Fair Trading (Inspectors Powers and Other Amendments) Act 1999 (Vic)
Fair Trading (Inspectors Powers and Other
Amendments) Act 1999
Act No. 17/1999
TABLE OF PROVISIONS
Section Page PART 1—PRELIMINARY 1
1. Purposes 1 2. Commencement 2
PART 2—CREDIT (ADMINISTRATION) ACT 1984 3
3. Principal Act 3 4. Amendment of definitions 3 5. Sections 13 and 14 repealed 3 6. Secrecy 3 7. New Part 3 inserted 4 PART 3—INSPECTION POWERS 4
17. Definitions 4 18. Production of identity card 4 19. Accounts and other documents available for inspection 4 20. Specified persons to produce documents and answer questions 5 21. Third parties to produce documents and answer questions relating to specified business 7 22. Ministers, police and public authorities to produce information to inspectors 7 23. Certain other specified persons or bodies to produce information 8 24. Powers on production of documents 9 25. Order requiring supply of information and answers to questions 10 26. Entry or search with consent 11 27. Entry without consent or warrant 13 28. Search warrants 14 29. Announcement before entry 16 30. Details of warrant to be given to occupier 16 31. Seizure of things not mentioned in the warrant 17 32. Embargo notice 17
i
Section Page
33. Copies of seized documents 18 34. Retention and return of seized documents or things 19 35. Magistrates' Court may extend 3 month period 19 36. Requirement to assist inspector during entry 20 37. Refusal or failure to comply with requirement 21 38. Rule against self-incrimination does not apply 21 39. Offence to give false or misleading information 21 40. Application of provisions relating to inspections 22 41. Service of documents 22 42. Confidentiality 22
8. New sections 89A and 89B inserted 23
89A. Production of information to Authority 23 89B. Rule against self-incrimination does not apply 24
PART 3—MOTOR CAR TRADERS ACT 1986 25
9. Principal Act 25 10. Definitions 25 11. Display of licence 26 12. Cooling-off periods 26 13. New sections 82 to 82AY substituted 27
82. Production of identity card 27 82A. Documents available for inspection 27 82AA. Specified persons to produce documents and answer
questions 28
82AB. Third parties to produce documents and answer
questions relating to trader's business 29
82AC. Ministers, police, and public authorities to produce
information to inspectors 29
82AD. Certain other specified persons or bodies to produce
information 30
82AE. Powers on production of documents 31 82AF. Order requiring supply of information and answers to
questions 32 82AG. Entry or search with consent 33 82AH. Entry without consent or warrant 35
82AI. Search warrants 36 82AJ. Announcement before entry 37
82AK. Details of warrant to be given to occupier 38 82AL. Seizure of things not mentioned in the warrant 38 82AM. Embargo notice 39 82AN. Copies of seized documents 40 82AO. Retention and return of seized documents or things 40
82AP. Magistrates' Court may extend 3 month period 41
82AQ. Requirement to assist inspector during entry 42 82AR. Refusal or failure to comply with requirement 42
82AS. Rule against self-incrimination does not apply 42
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Section Page
82AT. Offence to give false or misleading information 43 82AU. Application of provisions relating to inspections 43 82AV. Service of documents 43 82AW. Confidentiality 44 82AX. Production of information to Authority 45 82AY. Rule against self-incrimination does not apply 45
PART 4—TRAVEL AGENTS ACT 1986 47
14. Principal Act 47 15. Definitions 47 16. Repeal of sections 26 and 27 48 17. Restraint of unjust conduct 48 18. New Part 3A inserted 48 PART 3A—INSPECTION POWERS 48
39A. Production of identity card 48 39B. Documents available for inspection 48 39C. Licensee or specified person to produce documents and answer questions 49 39D. Third parties to produce documents and answer questions relating to licensee's business 50 39E. Ministers, police and public authorities to produce information to inspectors 51 39F. Certain other specified persons or bodies to produce information 51 39G. Powers on production of documents 52 39H. Order requiring supply of information and answers to questions 53 39I. Entry or search with consent 54 39J. Entry without consent or warrant 56 39K. Search warrants 57 39L. Announcement before entry 59 39M. Details of warrant to be given to occupier 59 39N. Seizure of things not mentioned in the warrant 60 39O. Embargo notice 60 39P. Copies of seized documents 61 39Q. Retention and return of seized documents or things 62 39R. Magistrates' Court may extend 3 month period 62 39S. Requirement to assist inspector during entry 63 39T. Refusal or failure to comply with requirement 63 39U. Rule against self-incrimination does not apply 63 39V. Offence to give false or misleading information 64 39W. Application of provisions relating to inspections 64 39X. Service of documents 65 39Y. Confidentiality 65
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Section Page
39Z. Production of information to Authority 66
39ZA. Rule against self-incrimination does not apply 66
19. Repeal of sections 41 and 42 67
PART 5—AMENDMENT OF OTHER ACTS 68
20. Architects Act 1991 68 21. Associations Incorporation Act 1981 68 22. Building Act 1993 68 23. Business Licensing Authority Act 1998 70 24. Business Names Act 1962 70 25. Business Names Act 1962—New section 4B inserted 71
4B. Delegation by Director 71
26. Business Names Act 1962—New section 33 inserted 71
33. Transitional 71
27. Consumer Credit (Victoria) Act 1995 72 28. Credit Act 1984 72 29. Disposal of Uncollected Goods Act 1961 73
14. Application of provisions of Fair Trading Act 1999 73
30. Domestic Building Contracts Act 1995 73 31. Domestic Building Contracts Act 1995—New section 124A inserted 73
124A. Application of provisions of Fair Trading Act 1999 74
32. Estate Agents Act 1980 74 33. Fundraising Appeals Act 1998 74 34. Fundraising Appeals Act 1998—New section 72A inserted 74
72A. Transitional provision relating to inspectors 74
35. Funerals (Pre-Paid Money) Act 1993 75 36. Funerals (Pre-Paid Money) Act 1993—New section 17A inserted 75
17A. Application of provisions of Fair Trading Act 1999 75
37. Introduction Agents Act 1997 76 38. Pay-roll Tax Act 1971 76 39. Petroleum Retail Selling Sites Act 1981 76 40. Prostitution Control Act 1994 77 41. Residential Tenancies Act 1997 77 42. Residential Tenancies Act 1997—New section 507A inserted 77
507A. Application of provisions of Fair Trading Act 1999 77
43. Retirement Villages Act 1986 78 44. Retirement Villages Act 1986—New section 44 inserted 79
44. Transitional 79
45. Sale of Land Act 1962 79 46. Second-Hand Dealers and Pawnbrokers Act 1989 80 47. Small Claims Act 1973 80 48. Trade Measurement Act 1995 80
81. Special provisions—application of Act in the State 80
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Section Page
49. Victorian Civil and Administrative Tribunal Act 1998 80
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NOTES 82
v
Victoria
No. 17 of 1999
Fair Trading (Inspectors Powers and
Other Amendments) Act 1999†
[Assented to 18 May 1999]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purposes
The main purposes of this Act are—
(a) to provide for inspectors' powers in the Credit (Administration) Act 1984, the Motor Car Traders Act 1986 and the Travel Agents Act 1986 and other Acts; and
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 2
(b) to make other amendments to various Acts as 1999.
2. Commencement
(1) Part 1 of this Act comes into operation on the day on which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 1 February 2000, it
comes into operation on that day.
_______________
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 3 | Act No. 17/1999 |
PART 2—CREDIT (ADMINISTRATION) ACT 1984
3. Principal Act
| No. 10091/84. | In this Part the Credit (Administration) Act |
| Reprint No. 3 | |
| as at 1 July | 1984 is called the Principal Act. |
| 1998. Subsequently amended by No. 77/1998. |
4. Amendment of definitions
In section 4 of the Principal Act—
(a)
for the definition of "Director" substitute— ' "Director" means the Director within the
meaning of the Fair Trading Act
1999;';
(b) insert the following definitions—
' "inspector" means an inspector appointedunder the Fair Trading Act 1999;
"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;
"OFTBA Act" has the same meaning as it has in the Fair Trading Act 1999;'.
5. Sections 13 and 14 repealed
Sections 13 and 14 of the Principal Act are repealed.
6. Secrecy
In section 15(1) of the Principal Act after
"Director" (where secondly occurring) insert "but
does not apply to an inspector".
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1999
Act No. 17/1999 s. 7 7. New Part 3 inserted
After Part 2 of the Principal Act insert—
'PART 3—INSPECTION POWERS
17. Definitions
In this Part—
"Credit Acts" means this Act, the CreditAct 1984, the Consumer Credit
(Victoria) Act 1995 and the ConsumerCredit (Victoria) Code;
"financial institution" means—
(a) institution within the meaning of
an authorised deposit-taking Commonwealth; or
(b)
a body approved by the Governor in Council by order published in the Government Gazette.
18. Production of identity card card for inspection—
(a)
before exercising a power under this Part other than a requirement made by post; and
(b)
at any time during the exercise of a power under this Part, if asked to do so.
Penalty: 10 penalty units.
19. Accounts and other documents available for inspection
(1) A registered credit provider or finance
broker must at all reasonable times at each
office at which that registered credit provider
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| s. 7 | Act No. 17/1999 |
or finance broker carries on business as a credit provider or finance broker keep all documents relating to the business carried on
at that office available for inspection by an
inspector in a form in which they can be
readily and expeditiously inspected by an
inspector.
Penalty: 10 penalty units.(2) If the registration of a registered credit
provider has been surrendered or cancelled
in the last 3 years, the former registered
credit provider must make all documents
relating to the former business available for
inspection by an inspector in a form and at a
place where they can be readily and
expeditiously inspected by an inspector.
Penalty: 10 penalty units.
20. Specified persons to produce documents and answer questions
(1) For the purpose of monitoring compliance
with the Credit Acts or the regulations under
those Acts, an inspector may require a
registered credit provider or a finance broker
or a specified person at a time and place
specified by the inspector—
(a) to answer orally or in writing any questions put by the inspector relating to the credit provider's business as a credit provider or the finance broker's business as a finance broker; (b) to supply orally or in writing relating to that business;
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Act No. 17/1999 s. 7 (c)
to produce to the inspector specified documents or documents of a specified class relating to that business.
(2) In this section "specified person" means—
(a)
in relation to the business of a registered credit provider—
(i) credit provider has been
a person whose registration as a the last 3 years; or
(ii) a person who is a director or officer of a corporation which is a registered credit provider; or
(iii) as a credit provider has been
surrendered or cancelled within
the last 3 years, a person who was
a director or officer of a
corporation at the time theif the registration of a corporation cancelled; or
(iv) administrator or trustee (including
a trustee company within the
meaning of the Trustee
Companies Act 1984) of the
estate of a deceased registereda person who is an executor, the business of the credit provider pursuant to the Credit Acts; or
(b) in relation to the business of a finance broker— (i) a person who is a director or officer of a corporation which is a finance broker; or
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(ii) administrator or trustee (including
a trustee company within the
meaning of the Trustee
Companies Act 1984) of the
estate of a deceased financea person who is an executor, business of the finance broker.
21. Third parties to produce documents and business
For the purpose of monitoring compliance with the Credit Acts or the regulations under those Acts, an inspector may require any person who has possession, custody or control of documents relating to a registered credit provider's business as a credit provider or a finance broker's business as a finance broker—
(a) to answer orally or in writing any questions put by the inspector relating to the registered credit provider's business as a credit provider or the finance broker's business as a finance broker; (b) to supply orally or in writing relating to that business;
(c) to produce to the inspector specified documents or documents of a specified class relating to that business.
22. Ministers, police and public authorities to produce information to inspectors
(1) For the purpose of monitoring compliance with the Credit Acts or the regulations under
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 7 those Acts, the Director or an inspector may request a specified public body within a time specified by the Director or inspector—
(a) questions put by the inspector relating
to a registered credit provider's businessto answer orally or in writing any broker's business as a finance broker;
(b) to supply orally or in writing relating to that business.
(2) An inspector can only make a request under
sub-section (1) with the written consent of
the Director.
(3) A specified public body must comply with a request under sub-section (1).
(4) In this section "specified public body"
means—
(a) a Minister; or
(b) a public statutory authority; or
(c) a municipal council; or
(d) the Chief Commissioner of Police.23. Certain other specified persons or bodies to produce information
(1) For the purpose of monitoring compliance
with the Credit Acts or the regulations under those Acts, the Director or an inspector may require a specified person or body within a
time specified by the Director or inspector—
(a) to answer orally or in writing any to a registered credit provider's business
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| s. 7 | Act No. 17/1999 |
| as a credit provider or a finance broker's business as a finance broker; |
(b) to supply orally or in writing relating to that business.
(2) An inspector can only make a requirement
under sub-section (1) with the written
consent of the Director.
(3) In this section "specified person or body"
means—
(a)
a person who is a publisher of a publication; or
(b)
a person who is the owner or operator of a broadcasting service; or
(c)
a person who is the owner or operator of a telecommunications service; or
(d)
a person who is the owner or operator of a postal service; or
(e) a financial institution.
24. Powers on production of documents (1) If any documents are produced to an
inspector under section 20 or 21, the
inspector may—
(a)
inspect the documents or authorise a person to inspect the documents;
(b)
make copies of or take extracts from the documents;
(c)
seize the documents if the inspector considers the documents necessary for the purpose of obtaining evidence for the purpose of any proceedings under the Credit Acts or the regulations under those Acts;
Fair Trading (Inspectors Powers and Other Amendments) Act
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Act No. 17/1999 s. 7 (d) seize the documents if the inspector—
(i) considers the documents
necessary for the purpose of
obtaining evidence for the purpose
of any proceedings under any
OFTBA Act; and(ii) that it is necessary to seize the
documents in order to prevent
their concealment, loss orbelieves on reasonable grounds, contravention of any OFTBA Act;
(e)
secure any seized documents against interference;
(f)
retain possession of the documents in accordance with this Part.
(2) An inspector must not require a person to
person's place of business or the Office of
produce a document at a place other than the the consent of the person.
25.
Order requiring supply of information and answers to questions
(1) For the purpose of monitoring compliance
those Acts, an inspector, with the written
approval of the Director, may apply to thewith the Credit Acts or the regulations under person at a time and place specified by an inspector—
(a) questions put by an inspector relating to
a registered credit provider's businessto answer orally or in writing any broker's business as a finance broker; or
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| s. 7 | Act No. 17/1999 |
(b) to supply orally or in writing information required by an inspector in relation to a registered credit provider's business as a credit provider or a finance broker's business as a finance broker. (2) If the Magistrates' Court is satisfied on the basis of evidence presented by the Director that the order is necessary for the purpose of
monitoring compliance with the Credit Acts
or the regulations under those Acts, the
Court may grant the order sought.(3) An order under this section must state a day, not later than 28 days after the making of the order, on which the order ceases to have
effect.
(4) An inspector who executes an order under
this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order.
26. Entry or search with consent
(1) For the purpose of monitoring compliancewith the Credit Acts or the regulations under those Acts, an inspector, with the consent of the occupier of the premises, may—
(a) enter and search any premises;
(b) which the inspector believes on
seize anything found on the premises with a contravention of the Credit Acts or the regulations under those Acts;
(c)
examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable
Fair Trading (Inspectors Powers and Other Amendments) Act
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Act No. 17/1999 s. 7 grounds to be connected with a
contravention of the Credit Acts or the
regulations under those Acts;
(d) inspect and make copies of, or take extracts from, any document found on the premises. (2) An inspector must not enter and search any
premises with the consent of the occupier
unless, before the occupier consents to that
entry, the inspector has—
(a)
produced his or her identity card for inspection; and
(b) informed the occupier—
(i) of the purpose of the search; and
(ii) give consent to the entry and
search or to the seizure ofthat the occupier may refuse to and
(iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and
(iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
must before entering the premises ask the
occupier to sign an acknowledgment in the
prescribed form stating—
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| s. 7 | Act No. 17/1999 |
(a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and (b) that the occupier has been informed that he or she may refuse to give consent to the entry and search; and (c) that the occupier has consented to such an entry and search; and (d) the date and time that the occupier consented. (4) If an occupier consents to the seizure or
taking of any thing during a search under this
section, the inspector must before seizing or
taking the thing ask the occupier to sign an
acknowledgment stating—
(a) that the occupier has consented to the seizure or taking of the thing; and (b) the date and time that the occupier consented. (5) An occupier who signs an acknowledgment
must be given a copy of the signed
acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry and search or to the seizure or
taking of the thing.
27. Entry without consent or warrant
(1) For the purpose of monitoring compliance
with the Credit Acts or the regulations under
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1999
Act No. 17/1999 s. 7 those Acts, an inspector may (with the
assistance, if necessary, of another inspector
or a member of the police force) do all orany of the following—
(a) enter and search any premises at which a registered credit provider or finance broker is carrying on business at any time that the premises are open for business or between the hours of 9 a.m. and 5 p.m.; (b) seize or secure against interference anything that the Director or inspector believes on reasonable grounds to be connected with a contravention of the Credit Acts or the regulations under those Acts that is found on or in the premises; (c) inspect and make copies of or take extracts from any document kept on the premises. (2) An inspector must not enter or search any
premises under sub-section (1) unless, before
that entry, the inspector has produced his or
her identity card for inspection by the
occupier of the premises.
28. Search warrants
(1) An inspector, with the written approval ofthe Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of
monitoring compliance with the Credit Acts
or the regulations under those Acts.(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of the inspector that the warrant is necessary for the purpose of
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| s. 7 | Act No. 17/1999 |
monitoring compliance with the Credit Acts
or the regulations under those Acts, the
magistrate may issue a search warrant, in
accordance with the Magistrates' Court Act
1989, authorising an inspector named in the
warrant, together with any other person or
persons named or otherwise identified in thewarrant and with any necessary equipment—
(a) to enter the premises specified in the warrant, if necessary by force; and
(b) to do all or any of the following—
(i) search for;
(ii) seize;
(iii) secure against interference;
(iv) examine and inspect;
(v) make copies of or take extracts from—
a thing or things of a particular kind
named or described in the warrant and
which the inspector believes, on
reasonable grounds, to be connected
with a contravention of the Credit Acts
or the regulations under those Acts.(3) A search warrant issued under this section must state—
(a)
the purpose for which the search is required; and
(b)
any conditions to which the warrant is subject; and
(c)
whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and
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Act No. 17/1999 s. 7
(d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989
extend and apply to warrants under this
section.
29. Announcement before entry
(1) On executing a search warrant, the inspector
executing the warrant—
(a) must announce that he or she is authorised by the warrant to enter the premises; and (b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises. (2) An inspector need not comply with sub-
section (1) if he or she believes on
reasonable grounds that immediate entry to
the premises is required to ensure—
(a) the safety of any person; or
(b)
that the effective execution of the search warrant is not frustrated.
30. Details of warrant to be given to occupier
(1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must—
(a)
identify himself or herself to the occupier; and
(b)
give to the occupier a copy of the warrant.
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s. 7
| s. 7 | Act No. 17/1999 |
(2) If the occupier is not present at premises
where a search warrant is being executed, the
inspector must—
(a) identify himself or herself to a person (if any) at the premises; and (b) give to the person a copy of the warrant. 31. Seizure of things not mentioned in the warrant
A search warrant under section 28 authorises an inspector executing the search warrant, in addition to the seizure of any thing of the
kind described in the warrant, to seize or
take a sample of any thing which is not of
the kind described in the warrant if—
(a)
the inspector believes, on reasonable grounds, that the thing—
(i) is of a kind which could have been issued under this Part; or
(ii) will afford evidence about the and
(b)
in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of the Credit Acts or any other OFTBA Act.
32. Embargo notice
(1) An inspector executing a search warrant whois authorised by that warrant to seize any thing may, if the thing cannot, or cannot
Fair Trading (Inspectors Powers and Other Amendments) Act
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Act No. 17/1999
readily, be physically seized and removed,
issue an embargo notice in the prescribedform—
(a) by causing a copy of the notice to be served on the occupier; or (b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position. (2) A person who knows that an embargo notice relates to a thing and who—
(a) sells; or
(b) leases; or
(c)
without the written consent of the inspector who issued the embargo notice, moves; or
(d) transfers; or
(e) otherwise deals with—
the thing or any part of the thing is guilty of
an offence and liable to a penalty not
exceeding 10 penalty units.(3) It is a defence to a prosecution for an offence
against sub-section (2) to prove that the
defendant moved the thing or the part of the
thing for the purpose of protecting and
preserving it.
(4) Despite anything in any other Act, a sale,
lease, transfer or other dealing with a thing
in contravention of this section is void.
33. Copies of seized documents
(1) If an inspector retains possession of a
document taken or seized from a person
under this Part, the inspector must give the
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person, within 21 days of the seizure, a copy
of the document certified as correct by the
inspector.(2) A copy of a document certified under sub-
section (1) shall be received in all courts and
tribunals to be evidence of equal validity to
the original.
34. Retention and return of seized documents or things
(1) If an inspector seizes a document or other
thing under this Part, the inspector must take
reasonable steps to return the document or
thing to the person from whom it was seized
if the reason for its seizure no longer exists.
(2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to
return it unless—
(a) the document or thing was retained
have commenced within that 3 month
period and those proceedingsproceedings for the purpose for which completed; or
(b) the Magistrates' Court makes an order under section 35 extending the period during which the document or thing may be retained.
35. Magistrates' Court may extend 3 month period
(1) An inspector may apply to the Magistrates' Court within 3 months after seizing a
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Act No. 17/1999 s. 7 document or other thing under this Part for
an extension of the period for which the
inspector may retain the document or thing.(2) The Magistrates' Court may order such an
extension if it is satisfied that retention of the
document or other thing is necessary—
(a) for the purposes of an investigation into Acts or the regulations under those Acts has occurred; or
(b) to enable evidence of a contravention of the Credit Acts or the regulations under those Acts to be obtained for the purposes of a proceeding under any of
those Acts.(3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
36. Requirement to assist inspector during entry
To the extent that it is reasonably necessary to determine compliance with the Credit Acts or the regulations under those Acts, an inspector exercising a power of entry under this Part who produces his or her identity card for inspection by the occupier of the premises or an agent or employee of the occupier may require that person—
(a)
to give information to the inspector, orally or in writing; and
(b)
to produce documents to the inspector; and
(c)
to give reasonable assistance to the inspector.
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37. Refusal or failure to comply with requirement
A person must not refuse or fail, without
reasonable excuse, to comply with a
requirement of the Director or an inspector
under this Part.
Penalty: 10 penalty units.38. Rule against self-incrimination does not apply
(1) A person is not excused from answering a
question or producing a document under this document might tend to incriminate the person. (2) If the person claims, before answering a
question, that the answer might tend to
incriminate them, the answer is not
admissible in evidence in any criminal
proceedings, other than in proceedings in
respect of the falsity of the answer.
39. Offence to give false or misleading information
A person must not—
(a) give information to an inspector under this Part that the person believes to be false or misleading in any material particular; or
(b)
produce a document to an inspector under this Part that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.
Fair Trading (Inspectors Powers and Other Amendments) Act
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Act No. 17/1999 s. 7 Penalty: 10 penalty units.
40. Application of provisions relating to inspections
Sections 120, 135, 136, 137, 138 and 139 of the Fair Trading Act 1999 apply (with any necessary modifications) in relation to the
exercise or attempted exercise of a power of
an inspector under this Part as if any
reference in those sections to Part 10 of that
Act were a reference to this Part.41. Service of documents
(1) A written requirement by an inspector under
this Part may be given personally or by
registered post to a person—
(a)
at the last known place of business, employment or residence of the person; or
(b)
in the case of a body corporate, at the registered office of the body corporate.
(2) A person who provides a document or
information in response to a requirement of an inspector under this Part may send that document or information to the Director at the Office of Fair Trading and Business
Affairs by registered post.
42. Confidentiality
(1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Part, give to any other
person, whether directly or indirectly, any
information acquired by the inspector in
carrying out those functions.
Penalty: 10 penalty units.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 8 | Act No. 17/1999 |
(2) Sub-section (1) does not apply to the giving of information—
(a) to a court or tribunal in the course of legal proceedings; or (b) pursuant to an order of a court or tribunal; or (c) to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or (d) to the Business Licensing Authority Licensing Authority Act 1998; or
(e)
with the written authority of the Director; or
(f)
with the written authority of the person to whom the information relates.
8. New sections 89A and 89B inserted
After section 89 of the Principal Act insert—
"89A. Production of information to Authority(1) The Authority may require a registered credit
provider or finance broker to answer any
question or provide information relating to
the business of the registered credit provider
or finance broker that the Authority
reasonably requires to carry out its functions
in relation to that registered credit provider
or finance broker.
(2) A registered credit provider or finance broker must not refuse or fail, without reasonable excuse, to comply with a
requirement made by the Authority under
this section.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 8
Penalty: 10 penalty units.
89B. Rule against self-incrimination does not
apply
(1) A registered credit provider or finance broker is not excused from answering a question or providing information under section 89A on the ground that the answer or
the information might tend to incriminate the
registered credit provider or finance broker.(2) If the registered credit provider or finance
broker claims, before answering a question,
that the answer might tend to incriminate the
registered credit provider or finance broker,
the answer is not admissible in evidence in
any criminal proceedings, other than in
proceedings in respect of the falsity of the
answer.".
_______________
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 9 | Act No. 17/1999 |
PART 3—MOTOR CAR TRADERS ACT 1986
9. Principal Act
| No. 104/1986. | In this Part the Motor Car Traders Act 1986 is |
| Reprint No. 3 | |
| as at 1 July | called the Principal Act. |
| 1998. Subsequently amended by No. 101/1998. |
10. Definitions
In section 3(1) of the Principal Act—
(a)
for the definition of "Director" substitute— ' "Director" means the Director within the
meaning of the Fair Trading Act
1999;';
(b)
insert the following definitions— ' "financial institution" means—
(a) institution within the meaning of
an authorised deposit-taking Commonwealth; or
(b) a body approved by the Governor in Council by order published in the Government Gazette;
"inspector" means an inspector appointed under the Fair Trading Act 1999;
"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;
"OFTBA Act" has the same meaning as it has in the Fair Trading Act 1999;'.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 11 11. Display of licence
In section 25(1) of the Principal Act for "any person who by virtue of section 62(1) or (2) of the Consumer Affairs Act 1972 is an inspector under that Act" substitute "an inspector".
12. Cooling-off periods
(1) In section 43 of the Principal Act—
(a) in sub-section (1) after "used motor car" insert "or an off-trade-premises sales agreement of any motor car"; (b) in sub-sections (3) and (4) omit "used" (wherever occurring).
(2) After section 43(7) of the Principal Act insert— '(8) In this section "off-trade-premises sales
agreement" means an agreement for the sale of a motor car that is made or entered into in the presence of the purchaser (or a person
acting on behalf of the purchaser) and the
motor car trader (or a person acting on behalfof the motor car trader) at—
(a)
a private residence other than a private residence which is the business premises of the motor car trader or the person acting on behalf of the motor car trader; or
(b) the workplace of the purchaser—
unless the agreement was entered into at
either of those premises at the request of the
purchaser.'.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 13 | Act No. 17/1999 |
13. New sections 82 to 82AY substituted
For sections 82 and 82A of the Principal Act
substitute—
'82. Production of identity cardAn inspector must produce his or her identity card for inspection—
(a)
before exercising a power under this Division other than a requirement made by post; and
(b)
at any time during the exercise of a power under this Division, if asked to do so.
Penalty: 10 penalty units.
82A. Documents available for inspection
(1) A licensed motor car trader must at all
reasonable times at each office at which that
trader carries on business as a motor car
trader keep all documents relating to the
business carried on at that office available
for inspection by an inspector in a form in
which they can be readily and expeditiously
inspected by an inspector.
Penalty: 50 penalty units.
(2) If the licence of a licensed motor car trader
has been surrendered or cancelled in the last
3 years, the former licensee must make all
documents relating to the former business
available for inspection by an inspector in a
form and at a place where they can be
readily and expeditiously inspected by an
inspector.
Penalty: 50 penalty units.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 13 82AA. Specified persons to produce documents
and answer questions
(1) For the purpose of monitoring compliance
with this Act or the regulations, an inspector may require a licensed motor car trader or a specified person at a time and place specified
by the inspector—
(a) to answer orally or in writing any questions put by the inspector relating to the licensed motor car trader's business as a motor car trader; (b) to supply orally or in writing relating to that business;
(c)
to produce to the inspector specified documents or documents of a specified class relating to that business.
(2) In this section—
"specified person", in relation to the
business of a licensed motor car trader,
means—
(a) a person whose licence has been surrendered or cancelled within the last 3 years; or (b) a person who is a director or officer of a corporation which is a licensed motor car trader; or (c) been surrendered or cancelled
if the licence of a corporation has who was a director or officer of the corporation at the time the licence was surrendered or cancelled; or
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 13 | Act No. 17/1999 |
(d) a person who under section 33 is carrying on the business of a licensed motor car trader. 82AB. Third parties to produce documents and
answer questions relating to trader's
business
For the purpose of monitoring compliance with this Act or the regulations, an inspector may require any person who has possession, custody or control of documents relating to a licensed motor car trader's business as a motor car trader—
(a) to answer orally or in writing any questions put by the inspector relating to the motor car trader's business as a motor car trader; (b) to supply orally or in writing relating to that business;
(c) to produce to the inspector specified documents or documents of a specified class relating to that business. 82AC. Ministers, police, and public authorities to produce information to inspectors
(1) For the purpose of monitoring compliance
with this Act or the regulations, the Director
or an inspector may request a specified
public body within a time specified by the
Director or inspector—
(a)
to answer orally or in writing any questions put by the inspector relating to a licensed motor car trader's business as a motor car trader;
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 13
(b) to supply orally or in writing relating to that business.
(2) An inspector can only make a request under
sub-section (1) with the written consent of
the Director.
(3) A specified public body must comply with a request under sub-section (1).
(4) In this section "specified public body"
means—
(a) a Minister; or
(b) a public statutory authority; or
(c) a municipal council; or(d) the Chief Commissioner of Police.
82AD. Certain other specified persons or bodies to
produce information
(1) For the purpose of monitoring compliance
with this Act or the regulations, the Director
or an inspector may require a specified
person or body within a time specified by the
Director or inspector—
(a) to answer orally or in writing any questions put by the inspector relating to a licensed motor car trader's business as a motor car trader; (b) to supply orally or in writing relating to that business.
(2) An inspector can only make a requirement
under sub-section (1) with the written
consent of the Director.
(3) In this section "specified person or body"
means—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 13 | Act No. 17/1999 |
(a)
a person who is a publisher of a publication; or
(b)
a person who is the owner or operator of a broadcasting service; or
(c)
a person who is the owner or operator of a telecommunications service; or
(d)
a person who is the owner or operator of a postal service; or
(e) a financial institution.
82AE. Powers on production of documents
(1) If any documents are produced to an
inspector under section 82AA or 82AB, the
inspector may—
(a) inspect the documents or authorise a person to inspect the documents; (b) make copies of or take extracts from the documents; (c) considers the documents necessary for
seize the documents if the inspector the purpose of any proceedings under this Act or the regulations;
(d) seize the documents if the inspector—
(i) considers the documents
necessary for the purpose of
obtaining evidence for the purpose
of any proceedings under any
OFTBA Act; and(ii) believes on reasonable grounds, documents in order to prevent their concealment, loss or
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 13 destruction or their use in the
contravention of any OFTBA Act;
(e)
secure any seized documents against interference;
(f)
retain possession of the documents in accordance with this Division.
(2) An inspector must not require a person to
person's place of business or the Office of
produce a document at a place other than the the consent of the person.
82AF. Order requiring supply of information and
answers to questions
(1) For the purpose of monitoring compliance
approval of the Director, may apply to the
with this Act, an inspector, with the written person at a time and place specified by an inspector—
(a) questions put by an inspector relating to
to answer orally or in writing any or
(b) to supply orally or in writing information required by an inspector in relation to a licensed motor car trader's business. (2) If the Magistrates' Court is satisfied on the basis of evidence presented by the Director that the order is necessary for the purpose of
monitoring compliance with this Act or the
regulations, the Court may grant the ordersought.
(3) An order under this section must state a day,
not later than 28 days after the making of the
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 13 | Act No. 17/1999 |
order, on which the order ceases to have
effect.
(4) An inspector who executes an order under
this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order.
82AG. Entry or search with consent
(1) For the purpose of monitoring compliance
with this Act or the regulations, an inspector,
with the consent of the occupier of the
premises, may—
(a) enter and search any premises;
(b) seize anything found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations; (c) examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations; (d) inspect and make copies of, or take extracts from, any document found on the premises. (2) An inspector must not enter and search any
premises with the consent of the occupier
unless, before the occupier consents to that
entry, the inspector has—
(a)
produced his or her identity card for inspection; and
(b) informed the occupier—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 13 (i) of the purpose of the search; and
(ii) give consent to the entry and
search or to the seizure ofthat the occupier may refuse to and
(iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and
(iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
must before entering the premises ask the
occupier to sign an acknowledgment in the
prescribed form stating—
(a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and (b) that the occupier has been informed that he or she may refuse to give consent to the entry and search; and (c) that the occupier has consented to such an entry and search; and (d) the date and time that the occupier consented. (4) If an occupier consents to the seizure or taking of any thing during a search under this
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 13 | Act No. 17/1999 |
section, the inspector must before seizing or
taking the thing ask the occupier to sign anacknowledgment stating—
(a) that the occupier has consented to the seizure or taking of the thing; and (b) the date and time that the occupier consented. (5) An occupier who signs an acknowledgment
must be given a copy of the signed
acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry and search or to the seizure or
taking of the thing.
82AH. Entry without consent or warrant
(1) For the purpose of monitoring compliance
with this Act or the regulations, an inspector
may (with the assistance, if necessary, of
another inspector or a member of the police
force) do all or any of the following—
(a)
enter and search any premises at which a licensed motor car trader is carrying on business at any time that the premises are open for business or between the hours of 9 a.m. and 5 p.m.;
(b)
seize or secure against interference anything that the Director or inspector believes on reasonable grounds to be connected with a contravention of this Act or the regulations that is found on or in the premises;
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 13 (c) inspect and make copies of or take extracts from any document kept on the premises. (2) An inspector must not enter or search any
premises under sub-section (1) unless, before
that entry, the inspector has produced his or
her identity card for inspection by the
occupier of the premises.
82AI. Search warrants
(1) An inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of
monitoring compliance with this Act or the
regulations.(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of the inspector that the warrant is necessary for the purpose of
monitoring compliance with this Act or the an inspector named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment—
regulations, the magistrate may issue a
search warrant, in accordance with the
(a) to enter the premises specified in the warrant, if necessary by force; and
(b) to do all or any of the following—
(i) search for;
(ii) seize;
(iii) secure against interference;
(iv) examine and inspect;
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 13 | Act No. 17/1999 |
(v) make copies of or take extracts from—
a thing or things of a particular kind
named or described in the warrant and
which the inspector believes, on
reasonable grounds, to be connected
with a contravention of this Act or the
regulations.(3) A search warrant issued under this section must state—
(a) the purpose for which the search is required; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989
extend and apply to warrants under this
section.
82AJ. Announcement before entry
(1) On executing a search warrant, the inspector executing the warrant—
(a)
must announce that he or she is authorised by the warrant to enter the premises; and
(b)
if the inspector has been unable to obtain unforced entry, must give any
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 13
s. 13Act No. 17/1999
person at the premises an opportunity
to allow entry to the premises.(2) An inspector need not comply with sub-
section (1) if he or she believes on
reasonable grounds that immediate entry to
the premises is required to ensure—
(a) the safety of any person; or
(b)
that the effective execution of the search warrant is not frustrated.
82AK. Details of warrant to be given to occupier
(1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must—
(a) identify himself or herself to the occupier; and (b) give to the occupier a copy of the warrant. (2) If the occupier is not present at premises
where a search warrant is being executed, the
inspector must—
(a)
identify himself or herself to a person (if any) at the premises; and
(b)
give to the person a copy of the warrant.
82AL. Seizure of things not mentioned in the
warrant
A search warrant under section 82AI authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999
seize or take a sample of any thing which is not of the kind described in the warrant if—
(a)
the inspector believes, on reasonable grounds, that the thing—
(i) is of a kind which could have been issued under this Division; or
(ii) will afford evidence about the and
(b)
in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other OFTBA Act.
82AM. Embargo notice
(1) An inspector executing a search warrant who
is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed,
issue an embargo notice in the prescribedform—
(a) by causing a copy of the notice to be served on the occupier; or (b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position. (2) A person who knows that an embargo notice relates to a thing and who—
(a) sells; or
(b) leases; or
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 13
s. 13
Act No. 17/1999
(c)
without the written consent of the inspector who issued the embargo notice, moves; or
(d) transfers; or
(e) otherwise deals with—
the thing or any part of the thing is guilty of
an offence and liable to a penalty not
exceeding 50 penalty units.(3) It is a defence to a prosecution for an offence
against sub-section (2) to prove that the
defendant moved the thing or the part of the
thing for the purpose of protecting and
preserving it.
(4) Despite anything in any other Act, a sale,
lease, transfer or other dealing with a thing
in contravention of this section is void.
82AN. Copies of seized documents
(1) If an inspector retains possession of a
document taken or seized from a person
under this Division, the inspector must give
the person, within 21 days of the seizure, a
copy of the document certified as correct by
the inspector.
(2) A copy of a document certified under sub-
section (1) shall be received in all courts and
tribunals to be evidence of equal validity to
the original.
82AO. Retention and return of seized documents
or things
(1) If an inspector seizes a document or other
thing under this Division, the inspector must take reasonable steps to return the document or thing to the person from whom it was
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999
seized if the reason for its seizure no longer
exists.(2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to
return it unless—
(a) the document or thing was retained
have commenced within that 3 month
period and those proceedingsproceedings for the purpose for which completed; or
(b) under section 82AP extending the
the Magistrates' Court makes an order thing may be retained.
82AP. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates'
Court within 3 months after seizing a document or other thing under this Division for an extension of the period for which the inspector may retain the document or thing.
(2) The Magistrates' Court may order such an
extension if it is satisfied that retention of the
document or other thing is necessary—
(a)
for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or
(b)
to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 13
s. 13
Act No. 17/1999
(3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
82AQ. Requirement to assist inspector during
entry
To the extent that it is reasonably necessary to determine compliance with this Act or the regulations, an inspector exercising a power of entry under this Division who produces
his or her identity card for inspection by the
occupier of the premises or an agent or
employee of the occupier may require thatperson—
(a)
to give information to the inspector, orally or in writing; and
(b)
to produce documents to the inspector; and
(c)
to give reasonable assistance to the inspector.
82AR. Refusal or failure to comply with
requirement
A person must not refuse or fail, without
reasonable excuse, to comply with a
requirement of an inspector under this
Division.Penalty: 50 penalty units.
82AS. Rule against self-incrimination does not
apply
(1) A person is not excused from answering a
question or producing a document under this
Division on the ground that the answer or
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 13 | Act No. 17/1999 |
document might tend to incriminate the
person.(2) If the person claims, before answering a
question, that the answer might tend to
incriminate them, the answer is not
admissible in evidence in any criminal
proceedings, other than in proceedings in
respect of the falsity of the answer.
82AT. Offence to give false or misleading
information
A person must not—
(a)
give information to an inspector under this Division that the person believes to be false or misleading in any material particular; or
(b)
produce a document to an inspector under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.
Penalty: 50 penalty units.
82AU. Application of provisions relating to
inspections
Sections 120, 135, 136, 137, 138 and 139 of the Fair Trading Act 1999 apply (with any necessary modifications) in relation to the
exercise or attempted exercise of a power of
an inspector under this Division as if any
reference in those sections to Part 10 of thatAct were a reference to this Division.
82AV. Service of documents
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999
(1) A written requirement by an inspector under this Division may be given personally or by registered post to a person—
(a) at the last known place of business, employment or residence of the person; or (b) in the case of a body corporate, at the registered office of the body corporate. (2) A person who provides a document or
information in response to a requirement of
an inspector under this Division may send
that document or information to the Director
at the Office of Fair Trading and Business
Affairs by registered post.
82AW. Confidentiality
(1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Division, give to any
other person, whether directly or indirectly,
any information acquired by the inspector in
carrying out those functions.
Penalty: 50 penalty units.
(2) Sub-section (1) does not apply to the giving of information—
(a)
to a court or tribunal in the course of legal proceedings; or
(b)
pursuant to an order of a court or tribunal; or
(c)
to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 13 | Act No. 17/1999 |
(d) to the Business Licensing Authority Licensing Authority Act 1998; or
(e)
with the written authority of the Director; or
(f)
with the written authority of the person to whom the information relates.
82AX. Production of information to Authority
(1) The Authority may require a licensed motor car trader to answer any question or provide information relating to the business of the
motor car trader that the Authority
reasonably requires to carry out its functions
in relation to that motor car trader.(2) A licensed motor car trader must not refuse
or fail, without reasonable excuse, to comply
with a requirement made by the Authority
under this section.
Penalty: 50 penalty units.
82AY. Rule against self-incrimination does not
apply
(1) A licensed motor car trader is not excused from answering a question or providing information under section 82AX on the ground that the answer or the information
might tend to incriminate the motor car
trader.(2) If the licensed motor car trader claims,
before answering a question, that the answer
might tend to incriminate the motor car
trader, the answer is not admissible in
evidence in any criminal proceedings, other
than in proceedings in respect of the falsity
of the answer.'.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 13 _______________
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 14 | Act No. 17/1999 |
PART 4—TRAVEL AGENTS ACT 1986
14. Principal Act
| No. 52/1986. | In this Part the Travel Agents Act 1986 is called |
| Reprint No. 2 | |
| as at 1 July | the Principal Act. |
| 1998. Subsequently amended by No. 101/1998. |
15. Definitions
In section 3(1) of the Principal Act—
(a) for the definition of "the Director" ' "the Director" means the Director within
the meaning of the Fair Trading Act
1999;';
(b)
insert the following definitions— ' "financial institution" means—
(a) institution within the meaning of
an authorised deposit-taking Commonwealth; or
(b) a body approved by the Governor in Council by order published in the Government Gazette;
"inspector" means an inspector appointed under the Fair Trading Act 1999;
"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;
"OFTBA Act" has the same meaning as it has in the Fair Trading Act 1999;'.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 16 16. Repeal of sections 26 and 27
Sections 26 and 27 of the Principal Act are repealed.
17. Restraint of unjust conduct
(1) In section 28 of the Principal Act for sub-section
(3) substitute—
"(3) If, on the application of the Director, the
Tribunal is satisfied that a person has failed to observe an undertaking given by the person under section 146 of the Fair Trading Act 1999, the Tribunal may make an order under sub-section (1) against the person.".
(2) In section 28(4) of the Principal Act for "section
26(1)(a)" substitute "section 146 of the Fair
Trading Act 1999".
18. New Part 3A inserted
After Part 3 of the Principal Act insert—
'PART 3A—INSPECTION POWERS
39A. Production of identity card
An inspector must produce his or her identity card for inspection—
(a)
before exercising a power under this Part other than a requirement made by post; and
(b)
at any time during the exercise of a power under this Part, if asked to do so.
Penalty: 10 penalty units.
39B. Documents available for inspection
(1) A licensee must at all reasonable times at each office at which that licensee carries on
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
business as a travel agent keep all documents
relating to the business carried on at that
office available for inspection by an
inspector in a form in which they can be
readily and expeditiously inspected by an
inspector.Penalty: 50 penalty units.
(2) If the licence of a licensee has been
surrendered or cancelled in the last 3 years,
the former licensee must make all documents
relating to the former business available for
inspection by an inspector in a form and at a
place where they can be readily and
expeditiously inspected by an inspector.
Penalty: 50 penalty units.39C. Licensee or specified person to produce documents and answer questions
(1) For the purpose of monitoring compliance
with this Act, an inspector may require a
licensee or a specified person at a time and
place specified by the inspector—
(a) to answer orally or in writing any questions put by the inspector relating to the licensee's business as a travel agent; (b) to supply orally or in writing relating to that business;
(c) to produce to the inspector specified documents or documents of a specified class relating to that business.
(2) In this section "specified person", in
relation to a licensee's business as a travel
agent, means—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18
(a) a person whose licence has been surrendered or cancelled within the last 3 years; or (b) a person who is a director or officer of a corporation which is a licensee; or (c) if the licence of a corporation has been surrendered or cancelled within the last 3 years, a person who was a director or officer of the corporation at the time the licence was surrendered or cancelled; or
(d) a person who is an executor, administrator or trustee (including a trustee company within the meaning of the Trustee Companies Act 1984) of the estate of a deceased licensee who is carrying on the business of the licensee pursuant to this Act. 39D. Third parties to produce documents and
answer questions relating to licensee's
business
For the purpose of monitoring compliance with this Act, an inspector may require any person who has possession, custody or
control of documents relating to a licensee's
business as a travel agent—
(a) to answer orally or in writing any questions put by the inspector relating to the licensee's business as a travel agent; (b) to supply orally or in writing relating to that business;
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
(c) to produce to the inspector specified documents or documents of a specified class relating to that business. 39E. Ministers, police and public authorities to produce information to inspectors
(1) For the purpose of monitoring compliance with this Act, the Director or an inspector may request a specified public body within a
time specified by the Director or inspector—
(a) to answer orally or in writing any questions put by the inspector relating to a licensee's business as a travel agent; (b) to supply orally or in writing relating to that business.
(2) An inspector can only make a request under
sub-section (1) with the written consent of
the Director.
(3) A specified public body must comply with a request under sub-section (1).
(4) In this section "specified public body"
means—
(a) a Minister; or
(b) a public statutory authority; or
(c) a municipal council; or
(d) the Chief Commissioner of Police.39F. Certain other specified persons or bodies to produce information
(1) For the purpose of monitoring compliance with this Act, the Director or an inspector may require a specified person or body
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18 within a time specified by the Director or
inspector—
(a) to answer orally or in writing any questions put by the inspector relating to a licensee's business as a travel agent; (b) to supply orally or in writing relating to that business.
(2) An inspector can only make a requirement
under sub-section (1) with the written
consent of the Director.
(3) In this section "specified person or body"
means—
(a)
a person who is a publisher of a publication; or
(b)
a person who is the owner or operator of a broadcasting service; or
(c)
a person who is the owner or operator of a telecommunications service; or
(d)
a person who is the owner or operator of a postal service; or
(e) a financial institution.
39G. Powers on production of documents
(1) If any documents are produced to an
inspector under section 39C or 39D, the
inspector may—
(a)
inspect the documents or authorise a person to inspect the documents;
(b)
make copies of or take extracts from the documents;
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
(c) considers the documents necessary for
seize the documents if the inspector the purpose of any proceedings under this Act;
(d) seize the documents if the inspector—
(i) considers the documents
necessary for the purpose of
obtaining evidence for the purpose
of any proceedings under any
OFTBA Act; and(ii) that it is necessary to seize the
documents in order to prevent
their concealment, loss orbelieves on reasonable grounds, contravention of any OFTBA Act;
(e)
secure any seized documents against interference;
(f)
retain possession of the documents in accordance with this Part.
(2) An inspector must not require a person to
person's place of business or the Office of
produce a document at a place other than the the consent of the person. 39H. Order requiring supply of information and answers to questions
(1) For the purpose of monitoring compliance
approval of the Director, may apply to the
with this Act, an inspector, with the written person at a time and place specified by an inspector—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18 (a) questions put by an inspector relating to
to answer orally or in writing any or
(b) to supply orally or in writing information required by an inspector in relation to a licensee's business as a travel agent. (2) If the Magistrates' Court is satisfied on the basis of evidence presented by the Director that the order is necessary for the purpose of
monitoring compliance with this Act, the
Court may grant the order sought.(3) An order under this section must state a day, not later than 28 days after the making of the order, on which the order ceases to have
effect.
(4) An inspector who executes an order under
this section must, as soon as practicable after that execution, notify the Magistrates' Court in writing of the time and place of execution of the order.
39I. Entry or search with consent
(1) For the purpose of monitoring compliance
with this Act, an inspector, with the consent
of the occupier of the premises, may—
(a) enter and search any premises;
(b) which the inspector believes on
seize anything found on the premises with a contravention of this Act;
(c)
examine and take and keep samples of any goods found on the premises which the inspector believes on reasonable
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
| grounds to be connected with a contravention of this Act; |
(d) inspect and make copies of, or take extracts from, any document found on the premises. (2) An inspector must not enter and search any
premises with the consent of the occupier
unless, before the occupier consents to that
entry, the inspector has—
(a)
produced his or her identity card for inspection; and
(b) informed the occupier—
(i) of the purpose of the search; and
(ii) give consent to the entry and
search or to the seizure ofthat the occupier may refuse to and
(iii) that the occupier may refuse to consent to the taking of any sample of goods or any copy or extract from a document found on the premises during the search; and
(iv) that anything seized or taken during the search with the consent of the occupier may be used in evidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
must before entering the premises ask the
occupier to sign an acknowledgment in the
prescribed form stating—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18
(a) that the occupier has been informed of the purpose of the search and that anything seized or taken in the search with the consent of the occupier may be used in evidence in proceedings; and (b) that the occupier has been informed that he or she may refuse to give consent to the entry and search; and (c) that the occupier has consented to such an entry and search; and (d) the date and time that the occupier consented. (4) If an occupier consents to the seizure or
taking of any thing during a search under this
section, the inspector must before seizing or
taking the thing ask the occupier to sign an
acknowledgment stating—
(a) that the occupier has consented to the seizure or taking of the thing; and (b) the date and time that the occupier consented. (5) An occupier who signs an acknowledgment
must be given a copy of the signed
acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry and search or to the seizure or
taking of the thing.
39J. Entry without consent or warrant
(1) For the purpose of monitoring compliance with this Act, an inspector may (with the
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
assistance, if necessary, of another inspector
or a member of the police force) do all orany of the following—
(a) enter and search any premises at which a licensee is carrying on business at any time that the premises are open for business or between the hours of 9 a.m.
and 5 p.m.;(b) seize or secure against interference believes on reasonable grounds to be connected with a contravention of this Act that is found on or in the premises;
(c) inspect and make copies of or take extracts from any document kept on the premises.
(2) An inspector must not enter or search any
premises under sub-section (1) unless, before
that entry, the inspector has produced his or
her identity card for inspection by the
occupier of the premises.
39K. Search warrants
(1) An inspector, with the written approval of the Director, may apply to a magistrate for the issue of a search warrant in relation to particular premises for the purpose of
monitoring compliance with this Act.
(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of the inspector that the warrant is necessary for the purpose of
monitoring compliance with this Act, the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act
1989, authorising an inspector named in the
warrant, together with any other person or
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18 persons named or otherwise identified in the warrant and with any necessary equipment—
(a) to enter the premises specified in the warrant, if necessary by force; and
(b) to do all or any of the following—
(i) search for;
(ii) seize;
(iii) secure against interference;
(iv) examine and inspect;
(v) make copies of or take extracts from—
a thing or things of a particular kind
named or described in the warrant and
which the inspector believes, on
reasonable grounds, to be connected
with a contravention of this Act.(3) A search warrant issued under this section must state—
(a) the purpose for which the search is required; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
extend and apply to warrants under this
section.
39L. Announcement before entry
(1) On executing a search warrant, the inspector executing the warrant—
(a) must announce that he or she is authorised by the warrant to enter the premises; and (b) if the inspector has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises. (2) An inspector need not comply with sub-
section (1) if he or she believes on
reasonable grounds that immediate entry to
the premises is required to ensure—
(a) the safety of any person; or
(b)
that the effective execution of the search warrant is not frustrated.
39M. Details of warrant to be given to occupier
(1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must—
(a) identify himself or herself to the occupier; and (b) give to the occupier a copy of the warrant. (2) If the occupier is not present at premises
where a search warrant is being executed, the
inspector must—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18
(a)
identify himself or herself to a person (if any) at the premises; and
(b)
give to the person a copy of the warrant.
39N. Seizure of things not mentioned in the
warrant
A search warrant under section 39K authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize or take a sample of any thing which is not of the kind described in the warrant if—
(a)
the inspector believes, on reasonable grounds, that the thing—
(i) is of a kind which could have been issued under this Part; or
(ii) will afford evidence about the and
(b)
in the case of seizure, the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the contravention of this Act or any other OFTBA Act.
39O. Embargo notice
(1) An inspector executing a search warrant who
is authorised by that warrant to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed,
issue an embargo notice in the prescribed
form—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
(a) by causing a copy of the notice to be served on the occupier; or (b) if the occupier cannot be located after all reasonable steps have been taken to do so, by affixing a copy of the notice to the thing in a prominent position. (2) A person who knows that an embargo notice relates to a thing and who—
(a) sells; or
(b) leases; or
(c)
without the written consent of the inspector who issued the embargo notice, moves; or
(d) transfers; or
(e) otherwise deals with—
the thing or any part of the thing is guilty of
an offence and liable to a penalty not
exceeding 50 penalty units.(3) It is a defence to a prosecution for an offence
against sub-section (2) to prove that the
defendant moved the thing or the part of the
thing for the purpose of protecting and
preserving it.
(4) Despite anything in any other Act, a sale,
lease, transfer or other dealing with a thing
in contravention of this section is void.
39P. Copies of seized documents
(1) If an inspector retains possession of a
document taken or seized from a person
under this Part, the inspector must give the
person, within 21 days of the seizure, a copy
of the document certified as correct by the
inspector.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18 (2) A copy of a document certified under sub-
section (1) shall be received in all courts and
tribunals to be evidence of equal validity to
the original.
39Q. Retention and return of seized documents
or things
(1) If an inspector seizes a document or other
thing under this Part, the inspector must take
reasonable steps to return the document or
thing to the person from whom it was seized
if the reason for its seizure no longer exists.
(2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to
return it unless—
(a) the document or thing was retained
have commenced within that 3 month
period and those proceedingsproceedings for the purpose for which completed; or
(b)
the Magistrates' Court makes an order under section 39R extending the period during which the document or thing may be retained.
39R. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates' Court within 3 months after seizing a document or other thing under this Part for an extension of the period for which the inspector may retain the document or thing.
(2) The Magistrates' Court may order such an
extension if it is satisfied that retention of the
document or other thing is necessary—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
(a) for the purposes of an investigation into whether a contravention of this Act has occurred; or (b) to enable evidence of a contravention of this Act to be obtained for the purposes of a proceeding under this Act. (3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
39S. Requirement to assist inspector during
entry
To the extent that it is reasonably necessary to determine compliance with this Act, an inspector exercising a power of entry under this Part who produces his or her identity card for inspection by the occupier of the premises or an agent or employee of the occupier may require that person—
(a)
to give information to the inspector, orally or in writing; and
(b)
to produce documents to the inspector; and
(c)
to give reasonable assistance to the inspector.
39T. Refusal or failure to comply with
requirement
A person must not refuse or fail, without
reasonable excuse, to comply with a
requirement of the Director or an inspector
under this Part.Penalty: 50 penalty units.
39U. Rule against self-incrimination does not
apply
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18
(1) A person is not excused from answering a
question or producing a document under this document might tend to incriminate the person. (2) If the person claims, before answering a
question, that the answer might tend to
incriminate them, the answer is not
admissible in evidence in any criminal
proceedings, other than in proceedings in
respect of the falsity of the answer.
39V. Offence to give false or misleading
information
A person must not—
(a) give information to an inspector under this Part that the person believes to be false or misleading in any material particular; or
(b)
produce a document to an inspector under this Part that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.
Penalty: 50 penalty units.
39W. Application of provisions relating to
inspections
Sections 120, 135, 136, 137, 138 and 139 of the Fair Trading Act 1999 apply (with any necessary modifications) in relation to the
exercise or attempted exercise of a power of
an inspector under this Part as if any
reference in those sections to Part 10 of that
Act were a reference to this Part.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 18 | Act No. 17/1999 |
39X. Service of documents
(1) A written requirement by an inspector under
this Part may be given personally or by
registered post to a person—
(a) at the last known place of business, employment or residence of the person; or (b) in the case of a body corporate, at the registered office of the body corporate. (2) A person who provides a document or
information in response to a requirement of
an inspector under this Part may send that
document or information to the Director at
the Office of Fair Trading and Business
Affairs by registered post.
39Y. Confidentiality
(1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Part, give to any other
person, whether directly or indirectly, any
information acquired by the inspector in
carrying out those functions.
Penalty: 50 penalty units.
(2) Sub-section (1) does not apply to the giving of information—
(a)
to a court or tribunal in the course of legal proceedings; or
(b)
pursuant to an order of a court or tribunal; or
(c)
to the extent reasonably required to enable the investigation or the
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 18 enforcement of a law of this State or of
any other State or Territory or of the
Commonwealth; or
(d) to the Business Licensing Authority Licensing Authority Act 1998; or
(e)
with the written authority of the Director; or
(f)
with the written authority of the person to whom the information relates.
39Z. Production of information to Authority
(1) The Authority may require a licensee to
answer any question or provide information
relating to the business of the licensee that
the Authority reasonably requires to carry
out its functions in relation to that licensee.(2) A licensee must not refuse or fail, without
reasonable excuse, to comply with a
requirement made by the Authority under
this section.
Penalty: 50 penalty units.
39ZA. Rule against self-incrimination does not
apply
(1) A licensee is not excused from answering a
question or providing information under
section 39Z on the ground that the answer or
the information might tend to incriminate the
licensee.
(2) If the licensee claims, before answering a
question, that the answer might tend to
incriminate the licensee, the answer is not
admissible in evidence in any criminal
proceedings, other than in proceedings in
respect of the falsity of the answer.'.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 19 | Act No. 17/1999 |
19. Repeal of sections 41 and 42
Sections 41 and 42 of the Principal Act are repealed.
_______________
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 20
PART 5—AMENDMENT OF OTHER ACTS
20. Architects Act 1991
In section 47(2)(a) of the Architects Act 1991 for
No. 13/1991. Reprint No. 2
"Consumer Affairs Act 1972" substitute "Fair as at Trading Act 1999". 20 August
1998.
21. Associations Incorporation Act 1981
No.
(1) In section 3(1) of the Associations Incorporation Act 1981 insert—
9713/1981.
Reprint No. 4
as at 1 July
' "inspector" means an inspector appointed under the Fair Trading Act 1999;'. 1998.
(2) Sections 37A and 37B of the Associations Incorporation Act 1981 are repealed.
(3) In section 37C of the Associations Incorporation Act 1981, sub-sections (1) and (2) are repealed.
22. Building Act 1993
(1) In section 137A(1)(d) of the Building Act 1993, for "section 11, 12 or 17 of the Fair Trading Act
No. 126/1993. Reprint No. 3
as at
1985" substitute "section 9, 11 or 12 of the Fair 1 January Trading Act 1999". 1999.
(2) After section 137A(2) of the Building Act 1993
insert—
'(3) A reference—
(a) in any order made under section 135; or
(b)
in any instrument or agreement which is required insurance—
to "section 11, 12 or 17 of the Fair Trading any period on or after the commencement of section 22 of the Fair Trading (Inspectors Powers and Other Amendments) Act
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 22 | Act No. 17/1999 |
1999, deemed to include a reference to
"section 9, 11 or 12 of the Fair Trading Act1999".'.
(3) In section 137B(4) of the Building Act 1993 for
"Director of the Office of Fair Trading and substitute "Director of Fair Trading within the meaning of the Fair Trading Act 1999". (4) In section 137B(5) of the Building Act 1993 after "Director" insert "of Fair Trading".
(5) In section 221S(1)(e) of the Building Act 1993
after "Fair Trading Act 1985" insert "or section 10, 11, 12, 17, 19 and 21 of the Fair Trading Act 1999".
(6) In section 221ZD(2)(e) of the Building Act 1993 after "Fair Trading Act 1985" insert "or section 10, 11, 12, 17, 19 and 21 of the Fair Trading Act 1999".
(7) In section 221ZT(c) of the Building Act 1993, for
"section 11, 12 or 17 of the Fair Trading Act
1985" substitute "section 9, 11 or 12 of the Fair
Trading Act 1999".
(8) At the end of section 221ZT of the Building Act
1993 insert—
'(2) A reference—
(a) in any order made under section 221ZQ; or (b) in any instrument or agreement which meaning of section 221B(1))—
to "section 11, 12 or 17 of the Fair Trading any period on or after the commencement of section 22 of the Fair Trading (Inspectors
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 23 Powers and Other Amendments) Act 1999, deemed to include a reference to "section 9, 11 or 12 of the Fair Trading Act
1999".'.
23. Business Licensing Authority Act 1998
In section 3 of the Business Licensing Authority No. 49/1998. Act 1998, for the definition of "Director"
substitute—
' "Director" means the Director within themeaning of the Fair Trading Act 1999;'.
24. Business Names Act 1962
No.
(1) In section 4(1) of the Business Names Act 6853/1962.
1962— Reprint No. 5
as at 11(a) the definition of "Commissioner" is March 1999. repealed;
(b) insert the following definition—
' "Director" means the Director within themeaning of the Fair Trading Act
1999;'.
(2) In sections 4A, 6(1), 7(1), 7(3), 7(4), 7(5), 7(6),
9(1), 10, 10A, 11, 12, 13, 15(2), 15AA, 15A, 15B,
15C, 16, 17, 18, 19, 21, 22(1), 22(3), 23, 24(b),
25, 28A, 31(1) and 32 of the Business Names Act
1962, for "Commissioner" (wherever occurring)
substitute "Director".
(3) In section 7 of the Business Names Act 1962 for sub-section (4A) substitute—
"(4A) A certificate of registration must indicate
that it is produced by authority of the signed by the Director, or by bearing a facsimile of the initials or signature of the
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 25 | Act No. 17/1999 |
Director, or in any other manner the Director thinks fit.".
(4) In section 22 of the Business Names Act 1962 for
sub-section (4) substitute—
"(4) A copy of or extract from any document
filed or lodged at the Office of Fair Trading admissible in evidence as of equal validity with the original document.".
and Business Affairs certified to be a true
copy or extract under the hand of the
25. Business Names Act 1962—New section 4B inserted
After section 4A of the Business Names Act 1962
insert—"4B. Delegation by Director
The Director, by instrument, may delegate to
any person or class of persons employed
under Part 3 of the Public Sector
Management and Employment Act 1998
in the administration of this Act, any of the
Director's functions or powers under thisAct, other than this power of delegation.".
26. Business Names Act 1962—New section 33 inserted
After section 32 of the Business Names Act 1962
insert—
"33. Transitional(1) Any act matter or thing of a continuing nature commenced under this Act or the regulations by or against or in relation to the
Commissioner for Corporate Affairs and
existing immediately before the
commencement of section 26 of the Fair
Trading (Inspectors Powers and Other
Amendments) Act 1999 may be continued
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 27 and completed on and after that
commencement by or against or in relationto the Director.
(2) If, immediately before the commencement of
section 26 of the Fair Trading (Inspectors 1999, proceedings to which the Commissioner for Corporate Affairs was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director is substituted for the Commissioner for Corporate Affairs as a party to the proceedings and has the same rights and obligations in the proceedings as the Commissioner for Corporate Affairs had.".
27. Consumer Credit (Victoria) Act 1995
In section 3(1) of the Consumer Credit
No. 41/1995. Reprint No. 1
(Victoria) Act 1995 for the definition of as at 1 July "Director" substitute— 1998. ' "Director" means the Director within the meaning of the Fair Trading Act 1999;'.
28. Credit Act 1984
(1) In section 5(1) of the Credit Act 1984—
No. 10097/84. Reprint No. 3
(a) for the definition of "Director" substitute— ' "Director" means the Director within the
as at 1 July
1998. meaning of the Fair Trading Act
1999;';
(b) insert the following definition—
' "inspector" means an inspector appointedunder the Fair Trading Act 1999;'.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 29 | Act No. 17/1999 |
(2) In section 6(1)(a) of the Credit Act 1984 omit "not including the Market Court".
(3) In section 121(7)(a) of the Credit Act 1984 omit
"appointed under the Consumer Affairs Act
1972".
29. Disposal of Uncollected Goods Act 1961
No.
| 6815/1961. | After section 13 of the Disposal of Uncollected |
| Reprint No. 3 | Goods Act 1961 insert— |
| as at | |
| 20 February | "14. Application of provisions of Fair Trading |
1997. Act 1999
(except section 121) extends and applies
(with any necessary modifications) to this
Act as if any reference in that Part to thePart 10 of the Fair Trading Act 1999 this Act.".
30. Domestic Building Contracts Act 1995
| No. 91/1995. | (1) In section 3(1) of the Domestic Building |
| Reprint No. 3 | |
| as at 1 July | Contracts Act 1995 for the definition of |
| 1998. | "Director" substitute— ' "Director" means the Director within the |
meaning of the Fair Trading Act 1999;'.
(2) In the Domestic Building Contracts Act 1995—
(a)
in section 125(1), for "under the Consumer Affairs Act 1972" substitute "appointed under the Fair Trading Act 1999";
(b) Part 9 is repealed.
31. Domestic Building Contracts Act 1995—New section 124A inserted
After section 124 of the Domestic Building
Contracts Act 1995 insert—
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 32 "124A. Application of provisions of Fair Trading
Act 1999
Part 10 of the Fair Trading Act 1999 (except sections 120 and 121) extends and applies (with any necessary modifications) to this Act as if any reference in that Part to the Fair Trading Act 1999 were a reference to this Act.".
32. Estate Agents Act 1980
No.
In section 4 of the Estate Agents Act 1980 for the 9428/1980. definition of "Director" substitute— Reprint No. 6
as at 1 July' "Director" means the Director within the meaning of the Fair Trading Act 1999;'.
1998.
33. Fundraising Appeals Act 1998
(1) In section 3 of the Fundraising Appeals Act No. 78/1998. 1998 for the definition of "inspector" substitute— ' "inspector" means an inspector appointed under
the Fair Trading Act 1999;'.
(2) Section 45 of the Fundraising Appeals Act 1998
is repealed.
34. Fundraising Appeals Act 1998—New section 72A inserted
After section 72 of the Fundraising Appeals Act
1998 insert—
'72A. Transitional provision relating to inspectors
(1) An inspector appointed under the Fair
Trading Act 1999 may continue and complete any proceedings under this Act commenced or made by or against or in relation to a former inspector and existing immediately before the commencement day.
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 35 | Act No. 17/1999 |
(2) In this section—
"commencement day" means the day of commencement of section 34 of the Fair Trading (Inspectors Powers and
Other Amendments) Act 1999;
"former inspector" means a person
authorised under section 45 of this Act
as in force before the commencement
day.'.
35. Funerals (Pre-Paid Money) Act 1993
| No. 33/1993. | (1) In section 3(1) of the Funerals (Pre-Paid Money) Act 1993 insert— |
meaning of the Fair Trading Act 1999;'.
(2) In section 18 of the Funerals (Pre-Paid Money)
Act 1993, sub-sections (4) and (5) are repealed.(3) Part 5 of the Funerals (Pre-Paid Money) Act 1993 is repealed.
36. Funerals (Pre-Paid Money) Act 1993—New section 17A inserted
After section 17 of the Funerals (Pre-Paid
Money) Act 1993 insert—
"17A. Application of provisions of Fair Trading
Act 1999
Part 10 of the Fair Trading Act 1999 this Act.".
(except section 121) extends and applies
(with any necessary modifications) to this
Act as if any reference in that Part to the
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 37 37. Introduction Agents Act 1997
(1) In section 3 of the Introduction Agents Act 1997 for the definitions of "Director" and "inspector"
No. 75/1997. Reprint No. 1
as at 1 July
substitute— 1998. ' "Director" means the Director within the meaning of the Fair Trading Act 1999; "inspector" means an inspector appointed under the Fair Trading Act 1999;'.
(2) Division 3 of Part 6 of the Introduction Agents Act 1997 is repealed.
(3) In section 64 of the Introduction Agents Act
1997 for "section 63" substitute "section 146 of
the Fair Trading Act 1999".
38. Pay-roll Tax Act 1971
No.
In section 3C(6) of the Pay-roll Tax Act 1971 for 8154/1971. paragraph (g) substitute— Reprint No. 6
as at"(g) a reference to a door to door sale is a reference to the entering into of an
22 August
1997. agreement or the making of an offer to which agreement had been entered into or the offer made immediately before the repeal of the Consumer Affairs Act 1972.".
Division 3 of Part II of the Consumer
39. Petroleum Retail Selling Sites Act 1981
No.
In section 4(9) of the Petroleum Retail Selling 9704/1981. Sites Act 1981 for "Director of Consumer
Affairs" substitute "Director of Fair Trading
within the meaning of the Fair Trading Act
1999".
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 40 | Act No. 17/1999 |
40. Prostitution Control Act 1994
| No. 102/1994. | In section 3 of the Prostitution Control Act 1994 |
| Reprint No. 3 | |
| as at 1 July | for the definition of "Director of Fair Trading" within the meaning of the Fair Trading Act |
| 1998. | substitute— ' "Director of Fair Trading" means the Director |
41. Residential Tenancies Act 1997
| No. 109/1997. | (1) In section 3(1) of the Residential Tenancies Act |
| Reprint No. 1 | |
| as at 1 July | 1997 for the definition of "Director" substitute— |
| 1998. | |
| ' "Director" means the Director within the |
meaning of the Fair Trading Act 1999;'.
(2) For the heading to Division 1 of Part 12 of theResidential Tenancies Act 1997 substitute—
"Division 1—Director of Fair Trading"
(3) In Schedule 2 to the Residential Tenancies Act 1997, item 9 is repealed.
42. Residential Tenancies Act 1997—New section 507A inserted
After section 507 of the Residential Tenancies
Act 1997 insert—
"507A. Application of provisions of Fair Trading
Act 1999
Part 10 of the Fair Trading Act 1999
(except section 121) extends and applies
(with any necessary modifications) to thisAct (except Part 14) as if—
(a)
any reference in that Part 10 to the Fair Trading Act 1999 were a reference to this Act; and
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 s. 43
(b) Fair Trading Act 1999 relates to the
giving of information or the production
of a document under section 118 of that
Act, the penalty for an offence againstto the extent that section 134 of the 10 penalty units.".
43. Retirement Villages Act 1986
(1) In section 3(1) of the Retirement Villages Act
No. 126/1986. Reprint No. 3
1986— as at
4 February(a) the definition of "Commissioner for 1999. Corporate Affairs" is repealed;
(b) insert the following definition—
' "Director" means the Director within themeaning of the Fair Trading Act
1999;'.
(2) In section 6 of the Retirement Villages Act
1986—
(a)
for "Commissioner for Corporate Affairs" (wherever occurring) substitute "Director";
(b)
in sub-section (5)(a), for "Commissioner" substitute "Director".
(3) In section 18 of the Retirement Villages Act
1986—
(a)
in sub-sections (1) and (3), for "Fair Trading 1985" substitute "Fair Trading Act 1999";
(b) sub-section (2) is repealed.
(4) In sections 31(3), 32(2), (4), (5) (6) and (7), 39(2),
(4), (5), (6) and (7) and 40 of the Retirement
Villages Act 1986, for "Commissioner for
Corporate Affairs" (wherever occurring)
substitute "Director".
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
s. 44
| s. 45 | Act No. 17/1999 |
(5) In sections 32(3)(b)(ii) and 39(3)(b)(ii) of the
Retirement Villages Act 1986, for "the
Commissioner" substitute "the Director".44. Retirement Villages Act 1986—New section 44 inserted
After section 43 of the Retirement Villages Act
1986 insert—
"44. Transitional(1) Any act matter or thing of a continuing nature commenced under this Act or the regulations by or against or in relation to the
Commissioner for Corporate Affairs and Amendments) Act 1999 may be continued and completed on and after that commencement by or against or in relation to the Director.
existing immediately before the
commencement of section 44 of the Fair
(2) If, immediately before the commencement of
section 44 of the Fair Trading (Inspectors 1999, proceedings to which the Commissioner for Corporate Affairs was a party were pending or existing in any court or tribunal, then, on and after that commencement, the Director is substituted for the Commissioner for Corporate Affairs as a party to the proceedings and has the same rights and obligations in the proceedings as the Commissioner for Corporate Affairs had.".
45. Sale of Land Act 1962
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999
In section 3 of the Sale of Land Act 1962— No.
6975/1962.(a) in sub-section (1)(a) for "is not under the operation of the Transfer of Land Act
Reprint No. 10
as at 22 May 1997. 1958" substitute "is in an identified folio
under the Transfer of Land Act 1958 or isnot under the operation of that Act";
(b)
in sub-section (1)(b) after "Transfer of Land Act 1958" insert "(other than land in an identified folio under that Act)".
46. Second-Hand Dealers and Pawnbrokers Act 1989
No. 54/1989.
In section 3(1) of the Second-Hand Dealers and Reprint No. 3 Pawnbrokers Act 1989 for the definition of as at 1 July "Director" substitute— 1998. ' "Director" means the Director within the meaning of the Fair Trading Act 1999;'.
47. Small Claims Act 1973
No.
In section 20A of the Small Claims Act 1973 for 8486/1973. "consumer" (wherever occurring) substitute Reprint No. 5 "customer". as at 1 July 1998. 48. Trade Measurement Act 1995
For section 81 of the Trade Measurement Act No. 59/1995. 1995 substitute—
"81. Special provisions—application of Act inthe State
Nothing in this Act affects the operation of the Fair Trading Act 1999.".
49. Victorian Civil and Administrative Tribunal Act 1998
(1) In section 3 of the Victorian Civil and
Administrative Tribunal Act 1998, for the
definition of "Director" substitute—
' "Director" means the Director within theNo. 53/1998. meaning of the Fair Trading Act 1999;';
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
| s. 49 | Act No. 17/1999 |
(2) In section 73(2) of the Victorian Civil and
Administrative Tribunal Act 1998 for "Fair Trading Act 1985" substitute "Fair Trading Act 1999".
═══════════════
Fair Trading (Inspectors Powers and Other Amendments) Act
1999
Act No. 17/1999 Notes
NOTES
†
Minister's second reading speech—
Legislative Assembly: 15 April 1999
Legislative Council: 5 May 1999
The long title for the Bill for this Act was "to provide for inspectors'
powers in various Acts and to make other amendments to various Acts as
a consequence of the Fair Trading Act 1999 and for other purposes."
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0
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