Fair Trading (Further Amendment) Act 2003 (Vic)

Fair Trading (Further Amendment) Act 2003

ts	Act No. 106/2003
n
e
m	TABLE OF PROVISIONS

u	Section	Page
c
o	PART 1—PRELIMINARY	1
D

1. Purposes 1

ry 2. Commencement 2

ta PART 2—AMENDMENTS TO THE FAIR TRADING ACT 1999 3

n	3.	Definitions	3
e	4.	Address to be included in documents	3
m	5.	Amendment to definitions in Part 2B	4
ia	6.	Assessment of unfair terms	4
rl	7.	New Division 2A inserted in Part 4	4
a	Division 2A—Telephone Marketing Agreements	4
P	67A.	What is a telephone marketing agreement?	4
d	67B.	Duty to cease telephone marketing	7
n	67C.	Permitted hours for telephone marketing	7
a	67D.	Purchaser must give explicit informed consent	8
67E.	Requirements for a telephone marketing agreement	10
n	67F.	Supplier must comply with requirements	12
o
ti	67G.	When does a telephone marketing agreement
commence?	13
la	67H.	When and how can the purchaser cancel the
is	agreement?	13
67I.	What is the effect of cancellation?	15
g	67J.	What must the supplier do on cancellation?	15
e	67K.	What can the supplier charge on cancellation?	16
L	67L.	What must the purchaser do on cancellation?	17
67M.	What if the telephone marketing agreement is void
n	for lack of explicit informed consent?	17
a
ri	8.	What is a non-contact sales agreement?	19
to
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i

Section Page

13.	Certain provisions in agreements void	20
14.	Recovery of money	20
15.	Amendments to section 118	20

ts	16.	Entry or search with consent	21
17.	Amendment of regulation-making powers	21
n	18.	Statute law revision	21
e	19.	New Schedule 2 substituted	22
m

u PART 3—AMENDMENTS TO OTHER ACTS 26

c	20.	Amendments to the Co-operatives Act 1996	26
o	21.	Amendments to the Credit (Administration) Act 1984	26
D	22.	Amendments to the Electricity Industry Act 2000	27
23.	Amendment to the Fair Trading (Amendment) Act 2003	29
ry	24.	Further amendments to the Fair Trading (Amendment)
ta	Act 2003	29
25.	New section 32KAB inserted in the Fair Trading
n	(Amendment) Act 2003	30
e	32KAB. Certain agreements excluded	30
m	26.	Amendments to the Gas Industry Act 2001	30
ia	27.	Amendments to the Motor Car Traders Act 1986	33
rl	28.	Amendments to the Second-Hand Dealers and Pawnbrokers
Act 1989	33
a	29.	Amendments to the Travel Agents Act 1986	34

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d	ENDNOTES	35
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c
o	Victoria
D
ry
ta
n	No. 106 of 2003
e
m
ia
rl	Fair Trading (Further Amendment) Act
a	2003†
P

[Assented to 9 December 2003]

d
n
a
n
o

ti	The Parliament of Victoria enacts as follows:
la
is
g	PART 1—PRELIMINARY
e
L	1. Purposes
n	The main purposes of this Act are—
a
ri	(a) to amend the Fair Trading Act 1999—

to	(i)	to further regulate telephone marketing
ic	agreements; and
V	(ii)	to improve the operation of that Act; and

Fair Trading (Further Amendment) Act 2003

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Part 1—Preliminary

s. 2

(b) to amend the Fair Trading (Amendment) Act 2003 in relation to implied conditions

ts	and warranties; and
n	(c) to amend the Co-operatives Act 1996 to
e	make further provision regarding the powers
m	of the Treasurer to guarantee loans to co-
u	operatives; and
c	(d) to amend the Electricity Industry Act 2000
o	and the Gas Industry Act 2001 to exclude
D	certain contracts from the operation of
ry	certain of the telephone marketing provisions
ta	of the Fair Trading Act 1999.
n	2. Commencement
e	(1) This Part and sections 4, 5, 6, 16, 17, 18, 20, 21,
m	24, 25, 27, 28 and 29 come into operation on the
ia	day after the day on which this Act receives the
rl	Royal Assent.
a
P	(2) Section 23 is deemed to have come into operation on 27 May 2003.
d
n	(3) Subject to sub-section (4), the remaining
a	provisions of this Act come into operation on a
n	day or days to be proclaimed.
o
ti	(4) If a provision referred to in sub-section (3) does
la	not come into operation before 31 December
is	2004, it comes into operation on that day.
g	__________________
e
L
n
a
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s. 3

PART 2—AMENDMENTS TO THE FAIR TRADING ACT 1999

ts	3. Definitions
n	See:

(1) In section 3 of the Fair Trading Act 1999 insert

e Act No.

the following definition— 16/1999.

m Reprint No. 1

u	' "telephone marketing agreement" has the	as at
9 October
c	meaning given by section 67A;'.	2003 and
o	amending Act
D	(2) In section 3 of the Fair Trading Act 1999—	No. 30/2003.
LawToday:
ry	(a) in the definition of "cooling-off period" after paragraph (a) insert—
dpc.vic.
ta	gov.au

"(aa) in the case of a telephone marketing

n

e	agreement, the period within which the purchaser is entitled under the
m
ia	agreement and section 67H to cancel
rl	the agreement; or"; and
a	(b) in the definition of "related contract or
P	instrument" after "contact sales agreement"
d	insert ", telephone marketing agreement".
n	4. Address to be included in documents
a

For section 29(3) of the Fair Trading Act 1999

n	substitute—
o
ti	"(3) A person, other than a person referred to in
la	sub-section (1)(f)(ii) or (1)(f)(iii), is not
is	required to comply with sub-section (1)(f) if
g	the person has provided to the publisher of
e	the publication in which the document,
L	statement or advertisement is to appear—
n	(a) the name of the person or the business;
a
ri	and

to	(b)	the full address (not being a post box) of the place of business or residence of
ic	the person.".
V

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s. 5

5. Amendment to definitions in Part 2B

In section 32U of the Fair Trading Act 1999—

ts	(a) the definition of "consumer contract" is
n	repealed;
e

(b) in the definition of "unfair term" omit "and

m

u	includes a prescribed unfair term".
c	6. Assessment of unfair terms
o
D	In section 32X(c) of the Fair Trading Act 1999, for "supplier but not the consumer" substitute
ry	"consumer but not the supplier".
ta	7. New Division 2A inserted in Part 4
n
e	After Division 2 of Part 4 of the Fair Trading
m	Act 1999 insert—
ia
rl	'Division 2A—Telephone Marketing

Agreements

a

P	67A. What is a telephone marketing
d	agreement?
n
a	(1) An agreement is a telephone marketing agreement if—
n
o	(a) it is for the supply in trade or commerce
ti	of goods or services of a kind ordinarily
la	used for personal, household or
is	domestic use; and
g	(b) the negotiations leading to the making
e	of the agreement (whether or not they
L	are the only negotiations that precede
n	the making of the agreement) take place
a
ri	between the supplier or a person acting on behalf of the supplier and the
to	purchaser over the telephone; and
ic
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s. 7

(c) the initial telephone call for the purpose of entering into the negotiations was made by or on behalf of the supplier;

ts	and
n
e	(d) the total consideration payable by the
m	purchaser under the agreement—
u	(i) is not ascertainable at the time of
c	making the agreement; or
o
D	(ii) is ascertainable at the time of

making the agreement and

ry	exceeds $50.
ta	(2) Despite sub-section (1)(c), an agreement is
n
e	not a telephone marketing agreement if—

(a) the purchaser invited the supplier or a

m

ia	person acting on behalf of the supplier
rl	to make that initial telephone call
a	(including by a prior written consent of
P	the purchaser for the supplier or a person acting on behalf of the supplier
d
n	to telephone the purchaser for the
a	purpose of entering into a telephone marketing agreement); or
n
o	(b) after that initial telephone call, the
ti	purchaser telephoned the supplier or a
la	person acting on behalf of the supplier
is	to continue the negotiations; or
g	(c) after that initial telephone call, the
e	negotiations were continued in the
L	physical presence of the purchaser or a
n	person acting on behalf of the purchaser
a
ri	and the supplier or a person acting on
to	behalf of the supplier.
ic
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(3) If— (a) 2 or more agreements relate

ts	substantially to the same transaction;
n	and
e	(b) the transaction could have been
m	effected by a single agreement which
u	would have constituted a telephone
c	marketing agreement—
o
D	then—

ry	(c)	each of the agreements that would not,
ta	if it stood alone, constitute a telephone
marketing agreement becomes a
n
e	telephone marketing agreement; and

(d) for the purpose of ascertaining the

m

ia	cooling-off period in relation to each of
rl	the agreements, each agreement is
a	deemed to have been made when the
P	last of the agreements was made.
d	(4) If it is alleged in any proceeding in respect of
n	a matter arising under this Act that an
a	agreement is a telephone marketing
n	agreement, it is presumed, unless the
o	contrary intention is established, that the
ti	agreement is a telephone marketing
la	agreement.
is	(5) Despite sub-section (1), the following are not
g	telephone marketing agreements—
e

L	(a)	an agreement solely for the provision of
n	credit;
a

ri	(b) a contract of guarantee;
to	(c) a mortgage;
ic
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(d) an agreement for the connection of premises to water, sewerage or a telephone service (other than a mobile

ts	telephone service) unless, as a result of
n	the agreement, responsibility for the
e	supply of that service is transferred
m	from one supplier to another supplier.
u
c	67B. Duty to cease telephone marketing
o	A supplier or a person acting on behalf of a
D	supplier who is carrying on negotiations on
ry	the telephone which may lead to a telephone
ta	marketing agreement or for an incidental or related purpose must—
n

e	(a)	cease those negotiations immediately
m	on the request of the person with whom
ia	the negotiations are being conducted;
rl	and

a	(b) refrain from contacting that person for
P	30 days for the purpose of negotiations
d	which may lead to a telephone
n	marketing agreement with that supplier.
a

Penalty:  60 penalty units, in the case of a

n

o	natural person.
ti	120 penalty units, in the case of a
la	body corporate.
is	67C. Permitted hours for telephone marketing
g
e	A supplier or a person acting on behalf of a
L	supplier must not contact a person for the
n	purpose of negotiations which may lead to a
a	telephone marketing agreement or for an
ri	incidental or related purpose—
to	(a) at any time on a public holiday; or
ic
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(b) on a Saturday or a Sunday—

(i) between midnight and 9.00 am; or

ts	(ii) between 5.00 pm and midnight; or
n
e	(c) on any other day—
m	(i) between midnight and 9.00 am; or
u	(ii) between 8.00 pm and midnight.
c

o	Penalty:	120 penalty units, in the case of a
D	natural person.
ry	240 penalty units, in the case of a
ta	body corporate.

n	67D. Purchaser must give explicit informed
e	consent
m	(1) A telephone marketing agreement is void
ia
rl	unless the purchaser has, prior to the
telephone marketing agreement being made,
a	given explicit informed consent to the
P	supplier or a person acting on behalf of the
d	supplier.
n
a	Note: Section 67M sets out the consequences

flowing from a purported telephone marketing

n	agreement being void.
o
ti	(2) If a telephone marketing agreement is void
la	under sub-section (1) any related contract or
is	instrument is also void.
g	(3) Sub-section (2) does not affect the operation
e	of the Consumer Credit (Victoria) Code in its
L	application to a tied loan contract as defined
n	in that Code.
a
ri	(4) For the purposes of this section, "explicit informed consent" in relation to a telephone
to	marketing agreement means the consent to
ic	make the agreement—
V

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s. 7

(a) must be given by the purchaser directly to the supplier or a person acting on

ts	behalf of the supplier—
n	(i) in writing signed by the purchaser;
e	or
m	(ii) orally; and
u
c	(b) if given orally, must be recorded in
o	accordance with sub-section (5); and
D	(c) must be given only after the supplier or
ry	a person acting on behalf of the
ta	supplier has, clearly, fully and adequately disclosed all matters
n	relevant to the consent of the purchaser,
e	including each specific purpose or use
m	of the consent.
ia
rl	(5) For the purposes of sub-section (4)(b), the
a	supplier or a person acting on behalf of the
P	supplier must record the consent—
d	(a) in writing; or
n	(b) with the prior consent of the purchaser, by means of a recording device.
a
n
o	(6) The supplier or a person acting on behalf of a
ti	supplier must not record (otherwise than in
la	writing) the purchaser's consent to make a
is	telephone marketing agreement, unless the
g	purchaser has given his or her prior consent
e	to the recording.
L	Penalty:  60 penalty units, in the case of a
n	natural person.
a
ri	120 penalty units, in the case of a
to	body corporate.
ic
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(7) The supplier must keep the record of the

purchaser's explicit informed consent for

ts	12 months.
n	Penalty:  60 penalty units, in the case of a
e	natural person.
m	120 penalty units, in the case of a
u	body corporate.
c
o	(8) The supplier or a person acting on behalf of
D	the supplier must not enter, or purport to enter, into a telephone marketing agreement
ry	unless that supplier or person has, during the
ta	telephone negotiations which led to the
n	agreement or purported agreement, advised
e	the purchaser of the right to cancel the
m	agreement within the cooling-off period
ia	applying to that agreement.
rl	Penalty:  120 penalty units, in the case of a
a	natural person.
P
240 penalty units, in the case of a
d
n	body corporate.
a	67E. Requirements for a telephone marketing
n	agreement
o
ti	(1) Within 5 days after making the telephone
la	marketing agreement or any longer period
agreed by the parties, the supplier must serve
is	on the purchaser—
g
e	(a) a document evidencing the agreement
L	(the "agreement document"); and
n	(b) a notice completed in accordance with
a
ri	Part 2 of Schedule 2 which may be used
by the purchaser to cancel the
to	agreement.
ic
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s. 7

(2) The agreement document and notice referred to in sub-section (1) may be served on the

ts	purchaser—
n	(a) personally; or
e	(b) by post; or
m	(c) with the consent of the purchaser, by
u
c	electronic communication.
o	(3) The following requirements must be
D	complied with in relation to a telephone
ry	marketing agreement—

ta	(a)	the agreement document must set out in
n	full all the terms of the agreement,
e	including—

m	(i) the total consideration to be paid
ia	or provided by the purchaser
rl	under the agreement or, if the total
a	consideration is not ascertainable
P	at the time the agreement is made,
d	the manner in which it is to be
n	calculated;
a

(ii) any postal or delivery charges to

n	be paid by the purchaser;
o
ti	(b) the agreement document must—
la	(i) include on its front page a notice
is	which must, in accordance with
g	Part 1 of Schedule 2, advise the
e	purchaser of the right to cancel the
L	agreement; and
n
a	(ii) set out in full the name and
ri	business address (not being a post
to	box) of the supplier; and

ic	(iii)	be printed clearly or typewritten
V	(apart from any amendments to the printed or typewritten form

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s. 7

which may be handwritten) and

otherwise must comply with

ts	section 163; and
n	(c) any amendments to the agreement must
e	be signed by both parties to the
m	agreement.
u	(4) The information required under sub-
c	sections (3)(a)(i) and (3)(a)(ii), (3)(b)(i) and
o	(3)(b)(ii) must be conspicuous and prominent
D	in the agreement document or notice (as the
ry	case may be).
ta	(5) The Director may approve an agreement or
n	class of agreements or an agreement
e	document or class of agreement documents
m	which do not comply with the requirements
ia	of sub-section (1)(b), (3) or (4) if the
rl	Director is satisfied that the agreements or
a	agreement documents provide a level of
P	disclosure substantially equivalent to the
d	requirements of that provision.
n	(6) An agreement or agreement document
a	approved, or in a class approved, under sub-
n	section (5) is not required to comply with
o
ti	sub-section (1)(b), (3) or (4).
la	67F. Supplier must comply with requirements
is	(1) If section 67E is not complied with in
g	relation to a telephone marketing agreement,
e	the supplier under the agreement and any
L	person entering into the agreement on behalf
n	of the supplier are each guilty of an offence
a
ri	and liable to a penalty of not more than—

(a) 120 penalty units, in the case of a

to	natural person; or
ic	(b) 240 penalty units, in the case of a body
V	corporate.

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Part 2—Amendments to the Fair Trading Act 1999

s. 7

(2) The supplier under a telephone marketing

agreement cannot enforce the agreement against the purchaser if the supplier or a

ts	person entering into the agreement on behalf
n	of the supplier fails to comply with
e	section 67E.
m
u	67G. When does a telephone marketing
c	agreement commence?
o	(1) Subject to this Division, a telephone
D	marketing agreement commences on the day
ry	it is made.
ta	(2) A telephone marketing agreement is made on
n	the day that the purchaser gives explicit
e	informed consent to make the agreement
m	under section 67D.
ia	67H. When and how can the purchaser cancel
rl	the agreement?
a
P	(1) Subject to sub-section (2), a purchaser under a telephone marketing agreement may cancel
d
n	that agreement by giving notice of
a	cancellation to the supplier or a person acting on behalf of the supplier within 10 days from
n
o	and including the day on which the purchaser
ti	receives the agreement document and the
la	notice completed in accordance with Part 2
of Schedule 2 or within such longer period as
is	the agreement may provide.
g
e	(2) In relation to a telephone marketing
L	agreement for the supply of raffle or other
n	lottery tickets, the right of the purchaser to
a	cancel the agreement under sub-section (1)
ri	does not apply on or after the date of the
to	drawing of the raffle or other lottery.
ic	(3) Despite sub-section (1), the purchaser under
V	the telephone marketing agreement may cancel the agreement by giving notice of

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s. 7

cancellation to the supplier within 6 months
from the day on which the agreement was

made if the supplier or a person acting on

ts	behalf of the supplier does not comply with
n	section 67E(1) or 67E(3)(b)(i).
e

(4) A notice of cancellation may be given in the

m

u	form of the notice in Part 2 of Schedule 2.
c	(5) Sub-section (4) does not apply to an
o	agreement or agreement document approved
D	or in a class approved under section 67E(5)
ry	if the Director approves a different method
ta	of notice of cancellation in the case of that agreement or document.
n
e	(6) A notice of cancellation under this section
m	may be given—
ia	(a) if a form of notice of cancellation
rl	accompanied the agreement
a	document—
P

(i) by leaving it at or posting it to the

d

n	business address of the supplier or
a	other address of the supplier shown on that form; or
n
o	(ii) by faxing it to the facsimile
ti	number of the supplier shown on
la	that form; or
is	(b) if the form of notice of cancellation
g	does not accompany the agreement
e	document, by leaving it at or posting it
L	to the last known place of business of
n	the supplier; or
a
ri	(c) by telephoning the supplier or the
to	person acting on behalf of the supplier
ic	with whom the negotiations were
conducted.
V

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s. 7

(7) In this section, "raffle", "lottery" and

"ticket" have the same meanings as in

ts	section 3 of the Gaming No. 2 Act 1997.
n	67I. What is the effect of cancellation?
e	(1) If a telephone marketing agreement is
m	cancelled during the cooling-off period, the
u	agreement is deemed to have been rescinded
c	by mutual consent.
o
D	(2) If a telephone marketing agreement is cancelled during the cooling-off period, any
ry	related contract or instrument is void.
ta	(3) Sub-section (2) does not affect the operation
n	of the Consumer Credit (Victoria) Code in its
e	application to a tied loan contract as defined
m	in that Code.
ia
rl	67J. What must the supplier do on
a	cancellation?
P	(1) If a telephone marketing agreement is
d	cancelled within the cooling-off period, the
n	supplier must immediately repay to the
a	purchaser any money paid by the purchaser
n	under the agreement or a related contract or
o
ti	instrument.
la	(2) If a telephone marketing agreement is

cancelled within the cooling-off period, the

is	supplier must return to the purchaser any
g	goods taken as a trade-in under or in respect
e
L	of the agreement.

(3) The goods must be returned within 10 days

n

a	after the supplier receives the notice of
ri	cancellation of the agreement.
to
ic
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s. 7

(4) The goods must be returned in a condition substantially as good as when the goods were

ts	taken.
n	(5) If the supplier has disposed of the goods
e	taken as a trade-in under or in respect of the
m	agreement before the cancellation of the
u	agreement, the supplier must pay to the
c	purchaser the reasonable cost of replacing
o	the goods.
D	67K. What can the supplier charge on
ry	cancellation?
ta	(1) The supplier under a telephone marketing
n	agreement may make a reasonable charge for
e	any goods which the purchaser is unable to
m	return on cancellation of the agreement
ia	under this Division.
rl	(2) If a telephone marketing agreement is
a	cancelled under this Division, a supplier is
P	not entitled to charge for services provided
d	under the agreement before it is cancelled,
n	except in accordance with this section.
a

(3) If a purchaser cancels a telephone marketing

n

o	agreement under this Division, the supplier
ti	may apply to the Tribunal for an order that
la	the purchaser must pay to the supplier a
reasonable amount (to be determined by the
is	Tribunal) for services provided under the
g
e	agreement before it was cancelled.
L	(4) The Tribunal must not make an order under
n	sub-section (3) unless the Tribunal is
a	satisfied that the supplier or a person acting
ri	on behalf of the supplier has not contravened
to	this Act in relation to the telephone
ic	marketing agreement.
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(5) The supplier may deduct an amount payable

by a purchaser under this section from any money required to be paid to the purchaser

ts	under section 67J.
n
e	67L. What must the purchaser do on
m	cancellation?
u	(1) If the purchaser under a telephone marketing
c	agreement for the supply of goods cancels
o	the agreement during the cooling-off period,
D	the purchaser must immediately—
ry	(a) return the goods to the supplier; or
ta	(b) notify the supplier of the place where
n
e	the supplier may collect the goods.

(2) If a purchaser gives a notice to a supplier

m

ia	under sub-section (1) and the supplier does
rl	not collect the goods within 30 days after the
a	cancellation of the agreement, the goods
P	become the property of the purchaser free of any other right or interest.
d
n	(3) If the purchaser under a telephone marketing
a	agreement fails to take reasonable care of
n	goods which are returned to a supplier or
o	collected by a supplier under this section, the
ti	purchaser is liable to pay compensation to
la	the supplier for any damage to or
is	depreciation in the value of the goods.
g	67M. What if the telephone marketing
e	agreement is void for lack of explicit
L	informed consent?
n
a	(1) If a telephone marketing agreement and any
ri	related contract or instrument ("the
to	purported agreement") are void under
ic	section 67D—
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(a) the supplier must repay to the purchaser any money paid by the purchaser under

ts	the purported agreement; and
Note: Section 67D(3) operates to ensure that
n	section 67D(2) does not affect the
e	operation of the Consumer Credit
m	(Victoria) Code in its application to a
u	tied loan contract as defined in that
c	Code.
o	(b) the supplier must return to the
D	purchaser any goods taken as a trade-in
ry	under or in respect of the purported
ta	agreement; and
n	(c) the goods must be returned in a
e	condition substantially as good as when
m	the goods were taken; and
ia	(d) if the supplier has disposed of the
rl	goods taken as a trade-in under or in
a	respect of the purported agreement, the
P	supplier must pay to the purchaser the
d	reasonable cost of replacing the goods;
n	and
a

(e) the supplier under the purported

n

o	agreement may apply to the Tribunal
ti	for an order that—
la	(i) the purchaser must return goods
is	provided to the purchaser by the
g	supplier under the purported
e	agreement;
L	(ii) the purchaser must pay to the
n	supplier a reasonable amount (to
a
ri	be determined by the Tribunal) for goods or services provided by the
to	supplier under the purported
ic	agreement;
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s. 8

(iii)  the supplier may keep any money paid by the purchaser for goods or services under the purported

ts	agreement.
n
e	(2) The Tribunal may only make an order under
m	this section if it is satisfied that, in all the
u	circumstances, it is just to do so.'.
c	8. What is a non-contact sales agreement?
o
D	After section 68(2)(c) of the Fair Trading Act
ry	1999 insert—
ta	"(d) a telephone marketing agreement.".
n	9. New section 68A inserted
e	After section 68 of the Fair Trading Act 1999
m	insert—
ia
rl	"68A. Duty to cease telephone marketing for
a	non-contact sales agreement
P	A supplier or a person acting on behalf of a
d	supplier who is carrying on negotiations on
n	the telephone which may lead to a non-
a	contact sales agreement or for an incidental
n	or related purpose must—
o
ti	(a) cease those negotiations immediately

on the request of the person with whom

la	the negotiations are being conducted;
is	and
g
e	(b) refrain from contacting that person for
L	30 days for the purpose of negotiations
n	which may lead to a non-contact sales
a
ri
agreement with that supplier.

Penalty:  60 penalty units, in the case of a

to	natural person.
ic	120 penalty units, in the case of a
V	body corporate.".

Fair Trading (Further Amendment) Act 2003

Act No. 106/2003

Part 2—Amendments to the Fair Trading Act 1999

s. 10

10. Section 78 repealed

Section 78 of the Fair Trading Act 1999 is

ts	repealed.
n	11. Trade-in not to be sold during cooling-off period
e

In section 79 of the Fair Trading Act 1999, after

m

u	"contact sales agreement" insert ", a telephone
c	marketing agreement".
o	12. Prohibition on payment for services during cooling-
D	off period
ry	In section 80 of the Fair Trading Act 1999, after
ta	"contact sales agreement" insert ", a telephone
n	marketing agreement".
e	13. Certain provisions in agreements void
m
ia	In sections 81(1), 81(2) and 81(3) of the Fair
rl	Trading Act 1999, after "contact sales
a	agreement" insert ", a telephone marketing
P	agreement".
d	14. Recovery of money
n	In sections 82(1), 82(2) and 82(3) of the Fair
a	Trading Act 1999, after "contact sales
n	agreement" insert ", a telephone marketing
o
ti	agreement".
la	15. Amendments to section 118
is	(1) Insert the following heading to section 118 of the
g	Fair Trading Act 1999—
e
L	"Requirement to produce information".
n	(2) After section 118(1) of the Fair Trading Act
a
ri	1999 insert—

"(1A) For the purpose of monitoring compliance

to	with section 67D, the Director or an
ic	inspector may require a supplier to produce
V	to the Director or an inspector the record of a

Fair Trading (Further Amendment) Act 2003

Act No. 106/2003

Part 2—Amendments to the Fair Trading Act 1999

s. 16

purchaser's consent kept by the supplier

under that section.".

ts	(3) In section 118(2) of the Fair Trading Act 1999,
n	for "sub-section (1)" substitute "this section".
e	16. Entry or search with consent
m	(1) In section 119(3) of the Fair Trading Act 1999,
u
c	omit "in the prescribed form".
o	(2) In section 119(3)(b) of the Fair Trading Act
D	1999, for "entry and search" substitute "entry and
ry	search or to the seizure of anything or to the
ta	taking of any sample, copy or extract".
n	17. Amendment of regulation-making powers
e	(1) In section 165(1)(aa) of the Fair Trading Act
m	1999 after "contractual term" insert "or a class of
ia	contractual term".
rl	(2) After section 165(1)(c) of the Fair Trading Act
a
P	1999 insert—
d	"(ca) providing for the exemption of a class of
n	telephone marketing agreement from any or
a	all of the provisions of Part 4;".
n	18. Statute law revision
o
ti	In section 63(2) of the Fair Trading Act 1999,
la	for "section 61(b), (c) and (i)" substitute "sections
is	61(1)(b), 61(1)(c) and 61(1)(i)".
g
e
L
n
a
ri
to
ic
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Part 2—Amendments to the Fair Trading Act 1999

s. 19

19. New Schedule 2 substituted

For Schedule 2 to the Fair Trading Act 1999

ts	substitute—
n
e	'SCHEDULE 2
m
u	CONTACT SALES AGREEMENTS/
c	TELEPHONE MARKETING AGREEMENTS
o
D	PART 1—NOTICE TO PURCHASER
ry	The following notice is to appear on the front page of a
ta	contact sales agreement or telephone marketing agreement document and, in the case of a contact sales agreement,
n	must be signed by the purchaser:
e
m	"IMPORTANT NOTICE TO THE PURCHASER
ia	YOU HAVE A RIGHT TO CANCEL THIS AGREEMENT
rl	WITHIN 10 DAYS FROM AND INCLUDING—
a	* IN THE CASE OF A CONTACT SALES
P	AGREEMENT (for example, a door-to-door sale),
d	THE DAY YOU SIGNED THE AGREEMENT;
n	OR

a	*	IN THE CASE OF A TELEPHONE MARKETING AGREEMENT (that is, an agreement made over
n	the telephone), THE DAY YOU RECEIVED THE
o
ti	AGREEMENT DOCUMENT.

la	(*Cross out whichever does not apply)
is
g	IMPORTANT DETAILS ABOUT YOUR RIGHTS ARE
e	SET OUT IN THE CANCELLATION NOTICE
L	PROVIDED WITH THIS DOCUMENT.
n
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Part 2—Amendments to the Fair Trading Act 1999

s. 19

PART 2—CANCELLATION NOTICE

A Cancellation Notice in the following form must

ts	accompany a contact sales agreement or a telephone marketing agreement document:
n
e	'CANCELLATION NOTICE
m
u	(supplier or supplier's agent details and date and details of
c	agreement must be completed by supplier or supplier's
o	agent)
D	TO THE SUPPLIER or SUPPLIER'S AGENT:
ry	Supplier or supplier's agent's name:
ta	Supplier or supplier's agent's address:
n
e	Supplier or supplier's agent's facsimile number (if any):
m	Date of Agreement:
ia	Details of goods or services to be supplied under
rl	Agreement:
a
P
I WISH TO CANCEL THIS AGREEMENT.
d
n
a	If this is an agreement for the supply of goods:
n
o
ti	*I RETURN THE GOODS WITH THIS NOTICE or
la	*THE GOODS CAN BE COLLECTED FROM THE
is	FOLLOWING ADDRESS:______________________
g	(*Cross out whichever does not apply)
e
L

Signed by the Purchaser: ____________

n

a	Date: _________________
ri
to
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Fair Trading (Further Amendment) Act 2003

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s. 19

"NOTICE TO THE PURCHASER WANTING TO

CANCEL THIS AGREEMENT

ts	IF YOU WISH TO CANCEL THIS AGREEMENT—
n	PLEASE SIGN AND DATE THIS NOTICE OF
e	CANCELLATION AND—
m	o LEAVE THE NOTICE AT THE SUPPLIER'S
u	OR SUPPLIER'S AGENT'S ADDRESS; OR

c	o	POST IT TO THE SUPPLIER OR THE
o	SUPPLIER'S AGENT'S ADDRESS; OR
D	o	FAX IT TO THE FAX NUMBER SET OUT IN
ry	THIS NOTICE;

ta	OR
n	COMPLY WITH ONE OF THE FOLLOWING
e	OTHER PERMITTED MEANS OF NOTIFYING A CANCELLATION—
m
ia	o IN THE CASE OF A CONTACT SALES
rl	AGREEMENT, IN ANY MANNER REPRESENTED TO YOU BY THE SUPPLIER
a	OR THE SUPPLIER'S AGENT AT THE TIME
P	OF ENTERING THE AGREEMENT

d	o	IN THE CASE OF A TELEPHONE
n	MARKETING AGREEMENT, BY
a	TELEPHONING THE SUPPLIER OR THE
n	SUPPLIER'S AGENT.
o

ti	THIS MUST BE DONE WITHIN 10 DAYS FROM AND
la	INCLUDING THE DAY YOU—
is	o SIGNED THE AGREEMENT (IN THE CASE OF
g	A CONTACT SALES AGREEMENT); OR

e	o	RECEIVED THE AGREEMENT DOCUMENT
L	(IN THE CASE OF A TELEPHONE
n	MARKETING AGREEMENT)
a
ri	("THE COOLING-OFF PERIOD").
to
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s. 19

SUPPLIER'S AGENT MADE A FALSE OR
MISLEADING REPRESENTATION ABOUT YOUR

NEED FOR THE GOODS.

ts	THE SUPPLIER OR THE SUPPLIER'S AGENT MUST
n	NOT REQUIRE YOU TO PAY FOR SERVICES
e	PROVIDED TO YOU DURING THE COOLING-OFF PERIOD.
m
u	IF YOU CANCEL THIS AGREEMENT DURING THE
c	COOLING-OFF PERIOD, THE SUPPLIER IS ENTITLED
o	TO APPLY TO THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ("VCAT") FOR AN
D	ORDER THAT YOU HAVE TO PAY A REASONABLE
ry	AMOUNT FOR THE SERVICES YOU RECEIVED BEFORE YOU CANCELLED THE AGREEMENT.
ta	YOU WILL NOT BE REQUIRED TO PAY ANYTHING
n	IF VCAT DECIDES THAT THE SUPPLIER OR THE
e	SUPPLIER'S AGENT HAS BREACHED THE FAIR TRADING ACT 1999 IN RELATION TO THIS
m	AGREEMENT, FOR EXAMPLE, BY MAKING A FALSE
ia	OR MISLEADING STATEMENT TO YOU ABOUT
rl	YOUR NEED FOR THE SERVICES.".'.'.
a	__________________
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
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Part 3—Amendments to Other Acts

s. 20

PART 3—AMENDMENTS TO OTHER ACTS

ts	See:	20. Amendments to the Co-operatives Act 1996
Act No.
n	84/1996.

(1) In section 59(1) of the Co-operatives Act 1996,

e	Reprint No. 2
as at for "With the approval of the Governor in
m	1 July 2002.

Council, the Treasurer" substitute "The

u	LawToday:
Treasurer".
c	dpc.vic.
o	gov.au (2) After section 59(1) of the Co-operatives Act
D	1996 insert—
ry	"(1A) The Treasurer must obtain the approval of
ta	the Governor in Council to execute a
n	guarantee under sub-section (1) if the
e	guarantee would involve the Treasurer in a liability exceeding 5 per cent of the
m
ia	aggregate liability permissible under
rl	section 60.".
a	(3) In section 60(1) of the Co-operatives Act 1996,
P	for "$20 000 000" substitute "$30 000 000 (or, if
d	a higher amount is prescribed for the purposes of
n	this section, that amount)".
a	See:

21. Amendments to the Credit (Administration) Act

Act No.

n	10091/1984.	1984
o	Reprint No. 4
ti	as at	(1) In section 26(3) of the Credit (Administration)
1 September
la	1999	Act 1984 omit "in the prescribed form".
is	and

(2) In section 26(3)(b) of the Credit

amending

g	Act No.
35/2000.

(Administration) Act 1984, for "entry and

e	LawToday:	search" substitute "entry and search or to the
L		seizure of anything or to the taking of any sample,
dpc.vic.
n	gov.au	copy or extract".
a

ri	(3) In section 86AB(a), (b) and (c) of the Credit (Administration) Act 1984 after "organisations"
to	(wherever occurring) insert "or the Director".
ic
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Part 3—Amendments to Other Acts

s. 22

22. Amendments to the Electricity Industry Act 2000 See:
Act No.

(1) For section 35(7A) of the Electricity Industry 68/2000.

ts	Act 2000 substitute—	Reprint No. 1 as at
n	13 June 2002

"(7A) If an agreement for the sale and supply of electricity is amended as a result of a

e	and
amending
m	Act Nos

variation under sub-section (3) or (4) and— 10/2002,

u 30/2003 and

c	(a) the agreement is a contact sales	40/2003.
o	agreement within the meaning of the	LawToday:
D	Fair Trading Act 1999, section	dpc.vic.
61(1)(g) of that Act does not apply to	gov.au
ry	that amendment; or

ta	(b) the agreement is a telephone marketing
n	agreement within the meaning of the
e	Fair Trading Act 1999, section
m	67E(3)(c) of that Act does not apply to
ia
rl	that amendment.
a	(7B) Sections 67E(1) and 67I to 67M of the Fair
P	Trading Act 1999 do not apply to a contract for the supply or sale of electricity to a
d
n	domestic or small business customer. (7C) Section 67H of the Fair Trading Act 1999
a
n	does not apply to a contract for the supply or
o	sale of electricity to a domestic or small
ti	business customer unless the terms and
la	conditions determined for the purpose of
is	sub-section (1) (in compliance with sub-
g	section (2)) require the inclusion of a
e	cooling-off period in that contract.
L	(7D) If section 67H(1) of the Fair Trading Act
n	1999 applies to a contract for the supply or
a
ri	sale of electricity to a domestic or small business customer then, for the purposes of
to	that sub-section, the domestic or small
ic	business customer is deemed to have
V	received the document evidencing the contract and the notice on the day on which

Fair Trading (Further Amendment) Act 2003

Act No. 106/2003

Part 3—Amendments to Other Acts

s. 22

the licensee is taken under that contract to have given the document and notice to the

ts	customer.".
n	(2) In section 35(8) of the Electricity Industry Act
e	2000 insert the following definition—
m	' "cooling-off period" means a period within
u	which a person is entitled under a contract to
c	cancel the contract;'.
o
D	(3) After section 36(5) of the Electricity Industry
ry	Act 2000 insert—
ta	"(5A) Sections 67E(1) and 67I to 67M of the Fair

Trading Act 1999 do not apply to a contract

n	for the supply or sale of electricity to a
e	relevant customer.
m
ia	(5B) Section 67H of the Fair Trading Act 1999
rl	does not apply to a contract for the supply or
a	sale of electricity to a relevant customer
P	unless the terms and conditions determined for the purpose of sub-section (1) require the
d
n	inclusion of a cooling-off period in that
a	contract.
n	(5C) If section 67H(1) of the Fair Trading Act
o	1999 applies to a contract for the supply or
ti	sale of electricity to a relevant customer
la	then, for the purposes of that sub-section, the
is	relevant customer is deemed to have
g	received the document evidencing the
e	contract and the notice on the day on which
L	the licensee is taken under that contract to
n	have given the document and notice to the
a
ri	customer.".

(4) In section 36(6) of the Electricity Industry Act

to	2000 insert the following definition—
ic	' "cooling-off period" means a period within
V	which a person is entitled under a contract to cancel the contract;'.

Fair Trading (Further Amendment) Act 2003

Act No. 106/2003

Part 3—Amendments to Other Acts

s. 23

(5) In section 39(10) of the Electricity Industry Act 2000, in the definition of "cooling-off period" for "63 or 71" substitute "63, 67H or 71".

ts	See:
n	23. Amendment to the Fair Trading (Amendment) Act

Act No.

e	2003	30/2003. LawToday:
m	In section 78 of the Fair Trading (Amendment)
u	Act 2003, for "insert" substitute "substitute".
dpc.vic.
c	gov.au
o

D	24. Further amendments to the Fair Trading
ry	(Amendment) Act 2003
ta	(1) In section 2(3) of the Fair Trading
n	(Amendment) Act 2003, for "31 December 2003"
e	substitute "1 July 2004".
m	(2) In section 11 of the Fair Trading (Amendment)
ia	Act 2003 in proposed section 32JA(1), after
rl	"business" insert "(other than services of a
a	professional nature provided by a qualified
P	architect or engineer)".
d	(3) In section 11 of the Fair Trading (Amendment)
n
a	Act 2003, after proposed section 32KA(4) insert—
n
o	"(5) Sub-section (4) does not apply to materials
ti	supplied in connection with a supply of
la	services of a professional nature provided by
is	a qualified architect or engineer, other than
g	in relation to the condition of merchantable
e	quality contained in section 32I.".
L	(4) In section 11 of the Fair Trading (Amendment)
n	Act 2003, for proposed section 32N(2)(e)
a
ri	substitute—
to	"(e) the term was brought to the attention of the

purchaser prior to the supply of the

ic	recreational services.".
V

Fair Trading (Further Amendment) Act 2003

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Part 3—Amendments to Other Acts

s. 25

(5) In section 11 of the Fair Trading (Amendment) Act 2003, in proposed section 32NA(1) omit

ts	"or (e)".
n	25. New section 32KAB inserted in the Fair Trading
e	(Amendment) Act 2003
m	In section 11 of the Fair Trading (Amendment)
u	Act 2003, after proposed section 32KA insert—
c
o	"32KAB. Certain agreements excluded
D	A reference in sections 32J, 32JA, 32K and
ry	32KA(1) to services does not include a
ta	reference to services (or any materials
supplied in connection with those services)
n	that are, or are to be, provided, granted or
e	conferred under—
m
ia	(a) a contract for or in relation to the
rl	transportation or storage of goods for
a	the purposes of a business, trade,
P	profession or occupation carried on or engaged in by the person for whom the
d
n	goods are transported or stored; or
a	(b) a contract of insurance.".
n	See:

26. Amendments to the Gas Industry Act 2001

o	Act No.
ti	31/2001.

(1) For section 42(7A) of the Gas Industry Act 2001

Reprint No. 1

la	as at	substitute—
2 July 2002
is	and	"(7A) If an agreement for the sale and supply of
g	amending

Act Nos	gas is amended as a result of a variation
e	30/2003 and	under sub-section (3) or (4) and—

L	40/2003. LawToday:	(a) the agreement is a contact sales
n
a
ri

dpc.vic.	agreement within the meaning of the
gov.au	Fair Trading Act 1999, section
to	61(1)(g) of that Act does not apply to
ic	that amendment; or
V

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Part 3—Amendments to Other Acts

s. 26

(b) the agreement is a telephone marketing agreement within the meaning of the Fair Trading Act 1999, section

ts	67E(3)(c) of that Act does not apply to
n	that amendment.
e

(7B) Sections 67E(1) and 67I to 67M of the Fair

m

u	Trading Act 1999 do not apply to a contract
c	for the supply or sale of gas to a domestic or
o	small business customer.
D	(7C) Section 67H of the Fair Trading Act 1999
ry	does not apply to a contract for the supply or
ta	customer unless the terms and conditions
sale of gas to a domestic or small business
n
e	determined for the purpose of sub-section (1) (in compliance with sub-section (2)) require
m
ia	the inclusion of a cooling-off period in that
rl	contract.
a	(7D) If section 67H(1) of the Fair Trading Act
P	1999 applies to a contract for the supply or
d	sale of gas to a domestic or small business
n	customer then, for the purposes of that sub-
a	section, the domestic or small business
n	customer is deemed to have received the
o	document evidencing the contract and the
ti	notice on the day on which the licensee is
la	taken under that contract to have given the
is	document and notice to the customer.".
g	(2) In section 42(8) of the Gas Industry Act 2001
e	insert the following definition—
L
' "cooling-off period" means a period within
n
a	which a person is entitled under a contract to
ri	cancel the contract;'.
to
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s. 26

(3) After section 43(5) of the Gas Industry Act 2001

insert—

ts	"(5A) Sections 67E(1) and 67I to 67M of the Fair
n	Trading Act 1999 do not apply to a contract
e	for the supply or sale of gas to a relevant
m	customer.
u	(5B) Section 67H of the Fair Trading Act 1999
c	does not apply to a contract for the supply or
o	sale of gas to a relevant customer unless the
D	terms and conditions determined for the
ry	purpose of sub-section (1) require the
ta	inclusion of a cooling-off period in that
contract.
n
e	(5C) If section 67H(1) of the Fair Trading Act
m	1999 applies to a contract for the supply or
ia	sale of gas to a relevant customer then, for
rl	the purposes of that sub-section, the relevant
a	customer is deemed to have received the
P	document evidencing the contract and the
d	notice on the day on which the licensee is
n	taken under that contract to have given the
a	document and notice to the customer.".
n	(4) In section 43(6) of the Gas Industry Act 2001
o
ti	insert the following definition—
la	' "cooling-off period" means a period within

which a person is entitled under a contract to

is	cancel the contract;'.
g
e	(5) In section 46(10) of the Gas Industry Act 2001,
L	in the definition of "cooling-off period" for
n	"63 or 71" substitute "63, 67H or 71".
a
ri
to
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s. 27

27. Amendments to the Motor Car Traders Act 1986 See:
Act No.

(1) In section 82AG(3) of the Motor Car Traders 104/1986.

ts	Act 1986 omit "in the prescribed form".	Reprint No. 4 as at
n	1 September

(2) In section 82AG(3)(b) of the Motor Car Traders Act 1986, for "entry and search" substitute "entry

e	1999
and
m	amending

and search or to the seizure of anything or to the Act Nos

u	taking of any sample, copy or extract".	101/1998,
c	35/2000,
o	27/2001,
44/2001,
D	84/2001 and 8/2003.
ry	LawToday:
ta	dpc.vic.
gov.au
n
e
m	28. Amendments to the Second-Hand Dealers and	See: Act No.
ia	Pawnbrokers Act 1989	54/1989.
rl	Reprint No. 5
(1) For section 7(2)(d) of the Second-Hand Dealers and Pawnbrokers Act 1989 substitute—	as at
a	1 January
P	2003.
LawToday:
d	"(d) lodged with the Authority not less than
n	1 month before the day on which the	dpc.vic.
gov.au
a	applicant proposes to commence business as
n	a second-hand dealer.".
o

ti (2) In section 8B(3) of the Second-Hand Dealers

and Pawnbrokers Act 1989, for "a fee of $150 or

la	any other fee that is prescribed" substitute "the
is	prescribed fee or, if no fee is prescribed, $150".
g	(3) In section 10A(3)(b) of the Second-Hand Dealers
e
L	and Pawnbrokers Act 1989, for "a fee of $150 or any other fee that is prescribed" substitute "the
n
a	prescribed fee or, if no fee is prescribed, $150".
ri
to
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s. 29

(4) For section 11AA(1) of the Second-Hand Dealers and Pawnbrokers Act 1989

ts	substitute—
n	"(1) A person whose registration is endorsed
e	under this Part must pay to the Authority the
m	prescribed annual endorsement fee or, if no
u	fee is prescribed, an annual endorsement fee
c	of $400.
o	(1A) The annual endorsement fee must be paid on
D	the same date as the annual registration fee is
ry	payable under section 11(1).".
ta	(5) For section 11A(4) of the Second-Hand Dealers
n	and Pawnbrokers Act 1989 substitute—
e	"(4) The fee for late payment or lodgement is the
m	prescribed fee or, if no fee is prescribed,
ia
rl	$20.".
a	(6) In section 26J(3) of the Second-Hand Dealers
P	and Pawnbrokers Act 1989 omit "in the prescribed form".
d
n	(7) In section 26J(3)(b) of the Second-Hand Dealers
a	and Pawnbrokers Act 1989, for "entry and
n	search" substitute "entry and search or to the
o	seizure of anything or to the taking of any sample,
ti	copy or extract".
la	See:

29. Amendments to the Travel Agents Act 1986

is Act No. 52/1986.

(1) In section 39I(3) of the Travel Agents Act 1986

g	Reprint No. 3
e	as at
1 September

omit "in the prescribed form".

L	1999	(2) In section 39I(3)(b) of the Travel Agents Act
n	and

amending	1986, for "entry and search" substitute "entry and
a
ri	Act Nos
35/2000,	search or to the seizure of anything or to the taking of any sample, copy or extract".
to
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═══════════════

Fair Trading (Further Amendment) Act 2003

Act No. 106/2003

Endnotes

ENDNOTES

ts †

Minister's second reading speech—

n	Legislative Assembly: 16 October 2003
e
Legislative Council: 19 November 2003
m
u	The long title for the Bill for this Act was "to amend the Fair Trading
c	Act 1999 to further regulate telephone marketing agreements and to
o	improve the operation of that Act, to amend the Fair Trading
D	(Amendment) Act 2003 in relation to implied conditions and warranties and to amend the Co-operatives Act 1996, the Electricity Industry Act
ry	2000, the Gas Industry Act 2001 and other Acts and for other purposes."
ta
n
e
m
ia
rl
a
P
d
n
a
n
o
ti
la
is
g
e
L
n
a
ri
to
ic
V