Untitled document
Fair Trading Amendment (Australian Consumer Law) Act 2010
No. 72 of 2010
table of provisions
Section Page
1Purpose
2Commencement
3Principal Act
4Purposes of Principal Act
5Definitions
6Representations as to future matters
7Crown bound
8Extra-territorial application of this Act
9New Part 2 substituted
Part 2—The Australian Consumer Law
Division 1—Definitions
7Definitions
Division 2—Application of Australian Consumer Law
8The Australian Consumer Law text
9Application of Australian Consumer Law
10Future modifications of Australian Consumer Law text
11Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction
12Interpretation of Australian Consumer Law
13Application of Australian Consumer Law
Division 3—References to Australian Consumer Law
14References to Australian Consumer Law
15References to Australian Consumer Law of other jurisdictions
Division 4—Application of Australian Consumer Law to Crown
16Division does not apply to Commonwealth
17Application law of this jurisdiction
18Application law of other jurisdictions
19Activities that are not business
20Crown not liable to pecuniary penalty or prosecution
Division 5—Miscellaneous
21Conferral of functions and powers on certain bodies
22No doubling-up of liabilities
10Sections 32B to 32F repealed
11Section 32FA substituted
32FAApplication of Goods Act 1958 to contracts of supply
12Sections 32G to 32MA repealed
13Limitation of liability in relation to supply of recreational services
14Sections 32NB and 32O repealed
15When does a discharge or rescission have effect?
16Section 32S repealed
17Part 2B repealed
18Parts 3, 4 and 5 repealed
19New Division heading inserted in Part 7
20New Division 2 inserted into Part 7
Division 2—Victorian Consumer Law Fund
102ADefinition
102BVictorian Consumer Law Fund
102COrder for payment to non-party consumers
102DSpecial purpose grants
102EAdministration expenses
21Powers of the Director in relation to proceedings on behalf of consumers
22New sections 106AA and 106AB inserted
106AAGrants of legal assistance
106ABCosts and expenses relating to proceedings to which assisted person is a party
23Section 106A repealed
24New section 106P substituted
106PInformation sharing
25Appointment of inspectors
26Requirement to produce information
27Emergency entry
28Monitoring compliance with embargo notices
29Court may order destruction of dangerous goods
30Copy of undertaking
31Register of undertakings
32Undertakings as to damages and costs
33Non-punitive orders—Corrective advertising orders
34Orders to prohibit payment of money or transfer of other
property35Defences
36Section 157 substituted
157Findings in proceedings to be evidence
37Orders against persons found to have contravened this Act
38Power to serve a notice
39Section 160B repealed
40New Divisions 4 and 5 inserted into Part 11
Division 4—Safety and information requirements
160BInterim bans, recall notices and safety warning notices
160CNotice of ban or notice
160DReview of ban order or compulsory recall notice
Division 5—Enforcement of Australian Consumer Law (Victoria)
160EReferences to courts and the Tribunal
160FActions for damages under Australian Consumer Law (Victoria)
160GJurisdictional limit of Magistrates Court not to apply
to pecuniary penalties under Australian Consumer
Law (Victoria)160HOrders against persons found to have contravened Australian Consumer Law (Victoria)
41Section 161 repealed
42Section 161A substituted
161AApplication of Australian Consumer Law (Victoria) in respect of bills and receipts under Legal Profession Act 2004
43Sections 162 and 163 repealed
44New section 163B inserted
163BDisapplication of certain provisions to Australian Consumer Law (Victoria)
45Regulations under Principal Act
46Schedule 2 repealed
47Savings and transitional
19ATransitional provision—repeal of Part 2B
19BTransitional—jurisdiction of the Tribunal
19CSavings—Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009
19DRegulations dealing with transitional matters
48Consequential amendments
49Repeal of amending Act
__________________
SCHEDULE—Consequential Amendments
1Associations Incorporation Act 1981
2Building Act 1993
3Business Names Act 1962
4Child Employment Act 2003
5Consumer Affairs Legislation Amendment (Reform) Act 2010
6Conveyancers Act 2006
7Domestic Building Contracts Act 1995
8Electricity Industry Act 2000
9Estate Agents Act 1980
10Fundraising Act 1998
11Funerals Act 2006
12Gas Industry Act 2001
13Interpretation of Legislation Act 1984
38FReferences to Australian Consumer Law
14Introduction Agents Act 1997
15Limitation of Actions Act 1958
16Motor Car Traders Act 1986
17Owners Corporations Act 2006
18Prostitution Control Act 1994
19Residential Tenancies Act 1997
20Retirement Villages Act 1986
21Sale of Land Act 1962
22Second-Hand Dealers and Pawnbrokers Act 1989
23Travel Agents Act 1986
24Victorian Civil and Administrative Tribunal Act 1998
25Wrongs Act 1958
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Endnotes
Fair Trading Amendment (Australian Consumer Law) Act 2010
No. 72 of 2010
[Assented to 19 October 2010]
The Parliament of Victoria enacts:
1Purpose
The purpose of this Act is to apply the Australian Consumer Law as a law of Victoria by—
(a)inserting the relevant application provisions into the Fair Trading Act 1999;
(b)repealing provisions of the Fair Trading Act 1999 that are superseded by that Law;
(c)making consequential and other amendments to the Fair Trading Act 1999 and other Acts.
2Commencement
This Act comes into operation on a day or days to be proclaimed.
3Principal Act
In this Act, the Fair Trading Act 1999 is called the Principal Act.
4Purposes of Principal Act
Section 1(ba), (bb), (c) and (d) of the Principal Act are repealed.
5Definitions
(1)In section 3 of the Principal Act the definitions of auction, business day, cancellation charge, compulsory recall notice, consumer contract, contact sales agreement, cooling-off period, dangerous, engaging in conduct, fixed term ban order, goods, interim ban order, lay-by, lay-by statement, non-contact sales agreement, permanent ban order, prescribed information standard, prescribed safety standard, price, publisher, purchaser, related contract or instrument, services, supplier, supply, telephone marketing agreement, trade-in, trade or commerce, unsolicited goods and unsolicited services are repealed.
(2)At the end of section 3 of the Principal Act insert—
"(2)Without limiting subsection (1), unless the contrary intention appears the words and expressions used in this Act have the same meanings as they have in the Australian Consumer Law (Victoria).".
6Representations as to future matters
Section 4 of the Principal Act is repealed.
7Crown bound
In section 5 of the Principal Act, for "This Act" substitute "Subject to section 20, this Act".
8Extra-territorial application of this Act
After section 6(2) of the Principal Act insert—
"(3)Without limiting subsection (1) or (2), this Act applies to—
(a)the engaging in conduct in Victoria by persons outside Victoria;
(b)the engaging in conduct outside Victoria by persons in Victoria;
(c)a supply of goods or services in Victoria where the contract for the supply of goods or services is made in Victoria;
(d)in a case where a contract for the supply of goods or services is made outside Victoria, to the supply of those goods or services to—
(i)a person normally resident in Victoria; or
(ii)a body corporate whose principal place of business is in Victoria.".
9New Part 2 substituted
For Part 2 of the Principal Act substitute—
"Part 2—The Australian Consumer Law
Division 1—Definitions
7Definitions
(1)In this Part, unless the contrary intention appears—
application law means—
(a)a law of a participating jurisdiction that applies the Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or
(b)any regulations or other legislative instrument made under a law described in paragraph (a); or
(c)the Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications;
Australian Consumer Law means (according to the context)—
(a)the Australian Consumer law text; or
(b)the Australian Consumer Law text, applying as a law of a participating jurisdiction, either with or without modifications;
Australian Consumer Law text means the text described in section 8;
instrument means any document whatever, including the following—
(a)an Act or an instrument made under an Act;
(b)a law of this jurisdiction or an instrument made under such a law;
(c)an award or other industrial determination or order, or an industrial agreement;
(d)any other order (whether executive, judicial or otherwise);
(e)a notice, certificate or licence;
(f)an agreement;
(g)an application made, information or complaint laid, affidavit sworn, or warrant issued, for any purpose;
(h)an indictment, presentment, summons or writ;
(i)any other pleading in, or process issued in connection with, a legal or other proceeding;
Intergovernmental Agreement means the Intergovernmental Agreement for the Australian Consumer Law made on 2 July 2009 between the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being;
jurisdiction means a State or the Commonwealth;
law, in relation to a Territory, means a law of, or in force in, that Territory;
modifications includes additions, omissions and substitutions;
month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month;
participating jurisdiction means a jurisdiction that is a party to the Intergovernmental Agreement and applies the Australian Consumer Law as a law of the jurisdiction, either with or without modifications;
State includes a Territory;
Territory means the Australian Capital Territory or the Northern Territory of Australia;
this jurisdiction means Victoria.
(2)Terms used in this Part and also in the Australian Consumer Law (Victoria) have the same meanings in this Part as they have in that Law.
(3)For the purposes of this Part—
(a)a jurisdiction is taken to have applied the Australian Consumer Law as a law of the jurisdiction if a law of the jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text, as in force from time to time; and
(b)that corresponding law is taken to be the Australian Consumer Law, or the Australian Consumer Law text, applying as a law of that jurisdiction.
Division 2—Application of Australian Consumer Law
8The Australian Consumer Law text
The Australian Consumer Law text consists of—
(a)Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; and
(b)the regulations under section 139G of that Act.
9Application of Australian Consumer Law
(1)The Australian Consumer Law text, as in force from time to time—
(a)applies as a law of this jurisdiction; and
(b)as so applying may be referred to as the Australian Consumer Law (Victoria); and
(c)as so applying is a part of this Act.
(2)This section has effect subject to sections 10, 11 and 12.
10Future modifications of Australian Consumer Law text
(1)A modification made by a Commonwealth law to the Australian Consumer Law text after the commencement of this section does not apply under section 9, if the modification is declared by Order of the Governor in Council published in the Government Gazette to be excluded from the operation of that section.
(2)An Order under subsection (1) has effect only if published before the end of 2 months after the date of the modification.
(3)Subsection (1) ceases to apply to the modification if a further Order so provides.
(4)For the purposes of this section, the date of the modification is the date on which the Commonwealth Act effecting the modification receives the Royal Assent or the regulation effecting the modification is registered under the Legislative Instruments Act 2003 of the Commonwealth.
11Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction
(1)In the Australian Consumer Law (Victoria), regulator means the Director.
(2)For the purposes of the application of the Australian Consumer Law (Victoria), court has the meaning given in section 160E of this Act.
12Interpretation of Australian Consumer Law
(1)The Acts Interpretation Act 1901 of the Commonwealth applies as a law of this jurisdiction to the Australian Consumer Law (Victoria).
(2)For the purposes of subsection (1), the Commonwealth Act mentioned in that subsection applies as if—
(a)the statutory provisions in the Australian Consumer Law (Victoria) were a Commonwealth Act; and
(b)the regulations in the Australian Consumer Law (Victoria) or instruments under that Law were regulations or instruments under a Commonwealth Act.
(3)The Interpretation of Legislation Act 1984 does not apply to—
(a)the Australian Consumer Law (Victoria); or
(b)any instrument under that Law.
13Application of Australian Consumer Law
(1)The Australian Consumer Law (Victoria) applies to and in relation to—
(a)persons carrying on business within this jurisdiction; or
(b)bodies corporate incorporated or registered under the law of this jurisdiction; or
(c)persons ordinarily resident in this jurisdiction; or
(d)persons otherwise connected with this jurisdiction.
(2)Subject to subsection (1), the Australian Consumer Law (Victoria) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).
Division 3—References to Australian Consumer Law
14References to Australian Consumer Law
(1)A reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions.
(2)Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.
15References to Australian Consumer Law of other jurisdictions
(1)This section has effect for the purposes of an Act, a law of this jurisdiction or an instrument under an Act or such a law.
(2)If a law of a participating jurisdiction other than this jurisdiction provides that the Australian Consumer Law text as in force for the time being applies as a law of that jurisdiction, the Australian Consumer Law of that jurisdiction is the Australian Consumer Law text, applying as a law of that jurisdiction.
Division 4—Application of Australian Consumer Law to Crown
16Division does not apply to Commonwealth
In this Division, participating jurisdiction or other jurisdiction does not include the Commonwealth.
17Application law of this jurisdiction
The application law of this jurisdiction binds (so far as the legislative power of Parliament permits) the Crown in right of this jurisdiction and of each other jurisdiction, so far as the Crown carries on a business, either directly or by an authority of the jurisdiction concerned.
18Application law of other jurisdictions
(1)The application law of each participating jurisdiction other than this jurisdiction binds the Crown in right of this jurisdiction, so far as the Crown carries on a business, either directly or by an authority of this jurisdiction.
(2)If, because of this Part, a provision of the law of another participating jurisdiction binds the Crown in right of this jurisdiction, the Crown in that right is subject to that provision despite any prerogative right or privilege.
19Activities that are not business
(1)For the purposes of sections 17 and 18, the following do not amount to carrying on a business—
(a)imposing or collecting—
(i)taxes; or
(ii)levies; or
(iii)fees for authorisations;
(b)granting, refusing to grant, revoking, suspending or varying authorisations (whether or not they are subject to conditions);
(c)a transaction involving—
(i)only persons who are all acting for the Crown in the same right (and none of whom is an authority of a State); or
(ii)only persons who are all acting for the same authority of a State; or
(iii)only the Crown in right of a State and one or more non-commercial authorities of that State; or
(iv)only non-commercial authorities of the same State;
(d)the acquisition of primary products by a government body under legislation, unless the acquisition occurs because—
(i)the body chooses to acquire the products; or
(ii)the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.
(2)Subsection (1) does not limit the things that do not amount to carrying on a business for the purposes of sections 17 and 18.
(3)In this section—
acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation;
authorisation means a licence, permit, certificate or other authorisation that allows the holder of the authorisation to supply goods or services;
government body means a State or an authority of a State;
primary products means—
(a)agricultural or horticultural produce; or
(b)crops, whether on or attached to the land or not; or
(c)animals (whether dead or alive); or
(d)the bodily produce (including natural increase) of animals.
(4)For the purposes of this section, an authority of a State is non-commercial if—
(a)it is constituted by only one person; and
(b)it is neither a trading corporation nor a financial corporation.
20Crown not liable to pecuniary penalty or prosecution
(1)Nothing in the application law of this jurisdiction makes the Crown in any capacity liable to a pecuniary penalty or to be prosecuted for an offence.
(2)Without limiting subsection (1), nothing in the application law of a participating jurisdiction makes the Crown in right of this jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence.
(3)The protection in subsection (1) or (2) does not apply to an authority of any jurisdiction.
Division 5—Miscellaneous
21Conferral of functions and powers on certain bodies
(1)The authorities and officers of the Commonwealth referred to in the Australian Consumer Law (Victoria) have the functions and powers conferred or expressed to be conferred on them under the Australian Consumer Law (Victoria).
(2)In addition to the powers mentioned in subsection (1), the authorities and officers referred to in that subsection have power to do all things necessary or convenient to be done in connection with the performance of the functions and exercise of the powers referred to in that subsection.
22No doubling-up of liabilities
(1)If—
(a)an act or omission is an offence against the Australian Consumer Law (Victoria) and is also an offence against an application law of another participating jurisdiction; and
(b)the offender has been punished for the offence under the application law of the other jurisdiction—
the offender is not liable to be punished for the offence against the Australian Consumer Law (Victoria).
(2)If a person has been ordered to pay a pecuniary penalty under the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (Victoria) in respect of the same conduct.
__________________".
10Sections 32B to 32F repealed
Sections 32B to 32F of the Principal Act are repealed.
11Section 32FA substituted
For section 32FA of the Principal Act substitute—
"32FA Application of Goods Act 1958 to contracts of supply
(1)Sections 17, 18, 19(a) and (b) and 20 of the Goods Act 1958 do not apply to contracts of supply to which Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) applies.
(2)Section 4(2) of the Goods Act 1958 is taken to apply in relation to this Part and Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) as if—
(a)the reference to Part were a reference to Part 3-2 of the Australian Consumer Law (Victoria); and
(b)the reference to contracts for the sale of goods included a reference to contracts of supply of goods.
(3)A reference in Part I of the Goods Act 1958 to a condition includes a reference to a guarantee within the meaning of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria).
(4)Except as otherwise expressly provided by Division 1 of Part 3-2 of the Australian Consumer Law (Victoria), nothing in that Division affects the application to a contract of supply of goods or services of the Goods Act 1958 or any other Act or law.".
12Sections 32G to 32MA repealed
Sections 32G to 32MA of the Principal Act are repealed.
13Limitation of liability in relation to supply of recreational services
(1)For section 32N(1) of the Principal Act substitute—
"(1)Subject to subsection (2), a term of a contract of supply of recreational services is not void under section 64 of the Australian Consumer Law (Victoria) by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying—
(a)the application of any or all of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria) to the supply of the recreational services under the contract; or
(b)the exercise of a right conferred by such a provision in relation to the supply of the recreational services under the contract; or
(c)any liability of the supplier for a failure to comply with a guarantee under that Subdivision in relation to the supply of the recreational services under the contract.".
(2)In section 32N(3)(a) of the Principal Act—
(a)in subparagraphs (i) and (ii), for "section 32J or 32JA" substitute "all or any of the provisions of Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria)";
(b)for subparagraph (iii) substitute—
"(iii)constitute a failure to comply with a guarantee that applies under Subdivision B of Division 1 of Part 3-2 of the Australian Consumer Law (Victoria); and".
14Sections 32NB and 32O repealed
Sections 32NB and 32O of the Principal Act are repealed.
15When does a discharge or rescission have effect?
At the end of section 32PA of the Principal Act insert—
"(2)This section does not apply to a rejection under the Australian Consumer Law (Victoria).".
16Section 32S repealed
Section 32S of the Principal Act is repealed.
17Part 2B repealed
Part 2B of the Principal Act is repealed.
18Parts 3, 4 and 5 repealed
Parts 3, 4 and 5 of the Principal Act are repealed.
19New Division heading inserted in Part 7
After the heading to Part 7 of the Principal Act insert—
"Division 1—General".
20New Division 2 inserted into Part 7
At the end of Part 7 of the Principal Act insert—
"Division 2—Victorian Consumer Law Fund
102ADefinition
In this Part—
the Fund means the Victorian Consumer Law Fund referred to in section 102B(1);
non-party order means an order referred to in section 102C(1).
102BVictorian Consumer Law Fund
(1)There is to be kept in the Trust Fund established under the Financial Management Act 1994, a trust account to be known as the Victorian Consumer Law Fund.
(2)The following must be paid into the Fund—
(a)any pecuniary penalty ordered by a court under section 224 of the Australian Consumer Law (Victoria) to be paid to the State;
(b)any amount ordered by a court under section 239(1) of the Australian Consumer Law (Victoria) to be paid into the Fund;
(c)money appropriated by the Parliament for the purposes of the Fund;
(d)interest received on money invested in the Fund.
(3)Money must not be paid out of the Fund except in accordance with this Part.
(4)The Treasurer may invest money in the Fund in such manner as the Treasurer determines.
102COrder for payment to non-party consumers
(1)This section applies if, on the application of the Director, a court makes an order (a non‑party order) under section 239(1) of the Australian Consumer Law (Victoria) for an amount or amounts to be paid into the Fund to provide for the payment of money to non-party consumers.
(2)The order must—
(a)require notice to be given to non-party consumers to the extent that is practicable and in the manner specified in the order;
(b)specify the manner in which a non-party consumer may make a claim for payment from the Fund;
(c)specify the criteria that must be satisfied before a payment is made from the Fund to a non-party consumer;
(d)specify the day by which a non-party consumer may make a claim for payment from the Fund;
(e)specify the final day (being a day not more than 3 years from the day money is paid into the Fund under the order) on which a payment from the Fund may be made to a non-party consumer;
(f)specify the treatment of any money remaining on the final payment day from amounts paid into the Fund pursuant to the order, and the interest earned on those amounts, which may include—
(i)the return of some or all of the remaining money to the person against whom the order is made;
(ii)making some or all of the remaining money available for the purposes of sections 102D and 102E;
(iii)any other treatment that the court considers appropriate.
(3)The court may specify in the order that any amount paid into the Fund pursuant to the order may be applied to the costs of disbursing payments to non-party consumers made pursuant to the order.
(4)The Director is responsible for the distribution of money from the Fund to
non-party consumers pursuant to a non-party order.
(5)The distribution of money from the Fund to non-party consumers must be made in accordance with the non-party order and may only be made from the amount or amounts paid into the Fund pursuant to the order.
102DSpecial purpose grants
(1)The Minister may, on the recommendation of the Director, make payments out of the Fund for—
(a)the purposes of improving consumer wellbeing, consumer protection or fair trading; or
(b)any other purpose consistent with the objects of the Australian Consumer Law (Victoria).
(2)A payment under subsection (1) may be made to the Director or to a non-profit organisation.
(3)A payment under subsection (1) may only be made from the following money—
(a)any pecuniary penalty paid into the Fund under section 102B(2)(a) and the interest earned on that payment;
(b)money appropriated by the Parliament for the Fund and the interest earned on that money;
(c)any money paid into the Fund pursuant to a non-party order remaining on the final payment day that the order has specified may be applied for the purposes of this section.
102EAdministration expenses
(1)The Director may approve payment from the Fund for any reasonable expenses incurred in administering the Fund.
(2)A payment under subsection (1) may only be made from the following money—
(a)any pecuniary penalty paid into the Fund under section 102B(2)(a) and the interest earned on that payment;
(b)money appropriated by the Parliament for the Fund and the interest earned on that money;
(c)any money paid into the Fund pursuant to a non-party order—
(i)that the order specifies may be applied to the cost of disbursing payments to non-party consumers; or
(ii)remaining on the final payment day and that the order has specified may be applied for the purposes of this section.".
21Powers of the Director in relation to proceedings on behalf of consumers
At the foot of section 105 of the Principal Act insert—
"Note
This section is not intended to displace or limit the procedures for applications under section 149 or 277 of the Australian Consumer Law (Victoria).".
22New sections 106AA and 106AB inserted
After section 106 of the Principal Act insert—
"106AA Grants of legal assistance
(1)The Director may grant legal assistance to a person who claims to be involved in a consumer dispute if the person—
(a)wishes to bring legal proceedings (other than criminal proceedings) arising out of the supply or the failure to supply to the person of goods or services or the disposal to the person of an interest in land; or
(b)wishes to make an appeal or seek judicial review in relation to legal proceedings of a kind referred to in paragraph (a); or
(c)is a party to legal proceedings or proceedings relating to an appeal or review referred to in paragraph (a) or (b).
(2)For the purposes of subsection (1), the Director—
(a)must be satisfied that the person has reasonable grounds for bringing, or being a party to, the proceedings; and
(b)must be of the opinion that it is desirable, in the general interests of consumers or of any class of consumers, that assistance should be granted; and
(c)must obtain the written approval of the Minister to grant the assistance.
(3)Despite subsections (1) and (2), the Director may decide not to grant assistance if the Director is of the opinion that it should not be granted because of the person's financial position.
(4)If the Director decides to grant assistance under subsection (1)—
(a)the Director must notify the person to whom the assistance is being granted; and
(b)the person must not, without the consent of the Director, withdraw from the proceedings or discharge any Australian legal practitioner acting in the proceedings.
(5)Assistance granted under this section does not extend to expenses other than—
(a)the costs of legal representation; and
(b)prescribed expenses.
(6)Expenses incurred in the provision of assistance under this section and court fees must be met out of money from the Consolidated Fund, which is, to the necessary extent, appropriated accordingly.
(7)In this section, consumer dispute has the same meaning as it has in section 105.
106ABCosts and expenses relating to proceedings to which assisted person is a party
(1)If a person is granted assistance under section 106AA, the court must, in making an order for costs—
(a)in favour of the assisted person—make the same order (except against another assisted person) as the court would have made in favour of the assisted person if the person had not been an assisted person; or
(b)against the assisted person—make the same order (except in favour of another assisted person) as the court would have made against the assisted person if the person had not been an assisted person.
(2)If an order for costs is made under subsection (1)(a)—
(a)the costs are payable to the Director instead of the person in whose favour the order is made;
(b)the costs may be recovered by the Director as a debt due to the Crown;
(c)the costs, upon being paid to or recovered by the Director, must be paid into the Consolidated Fund.
(3)If an order for costs is made under subsection (1)(b), the costs must be paid by the Director.
(4)Except in the case of costs payable to the Director, money awarded by a court in favour of an assisted person is payable to the person without deduction.".
23Section 106A repealed
Section 106A of the Principal Act is repealed.
24New section 106P substituted
For section 106P of the Principal Act substitute—
"106P Information sharing
(1)The Director may enter into, or approve of, an arrangement (an information sharing arrangement) with a relevant agency for the purposes of sharing or exchanging information held by the Director and the relevant agency.
(2)The information to which an information sharing arrangement may relate is limited to the following—
(a)information concerning investigations, law enforcement, assessment of complaints, licensing or disciplinary matters;
(b)probity assessments and reference checks concerning persons who provide, or propose to provide, goods or services to consumers;
(c)any other information affecting the interests of consumers;
(d)any other information of a prescribed kind.
(3)Under an information sharing arrangement, the Director and the relevant agency are authorised—
(a)to request and receive information held by the other party to the arrangement; and
(b)to disclose information to the other party—
but only to the extent that the information is reasonably necessary to assist in the exercise of functions under this Act or a Consumer Act or the functions of the relevant agency concerned.
(4)Without limiting subsection (3), the Director may also (whether as part of an information sharing arrangement or otherwise)—
(a)refer any matter (including any complaint) with respect to fair trading, or that affects the interests of consumers, to a fair trading agency or law enforcement agency;
(b)receive any matter of a type described in paragraph (a) from a fair trading agency or law enforcement agency;
(c)conduct a joint investigation into any such matter with a fair trading agency or law enforcement agency.
(5)Any fair trading agency or law enforcement agency referred to in subsection (4) is, despite any other Act or law of the State, authorised to refer a matter referred to in subsection (4) to the Director or to conduct an investigation into the matter jointly with the Director.
(6)This section does not limit—
(a)the powers of the Director under this Part; or
(b)the operation of any other Act under which a relevant agency is authorised or required to disclose information to another person or body; or
(c)the giving of information—
(i)to a court or tribunal in the course of legal proceedings; or
(ii)pursuant to an order of a court or tribunal; or
(iii)to the extent reasonably required to enable the investigation or the enforcement of a law of the State or of any other State or Territory or of the Commonwealth; or
(iv)to the Business Licensing Authority established under the Business Licensing Authority Act 1998; or
(v)with the written authority of the Secretary; or
(vi)with the written authority of the person to whom the information relates.
(7)In this section—
fair trading agency means an agency of the State, or of the Commonwealth, or of another State or Territory or of an overseas jurisdiction, that exercises functions under an enactment with respect to fair trading;
law enforcement agency means—
(a)the police force of Victoria or the police force of another State or Territory or of an overseas jurisdiction; or
(b)the Australian Federal Police; or
(c)the Australian Crime Commission; or
(d)any other authority or person responsible for the investigation or prosecution of offences against the laws of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction;
relevant agency means—
(a)a fair trading agency; or
(b)a law enforcement agency; or
(c)any other agency of the State or of the Commonwealth, another State or Territory or an overseas jurisdiction; or
(d)any other person or body that exercises functions, in the public interest, that involve protecting the interests of consumers.".
25Appointment of inspectors
For section 114(4) of the Principal Act substitute—
"(4)In this section, interstate Act means an Act of another State or Territory that is prescribed for the purposes of this subsection.".
26Requirement to produce information
Section 118(1A) of the Principal Act is repealed.
27Emergency entry
In section 121(1) of the Principal Act, for "order, a fixed term ban order or a permanent ban order" substitute "or a permanent ban".
28Monitoring compliance with embargo notices
In section 126B of the Principal Act—
(a)in subsections (3) and (4)—
(i)in paragraph (b) omit "prescribed";
(ii)in paragraph (c) omit "order";
(iii)in paragraph (d), for "ban order;" substitute "ban—";
(iv)paragraph (e) is repealed;
(b)in subsection (5)—
(i)in paragraph (b) omit "prescribed";
(ii)in paragraph (c)(i) omit "order";
(iii)in paragraph (c)(ii), for "ban order;" substitute "ban; or";
(iv)paragraph (c)(iii) is repealed.
29Court may order destruction of dangerous goods
For section 129A(1) of the Principal Act substitute—
"(1)If an inspector seizes goods under this Part that are of a kind to which a safety standard applies or in relation to which there is in force an interim ban or a permanent ban, the Director may apply to a court for an order permitting destruction of the goods.".
30Copy of undertaking
In section 147 of the Principal Act, after "146" insert "of this Act or under section 218 of the Australian Consumer Law (Victoria)".
31Register of undertakings
After section 148(3) of the Principal Act insert—
"(4)In this section, undertaking includes an undertaking made under section 218 of the Australian Consumer Law (Victoria).".
32Undertakings as to damages and costs
(1)In section 152(1) of the Principal Act, after "150" insert "of this Act or under section 232 of the Australian Consumer Law (Victoria)".
(2)In section 152(2) of the Principal Act, after "149A" insert "of this Act or under section 232 of the Australian Consumer Law (Victoria)".
33Non-punitive orders—Corrective advertising orders
In section 153(1) of the Principal Act, for "2, 2A, 2B, 3, 4, 5" substitute "2A".
34Orders to prohibit payment of money or transfer of other property
For section 154(8) of the Principal Act substitute—
"(8)In this section prescribed proceedings means—
(a)proceedings for an offence against—
(i)Part 2A or 6; or
(ii)Chapter 4 of the Australian Consumer Law (Victoria);
(b)proceedings on an application for an injunction under—
(i)section 149, 149A, 150, 151A or 151B against a person alleged to have contravened Part 2A or 6; or
(ii)section 232 of the Australian Consumer Law (Victoria) in relation to—
(A)an alleged contravention of Chapter 2, 3 or 4 of that Law; or
(B)a term of a consumer contract in relation to which a declaration under section 250 of that Law has been made; or
(c)proceedings on an application for an order under—
(i)section 158; or
(ii)section 237, 238 or 239 of the Australian Consumer Law (Victoria) in relation to—
(A)a contravention of Chapter 2, 3 or 4 of that Law; or
(B)a term of a consumer contract in relation to which a declaration under section 250 of that Law has been made; or
(d)proceedings for damages under—
(i)section 159; or
(ii)section 236 of the Australian Consumer Law (Victoria).".
35Defences
In section 155 of the Principal Act—
(a)in subsection (4) omit "(other than section 27)";
(b)in subsection (5) omit "section 32ZB(5), Part 3,".
36Section 157 substituted
For section 157 of the Principal Act substitute—
"157 Findings in proceedings to be evidence
(1)In a proceeding against a person under section 158 or 159 of this Act, a finding of fact by a court made in proceedings under section 149, 149A, 150, 151A, 151B, 151C, 153 or 153A in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of this Act (other than the Australian Consumer Law (Victoria)) is evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.
(2)In a proceeding against a person under section 236, 237, 238 or 239 of the Australian Consumer Law (Victoria), a finding of fact by a court made in proceedings under section 228, 232, 233, 234, 237, 246, 247 or 248 or any provision of Chapter 4 of that Law in which that person has been found to have contravened, or to have been involved in a contravention of, the Australian Consumer Law (Victoria) is evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.".
37Orders against persons found to have contravened this Act
In section 158(1)(a) of the Principal Act omit "(including a provision under Part 2)".
38Power to serve a notice
In section 160A(1) of the Principal Act, for "an offence specified by the regulations as an offence in respect of which an infringement notice may be issued" substitute "a prescribed offence against this Act (including an offence against a provision of the Australian Consumer Law (Victoria)) or the regulations".
39Section 160B repealed
Section 160B of the Principal Act is repealed.
40New Divisions 4 and 5 inserted into Part 11
After Division 3 of Part 11 of the Principal Act insert—
"Division 4—Safety and information requirements
160BInterim bans, recall notices and safety warning notices
(1)The Director may, in respect of goods or services of a particular kind, recommend to the Minister that—
(a)an interim ban be made under section 109 of the Australian Consumer Law (Victoria);
(b)a recall notice be issued under section 122 of the Australian Consumer Law (Victoria);
(c)a safety warning notice be issued under section 129 of the Australian Consumer Law (Victoria).
(2)The Minister must publish in the Government Gazette a copy of any notice that the Minister publishes on the internet under section 109, 111(2), 113, 122, 129 or 130 of the Australian Consumer Law (Victoria).
160CNotice of ban or notice
(1)The Minister must cause a copy of an interim ban or recall notice to be given to each person who, to the knowledge of the Minister, supplies goods or services of the kind to which the interim ban or recall notice relates.
(2)A copy of an interim ban or recall notice must be given under subsection (1) within 2 days after the imposition of the interim ban or the issue of the recall notice under the Australian Consumer Law (Victoria), or if that is not practicable, as soon as possible after the end of that period.
(3)A failure to comply with subsection (1) or (2) in relation to an interim ban or recall notice does not invalidate the interim ban or recall notice.
160DReview of ban order or compulsory recall notice
(1)A person whose interests are affected by a decision to make an interim ban or a recall notice may apply to the Tribunal for review of that decision.
(2)An application for review must be made within 28 days after the later of—
(a)the day on which the interim ban is imposed or the recall notice is issued under the Australian Consumer Law (Victoria); or
(b)if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
Division 5—Enforcement of Australian Consumer Law (Victoria)
160EReferences to courts and the Tribunal
(1)Subject to subsections (2), (3) and (4) and section 160F and 160G, in the Australian Consumer Law (Victoria), court means—
(a)the Supreme Court;
(b)the County Court;
(c)the Magistrates' Court;
(d)the Tribunal.
(2)In sections 218, 224, 246 and 247 of the Australian Consumer Law (Victoria), court does not include the Tribunal.
(3)In respect of section 232 of the Australian Consumer Law (Victoria)—
(a)the Tribunal may not issue an order under that section, except for the purposes of subsection (3);
(b)only the Supreme Court may issue an order of the kind described in subsection (5).
(4)In section 250 of the Australian Consumer Law (Victoria), court does not include the Magistrates' Court.
160FActions for damages under Australian Consumer Law (Victoria)
An action for damages under section 236 of the Australian Consumer Law (Victoria) may be brought before the Tribunal or in any court of competent jurisdiction.
160GJurisdictional limit of Magistrates Court not to apply to pecuniary penalties under Australian Consumer Law (Victoria)
The jurisdictional limit for a civil proceeding specified under section 100(1) of the Magistrates' Court Act 1989 does not apply to the power to order a pecuniary penalty under section 224 of the Australian Consumer Law (Victoria).
160HOrders against persons found to have contravened Australian Consumer Law (Victoria)
(1)In any proceeding for an offence against, or a contravention of, the Australian Consumer Law (Victoria), the Supreme Court, the County Court or the Magistrates' Court may make any order it considers fair if it finds that—
(a)the person against whom the proceedings were brought (the accused) has contravened a provision of that Law; and
(b)another person (the injured person) has suffered or may suffer loss or damage as a result of the contravention of that Law.
(2)Without limiting subsection (1), the orders that may be made under this section include an order declaring that the accused has contravened a provision of the Australian Consumer Law (Victoria).".
41Section 161 repealed
Section 161 of the Principal Act is repealed.
42Section 161A substituted
For section 161A of the Principal Act substitute—
"161A Application of Australian Consumer Law (Victoria) in respect of bills and receipts under Legal Profession Act 2004
Section 101 of the Australian Consumer Law (Victoria) does not apply to a contract for the provision of legal services to which the Legal Profession Act 2004 applies.".
43Sections 162 and 163 repealed
Sections 162 and 163 of the Principal Act are repealed.
44New section 163B inserted
After section 163A of the Principal Act insert—
"163B Disapplication of certain provisions to Australian Consumer Law (Victoria)
Sections 145, 146, 149, 149A, 151A, 153, 153A, 155, 156, 158 and 159 do not apply in respect of the Australian Consumer Law (Victoria).".
45Regulations under Principal Act
(1)In section 165(1) of the Principal Act—
(a)for paragraph (a) substitute—
"(a)prescribing calling hours with respect to unsolicited consumer agreements under section 73 of the Australian Consumer Law (Victoria);";
(b)paragraphs (b) and (ca) are repealed.
(2)After section 165(2) of the Principal Act insert—
"(3)Regulations made under section 165(1)(a) may alter the operation of section 73 of the Australian Consumer Law (Victoria).".
46Schedule 2 repealed
Schedule 2 to the Principal Act is repealed.
47Savings and transitional
After clause 19 of Schedule 3 to the Principal Act insert—
"19A Transitional provision—repeal of Part 2B
(1)Part 2-3 of the Australian Consumer Law (Victoria) applies to any new contract entered into on or after the commencement day.
(2)Subject to subclause (3), Part 2B as in force immediately before its repeal continues to apply to any contract entered into before the commencement day.
(3)If a contract entered into before the commencement day—
(a)is renewed on or after that date, Part 2‑3 of the Australian Consumer Law (Victoria) applies to the contract as renewed, on and from the day (the renewal day) on which the renewal takes effect, in relation to conduct that occurs on or after the renewal day; or
(b)if a term of the contract is varied on or after the commencement day, and paragraph (a) has not already applied in relation to the contract, Part 2-3 of the Australian Consumer Law (Victoria) applies to the term as varied, on and from the day (the variation day) on which the variation takes effect, in relation to conduct that occurs on or after the variation day.
(4)If subsection (3)(b) applies to a term of the contract, sections 23(2) and 27(1) of the Australian Consumer Law (Victoria) apply to the contract.
(5)In this section, commencement day means the day on which section 17 of the Fair Trading Amendment (Australian Consumer Law) Act 2010 comes into operation.
19BTransitional—jurisdiction of the Tribunal
Despite the amendment of this Act by a provision of the Fair Trading Amendment (Australian Consumer Law) Act 2010, the Tribunal continues to have jurisdiction on and from the date of the commencement of that provision in relation to any matter or conduct that took place before that date under this Act as in force at the time the matter or conduct occurred.
19CSavings—Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009
Despite the repeal of sections 47 and 165(1)(a) by the Fair Trading Amendment (Australian Consumer Law) Act 2010, the Fair Trading (Information Standard) (Australian Builders Plate Standard) Regulations 2009—
(a)subject to paragraph (b), continue in operation and may be amended or revoked as if those sections remained in force; and
(b)are revoked on the coming into operation of section 102 of the Marine Safety Act 2010.
19DRegulations dealing with transitional matters
(1)The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Fair Trading Amendment (Australian Consumer Law) Act 2010, including the repeals and amendments made by that Act.
(2)Regulations made under this clause may—
(a)be of limited or general application; and
(b)leave any matter or thing to be decided by a specified person or class of person; and
(c)provide for the exemption of persons or things or a class of persons or things from any of the regulations made under this clause.
(3)Regulations under this clause have effect despite anything to the contrary—
(a)in any Act (other than this Act or the Charter of Human Rights and Responsibilities); or
(b)in any subordinate instrument.
(4)This clause is repealed on the first anniversary of the first day on which all of the provisions of the Fair Trading Amendment (Australian Consumer Law) Act 2010 are in operation.".
48Consequential amendments
On the coming into operation of an item in the Schedule, an Act specified in the heading to the item is amended as set out in that item.
49Repeal of amending Act
This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
__________________
SCHEDULE
Section 48
Consequential Amendments
1Associations Incorporation Act 1981
In section 50C(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
2Building Act 1993
(1)In section 137A(1)(d), for "section 52, 53, 55A or 74 of the Trade Practices Act 1974 of the Commonwealth or section 9, 11 or 12 of the Fair Trading Act 1999" substitute "section 18, 29, 34 or 151, or Subdivision B of Division 1 of Part 3-2, of the Australian Consumer Law (Victoria)".
(2)For section 137A(4) substitute—
'(4)A reference—
(a)in any order made under section 135; or
(b)in any instrument or agreement which is required insurance—
to "section 9, 11 or 12 of the Fair Trading Act 1999" is, to the extent that it relates to any period on or after the commencement of section 8 of the Fair Trading Amendment (Australian Consumer Law) Act 2010, taken to include a reference to "section 18, 29, 34 or 151 of the Australian Consumer Law (Victoria)".'.
(3)For section 221S(1)(e) substitute—
"(e)has been convicted of an offence against—
(i)section 12, 16, 17, 18, 20 or 22 of the Fair Trading Act 1985; or
(ii)section 10, 11, 12, 17, 19 or 21 of the Fair Trading Act 1999; or
(iii)section 53, 55, 55A, 56, 58 or 60 of the Trade Practices Act 1974 of the Commonwealth; or
(iv)section 29, 33, 34, 35, 36, 50, 151, 157, 158 or 168 of the Australian Consumer Law (Victoria).".
(4)For section 221ZD(2)(e) substitute—
"(e)has been convicted of an offence against—
(i)section 12, 16, 17, 18, 20 or 22 of the Fair Trading Act 1985; or
(ii)section 10, 11, 12, 17, 19 or 21 of the Fair Trading Act 1999; or
(iii)section 53, 55, 55A, 56, 58 or 60 of the Trade Practices Act 1974 of the Commonwealth; or
(iv)section 29, 33, 34, 35, 36, 50, 151, 157, 158 or 168 of the Australian Consumer Law (Victoria).".
(5)In section 221ZT(1)(c), for "section 52, 53, 55A or 74 of the Trade Practices Act 1974 of the Commonwealth or section 9, 11 or 12 of the Fair Trading Act 1999" substitute "section 18, 29, 34 or 151, or Subdivision B of Division 1 of Part 3-2, of the Australian Consumer Law (Victoria)".
(6)For section 221ZT(2) substitute—
'(2)A reference—
(a)in any order made under section 221ZQ; or
(b)in any instrument or agreement which is required insurance (within the meaning of section 221B(1))—
to "section 9, 11 or 12 of the Fair Trading Act 1999" is, to the extent that it relates to any period on or after the commencement of section 8 of the Fair Trading Amendment (Australian Consumer Law) Act 2010, taken to include a reference to "section 18, 29, 34 or 151 of the Australian Consumer Law (Victoria)".'.
3Business Names Act 1962
In section 29(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
4Child Employment Act 2003
In the definition of door-to-door selling in section 3, for "a contact sales agreement within the meaning of the Fair Trading Act 1999" substitute "an unsolicited consumer agreement within the meaning of the Australian Consumer Law (Victoria)".
5Consumer Affairs Legislation Amendment (Reform) Act 2010
(1)In section 7, in proposed section 93AM(1)(f) and (2)(e) of the Fair Trading Act 1999, after "Part 2 of this Act" insert "(as in force immediately before the commencement of the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under Part 3-2 of the Australian Consumer Law (Victoria)".
(2)In the Schedule—
(a)in item 3.1, for "Part 10" substitute "Part 11";
(b)in item 3.2, for "sections 73 and" substitute "section".
6Conveyancers Act 2006
In section 183(2A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
7Domestic Building Contracts Act 1995
In section 124A(2A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
8Electricity Industry Act 2000
(1)For section 35(7A) substitute—
"(7A)Section 81 of the Australian Consumer Law (Victoria) does not apply to the amendment of an agreement for the sale and supply of electricity that is the result of a variation under subsection (3) or (4) if the agreement is an unsolicited consumer agreement.".
(2)In section 35(8)—
(a)in the definition of cooling-off period for "the contract." substitute "the contract;";
(b)insert the following definition—
"unsolicited consumer agreement has the same meaning as in section 69 of the Australian Consumer Law (Victoria).".
(3)In section 35(7B), for "Sections 67E(1) and 67I to 67M of the Fair Trading Act 1999" substitute "Sections 78(2), 83, 84 and 85 of the Australian Consumer Law (Victoria)".
(4)In section 35(7C), for "Section 67H of the Fair Trading Act 1999" substitute "Section 82 of the Australian Consumer Law (Victoria)".
(5)In section 35(7D), for "section 67H(1) of the Fair Trading Act 1999" substitute "section 82(3)(b) of the Australian Consumer Law (Victoria)".
(6)In section 36(5A), for "Sections 67E(1) and 67I to 67M of the Fair Trading Act 1999" substitute "Sections 78(2), 83, 84 and 85 of the Australian Consumer Law (Victoria)".
(7)In section 36(5B), for "Section 67H of the Fair Trading Act 1999" substitute "Section 82 of the Australian Consumer Law (Victoria)".
(8)In section 36(5C), for "section 67H(1) of the Fair Trading Act 1999" substitute "section 82(3)(b) of the Australian Consumer Law (Victoria)".
(9)For section 39(4) substitute—
"(4)If a supply and sale contract referred to in subsection (2)(a) is an unsolicited consumer agreement, sections 84 and 85 of the Australian Consumer Law (Victoria) do not apply on the cancellation of that contract.".
(10)In section 39(10)—
(a)in the definition of cooling-off period for "section 63, 67H or 71 of the Fair Trading Act 1999" substitute "section 82 of the Australian Consumer Law (Victoria)";
(b)in the definition of supply and sale contract for "partly in writing." substitute "partly in writing;";
(c)insert the following definition—
"unsolicited consumer agreement has the same meaning as in section 69 of the Australian Consumer Law (Victoria).".
9Estate Agents Act 1980
In section 93A(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
10Fundraising Act 1998
In section 68(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
11Funerals Act 2006
(1)For the note at the foot of section 22 substitute—
"Note
The following provisions of the Australian Consumer Law (Victoria) may apply to any breach of a funeral provider's obligations under this Division—
section 18 (misleading or deceptive conduct);
section 21 (unconscionable conduct);
section 29 (false or misleading representations about goods or services);
section 33 (misleading conduct as to the nature etc. of goods);
section 34 (misleading conduct as to the nature etc. of services);
section 158 (wrongly accepting payment).".
(2)In section 54(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
12Gas Industry Act 2001
(1)For section 42(7A) substitute—
"(7A)Section 81 of the Australian Consumer Law (Victoria) does not apply to the amendment of an agreement for the sale and supply of gas that is the result of a variation under subsection (3) or (4) if the agreement is an unsolicited consumer agreement.".
(2)In section 42(8)—
(a)in the definition of cooling-off period for "the contract." substitute "the contract;";
(b)insert the following definition—
"unsolicited consumer agreement has the same meaning as in section 69 of the Australian Consumer Law (Victoria).".
(3)In section 42(7B), for "Sections 67E(1) and 67I to 67M of the Fair Trading Act 1999" substitute "Sections 78(2), 83, 84 and 85 of the Australian Consumer Law (Victoria)".
(4)In section 42(7C), for "Section 67H of the Fair Trading Act 1999" substitute "Section 82 of the Australian Consumer Law (Victoria)".
(5)In section 42(7D), for "section 67H(1) of the Fair Trading Act 1999" substitute "section 82(3)(b) of the Australian Consumer Law (Victoria)".
(6)In section 43(5A), for "Sections 67E(1) and 67I to 67M of the Fair Trading Act 1999" substitute "Sections 78(2), 83, 84 and 85 of the Australian Consumer Law (Victoria)".
(7)In section 43(5B), for "Section 67H of the Fair Trading Act 1999" substitute "Section 82 of the Australian Consumer Law (Victoria)".
(8)In section 43(5C), for "section 67H(1) of the Fair Trading Act 1999" substitute "section 82(3)(b) of the Australian Consumer Law (Victoria)".
(9)For section 46(4) substitute—
"(4)If a supply and sale contract referred to in subsection (2)(a) is an unsolicited consumer agreement, sections 84 and 85 of the Australian Consumer Law (Victoria) do not apply on the cancellation of that contract.".
(10)In section 46(10)—
(a)in the definition of cooling-off period for "section 63, 67H or 71 of the Fair Trading Act 1999" substitute "section 82 of the Australian Consumer Law (Victoria)";
(b)in the definition of supply and sale contract for "partly in writing." substitute "partly in writing;";
(b)insert the following definition—
"unsolicited consumer agreement has the same meaning as in section 69 of the Australian Consumer Law (Victoria).".
13Interpretation of Legislation Act 1984
After section 38E insert—
"38F References to Australian Consumer Law
In an Act or subordinate legislation—
Australian Consumer Law (Victoria) means the provisions applying because of Part 2 of the Fair Trading Act 1999.".
14Introduction Agents Act 1997
In section 69(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
15Limitation of Actions Act 1958
(1)In section 27A(2), after "1999" insert "or section 236 of the Australian Consumer Law (Victoria)".
(2)In section 27B(4), after "1999" insert "or section 236(2) of the Australian Consumer Law (Victoria)".
16Motor Car Traders Act 1986
(1)After section 43(6) insert—
"(6A)Division 1 of Part 5-5 of the Australian Consumer Law (Victoria) does not apply to the termination of an agreement under this section.".
(2)In section 82I(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
17Owners Corporations Act 2006
In section 199(3), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
18Prostitution Control Act 1994
In section 86A(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
19Residential Tenancies Act 1997
In section 507A(2A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
20Retirement Villages Act 1986
(1)In section 18(1), for "applies" substitute "and the Australian Consumer Law (Victoria) apply".
(2)In section 18(3), after "Fair Trading Act 1999" insert "or the Australian Consumer Law (Victoria)".
21Sale of Land Act 1962
In section 48A(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
22Second-Hand Dealers and Pawnbrokers Act 1989
In section 30(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
23Travel Agents Act 1986
In section 44(1A), for "2, 2A, 2B, 3, 4, 5" substitute "2A".
24Victorian Civil and Administrative Tribunal Act 1998
For section 73(2A)(b) substitute—
"(b)under section 22 of the Australian Consumer Law (Victoria); or".
25Wrongs Act 1958
In section 24AF(1)(b), for "section 9 of the Fair Trading Act 1999" substitute "section 18 of the Australian Consumer Law (Victoria)".
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Endnotes
Minister's second reading speech—
Legislative Assembly: 12 August 2010
Legislative Council: 16 September 2010
The long title for the Bill for this Act was "A Bill for an Act to amend the Fair Trading Act 1999 to apply the Australian Consumer Law as a law of Victoria and to make consequential amendments to that Act and other Acts and for other purposes."
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