a term of the contract is varied on or after the commencement day, and paragraph (a) has not already applied in relation to the contract, Part 2B, as amended by the Fair Trading Amendment (Unfair Contract Terms) Act 2010, applies to the term as varied, on and from the day (the variation day) on which the variation takes effect, in relation to conduct that occurs on or after the variation day.

(5)If subsection (4)(b) applies to a term of the contract, sections 32Y(3) and 32ZDA apply to the contract.

═══════════════

ENDNOTES

1.     General Information

Minister's second reading speech—

Legislative Assembly: 25 March 1999

Legislative Council: 5 May 1999

The long title for the Bill for this Act was "A Bill to re-enact with amendments laws relating to trading practices, to make further provision about trading practices, to repeal the Consumer Affairs Act 1972, the Ministry of Consumer Affairs Act 1973, the Fair Trading Act 1985 and the Market Court Act 1978 and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 25 March 1999

Legislative Council: 5 May 1999

Absolute majorities:

Legislative Assembly: 22 April 1999

Legislative Council: 12 May 1999

The Fair Trading Act 1999 was assented to on 18 May 1999 and came into operation as follows:

Part 1 (sections 1–6) on 18 May 1999: section 2(1); rest of Act on 1 September 1999: Government Gazette 19 August 1999 page 1901.

2.     Table of Amendments

This Version incorporates amendments made to the Fair Trading Act 1999 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Fair Trading Act 1999, No. 16/1999

Assent Date: 18.5.99
Commencement Date: Sch. 3 cl. 19D(4) on 1.1.12: Sch. 3 cl. 19D(4)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Business Registration Acts (Amendment) Act 2000, No. 35/2000

Assent Date: 6.6.00
Commencement Date: Ss 39–41 on 19.6.00: Government Gazette 15.6.00 p. 1248
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Corporations (Consequential Amendments) Act 2001, No. 44/2001

Assent Date: 27.6.01
Commencement Date: S. 3(Sch. item 42) on 15.7.01: s. 2
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading (Unconscionable Conduct) Act 2001, No. 86/2001

Assent Date: 11.12.01
Commencement Date: 12.12.01: s. 2
CurrentState: All of Act in operation

Fair Trading (Amendment) Act 2003, No. 30/2003 (as amended by No. 106/2003)

Assent Date: 27.5.03
Commencement Date: Ss 3(1)(3), 4–10, 13–25, 39–44, 53, 60, 61, 65, 70 on 28.5.03: s. 2(1); ss 3(2), 12, 26–38, 45–52, 54–59,
62–64, 66–69, 71 on 9.10.03: Government Gazette 9.10.03 p. 2589; s. 11 on 1.6.04: Government Gazette 6.5.04 p. 1068
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003, No. 60/2003

Assent Date: 16.6.03
Commencement Date: S. 20 on 21.5.03: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading (Further Amendment) Act 2003, No. 106/2003

Assent Date: 9.12.03
Commencement Date: Ss 4–6, 16–18 on 10.12.03: s. 2(1); ss 3, 7–15, 19 on 30.8.04: Government Gazette 13.5.04 p. 1218
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading (Consumer Contracts) Act 2004, No. 42/2004

Assent Date: 16.6.04
Commencement Date: S. 3 on 17.6.04: s. 2(1); ss 4, 5 on 30.8.04: s. 2(2)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading (Enhanced Compliance) Act 2004, No. 103/2004

Assent Date: 21.12.04
Commencement Date: Ss 3–28 on 22.12.04: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Public Administration Act 2004, No. 108/2004

Assent Date: 21.12.04
Commencement Date: S. 117(1)(Sch. 3 item 74) on 5.4.05: Government Gazette 31.3.05 p. 602
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Legal Profession (Consequential Amendments) Act 2005, No. 18/2005

Assent Date: 24.5.05
Commencement Date: S. 18(Sch. 1 item 42) on 12.12.05: Government Gazette 1.12.05 p. 2781
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Motor Car Traders and Fair Trading Acts (Amendment) Act 2005, No. 91/2005

Assent Date: 29.11.05
Commencement Date: S. 7 on 30.11.05: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Veterans Act 2005, No. 98/2005

Assent Date: 7.12.05
Commencement Date: S. 88 on 21.8.06: Government Gazette 17.8.06 p. 1716
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Infringements (Consequential and Other Amendments) Act 2006, No. 32/2006

Assent Date: 13.6.06
Commencement Date: S. 94(Sch. item 19) on 1.7.06: Government Gazette 29.6.06 p. 1315
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Owners Corporations Act 2006, No. 69/2006

Assent Date: 19.9.06
Commencement Date: S. 224(Sch. 3 item 6) on 31.12.07: s. 2(2)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Conveyancers Act 2006, No. 75/2006

Assent Date: 10.10.06
Commencement Date: S. 192(Sch. 2 item 3) on 1.7.08: s. 2(2)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Funerals Act 2006, No. 77/2006

Assent Date: 10.10.06
Commencement Date: S. 90 on 1.11.07: s. 2(2)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Justice Legislation (Further Amendment) Act 2006, No. 79/2006

Assent Date: 10.10.06
Commencement Date: Ss 64–68 on 11.10.06: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading and Consumer Acts Amendment Act 2007, No. 17/2007

Assent Date: 29.5.07
Commencement Date: Ss 3–13 on 30.5.07: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading and Consumer Acts Further Amendment Act 2008, No. 2/2008

Assent Date: 11.2.08
Commencement Date: Ss 5–9 on 12.2.08: s. 2(1); ss 4, 11 on 1.7.08: Government Gazette 22.5.08 p. 1077; ss 3, 10 on 1.12.08: s. 2(4)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Consumer Credit (Victoria) and Other Acts Amendment 2008, No. 6/2008

Assent Date: 18.3.08
Commencement Date: S. 27 on 19.3.08: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Relationships Act 2008, No. 12/2008

Assent Date: 15.4.08
Commencement Date: S. 73(1)(Sch. 1 item 22) on 1.12.08: s. 2(2)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fundraising Appeals and Consumer Acts Amendment Act 2009, No. 2/2009

Assent Date: 10.2.09
Commencement Date: Ss 22, 26 on 11.2.09: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading and Other Acts Amendment Act 2009, No. 19/2009

Assent Date: 10.6.09
Commencement Date: Ss 3–17 on 11.6.09: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009, No. 45/2009

Assent Date: 5.8.09
Commencement Date: Ss 7–9 on 6.8.09: s. 2
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date: 24.11.09
Commencement Date: S. 97(Sch. item 56) on 1.1.10: Government Gazette 10.12.09 p. 3215
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Consumer Affairs Legislation Amendment Act 2010, No. 1/2010 (as amended by No. 63/2010)

Assent Date: 9.2.10
Commencement Date: S. 19 on 1.3.10: Government Gazette 25.2.10 p. 351; s. 105(2) on 1.7.10: s. 2(2); ss 95, 105(1)(3)(4) on 1.8.10: Government Gazette 22.7.10 p. 1628; ss 17, 18, 18A on 1.7.11: Special Gazette (No. 154) 24.5.11 p. 1
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Credit (Commonwealth Powers) Act 2010, No. 11/2010

Assent Date: 30.3.10
Commencement Date: S. 48 on 1.4.10: Special Gazette (No. 114) 31.3.10 p. 1; ss 43–47, 49 on 1.7.10: Government Gazette 24.6.10 p. 1273
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading Amendment (Unfair Contract Terms) Act 2010, No. 21/2010

Assent Date: 1.6.10
Commencement Date: Ss 4–16 on 1.7.10: Government Gazette 24.6.10 p. 1274
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Consumer Affairs Legislation Amendment (Reform) Act 2010, No. 63/2010 (as amended by No. 72/2010)

Assent Date: 28.9.10
Commencement Date: Ss 67–69, 72(1) on 1.11.10: Government Gazette 14.10.10 p. 2404; s. 81(Sch. item 6) on 1.11.10: s. 2(2); s. 70 on 1.1.11: Special Gazette (No. 502) 20.12.10 p. 1; ss 7–9, 71 on 1.7.11: Special Gazette (No. 154) 24.5.11 p. 1
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Residential Tenancies Amendment Act 2010, No. 67/2010

Assent Date: 28.9.10
Commencement Date: Ss 172, 173 on 1.9.11: Special Gazette (No. 265) 16.8.11 p. 1
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Fair Trading Amendment (Australian Consumer Law) Act 2010, No. 72/2010

Assent Date: 19.10.10
Commencement Date: Ss 4–47 on 1.1.11: Special Gazette (No. 502) 20.12.10 p. 1
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Statute Law Revision Act 2011, No. 29/2011

Assent Date: 21.6.11
Commencement Date: S. 3(Sch. 1 item 36) on 22.6.11: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Consumer Acts Amendment Act 2011, No. 36/2011

Assent Date: 23.8.11
Commencement Date: Ss 15–18 on 24.8.11: s. 2(1)
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

Business Names (Commonwealth Powers) Act 2011, No. 79/2011

Assent Date: 21.12.11
Commencement Date: S. 31 on 28.5.12: Special Gazette (No. 151) 8.5.12 p. 1
CurrentState: This information relates only to the provision/s amending the Fair Trading Act 1999

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